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National Industrial Court

Ademola Popoola & 3 ORS -VS- Attorney General of Kwara State & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: December 11, 2018   Suit No: NICN/IB/85/2013

Between:

  1. AdemolaPopoola
  2. AfolayanKolawole
  3. JenfaOlufemi                                                   ————————–         Claimants
  4. Hammed Ibrahim

(Substituted for late AbdulRasaqAjao)

 

And

 

  1. Attorney- General of Kwara State
  2. Hon. Commissioner, Kwara State

Ministry of Commerce, Industry                    ————————-               Defendants

and Cooperatives

  1. Kwara  Investment and Property

Development Corporation

 

Representation:

T.O.S. Gbadeyan with O. D. Orike, K.O. Tijani and M.A. Bello for the claimants

A.B. Nuhu Assistant Chief State Counsel Kwara State Ministry of Justice for the defendants.

  1. C. Wori for the 3rddefendant.

COURT’S JUDGMENT

  1. This case was transferred to this Court on August 28, 2013 from the High Court of Justice,Kwara State.By its regularized/amended Complaint and Statement of Facts filed on July 4, 2016 at page 634 of the record, the claimants are seeking for the following reliefsfrom the defendants:
  2. A Declaration that the Claimants, being public servants in the employment of, and under the control of 2nd and 3rd Defendants, are entitled to their pensions and gratuities pursuant to Section 210 of the 1999 Nigerian Constitution and the Pensions Law of Kwara State 1994.
  3. A Declaration that the continuous withholding of the Claimants’ pensions and gratuities is in violation of Section 210 of the 1999 Nigerian Constitution and their Pensions Law of Kwara State 1994.

iii.               An Order to the effect that the claimants’ gratuities and pensions shall be calculated by Defendants’ Pension Board or summed up based on the existing subsidiary legislations/circulars on Pensions and Gratuities matters from 1998 till the Pensions and Gratuities are fully paid.

  1. An Order mandating the Defendants through their Pensions’ Board to recognize and include the names of the Claimants in the Kwara State list of Pensioners and to pay their pensions as at when due.
  2. N500,000.00 as general damages for anguish, ridicule and emotional distress suffered in lieu of the treatment meted out to the Claimants by the Defendants and/or their privies and assigns.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants entered appearance through their counsel and filed their statement of defence with other processes in compliance with the Rules of this Court.

  1. CLAIMANTS’ PLEADINGS

The case of the claimants as pleaded is that they were former public servants of pensionable status in the employment of the 2nd and 3rd Defendants;parastatals under the control of Kwara State Government. They aver further that after serving the defendants for several years, they were disengaged from service by Kwara State Investment and property Development Corporation, 3rd defendant; on the basis of reorganization. To them, the 3rd defendant is aparastatal which has its own provision for Pensions and Gratuities for its employees in its enabling law. They aver that defendants have refused them their deserved pensions and gratuities despite persistent demands for such payment from them.

  1. DEFENDANTS’ PLEADINGS

The case of the defendants on the other hand is that the claimants were neither in any pensionable service of the Kwara State Government nor that of the 2nddefendant and that the 3rd defendant, which is now dead; was not a parastatal under Kwara State Government but a statutory corporation with its own legal entity and personality. They continued that the 4thclaimant (Hammed Ibrahim) was never employed by,neither did he serve the defunct Kwara Investment Corporation norKwara Investment Company Limited (KINCO); and that the 3rddefendant did notgive him any appointment. The defendants stated again that the claimants are not entitled to pensions and gratuities from the defendants because; it is only persons in the public service of the State, recognized by the Pensions’ Board and whose names are included in Kwara State list of pensioners that are entitled to be paid pensions in the State. They aver further that the claimants have been informed of where to collect their terminal benefits from but that they refused to there because they felt the amount due to each of them was small and that then turned round to make these demands from the Kwara State Government.

During hearing of the case, the claimant testified as CW1 while one Mr. Salami Odo testified on behalf of the defendants as DW1. Thereafter, counsel to the parties were directed to file their final written addresses by the Courtin line with the Rules of this Court and they complied with the direction.

  1. DEFENDANTS’ WRITTEN ARGUMENTS

In the defendants’ final written address, their counsel raised objection to the jurisdiction of this Court on this suit and prayed for its dismissal on the grounds that:

  1.       The Claimants have not sued competent Defendants and that
  2.    The fundamental condition precedent was not fulfilled by the Claimants; and Failure of the Claimants to fulfill fundamental condition precedent to the initiation of this suit.

        On the first ground of his objection, counsel submitted that the 2nd Defendant;the Hon. Commissioner, Ministry of Commerce is neither a natural person nor a juristic entity as it is a settled law that, public office or its holder is only a design of the State Governor; which may be scraped or its portfolio merged with other Agency or Ministry at the pleasure of the Governor. He continued that such office or its holderis not a creation of statute; therefore, bears no legal capacity or personality to sue or be sued. He went on that Ministry or the office holders like the 2ndDefendant is only an Agency through which the Government operates. Therefore, he submitted that the 2ndDefendant has been wrongly sued in this case, citing Principal, Government Secondary School, Ikachi& 7 Ors v.DorcasIgbudu[2006] All FWLR (Pt. 229) 1420 at 1440 andAbaliki L.G.C. v. Abakaliki RMO [1990] 6 NWLR (Pt. 155) 182 at 192. Also  counsel argued that  3rd defendant counsel is dead;referringto paragraph 9 of the Defendants’ witness written statement on oath and contended that, these facts were never denied nor traversed by the Claimants. Consequently, he submitted that the facts espoused under the said paragraph 9 of the Defendants’ statement on oath are deemed admitted and the Court is safe to act on same; citing Abacha v. Ette Spiff [2003] All FWLR (Pt. 144)531@585; Section 75 of the Evidence Act andOjo v. Akinsanoye[2014]All FWLR (Pt.754) 1-199@23. He argued that the claimants have wrongly sued the 3rd Defendant who can neither bear responsibility nor accede to their claims,he prayed the Court to strike- out the suit against the 2nd and 3rd Defendants.

  1. On the 2nd ground of objection of condition precedent to the initiation of this suit; counsel submitted that by the provisions of section 32 of the Kwara State Investment and Development Corporation law, No. 11 of 1995 and No. 4 of 2006,no suit is to be commenced against the Corporation (3rd defendant) until one month at least after written notice to commence has been served upon the Corporation by the intending plaintiff or his agent. He maintained that the Claimants did not serve the 3rd Defendant with a pre-action notice before instituting this action pursuant to this law. Counsel submitted that the issue of pre-action notice is very fundamental and same touches on the competence and jurisdiction of the Court, the failure of; which is a fatal omission that incurably mars a suit and renders it a nullity. He referred the court to the case ofA.G Kwara State v.Adeyemo[2017] All FWLR (Pt. 868) page 649;Okafor v. Ukadike[2009]1 NWLR (Pt. 1122)26; Eze v. Okechukwu&Ors [1998] 5 NWLR(Pt. 548)@ 85; Nigeria Port Plc. v.Nizero[1998] 6 NWLR (Pt. 55)640 @ 651. Counsel went on that Order 3 Rules 23 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 makes it mandatory for the Claimants to file a copy of a pre-action notice where same is statutorily required before the institution of action as is the case in the instant suit. Counsel urged the court to decline jurisdiction against the Defendants and to strike out this case against the defendants accordingly.

  1. Counsel to the defendants then formulated following issues for determination of the court in his final written address in the alternative:
  2. Whether the Claimants are entitled to pension and gratuity from the Defendants.
  3. Whether the Defendants have withheld or are withholding the Claimants’ pension and gratuities to entitle them to the reliefs sought in this case.

Arguing the first issue of whether the Claimants are entitled to pension and gratuity, counsel urged the court to deemed paragraphs 8, 9, 10, 11, 12, 13, 14,15 and 16 of the Claimants’ complaint as being abandoned because no evidence was led in support of  them  by the Claimants’ lone witness. He maintained that it is the law that a statement of claim/fact or defence filed by a party with no evidence led in its support, will amount to abandonment of the averments so pleaded, no matter how cogent those averments may be; the court has no business considering them, citing Adekunle v. Rockview Ltd.[2004] FWLR(Pt. 188) 935-119 @1043 and Lufthansa Airlines v. Odiese[2006] 7 NWLR(Pt. 978) pages 1-978@49.

  1. In addition, counsel urged the Court to expunged Documents C3 to C8 which; to counsel, were wrongly tendered by the Claimants and admitted by the Court through the CW1. He argued that this action was not instituted in a representative capacity and that tendering of the appointment and termination letters of 2nd – 4th Claimants by 1st Claimant who is neither the maker nor owners of the documents rendered same inadmissible, citing DagasiDere v. Dagaci of EBWA [2006] 7 NWLR (Pt. 779)382@433. In case same is not expunged, counsel urged the court to attach no probative value to the Documents, citing Flash Fixed Odds Ltd. v. Akatugba[2001] FWLR (Pt. 76) 709.To counsel, the claimants have not discharged the evidential burden place on them by the law to show that they are entitled to pensions and gratuities from Kwara State Government;on the hand, the Defendants have unequivocally proved by evidence and laws that the terms of engagement of the claimants were based on contributory pension, which the Claimants actively participated in, citing sections 131, 132 and 133(1) of the Evidence Act, 2011 and the case ofDumez Nig. Ltd v. Nwakhoba& 3 Ors[2008] 12 SC (Pt. 11)142. Counsel argued further that Documents C1-C8 emanated from either, Kwara State Investment Corporation or the 3rd Defendant; which are entities created by law with specific agreement between them and the Claimants on the issue of pension and gratuities.

  1. Counsel continued that the Laws relied upon by the claimantsare not applicable to this case;namely,Kwara State Investment Corporation Edict 1971, Cap. 79 Laws of the Kwara State 1994, section 210 of the 1999 Constitution of the Federal Republic of Nigeria, section 19(1) Pensions and Gratuities Edict 1974, Cap 114 Laws of Kwara State 1994 and Kwara Investment and Property Development Corporation Edict No 11 of 1995.He continued that the claimants were not in the service of Kwara State Government as Civil Servants.  Even for those in the service of Kwara State Government, the Section subjected pension and gratuity to regulatory laws of each state and in this regards, the enabling laws of an establishment become relevant and applicable as circumstances demand. He referred the Court to Kwara State Investments Corporation Edicts 1971 Cap. 79 Laws ofKwara State, Section 21(a) of the said Law; the case of Omisorev.Aregbesola [2015] All FWLR (Pt. 813) 1673@ 1780 and to Exhibit D4 (D4(a) – D.4(l)) before the Court.

  1. Counsel again maintained that it was stated in Documents C2, C4, C6 and C8 that, any benefit that might be entitled to by the Claimants shall be made by the Insurer;hence, it is the insurer that will pay the Claimants benefit and that the claimants never contended this fact.He went on that other staff of the 3rd Defendant who were of similar status with the claimants have collected their benefits (pensions and gratuities) from the said insurer; the Gateway Insurance Company Limited. Counsel noted that the claimants’ appointments were subject to other terms and conditions in Documents C1, C3, C5 and C7. To him, the 3rd Defendant is a legal entity, separate and distinct fromKwara State Government and must be treated as an independent person with its rights and liabilities; referring to the evidence of the claimant under cross examination and the cases of LASTMA v.Ezezoobo[2015] All FWLR (Pt. 810) 1026- 1232B@ pg. 1091; Marina Nominees Ltd v. FBIR [1986] 2 NWLR (Pt. 20) 1-146@49 andOkomuOli Palm Co. Ltd v. Iserhienrhien[2001] FWLR (Pt. 45) 602-808@674.

  1. Arguing issue two of whether the Defendants have withheld or are withholding the Claimants’ pensions and gratuities, counsel submitted that the Claimants failed to prove the fact that, they are entitled to pensions and gratuities from Kwara State Government and thus cannot be right to have said that the Defendants withheld or are withholding their pensions and gratuities when they are not staff of the Defendants in the first instance. He contended that the fact that the 3rd Defendant is a corporate and distinct entity fromKwara State Government is undisputed andthat the Claimants failed to prove in evidence that they were in the employment of the 2nd Defendant as an Agency of the State Government to entitle them to pensions and gratuities; to be calculated by the Kwara State Pensions’ Board. He referred the court to IDC v. LGN Ltd.[2000] 1 SC NQR Vol.1 pg.209 andA.G. Lagos v. A.G. Federation & 35 Ors[2003]6 SCNJ 11. Counsel urged he Court to dismiss the claimants’ claims.

  1. CLAIMANTS’ WRITTEN ARGUMENTS

In the claimants’ Final Written Address, their counsel responded to the defendants’ preliminary objectionsby submitting that the procedure adapted in arguing their preliminary objection in this court is a slavish adaptation of the Court of Appeal and Supreme Court procedures of raising and arguing objection in the brief of argument as provided in the Rules of these two Court but without such provisionsand in fact contrary to Order 17, R.1 (9) of NICN (CP) Rules, 2017 as counsel did not state the court’s rules under which the objection was raised.He urged the Court to dismiss the preliminary objection. Furthermore, counsel contended thatthe Statement of Defence filed by the defendant did not include any preliminary objection as specified under Order 30 Rule 2 (1) (a) which when raised, is to be disposed off at any time before the trial or at the time of trial of the suit. He noted that the defendant’s preliminary objection is brought pursuant to Kwara Investment and Property Development Company Limited Law 2006 when in actual fact this action was filed in 2001 and remained pending till date. To counsel, the law passed in 2006 cannot be applicable to a cause of action that arose in 1998 and to the suit filed in 2001, Citing F.C Udoh and Ors v. Orthopaedic Hospitals Management Board and Anor. [1993] NWLR (Pt. 304) 139, [1993] 7 SCNJ 244.

  1. Counsel’sposition is that the 3rd defendant, Kwara Investment and Property Development Corporation was sued in this case as a nominal party and that its presence in the case is of no specific value in the determination of the matter in dispute. He went on that it is the case of the defendants that before the institution of this action, the 3rd defendant had been liquidated in 1999; therefore, dead. Counsel noted that this case was instituted in 2001 and it is not possible for the claimants to serve the “dead 3rddefendant” a one month notice. He maintained that there was no evidence to show how the 3rd defendant was liquidated; who liquidated it, which agency of government was and is still in custody of the properties of the alleged liquidated 3rd defendant. He contended further that by paragraph 9 of the statement of defence, it was alleged that a newly formed Kwara Investment and Property Development Company Limited “replaced the liquidated and defunct 3rd defendant”;he argued that while the claimants had no business/relationship whatsoever with the newly incorporated Kwara Investment and Property Development Company Limited, the Attorney General of Kwara State, who is the Chief Law Officer of Kwara State can sue and be sued on behalf of Kwara State Government with the 3rd defendant as a nominal party.

  1. Thereafter, the claimants’ counselformulated two issues for determination of the court in his final written address this way:
  2. Whether the claimants herein are public servants under section 277 of the 1979 Nigerian Constitution and section 318 of the 1999 Nigerian Constitution amongst other applicable laws or statutes.
  3. If claimants are adjudged to be public servants, whether they are entitled to pensions and gratuities under section 1990 (sic) of the 1979 Nigerian Constitution and section 210 of the 1999 Nigerian Constitution.

Arguing issue one, counsel submitted that the claimants’ appointments and their termination happened under the 1979 Constitution, notwithstanding the amended by the Constitution Suspension and Modification Decree No 107 of 1993. He referred to paragraphs 1,4,5,15,17,22,23,25 of the statement of facts and paragraph 5 of the statement of defence and argued that the claimants were public officers as they were staff of statutory corporation or company or enterprise in, which the government of a state or its agency holds controlling shares or interest by virtue of section 277(1) (d)(f) of the 1979 Nigerian Constitution. He further argued that the claimants were employed by Kwara State Investment Corporation as shown in Documents C.1to C.4 andthat the corporation through its Edicts had provisions for pensions and gratuities,citing sections 187 to 192 of the 1979 Constitution of Nigeria and section 318(1) of the Constitution of the FRN, 1999.Counsel also referred to DocumentC.11; the Court of Appeal’s judgment in AdemolaPopoola and ors v. AG Kwara state and ors with the Appeal No CA/IL/93/2009 of the 9th day of June, 2011 and urged the court to note that the findings of the Court of Appeal in Document C.11 was not appealed against by the defendants; the implication is that the claimants were public officers. He then contended that this issue constitutes fact and issue estoppel under the Evidence Act; therefore, the claimants were Public Servants in the Public Service of Kwara State.

Again Counsel referred to Documents C.5 to C.8; the claimants’ Letters of Employment and Letters of Termination from and submitted that these documents were issued by Kwara Investment and Property Development Corporation; a corporation solely financed by Kwara State Government. To counsel, the claimants’ entries to Kwara State public service and their unjustifiable and unlawful removal or exit from the Kwara State public service were through Kwara State solely financed corporation and urged the Court to so hold.

  1. Arguing issue two of whether the claimants are entitled to pensions and gratuities, counsel submitted that claimants were appointed by the Kwara State Investment Corporation and so, their appointment were with statutory flavour pursuant to section 21 (a) ofKwara State Investment Corporation Edict No. 4 of the 1971. Counsel went on that as at the time of the claimants’ appointments by the Kwara State Investment Corporation between 1975 and 1982, there was in existence, the pensions  and gratuities Edict of 1974 with its commencement date as 1st April 1974; which provides in its section 10 that “Any pension or gratuity to which an officer is entitled in accordance with the provision of this Edict shall not be withheld or altered to his disadvantage; provided that where such officer is dismissed from the service for any offence including a breach of the code of conduct specified in the fifth schedule of the constitution of the Federal Republic of Nigeria 1979, he may forfeit such pension or gratuity”.  Counsel submitted that  the claimants are entitled to their pensions and gratuities, since none of them was dismissed from their employment for any offence neither did they commit any blame worth act while in the public service of Kwara State.

Furthermore, counsel submitted that the pension and gratuity Edict which was applicable to all public servants in Kwara State did not mention contributory pension and therefore the contributory pension under Kwara State Investment Corporation Edict No 4 of 1974 is an addition to that granted under the pension and gratuity Edict 1991 and not a substitute for it. He went on that the deducted contributory pension from the claimants’ salaries which is additional to what the claimants are entitled to under the pension and gratuity Edict/Law should also be refunded to the claimants. Counsel finally referred the court to Popoola v. AG Kwara State (supra) page 14 paragraph 2 on what pension is and urged the Court to grant their reliefs.

  1. DEFENDANT’S REPLY ON POINTS OF LAW

Counsel to the defendant filed Reply on Point of Law at page 775 of the record, wherein he responded to paragraphs 1.00 to 1.02 of the claimants’ final written address by referring the court to Order 18 Rule 2 of the Rules of this court;he submitted that the rule of this court does not make filing of motion and affidavit mandatory.

On the issue of filing of their defence processes out of time as raised by the claimants, counsel stated that the defendants’ statement of defendants was initially filed on 21st April, 2015 that after hearing all applications on the 26th May, 2016 the court ordered parties to re-file their processes butthat this was not done by the claimants until 4th of July, 2016 a period of about 2 months while the defendants equally filed their defence on the 24th of November, 2016.He maintained that he who wants equity must seek or do equityand urged the court to treat the filing out of time as a mere irregularity pursuit to Order 5(1) of the Rule of this Court.

Replying to the claimants’ issue one, counsel submitted that the provisions of section 187 to 192, section 206 to 208 of both the 1979/1999 Constitution of the FRN respectively are not applicable to this case; referring the court to the case of Okomu Oil Palm Co. Ltd v.Iserhinrhien [2001] FWLR (Pt. 45) 670-803 at 686.

Replying to the claimants issue two, counsel submitted that the claimants’ claims before the court are vague; referring the court to A.G Federation vs. AG Abia State & 35 [2002] All FWLR (Pt. 102)1 and Chief Aqua EdemArchibongOrs v. Chief AsquoIta& 4 Ors [2004] All FWLR (Pt. 197) 930.

  1. COURT’S DECISIONN

I have carefully considered the facts of this case, the written arguments of counsel to the parties together with their cited authorities and from all of this; I am of the considered opinion that the followings issues require resolution:

  1. Whether or not Documents C.3 to C.8 were properly admitted in evidence.
  2. Whether or not the parties complied with the Rules of this Court in prosecuting this case and whether or not the 2nd and 3rd defendants are competent parties before this Court.

iii.      Whether or not the Court has jurisdiction to adjudicate on this case.

  1. Whether or not the claimants were Public Servants and so, entitled to pensions and gratuities from Gateway Insurance Company Ltd or from the Kwara State Government.

Before going to the merit of this case, I need to make some points.While preparing this judgment about three weeks ago, I realized that I needed to read the provisions of Kwara State Investment and Development Corporation law, No 11 of 1995 and No 4 of 2006 copiously referred to by both parties but unfortunately; none of them exhibited this law.This Court, being aFederal Court; does not have kwara State Laws. In the interest of justice and in order to avoid the risk of coming all the way from Ilorin to Port Harcourt to merely take an adjournment, I instructed the Court’s litigation officer to convey my direction to counsel to the parties by e-mail to make copies of these laws available to the Court on or before November 30, 2018 so as to enable me conclude the judgment. I further instructed him to inform the counsel that the judgment willcome up on December 11, 2018 in Port Harcourt.

It was only the defendants’ counsel that responded; the claimants’ counsel who specifically relied on the Pensions and Gratuities Edict of 1974 did not make this law available to this Court.

  1. Secondly, it is wrong for the claimants’ counsel to contend that the claimants were wrongfully terminated as he did in paragraph 1.02 of his address at pages 793 to 794 of the record after the Court had ruled and refused their attempt to amend their complaint to include wrongful termination on May 26, 2016; see page 26 of the proceedings’ file. If the claimants’ counsel was displeased with that ruling, the option available to him is to appeal against it; I hope the claimants’ counsel will bear this in mind please.

I also noted that the defendants re-argued their case in paragraphs 3.02 to 3.08 of their reply on points of law at pages 779 to 784 of the record; those paragraphs are accordingly discountenanced in this judgment because, legally he is not allowed to do that.

 

  1. On Admissibility of Documents C.3 to C.8

Documents C.3 to C.8 are the letters of employment and disengagements of the 2nd, 3rd and 4th defendants respectively. They are at pages 658 to 664 of the Court’s record. The defendants are objecting to their admissibility on the main ground that the 1st claimant through whom the documents were admitted in evidence was neither their maker nor their owner,more so that the claimants did not sue in representative capacity. There is no need to belabour this issue as the Court allowed the claimants to so tender their documents in evidence so as to avoid unnecessary delay of the proceedings without jeopardizing the interest of justice; and this procedure is covered by the provisions of section 12(2) of the NIC Act, 2006. Consequently, I hold that Documents C.3 to C.8 before the Court were properly admitted in evidence and the objection of the defendants to their admissibility is accordingly dismissed.

It is pertinent to note that the defendants filed notice of preliminary objection together with their final written address on February 23, 2018 through their counsel; H. A. Gegele, Director of Civil Litigation, Kwara State Ministry of justice, Ilorin; see page 740 of the record. It’s only a sheet of paper and it was not filed under any Rule of Court or under any Law.It is neither supported by affidavit nor a written address. Therefore, counsel to the claimant argued in paragraph 1.01 of the claimants’ final written address that the procedure adopted by the defendant for the filing of this preliminary objection is unknown to the Rules of this Court; relying on Order 17 Rules 1, 5 & 9 and Order 30 Rule 2 (1) (1) of the Rules of this Court. The claimant’s counsel contended that it is mandatory that the defendants support their preliminary objection with affidavit and written address.

  1. Nevertheless, the defendants’ counsel raised and argued this objection again, challenging the jurisdiction of this Court in paragraphs 3.00 to 3.13 of their final written address at pages 745 to 749 of the record. The grounds of this objection are:

            (i) The Claimants have not sued competent Defendants;

(ii) Fundamental condition precedent was not fulfilled by the Claimants; and failure of the Claimants to fulfill fundamental condition precedent to the initiation of this suit.

Let me clear a point straight away that preliminary objections are only raised at the beginning of the proceedings, before trail commences; once trail has commenced or concluded before the objection is raised, it is no longer a “preliminary objection” but ‘objection’simpliciter.In the circumstance, I find and hold that it is wrong for the defendants’ counsel to title the objection he filed at address stage after the conclusion of trail as “Notice of Preliminary Objection”. I further hold that the one page process titled ‘Notice of Preliminary Objection’; not supported with a written address is incompetent as it was filed contrary the provision of Order 17 Rule 1 (9) of the NICN (Civil Procedure) Rules, 2017; which makes it mandatory to accompany every motion including notice of Preliminary Objection with a written address; this process is accordingly struck out.

 

The provision of Order 17 Rule 1 (9) of the NICN (Civil Procedure) Rules, 2017 should not be construed to mean that objection cannot be raised in the final written address.For instance, Order 30 Rule 2(1) (a) NICN (Civil Procedure) Rules, 2017 is to the effect that the defendant “may” include preliminary objection in its defence processes while Order 45 Rule 2 (2)(c) NICN (C.P.) Rules, 2017 allows parties to frame issues arising from the evidence before the Court; including any objection and I so find.

  1. It is the defendants’ contention that the claimants’ application for amendment of their Statement of Facts was refused by this Court, yet they went ahead to file an amended Statement of Facts. Hence, the defendants’ counsel urged the Court to discountence the claimants’ amended complaint and amended statement of facts. The claimants’ counsel too argued that the defendants filed their defence processes out of time and that they did not file application for extensionof time and so, urged the Court to hold that there is no defence to their case before the Court.

I have read through the Court’s record and the entire proceedings of Court on this case. As I have shown earlier in this judgment, this case was transferred to this Court from Kwara State High Court. In such instance, parties were required to regularize their processes in line with the Rules of this Court. In the claimants’ attempt to regularize, they filed an application for amendment and attempted to introduce new claim that was not sent to Kwara State High Court for re-trial from the Court of Appeal and this Court refused that attempt. See the proceedings of this Court on May 26, 2016 at pages 20 to 27 of the proceedings’ file. On July 4, 2016 the claimants’ filed their regularize processes and wrongly titledthem as Amended Complaint and amended statement of facts.They did not make any application either orally or in writing to correct the titles of these processes; hence, the defendants urged the Court to hold that the claimants have no case before the Court. But on perusal of these processes, I found that the claimants did not introduce any relief that was not between the parties initially in their process.

  1. Also, the defendants filed their Statement of Defence and all other defence processes out of time without filing any application to regularize same before presenting their defence in court, contrary to the provisions of the rules of this Court; and so, the claimants urged the Court to hold that there is no defence before the Court.However, considering the age and the antecedence of this case; the cause of action accrued in 1998, the action was filed in Kwara State High Court in 2001, decided there and it went to Court of Appeal where it was sent back to the High Court for retrialbefore another judge after delivering a considered judgment.This went on until the commencement of the 3rd Alteration to the Constitution of the FRN, 1999 in 2011; which made the matter to be transferred to this Court in 2013. In the circumstance, I am inclined to excuse the errors of the parties (both claimants and defendants) by invoking the provisions of Order 5 Rule 3 of the NICN (C. P.) Rules, 2017;by treating these errors as mere irregularities in the interest of justice, equity and fair play and I so hold.

The law is that the issue of Jurisdiction is a very fundamental one. As a threshold issue, it should be determined at the earliest stage of the proceedings because, if a Court has no jurisdiction to hear and determine a case, its proceedings on that case remains a nullity ab initio, no matter how well conducted and decided. Because, a defect in competence is not only intrinsic but extrinsic to the entire process of adjudication; see Anyanwu v. Ogunewe[2014] 8 NWLR (Pt. 1410)SC 437 at476, paragraph G-H.In the circumstance, the defendants’ objection will be resolved first before proceeding to the substantive judgment.

 

  1. Whether the 2nd and 3rd defendants are competentparties before the Court

For an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be competent parties, see the case of Atagbuba& Co, v. Gura Nig. [2005] All FWLR (Pt. 265) 1219 SC: [2005] 2 SCNJ 139and as a general rule, only natural persons; that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent.

  1. On the 2nd defendant   

The 2nd Defendant before the Court is the “Honourable Commissioner, Kwara State Ministry of Commerce, Industry and Co-operative”. This party is neither a natural person nor a juristic entity. As a general rule, it is the duty of the claimants who commenced this action, to ensure thattheir named defendants to the action are juristic persons or natural persons; which so existed at the time thesuit was initiated; otherwise the action will be incompetent and the Court will lack jurisdiction to entertain the matter. Suing a non-juristic person renders whatever proceedings conducted thereon a nullity, see the case of LASTMA v. Esezobo [2017] 5 NWLR (Pt.1559) CA 350 at pp. 335-336 paras F-A. The 2nd defendant is not a natural person or a human being and the claimants did not bother to show the court how the 2nd defendant became a juristic person that can be sued in this case.Therefore, I find and hold that the 2nd defendant, the “Honourable Commissioner, Kwara State Ministry of Commerce, Industry and Co-operative” is not a juristic person, and so, it is not a proper party before this Court. I further hold that 2nd defendant is an incompetent partyand its name is accordingly struck out as a defendant in this case.

  1. On the 3rd defendant

The 3rd defendant in this suit is the Kwara Investment and Property Development Corporation. The defendant’s counsel contended that 3rd defendant died since 1999 before the Commencement of this suit. He referred the Court to the evidence of the defendant at paragraph 9 of the D.W.1’s written statement on oath, which the claimants neither denied nor traversed. He maintained that the said evidence in paragraph 9 of the D. W. 1’s written statement on oath is deemed admitted.To the counsel, the claimants have wrongly sued the 3rd Defendant who can neither bear responsibility nor accede to the claims of the claimants; he then prayed the court to strike- out the suit against the 2nd and 3rd Defendants.Counsel to the claimants did not file a reply to this issue as raised in paragraph 9 of the witness statement on Oath and the Statement of Defence.

In paragraph 9 of the Statement of Defence and paragraph 9 of D.W.1’s written statement on Oath, the defendants canvassed that “the 3rd defendant was also dead, and was replaced with a limited liability Company – Kwara Investment and Property Development Company Limited, incorporated on 5th May, 1999.”

It is the law that an unchallenged and/or uncontroverted fact needs no further proof but such fact as pleaded is deemed admitted in evidence, see the cases of Bassey v. A.G. AkwaIbom State &Ors[2016] LPELR-41244(CA) andMilitary Gov. of Lagos State &Ors v. Adeyiga&Ors[2012] LPELR-7836(SC). Therefore, I find and hold that the uncontroverted evidence of the defendant that the 3rd defendant was dead and was replaced with a limited liability Company known asKwara Investment and Property Development Company Limited, incorporated on May 5, 1999 was admitted by the claimants in this case.

  1. Besides, in paragraph 1.02 of the final written address of the claimants at page 794 of the record, their counsel submitted inter alia this way:

It is the defendant’s case before the court that before institution of this action in 1999, the 3rd defendant had been liquidated and therefore dead. This action started in 2001, how then can the claimants give a “dead 3rd defendant” a one month notice? —-

We finally submit that the 3rd defendant is a nominal party that it exclusion by way of striking out does not affect the resolution and determination of constitutional issue in dispute for resolution/determination before this court.

In my considered view, the above quoted submissions of the claimants’ counsel confirm that the claimants have conceded that the 3rd defendant died before they instituted this action and I so hold. It is trite that Dead men or dead juristic persons are no longer legal persons in the eyes of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interests, they can neither sue nor be sued, see the case of C.C.B (Nig.), Plc. v. O’Silvawax Int’l Ltd [1999] 7 NWLR (Pt. 609) 97 CA. Therefore, I hold that 3rd defendantcannot be sued legally as it was already liquidated/dead before the commencement of this case and its name is accordingly struck out.

  1. On Whether the Claimants gave Pre-Action Notice Before Initiating this Suit,

The defendants’ counsel submitted that by section 32 of the Kwara State Investment and Development Corporation law, No 11 of 1995 and No 4 of 2006; no suit is to be commenced against the Corporation until one month at least after written notice to commence the action has been served on the Corporation (the Kwara Investment and Property Development Corporation) by the intending plaintiff or his agent. The defendants maintained that the Claimants did not served the 3rd Defendant with any pre-action notice before instituting this action, pursuant to Section 32 of the Kwara Investment and Property Development Corporation law No 11 of 1995, No 4 of 2006.

Section 32 of Kwara Investment and Property Development Corporation law; No. 11 of 1995, No. 4 of 2006 provides that:

No suit shall be commenced against the Corporation until one month at least after written notice to commence the same shall have been served upon the Corporation by the intending plaintiff or his agent.

However, counsel to the claimantscontended that the defendants had argued that the 3rddefendant had been liquidated and dead, hence, it is not possible to serve the pre-action notice on a dead party; see paragraph 1.02 of the final written address of the claimants at page 794 of the record. He argued further that this objection of the defendants’ was brought pursuant to Kwara Investment and Property Development Company Limited Law 2006; a law that was made after the commencement of this action and that this Law cannot have retrospective effect on their case as their cause of action arose in 1998 and that they initiated this action in year 2001.

  1. Nevertheless and contrary to the submission of counsel to the claimants that it is not possible to effect service on the liquidated/dead 3rddefendant before the institution of this case; the 3rd defendant was a corporation created by the Kwara State Government; and so,the pre-action notice could have been served on the dead Corporation through the Attorney General of Kwara State if the claimants actually wanted to serve the Corporation. This is because, in a claim for specific performance of a contract between a person and the Government or Government ministry, the proper defendant is the Attorney-General of that Government, since the Attorney-General is statutorily conferred with the capacity to sue and be sued, for and on behalf of the government. Moreover, it is also a legal personality under the constitution. See the case of FGN v. InterstellaComms, Ltd [2015] 9 NWLR (Pt. 1463) CA 1 at 28-29 paragraphs H-A Abba Aji JCA and Ezomo v. Attorney-General, Bendel State [1986] LPELR-1215(SC). Moreover, theKwara Investment and Property Development Corporation law; No. 11 of 1995, No. 4 of 2006 was not made in year 2006 but it commenced on September 21, 1995 and its short title is: “Kwara Investment and Property Development Corporation law, 1995”; See section 1 of this law. Therefore, I find and hold that the requirement for pre-action notice was in force before the cause of action of the claimants accrued in 1998 and before this suit was filed in year 2001.

Order 3 Rule 23 (1) & (2) of the NICN (C.P.) Rules, 2017 provides that where a statute requires a pre-action to be served on the defendant before an action is filed, a copy of such notice shall be filed with the initiating processes and served on the defendants as well. No copy of any pre-action notice served on the 3rd defendant is before the Court and the argument of the claimants counsel in paragraph 1.02 of their final written address at page 794 of the record also confirms that the claimants did not serve pre-action notice on the 3rd defendant. In the circumstance, I find and hold that this action of the claimants is not competent, it is premature and; ordinarily, it ought to be struck out.

Nonetheless, because of the peculiar history of this case; that the cause of action accrued in in 1998, the action was filed at Kwara State High Court in 2001 and decided there. The matter went on Appeal and the Court of Appeal heard and ordered its re-trial by another Kwara State High Court judgebefore it was eventually transferred to this Court in 2013; I am of the considered view that substantial justice will be done if the merit of the case is also considered and resolved in this judgment along with the Court’s holding on the objection of the defendants to thecompetence of this suit.

 

  1. Were the claimants Public Servants at the Material time?

The issue of whether claimants were Public Servants and are entitled to pensions and gratuities under section 210 of the 1999 Constitution of the FRN (As Amended) has been settled between the parties before the Court of Appeal in its judgment of June 9, 2011.  A CTC of this judgment is before the Court as Document C9;see pages 665-692 of the record. At page 23 of the Judgment, which is page 677 of the record; Hon. Justice Sotonye Denton-West stated thus:

— I will pause and ask under which of this two sections does the claims of the Appellants fall. The main point is, are the Appellants Public servants? Same was argued and agreed by the two parties that they were public Servants —

Shorn  of any embellishment, section 210(1) and (2) provides thus, 210 (1) ‘subject to the provision of subsection (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law’.

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

By the provisions of sections 173 and 174 Evidence Act, 2011;see also section 123 of the Evidence Act, the Judgment of the Court of Appeal is a conclusive prove of the facts and issues raised therein. Therefore, after the issue of status of the claimantswas argued and agreed to by the two parties at the Court of Appealthat the claimants were Public Servants,I accordingly find that this issue has been settled by the parties before the Court of Appeal and that this Court cannot posit anything to the contrary. Consequently, Ihold that the claimants were Public Servants in the public service of Kwara State at the timethat their employments were determined;going by provisions of section 318 (1) (e) of the Constitution of the FRN, 1999(as Amended).In addition, I hold that the claimants are entitled to their pensions and gratuities under section 210 of the Constitution of the FRN, 1999 (As Amended) but asregulated by law; which is the Kwara Investment and Property Development Corporation Law, 1995.

  1. Whether it is the Gateway Insurance Company Ltd or the Kwara State Government that is responsible for the payment of the claimants’ pensions

Section 210 (1) and (2) of the Constitution of the FRN, 1999 as amended provides:

(1) Subject to the provision of subsection (2) of this section, the right of a person in public service of a State to receive pension or gratuity shall beregulated by law.

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

The question here is: which law governs or determines the payment of the claimants’ pensions? Parties are in agreement that the claimants (except the 4th claimant) were employed by the defunct Kwara State Investment Corporation but later absorbed as staff of the 3rd Defendant; see paragraphs 2, 3, 6, 7, 8, 9, 10, 11, 12 and 13 of the Amended Statement of Facts and paragraphs 1, 4, 5, 6,7 and 8 of the Statement of Defence.It is also not in dispute that the 3rd defendant (Kwara Investment and Property Development Corporation) had its own law; which is the Kwara State Investment and Property Development Corporation Law, 1995. Therefore, the claimants were Public Servants in the Public Service of Kwara Stateaccording to the provision of section 318 (1) (e) of the 1999 Constitution as Amended;because they were staff of a statutory corporation owned by Kwara State Government (the 3rd defendant before it was liquidated).

It is trite that he who asserts the existence of a fact or set of facts, must prove those facts through evidence by himself or his witnesses, see the cases of Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083;Agboolav. UBA [2011] All FWLR (Pt. 574) 74 SC andAlade v. Alic Nig. Ltd [2011] All FWLR (Pt. 563) 1849. See also, the provision of section 131(1) of the Evidence Act. In their attempt to prove their case on this issue; the claimants tendered 9 Documents listed at pages 659 of the record. These are their letters of employments; Documents C1, C3, C5& C7; the letters determining their employments; Documents C2, C4, C6& C8 and the CTC of the Court of Appeal’s judgment, Document C9. On the other hand,the defendants tendered five Documents in evidence as Documents D1, D2, D3 and D4 to D4(c). None of these documents states whether it is the Gateway Insurance Company Ltd or the Kwara State Government thatis to pay the gratuities and pensions of the claimants at the appropriate time.

The law is that when a Court is to determine the rights, duties and obligations of the parties to a contract, that Court must respect the sanctity of the contract and not to allow a term on which there was no agreement to be read in to the contract; see Idufuekov. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) SC 96 at 115 paragraphs C-E. This means that the respective rights, duties and obligations of the parties in this casewill be determined based on the contract of service between them as stated in the claimants’ letters of employment; Documents C1, C3, C5 & C7 and the provisions ofthe law that established the 3rd defendant, which is the Kwara Investment and Property Development Corporation Law, 1995.

  1. Has the claimants proved that it is the Kwara State Government that is responsible for the payment of their pensions?

The claimants’ position is that it is the Kwara State Government that is responsible for the payment of their pension, citing in support, the provision of section 21 (a) ofKwara State Investment Corporation Law No 4 of the 1971. Section 21 states that the Corporation may:

  1. Grant pensions, gratuities or retiring benefits to any of the officers or employees of the corporation and to their dependants and may require officers and employees to contribute to any pension or contributory scheme.

This cited law does not specify that it is the Kwara State Government that is to pay gratuities and pensions to the claimants; even though this Court has held above that the claimants were Public Servants in the Public Service of Kwara State at the material time. In the circumstance, I find and hold that the claimants have failed to prove to the satisfaction of the Court that it isthe Kwara State Government that is responsible for the payment of their gratuities and pensions and not the Gateway Insurance Company Ltd.

Besides, the defendants argued that it was the Gateway Insurance Company Ltd. that is responsible for the payment of the claimants’ pensions and not the Kwara State Government. In support of this position, the defendants put in evidence and relied correspondences on remittances on the contributory pensions between Kwara Investment Company Ltd; (the original employer of the claimants) and the Gateway Insurance Company Ltd. These are Documents D4, D.4(a) to D4(l) before the Court; see pages 715 to 730 of the record.From the contents of these documents, the defendants have shown the Court satisfactorily that they remitted contributory pensionson behalf of the claimants to the Gateway Insurance Company Ltd, as their names are included in the lists of the 3rd defendant’s employees on behalf of whom those remittances were made to Gateway Insurance Company Ltd. See the lists at pages 717, 725 and 728 of the record.

In addition, section 29 (1) and (2) (a) of Kwara Investment and Property Development Corporation Law, 1995 states that:

(1)        The Corporation may grant pensions, gratuities and retiring benefits to servants of the Corporation or their dependants subject to such rules as may from time to time be made by it under the provision of subsection (2).

(2)         The Corporation may by rules make provisions for:

(a)        Insurance, pension, gratuities and retirement schemes to be granted to servants of the Corporation or their dependants.

  1. None of the parties, particularly the claimants before the Court exhibited any rule or set of Rules made by the 3rddefendant on payment of gratuities and pensions to its servants/staff/employees in compliance with the provisions of section 29 (1) and (2) (a) of Kwara Investment and Property Development Corporation Law, 1995.

I quite agree with the claimants’ contention that payment of gratuities and pensions to ex- employees by the Establishment they worked with is guaranteed by the Constitution of the FRN, 1999 as amended. However, section 210 of this Constitution states that the right of a person in public service of a State to receive pension or gratuity shall be regulated by law. In my considered view, the law being referred to in the Constitution here is the Law applicable to the claimants’ employer; which is the Kwara Investment and Property Development Corporation Law, 1995; I so find and hold. Section 210 (2) of the Constitution of the FRN, 1999 as amended states further that any benefit to which a person is entitled in accordance with or under such law referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as in permissible under any law.This law requires that the defendant make rules to govern how the gratuities and pensions being claimed are to be paid but such set of rules are not before the Court.

Nonetheless, the defendants have shown the Court that the contributory pension deductions that the 3rd defendant made on behalf of the claimants were remitted to Gateway Insurance Company Ltd and that it is this Insurance Company that is to pay pension to the claimants; in the absence of any other evidence to the contrary, I am satisfied that it is the Gateway Insurance Company Ltdthat has the responsibility of paying pensions to the claimants and I so hold.

  1. On the whole, I hold and order as follows:
  2. I hold that Documents C.3 to C.8 were properly admitted in evidence for the claimants.
  3. I hold that none of the parties complied with the Rules of this Court in prosecuting this case, but in doing substantial justice in this case, the parties’ none compliance with the Rules of this Court is hereby excused by the provisions of Order 5 of the NICN (Civil Procedure) Rules, 2017 because of the peculiar nature of this case.

iii.               I further hold that the 2nd and 3rd defendants are not competent parties before this Court and their names are struck out as defendants in this case.

  1. I hold that because the claimants did not give pre-action notice to the 3rd defendant before initiating this action, this action is premature and so, the Court has no jurisdiction to adjudicate on it.
  2. I hold that because of the peculiar nature of this case, it is expedient to also resolvethe merit of this case, even though I have held that this Court has no jurisdiction of this case.
  3. I hold that the claimants were Public Servants when they were in the employment of the 3rd defendant before its liquidation and so, they are entitled to gratuities from the defendant and pensions from Gateway Insurance Company Ltd.

vii.             I hereby order the defendant to calculate the gratuities of the claimants according to the terms of their employment and pay to them within 30days from today.

viii.          I hereby order the defendant to ensure that the claimants are paid arrears of their pensions from when it accrued and to continue paying same forthwith.

Judgment is entered accordingly.

I make no order as to cost.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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