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JAMES O. MESOLE & 2 ORS -VS- KOGI STATE GOVERNMENT & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONORABLE JUSTICE E. N. N.  AGBAKOBA

 

DATED 27TH MARCH,  2017                                             SUIT NO: NICN/ABJ/132/2016

 

BETWEEN:

  1. JAMES O. MESOLE
  2. JOHN A. AUSA                                    CLAIMANTS
  3. DR. (MRS) SABINA L. ATTAH (MNI)

(Suing for themselves and on behalf of the

Association of Retired Heads of Service and

Permanent Secretaries, Kogi State)

 

AND

  1. KOGI STATE GOVERNMENT
  2. ATTORNEY-GENERAL AND COMMISSIONERDEFENDANTS

     FOR JUSTICE, KOGI STATE.

REPRESENTATION:

  1. S. AKPALAfor the Claimant withD. O. OJOTUNDE
  2. O. SALEHDirector Civil Litigation for all the defendants withH. E. YUSUF, DDPP, A.O. SULEMEIN Esq. DD.

J U D G M E N T

The Claimants instituted this action vide an Amended Originating Summons filed on 2nd February, 2017 accompanied by a 35 paragraph praying for the determination of the following questions;

  1. WHETHERthe Claimants are entitled to payment to their members one hundred percent (10%) harmonization of their respective monthly pensions as of right following the General Salary Review/Implementation of the National Minimum Wage to the Public Servants in the Public Service of Kogi State effective from the 1st day of December, 2011, the date when the Defendant implemented the last National Minimum Wage for its workers;

  1. WHETHERby virtue of the provisions of Section 210(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Claimants are entitled as of right to have their pensions automatically harmonized with those of their serving counterparts in the State Public Service upon the General Salary Review Undertaken/Implemented by the Kogi State Government for its workers on the 1 day of December, 2011, also known as the Implementation of the National Minimum Wage.

  1. WHETHERthe failure of or refusal by the 1st Defendant to fully harmonize (100%) the Pensions of the Claimants with those of their serving counterparts in the Public Service of Kogi State since the 1st day of December, 2011, does not amount to a transgression/violation of the Nigerian Constitution as enshrined in section 210(3) thereof.

  1. WHETHERthe Claimants are entitled to immediate harmonization and payment to them of the remaining 50% of their pension with their arrears with effect from the 1st day of December, 2011, the date when the salaries of their serving counterparts in the Public Service of Kogi State were reviewed upwards, the 1st 50% harmonization having been earlier approved and paid by the V Defendant to members of the Claimants, with effect from the 1st day of October, 2012; and

  1. WHETHERmembers of the Claimants who retired from the Public Service of Kogi State are entitled to be paid by the Defendant their severance gratuities bearing in mind the Provisions of Schedule II of the Law on the Remuneration of Certain Public and Political Office Holders in Kogi State and the extant Federal and State Government Circulars on the subject matter.

Upon the determination of the said questions, the claimant is claiming for –

  1. A declaration that the Claimants are entitled to payment to their members one hundred percent (100%) harmonization of their respective monthly pensions as of right following the General Salary Review/Implementation of the National Minimum Wage to the Public Servants in the Public Service of Kogi State effective from the 1stday of December, 2011;

  1. A declaration that by virtue of the provisions of Section 210(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the

Claimants are entitled as of right to have their pensions automatically harmonized with those of their serving counterparts in the State Public Service upon the General Salary Review Undertaken/Implemented by the Kogi State Government for its workers, also known as the implementation of the National Minimum Wage of 1st December, 2011;

iii. A declaration that the failure of or refusal by the 1st Defendant to fully harmonize (100%) the Pensions of the Claimants with those of their serving counterparts in the Public Service of Kogi State since the 1st day of December, 2011, amounts to a transgression/violation of the Nigerian

Constitution as enshrined in section 210(3) thereof.

  1. A declaration that the Claimants are entitled to immediate harmonization and payment to them with retrospective effect of the remaining 50% of their pensions with arrears, with effect from the 1 day of December, 2011, the date when the salaries of their serving counterparts in the Public Service of Kogi State were reviewed upwards, the 1st50% harmonization having been earlier approved by the 1stDefendant and paid to members of the Claimants, with effect from 1 day of October, 2012.

  1. A declaration that members of the Claimants are entitled as of right to severance gratuity in line with Schedule II of the Remuneration of Certain Public and Political office Holders in Kogi State Law, 2002, and the extant circulars on the subject.

  1. An Order directing the defendants to pay to each of the claimants accumulated arrears of the 50% harmonization from the date of filing this suit on the 9th day of November, 2015, to the date of execution of the judgment.

Claimants’ Case

Majority of the members of the Claimants were all confirmed and were permanent and pensionable career civil servants who were deployed to do the spade work for the smooth take-off of Kogi State upon its creation on the 27th day of August, 1991. When they were variously deployed from both Kwara and Benue States to Kogi State upon its creation, majority of them were to take shelter under make-shift arrangements, with some sleeping in jam-parked premises in circumstances where one toilet was being shared by twenty officers and their families. The suffering and agonies of these officers persisted until the first quarter of the year 1992 when the first civilian Government hurriedly constructed some quarters, such as the DG Quarters (which served as the first Commissioners’ Quarters) Lokongoma Housing Estate, Phases 1 & 2. The construction of these quarters went a long way to reduce the agonies of these pioneer public servants

Members of the Association who retired at various times formed the Association of Retired Heads of Service and Permanent Secretaries, not only to press for the welfare of their members, but also to make necessary input and suggestions as to how best the state they so much laboured for, could be governed; each of them having risen to the pinnacle of their career either as Head of Service or Permanent Secretary and retired such as Elder States Men.

The claimants in their WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS in respect of QUESTIONS A, B, C & D

 

Question a: WHETHER the Claimants are entitled to payment to their member one hundred percent (100%) harmonization of their respective monthly pensions as. of right following the General Salary Review/Implementation of the National Minimum. Wage to the Public Servants in the Public Service of Kogi State effective from the ft day of December, 2011, the date when the 1st Defendant implemented the last National Minimum Wage for its workers;

 

Question b: WHETHER by virtue of the provisions of Section 210(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Claimants are entitled as of right to have their pensions automatically harmonized with those of their serving counter-parts in the State Public Service upon the General Salary Review Undertaken/Implemented by the Kogi State Government for its workforce on the 1st day of December, 2011, a/so known as the Implementation of the National Minimum Wage.

 

Question C: WHETHER the failure or refusal of the 1st Defendant to fully harmonize (100%) the Pensions of the Claimants with those of their serving counterparts in the Public Service of Kogi State since the 1st day of December, 20.11, does not amount to a transgression/violation of the Nigerian Constitution as enshrined in section 210(3) thereof

 

Question d: WHETHER the Claimants are entitled to immediate harmonization and payment to them of the remaining 50% of their pensions with their arrears with effect from the 1st day of December, 2011, the date when the salaries of their sieving counterparts in the Public Service of Kogi State were reviewed upwards, the 1st 50% harmonization having been earlier approved and paid by the 1st Defendant to members of the Claimants, with effect from the 1st day of October, 2012.

Learned Counsel to the Claimant A. S. Akpala, submitted that the 1st Defendant had no legal reason not to review upwards the pensions of the members of the Claimants for a whole period of 15-years, more so after the implementation of the National Minimum Wage in Kogi State on the 1st day of December, 2011. Furthermore, that as it has been held in a long line of cases that the cardinal or golden rule of interpretation of statutes is that the words of the statute must prima facie be given their ordinary meaning without importing into them what is not there. Also, that where the words used in an enactment are plain in the face of it, effect must be given to their literal meaning. Relying on the authorities of  THE HON. JUSTICE E.O. ARAKA V. THE HON. JUSTICE DON EGBUE. (2003) 10 SCM 178, VICTOR ADEGOKE ADEWUMI & ANOR V. ATTORNEY GENERAL OF EKITI STATE & 6 ORS (2002) 2 SCM , BUHARI & ANOR V. OBASANJO & ORS (2005) 9 SCM 1 and ISSAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (201.1) 2-3 SC. (PT.1) 46.Submitting that questions a-d be answered in the affirmative and against the Defendants.

And in response to Question E: WHETHER members of the Claimants who retired from the Public Service of Kogi State are entitled to be paid by the 1st Defendant their severance gratuities bearing in mind the Provisions of Schedule II of the Law on the Remuneration of Certain Public and Political Office Holders in Kogi State and the extant Federal and State Government Circulars on the subject matter. The Claimants Counsel, submitted that by virtue of the provisions of Schedule II of the Remuneration of Certain Public and Political Office Holders in Kogi State, the aforementioned 50 members of the Claimants are entitled to be paid to them 300% of their total annual emolument upon their successful disengagement from service under Schedule II of the Law.

The Defendant filed a 9 paragraph COUNTER AFFIDAVIT on 30th January, 2017, deposed to by Apeh Ejurah.

Defendants Case.

The case of the defendant is that the implementation of the minimum wage to the public servants in the public service of Kogi State took effect from 1/12/2011.That the claimants are entitled to a review of their pension and not to a hundred percent harmonization of their pension as being claimed by them. That the State Government reviewed the pension of the claimants as per Exhibit 12 attached to the originating summons. And that the emolument of the claimant association are not consolidated as claimed by them neither is it part of the rules governing retirement that pensions are to be reviewed 5 years after retirement if there is no general salary review or that the claimants are entitled to have their pensions automatically harmonized upon every salary review and that it is not correct that there has not been a review of pension prior to the 2012 salary review  and that is it not correct that automatic harmonization of pensions is a constitutional right. The defendants’ maintain that the applicants are not entitled to the reliefs being sought by them and that it is not in the interest of justice to grant this application as granting same will prejudice the Respondent.

They also filed a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT wherein they raised the sole ISSUE

 

Whether the claimants are entitled to the reliefs sought.

Learned Counsel to the Defendants J. O. Saleh Director Civil Litigation of Kogi State, submitted that in a civil proceeding the onus is forever on the claimant to establish his case and that it does not shift to the defendant unless he establishes his case. ORLU V. GAGO ABITE (2010)1 SCNJ 322 @ 324. Furthermore, that the burden is on the claimant to prove that they are entitled to have their pensions harmonized one hundred percent with those of their counter parts who are still in public service. MRS. OLOWASEUN AGBOOLA V. UBA PLC & 2 ORS; Section 135 of the Evidence Act.

Section 135 of the Evidence Act and held that;

“By virtue of Section 135 of the Evidence Act Supra, he who assets must prove; f To discharge this burden a party must adduce cogent and credible evidence that has direct relevance to the matter in controversy and it is only when he does that he discharges the burden.”

Submitting that the claimant have not been able to prove that they are entitled to the reliefs being sought.

Defendants’ Counsel also submitted that S.210(1) of the Constitution of the Federal Republic of Nigeria guarantees the right of a person in public service to receive pension/gratuity which shall be regulated by law. And that by virtue of that S. 210(3) which provides as follows:

“Pensions shall be reviewed every five years or together with any State Civil Service Salary reviews whichever is earlier”..

Submitting further that S.210(3) of the Constitution does not guarantee that the Claimants pensions should be harmonized with those of their serving counterparts in the State Public Service upon the implementation of the National Minimum Wage of 1st December, 2011. That Section provides for a review and not harmonization. To the defendants the principle of law is that what is expressly stated in an enactment excludes all other things not stated and that one cardinal principle of interpretation is to give the words of the statute their ordinary grammatical meaning. OBASEKI TSC IN EGBE V. ALHAJI & ORS (19901 NWLR (PT. 128)546 AT581; NIWA V. G.T. ITF (2008)7 NWLR (PT. 1085) 108 AT 120 PARAS E-G.

It is Counsel’s submission that by Section 4 of the Pensions (Northern Nigeria New Officers) Law COP 90 Laws of Northern Nigeria, 1963, pensions or gratuity granted under the law are to be computed in accordance with the law or regulations in force at the date of a public officer’s retirement.

For clarity the section is reproduced hereunder:

“Subject to the provisions of this law and regulations there under g pension or gratuity granted under this law shall be computed in accordance with the law or regulations in force at the date of a public officer’s retirement, due regard being had to existing rights” underlining mine.

Contending, that the pensions of the Claimants were computed based on the laws in existence at the time/point of their retirement. The Constitution by S.210 (3) guarantees a review of such pensions periodically; that the pensions of Claimants were properly computed in accordance with the relevant laws governing such computation at the point of their retirement arguing further that the defendants have reviewed such pensions as provided by the constitution. Urging the court to dismiss the claimant’s claim as same is unmeritorious.

The claimants in reaction filed a REPLY ON POINTS OF LAW on 23rd January, 2017.

On the Defendants submission in their Written Address in opposition to the Claimants’ Originating Summons have submitted that the word used in Section 210(3) of the Constitution of the Federal Republic of Nigeria, 1999, As Amended, is “Review”, and that that verb does not approximate to “Harmonization” which the Claimants are claiming, counsel submitted that the word “Review” used in Section 210(3) of the aforementioned Constitution should be interpreted in the context of the entire section 210 of the Constitution, otherwise, the object and purpose of that section will be defeated. That there is no doubt that there are differences between the two words “harmonization” and “review”. Bryan Garner’s Black’s Law Dictionary, 7th Edition at page 722

 

It is counsel’s submission that if the literal meaning of the word review as provided for under Section 210(3) of the 1999 Constitution were to be used in the interpretation of the Section, it has the propensity of doing Violence or distortion to the general meaning and intendment of the Section. By “review”, the pensions of officers may be adjusted either up-wards or downwards. FABIYI .JSC in the case of SHELIM & 1 OR V. GOBANG (2009) VOL.6, PT.269 KLR (Kings Law Reports) 1719 at 1728 PARAS A-C. Submitting that one of the canons of constitutional interpretation is that a statute cannot be interpreted to take away existing or vested rights. Furthermore, that it is generally the accepted rule of construction that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning. This means the word “review” is used in the context of Section 210 of the Constitution in its technical, and not the ordinary meaning. ATTORNEY GENERAL OF THE FEDERATION AND OTHERS VS. ATIKLJ AND OTHERS (VOL.2) CONSTITUTIONAL LAW CLASSICUS (dC), Pg. 218.

 

It is claimant’s counsel’s contention that in the interpretation of the Constitution, the meaning which will best carryout its object and purpose should be preferred. TINUBU VS. 1MB SECURITIES PLC, (VOL.2) CLC. He argued that the use of the word “review” in Section 210 has created a situation of “mischief” and due regard should be taken to ensure that the mischief which is intended to deter is arrested. MOBIL VS. FBIR (1977) 3 S.C. 53. Submitting further that the term “review” as used is synonymous with “Harmonization” and that a liberal interpretation should be given to the Nigerian Constitution so as to carry out the intention of its framers. YUSUF GARBA & ORS VS1 UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18), 550; SAVANNAH BANK OF NIG. & ANOR VS. AMMETO AJILO & ANOR (1987) 2 NWLR (PT.57) 42.

It is counsel’s submission that one of the basic principles in the interpretation of our Constitution and the statutes is that a Lawmaker will not be presumed to have given a right in one hand and taken it in another. NNAEMEKA — AGU (JSC) (as he then was) in the case of OSADEBE V. A.G BENDEL STATE (1991) SCNJ, 102 AT 218.Furthermore, that the words of the Constitution are not to be read by stultifying narrowness. IGUH, JSC (as he then was) in the case of 1MB V. TIN UBU (2001) 45 WRN 1 AT 19.

 

On the 6th February 2017 the parties adopted their written addresses and adumbrated their respective processes. During adumbration Learned Counsel for the claimants’ drew the court’ attention to their exhibits inviting the court to draw therefrom the disparity  in the pension of the two categories of pensioners before the court  arguing that the differential is against public policy.  The claimants relying on Exhibit 12 urging the court to consider this a reinforcement of the defendants commitment to their cause following the 100% increase in salaries that took place in Kogi state in 2012, the claimant went on that following the salary increase, the  pensions of their members was only increased by 50% and they have been calling on the state government to harmonize their pensions since then.

The defendant during adumbration canvassed the argument that Section 210 of the 1999 CFRN (as amended) was clear and should be given its ordinary meaning by the court. Submitting that the claimants pensions were reviewed in October 2012 by 50% and that by virtue of Section 210 of the Constitution and that claimant were not due for another review seeing as it has not been up to 5 years since that date. Arguing that this suit is premature and urged the court to hold that the case lacked merit.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is the issue as formulated by the defendants:

Whether the claimants are entitled to the reliefs sought.

 

The claimants are seeking the following reliefs

  1. A declaration that the Claimants are entitled to payment to their members one hundred percent (100%) harmonization of their respective monthly pensions as of right following the General Salary Review/Implementation of the National Minimum Wage to the Public Servants in the Public Service of Kogi State effective from the 1stday of December, 2011;

  1. A declaration that by virtue of the provisions of Section 210(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Claimants are entitled as of right to have their pensions automatically harmonized with those of their serving counterparts in the State Public Service upon the General Salary Review Undertaken/Implemented by the Kogi State Government for its workers, also known as the implementation of the National Minimum Wage of 1 December, 2011;

iii. A declaration that the failure of or refusal by the 1 Defendant to fully harmonize (100%) the Pensions of the Claimants with those of their serving counterparts in the Public Service of Kogi State since the 1st day of December, 2011, amounts to a transgression/violation of the Nigerian

Constitution as enshrined in section 210(3) thereof.

  1. A declaration that the Claimants are entitled to immediate harmonization and payment to them with retrospective effect of the remaining 50% of their pensions with arrears, with effect from the 1stday of December, 2011, the date when the salaries of their serving counterparts in the Public Service of Kogi State were reviewed upwards, the 1st50% harmonization having been earlier approved by the 1st Defendant and paid to members of the Claimants, with effect from 1st day of October, 2012.

  1. A declaration that members of the Claimants are entitled as of right to severance gratuity in line with Schedule II of the Remuneration of Certain Public and Political office Holders in Kogi State Law, 2002, and the extant circulars on the subject.

  1. An Order directing the defendants to pay to each of the claimants accumulated arrears of the 50% harmonization from the date of filing this suit on the 9th day of November, 2015, to the date of execution of the judgment.

The claimants in response to their four questions A, B, C  and D, which summate to whether the claimants were entitled to 1. An 100% increase of the pensions as at 2011 and 2.should the increase not be automatic as with that to workers salaries, 3. Is the failure of the state government to increase their pensions with the salary increase not a violation of the constitution and 4 having received a 50% increase are they not entitled to the remainder another 50% increase.

Whilst the claimants answer all the above questions in the affirmative, the position of the defendants is that the burden is on the claimant to prove that they are entitled to have their pensions harmonized one hundred percent with those of their counter parts who are still in public service and that the claimant have not been able to prove that they are entitled to the reliefs being sought. Arguing that although S.210(1) of the Constitution of the Federal Republic of Nigeria guarantees the right of a person in public service to receive pension/gratuity which shall be regulated by law. And Pensions shall be reviewed every five years or together with any State Civil Service Salary reviews whichever is earlier S. 210(3) the Constitution does not guarantee that the Claimants pensions should be harmonized with those of their serving counterparts in the State Public Service upon the implementation of the National Minimum Wage of 1st December, 2011. Arguing further that the claimants pensions were reviewed in October 2012 by 50% and the claimant were not due for another review until 5 years from October 2012 S210 (1) 1999 CFRN (as amended).

Now whereas I agree with the defendant that the burden lies on the claimant to prove their entitlement to the reliefs they claim and considering that Section 210 of the constitution provides that:

  1. Protection of pension rights

(1)  Subject to the provisions 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 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.

(3)  Pensions shall be reviewed every five years or together with any State civil service salary reviews, which ever is earlier.

(4)  Pensions in respect of service in the public service of a State shall not be taxed

And although the claimants did not tender any evidence as to the nature or what per-centage increase of the civil servants salaries was achieved by the implementation of the National Minimum Wage of 1st December, 2011 in the state, the law, the constitution has provided that pensions should be reviewed every five years or that pensions be reviewed together with the state civil service salary reviews.

In 2011 the government of Kogi State implemented the Minimum wage which had the effect of reviewing the salary structure of the state as the Learned Authour and Jurist BB Kanyip in his publication at the 52nd Nigeria Bar Association (NBA) Conference Abuja ‘Labour Rights, the Democratic Process and the Nigerian Emerging Market  stated at page 23 that “the introduction of minimum wage which interferes directly with the normal process of wage determination in the market. The defendants have argued that burden is on the claimant to prove that they are entitled to have their pensions harmonized one hundred percent with those of their counter parts who are still in public service, that being the case and with the public servant receiving an 100% salary increase the question then arises are the claimant entitled to the same per-centage increment in their pensions and is the increment automatic with that of the public servants.

Section 210 (3) states that Pensions shall be reviewed every five years or together with any State civil service salary reviews, whichever is earlier, which without the conjunctive “or” would read

  1. Pensions shall be reviewed every five years or
  2. Pensions shall be reviewed together with any State civil service salary reviews,

Whichever is earlier.

I find and hold that the Constitution provides for a situation where pension reviews are done together with salary reviews or increments. And having considered the 2011 Minimum wage implementation a salary review as well as the use of the word “together” which by the oxford dictionaries.com 2017 means “with”, or “in proximity to another”, “so as to touch or combine”, “so as to be in agreement” and “at the same time” this means the pensions are required to be reviewed at the same time as salaries are reviewed by the Constitution. I answer question A and B in the affirmative.

The defendants have argued that pensions are regulated by law, and this court not has been presented with any law legitimizing the 2012 50% increase in pension and considering the contents of Exhibit 12

Reproduced below:

S/GO/KGS/ADM/248/VOL. V/706                                                     12th August, 2015

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