MOST REV. ALFRED A. MARTINS AND OTHERS V. MRS. CATHERINE KOLAWOLE
(2011)LCN/4425(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of March, 2011
CA/I/249/06
RATIO
CLAIM FOR EMOLUMENTS : WHETHER CLAIM FOR EMOLUMENTS MUST BE ITEMIZED IN THE STATEMENT OF CLAIM IN SUITS FOUGHT ON PLEADINGS
It is trite that a claim for emoluments must be itemized in the statement of claim in suits fought on pleadings- see our fairly recent decision (Jos Judicial Division) in the case of Agbu v. Civil Service Commission Nasarawa State and others (2011) 1 NWLR (Pt. 1229) 544 at 560, per Bulkachuwa, J.C.A. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION OF STATUTES: INTERPRETATION OF THE PROVISIONS OF THE N.S.I.T.F ACT (CAP. N 88) LAWS OF THE FEDERATION AS TO THE PURPOSE OF THE N.S.I.T.F. SCHEME AND CONDITIONS FOR THE APPLICABILITY OF THE ACT
For clearness, sections 10(1) (c) (2) (3), 11, 12 and 13 of the N.S.I.T.F Act (cap. N 88) Laws of the Federation, which came into operation on 1.1.1992, read together, depict the N.S.I.T.F scheme as the pension scheme for the private sector. Section 12 thereof stipulates, in particular, that: “Subject to the, provisions of this Act, an employee referred to in section 10 of this Act shall be required to make the following contributions to the fund established by section 1 of this Act – that is – contribution of the first category, being contributions payable by or on behalf of the employee against the contingencies of retirement, pension, death, invalidity, and emigration…..” (My emphasis). The payment from the N.S.I.T.F. scheme is said by section 12(a) of the N.S.I.T.F Act (supra) to be “against the contingencies of retirement” in the case of a retiring employee in the private sector, as the respondent. The N.S.LT.F scheme is, accordingly, a contingency fund scheme to pay for something like retirement that might happen in the future – see Oxford Advanced Learner’s Dictionary (6th edition; page 248. Section 15 of the N.S.I.T.F Act (supra) goes further to legislate against reduction of an employee’s remuneration by the employer on account of the contributions to the scheme. Section 16 of the same Act, also, provides: “Subject to this Act, the following benefits shall be payable to or in respect of a contributor who has satisfied the applicable conditions prescribed by regulations made under this Act, that is – (a) Retirement pension benefit; or (b) 1 Retirement grant Appellants’ learned counsel is, however, right to submit that respondent cannot draw her pension from appellants based on the first part of resolution A in Exhibit J and from the N.S.I.T.F pension scheme. The N.S.I.T.F scheme appears to me to be the pension scheme for private bodies such as appellants, distinct from the Government scheme for public officers – see again sections 1, 2, 10 and 11 of the N.S.I.T.F Act, and in particular section 10 thereof as follows: “(1) This Act shall apply in respect of every person who- (a) Is employed by a company incorporated (or deemed to be incorporated) under the Companies and Allied Matters Act; or (cap. C20) (b) Is employed by a partnership irrespective of the number of persons employed by the company or partnership; or (c) In any other case, where the number of persons employed is not less than five. (2) All employers and employees to which this Act applies shall be registered with the Board in such manner as may be prescribed by regulations made under this Act.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
LEGISLATION: WHETHER A PRIVATE ENTITY CAN MAKE A CIRCULAR OF OR RESOLUTION TO OVERRIDE THE PROVISIONS OF AN ACT OF THE NATIONAL ASSEMBLY
I am, also, in agreement with appellants’ learned counsel that the first part of resolution A of Exhibit J cannot override the N.S.I.T.F Act. The latter is an Act of the National Assembly. Therefore, it is superior to a circular of or resolution made by a private entity such as appellants. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PENSIONS ACT :WHETHER THE PENSIONS ACT (CAP’ 346) LAWS OF THE FEDERATION IS APPLICABLE TO EMPLOYEES OF PRIVATE BODIES
…the Pensions Act applicable to public servants who are exempted from the N.S.I.T.F scheme would not apply to respondent, a person employed by the appellants, a private body, at the material time – see by analogy Nigeria security Printing and Minting Co. Ltd. v Adekoya (Supra) at pages 151-153. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PENSIONS: PURPORT OF THE CREATION OF PENSION BENEFIT AND THE NEED FOR EVERY ORGANISATION IN THE COUNTRY TO HAVE A HUMAN AND HUMANE FACE IN ITS TREATMENT OF PENSIONERS
Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree’s past meritorious service to the employer. Therefore, pension benefit should have a human and humane face. The accomplished jurist Onnoghen, J.S.C., said notably of pension in the case of the Central Bank of Nigeria v. Amao and Others (2010) 15 NWLR (Pt.1219) 271 at 307 thus: “It is important for every organisation in this country, including the appellant, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must reexamine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MOST REV. ALFRED A. MARTINS AND OTHERS Appellant(s)
AND
MRS. CATHERINE KOLAWOLE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading judgment): The High court of Justice of Ogun state holden at the Abeokuta Judicial Division pronounced judgment against appellants in favour of respondent granting the latter the reliefs sought by her in paragraph 44 of the amended statement of claim in this vein:
“44. WHEREOF the plaintiff claims as per the Amended Writ of Summons as follows:-
(‘ 1) A declaration that the Resolution of the Board of Management of Sacred Heart Hospital. Abeokuta passed at its meeting of 22nd March, 1979 is binding on the defendants.
(2) An order that the Pensions and Gratuities payable to the plaintiff shall be in accordance with current government regulations.
(3) A declaration that the removal of the plaintiff from the services of the defendants with effect from the 1st day of January, 1997 by the defendants letter dated 20 December 1996 is wrongful, null, void and of no effect in that the plaintiff had given to the defendants the requisite three months notice of retirement on 26/11/96 prior to the letter of removal of 28/12/96.
(4) A declaration that the removal of the plaintiff from the service of the defendants with effect from the 1st day of January, 1997 in accordance with regulation 12.9 (a) of the Terms and conditions of Service of Employees of the Hospital is wrongful, void and of no effect in that the Booklet containing the said Terms and Conditions were served on the plaintiff on 23/12/96 and the plaintiff did not consent to be bound by the said Terms and Conditions.
(5) A declaration that the removal of the plaintiff from the services of the defendants with effect from the 1st day of January, 1997 in , accordance with regulation 12.9 (a) aforesaid is wrongful as it is an act of victimization as a result of the role played by the plaintiff during the December, 1996 industrial crisis.
(6) An order directing the defendants to pay to the plaintiff any balance of her gratuity and monthly pension due to her in 1997 when she retired and thereafter her pension both based on the current Pension Law and Government Regulations.
(7) An order directing the defendants to pay to the plaintiff the sum of N16, 216.32 representing damages suffered by the plaintiff as a result of her wrongful removal from the service of the defendants.”
Hence this appeal.
After pleadings were filed and delivered, both disputants tendered oral and documentary evidence. The evidence disclosed in a nutshell that respondent had worked for close to 29 years as a staff mid-wife under appellants representing the Board of Management of Sacred Heart Hospital, Lantoro – Abeokuta, before she put in notice of retirement from service to run for 3 months commencing on 26.11.1996, and terminating on 28.2.1997.
Respondent was later paid N144, 501.23 by appellants as her terminal benefits. Her monthly pension as at 1997 was calculated by appellants to be N2, 710.91. Appellants discovered a mistake in the computation of respondent’s record of service and made the necessary rectification realizing a shortfall of N5, 899.23. A cheque reflecting the shortfall was sent by appellants to respondent. The latter rejected it and demanded for payment of her gratuity and pension based on the enhanced scale for public officers under the Pensions Act. Appellants did not accept respondent’s stand. The legal battle line was drawn between them. The court below heard their respective assertions and the final addresses of their respective learned counsel before it handed down the judgment, subject-matter of the appeal.
Appellants’ notice of appeal contained nine grounds of appeal from which four issues were extracted for determination on the appeal from the skillfully prepared brief of argument by prince Adesemowo, of learned counsel; and, for convenience, the said issues are copied below:
“(1) Whether the Lower court was right when the court copiously relied upon and found on the evidence of 3rd PW on the computation and calculation of Pension and gratuity of the Respondent when the particulars of such computation and calculation were not specifically pleaded.
(ii) Whether the Lower court was right in its interpretation of Resolution A of Exhibit J (Pensions and gratuity) to mean that Appellants shall pay pensions and gratuity to all its staff in accordance with Government regulations inspite of the sub-clauses contained therein.
(iii) Whether the trial judge was right in granting pensions rights in favour of the Respondent under the Pensions Act when the Respondent who is only entitled to gratuity and Pensions under Decree No. 73 of 1993 (Nigeria Social Insurance Trust Fund Decree) is not a public officer.
(iv) Whether the lower court properly and correctly evaluated the evidence adduced by the Appellants.”
Issue (i) (supra) was derived from grounds 2 and 6 of the notice of appeal, issue (ii) from grounds 1 and 3, issue (iii) from grounds 4 and 5, and issue (iv) from grounds 7 and 8. Ground 9 of the notice of appeal – the omnibus or general ground – had no issue for determination covering it.
Appellants submitted on issue (i) (supra), that the calculation or computation of respondent’s pension as terminal benefits by 3rd P.W in his testimony in the court below was based on unpleaded material facts and should be disregarded vide the cases of Kode v. Yusuf (2001) 8 NSCQR 376 at 400, Adeniran v. Alao (2001) 8 NSCQR 484, Okolo v. Union Bank of Nigeria Ltd. (2004) 17 NSCQR 105, Emegokwue v. Okadigbo (1973) 4 SC 113 at 117, and Ugo v. Obiekwe (1989) 1
NWLR (Pt.99) 566 at 583; also, the sum of N1, 789, 88.10 granted respondent by the court below as arrears of pension was based on government regulations as well as the grant of N31, 222.421 as respondent’s monthly pension, which were not specifically pleaded and claimed by respondent making the said award gratuitous contrary to the decisions in Ekoenyong and Others v. Nyong and Other (1975) 2 SC 71, Kawo (?) v. Kalio (1975) 2 SC 15, Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) 732:
Appellants submitted on issue (ii) (supra) that the court below failed to construe the clauses of resolution A of Exhibit J together contrary to the established canon of interpretation that all clauses of a document should be read in whole, which departure led the court below to ignore the impact of the other clauses of the document to reach the conclusion that appellants were to pay pensions and gratuities to their staff in accordance with government guidelines and regulations, whilst still contributing to the NSITF; all the more so the resolution in Exhibit J does not bind appellants and, respondent had already taken benefit under the NSITF scheme as shown in Exhibits U, U1, V, V1 and Z and the evidence of 1st D.W and 2nd D.W, she is estopped from claiming the same benefits from appellants who do not receive government subvention or patronage, consequently the said awards should be set aside vide Unilife Dev. Co. Ltd. v. Adeshingbin and Others (2001) 5 NSCQR 647 at 664, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 at 641- 642, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 579, Salami v. Chairmen LEDB (1989) 5 NWLR (Pt.123) 539 at 550, Halsbury’s Laws of England Vol.12 (4th Edition) paragraph, 1469, and our yet unreported case of Archbishop Olubunmi Okogie and Others v. Mrs. Margaret Epoyun in appeal No.CA/I/100/2004 decided on 25.2.2010.
It was submitted further on issue (ii) (supra) that the interpretation given resolution A of Exhibit J by limiting it to the first clause by the court below would, in the words of appellants’ learned counsel, lead to “absurdity and ambiguity and does serious damage and violence to Resolution A of Exhibit J,” as appellants have not been officially exempted from the NSITF Scheme and payments made since 1966 to the National Provident Fund (NPF) are yet to be recovered, as agreements on payments of pension and gratuity in line with government guidelines are yet to be signed, which may lead to the fining or sanctioning of the appellants under section 20 of the NITF Decree No. 73 now Act of 1993; and, that the NSITF Act overrides resolution A of Exhibit I and the former should prevail as a superior piece of legislation.
Appellants’ learned counsel agitated further that by sections 1 (1), 3 (1) (5), 11, 15 (2) and 24 of the Pensions Act (cap’ 346) Laws of the Federation, 1990 (the Pensions Act), section 318 of the Constitution of the Federal Republic of Nigeria, 1999, (the 1999 Constitution) and section 18 of the Interpretation Act, (cap. 192) Laws of the Federation, 1990, respondent not being a public officer, but an employee of a private establishment-Appellants Missionary Hospital, was not entitled to have her pension and gratuity computed by the 3rd P.W using the scale provided by government regulations or guidelines, more so respondent was still in appellants’ service at the time the said computation of her terminal benefits and pension entitlement was made vide the case of Nigeria security printing and Mining (Minting) company Ltd. v. Adekoye and sons (2003) 16 NWLR (128 at 146 and 151 – 152.
It was also submitted on issue (iii) that appellants have not been exempted from the NPF or NSITF Scheme, therefore, before the first clause of resolution A of Exhibit J will apply to permit them pay pension and gratuity to the(r staff in accordance with government guidelines and the relevant sections of the Pensions Act, appellants must have adopted and made the Pensions Act as part of their private Pensions scheme which appellants are yet to do, accordingly, the court below should not have held that appellants had adopted the same pensions scheme operational in the public service or Government Establishments.
Issue (iv) canvassed that Exhibit Y was ignored or discountenanced by the court below on the ground that it was not specifically pleaded when it was tendered to support the pleaded terms and conditions of service used in Exhibit Q, and constituted sufficient pleading vide Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136) 74 at 86 abd Thani v Saibu (1977); Exhibit Y permits appellants in paragraph 22 thereof to pay pension and gratuity “comparable” with what obtains in Government Service but not the same with Government standard or scale on the basis of which Exhibit W was arrived at by appellants; that Exhibit L1 revoked Exhibit J to the knowledge of respondent as one of appellants’ staff, consequently the court below was wrong to hold Exhibit L1 doubtful,
It was argued in addition on issue (iv) (supra) that the 2nd D.W.’s evidence, one Mr. Johnbull Isibor from the NSITF, to the effect that respondent was one of the contributors to the NISTF scheme not entitled to claim pension under the Pensions Act (supra), but under the NISTF Act and scheme was not evaluated by the court below and, its “biased” evaluation of evidence should not be allowed to stand vide Bassil and Another v. Fajebe (2001) 6 NSCQR 269 at 271, Sha (jnr) v. Kwon (2000) 2 NSCQR 802. Adisa v. Ladokun (1973) 1 ALL NLR (Pt. 2) 18 at 31, and Mogaji v. Odofin (1978) 4 SC 91at 94.
Respondent’s brief of argument dated and filed on 17.11.08, was deemed properly filed by order of court on 18.11.08. Respondent’s brief adopted all the issues formulated by appellants in their brief.
Reference was made to paragraphs 20, 29(d) and 44(1) (2) and (6) of the amended statement of claim in respondent’s brief well prepared brief by Mr. Ojutalayo, of learned counsel, to contend that the Government regulations were pleaded and tendered in evidence as Exhibits R-R4, without objection from appellants, upon which 3rd PW. based his calculation of respondent’s terminal benefits and arrived at N1, 789, 888.10 representing arrears of pension and N31, 222.41 representing monthly pension and the court below relied on it to give judgment for respondent, therefore arguments to the contrary on issue (i) (supra) by appellants should be discounted following the cases of Thanni v. Lemomu (1977) 2 SC 89 At 117. Davy v. Garret (1877) 7 CH. D 473 at 485 and Yusufu v. Obasanjo (2003) 16 NWLR (Pt. 847) 532 read along with the Practice and Procedure of the Supreme Court by the great jurist Akinola Aguda (now of blessed memory) at page 231 paragraph 1830 and Civil Procedure in Nigeria (2nd edition) by Fidelis Nwadialo at pages 315-316.
Respondent’s brief argued contrariwise on issue (ii) that the court below adopted the golden rule of interpretation of documents by giving Exhibit J grammatical meaning to reach its decision in favour of respondent implicitly supported by 2nd D.W.’s evidence on the issue vide the cases of Balogun v. N.C.S.B. (2003) 2 NWLR (Pt. 204) 389. Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 623, Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91, Kalu v. Uzor (2004) 12 NWLR (Pt. 886) page 1, and the yet unreported judgment of this court in Archbishop Olubunmi Okogie and others v. Mrs. Margaret Epoyun, appeal No. CA/1/100/2004 delivered on 25.2.2010.
It was added in argument on issue (ii) that the plea of estoppel was raised as a fresh issue on the appeal without the leave of the court and was not pleaded by appellants in the court below, consequently appellants’ submission on it should be discounted following the cases of Obioha v. Duru (1994) 10 SCNJ 48 at 64, Ejowhomu v. Edo Eter Ltd. (1989) 1 NWLR (Pt. 39) 1 at 16, Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668 at 685, Hussaini v. Ogbuokiri (2004) 7 NWLR (Pt.
873) 524, Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498, Nwangwu v. Ofoegbu (2003) 7 NWLR (Pt. 820) 496 and Adeniran v. Alao (2001) 12 SCNJ 337
Respondent’s brief reacted to issue (iii) (supra) by conceding that notwithstanding she was not at all material times a public officer within the con of the Pensions Act, her claims in the court below were based on the conditions of service of her employment with appellants in Exhibit J which tied the scale for computation of her pension and gratuity to that obtainable in the Public Service under the Pensions Act as held by the court below, so issue (iii) (supra) stating to the contrary should be discounted.
Respondent contended on issue (iv) (supra) that there was no evidence to establish respondent accepted and agreed to be bound by Exhibit Y as found by the court below; that the court below found Exhibit L1 doubtful viewed against the backdrop of Exhibit K in respect of the unexplained anomaly to the effect that the issue of pensions and gratuity were still receiving the attention of appellants’ Board, the issue of the credit of Exhibit L1 which appellants did not address in their submissions; that the interpretation of Exhibit J by the court below rendered 2nd D.W.’s evidence on the issue irrelevant, nor did appellants indicate the effect the non consideration of 2nd D.W.’s evidence on the issue by the court below had on their case and that, issue (i) in Okogie (supra) is different from issue (ii) on the appeal, consequently the appeal should be dismissed.
Appellants’ reply brief dated 12.1.09, but filed on 13.1.09, and deemed duly filed on 21.6.010, as is relevant to the appeal, replied on issue (i) (supra) that the award of N31, 222.41 as monthly pension and N1, 789.888 as arrears of pension came from the 3rd P.W who “dictated from a sheet of paper prepared from home to refresh his memory while testifying from the “witness box” in spite of objection of appellants” that respondent did not file a notice to vary the judgment of the court below on other grounds nor a cross-appeal challenging the judgment, so she is not entitled to raise the issue vide order 9 rules 1-2 of the Court of Appeal Rules, 2007, (the Rules of this Court) and the cases of Ezennah v. Atta (2004) 17 NSCQR 615 at 639 and Adeleke v. Ogbonda (2006) NSCQR 631 at 640; that in the absence of pleadings, section 15 of the Court of Appeal Act, 2004, cannot come to the rescue of respondent as canvassed in her brief.
The reply brief contended further on issue (i) (supra) that 3rd P.W’s evidence sprang surprise in appellants and the court below was wrong act on it that the points raised in appellants’ brief not responded to should be deemed conceded by respondent following the cases of Okongwu v. NNPA (?) (1989) 4 NWLR (Pt. 115) 308 and Akanbi v. Alatede (2000) FRLR (?) 128 at 1946 (?); that the full particulars of the monthly pensions and arrears were not pleaded to justify the award made by the court below contrary to the decision in Ishola v. Union Bank of Nigeria (2005) 21 NSCQR 167 at 178-9; that the monthly pension pleaded in paragraphs 41 and 42 of the amended statement of claim was N5, 513.55, whilst 3rd P.W stated contrariwise that the monthly pension was N31, 222.41 and the arrears of pension was N1, 789, 999,10.
It was also argued that respondent conceded she did not plead the full particulars of the evidence of 3rd P.W. by unsuccessfully arguing an application to amend her pleadings to incorporate the full particulars in her pleadings; and, that respondent’s contention in paragraph 4.05-4.07 of her brief that she is not required to plead law is a technical point to defeat substantial justice contrary to the decisions in the cases of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 717 and Hambe and Another v. Hueza and Another (2001) 5 NSCQR 342 at 358.
The reply brief responded on issue (ii) (supra) that Exhibits R-R4 are inapplicable to appellants’ establishment as the pension scheme of appellants is the, NSITF scheme taken along with the terms and conditions of service in Exhibit Y, wrongly rejected by the court below, not the Pensions Act applicable to the Federal, State, and Local Government workers; that the issue of estoppel was not canvassed by appellants, but what appellants intended to convey was that respondent was at all material times a registered participant and beneficiary of the NSITF scheme precluding her from obtaining benefits under the Pensions Act meant only for Public Officers; also, respondent had received payments under appellants, private pension scheme in Exhibit Y in addition to her entitlement under the NSITF scheme precluding the court below from awarding her the said entitlements under the Pensions Act; and that respondent did not respond to the issue of Exhibit J vis-a-vis the effect and purport of the provisions of Decree No. 73 of 1993, and should be taken to have conceded appellants arguments on the issue following Okongwu v. NNPC (supra) at page 309.
It was submitted in reply to issue (iii) that the 3rd P.W. admitted under cross-examination that Exhibits R-R4 are inapplicable to appellants’ establishment and, that he was incompetent to calculate pensions and gratuity for employees in the private sector, when respondent admitted she was not a public officer, but an employee in the private sector, the court below was wrong to base its award on Exhibits R1-R4 meant exclusively for public officers, and the said award should be set aside.
Responding on issue (iv) (supra), appellants’ reply brief contended that Exhibit V was pleaded and evidence led on it by 1st D.W; and, following the case of Awara v. Alalibo (2002) 12 NSCQR 413, the respective parties to the case are bound by it, and the court below should not have held that Exhibit Y was not binding on respondent; that Exhibit Y had been followed by appellants in respect of other pensioners as well, particularly one Mrs. B. A. Sowunmi whose pension was based on Exhibit W, as stated in the 1st D.W’s evidence; and that by paragraph 22 of Exhibit Y, appellants are to pay pensions and gratuity “comparable” with Government scale as contained in Exhibit w, but not on the same scale obtainable in Government Establishments, upon which appellants urged the appeal to be allowed.
Ground 9 of the notice of appeal was not covered by any issue for determination arid is deemed abandoned and is hereby struck out.
It is trite that a claim for emoluments must be itemized in the statement of claim in suits fought on pleadings- see our fairly recent decision (Jos Judicial Division) in the case of Agbu v. Civil Service Commission Nasarawa State and others (2011) 1 NWLR (Pt. 1229) 544 at 560, per Bulkachuwa, J.C.A.,
In the instant case, paragraphs 20, 21, 40 and 41 of the amended statement of claim pleaded the terminal benefits and emoluments as follows:
“20 The Plaintiff states that as at December, 1996 she was on Health Services Salary Scale (HSSS) GL.12 step 8 as7 it obtains in Government Establishment. The Plaintiff’s annual emoluments which are to be taken into account in computing pension and gratuity are as follows:-
1. Annual Terminal Basic Salary N34, 080.00
2. Annual Transport Allowance 5, 846.40
3. Annual Rent Subsidy 38,169.60
4. Call Duty Allowance 10, 224.00
5. Utility and Cost of Living Allw. 6, 180.00
Total N94, 500.00
This works out at N7, 875 monthly. The Plaintiff will rely on her November, 1996 pay slip, Federal Ministry of Establishment and Management Services Circulars Ref. Nos. B.63216/S.1/X/618, B. 63216/S.1/X/T/8 and No. 1/1995. There has been a salary, gratuity and pension review since the retirement of the Plaintiff on 28/2/97. Evidence will be led at the trial on the current salary, allowance and pension and the various government regulations there shall be tendered.
21 The Plaintiff states that her incremental date is January of every year as communicated to the Plaintiff by the Secretary of the Sacred Heart Hospital Management Board, Mr. Tunji Akinniyi, in a letter dated 31st December, 1993. The Plaintiff will therefore move to G1.12 step 9 in the Health Services Salary Scale in January, 1997. The Plaintiff will rely on the letter and will tender it at the trial. The component units of the Plaintiff’s total emolument which are to be taken into account in computing pension and gratuity are as follows:-
1. Annual Terminal Basic Salary N35, 400.00
2. Annual Transport Allowance 5, 846.00
3. Annual Rent Subsidy 39, 648.60
4. Call Duty Allowance 10,224.00
5. Utility and Cost of Living Allw 6, 180.00
Total N97, 298.00
40. The plaintiff contends that in an attempt to rush the letter of removal to reach the plaintiff, the plaintiff’s total emolument was wrongly computed. The plaintiff’s total emolument should be computed by ‘taking into account the notice of retirement which expires on 28th February, 1997 and the movement of the plaintiff to HSSS level 12 step 9 on 1/1/97 and the component units of the plaintiff’s emolument which are to be taken into account in computing pension and gratuity namely:-
1. Annual Terminal Basic Salary – N35, 400.00
2. Annual Transport Allowance – 5,846.00
3. Annual Rent Subsidy – 39, 648.60
4. Call Duty Allowance – 10, 224.00
5. Utility and Cost of Living Allw. – 6, 180-00
Total Emolument – N97, 298.00
41. The plaintiff avers that for the computation of pension and gratuity in accordance with the amended table 8 of schedule 1 of Decree No.102 of 1979 her gratuity will be 29 years of qualifying service and 252% of final total emolument i.e.
(a) Gratuity-N97, 298 x 252% divide 100 = N245, 190.20
(b) Pension 680/o of final total emolument N97, 298 x 68 divide 100 =N66, 162.64 per annum
(c) Monthly pension N66, 162.64 divide 12 = N5, 513.55
The plaintiff’s gratuity will be N245, 190.96 plus December salary of N7, 875.00 plus salary for January and February, 1997 on Health Services Salary Scale (H.S.S.S) at N8,108.16 (i.e. N97, 298 divide , 12) per month:-
(a) December Salary – N 7, 875.00
(b) Gratuity = N245, 190.96
(c) Jan. Feb. 1997 Salary = N 16, 216.32
Total = N269, 282.28”
The particulars of the entitlements pleaded above are, in my view, open or amenable to calculation and quantification for a claim of that nature eliminating the element of surprise on appellants – see Imana v. Robinson (1979) 3-4 S.C. 1 at 23. Consequently, appellants’ contention that respondent sprang surprise on them cannot hold ground and the cases cited by appellants on itemization of the claim and on the springing of surprise on them are inapplicable here. Accordingly, the court below did not, in my view, act on unpleaded materials or facts and issue (i) (supra) is resolved against appellants.
Issue (ii) (supra) dealt principally with the award of the claimed emoluments/terminal benefits based on Government scale for public officers. The yet unreported judgment of this court in Archbishop Olubunmi Okogie and Others v. Mrs. Margaret Epoyun, appeal No: CA/I/100/2004 decided on 25.2.2010, discussed Exhibit E, the resolutions of appellant dated 22.3.1979, against the backdrop of Exhibit G, a booklet containing the terms and conditions of service of appellants’ employees, to the effect that pensions and gratuities granted appellants’ retiring employees shall be on “comparable” basis with the award in States and Federal Governments of the Federation of Nigeria. The decision of the court below construing the phrase “comparable” to mean “the same” in that case was rejected by us where we stated that the “word “comparable” means “near” not “the same” and the appeal was allowed on that basis.
Exhibit J under discussion on issue (ii) (supra) states:
“BOARD OF MANAGEMENT OF SACRED HEART HOSPITAL MEETING ON 22ND MARCH, 1979 AGREES:
“PENSION AND GRATUITY”
In accordance with Government Regulations Pensions and Gratuities will be paid to all Staff at present working in the Hospital. We must take into account that National provident Fund must be paid until we are officially exempt. Then all payment from 1996 must be reclaimed from Government with Headquarters. N.P.F. Lagos, after signing of Argument.”
While Exhibit G considered in Okogie (supra) stated:
“Paragraph 4: Remuneration
Remuneration payable shall not be less than that payable in Federal and State Government Services and payment shall be subject to deduction of P.A.Y.E (Income tax) and other advances made to employee.
Paragraph 20: Retirement: Three months notice of intention to retire shall be served on the board of management by an established and pensionable member of the staff. The compulsory retiring age shall be 60 for all categories of staff. A member of staff may retire voluntarily at the age of 45 but he/she must have worked for 15 years continuously.
Paragraph 22: Retiring Benefits:
An established member of staff who had served notice of intention to retire shall, at the appropriate age and having served for the requisite number of years be granted pension and gratuity calculated on the basis of length of service to the hospital and comparable to the award in States and Federal Government of the Federation of Nigeria.”
The words in Exhibit G copied below:
“Pension and gratuity calculated on the basis of length of service to the hospital comparable to the award in states and Federal Government of the Federation of Nigeria.”
(My emphasis)
Are absent in Exhibit J (supra). It stands to reason on that score that what we interpreted as the operative words in the unreported case of Archbishop Olubunmi Okogie and others v. Mrs. Margaret Epoyun (supra) is different from Exhibit J under discussion on issue (ii) (supra).
I agree with appellants’ learned counsel on the authorities cited (supra) that the court is bound to give community reading to the wordings of a document relevant to the dispute in issue. It is true that the court below did not construe the whole of resolution A of Exhibit J together or harmoniously. By section 15 of the Court of Appeal Act, this court is equally in a good position to construe clause A of Exhibit J.
The first part of resolution A of Exhibit J is on the agreement of appellants to pay pension and gratuity to retiring staff “in accordance with Government Regulations;” the second leg thereof is on continuation of payment of contribution to the N.P.F (replaced by the N.S.I.T.F) scheme until exempted by Government, the third segment thereof is on the future recovery of the payments made to the N.P.F (N.S.I.T.F) since 1966 from Government; while the last segment of resolution A is in respect of follow up action by appellants with the N.P.F headquarters Lagos after signing of agreement with the N.P.F on the issue of the contributions.
In my view, the last three segments of resolution A in Exhibit J are in respect of the N.P.F now N.S.LT.F pension scheme for the private sector.
There is, also, the side-bar of resolution A in Exhibit I tagged “PENSION AND GRATUITY”. Showing the whole of clause A in Exhibit J is on the topic of pension and gratuity, in my view. By Exhibits U, U1, V and V1 taken together with the evidence of the 2nd D.W, respondent was at all material times a participant of the N.S.LT.F scheme together with her employer, the appellants. In other words, she was at all materials a beneficiary under the said scheme.
For clearness, sections 10(1) (c) (2) (3), 11, 12 and 13 of the N.S.I.T.F Act (cap. N 88) Laws of the Federation, which came into operation on 1.1.1992, read together, depict the N.S.I.T.F scheme as the pension scheme for the private sector. Section 12 thereof stipulates, in particular, that:
“Subject to the, provisions of this Act, an employee referred to in section 10 of this Act shall be required to make the following contributions to the fund established by section 1 of this Act – that is – contribution of the first category, being contributions payable by or on behalf of the employee against the contingencies of retirement, pension, death, invalidity, and emigration…..”
(My emphasis).
The payment from the N.S.I.T.F. scheme is said by section 12(a) of the N.S.I.T.F Act (supra) to be “against the contingencies of retirement” in the case of a retiring employee in the private sector, as the respondent. The N.S.LT.F scheme is, accordingly, a contingency fund scheme to pay for something like retirement that might happen in the future – see Oxford Advanced Learner’s Dictionary (6th edition; page 248.
Section 15 of the N.S.I.T.F Act (supra) goes further to legislate against reduction of an employee’s remuneration by the employer on account of the contributions to the scheme.
Section 16 of the same Act, also, provides:
“Subject to this Act, the following benefits shall be payable to or in respect of a contributor who has satisfied the applicable conditions prescribed by regulations made under this Act, that is –
(a) Retirement pension benefit; or
(b) 1 Retirement grant
Appellants’ learned counsel is, however, right to submit that respondent cannot draw her pension from appellants based on the first part of resolution A in Exhibit J and from the N.S.I.T.F pension scheme. The N.S.I.T.F scheme appears to me to be the pension scheme for private bodies such as appellants, distinct from the Government scheme for public officers – see again sections 1, 2, 10 and 11 of the N.S.I.T.F Act, and in particular section 10 thereof as follows:
“(1) This Act shall apply in respect of every person who-
(a) Is employed by a company incorporated (or deemed to be incorporated) under the Companies and Allied Matters Act; or
(cap. C20)
(b) Is employed by a partnership irrespective of the number of persons employed by the company or partnership; or
(c) In any other case, where the number of persons employed is not less than five.
(2) All employers and employees to which this Act applies shall be registered with the Board in such manner as may be prescribed by regulations made under this Act.”
I am, also, in agreement with appellants’ learned counsel that the first part of resolution A of Exhibit J cannot override the N.S.I.T.F Act. The latter is an Act of the National Assembly. Therefore, it is superior to a circular of or resolution made by a private entity such as appellants. In addition, Exhibit J was issued by appellants on 22.3.1979, before the N.S.I.T.F Act came into force on 1.1.1992. The subsequent N.S.I.T.F legislation on 1.1.1992, (supra), swept aside/away the resolution in Exhibit J on pensions, in my view.
Issue (iii) on whether the Pensions Act applies to respondent, the resolution of issue (ii) (supra) that respondent’s pension scheme was based on the N.S.I.T.F Act (supra) is hereby adopted. Therefore, the Pensions Act applicable to public servants who are exempted from the N.S.I.T.F scheme would not apply to respondent, a person employed by the appellants, a private body, at the material time – see by analogy Nigeria security Printing and Minting Co. Ltd. v Adekoya (Supra) at pages 151-153.
Issue (iv) (supra) on the value of Exhibits K, 11, Q, W and Y vis-a-vis Exhibit J and the testimony of 1st D.W on the pension entitlements of respondent being on “comparable” basis with what obtains in the Public Service would yield ground to the N.S.I.T.F Act, a legislation of the National Assembly, which cannot be sidelined or compromised or contracted out of operation by appellants – see Attorney-General of Bendel State v. Attorney-General of the Federation and others (1982) 3 NCLR page 1 at Page 42 thus:
“Neither a State nor an individual can contract out of the provisions of the Constitution (Act). The reason for this is that a contract does a thing which cannot be done without a violation of the law is void. See Maritime Electric Co. Ltd. v. General Dairies Ltd (1939) AC (PC) 610 at PP.620-621; and South Ottawa v. Perkins US Supreme Court Reports, (24 Lawyers Edition) 154 at page 157 where Mr. Justice Bradley who delivered the opinion of the court observed rightly in my view, as follows;
“There can be no estoppel in the way of ascertaining the existence of a law. That which Purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an Act of the legislature could be a law in one case and for one Party and not a law in another case for another Party; a law today, and not a law tomorrow; a law in one Place and not a law in another in the same State. And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges.
The doctrine of estoppel is totally inadmissible in the case.”
See also Ibrahim v. INEC (2007) 3 E.P.R. 50 at 65.
Accordingly, respondent’s terminal benefits should have been based on the scheme under the N.S.LT.F Act (supra), not on Exhibits L, L1, W and Y taken together with the evidence of 1st D.W on “comparable” basis with Government Regulations/ nor on the resolution in Exhibits J, M, and Q based on the Government rate or regulations as contained in Exhibits R-R4 and 3rd P.W’s evidence, as held by the court below. But in my view, and as a closing remark on issue (iv), the criticism of the court below on ground of “bias” in the evaluation of the evidence was not justified by appellants’ learned counsel in the arguments on the appeal. To lampoon the court below without justification leaves much to be desired. I say no more than adopt the words of the iconic jurist Tanko Muhammad, J.S.C., in Akpan v. Bob and Others (2010) 17 NWLR (Pt.1223) 421 at 479 as follows:
“Before I drop my pen on this issue, I think I should state in passing, that it is a matter of grave concern in the legal profession where a counsel launches attack and uncharitable remarks on the character and competence of the defenceless Judges for conducting what their oaths of office mandated them to do…..”
Appellants gave the impression of respondent been in their service at the time they took the decision for her to retire from service in Exhibit N. But with deference to appellants, the court below held, rightly, in my view, that respondent was no longer in the appellants’ employment, as she had already given notice of retirement in Exhibit F before they dispensed with her services in’ Exhibit N. A case in point is State Civil Service Commission and another V. Alexius Buzugbe (1984) 7 S.C. 19, where the retirement of respondent was made by appellants within the period respondent’s notice to retire from service was running, and the Supreme Court held the retirement wrongful and bad.
The court below attached no weight on Exhibit Y, the booklet on the terms and conditions of service for appellants’ employees, on the premise that respondent did not sign the booklet. I agree. Respondent did not sign Exhibit Y. Similarly, Exhibit M, another booklet on the terms and conditions of service for appellants’ employees, relied upon by the court below was equally not signed by respondent. Both Exhibits M and Y deserved no weight, as they are unsigned and undated documents – see the case of Omega Bank Nigeria Plc. v. O.B.C. Limited (2005) 1
S.C.N.J. 150 at 170-171 where the great jurist Musdapher, J.S.C., held inter-alia:
“It is impossible under all the circumstances of this case to take Exhibit P.6 as an offer or acceptance of an offer. It is a document not signed nor addressed to the respondent it is a worthless document which does not have any efficacy in law…..”
See also Ali v. Ambrosini 7 WACA 148. Exhibit M upon which the respondent tied her terminal benefits and pension and, Exhibit Y which appellants, also, tied the terminal benefits and pension of respondent are, accordingly, worthless and should not have been used to improve or advance the case of any of the parties in the court below.
Flowing from the above view-point, and at the risk of emphasis, as the documents in Exhibits T, U, U1, V and V1 and the testimony of 2nd D.W, one John bull Isibor from the N.S.I.T.F, shewing both appellants and respondent were at all material times participants of the N.S.LT.F scheme, neither the resolutions of appellants in Exhibits J, L, L1, O, W together with their terms and conditions of service in Exhibits M and Y, earlier held valueless, plus the testimony of the 1st D.W, nor the Government Circulars in Exhibits R – R4 with 3rd P.W’s testimony on them based on the Pensions Act (supra), availed or assisted the rival contentions of appellants and respondent, I most respectfully conclude that the N.S.LT.F scheme under the N.S.I.T.F Act, at all material times, governed the terminal benefits and pension entitlements of respondent not the Pensions Act, nor the conditions and terms of service for appellants’ employees modeled on “comparable” status with Government Establishments.
Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree’s past meritorious service to the employer. Therefore, pension benefit should have a human and humane face. The accomplished jurist Onnoghen, J.S.C., said notably of pension in the case of the Central Bank of Nigeria v. Amao and Others (2010) 15 NWLR (Pt.1219) 271 at 307 thus:
“It is important for every organisation in this country, including the appellant, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must reexamine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.”
In the final analysis, I allow the appeal in part. The judgment of the court below is varied from its order of payment of the respondent’s pension and gratuity by appellants in accordance with Government Regulations pursuant to the Pensions Act (supra) to an order that respondent’s entitlements to pension and gratuity were, at all material times, in accordance with the N.S.LT.F scheme under the N.S.I.T.F Act (supra). Parties to bear their costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, J.S. IKYEGH, J.C.A.
I agree with the reasoning’s contained therein and the conclusion arrived thereat, I accordingly allow the appeal in part, and abide with the consequential orders made.
MODUPE FASANMI, J.C.A.: I have read before now the lead judgment of my learned brother J. S. Ikyegh J.C.A.
I agree entirely with the reasoning and conclusion reached therein. I adopt the reasoning as mine.
The appeal succeeds in part. I abide with the consequential orders made including cost.
Appearances
Prince P. A. AdesemowoFor Appellant
AND
Mr. O. O. OjutalayoFor Respondent
