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National Industrial Court

DANJUMA M. SULEIMAN & 6 ORS -VS- NIGERIAN NATIONAL

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON TUESDAY 18TH DAY OF FEBRUARY, 2020

BEFORE HIS LORDSHIP: HON. JUSTICE  S. O. ADENIYI

SUIT NO: NICN/KD/11/2018

BETWEEN:

  1. DANJUMA MUSA SULEIMAN
  2. MRS LOLA OLOYEDE
  3. ALIYU AMINU
  4. DIMAS AHMADU DIKKO       ……..….CLAIMANTS
  5. BITRUS ATAMA
  6. DANLADI KWEKWAI
  7. UMAR YA’U

AND

  1. NIGERIAN NATIONAL

    PETROLEUM CORPORATION

  1. KADUNA REFINERY & PETRO – …………DEFENDANTS

    CHEMICAL COMPANY

J U D G E M E N T

Perhaps, it is important to state as a starting point that this judgement was earlier fixed for 11/02/2020. However, the judgement was re-scheduled till today because the Court was at the retreat for the judges of this Court held between 10th and 13th February, 2020.

  1. The Claimants initially instituted this case at the Federal High Court in 2006. It was however transferred to this Court upon the Third Alteration Act 2010 which gave this Court exclusive jurisdiction to entertain cases relating to labor, employment and other incidental matters.

The Claimants were former employees of the Defendants. Their case as garnered from the Statement of Facts is that they had served for a period of more ten (10) years with the Defendants before their appointments were terminated on the ground that their services were no longer required. The Claimants contended that they were qualified for the payment of pension and gratuity by the provisions of the Nigerian National Petroleum Corporation (NNPC) Staff Conditions of Service which governed their respective appointments with the Defendants.  The Claimants further contended that upon the termination of their appointments, they were all paid their gratuities with the exception of the 7th Claimant; but that upon the attainment of forty–five (45) years of age, the Defendants failed and/or neglected to pay their pension which was their accrued rights. As a result, the Claimants engaged the services of a solicitor sometime in 2006 to demand for their pension and their solicitor also served the requisite statutory notice of intention to sue on the Defendants. Efforts of their solicitors to cause the Defendants to pay the gratuity of the 7th Claimant and the payment of the pension of all the Claimants did not yield any fruitful result.

  1. Being thereby aggrieved by the Defendants’ actions in withholding their terminal entitlements, the Claimants commenced the present suit byComplaint and Statement of Factsfiled on 03/05/2018, wherein the Claimants claimed against the Defendants, the reliefs set out as follows:
  2. DECLARATION that the Claimants having served the Defendants for more than ten (10) years and having since attained the age of 45 years are entitled to the payment of pension by the Defendants pursuant to the provisions of Article 15.4, 15.4.3 and 15.6 of the 1st Defendant’s Junior Staff Condition of Service which governed the Claimants’ employment with the Defendants.
  3. AN ORDER compelling the Defendants to compute and settle the 1st, 2nd and 3rd Claimants arrears of pension accruable to Danjuma Suleiman, Nasiru Oladele and Aliyu Aminu all deceased from the time it became due in June 2005, June 1992 and August 2000 till the time of their deaths in June 2012, October 2012 and January 2013 in the sum of Twelve Million, Four Hundred and Eighty Thousand Naira (N12,480, 000.00) only.
  4. AN ORDER directing the Defendants to forthwith compute and pay the 7th Claimant his gratuity which was not paid him upon termination of his employment by the Defendants.
  5. AN ORDER compelling the Defendants forthwith to compute and pay the 4th, 5th, 6th and 7th Claimants’ arrears of pension that has accumulated in their favour in the sum of Fifteen Million, Four Hundred and Eighty Thousand Naira (N15,480,000.00) only and thereafter continue to pay their pension on monthly basis as contained in the Nigerian National Petroleum Corporation Conditions of Service applicable to their grade levels and years of service as well as the Pension and Gratuity Scheme of the Public service of the Federal Republic of Nigeria.
  6. AN ORDER compelling the Defendants to compute and pay the Claimants any amount accruable to them due to pension reforms by the Federal Government leading to a raise in pensions and thereafter continue to pay the 4th, 5th, 6th and 7th Claimants the requisite amount due to them as pension in line with the current Pensions Reforms Act, 2014.
  7. General damages in the sum of Fifty Million Naira (N50, 000,000.00) only, for the economic and physical hardship and psychological traumas suffered as a result of non-payment of their pension for several years after the termination of their appointments by the Defendants.
  8. 10% of the judgment sum annually from the time of judgment till final liquidation.
  9. Cost of this action – in the sum of Five Million Naira (N5, 000,000.00)
  10. The Defendants joined issues with the Claimants by filing aJoint Statement of Defenceon 20/03/2019 wherein they denied the substance of the claim.  Essentially, the Defendants contended that the Claimants’ disengagement was not voluntary or compulsory and as such, the provision of the NNPC Conditions of Service on retirement is not applicable to them as they claimed; that the Claimants did not all serve the Defendants for more than ten (10) years before the termination of their appointments as alleged; that all the Claimants except the 7th Claimant have been paid their terminal benefits; that the gratuity paid to the 1st – 6th Claimants was on compassionate grounds and that the Claimants have not all attained the age of 45 years to be entitled to pension.

The Claimants filed a Reply to the Defendants’ Statement of Defence on 27/03/2019 wherein they denied all the averments of the Defendants in its entirety.

  1. At the plenary trial, the 4thand 5thClaimants namely, Dimas Ahmadu Dikko and Bitrus Atama testified as CW1 and CW2 respectively. They both adopted their written depositions and additional depositions on oath and tendered thirty – eight (38) documents as exhibits. At the conclusion of their evidence – in – chief, they were both subjected to cross-examination by the Defendants’ learned counsel.

The Defendants on their part called a sole witness, by name Haruna Usman Anka, the Supervisor, Recruitment and Records Officer of the 2nd Defendant. He equally adopted his written depositions. The Defendants did not tender any document. The Defendants’ witness was also subjected to cross-examination by the Claimants’ learned counsel.

  1. At the close of plenary trial, parties filed and exchanged their written final addresses as prescribed by the provisions ofOrder 45of the Rules of this Court.

In the final address filed on behalf of the Defendants on 05/08/2019, their learned counsel, A. S. Suleiman, Esq., identified three issues as having arisen for determination in this suit, namely:

  1. Whether the Claimant by virtue of the fact that their appointment were terminated for services no longer required are therefore entitled to pension in accordance with the Nigerian National Petroleum Corporation Junior Staff Conditions of Service and Corporate Policy and Procedure Guide.
  2. Whether the Claimants are entitled to their monetary claim as arrears of pension that has accumulated in their favour.
  3. If the answer to 1 and 2 above are in the negative, whether the Claimants are entitled to the reliefs claimed.
  4. In the final address filed on behalf of the Claimants on26/08/2019, their learned counsel,Josephine K. Nuhu, Esq., in turn, raised two issues as arising for determination in this suit, namely:
  5. Whether termination of the Claimants’ appointment for services no longer required, automatically disentitles them to their inalienable rights to pension which had already accrued by virtue of the Nigerian National Petroleum Corporation Conditions of Service.
  6. Whether the Claimants are entitled to damages in the circumstances of this case.
  7. On the basis of the Claimants’ claim, the relevant evidence adduced at the trial, and the totality of the circumstances of this case, my view is that the focal issues that call for resolution in this suit, without prejudice to the issues raised by the parties, could be succinctly framed as follows:
  8. Whether or not the Defendants are under obligation, by the provisions of the Nigerian National Petroleum Corporation Staff Conditions of Service, to pay the Claimants their terminal entitlements.
  9. If issue one is resolved in the affirmative, whether the Defendants indeed paid all the terminal entitlements of the Claimants; and if not, whether they are not in consequence, liable for the reliefs claimed by the Claimants in that regard?

I have also taken cognizance of the totality of the arguments canvassed by the respective learned counsel in their written addresses; to which I shall endeavour to make specific reference as I deem needful in the course of this judgment.

I shall proceed to take both issues together.

  1. For starters, it is imperative to state that prior to the termination of their appointments, the Claimants’ employment with the Defendants were permanent and pensionable. In such employments,the appointment and termination is governed by the terms of their appointment and statutory provisions. Thus the Claimants herein are vested with a legal status higher than the ordinary one of master and servant. SeeAuchi Polythenic Vs Okuoghae [2005] 10 NWLR (Pt 933) 2792; Shitta Bey Vs Federal Civil Service Commission [1981] 1 SC 40.
  2. Now, the main documents which are relevant to the determination of this case and which seemed to guide the relationship between the parties to the various terms of their employment as tendered by CW1 and CW2 are, namely:
  3. Letters of offer of appointment and confirmation of appointment of Dimas A. Diko, Bitrus Atama, Danladi Adamu, Umar Ya’u, Musa Suleiman and Oladele Nasiru admitted in evidence as Exhibits C1, C1A, C2, C2A, C3, C3A, C4, C4A, C5, C5A, C6 and C6A respectively.
  4. Letters of termination of appointment of Dimas A. Diko, Bitrus Atama, Danladi Adamu, Umar Ya’u, Musa Suleiman and Oladele Nasiru admitted in evidence as Exhibits C1B, C2B, C3B, C4B, C5B, and C6B respectively.

iii.           Letter of transfer of service and letter of termination of appointment of Aliyu Aminu were admitted as Exhibits C7 and C7A.

  1. Memo of the Defendants in relation to the termination of appointment of Dimas Diko and Musa Suleiman as Exhibit C17.
  2. Memos of the Defendants in relation to the payment of terminal benefits of Atama Bitrus and Dimas A. Diko dated 18/07/2001 and 07/02/1995 as Exhibits C16 and C16A respectively
  3. The NNPC Conditions of Service Employee Handbooks – Senior Staff and Junior Staff were admitted as Exhibit C8 and Exhibit C15 respectively.

vii.         An extract of the NNPC Corporate Policy Procedure Guide (CPPG) admitted as Exhibit C9

The Claimants’ letters of offer of employment, the NNPC Conditions of Service and the NNPC Corporate Policy Procedure Guide were the main contractual documents between the parties which guided their employment relationship. The contract, which the Claimants accepted, contained various terms and conditions.

  1. As can be gleaned from the reliefs being sought, it is pertinent to further state that, the Claimants are not challenging the termination of their appointments by the Defendants.

The grouse of the Claimants is the Defendants’ refusal and/or failure to pay all their entitlements after they were terminated by the Defendants. I further make reference, in this regard, to the averments contained in paragraphs 5, 6, 8 and 9 of the Statement of Facts.

  1. The case of the Claimants, as further told by the CW1 and CW2 in their Witness Depositions on Oath, is that the Claimants are well over forty – five (45) years of age; that the appointments of the Claimants were terminated by the Defendants on the ground that their services were no longer required; they claimed that prior to the termination of their appointments, they had all served the Defendants for a period of more than ten (10) years and were therefore qualified for payment of pension and gratuity as provided by the Conditions of Service of the Defendants.

The Claimants’ witnesses testified further that upon the termination of their appointments, the Claimants with the exception of the 7th Claimant were all paid their gratuities and one month’s salary in lieu of notice. They further alleged that having attained the age of forty – five years, they were qualified for the payment of pension as stipulated by the Conditions of Service but that the Defendants have refused and/or failed to pay their pension which they claim was their inalienable rights.

  1. Evidence on record, as adduced by theDW1on the other hand, is that the Claimants are not entitled to pension and gratuity as they claimed. According to the Defendants, the Claimants’ appointments were terminated for services no longer required and were not compulsorily or voluntarily retired. DW1 further testified that there is a distinction between termination and retirement and that the terminal benefits for both are different; that all the Claimants except the 7th Claimant were paid gratuities; that the payment of gratuities were made as palliative measures and on magnanimity of the Defendants.

DW1 further alleged that the Claimants did not all served for more than ten years as at the time of their termination and they have not all attained the age of forty – five years to qualify them for pension as they had claimed.

The Defendants’ witness maintained that the Defendants do not owe the Claimants any terminal benefits as they have all been paid all their terminal benefits. The Defendants further maintained that the Claimants are not entitled to the reliefs sought.

  1. Parties contested the number of years the Claimants served the Defendants and the ages of the Claimants. The respective learned counsel had devoted much of their arguments on these issues. I am of the view that the resolutions of these areas of dispute are germane to the determination of this case. I am of further view that the determination of the mode or manner of the disengagement of the Claimants from the services of the Defendants is also crucial to the determination of this case.
  2. The argument of the learned counsel for the Defendants is that the termination of the Claimants’ appointments has the same effect as dismissal and the Claimants are not entitled to terminal benefits. Learned Defendants’ counsel further argued that by the combined effect of Article 15.3 of the Junior Staff Conditions of Service (which is impari materia with the Senior Staff Conditions of Service), Articles 42. 0 and 43.2 of the Defendants’ Corporate Policy and Procedure Guide (CPPG) only employees who either retired voluntarily or compulsorily are entitled to both gratuity and pension. Learned Defendants’ counsel further submitted that the Claimants’ appointments were terminated and that none of the Claimants retired voluntarily or compulsorily to entitle them to both gratuity and pension.
  3. On the other hand, the learned counsel for the Claimants argued that the Claimants were in service of the Defendants for a period of not less than ten (10) years; that the Claimants have attained the age of forty – five years to qualify them for gratuity and pension as stipulated in the Article 15.3 and Exhibits C8 and C15. Learned Claimants’ counsel further argued that the termination of the Claimants’ appointments for services no longer required does not in any way deprive them of their inalienable right to pension. Learned Claimants’ counsel further rejected the arguments by the Defendants that the term termination and dismissal have the same meaning. In further support her propositions, learned counsel reliedinter-aliaon the cases of F.B.N Vs Mmeka [2015] 6 NWLR (Pt 1456) 507; Jombo Vs PEFMB [205] 14 NWLR (Pt 945) 443.
  4. One issue that parties did not dispute is that the Claimants’ appointments were terminated for services no longer required.It was also not disputed that the terms governing the employment of the Claimants with the Defendants were embodied both in the letters of their appointment, the Conditions of Service – Exhibits C8, C15 and the CPPG, Exhibit C9.

It is settled law that parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd [2012] 17 NWLR (Pt 1328) 1, Lagos State Government Vs Toluwase [2013] 1 NWLR (Pt 1336) 555.

  1. It is also settled that the terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. The duty of the Court, where a dispute arises between parties to a contract, is to construe the surrounding circumstances, including the written or oral statement, so as to effectuate the intention of the parties – Omega Bank (Nig) Plc Vs O.B.C. Ltd[2005] 8 NWLR (Pt 928) 547; BFI Group Corporation Vs Bureau of Public Enterprises[2012] 18 NWLR (Pt 1332) 209;  Daspan Vs Mangu Local Government Council [2013] 2 NWLR (Pt 1338) 203; Afrilec Ltd Vs Lee [2013] 6 NWLR (Pt 1349) 1.
  2. Curiously, the Claimants’ are by this action not challenging the termination of their appointment; all they are interested in is their terminal entitlements.As correctly submitted by the learned Claimants’ counsel the letters of termination of appointment are the proper document(s) to aid the Court in determining the mode or manner to which the Claimants’ appointment was determined. The letters of termination were tendered in evidence asExhibits C1B, C2B, C3B, C4B, C5B, C6B and C7A respectively.

I have cursorily examined the said exhibits. The contents of the exhibits are basically similar. They are captioned, “Termination of Appointment”. A portion of the exhibits states as follows:

“This is to inform you of the KPRC Management decision to terminate your appointment with immediate effect as your services are no longer required.

You are as provided for in the Condition of Services, entitled to one month salary in lieu of notice and other appropriate terminal benefits less your indebtedness to the Corporation.” (Underlining for emphasis)

  1. In construing the relationship between parties, the Courts are enjoined to confine themselves to the plain words and meaning derived from the documents that govern the contract – Central Bank of Nigeria Vs Archibong[2001] 10 NWLR (Pt 721) 492; Ibama Vs Shell Petroleum Development Co. (Nig) Ltd[2005] 17 NWLR (Pt 954) 364; Momoh Vs Central Bank of Nigeria [2007] 14 NWLR (Pt 1055) 504

Now, the reason as stated by the Defendants in the letters of termination of the Claimants’ appointment was for “services no longer required”. I have critically examined the totality of Paragraph 14.4  of Exhibits C8 and C15 which provides for the grounds or reasons for which an employee’s appointment may be terminated; it is interesting to note that, services are no longer required is not listed as one of the grounds for termination. It is even interesting to note that the termination of the Claimants was not shown to be based on any allegation of misconduct proven against them to warrant the termination of their appointments.

  1. The pertinent question is: is the term, “services no longer required” provided in the Defendants’ Conditions of Service that is, Exhibits C8 and C15? If the answer is in the affirmative, what is the effect on an employee of the Defendants? Or to put it differently, when services of an employee is no longer required by the Defendants, what is the consequence thereof?

In construing the actual or real intent in a given document, contract or enactment as in the present case, the principle is that the document, contract or enactment must be read as a whole, not by the sections, in isolation. See the case of Unilife Dev. Co. Ltd Vs Adeshigbin [2001] 4 NWLR (Pt 704) 609, where the Supreme Court, Per Achike JSC, held-

“The best construction of a deed is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible, be given to every word and every clause . . . It is a fundamental role of construction of instruments, that is, several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning.”

See also the cases of Ojokolobo & Ors Vs Adamu & Anor [1987] 7 SCNJ 98; NNPC Vs Aminu [2013] LPELR 21396

  1. On the premise of this principle of law, I have again critically examined the entire provisions of Exhibits C8 and C15 to find the correct meaning of the phrase, “services no longer required”.

Paragraph 15.2 (c) of Exhibits C8 and C15 provides:

“Any employee who has worked for sufficient length of time as to qualify for retirement benefits may be retired with full benefits if services are no longer required by the Corporation” (Underlining for emphasis)

By my understanding of Paragraph 14.2 on disciplinary procedure, Paragraph 14.3 on disciplinary measures and Paragraph 15.1 on disengagement, I am of the firm view that the disengagement of the Claimants from the services of the Defendants cannot be termination of appointment. A community reading of the whole of the section relating to disengagement in Exhibits C8 and C15, when services no longer required, the actual and real intent is retirement and not termination. I so hold.

  1. Now, the testimony of the Claimants’ witnesses is that they had all served the Defendants for more than (ten) 10 years and have attained the age of forty – five (45) years to qualify them for full retirement entitlements as provided under Paragraph 15.3 of Exhibits C8 and C15.

The contention of the Defendants in paragraphs 6 and 10 of the Statement of Defence is that the 3rd Claimant, Aminu Adamu served for eight (8) years and that the Claimants have not attained the age of forty – five (45) years to be qualified for pension as claimed. The Claimants denied these assertions in their further depositions on oath and tendered in evidence Exhibits C7 and C14.

  1. It is settled that whenever the Claimant is able to prove his claim by adducing evidence, then the burden shifts to the Defendant to adduce evidence in rebuttal. Put in other words, where a Claimant alleging a fact, pleads that fact and produces evidence in proof of it, then the onus will shift to the Defendant to call evidence in rebuttal on preponderance of evidence –Imana Vs Robinson[1979] 3-4 S.C. 1; Ezeudu Vs Obiagwu [1986] 2 NWLR (Pt 21) 208; Nnorodim & Anor Vs Ezeani [1994] LPELR 1423

In the case at hand, the burden of prove shifted to the Defendants to rebut the facts as proved by the Claimants that they were in the Defendants for ten years and that they had attained the age of forty-five years but the Defendants failed to discharge this burden. My finding therefore is that the Claimants service with the Defendants is for over ten years and that they all had attained the age of forty-five years.

  1. Now, the conditions under which pension and/or gratuity are payable are stated inSection 43.7 of Exhibit C9 – the Corporate Policy and Procedure Guide(CPPG).

It states as follows:

“Pensions and/or gratuities at the rate prescribed in accordance with the prevailing Conditions of Service shall become payable to an employee if one of the following events occurs:

  1. ii) On retirement or withdrawal of employee’s service from the Corporation after serving for ten (10) years or more, determined in accordance with any laid down procedure unless or when the employee has attained the age of 45 years.”

Exhibits C8 and C15 also provide for the grounds for qualification of pension in Paragraph 15.3 thereof. The relevant portion of the provision states:

“Compulsory retirement for every employee shall occur as soon as the employee attains the age of sixty (60) years or 35 years length of service in the Public Sector, whichever is earlier. All employees shall have the option to retire voluntarily after attaining the age of forty-five (45) years. Gratuity and pension are applicable after the attainment of five (5) and ten (10) years respectively……”

Having found that the Claimants served the Defendants for ten years and that they had attained the age of forty-five years, I further find that the Claimants are qualified for their terminal entitlements. The Defendants are therefore under obligation by the provision of the Staff Conditions of Service to pay the Claimants their terminal entitlements. I so hold.

  1. Now, the next pertinent issue for determination is whether the Defendants paid all the terminal entitlements of the Claimants.

Parties agree that gratuities were paid to all the Claimants except the 7th Claimant. The DW1 testified that Exhibits C8 and C15 were applicable to the Claimants; that the gratuities paid to the 1st – 6th Claimants was on compassionate ground and that the Claimants are not entitled to pension.

Learned counsel for the Claimant rejected these assertions by the Defendants and argued that the Defendants cannot withhold the pension of the Claimants since they were qualified for their terminal entitlements.

It is elementary to state that oral testimony cannot supplant or vary the contents of a document which speaks for itself. It is also a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi [1994] 3 NWLR (Pt 333) 385; Isulight (Nig) Ltd Vs Jackson [2005] 11 NWLR (Pt 937) 631

Applying this principle and taking a holistic view of the provisions of paragraphs 15.2(c) and 15.3 of the Exhibits C8 and C15, it is clearly obvious the Claimants are entitled to both to gratuity and pension since they were disengaged or retired from the Defendants for services no longer required.

  1. Learned counsel further submitted that pension is a constitutional right provided bySection 173 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); that by the Conditions of Service of the Defendants, the only condition by which pension/gratuity/terminal entitlements can be withheld is upon dismissal of the employee. Learned counsel further submitted that the Claimants were not dismissed to warrant the withholding of their inalienable right to pension.In support of her submission, learned counsel cited the case of Ajao Vs Permanent Secretary Ministry of Economic Planning Budget Civil Service of Pensions Office & Anor [2016] LPELR 41407
  2. Now, it is trite that the Constitution of Nigeria is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout Nigeria. See:Adediran Vs Interland Transport Limited[1991] 9 NWLR (Pt 214) 155; Kalu Vs Odili [1992] 5 NWLR (Pt 240) 130. The Constitution must therefore, be interpreted liberally.

Shorn of any embellishment, Section 173 (1) and (2) provides thus:

Section 173 (1)

“Subject to the provisions of this Constitution, the right of a person in the Public Service of the Federation to receive pension or gratuity shall be regulated by law.

Section 173 (2)

“Any benefit to which a person is entitled in accordance with or under such law as is referred to in Sub-section (1) of this Section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct.” (Underlining for emphasis)

The above provision is very clear and unambiguous. It provides simply that pension or gratuity shall not be withheld under any circumstance except to such extent as is permissible by any law.

  1. I agree with the submission of the learned counsel for the Claimants that pension is not merely a statutory right of the Claimants; it is a fulfilment of a Constitutional promise. It is inhuman and wicked for a retiree or pensioner to be denied his pension and gratuity when he ought to enjoy same and when he ought to be enjoying the fruit of his labour. The 1999 Constitution vide Section 173 is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated.The Courts have also recognized and declared the importance of pension.It was held in Martins & Ors Vs Kolawole [2011] LPELR-4475 that:

“Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree’s past meritorious service to the employer.”

Also in Momodu Vs National Union of Local Government Employees [1994] 8 NWLR (PT 362) 336, the Court, per Ubaezeonu JCA stated that:

“A pension in the context of this case is an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer.”

See also CBN Vs Amao [2010] 5-7 SC (Pt 1) 25.

  1. The arguments by the Defendants’ learned counsel that the Conditions of Service of the Defendants were made subject to the provisions of the Defendants’ Act are totally erroneous and misconceived. I agree with the learned counsel for the Claimants that the withholding of the pension of the Claimants by the Defendants is unconstitutional and unlawful. I so hold.

Curiously, it is on record that the Defendants paid the 1st – 6th Claimants gratuities, albeit on what the Defendants termed compassionate ground. The question is why would the Defendants withhold the Claimants’ pension if their gratuities were paid?  I am of the firm view that the withholding of the Claimants’ pension was deliberate and this act is unconstitutional. I so hold.

In view of the fore goings, issues one and two are resolved in favour of the Claimants against the Defendants to the extent that their pension and gratuity shall not be withheld under any law especially when the issue of pension is a monthly reoccurrence.

  1. Now, as correctly submitted by the learned Defendants’ counsel, the claims for gratuity and pension are special damages which must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See:A.G. Leventis Ltd Vs Akpu[2002] 1 NWLR (PT 747) 182; Garba Vs Kur [2003] 11 NWLR (PT 831) 280; Seven Up Bottling Co Vs Augustus [2012] LPELR 20873

In paragraph 17 of their Statement of Facts, the Claimants pleaded the arrears of pension accruable to them. The schedule of the claims of the particularization as to the amount involved for the pension of each of the Claimant was made in line with the schedule of payment of pension as stated in Paragraph 15.6 of Exhibits C8 and C15 which was applicable at the time of the termination of their appointments. The Claimants have proved their entitlements to pension from the Defendants with credible evidence to the satisfaction of the Court. I so hold

  1. The parties are not in dispute that all the Claimants except the 7thClaimant were paid gratuities. DW1 admitted this in his testimony. It is elementary principle that facts admitted needs no further proof. In the circumstances therefore, the 7thClaimant is also entitled to his claim for payment of his gratuity. I so hold
  2. On the issue of whether or not the Claimants are entitled to the claim for damages, it is trite and as correctly submitted by the learned Claimants’counsel thatgeneral damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the Defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Eseigbe Vs Agizolor [1993] 9 NWLR (Pt 316) 128; Rockonoh Property Co Ltd Vs NITEL Plc & Anor [2001] 10 SCM 117; Ibrahim & Ors Vs Obaje [2017] LPELR 43749
  3. As stated in the opening paragraph of this judgement, this case has a chequered history. It was first commenced at the Federal High Court in 2006. Thereafter, the Defendants appealed the ruling of the Federal High Court on issue of jurisdiction at the Court of Appeal and subsequently the case was filed in this Court. Without mincing words, the act of withholding the Claimants’ pension for over fourteen (14) years has occasioned untold hardship on the Claimants, some of whom are now deceased.

I must therefore hold that the Claimants have satisfactorily established their entitlements to the claim for general damages.

  1. In the final analysis, I hereby resolve the two issues set down for determination substantially in favour of the Claimants. The judgment of this Court is that the Claimant’s action is substantially meritorious on the preponderance of evidence led on the record and the same hereby substantially succeeds. Accordingly it is hereby declared and ordered as follows:
  2. It is hereby declared that the Claimants having served the Defendants for a period of more than ten (10) years and having attained the age of forty-five (45) years are entitled to the payment of gratuities and pensions by the Defendants.
  3. The Defendants are hereby ordered to pay to the 1st, 2nd and 3rd Claimants forthwith as follows: (a) 1st Claimant – Two Million, Nine Hundred and Forty Thousand Naira – (N2,940,000.00), (b) 2nd Claimant – Seven Million, Two Hundred Thousand Naira – (N7,200,000.00) and (c) 3rd Claimant – Two Million, Three Hundred and Forty Thousand Naira – (N2,340,000) total of  Twelve Million, Four Hundred and Eighty Thousand Naira – (N12,480,000.00) only, being the unpaid arrears of pension payable to the said Claimants until they were deceased.
  4. The Defendants are ordered to pay the 7th Claimant his gratuity which was not paid by the Defendants.
  5. The Defendants are further ordered to pay to the 4th, 5th and 6th Claimants forthwith the sum of One Million, Nine Hundred and Eighty Thousand Naira – (N1,980,000.00), Three Million, Nine Hundred and Sixty Thousand Naira – (N3,960,000.00), Three Million, Sixty Thousand Naira – (N3,060,000.00) and Six Million, Four Hundred and Eighty Thousand Naira – N6,480,000.00 in the total sum of Fifteen Million, Four Hundred and Eighty Thousand Naira – (N15,480,000.00) only, being the unpaid arrears of pension that has accumulated in their favor.
  6. The sum of N5,000,000.00 (Five Million Naira) only is hereby awarded in favour of the Claimants against the Defendants as general damages for the economic, financial and psychological hardship suffered by the Claimants due to the withholding the Claimants’ pension for several years by the Defendants .
  7. The Defendants are further ordered to make the payments of the pension and entitlements of the Claimants within thirty (30) days of this judgement.

I make no orders as to costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

18/02/2020

 

Legal representation:

  1. K. NuhuEsq. for Claimants
  2. S. SuleimanEsq. for Defendants
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