Kehinde Akadiri & 2ORS -VS- Attorney General of the Federation

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: FEBRUARY 16, 2018

SUIT NO. NICN/LA/563/2017

BETWEEN

Kehinde Akadiri
Taiwo Akadiri
Olu Akadiri

(Suing as Administrators of Late Grace Fehintola Akadiri) – Claimants

AND

Attorney General of the Federation – Defendant

REPRESENTATION

Olumide Babalola, with O. E. Emehige, for the claimant.

O. Shobowale, Senior State Counsel, for the defendant.

JUDGMENT

The claimants are Court-appointed administrators of Late Mrs Fehintola Akadiri who was an employee of the Ministry of Defence for 27 years before her untimely death on 6th August 2005. The 1st and 2nd claimants are daughters of the deceased, while the 3rd claimant is the deceased’s widower. According to the claimants, upon the deceased’s death, they approached the 2nd defendant (there is no 2nd defendant in this suit) for reimbursement of her burial expenses via a letter dated 20th October 2009 (there is no such letter before the Court) but the 2nd defendant did not accede to their request. That upon repeated application for the benefits, they were paid the sum of N4,117,864.40 instead of N10,585,507 by an agency of the defendant and when they demanded for an explanation, they were informed that the computation for pension was only made for 5 years. That the defendant’s agents informed them that the benefits were computed using the provisions of the repealed Pension Decree of 1979. To the claimants, their fate should not be decided by a repealed law and so have approached this Court for redress.

On 16th November 2017, the claimants accordingly filed an originating summons supported by an affidavit with two exhibits and a written address praying for the determination of the following questions:

Whether or not by the interpretation and construction of section 5(2) of the Pension Reform Act 2014, the pension and/or other entitlements of the late Mrs Grace Fehintola Akadiri ought to be calculated with her full years of service.
Whether or not by the interpretation and construction of sections 5(2) and 8 of the Pension Reform Act 2014, there is a lacuna in the said law as to number of years to be used to compute the pension and/other entitlements of dead employees who were subject to the contributory pension scheme.
Whether or not regard cam be had to the provisions of the repealed Pensions Decree of 1979 in the computation of pensions and entitlements in Nigeria any more.

The reliefs the claims its seek from this Court are:

A declaration that late Mrs Grace Fehintola Akadiri was not exempted from the Contributory Pension Scheme.
A declaration that the pension entitlements of the late Mrs Grace Fehintola Akadiri ought not to be computed in accordance with the repealed Pensions Decree of 1979.
A declaration that the pension entitlements of the late Mrs Grace Fehintola Akadiri ought to be computed for her total number of years of service but not five years as provided under the repealed Pensions Decree of 1979.
Perpetual injunction restraining the defendant, its officers and/or agencies from computing the pension entitlements of the later Mrs Grace Fehintola Akadiri with 5 years instead of 27 years.
Such other consequential order(s) that his Honourable Court may deem fit to grant in the circumstance.

In opposition, the defendant filed on 4th November 2017 a counter-affidavit and a written address, to which the claimants filed a reply on points of law.

The claimants merely adopted the questions they posed in the originating summons as the issues for determination. On question (1), the claimant referred to section 5(2) of the Pension Reform Act 2014, which provides thus:

Any person who falls within the provision of subsection (1) of this section shall continue to derive benefit under the existing pension scheme in accordance with the formula provided for in the second schedule to this Act or under the provisions of the enabling law.

To the claimants, this provision is clear and ambiguous and makes the computation of pension subject to the number of years spent in service. The claimants then wondered why the defendant and its agent would then attempt to calculate pensions with 5 years instead of the number of years spent in service. On the nature of pension, the claimants referred to Martins v. Kolawale [2011] LPELR-4475(CA), urging the Court to resolve question (1) in their favour.

Regarding question (2), the claimants submitted that under the repealed Pension Decree 1978, beneficiaries of a deceased employee were only entitled to 5 years of the pension of the late relative. However, that under the current law, no such provision exists and the defendant’s agents have in some fora referred to same as lacuna which submission the claimants are opposing relying on Trade Bank Plc v. LILGC [2003] 3 NWLR (Pt. 806) 11. The claimants then submitted that the omission of such obnoxious provision requiring calculation of pension by 5 years has been impliedly repealed together with the whole decree by the subsequent Pension Reform Act 2014, urging the Court to so hold.

As for question (3), the claimant referred to Olafisoye v. FRN [2004] 4 NWLR (Pt. 864) 580, Ayorinde v. Oyo State Government [2007] All FWLR (Pt. 356) 709 at 724 – 725 and Enaboifo v. Umoren [2010] LPELR-4547(CA) and then submitted that it is crustal clear that a repealed law is no longer in existence and no further reference ought to be made to it. That hence, in the computation of any person’s pension or other entitlements, reference ought not to be made to the repealed Pension Decree 1979, urging the Court to resolve this issue in their favour. In conclusion, the claimants urged the Court to grant all tenor reliefs.

The defendant in reaction submitted two issues for determination, namely:

Whether in view of the circumstances of this suit, the claimant is right to sue the defendant where no cause of action has been disclosed against the defendant before this Honourable Court.
Whether after taking into careful consideration the facts and circumstances of this suit the claimants are entitled to any of the reliefs sought against the defendant in their originating summons.

On issue (1), the defendant submitted that for the claimants to succeed against the defendant, there must be a cause of action/specific claim, which the originating summons must disclose, against the defendant. On the meaning of cause of action, the defendant refereed to Rinco Construction Co. v. Veepee Industrial Ltd [2005] 9 NWLR (Pt. 929) 95, Mobil Producing (Nig) Unltd v. Ayeni [2010] 4 NWLR (Pt. 1185) 586, Shonubi v. Onafeko [2003] 12 NWLR (Pt. 834) 254 at 266 – 267, Egwu v. Araka [1988] 3 NWLR (Pt. 84) 598 and Labode v. Otubu [2001] 7 NWLR (Pt. 712) 256 at 279. That the claimants did not mention the defendant anywhere in their originating summons or affidavit in support as a participant to the acts which culminated in the alleged pension calculation and/or miscalculation; as such it cannot be said that the claimants have any cause of action against the defendant, referring to Adeaokan & ors v. Adegorolu & ors [1997] 3 NWLR (Pt. 493) at 37 – 38. That the position of the defendant as Chief Law Officer of the Federation cannot be overstated, and should not be abused. That as Chief Law Officer of the Federation, the defendant is only a necessary and proper party in cases involving the interpretation of the Constitution, the doctrine of separation of powers and any suit which poses as a threat to the independence of any arm of Government, citing Elelu Habeeb v. AG, Federation [2012] 13 NWLR (Pt. 1318) 423 SC at 511. That the instant case is not one one of these instances. That given the claims of the claimants, their grievance ought to go against the National Pension Commission (established under section 17(1) and (2) of the Pension Reform Act 2014 with power to sue and be sued in its corporate name) and the Ministry of Defence. Citing Afolayan v. Ogunrinde [1990] 1 NWLR (Pt. 127) 369, Ajayi v. Jolayemi [2001] 5 SC at 31 and Ogbebo v. INEC [2005] 15 NWLR (Pt. 48) 376 at 399, the defendant concluded on this issue by submitting that the defendant ought not be a party in this suit as the right involved is not of a pubic nature.

As for issue (2), the defendant submitted that since the claimant’s grievances are not specifically tailored against it, this Court ought to dismiss it. That the claimants did not place before the Court any evidence regarding the infringement of their rights by the defendant; as such the case should be dismissed, citing Fajemirokun v. CB (CI) Nigeria Lrd [2002] 10 NWLR (Pt. 774) 95 at 110. That because the claimants are seeking declaratory reliefs, the onus is on them to prove their entitlement to the declaratory reliefs, citing AG, Rivers State v. AG, Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 at 160 – 161 and INEC v. Atuma [2013] 11 NWLR (Pt. 1366) 494. Additionally, that the restraining injunction the claimants are partying for against the defendant, relief (4), cannot avail the claimants as computation of pension entitlements is not an action that is in furtherance or in accordance with the constitutional or statutory duties of the defendant. The defendant concluded by urging the Court to dismiss the claimants’ case.

In replying on points of law, the claimants submitted that against the deposition of the defendant that there was no prior “communique” from the claimants to the defendant before they sued, there is no law that mandates the claimants to write to the defendant before approaching this Court for the determination of their rights, citing Nigercare Development Co. Ltd v. Adamawa State Water Board [2008] 9 NWLR (Pt. 1093) 498 and Ebonyi State University v. Etteng [2012] LPELR-19973(CA). That the issues raised in this suit are purely questions of law which only the Court can decide, citing Ogunleye v. Registered Trustees of World Mission Agency Incorporated [2017] LPELR(CA) and Alhaji Abba Gana Terab v. Maina Lawan [1992] LPELR(CA).

On the propriety of suing the Attorney General of the Federation for a matter that concerns an agency of the Federal Government, the claimants referred to AG, Anambra State v. AG, Federation [2007] All FWLR (Pt. 379) 1218 at 1249 – 1250, FAAN v. Bi Courtney Ltd [2011] LPELR-19742(CA) and AG Kano v. AG Federation [2007] 6 NWLR (Pt. 1029) 164 at 192, and then submitted that the agencies complained of are Federal Government agencies and the Attorney General of the Federation was sued in those cases just like it is in the instant case, urging the Court to hold that the defendant is a proper party in the instant suit.

On the defendant’s technical admission of the issues raised by the claimants, the claimant submitted that it appears that the defendant avoided all the issues they raised regarding the provision of the Pension Reform Act calling for interpretation and then formulated their own issues, which are extraneous and outside of the claimants’ case, citing NJC v.Aladejana [2015] ALL FWLR (Pt. 772) 1798. That since the defendant did not controvert the claimants’ issues, the claimants’ issues should be deemed admitted, citing Ugboaja v. Akintoye-Sowemimo [2008] 16 NWLR (Pt. 1113) 278, Federal Ministry of Commerce and Tourism v. Chief Benedict Eze [2006] 2 NWLR (Pt. 964) 221 and Nwankwo v. Yar’Adua [2010] 12 NWLR (Pt. 1209) 518.

COURT’S DECISION

In considering the merit of the case, I must point out that this is a very clumsy case. In paragraph 8 of the affidavit in support of the originating summons, the claimants referred to “the 2nd Defendant”. There is no 2nd defendant in this suit. The claimants sued only one defendant. In same paragraph 8, the claimants referred to “a Letter dated 20th October 2009”. There is no such letter before the Court given that none was attached as an exhibit. The claimants in their supporting written address referred to the old Pension Decree in some cases as one of 1979 and in others as one of 1978. See the reliefs of the claimants and paragraphs 16 and 10 of the written address. In framing the questions for determination, the claimants referred in question (2) to section 5(2) and 8 of the Pension Reform Act 2014 and then asked the Court to determine whether there is a lacuna in the said law as to the number of years to be used to compute the pension and/or other entitlements of dead employees who were subject to contributory pension scheme. To start with, even if the Court were to find, and hence agree with the claimants, that there is a lacuna in the law, the claimants did not disclose to the Court what should thereby happen. Secondly, all through the written address of the claimants, the provision of the said section 8 was not quoted or even referred to by the claimants. Thirdly, question (2) is framed in a very general sense. It talks of dead employees, not the deceased Mrs Grace Fehintola Akadiri, the subject matter of the instant suit. Do all dead employees have the same peculiarity of late Mrs Grace Fehintola Akadiri that an answer to question (2) in terms of all employees would necessarily mean an answer for Mrs Grace Fehintola Akadiri’s circumstance? As it is, question (2) is more or less left to hang. It is vague and means little or nothing. Adegbuyi v. APC & ors [2014] LPELR-24214(SC), relying on National Bank of Nigeria v. Alakija [1978] 9 – 10 SC 59, it was held that the originating summons procedure is not for causes in which facts remain hostile and in conflict. The procedure is ideal for the determination of short and straight forward questions of construction and interpretation of documents or statutes. It is never the applicable procedure in controversial cases where the facts on which the Court is invited to construe or interpret the document or legislation in relation to remain violently in conflict. Olley & ors v. Tunji [2013] LPELR-20339(SC) went on to hold that an originating process is meant to determine an issue of law or the interpretation of document by means of submitting affidavit as evidence. That apart from providing sufficient particulars to identify the cause of action, the originating summons must include statement of the question to enable the Court to determine or statement of remedy to which the Court can declare. As couched question (2) is vague and does not fit the bill for an originating summons.

The claimants referred to section 5(2) of the Pension Reform Act 2014, which provides thus: “Any person who falls within the provision of subsection (1) of this section shall continue to derive benefit under the existing pension scheme in accordance with the formula provided for in the second schedule to this Act or under the provisions of the enabling law”. Paragraphs 1 and 7 of the affidavit in support puts the date of death of Mrs Grace Fehintola Akadiri as 6th August 2005. The Pension Reform Act (PRA) No. 4 of 2014, which the claimants rely on has a commencement date of 1st July 2014 and repeals the Pension Reform Act No. 2 of 2004. For someone who died in 2005, her affairs cannot (unless the law specifically states so) be regulated by the PRA 2014 as the claimants are arguing. The law in force when a cause of action arose is the applicable law for determining a case. See Isaac Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 and Sun Insurance Nigeria Plc v. Umez Engineering Construction Company Ltd [2015] LPELR-24737(SC). Alese v. Aladetuyi [1995] LPELR-413(SC); [1995] 6 NWLR (Pt. 403) 527 stressed that the rights and obligations of parties must be considered in the light of the provisions of the law as it was when the cause of action arose and the change in the law after the cause of action arose is of no moment. Relying on section (6) of the Interpretation Act, SPDC v. Anaro & ors [2015] LPELR-24750(SC) held that where a cause of action accrued before the advent of an alteration of the law governing same, the applicable law is the one which was in operation at the time when the cause of action accrued unless the subsequent legislation manifestly and unambiguously provides that the altered law takes retrospective effect. Section 6(1) of the Interpretation Act provides that the repeal of an enactment shall not affect anything not in force or existing at the time when the repeal takes place; or affect the previous operation of the enactment or anything done or suffered under the enactment. See also Duru v. FRN [2016] LPELR-40088(CA). Mrs Grace Fehintola Akadiri died on 6th August 2005. The cause of action as regards her death benefits accruing to members of her family accordingly arose on the date she died; as such, the law applicable must be the law in force as at 6th August 2005, the day she died. Unfortunately, the claimants did not present the said law for interpretation, nor did they disclose to this Court what that law is.

The claimants simply reproduced section 5(2) of the PRA 2014 and then submitted that the provision is clear and unambiguous to the effect that any one who falls within the categories listed in subsection (1) shall continue to derive benefits according to the formula provided under the Second Schedule to the PRA 2014 which makes the computation of pension subject to the number of years spent in service. Who are those listed in subsection (1)? They are: those mentioned in section 291 of the 1999 Constitution including members of the Armed Forces, the intelligence and secret services of the Federation; any employee who is entitled to retirement benefits under any pension scheme existing before 25th June 2004, being the commencement of the PRA of 2004 but as at that date had 3 or less years to retire. Did the claimants show to this Court whether Mrs Grace Fehintola Akadiri fell into any of these category of persons? The answer is in the negative. All the claimants told us is that Mrs Grace Fehintola Akadiri was an employee of the Ministry of Defence (paragraph 1 of the affidavit in support), not that she was a member of the Armed Forces or the intelligence or secret services of the Federation. Neither is the Court told that the pension scheme existing before 25th June 2004 the retirement benefits of which she was entitled to, and for which as at that date she had 3 or less years to retire. The claimants assume that section 5(2) operates automatically, and without pre-conditions and without the relevant supporting facts. When the defendant complained of the paucity of facts to determine this case, all that the claimants said in answer is that the issues raised in this suit are purely questions of law which only the Court can decide. This may be so, but given the manner in which section 5(2) of the PRA 2014 is couched, there are pre-conditions and facts upon which its application rests. The claimants did not disclose all this; as such their case must fail.

The hallmark of the defendant’s defence to this action is that the claimants should not have sued the Attorney-General of the Federation as he is not a proper party. I must right away discountenance this argument. It is settled law that the Federal or State Government can be sued; and in their respective stead, the appropriate Attorney-General can be the party (claimant or defendant). See AG, Rivers State v. AG, Bayelsa State & anor [2012] LPELR-9336(SC). The same rule applies where any of the authorized agencies of government is involved or a government act is called to question. See Nigeria Engineering Works Ltd. v. Denap Ltd & anor [2001] LPELR-2002(SC); [2001] NWLR (Pt. 746) 726; [2001] 12 SC (Pt. II) 136. I need to, however, point out that AG, Anambra State v. AG, Federation (Reasons) [2007] LPELR-24343(SC), relying on Ezomo v. AG, Bendel State [1986] 4 NWLR (Pt. 36) 448 and AG, Kano State v. AG, Federation [2006] 6 NWLR (Pt. 1029) 164; [2007] All FWLR (Pt. 364) 238, which seems to suggest that the Attorney-General is not a proper party where it is a government body that can sue or be sued in its corporate name, it must be understood that the case, AG, Anambra State v. AG, Federation (Reasons), was decided within the context of activating the original jurisdiction of the Supreme Court where the cause of action in issue related to Mr Peter Obi in his personal capacity, and not to Anambra State as a corporate entity.