Mr. Samuel A. K. Uguru -VS- Union Bank of Nigeria PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 18^thday of June, 2019 SUIT NO: NICN/PHC/60/2017

BETWEEN:

SAMUEL A.K. UGURU……………………………….…………………………………..CLAIMANT

AND

UNION BANK OF NIGERIA PLC………………………………….…………………….DEFENDANT

Representations:

E.A. Ogbonnayafor the Claimant.

Collins Owobuwith M.N. Ejekwufor the Defendant.

Judgment.

This suit was originally commenced by way of an Originating Summons filed on the 12^th of July, 2017 and was initially before the late Justice A. Ibrahim who directed the parties through a ruling delivered on the 11^th of January, 2018 to file Pleadings in respect of the suit. Upon his demise, this matter was reassigned to this court sometime in October, 2018.

Arising from the directive of the late Judge of blessed memory, Claimant on the 25^th of January 2018 filed a statement of Claim, list of documents, list of witnesses, witness statement on oath and copies of documents to be relied upon.

Arising from the said statement of Claim, the Claimant claims against the Defendant the following:

A declaration that the claimant was properly placed under the defined Benefits Scheme (DBS) upon his resignation effective on the 2^ndday of February 2006 and accordingly placed on retirement by the defendant pursuant to Section 8(1) of the Pension Reform Act, 2004.
A declaration that it is improper for the Defendant to retrospectively stop the payment of the Claimant’s Pension or salary under the Defined Benefits Scheme (DBS) pursuant to the amended Pension Reform Act of 2014.
An order of the Honorable Court directing the Defendant to immediately pay the Claimant all his pension arrears in the sum of N43,520. 64 (Forty Three Thousand, Five Hundred and Twenty Naira, Sixty Four Kobo) only per Month from the month of November 2015 till judgment and thereafter continue to pay the Pension in line with Labour prevailing rate till death.
Pay Claimant the sum of N100,000,000.00 (One Hundred Million Naira) only representing general damages for the inconveniences, embarrassment and mental trauma Claimant passed through in the hands of the defendant as a result of the non-payment of his Pension.

Reacting to the claims, the Defendant on the 26^th of November, 2018 filed a statement of defence along with a list of documents, witness statement on oath and copies of documents to be relied upon.

Upon receiving the statement of defence, the Claimant filed a reply on the 5^th of December, 2018 and accompanied same with a list of additional documents, further statement on oath and copies of the additional documents.

Trial commenced in this suit on the 15^th of January, 2019 with the Claimant opening his case and calling two witnesses in persons of Samuel Uguru as CW1 and IbekweOnwuchekwa as CW2. The witness statements on oath of CW1 were adopted and marked as C1(a) and C1(b) while that of CW2 was adopted and marked as C2. Through CW1, 17 documents were tendered in evidence and were admitted as Exhibit CW1(1) – (17).

Arising from the statement of claim, witness statements on oath and reply, the case of the Claimant is that he was a staff of the Defendant and had served in various branches until he retired upon his voluntary resignation, effective on the 2^nd day of February, 2006 while serving at Okigwe branch, Imo State. Claimant posited that employees of the Defendant who had served for not less than 10 years shall be entitled to pension. On the 20^th January, 2006, he wrote the Defendant for voluntary retirement while on 10^th February, 2006, the Defendant replied his letter and stated that he can resign his appointment and still be entitled to pension effective from the age of 45 years. The Defendant advised him that he cannot retire from the Defendant until he attains the age of 60 unless he gives 12 months’ notice although he can resign. The application for resignation was granted and he was placed on pension since he had served for 25 years and was over 48 years in age at the time. The said pension was paid for nine years until it was stopped in October, 2015 and when the Claimant made enquiries as to why the pension payment was stopped, he learnt that the Defendant had reversed the Claimant’s pension from Defined Benefit Scheme (DBS) to Contributory Pension Scheme upon the finding that he was wrongly placed on the DBS and has accordingly transferred Claimant’s retirement and or pension savings account to Leadway Pension PFA Limited to manage for himwhich he rejected and opposed. The Claimant posited that the National Pension Commission wrote to the Defendant with respect to those of the defendant’s pensioners who the Defendant (bank) must pay their monthly pensions under the Defined Benefit Scheme (DBS) as covered by the Pension Reform Act of 2004 which includes the claimant but the Defendant refused and ignored same. The Claimant averred that the stoppage of the pension has caused him pain and sufferings as he was not able to pay his children’s school fees and received notice to quit from his landlord.

Upon cross examination, CW1, who is the Claimant himself, posited that as at 2004, his pension was not to go to Pension Administrators. He contended that it is not stated in his employment letter that the Defendant should not pay his pension to Pension Administrators and it is not binding on him. He confirmed that his employment was not terminated but he resigned by giving the Defendant his notice of resignation. He added that his retirement letter came on the 22^ndof June 2006 and it contained his terminal benefits. He stated that there is no such letter where he was advised to open an account with any PFA but when his pension was stopped, he ran around for two months before he was told that he had been transferred to Leadway to collect N7000 monthly. He posited that he was not aware that his branch manager was advised to tell him to put in 12 months’ notice. He also posited that by the Provision of the Defendant’s Trust Fund Deed, there is only one month notice.

Upon cross examining CW2, he posited that he served in the bank with the Claimant but the documents to show it is not before the court. He stated that he knew the Claimant gave the Defendant notice of his resignation in February, 2006 but he doesn’t know the exact month when the Claimant left the Defendant. He added that he is aware of the Defendant’s Staff Trust Deed but that the 12 months, notice had been revised as it used to be one month in lieu of notice.

Upon the discharge of both CW1 and CW2, the Claimant closed his case while the Defendant opened theirs with the calling of one witness in person of JimmyMokikan as DW1 who adopted his witness statement on oath which was marked as D1. Through the DW1, two documents were tendered and admitted in evidence as D2 (a) and (b).

Arising from the statement of defence, the case of the Defendant is that the claimant as an employee of the Defendant voluntarily resigned his employment with the defendant as officer with effect from 2^nd day of February 2006. The Defendant posited that the payment of pension to the employees of the Defendant was regulated by the provision of the Deed of Variation of Trust Deed (2004) which became invalidated following the enactment of the Pension Reform Act (2004) and by the Trust Deed, the qualifying period of receipt of pension under the scheme was ten years of continuous service to the defendant, while the normal retirement age was 60 years of age. The Trust Deed also provided for early retirement after attaining the age of 45 years upon giving the Defendant 12 calendar months of intention to retire but the Claimant tendered his letter of voluntary resignation on 20^th day of January 2006 advising the bank of his intention to voluntarily retire with effect from 2^nd February 2006; thereby giving the defendant only 13 days’ notice contrary to twelve calendar months as provided in article 9 in page 12 of the Trust Deed (2004). That notwithstanding they commenced payment of pension to the Claimant but only under the in-house scheme guided by the Trust Deed, but upon coming to effect of the Pension Reform Act 2004, payment of pension directly to the Claimant and other pensioners became a gross violation of the Act and between 2012 and 2014 a proper classification based on the Provision of the PRA 2004 was done by the Defendant under the Supervision of the National Pension Commission to either place a beneficiary on the Defined Benefit Scheme (DBS) which will ensure monthly pension for life or Contributory Pension Scheme which will be managed by the licensed Pension Fund Administrators (PFAs). Upon the conclusion of the classification, the claimant’s accrued pension rights in line with the provisions of the Pension Reform Act 2004 (now Pension Reform Act 2014) were transferred to a Transitional Contributory Fund (TCF) 101102002456 and the claimant was advised of this through the defendant’s letter dated 17^th day of December 2015 and the payment of in-house pension was immediately stopped. The Defendant added that although the PRA 2004 by section 8 makes certain people to be exempted from the contributory pension scheme, however, the claimant did not qualify for exemption from the contributory pension scheme under the Pension Reform Act having resigned his appointment with the Defendant. Upon placing the Claimant on the Contributory scheme, the claimant was advised to contact LeadwayPensure PFA Ltd for his pension benefit but the claimant failed/refused/neglected to do so till date. The Defendant posited that the action of the defendant was not borne out of malice, but in compliance with the relevant laws and PENCOM guidelines dated 17^th day of June 2013 and that the claims of the Claimant is baseless and unfounded.

Upon cross examination of DW1, he explained the various categories of retirees and posited that before the commencement of the Act, every retiree was treated the same way and that once an employee has spent 10 years and is above 45 years he is entitled to pension. He confirmed that the Claimant tendered his resignation in February, 2006. He explained that the transition period is in line with the pension Reform Act which states that anyone who as at the commencement of the Act in June 2004 have less than 3years to retire, that person should be exempted from the new scheme. He stated that it is for those who retire and not those who resigned. He posited that with the new Act, mode of exit matters as it is either 35 years of service or 60 years of age and where the mode of exit does not align with the two conditions, the staff cannot be exempted. He admitted that the Claimant exited in 2006 but that the management did not retire him. He posited that he doesn’t know when he started receiving pension but he stopped receiving in October, 2015. He also contended that Contributory Pension started in January 2006 with the bank and July 2007 is the cut-off date. He also admitted that PENCOM wrote to the Defendant.

Upon discharge of DW1, The Defendant closed their case and matter was adjourned for adoption of final written address. The Defendant filed their final written address on the 25^th of April, 2019 and same was adopted by counsel to the Defendant Collins Owobu Esq. on the 7^th of May, 2019.

Arising from the Defendant’s final written address, counsel to the Defendant formulated a sole issue for determination to wit:

Whether from the pleadings and evidence before the court, the claimant have been able to establish any of his claim to entitle him to the reliefs sought.

In arguing the sole issue, counsel argued that the case of the claimant is essentially that the defendant who was his former employer and had before the coming into force of the Pension Reform Act, 2004, now Pension Reform Act, 2014 operated an in-house pension scheme which regulated the payment of pension and retirement benefit to its entire pensionable staff, should continue to administer pension to him even though it has become impracticable and illegal by virtue of section 50, 51 and 59 of the Pension Reform Act, 2014.

He added that the issue of payment of pension and retirement benefits to any employee under the employment of a public or private sector is strictly guided by the Pension Reform Act, 2004 which has now been repealed by the Pension Reform Act, 2014. He cited Section 2(1) and 5 (1) (b) of the Pension Reform Actto posit that the implication of Section 5(1)(b) of the Pension Reform Act 2014 is that it is only those employee who are 57 years of age or had put in 32 years of service that are exempted from the scheme.

He added in relation to the cited section that in the instant case, the Claimant by paragraph 4 of his pleadings and paragraph 6 of his evidence copiously admitted that at the time of his resignation from the service of the defendant he was 48 years of age and had only put in 25 years of service with the defendant. He then submitted that by the claimant’s age and years of service at the time he resigned from the service of the defendant, he was not qualified for exemption from the contributory pension scheme under the Pension Reform Act.

Counsel further posited that in the case of in-house pension scheme that was invalidated by the Pension Reform Act, that Article 9(a) of THE SCHEDULE, UNION BANK OF NIGERIA PLC PENSION SCHEME-RULES of the said Trust Deed 2004 requires a person who wishes to retire at the age of 45 to give 12 months’ notice and such person is entitled to receive pension immediately upon retirement. Counsel contended that the Claimant in his case resigned by Exhibit CW1(13) and (14) and he gave only one month notice and by that, failed to comply with the trust deed.

Counsel submitted that the grant of the claim of the Claimant would mean the continuous payment of pension by the Defendant under a scheme that has become impracticable, unlawful and illegal. He cited the case of SODIPO VS LEMMINKAINEN OY & ANOR (1986) 1 NWLR (PT. 15) PAGE 220.

Counsel also added that the court cannot make an order against the defendant where the order will be unenforceable. He cited the cases of MEGAWEALTH LTD V. SECURITIES & EXCHANGE COMMISSION (2017) 13 NWLR (PT. 1583) 345 AT 380 PARA C-D RATIO 8, ETIM EKPENYOUNG & ORS v INYANG EFIONG NYONG & ORS (1975) LPELR-1090 (SC): (1975) 2 SC 65. and the unreported case of EKUNDAYO AUSTIN AIKHORJN & ORS V. UNION BANK OF NIG. PLC.

With regards to claim for general damages, counsel posited that by its nature, it must flow from the wrong complained of by the claimant once an injury is proved to have resulted from the wrong committed by the defendant. He cited the case of JULIUS BERGER (NIG.) PLC vs OGUNDEHIN (2014) 2 NWLR (PT1391) 388 AT 427 PARA A-B RATIO 11 and concluded that in the instant case, from the pleadings and evidence before this court the defendant have not cause any injury to the claimant by complying with the provision of the extant law. He added that the defendant have rightfully fulfilled his obligation under the Reformed Pension Act 2014 by transferring the claimant to a pension fund administrator and nothing more.

Counsel concluded by urging the court to reject the claims of the Claimant and dismiss the case.

Reacting to the address of the Defendant, Claimant filed his final written address on the 29^th of April, 2019 and same was adopted by counsel to the Claimant E.A. Ogbonnaya Esq.

Arising from the Claimant’s Final Written Address, counsel to the Claimant formulated three issues for determination to wit:

Whether the Claimant who resigned or exited the Defendant in 2006 during the transition period pursuant to section 8 (i) of the Pension Reform Act 2004 was properly placed on pension under the Defined Benefit Scheme (DBS) by the then management of the Defendant.
Whether the Claimant who resigned from the Defendant effective 2/2/2006 and was placed on immediate pension pursuant to Pension Reform Act 2004 would be bound by the Amended Pension Reform Act 2014 with respect to his said resignation and or Pension in 2006.
Whether it will be proper for the Defendant to retrospectively stop the Claimant’s said pension in November 2015 and place Claimant to the Contributory Pension Scheme with the sole reason that Claimant resigned and not retired during the transition period in 2006 from the Defendant.

In arguing issue one, counsel posited that the answer to the question is in the positive. He added that when Claimant resigned in 2006,the Pension Perform Act of 2004 had come into effect on the 25th day of June, 2004 which provided for the new pension regime known as the Contributory Pension Scheme (CPS) but the Act provided for an exemption to the implementation in section 8(1). He added that by the Union Bank of Nigeria PLC Staff Pension Fund, Deed of Variation of Trust Deed, Exhibit CW1 (12) at Page 12 Paragraph7 (a), the Claimant had been qualified for pension benefits under the bank’s staff pension scheme, having served the bank for over ten years.

Counsel added that the Claimant first wrote exhibit CW1 (13) (Voluntary Retirement letter dated 2/1/06) to the Defendant and in response, Defendant wrote Exhibit CW1 (3) where the bank advised that Claimant cannot retire from the bank until he attains the age of 60 years unless he gives 12 months’ notice if he insists on going on voluntary retirement. However, staff can resign his appointment and still be entitled to pension effective from the age of 45 years.

Counsel contended that the resignation and pension of the Claimant fell within the exemption and transition period under the Pension Reform Act, 2004 as he was placed under the Defined Benefit Scheme.

Counsel submitted thereon that cases are determined by the law in force when the cause of action arose and in the instant case, the law in force as at the time Claimant resigned or exited the bank and was placed on immediate pension was the Pension Reform Act 2004. He cited the case of OYELAMI VS MILITARY ADMINISTRATOR OF OGUN STATE (1998) 4 NWLR (PT 547) 624, PP 637 D-G, 639, D-D and ROSSEK VS ACB (1993) 8 NWLR (PT 312) 382 at 474/475.

Counsel added that by coming into effect of the Pension Reform Act 2014, the benefits, rights, privileges, obligation or liability accrued or incurred by the Claimant under the Pension Reform Act 2004 shall not be reversed or deprived of him by the 2014 Act. He cited Section 6 (1) (a) (b) (c) of the Interpretation Act and the case of OBIUWEUBI VS CBN (2011) Vol. 193 LRCN page 1 at p.26 para 2.

Counsel also added that any legislation and or enactment which disentitled or purports to disentitle a citizen of his accrued or vested right is said to be expropriator legislation. He cited the case of JAMES VS I. G. P. (2005) All FWLR (PT 274) 313 at 327 — 328 paras G-A.

Counsel perhaps swamped the argument of issue two into one as he progressed to argue issue three and contended that it is not proper for the Defendant to retrospectively stop in November 2015, the payment of the Claimant’s pension which Claimant had received for over nine (9) years under the Defined Benefit Scheme to the Contributory Pension Scheme with the sole reason that Claimant resigned and not retired during the transition period in 2006 from the Defendant.

Counsel restated facts leading to the payment and eventual stoppage of the payment of pension to the Claimant. He also recounted the testimonies of DW1 and CW1 and submitted that all the actions of the Defendant by retrospective means in stopping the pension benefits of the claimant derivable to claimant pursuant to section 8 (1) of the 2004 Act runs in contradiction with the provisions of section 8 (3) (4) of the Act.

Counsel further posited that the Defendant misconstrues the word Retirement with Resignation and posited that it will run contrary to natural justice equity and good conscience for any pensioner who retired or resigned during the transition period to be discriminated against by the Defendant.

Counsel contended in relation to Exhibit D2(a) that what is created by agreement may be extinguished by agreement and the parties to the agreement must consent to a new or later agreement to enable the earlier one be extinguished and not by an e-mail correspondence. He posited that the said e-mail correspondence cannot supersede the resolutions in the letters of 12/04/2013 (Exhibit Cw1 (10)), 17/04/13 (Exhibit Cw1 (15)) and 05/06/2013 (Exhibit Cw1(16)) He cited the cases of GROVER VS INTERNATIONAL TEXTILE INDUSTRIES (NIG.) LTD (1976) 11 SC. 19 and UWAH VS AKPABIO (2014) ALL FWLR (PT. 738) AT PP 898 — 899 H — A RATIO 4. SC

He added that the case of EKUNDAYO AUSTIN AIKHORIN & ORS VS UBN PLC cited by counsel to the Defendant does not apply to the instant case. He urged the court to grant all the prayers sought by the Claimant in this suit.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the laws in contention and the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the facts and circumstances of the case and the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:

Whether or notthe Claimant is exempted from the application of the Pension Reform Act and thereby entitled to the reliefs sought in view of the evidence before the court.

In resolving the sole issue, I must start off by reckoning that both parties are in accord in respect of some facts and circumstances of this case and facts admitted need no proof. See CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC).

With regards to other areas of contention as far as facts are concerned, I must state that the Claimant bears the burden of proof in view of the declarations sought. The court in the case of IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS(2012) LPELR-8621(CA) held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other partly admits the claims See David FabunmiVsAgbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A).

Having said that, I must point out that the sole issue formulated is predicated on the core areas of contention between the parties in relation to the stoppage of the payment of pension to the Claimant by the Defendant.The said core areas of contention are:

whether the Claimant retired from the employment of the Defendant or resigned and is there a difference?
Whether it is the provisions of Pension Reforms Act 2004 or of 2014 that is applicable at the time of the retirement/resignation of the Claimant; and

iii. whether the Claimant is qualified for exemption from being categorized under the Contributory Pension Scheme introduced by the Pension Reform Act 2004/2014

With regards to whether the Claimant retired from the employment of the Defendant or resigned and is there a difference between retirement and resignation?, the facts in contention is that the Claimant while at the Okigwe branch of the Defendant applied for voluntary retirement but upon response to him by the Defendant, he was advised to resign instead as he is required to give twelve months’ notice for voluntary retirement but that he would be entitled to pension upon the resignation under the pension scheme then operated by the Defendant. The Claimant did as advised and upon his exit of the Defendant, he started receiving pension payments in the sum of N43,520.64 but same was stopped by October, 2015. Upon the coming into effect of the Pension Reforms Act 2004 wherein employees are to receive pension under the Contributory Pension Scheme and certain retirees were exempted from the said Contributory Pension scheme and its implementation by the Defendant, the Claimantwas considered not to be qualified for exemption under the said Act having resigned his employment rather than retire.

It is based on the foregoing that it is necessary to first consider whether there is a difference between resignation and retirement. In answering the question, the court in WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 held that:

“Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State &Ors.(2001) 13 NWLR (Pt.731) 517.”Per ADEREMI, J.C.A. (Pp.17-18, Paras.F-A).

In view of the foregoing authority, there is no gainsaying that there is a marked difference in law between ‘resignation’ and ‘retirement’. In the instant case, that difference is also established as clearly seen by exhibit CW1(13), CW1(14) and CW1(3). By Exhibit CW1(13) the Claimant applied for voluntary retirement to the Manager of his branch. Upon the application, the Defendant wrote exhibit CW1(3) to explain to the branch manager of Okigwe branch that the Claimant “cannot retire from the Bank until he attains the age of 60 years unless he gives 12 months’ notice if he insists on going on voluntary retirement”. The Defendant added that “However, staff can resign his appointment and still be entitled to pension effective from the age of 45years hence we advise that you obtain a fresh application for resignation of appointment from him to enable us process his benefits accordingly”.

It is upon the foregoing that the Claimant wrote Exhibit CW1(14) dated the 2^ndof January, 2006. The date was perhaps backdated to reflect the same date that the earlier application for voluntary retirement (exhibit CW1(13)) was written. Arising from the said CW1(14), Claimant opted for the resignation and wrote to the Defendant stating that:

“In line with the Human Resource Letter dated 10/2/2006, I have finally decided to resign my appointment from the service of Union Bank at the age of 48 and after 25 years of service”.

Based on the foregoing content of exhibit CW1(14), there is no gainsaying that the Claimant resigned from the employment of the Defendant and I so hold. In terms of difference, I must reiterate that generally, as stated in the case of WAEC v. Oshionebo (supra), an employee who resigns from employment forfeits all retiral benefits upon resignation as the resignation severs the jural employer-employee relationship unless the rules or agreement provides otherwise. In most cases, resignation would require the clearance of the employer to ascertain that the employee who intends to resign is not indebted to the employer or found wanting in any way before exit.Voluntary Retirement on the other hand entitles the employee to retiral and post-retiral benefits.

With regards to “whether it is the provisions of Pension Reforms Act 2004 or of 2014 that is applicable at the time of the retirement/resignation of the Claimant”, I must state that it is now clear to all and sundry that the Claimant resigned the employment of the Defendant with effect from the 2^nd of February, 2006 having given the Defendant one month notice via exhibit CW1(14). The facts relating to the contention is that prior to the enactment of the Pension Reforms Act, 2004, the Defendant had an in-house pension scheme regulated by a Trust Deed which was tendered as exhibit CW1(12) by the name ‘Union Bank Plc Staff Pension Fund, Deed of Variation of Trust Deed’. The Claimant tendered his resignation with effect from 2^nd of February, 2006 while the Pension Reforms Act was first enacted in 2004 and came into force on 25^th of June 2004. The Act introduced the Contributory Pension Scheme but the Defendant did not implement same immediately the Act came into force. By 2014, another Pension Reform Act was enacted with its long title reading thus:

“This Act repeals the Pension Reform Act No.2,2004 and enacts the Pension Reform Act, 2014 to continue to govern and regulate the administration of the uniform contributory pension scheme for both public and private sectors in Nigeria.”

In view of the repeal of the 2004 Act and the resignation and commencement of payment of pension to the Claimant in 2006 before same was stopped in 2015, the question that necessarily follows is what is the effect of the repeal of the 2004 Act in relation to the instant suit? The court in the case of SPDC v. ANARO & ORS(2015) LPELR-24750(SC) provided the answer by holding 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 clearly deals with such a situation. It provides:

“6(1) The repeal of an enactment shall not-

(a) affect anything not in force or existing at the time when the repeal takes place;

(b) affect the previous operation of the enactment or anything done or suffered under the enactment”.

This principle of interpretation was applied by Taylor F.J. in Ogamioba v. Oghene (1961) 1 All NLR 64 at 66 where he said “It is a well-known rule of construction that unless the contrary appears, the rights of the parties in a pending proceeding are not affected by the alteration of law during such pendency”.

See also: Are v. A.G. Western Region (1960) SCNLR 24; Unilorin v. Adeniran (2007) 6 NWLR (Pt.1031) 498″ Per AKA’AHS, J.S.C. (Pp. 29, paras. B-G)

In view of the foregoing, I reckon that no commencement date is provided for the 2014 Act.However, section 2 of the Interpretation Act stipulates to the effect that where no commencement date is contained in an Act, the commencement day shall be the day the Act is passed into law. Consequently, the commencement date for the 2014 Act is the 1^st of July, 2014 when the Act was enacted.

Consequent upon the foregoing, it is without doubt that at the time the Claimant resigned his appointment with the Defendant on the 2^nd of February, 2006 and his resignation was followed up with payment of pension, the applicable Pension Reform Act was that of 2004 and I so hold.

In essence, this court shall not give regards to the provisions of the Pension Reform Act of 2014 in determining the rights or liabilities of the parties in this suit.

Having said that, I turn to determine whether the Claimant is qualified for exemption from being categorized under the Contributory Pension Scheme introduced by the Pension Reform Act 2004.

The determination of the forgoing is predicated on the facts that upon the resignation of the Claimant, the Defendant commenced payment of pension to the Claimant under the Defendant’s Staff Pension Fund as captured in Exhibit CW1(12). When the payment was stopped abruptly after the Payment of that of October, 2015, the Claimant made enquiry to find out why the payment was stopped and the Defendant informed him he was not qualified for the pension in the first place as he was supposed to have been placed under the contributory pension scheme rather that the defined benefit scheme under which he was receiving the pension.

Claimant tendered Exhibit CW1(12) which is the Deed of Variation of Trust Deed under which he contended that he was qualified for pension from the Defendant having served continuously for ten years and having attained the age of 45. He also tendered Exhibit CW1(4) which is a copy of the notice of his terminal benefit written to the Assistant General Manager of the Defendant wherein the pension he is said to be entitled to was put N440,706.42 per annum. The notice is dated 22^nd June, 2006. Claimant also tendered Exhibit CW1(8) which is his statement of account with Union Bank to indicate and prove that the last time he was paid N43,520.64 as his pension was in October, 2015. He tendered exhibit CW1(9) as the letter of demand written by the firm of his lawyers to demand for the payment of his pension from the Defendant when same stopped in October, 2015. The said letter is dated 27^th September, 2016. Prior to the letter of demand, there were correspondences that ensued between the Claimant and the Defendant in relation to the stoppage of his pension payment. One is exhibit CW1(5) which is a letter from the Defendant to the Claimant dated the 17^th of December, 2015 wherein the Claimant was notified that his pension has been transferred to his Retirement Savings Account with LeadwayPensure PFA Limited and that his pension will henceforth be handled by the said PFA under the Contributory Pension Scheme.

Going further, by Exhibit CW1(6) which is a copy of an email dated the 23^rd of February, 2016 and addressed to the Claimant by one Jimmy Mokikan of the Defendant Bank, Claimant was informed that:

“Dear Mr. Uguru,

We acknowledge receipt of your mail. Meanwhile the following clarifications will be of importance with regards to the issues raised;

The exemption from contributory Pension scheme as applicable under the PRA 2004 is only applicable to those who has 3 or less years to retirement.

The mandatory retirement age for Union Bank is 60.

The exemption is applicable to retirement and not resignation.

From the available records, your(sic) resigned your appointment voluntarily and not retirement.

The transfer of your accrued pension rights to the PFA is in line with the Pension Reform Act…”

The Claimant perhaps was still not satisfied with the message from the Defendant and asked for further clarifications upon which Exhibit CW1(7) was sent to him dated 15^th September, 2016 which reads:

“Subject: CONFLICT BETWEEN RETIREMENT AND RESIGNATION

From: Richard Adieze (roadieze@unionbankng.com)

To: presakvenyahoo.c.o.uk;

Cc:jemokikan@unionbankng.com;meronoja@unionbankng.com; nfagbarakwe@unionbankng.com;

Date: Thursday, 15 September2015, 11:24

Dear Uguru,

Further to mails, letter and phone conversation, find below for your attention.

Prior to the commencement of the Pension Reform Act (PRA) 2004, the Bank had an in-house pension scheme (Legacy Pension) which was solely guided by the Bank’s Trust Deed and fully funded by the Bank. The Bank therefore commence the implementation of the provision of PRA 2004, in January, 2006 by deducting the Employee’s statutory 7.5% and making provision for the Employer’s 7.5% contribution. The remittance of pension deductions to the PFAs falls under the Contributory Pension Scheme (CPS) while the In-House Pension Scheme (Legacy Pension) managed by the Bank under the old scheme falls under the Defined Benefit Scheme (DBS).
Please be informed that your initial monthly payment was based on the premise that you fall under the Defined Benefit (DB) Scheme. However following the recent agreement reached with representatives of all the stakeholders in this matter and the subsequent ‘Approval-In-Principle’ by the National Pension Commission in line with Pension Reform Act 2014 endorsing the said agreement you were however classified under the CP Scheme. Pursuant to the agreement, please be informed that Union Bank Nigeria Plc (“the Bank”) has successfully transferred the total sum due to you as your accrued pension right to your Retirement Savings Account.
In line with the revised guidance Note (Section 10), retirees who retired /resigned under CPS and had been receiving monthly pension under DB Scheme from UBN, such pension received so far shall be refunded to UBN. The refund shall be through, a deduction from the accrued rights due to such retiree after the Actuarial Valuation.
After the final Actuarial valuation in 2015, your funds were transferred to the PFA (See attached). Please be informed that the amount to be paid by leadway as a monthly pension under the programmed withdrawal is a factor of retirement benefits in periodic sums spread throughout the length of an estimated life span taking into consideration the amount in your RSA, your age and gender.

We hope this satisfactorily addresses the issues raised in your letter

Regards.”

It is upon the foregoing letter that the Claimant made demand through his lawyers and subsequently instituted this suit. Claimant is particularly contending that he is exempted from the provision of the Pension Reform Act on being placed under the Contributory Pension Scheme. He added that he never made any contribution of 7.5% and neither did the Defendant make such contribution. Claimant also contended that the National Pension Commission wrote letters to the Defendant on the procedure to be used for the treatment of the Union Bank Funds remitted to PFAs. The saidletters are comprised asExhibit CW1(15) with the first dated the 17^th of April, 2013 and the second dated the 5^th of June,2013. The said letters presupposes that there had been issues with the Defendant on how to pay pension to retirees prior to the stoppage of the payment of the Claimant’s pension in 2015.

Notwithstanding, the first letter dated the 17^th of April, 2013 categorizes the various staff of the Defendant into (A) Active Staff, (B) Retirees Under The Old Defined Benefit Scheme (which covered employees who as at 30^th June 2004 had 3 years to retire either by age or length of service. such are exempted by virtue of section 8 of the PRA), (C). Staff Who Retired January 2005 to June 2007. (such people are regarded to be under the CPS but since the scheme commenced in July 2007, such people were exempted from the CPS) and (D). those who retired effective July 2007 to December 2012 (such people are under CPS and are to open RSAs). The categorization was sequel to a meeting which involved the Pension Commission, the Union Bank Pensioners Association and Representatives of Pension Fund Administrators.

Another meeting was held and that led to the second letter being written to the Defendant by the Commission notifying the Defendant on the update on how the Defendant is to transmit from the old Defined Benefit Scheme to the Contributory Pension Scheme. From the said second letter, the retires under the DB scheme were put to include:

“Those who retired within the transition period/exemption period (1 July 2004 – 30 June 2007 under the DB scheme, Having attained the normal retirement age or length of service

Those who retired voluntarily before 30 June 2004 or during the transition period (1 July 2004 – 30 June 2007 having put in 10 years in the service of UBN and

Those who retired before 30 June 2004 or from 1 July 2004 to 30 June 2007 as deferred pensioners before the age of 45 years but after 10 years of service in UBN. Any time they attain the age of 45 years, their pension crystalizes and are due for payment under the DB scheme.”

It is in view of the forgoing three captured categories that the Claimant contends that he is under the DB scheme and not under the Contributory pension scheme particularly in view of the fact that he had served the Defendant for over 10 years at the time he “retired” in February 2006 which is a period within the transition period.

The position of the Defendant on the issue is deducible from the correspondence sent to the Claimant and which was tendered by the Claimant in evidence as captured above. In addition, the Defendant posited that the Claimant is not exempted from the Contributory Pension Scheme introduced by the Act because the Claimant resigned rather than retire since he did not provide the requisite notice of 12 months for retirement as provided in page 12, paragraph 9 of Exhibit CW1(12).

While the Claimant tendered the letter of 5^th June, 2013 from the Pension Commission to the Defendant as Exhibit CW1(15), the Defendant on their part tendered Exhibit D2(a) which is the later development following the exhibit CW1(15) tendered by the Claimant. The said Exhibit D2(a) are copies of email correspondence between the Defendant and the Pension Commission with regards to the Guideline sent on the 5^th of June 2013. Arising from the said exhibit, the Defendant reviewed the Guideline sent to them by the Commission and reverted back to the Commission. By the email of June 12, 2013, the Defendant wrote to Pension Commission stating the following:

From; IYELA Michael B. [mailto:mbiyela@unionbnkng .com]

Sent; Wednesday, June 12, 2013 12:42 PM

To: George ChukwumaAnozie

Cc: MOKIKAN Jimmy E.; Lana Loyinmi; BabatundeOladipo Phillips; KWARGANA Ibrahim A.

Subject: RE: PENCOM LETTER TO UNION BANK’S LETTER ON TREATMENT OF LEGACY PENSION

George,

We have, carefully gone through the minutes and guidelines and seek clarification on item A(iii) of the guidelines which appears to conflict with PENCOM resolution 2.3 (ii) of the minutes. The relevant extracts are reproduced below:

Item A (iii) of guidelines which defines retirees under the 08 scheme include — “those who retire voluntarily before 30^th June 2004 or during the transition period (1 July 2004—3-June 2007) having put in 10 years in the service of UBN”

Item 2 3 (ii) of minutes which identify those exempted by the PRA 2004 states — “Those exempt from PRA 2004 (June 2004 to June, 2007), These are workers/retirees, who are exempt from the new contributory Scheme and therefore should enjoy DB benefits as in the old scheme. Their retirement dates between July 2004 and June 2007 and have attained the mandatory age of 60 years or have put in maximum length of service)…“

Please recall that this point was highlighted during our meeting with PENCOM and our understanding of the accepted position aligns with your record as presented in item 2.3(ii) of the minutes. We highlight as stated during the meeting that the ex-staff described in ltemA (iii) of the guidelines did not attain the mandatory retirement age of 60 years when they left the bank and in our view cannot be said to be within 3 years of retirement at the time of the enactment of the Pension Reform Act 2004. This group is quite distinct from the deferred Pensioners.

We would appreciate if PENCOM could please review this conflict with a view to resolution.

Finally our Actuaries have concluded work on the revaluation of the regrouped Legacy Pension/Accrued rights but we have requested them to stay action on the final report pending when we get PENCOM’s clarification on this issue.

We appreciate your support, –

Regards,

The conversation continued on the same date until the Representative of Pension Commission (George) stated that:

“We must admit, when you put it this way, it is made clearer. These are not mandatorily retired staff but voluntary and therefore under the DC scheme.

You are right as I have just made more clarification with my bosses. This means we will amend the Guidelines and resend.”

Upon the amendment, the “Addendum to the Revised Guidance Note” which form part of Exhibit D2(a) states that:

“Please note the following changes to the revised Guidance Note that was issued by the Commission.

Those who retired voluntarily during the transition period (1 July 2004 – 30 June 2007) should be treated under the Defined Contribution Scheme (CPS) (sic) and not under the DB Scheme as earlier stated
Their treatment should therefore be as under the CPS and as follows:…”

I must state that in view of the dates of the conversation which was in 2013, same preceded the action of the Defendant to stop the payment made to the Claimant under the DBS in 2015. Notwithstanding, I find that it is upon the foregoing that the Defendant stopped the payment of the Claimant’s pension in addition to the contention that the Claimant did not retire nor complywith giving 12 months’ notice for voluntary retirement.

While the forgoing contentions were related to matters of facts which had been made clear by the evidence before the court, the contention relating to law upon which the resolution of the sole issue formulated in this suit largely rests is the contention relating to the provision of section 8 of the Pension Reforms Act, 2004 where upon the Claimant contends that he is exempted from being placed under the Contributory Pension Scheme. The Defendant on the other hand contended that by the same section 8 which is now section 5 in the 2014 Pension Reform Act, the Claimant was not qualified for exemption in view of the fact that the provision provides that the retiree must have three years or less to retire at the coming into force of the Act and that the pension paid to the Claimant had become impracticable, unlawful and illegal.

In view of the foregoing contentions, it is essential to consider the provision of section 8 of the Pension Reforms Act 2004 which provides thus:

(1) Notwithstanding the provisions of subsection (2) of section 1 of this Act, any employee who at the commencement of this Act is entitled to retirement benefits under any pension scheme existing before the commencement of this Act but has 3 or less, years to retire shall be exempted from the scheme.

(2) The categories of person mentioned in section 291 and members of the Armed Forces of the Federation in section 217 of the Constitution of the Federal Republic of Nigeria 1999 and members of the Intelligence and Secret Service shall be exempted from the Scheme.

(3) Any person who falls within the provisions of subsections (1) and (2) of this section shall continue to derive retirement benefit under such existing pension scheme as provided for in the First Schedule to this Act.

(4) Nothing in this Act shall preclude the right of any person mentioned in subsection (1) and (2) of this Act to be paid his pension as and when due.

Arising from the facts and evidence before this court, the relevant sub-section in relation to this suit is sub-section (1), the interpretation of which breeds no ambiguity. The implication of the sub-section is that employees who at the time of commencement of the Act in June 2004 are entitled to retirement benefit but have not yet retired because they have three years or less to retire, shall be exempted from the Act. In other words, such persons are not to be captured by the Contributory Pension Scheme introduced by the Act under section 1. Although the provision of section 8 is made notwithstanding the provision of section 1 (2), the extent of the limitation of section 1 is as mentioned in section 8 (1) and (2).

The question that necessarily follows in view of the forgoing resolved contentions, particularly the distinction between resignation and retirement,is whether the Claimant falls under the exemption provided in section 8 of the Pension Reform Act. Foremost, I have taken a look at paragraph 9, page 12 of Exhibit CW1(12) and find rightly so that the Trust Deed required the Claimant to provide 12 months’ notice for voluntary retirement since the Claimant has not attained the age of normal retirement but has reached and passed the age of 45. Against this provision, the Claimant not only did not provide the requisite 12 months’ notice, he also did not apply for voluntary retirement rather he applied for ‘resignation of appointment’ as clearly seen in Exhibit CW1(14) and the wordings of section 8 (1) of the Pension Reform Act 2004 does not capture such situation for exemption. Section 8 (1) rightly exempts persons who have maximum of three years left to serve as at the time of its coming into force. The Claimant’s resignation letter states that he was 48 at the time he tendered his resignation. Although the Act did not define the age in target of which a person should be three years left to attain but from the Trust Deed tendered by the Claimant himself, the Normal Retirement age is put at 60 and 55.

While the Claimant enjoyed the exception to the rule that resignation does not carry with it the enjoyment of terminal benefit under the variation Trust deed, the enjoyment was initially given cognizance under the employment relationship leading to Exhibit CW1(4), the enjoymentdid not survive the provision of section 1 of the Pension Reform Act which states that:

There shall be established for any employment in the Federal Republic of Nigeria, a Contributory Pension Scheme (in this Act referred to as “the Scheme”) for payment of retirement benefits of employees to whom the Scheme applies under this Act.

The wordings are clear, the natural meaning of the words are what is to be given effect without more. The court in Noga Hotels Int’l S.A. v. NICON Hotels (2008) All FWLR (Pt. 411) 840 at 850, P. 869, paras. C – D (CA)held that:

“Where the words of a statue are clear and unambiguous, they should be construed as to give effect to their natural and literal meaning. See Okumagba v. Egbe (1965) 1 NMLR 62; Berliet (Nig) Ltd v. Kachalla (1995) 9 NWLR (Pt. 420) 478; Ogbunyiya v. Okudo (1979) 6 – 9 SC 32, (2001) FWLR (Pt. 72) 1987”. Per Uwa JCA

Going further, I must state that I reckon the contention of the Claimant as to having served for ten years in the employment of the Defendant, upon evaluation of Exhibit CW1(12), I reckon that the period of ten years mentioned in paragraph 8 is a qualifying period for entitlement to a benefit. In other words, the Claimant having served for more than ten years was qualified to apply for voluntary retirement but that did not erase the need to give the 12 months’ notice which he jettisoned.

Consequent upon the foregoing, I find that the Claimant was not qualified for exemption from being categorized under the Contributory Pension Scheme introduced by the Pension Reform Act 2004.

It is upon the foregoing resolution that I consider the reliefs sought by the Claimant. Reliefs (a) and (b) are declaratory reliefs which the burden is on the Claimant to prove. The reliefs reads:

A declaration that the claimant was properly placed under the defined Benefits Scheme (DBS) upon his resignation effective on the 2^ndday of February 2006 and accordingly placed on retirement by the defendant pursuant to Section 8(1) of the Pension Reform Act, 2004.
A declaration that it is improper for the Defendant to retrospectively stop the payment of the Claimant’s Pension or salary under the Defined Benefits Scheme (DBS) pursuant to the amended Pension Reform Act of 2014.

With regards to relief (a), I must state that the Claimant has not placed before this court any evidence in proof of the fact that at the time he left the employment of the Claimant he had three years or less to retirement which would have earned him a qualification for exemption from the application of the Pension Reform Act which introduced the Contributory Pension Scheme in place of any other pension scheme available. The effect of the Claimant having failed to prove that he was qualified for exemption is that the declaration that he was properly placed under the Defined benefit scheme and should remain under same cannot be granted for dearth of proof that he is entitled to the declaration. Consequently, relief (a) is refused.

With regards to relief (b), upon the finding that the Defendant did not properly place the Claimant on Defined Benefit Scheme as he ordinarily ought to have been placed on contributory Pension Scheme, the decision to transfer the pension of the Claimant to a Contributory Scheme is in tandem with the provision of section 12 of the Pension Reform Act and failure of the Defendant to do same will be in contravention of the Act since at the time of the coming to force of the Act, the Claimant had more than 3 years to attain the normal retirement age of 55 or 60 and the fact that the Claimant resigned rather than retire. This court does not find it inappropriate for the Defendant to stop an act which had become impracticable under the law and same is not retrospective in view of the time of commencement of the Pension Reform Act 2004 and the time the Claimant resigned in 2006. Consequently, the stoppage of the payment of the pension under the Defined Benefit Scheme and transferring same into the Contributory Pension Scheme is not improper. Consequently, the declaration sought in relief (b) cannot be granted as prayed and the claim accordingly fails.

Relief (c) is for an order which is dependent on the declarations sought in reliefs (a) and (b) and the relief reads:

“An order of the Honorable Court directing the Defendant to immediately pay the Claimant all his pension arrears in the sum of N43,520. 64 (Forty Three Thousand, Five Hundred and Twenty Naira, Sixty Four Kobo) only per Month from the month of November 2015 till judgment and thereafter continue to pay the Pension in line with Labour prevailing rate till death.”

Without much ado, the declarations sought in reliefs (a) and (b) having failed, there is no basis upon which the order for the continuous payment of pension under the Defined Benefit Scheme can be made since the Defendant was acting within the provisions of the Pension Reform Act, 2004 in capturing the Claimant under the Contributory Pension Scheme rather than leaving him under the Defined Benefit Scheme. Consequently, relief (c) must fail and is hereby refused.

Relief (d) which is for a claim of general damages put at N100,000,000.00 is dependent on whether the Claimant has been wronged by the act of the Defendant in stopping the payment of his pension under the Defined Benefit Scheme. The court in SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS.(2008) LPELR-8462(CA)posited with regards to the nature of general damages that:

“General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. StirbugAstaldi Ltd. (1977) 11 – 12 SC and ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288.”Per OMOKRI, J.C.A. (P.28, Paras.E-A).

In view of the determination of reliefs (a) and (b), it is impossible for this court to come to the conclusion that the Defendant had wronged the Claimant. The entire facts and circumstances of the case as buttressed by the evidence before the court does not establish any form of malice or intent to wrong the Claimant though it may be unfortunate that the Defendant made the error of having been paying the Claimant his pension under the Defined Benefit Scheme, the stoppage of same was not in bad faith and this court does not find the stoppage to be a wrong in view of the provision of the law. General damages reckon that where there is a wrong, there is a remedy. Conversely, where there is no wrong, forcing out a remedy will be unjust. Consequently, in view of the fact that the Defendant is found not to have wronged the Claimant, relief (d) on general damages is accordingly refused.

Consequent upon the foregoing, this court comes to the irresistible conclusion that in view of the evidence before this court and in view of the provisions of the Pension Reform Act, 2004 particularly section 8 (1), the Claimant is not exempted from the application of the Pension Reform Act nor from being captured under the Contributory Pension Scheme. Also, the Claimant is not entitled to the reliefs sought and the sole issue for determination is resolved against the Claimant and in favour of the Defendant.

In the final analysis, this court finds that the case of the Claimant lacks merit and same is accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR