PRINCE TOM IKECHI EDEBOR -VS- ELF PETROLEUM NIGERIA LIMITED

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: 25^TH FEBRUARY, 2019 SUIT NO: NICN/PHC/103/2014

BETWEEN:

PRINCE TOM IKECHI EDEBOR CLAIMANT

AND

ELF PETROLEUM NIGERIA LIMITED DEFENDANT

REPRESENTATION:

Benjamin Obiora with P. C. Francis for the Claimant

T. Lawson holding the brief of Bertram Faotu for the Defendant

JUDGMENT

The Claimant initiated this suit by way of Complaint and Statement of Facts dated and filed on 30^th April, 2014, claiming the following reliefs against the Defendant:

A declaration that the Claimant having retired from the defendant effectively on the 31^st of October, 1993, is entitled to the arrears of his pension and any increases thereof from the 30^th November, 1993 till the date of Judgment and thereafter till the end of his life having worked and retired from the defendant at the time Non-contributory Pension was in operation at the Defendant’s company.

An Order compelling the Defendant to pay to the Claimant the sum of N23, 222, 843.173 (Twenty Three Million, Two Hundred and Twenty-two Thousand, Eight Hundred and Forty-Three Naira, One Hundred and Seventy Three Kobo) being the total sum of the arrears of pension with interest at the rate of 21% per annum, from 30^th November, 1993 to 30^th April, 2014 and thereafter monthly pension at the rate of N180,000 or such rate and increases thereto as paid to persons of his grade, having retired as Head, Land Department, from the 31^st May, 2014 till the end of his life.

The sum of N20, 000,000 only as exemplary damages for the difficulties, hardships, psychological trauma and deprivations the Defendant’s failure to perform its obligations has caused the Claimant over the years of deprivation, and for the oppressive act of the defendant.

Upon service of the Originating Processes on the Defendant, the Defendant entered appearance to the suit on the 15^th of December, 2015. At the hearing of the matter on the 14^th of January, 2016, the court extended the time within which the defendant could file it defence processes and gave the Defendant 14 days within which to do so. The Defendant thereafter filed its Statement of Defence together with Witness Statement on Oath and List of Witnesses all dated 4^thof November, 2015 but filed on 28^th January, 2016.

The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 30^th April, 2014 and tendered a total of eleven (11) documents which were admitted and marked as exhibits CW1, CW2, CW3, CW4, CW5, CW6, CW7, CW8, CW9, CW10 and CW11. The witness was cross-examined by the defence counsel and re-examined by the Claimant’s counsel. The Claimant closed his case on the 16^th of May, 2018, and the matter was adjourned for Defence.

The Defendant on the other hand called one witness Adolphus Akwumakwuhie (a Staff of the Legal Department of the Defendant) who testified as DW. He adopted the Witness Statement on Oath filed on 28^th January, 2016. The Defendant did not tender any document but one document was tendered by the Claimant’s counsel through DW during cross-examination which was admitted and marked as exhibit DW1. The witness was cross-examined by the learned Claimant’s counsel without being re-examined by the learned Defendant’s counsel. The Defendant then closed its case on 30^th of October, 2018.

With the close of the defendant’s case, parties were ordered to file their Final Written Addresses, and the case was adjourned for adoption of Final Written Addresses.

When the matter came up for hearing on the 15^th of January, 2019, parties adopted their Final Written Addresses respectively.

The Defendant’s Final Written Address was dated 22^nd November, 2018, filed on 26^th November, 2018, but deemed as having been properly filed and served on 10^th of December, 2018. The Claimant’s Final Written Address on the other hand was dated and filed on 12^th December, 2018. The Defendant also filed a Reply on Points of Law to the Claimant’s Final Written Address dated 20^th December, 2018 and filed on 24^th December, 2018, which was equally adopted by the learned counsel to the Defendant. With the adoption of the parties’ Final Written Addresses, the suit was adjourned for Judgment.

THE CASE OF THE CLAIMANT:

The Claimant’s case is simply that, he worked for the Defendant (initially known as SAFRAP Nigeria Limited) with effect from 1^st August, 1973, and in various Departments of the Defendant wherein he rose to management level until he retired as the Head of Lands Administration, Port Harcourt. That he worked for the Defendant for about 20 years and retired with unblemished records.

According to the Claimant, on 15^th April, 1992 when he had worked for about 19 years, Defendant gave him an offer of early retirement from service even though he was due to retire in October 1993, after the attainment of the retirement age of 55 years. This offer was subsequently corrected vide another letter dated 29^th April, 1992. That the idea behind the early retirement option was that, while the Claimant would withdraw his service from the defendant, the defendant had the obligation to continue paying all his salaries and entitlements up to when he would be due for retirement.

The Claimant further averred that, prior to 1^st of January, 1993, the defendant was operating the Contributory Pension Scheme, and being a union leader he participated in negotiations concerning staff welfare including Non-Contributory Pension Scheme which was approved by the defendant effective 1^st of January, 1993. That all the defendant’s employees were refunded their accrued pension contributions made under the contributory pension scheme of the defendant provided they retired after 1^st January, 1993 and made to be entitled to Non-Contributory Pension.

That after getting assurance from the Defendant’s Personnel Manager (one E. N. Chiejina) that since he was to retire in October, 1993 after the commencement of the Non-Contributory Pension Scheme, he would be entitled to pension benefits under the Non-Contributory Pension Scheme, the Claimant then as a union leader advised all other staff of the defendant who were also given the option of early retirement including one Mr. E. C. Amadi to accept same, and the Claimant disengaged from the Defendant’s employment in May, 1992, but continued to receive his salaries, allowances and other entitlements by the defendant up to October, 1993 which was his actual time of retirement, as if he was still in the defendant’s service till October, 1993. That in the circumstance, his retirement took effect from 31^st October, 1993.

It was further averred by the Claimant that, his Non-Contributory Pension took effect from 30^th November, 1993, and despite repeated efforts for an amicable resolution of the matter, the Defendant has failed and refused to pay him his arrears of pension and his due pension till date. As a result of the defendant’s refusal to pay him his pension, he instituted a suit at the Rivers State High Court which went on appeal to the Court of Appeal Port Harcourt Division on issue of limitation law but the Court of Appeal in a considered decision delivered on 7^th July, 2011 held that the suit was not statute barred and remitted the case back to the Chief Judge Rivers State for trial.

According to the Claimant, he subsequently discontinued the suit at the Rivers State High Court since the court would no longer have jurisdiction over the subject matter, and filed the instant suit before this court.

That as at 30^th November, 1993, the claimant’s monthly pension entitlement was N35, 000.00 (Thirty Five Thousand Naira) but with progressive increases it now stands at N180, 000.00 (One Hundred and Eighty Thousand Naira) per month. By the Claimant’s calculations, from 30^th November, 1993 to 30^th April, 2014 ( a period of 21 years) his pension arrears stood at N23, 222, 843.173 (Twenty Three Million, Two Hundred and Twenty Two Thousand, Eight Hundred and Forty Three Naira, One Hundred and Seventy Three Kobo).

That as a result of the Defendant’s failure to pay him his pension, he has suffered untold hardship, family disintegration, stigmatization, and lack of basic amenities of life hence the court should grant his reliefs as claimed.

DEFENDANT’S CASE:

According the Defendant, while it is true that the Claimant was its employee and now a retiree, and also true that the concept of optional early retirement actually happened, the payment of the Claimant’s salaries and other entitlements up to the period he would have normally retired (31^st of October, 1993) was however an ex-gratia payment. That the Claimant was paid all his entitlements under the defendant’s contributory pension scheme which was the applicable pension scheme as at when the Claimant retired from service.

That the Claimant is not entitled to any payment under the Non-Contributory Pension Scheme of the Defendant which took effect on 1^st January, 1993 since he was paid all his entitlements which he willingly accepted having worked up to 30^th June, 1992 when he disengaged from the Defendant’s employment. That the terms of his retirement and all his benefits were clearly captured in the letter dated 15^th April, 1992.

That it is not true as contended by the Claimant that all the Defendant’s staff who were offered the option of early retirement accepted it as one Mr. A. S. Anabraba who was also given the offer rejected same and when he eventually retired on 21^st August, 1994, when the Non-Contributory Pension Scheme had come into effect, he received his pension until he died on 10^th of October, 1998.

The Defendant further contends that, the Claimant who retired before the coming into effect of the non-contributory pension scheme cannot benefit from same. And that, the suit as presently constituted is statute barred and the Claimant lacks the locus standi to institute same. The court is therefore urged to dismiss the suit in its entirety for being incompetent, speculative, frivolous and an abuse of court process.

DEFENDANT’S SUBMISSIONS.

The Defendant crafted five (5) issues for determination, to wit:

The main issue in this case is that the claimant is alleging that he is entitled to benefit under the new non-contributory pension scheme which commenced after he had accepted the early retirement and disengagement from the defendant in June 1992.

Whether the claim of the Claimant is proper having received terminal benefits.

Whether the testimony of the DW1 is proper despite his not being at the defendant’s employment at the time the facts occurred.
Whether the Court of Appeal decided and or the High Court of Rivers State decided that the Claimant was entitled to pension from 30^th November, 1993 and or that the Claimant retired on 31^st October, 1993.

Whether the suit of the Claimant is not statute barred.

On Issue one (1) it is submitted that, the Claimant who has the burden of bringing before the court both the terms of his employment and how those terms were breached by the Defendant has failed to do so because the exhibits tendered particularly exhibits CW1, CW2 and CW3 do not in any way establish his being entitled to non-contributory pension or any benefit under a scheme that came into effect after his retirement. That the documents were only dumped on the court by the Claimant, and it is not the court’s duty to embark on a voyage of discovery. See Awuse V. Odili (2005) 16 NWLR (Part 952) 416 at 445.

That since in law parties are bound by the terms of their Written Contract and no oral evidence should be allowed to vary, add, subtract or contradict the written terms agreed to by the parties, the Claimant should not be allowed to vary the terms of exhibits CW1, CW2 and CW3 which are binding on him. See Ojo V. ABT Associates Incorp (2017) 9 NWLR (Pt. 1570) 191.

That since paragraph 15 of the Statement of Defence denied all the averments in paragraph 19 of the Statement of Facts and further stated that the Defendant upon receipt of the letter written by the Claimant and some other staff of the defendant who were given the option of early retirement dated 25^th May, 1992 (exhibit CW5), the Defendant restated its position that the requests in the letter were not accepted, Claimant was duty bound to file a Reply if he did not agree with the defendant’s position as averred. See Mba V. Agu (1999) 9 SCNJ 84 at 102.

That exhibit CW5 is of no relevance to the Claimant’s case and that same can at best be likened to a Collective Agreement which cannot bind parties as to form the basis of any court action. See Texaco (Nig) Plc V. Kehinde (2001) 6 NWLR (Pt. 708) 224 at 228. That the said exhibit CW5 cannot help the Claimant’s case because one of the authors (Mr. A. S. Anabrabra) rejected the option of early retirement and subsequently retired during the non-contributory pension scheme and received his pension entitlements until he died on the 10^th of October, 1998.

That these facts were averred by the Defendant in paragraphs 14 and 17 of the Statement of Defence but were not denied by the Claimant even when he admitted during cross-examination that he knows the said Mr. A. S. Anabrabra and that he did not accept the offer of early retirement.

It was finally argued that the Claimant’s suit has no basis and same should be dismissed by the court.

On issue two (2) it is argued that since the Defendant’s averments in paragraphs 7, 8 and 9 of the Statement of Defence that upon accepting the offer of optional early retirement the Claimant was paid all his entitlements under the contributory pension scheme which he accepted, and admitted this fact under cross-examination, he is no longer entitled to terminal benefits because an employee who has received his/her terminal benefits cannot be heard to complain thereafter. See Julius Berger Nig. Ltd. V. Nwangwu (2006) 12 NWLR (Pt. 995) 18.

On Issue three (3), it is submitted that, the defendant being a corporate body/ company can only act through its agents or servants. That any agent or servant can give evidence in court to establish any transaction entered into by a company even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company and such evidence is relevant and admissible and will not amount to hearsay evidence. See Saleh V. B. O. N. Ltd (2006) 8 NWLR (Pt. 976) 316 at 326-327.

On Issue four (4), the learned Counsel to the Defendant referred to paragraphs 24 and 25 of the Claimant’s Statement of Facts wherein the Claimant averred that the Rivers State High Court decided in Suit. No. PHC/1082/2002 that though the Claimant was entitled to his pension from 30^th November, 1993 having retired on the 31^st October, 1993, but the suit was statute barred, and argued that nowhere in exhibit CW7 did the Rivers State High Court make that pronouncement. That since the Ruling was on a preliminary objection and no evidence had been taken, the court could not have made such pronouncement being attributed to the court by the Claimant’s counsel. That, even on exhibits CW8 and CW9 there is nowhere the Court of Appeal made such findings or decision regarding the Claimant’s actual date of retirement as being insinuated by the claimant. The court is therefore urged to resolve this Issue in favour of the Defendant.

On whether the Claimant is entitled to pension from November, 1993, it is submitted that the Claimant failed to lead any evidence to support his assertion that he is entitled to pension from November, 1993, and that from the records the Claimant retired from the Defendant in June 1992.

That since the Claimant retired on 30^th June, 1992 during the contributory pension scheme and the non-contributory pension scheme came into effect in January, 1993, and he was paid all his entitlements including ex-gratia payment for work not done up to 31^st October, 1993, and one year annual basic salary of N75, 852.00 as well as Home Ownership Grant of N160, 000.00 which he accepted, he is not entitled to his claim as there is nothing in the contract of employment indicating that he is entitled to non-contributory pension.

Issue five (5) is whether the instant suit is statute barred. It is submitted on this Issue that where a law prescribes a period within which an action can be instituted, the limitation period begins to run from the date the cause of action accrues and no suit can be instituted after the prescribed period.

The learned counsel to the Defendant referred to the provisions of section 16 of the Limitation Law of Rivers State and argued that since by paragraphs 15, 17, 21, 29 and 30 of the Statement of Facts, the cause of action in the instant suit accrued on 30^th November, 1993, and the suit was commenced on 30^th April, 2014, after a period of about twenty one years from the accrual of the cause of action and sixteen years after it elapsed, the suit is statute barred.

That even where the argument is taken from the angle of the Nigeria Social Insurance Trust Fund Decree, 1993, the said law is inapplicable to this suit because the Claimant did not make any contribution to the Fund, and by section 25(1) of the said law, an action must be instituted within twelve years from the date when the contribution or penalty became due. And that any action instituted under the said law must be instituted in the name of the Board and by an employee of the Board.

That in law it is the claim of the Claimant that determines the court’s jurisdiction and where a court cannot determine the principal relief, then it can also not determine the other reliefs, referring to Tukur V. Govt of Taraba State (1997) 6 SCNJ, 81 at 115. That in the instant suit, the principal relief is founded upon contract or non-contributory pension while the other reliefs are such as can never be determined without the consideration of the principal relief.

That the act occasioning the cause of action in this suit is not a continuous one because a cause of action accrues and time begins to run when all facts have accrued which are material to be proved to entitle a plaintiff to sue. See Agbah V. B. D. U. Jos Branch (2001) 3 NWLR (Pt. 701), 679, and Sanda V. Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379.

The court is therefore urged to dismiss the suit in its entirety for being frivolous, vexatious and statute barred.

CLAIMANT’S SUBMISSIONS

The Claimant distilled two (2) issues for the determination of this court, to wit:

Considering the adjudged date of the Claimant’s retirement from the services of the Defendant whether he is entitled to the payment of the arrears of non-contributory pension in operation from the said date of the retirement till the end of his life.

Whether the Claimant is entitled to the reliefs claimed in this suit.

It is pertinent to note that, before arguing the two issues identified by the claimant, the learned counsel to the Claimant made preliminary submissions in response to the arguments in the Defendant’s Final Written Address. It was argued that contrary to the submissions in paragraph 9.03 of the Defendant’s Final Written Address that no court made a finding of fact regarding the claimant’s date of retirement because evidence was never led in the case, the decision of the Rivers State High Court in Suit No. PHC/1082/2002 and that of the Court of Appeal in Appeal No. CA/PH/130/2006 made findings based on admitted facts. That a party challenging a plaintiff’s case on ground of law for lack of jurisdiction is taken to have admitted the facts as pleaded by the plaintiff, referring to the case of Mobil Producing Nigeria Unlimited V. C. J. A. Uwemedimo and Another (2006) All FWLR (Pt. 313) 116 at 135 paragraph G.

That the conduct of the defendant as exhibited in paragraph 11 of its Final Written Address amounts to an abuse of court process because the issue of whether or not this suit is statute barred raised in the said paragraph had been argued and decided upon by the court on 22^nd June, 2016. Hence the issue is res judicata, and the Defendant can therefore not reopen the issue that has been decided upon by the court.

I shall now consider the two (2) issues identified by the learned Claimant’s counsel for the determination of the court.

On issue one (1), the learned Claimant’s counsel referred the court to paragraph 6 of Exhibit CW1, and submits that, from the inception of the agreement between the parties it was agreed that the Claimant would be entitled to retirement benefit and life insurance scheme after the probationary period of six months. That it is in evidence before the court that the retirement benefit operated by the defendant at some point was a contributory pension scheme until the policy was changed by the defendant with the introduction of the non-contributory pension scheme effective 1^st January, 1993. That the crux of this case has to do with the effective date of the Claimant’s retirement from service, i.e. whether it was in the month of June, 1992 or on the 30^th of October, 1993.

The learned counsel further argued that, even though the claimant withdrew his services in June, 1992, he was paid all his entitlements up to 31^st October, 1993. He was equally paid his gratuity based on the calculation that he worked for 20 years before retiring on the 31^st of October, 1993 referring to exhibits CW5, CW10 and CW11. That the Claimant was deemed to have retired from the services of the Defendant on the 31^st October, 1993 during the operation of the non-contributory pension scheme of the Defendant and therefore entitled to pension arrears from 30^th November, 1993.

Learned counsel further referred to the findings of the Rivers State High Court in exhibit CW7 regarding the retirement date of the Claimant as 31^st October, 1993, and argued that the said finding by the High Court which was affirmed by the Court of Appeal vide exhibits CW8 and CW9, the Defendant is deemed to have admitted and conceded the findings of the court and same is binding on the parties since there is no further appeal to the apex court since 2011.

See Chinwo V. Chinwo (2012) All FWLR (Pt. 656) 598 at 610 paragraphs E – F; Dr. Araf V. Onyedim (2012) All FWLR (Pt. 625) 265 at 285 paragraphs E – F; Abdullahi V. The State (2013) All FWLR (Pt. 699) 1118 at 1139 paragraph E; Anagwu V. INEC (2012) All FWLR (Pt. 652) 1689 at A – B, and Mafimisebi V. Governor, Ondo State (2013) All FWLR (Pt. 705) 294 at 319 paragraph G – H.

It is further submitted that, the Claimant has presented unchallenged and uncontroverted evidence to corroborate the fact that he retired effectively from the Defendant on 31^st of October, 1993, and is therefore entitled to his non-contributory pension which came into effect on the 1^st of January, 1993, including the arrears from 30^th November, 1993 to date. Learned counsel referred the court to Exhibits CW10, CW11, CW1, CW7, CW5 and CW9 as corroborating the Claimant’s case that he is so entitled to the non-contributory pension scheme of the defendant.

That since the Defendant did not raise any contrary response to the claimant’s pension benefit as stated in exhibit CW5, and did not also produce before the court any such response which the defendant pleaded in paragraphs 15 and 16 of the Statement of Defence that such letters existed, it is either such contrary response does not exist or where it exists it would be unfavourable to the Defendant hence the Defendant decided to withhold same. See section 167(d) of the Evidence Act 2011. That such failure constitutes an admission on the part of the Defendant and the defendant is therefore stopped from asserting to the contrary after the claimant had been induced into taking the option of early retirement because of the anticipated benefits associated with same. See Zenon Petroleum and Gas Ltd V. Idrisiyya Nig Ltd (2006) All FWLR (Part 312) 2121 at 2140 pargarphs D – E, and Dr. Samuel U. Isitor V. Mrs. Margaret Fakorade (2018) All FWLR (Pt. 955) 494 at 510 paragraph A – B, and section 169 of the Evidence Act 2011.

That since pension is payable only during the life time of the pensioner, the Claimant being alive is entitled to pension including the arrears, and the court is therefore urged to grant the reliefs in this suit.

On issue two (2) learned counsel to the Claimant reproduced reliefs ‘a’ and ‘b’ and paragraphs 28, 29, 30 and 31 of the Claimant’s Statement on oath, as well as paragraph 28 of the Statement on oath of DW, and submits that the defendant failed to make any denial or rebuttal of the facts and figures stated by the Claimant and is therefore deemed to have admitted those facts, and facts admitted need no further proof. See Nigerian Bottling Company Plc V. David Okafor (2012) All FWLR (Part 647) 766 at 782 paragraph E; UBA V. Jargaba (2007) All FWLR (Part 380) 1419 at 1433 paragraphs F – H; Iyere V. Bendel Feed and Flour Mill Ltd (2009) All FWLR (Part 453) 1217 at 1232 paragraph E; Ekpemupolo V. Edremoda (2009) All FWLR (Part 473) 1220 at 1245 paragraphs E – F. See also section 123 of the Evidence Act 2011 and Order 30 Rule 6 (1 and 2) of the Rules of Court 2017.

That since the Claimant claims for a definite sum of money and the Defendant did not challenge such claim, the court should grant same referring to the case of Isaac Ezekiel V. Westminister Dredging Nigeria Ltd (2001) FWLR (Pt.60) 1564 at 1577 paragraph D.

With regards to the Claimant’s relief for exemplary damages, it is submitted that, he pleaded facts relating to the oppressive conducts of the Defendant and is therefore entitled to the award of exemplary damages against the defendant. See Central Bank of Nigeria V. Aite Okojie (2015) All FWLR (Pt. 807) 478 at 506 paragraphs B – C, and The Sun Publishing Ltd and Anor V. Aladinma Medicare Ltd (2015) All FWLR (Part 813) 1626 at 1667 paragraphs D – E.

Regarding the Defendant’s Reply on Points of Law, the learned Claimant’s counsel further argued by way of adumbration that since same was filed out of time without leave of court and a repetition of the arguments in the Defendant’s Final Written Address, it should be discountenanced by the court.

The court is therefore urged to grant the reliefs as claimed by the Claimant in this suit.

DEFENDANT’S REPLY ON POINTS OF LAW:

The Defendant filed a Reply on Points of Law on the 24^th of December, 2018, wherein it was argued that, contrary to the Claimant’s submission in paragraph 2.3 of his Written Address that the letter of optional retirement dated 15^th April, 1992 was tendered and admitted as Exhibit CW10, the said letter was never brought to the court by the Claimant. That what the claimant brought to the court is exhibit CW4.

In Reply to paragraphs 2.7 and 2.8 of the Claimant’s Final Written Address, it is argued that since one A. S. Anabrabra refused to accept the optional early retirement, it means that the Defendant did not agree with the contents of the joint letter dated 25^th May, 1992 (exhibit CW5). That it is not correct that the Claimant worked for 20 years from 1^st August 1973 to 31^st October, 1993 because the Claimant had pleaded in paragraph 17 of his Statement of Facts that he physically disengaged from the Defendant in May 1992.

With respect to paragraph 2.11 of the Claimant’s written address, it is contended that the Rivers State High Court did not hold that the Claimant’s retirement took effect from 31^st October, 1993 because the court did not hear the matter on its merit but only ruled on the Preliminary Objection regarding the issue of whether the suit was statute barred.

On paragraphs 2.13, 2.14 and 3.3 of the Claimant’s Final Written Address, the Defendant submits that contrary to the Claimant’s submissions, the Court of Appeal did not decide and dismiss the Cross-Appeal because the Claimant retired on the 31^st October, 1993. That it is not true that the Defendant did not contest the amount in issue because it joined issues with the Claimant in its paragraphs 18 and 26 of the Statement of Defence. That contrary to the submission of the learned Claimant’s counsel, the main issue in this suit is whether the Claimant is entitled to non-contributory pension.

With regard to the case of Mobil Producing Unltd V. Uwemedimo (supra) cited by the Claimant’s counsel as authority that a person challenging a plaintiff’s case on a Preliminary Objection is taken to have admitted the facts as pleaded by the plaintiff, it is argued that that is not the correct legal position because the argument applies only where the person is either making a demurrer or proceedings in lieu of demurrer.

With regard to the Claimant’s Issue two (2) it is submitted that, there is no purported “adjudged date of retirement” and the only retirement date is May 1992 as pleaded by the Claimant in paragraph 17 of his Statement of Facts. That since exhibits CW10 and CW11 are silent on the issue of non-contributory pension as argued by the Claimant’s counsel, that settles the matter because in law what has not been expressly written down cannot be implied, and where the terms of an agreement have been reduced into writing, oral or parole evidence cannot be accepted to change or contradict the written terms. See Koiki V. Magnusson (1999) 5 SCNJ 296.

That contrary to paragraph 4.14 of the Claimant’s written address, it is not true that the use of 20 years to calculate the Claimant’s gratuity was a commitment that the claimant’s effective date of retirement is 31^st October, 1993 because in paragraphs 7 and 13 of the Statement of Defence, the defendant indicated that the payment was made ex-gratia and not for any work by the Claimant. It is the Defendant’s further submission that the Claimant’s actual retirement date was June, 1992. That since the Claimant did not file any Reply in response to the averments in paragraphs 7, 13, 15 and 16 of the Statement of Defence, he is deemed to have admitted those averments. See Mba V. Agu (1999) 9 SCNJ 84 at 102.

That the Claimant’s argument in paragraph 4.17 of the Final Written Address that since the Defendant did not tender letters dated 2^nd June, 1992 and 9^th June, 1992 means that the documents if produced would have been unfavourable to the defendant in view of section 167(d) of the Evidence Act cannot avail the Claimant relying on the case of Shuaibu V. State (2018) LPELR 45023 where it was held that the said provision only applies where there is proof that notice to produce/subpoena was served on the person in custody of the document and the person refuses to produce same. That in the instant case the Claimant neither denied the documents nor gave the defendant notice to produce.

It is the further response of the Defendant that since the reliefs in paragraphs 5.10 of the Claimant’s written address are ancillary, they cannot be granted because the Claimant has failed to prove the main/principal relief. See Tukur V. Govt. of Taraba State (1997) 6 SCNJ 81 at 115.

The court is finally urged to discountenance the Claimant’s submissions and dismiss the suit for being misconceived.

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, may I from the onset state that in view of the fact that Issue five (5) of the Defendant’s Final Written Address is challenging the jurisdiction of this Honourable Court to determine this suit on the ground that the instant suit is statute barred, it is crucial that same should be determined first before delving into the consideration of the merit of the suit. I say this from the background of the legal position that jurisdiction is the substratum of all judicial proceedings, and a well conducted trial without jurisdiction will be an exercise in futility. See Chief Ikedi Ohakim V. Chief Martin Agbaso and Others (2010) 19 NWLR (Pt. 1226) 172.

The argument of the learned counsel to the Defendant is simply that, since section 16 of the Limitation Law of Rivers State provides for five years from the date of accrual of cause of action within which an action can be brought, and from the averments in the Claimant’s Statement of Facts, the cause of action in the instant suit accrued either on 31^st October, 1993 or 30^th November, 1993, the cause of action lapsed in 1998, long before the institution of the instant suit.

I must state that while I agree completely with the submissions and authorities cited and relied upon by the learned counsel to the Defendant that once a limitation period is prescribed for the commencement of a suit, any action initiated outside the prescribed period would be statute barred and liable to be dismissed, I do not think this court can be lured into the consideration of this issue in view of Exhibits CW8 and CW9. With all respect, learned counsel is setting bait for this court to reconsider issues that have been judicially settled. I refuse to fall into this trap.

At the commencement of this suit at the Rivers State High of Justice sitting in Port Harcourt in Suit No. PHC/1082/2002, the Defendant objected to the jurisdiction of the Rivers State High Court on the ground that the suit was statute barred by virtue of the Limitation Law of Rivers State. The court in a considered Ruling delivered on 3^rd of June, 2005 per E. N. Thompson J. upheld the objection and dismissed the suit on the ground of it being statute barred. While exhibit CW6 is the Amended Writ of Summons in Suit No. PHC/1082/2002 filed before the Rivers State High Court of Justice, exhibit CW7 is the Ruling of the High Court of Rivers State delivered on 3^rd June, 2005. Dissatisfied with the decision, the Claimant herein appealed to the Court of Appeal, Port Harcourt Division, and the Court of Appeal allowed the appeal and remitted the suit back to the Hon. Chief Judge of Rivers State for re-assignment to another Judge of the Rivers State High Court other than E. N. Thompson J. for determination. See exhibits CW8 and CW9. The Claimant discontinued the suit at the Rivers State High Court and subsequently filed the instant suit before this court.

For the purpose of clarity, the appellate court held as follows on pages 14-15 of exhibit CW9, “It is not a claim for salary arrears or allowances but a claim under the pension scheme though within a contract of employment. However with the statutory intervention in Nigeria Social Insurance Trust Fund Act of 1993, it might be more than a mere contract covered by section 16(4) of Limitation Law of Rivers State.

I must state that enough facts have not been disclosed to enable one conclude that the action is statute barred. At least the processes filed so far have failed to do so. It is therefore in my respectful view erroneous for the learned trial Judge to have dismissed the action when sufficient facts to justify such were not placed before it. It is the defendant that should establish that the action of the plaintiff is statute – barred. See Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping and Transport Agencies Ltd (supra).”

The Nigerian judiciary is based on the principles of stare decisis, and this court is bound by the decisions of courts higher to it being the Court of Appeal and the Supreme Court. If the defendant was not satisfied with the appellate court’s decision, all it could have done was to appeal against the decision and not to sneakily and in blatant disregard of the principle of stare decisis raise the same issue of statute of limitation before this court.

I shall therefore refrain from considering the said issue of statute of limitation as doing so will amount to reviewing the decision of the Court of Appeal. God forbid that I embark on such risky exercise.

May I state that, even if it is taken that the Court of Appeal did not make any specific finding on the issue of the suit being statute barred as being contended by the defendant, it is on record that after the decision of the Court of Appeal and the subsequent institution of this suit in this court, the Defendant filed another application on 15^th December, 2015, challenging the jurisdiction of this court on the same ground of the suit being statute barred by virtue of section 16 of the Limitation Law of Rivers State. The application was duly argued on the 11^th day of March, 2016, and in a considered Ruling delivered on 22^nd June, 2016, the court dismissed the objection for lacking in merit. The Defendant did not appeal against that decision. At least there is nothing on record to show that the decision was appealed against to the appellate court. I do not think I can sit over the decision of my learned brother Hon. Justice J. T. Agbadu-Fishim which in any case is subsisting and binding until set aside by a higher court.

As far as this court is concerned, the issue of this suit being statute barred has been fully settled and resolved. There must be an end to litigation (interest reipublicae ut sit finis litium).

Another preliminary issue that needs to be resolved at this stage of the judgment is the contention of the learned Claimant’s counsel that the Defendant’s Reply on Points of Law was filed out of time without the leave of this court being sought and obtained.

From the court’s records, the Claimant’s Final Written Address filed on 12^th December, 2018 was served on the Defendant on the 13^th of December, 2018 at about 12: 16pm. The Defendant filed its Reply on Points of Law on 24^th of December, 2018.

By the provision of Order 37 Rule 20(4) of the Rules of Court 2017, the Defendant had seven (7) days after service of the Claimant’s Final Written Address to file Reply on Points of Law only.

It is therefore clear that, the Defendant’s Reply on Points of Law filed on 24^th December, 2018, was filed out of time and same required leave of court to be regularized. There was neither an application for leave nor was leave granted to file the said process out of time.

Rules of court are not made for fancy. They are made and meant to regulate proceedings before the court as such they must be obeyed. See the case of Nonye Imunze V. The Federal Republic of Nigeria (2014) LPELR-22254(SC) where the apex court succinctly put it thus:

“Again, rules of court are meant to be obeyed. They are not made for the fun of it. They must be followed strictly, unless the court is given discretion under them. These rules bind all parties before the court. No party is allowed to choose when or which to obey and/or disobey.”

Since the Defendant’s Reply on Points of Law filed on the 24^th of December, 2018 was filed out of time without leave of court to regularize same, the said process is to all intents and purposes not proper before the court and liable to be discountenanced. The said Reply on Points of Law is hereby discountenanced for being incompetent and unmeritorious and shall not be relied upon in this Judgment. Same is hereby struck out.

I shall now consider the merit or otherwise of the Claimant’s case before the court.

Having looked at the Defendant’s remaining four (4) issues vis-à-vis the two Issues identified by the Claimant, I shall base this judgment on the Claimant’s two (2) Issues. This is because in my humble view the Defendant’s issues one to four can be conveniently subsumed into the two issues crafted by the Claimant.

The Claimant’s Issue one (1) is whether considering the adjudged date of the Claimant’s retirement from the services of the Defendant whether he is entitled to the payment of the arrears of non-contributory pension in operation from the said date of the retirement till the end of his life.

One of the major issues in contention is whether the Rivers State High Court and also the Court of Appeal had made pronouncements on the retirement date of the Claimant. While the learned Claimant’s counsel argued that both the Rivers State High Court and the Court of Appeal had pronounced the effective retirement date of the Claimant to be 31^st October, 1993, referring to exhibits CW7 and CW9, the argument of the learned counsel to the Defendant is that no such pronouncement was made by the courts.

Having taken a careful look at exhibits CW7, CW8 and CW9, I find it curious that the same Claimant’s counsel who argued that the Court of Appeal allowed his appeal against the decision of the Rivers State High Court will turn around and urge the court to rely on the same decision he appealed against to the Court of Appeal. I am of the considered view that the implication of exhibits CW8 and CW9 is that every part of that decision of the High Court in exhibit CW7 had been set aside including the trial court’s finding on the Claimant’s retirement date; and that the matter would start de novo. The portion of the decision of the Court of Appeal which the Claimant is relying on has to do with the Cross-Appeal which in any case was dismissed for lacking in merit. See page 15 of exhibit CW9.

Having said that, I must state that the case of the Claimant before the court relates to payment of his pension as the issue of his employment by the Defendant is not in contention. The Claimant informed the court that he was employed by the Defendant on 5^th July, 1973 but with effect from 1^st August, 1973 as a radio technician. He tendered exhibits CW1, CW2, CW3, and CW4 to buttress the fact of his employment by the Defendant. In any case, the defendant did not deny that the Claimant was its employee.

The grouse of the Claimant is that, sometimes in April, 1992, when he had served the defendant for 19 years he was offered the option of early retirement which he accepted and effectively disengaged from the defendant in May 1992, but was paid all his salaries, allowances and entitlements up to October, 1993 when he would have ordinarily retired after 55 years of age. That prior to 1^st January, 1993, the defendant was operating the contributory pension scheme, and since the defendant’s non-contributory pension scheme came into effect on the 1^st of January, 1993, he ought to have been receiving monthly pension having allegedly retired effective October, 1993. This evidence by the Claimant is in line with the averments in paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 of the Statement of Facts.

During cross-examination, the claimant said he stopped working for the defendant in June, 1992, and that the defendant’s non-contributory pension scheme commenced on the 1^st of January, 1993. That prior to 1^st of January, 1993 what was in place was the contributory pension scheme and that all the employees who contributed to the scheme were refunded their contributions. The witness maintained the position that, after he disengaged from the defendant, the defendant continued to pay him up to June, 1993, and after he protested, the payments continued up to 31^st October, 1993 including Christmas bonus and 13^th Month.

The defendant’s sole witness Adolphus Akwumakwuhie who testified as DW informed the court in his deposition on oath that, the Claimant’s effective date of retirement is 30^th June, 1992, and that even though the Claimant was paid all his salaries and other entitlements up to October, 1993 when he would have ordinarily retired, the payment was an ex-gratia payment. That since the Claimant retired before the effective date of the non-contributory pension scheme (1^st January, 1993), he cannot claim benefits from the scheme.

During cross-examination, DW informed the court that it is not true that the Claimant’s gratuity was calculated on the basis of 20 years of service as the Claimant served the defendant for 19 years because he retired on the 30^th of June, 1992. That the claimant was paid his salaries up to 31^st October, 1993 being the date he would have ordinarily retired but for the option of early retirement which he accepted.

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. This legal position was succinctly put by the Supreme Court as follows in the case of Omodele Ashabi Eya and Others V. Alhaja Risikatu Olopade and Another (2011) LPELR-1184(SC): “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.”

Juxtaposing the evidence of the CW and that of DW vis-à-vis exhibits CW10 and CW11, I am inclined to accept the testimony of the Claimant that his gratuity was calculated on the basis of 20 years of service to the Defendant. This is because the evidence of the Claimant is supported by exhibits CW10 and CW11, particularly exhibit CW11. For the purpose of clarity, exhibit CW11 is reproduced hereunder:

C.340.B.20-1/098 Lagos, 29^th April, 1992

Mr. T. I. Edebor,

C/o District Manager,

Port – Harcourt.

Dear Sir

RE OPTIONAL EARLY RETIREMENT

We refer to our letter C.340.B.20-2/90 of 15^th April, 1992 and wish to make the following clarifications:

Gratuity was calculated taking into consideration, your 19 years service plus one year of possible service to the age of 55. Accordingly, your gratuity was based on 20 years’ of service.

The sum of N270,810.96 was arrived at by adding together your basic salary and other agreed factors and multiplying the sum by 280% as applicable to staff with 20 years’ service.

Please note that earlier indication of 15 years was a typographical error which is regretted.

Yours faithfully,

for: elf nigeria limited

N. CHIEJINA

Personnel Manager

From exhibit CW11, it is clear that the Claimant was paid his gratuity based on 20 years of service after he must have attained 55 years of age. It is in evidence that the Claimant after the optional early retirement in 1992 was paid all his salaries, allowances and all other entitlements including 13^th month up to the month of October, 1993, when he would have clocked the mandatory retirement age of 55 years in line with the Defendant’s service regulations. The defendant who did not deny paying the claimant his salaries up to October, 1993 after he had retired in 1992 described such payment as ex-gratia payment.

The Oxford Advanced Learner’s Dictionary International Student’s Edition defines ‘ex gratia’ as something “given or done as a gift or favour, not because there is a legal duty to do it.”

I do not believe the defendant that the continued payment of the claimant’s monthly salaries and all other entitlements up to October, 1993 was a favour or gift to the Claimant. In any case, that is not contemplated by exhibit CW11, and the defendant has not shown the court that aside the claimant other retired staff of the defendant benefitted from such ‘gifts’ or even that it was the practice of the defendant to continue to pay its retirees monthly salaries and other entitlements.

In the circumstance, I do not think the effective date of retirement of the claimant was June, 1992. The only reasonable deduction to be made from exhibit CW11 is that since he received salary and other benefits up to October, 1993 and his gratuity was calculated and paid on the basis of 20 years of service, he was deemed to have retired on the 31^st of October, 1993 when he clocked 55 years of age. I so find and hold.

Having held that the Claimant’s retirement from the defendant took effect from 31^st of October, 1993, can it then be said that he is entitled to payment of pension under the non-contributory pension scheme of the defendant?

The evidence of both parties in this suit are ad idem on the effective date of the non-contributory pension scheme of the defendant as being the 1^st day of January, 1993. Both the Claimant and DW informed the court in both their evidence in chief and during cross-examination that, prior to 1^st of January, 1993 the defendant was operating the contributory pension scheme, and that with the coming into effect of the non-contributory pension scheme on the 1^st of January, 1993, all employees of the defendant including the Claimant who had made contributions under the contributory pension scheme were refunded their contributions.

Since there is no contradictory evidence on the effective date of the non-contributory pension scheme, and in fact the evidence of the defendant supports that of the claimant on this, I shall rely on the uncontroverted evidence. On this note, it is my firm view that, since the effective date of the claimant’s retirement was 31^st of October, 1993, and the non-contributory pension scheme came into effect on the 1^st of January, 1993, the Claimant is entitled to payment of pension under the non-contributory pension scheme of the defendant. I so find and hold.

It is pertinent to state here that, pension is a very serious matter particularly to senior citizens, and so it ought to be paid regularly upon the retirement of a worker. This is because its purpose is not only to ameliorate whatever suffering a worker may face in life upon retirement, but also as reward on the part of the employer to the retiree for the meritorious service offered to the employer. In the case of Most Rev. Alfred A. Martins and Others V. Mrs. Catherine Kolawole (2011) LPELR-4475(CA), the Court of Appeal quoted with approval the view of Onnoghen, JSC in Central Bank of Nigeria V. Amao and Others (2010) 15 NWLR (Pt. 1219) 271 at 307 as follows:

“It is important for every organization in this country, including the appellant, to wear human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must reexamine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.”

In the circumstance, Issue one (1) is resolved in favour of the Claimant.

Issue two (2) is whether the Claimant is entitled to the reliefs claimed in this suit.

Having resolved Issue one (1) in favour of the Claimant, Issue two (2) will certainly involve the consideration of the reliefs being claimed by the Claimant in this suit to ascertain whether they have been established.

Relief one (1) is for declaration that the claimant having retired from the defendant effectively on the 31^st of October, 1993, is entitled to the arrears of his pension and any increases thereof from the 30^th November, 1993 till the date of Judgment and thereafter till the end of his life having worked and retired from the defendant at the time Non-contributory pension was in operation at the defendant’s company. This relief is supported by pleadings and the evidence on record. Even though declaratory relief is normally granted on the strength of the case of the Claimant, and not on any weakness on the defendant’s part, I hold that the claimant has discharged the onus placed on him by sections 131, 132, 133 and 134 of the Evidence Act. He has proved this relief and same should be granted. Relief one (1) is hereby granted.

Relief two (2) is for an order compelling the Defendant to pay to the Claimant the sum of N23,222,843.173 (Twenty Three Million, Two Hundred and Twenty Two Thousand, Eight Hundred and Forty Three Naira, One Hundred and Seventy Three Kobo) being the total sum of the arrears of pension with interest at the rate of 21% per annum, from 30^th November, 1993 to 30^th April, 2014 and thereafter monthly pension at the rate of N180, 000 or such rate and increases thereto as paid to persons of his grade, having retired as Head, Land Department, from the 31^st May, 2014 till the end of his life.

The Claimant pleaded these sums in paragraphs 28 and 29 of the Statement of Facts in the following words:

“28. As at the 30^th November, 1993, the Claimant’s monthly entitlement of pension was the sum of N35, 000.00 (Thirty Five Thousand Naira), but with the usual progressive increases and other factors thereto, it has presently come to the sum of N180, 000.00 (One Hundred and Eighty Thousand Naira) per month or such sum as shall be authenticated to the court in course of the proceeding.

That the pension is paid monthly and any month that is not paid goes into an arrear and becomes a debt for that month and the sum total of the monthly arrears of pension from 30^thNovember, 1993 to 30^thApril, 2014, (a period of about 21 years) is the sum of N23, 222, 843.173 (Twenty Three Million, Two Hundred and Twenty Two Thousand, Eight Hundred and Forty Three Naira, One Hundred and Seventy Three Kobo).”

These averments are in line with the Claimant’s evidence in paragraphs 28 and 29 of his deposition on oath.

I have however scanned the Statement of Defence and no where did the Defendant either denied the amounts pleaded nor pleaded any sum different from the sums pleaded by the Claimant. The Defendant did not in any way controvert this piece of evidence.

In the circumstance, I shall have no hesitation in accepting the claimant’s evidence and acting on same since same remains unchallenged and uncontroverted. I so find and hold. See Leadway Assurance Company Limited V. Zeco Nigeria Ltd (2004) LPELR-1773(SC) where the Supreme Court per Katsina-Alu, J.S.C. (as he then was), reiterated the legal position that where a party’s evidence is not challenged by the opposite party who was afforded the opportunity to do so, the trial court has the duty to act on the unchallenged evidence before it.

While I agree with the Claimant that he is entitled to arrears of monthly pension at the rate of N35, 000.00 (Thirty Five Thousand Naira) from 30^th November, 1993 to 30^th April, 2014, and thereafter at the rate of N180, 000.00 or any rate paid persons of his grade till the end of his life, I am however not convinced that the Claimant is entitled to 21% interest per annum on the said sums of money. In any case, he has not shown the court how he is entitled to such interest at 21% per annum.

The Claimant’s arrears of pension from 30^th November, 1993 to 30^th April, 2014 (a total of 245 months) at the rate of N35, 000.00 (Thirty Five Thousand Naira) is put at the sum of N8, 575, 000.00 (Eight Million, Five Hundred and Seventy Five Thousand Naira only). While arrears of pension from May, 2014 to January, 2019 (a total of 49 months) at the rate of N180, 000.00 per month is put at the sum of N8,820,000.00 (Eight Million, Eight Hundred and Twenty Thousand Naira only). The defendant is therefore to pay the claimant the total sum of N17, 395, 000.00 (Seventeen Million, Three Hundred and Ninety Five Thousand Naira only) being claimant’s monthly pension arrears from November, 1993 to January, 2019, and thereafter capture the Claimant on its pension pay roll and continue to pay him his monthly pension from the month of February, 2019 till the end of his life. I so find and hold.

Relief three (3) which is for the sum of N20,000,000 only as exemplary damages for the difficulties, hardships, psychological trauma and deprivations the Defendant’s failure to perform its obligations has caused the Claimant over the years of deprivation, and for the oppressive act of the defendant cannot be granted.

The Claimant has not shown the court the types of difficulties, hardships and psychological trauma he went through. It is not for the court to speculate in the circumstance. Relief three (3) is therefore refused.

In the final result, the Claimant’s suit succeeds in part, and for the avoidance of doubt, the court hereby makes the following orders:

It is hereby declared that the claimant having retired from the defendant effectively on the 31^st of October, 1993, is entitled to the arrears of his pension and any increases thereof from the 30^th November, 1993 till the date of Judgment and thereafter till the end of his life having worked and retired from the defendant at the time Non-contributory pension was in operation at the defendant’s company.

The defendant is to pay the claimant the total sum of N17, 395, 000.00 (Seventeen Million, Three Hundred and Ninety Five Thousand Naira only) being claimant’s monthly pension arrears from November, 1993 to January, 2019, and thereafter capture the Claimant on its pension pay roll and continue to pay him his monthly pension from the month of February, 2019 till the end of his life.

Since costs follow events, and if the Defendant had performed its obligations to the Claimant this suit would have been avoided, I hold the view that the Claimant is entitled to cost in this suit.

Cost of Two Hundred and Fifty Thousand Naira Only (N250, 000.00) is awarded in favour of the Claimant. See Master Holding (Nig) Limited and Anor V. Emeka Okefiena (2010) LPELR-8637(CA).

The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% Per annum until it is completely liquidated.

Before I finally sign off, may I commend the Claimant for his tenacity and believe in the country’s justice sector. The issues in this suit have been in various courts (Rivers State High Court, Court of Appeal and this court) since 2002 (a period of about 17 years). It is said that the proverbial wheels of justice turn slowly, but grind exceedingly fine. This is the kind of patience expected of every litigant before any court of law.

Judgment is hereby entered accordingly.

Hon. Justice P. I. Hamman

Judge