NICON INSURANCE LTD v. ADEWOJO (2022)

NICON INSURANCE LTD v. ADEWOJO

(2022)LCN/17205(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, December 13, 2022

CA/L/407/2010

Before Our Lordships:

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

NICON INSURANCE LIMITED APPELANT(S)

And

MICHAEL ADEBOWALE ADEWOJO RESPONDENT(S)

RATIO

THE POSITION OF LAW ON ORIGINATING PROCESS AS THE FOUNDATION OF ANY ACTION

Simply put, the Originating Process is the ignition of any action, the foundation upon which pleadings are constructed. In Okpe v Fan Milk Plc & Anor (2016) LPELR-42562 (SC), the Supreme Court held per Ibrahim Tanko Mohammad JSC:
“an originating process is the foundation stone of any proceedings in any Court. It thus affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective process. If it does, the proceeding however well conducted will amount to a nullity.” A Writ of Summon that is defective goes to the root of the action and also borders on the jurisdiction of the Court, therefore failure to commence proceedings with a valid Writ makes such proceeding liable to be set aside as incompetent and nullity, see Aromire & Anor v Aromire & Ors (2019) LPELR- 47704. It is therefore apposite that because the Writ of Summon in the instant case was properly signed, it cannot be deemed defective notwithstanding the fact that the Amended Statement of Claim was not properly signed. This position of the law did not expressly extend to a Statement of Claim and other accompanying process. What then is the effect of an improperly signed Statement of Claim in an action such as this where the Writ of Summon is valid? The Supreme Court provided a clear distinction between the writ and statement of claim in the case of Heritage Bank Ltd v Bentworth Fin. (Nig.) Ltd (2018) 9 NWLR (Pt. 1625) 434 per Eko, JSC held thus: “an irregularity affecting an originating process is a fundamental irregularity that goes to the root. The statement of claim, I must point out, is not such an originating process” It is without doubt that a Statement of Claim not properly signed or not signed in the name of a legal practitioner in accordance with Section 2(1) and 24 of the Legal Practitioner’s Act is not a valid statement of claim and therefore no evidence could be considered on a defective Statement of Claim but it will however not warrant an order dismissing the suit since the Writ of Summons is valid and the suit itself is legally in existence. See Hamzat & Anor v Sanni & Ors (2015) LPELR-24302 (SC); Gama v Abba (2015) LPELR-25638(CA); Moudkas Nig Ent. Ltd & Anor v Obioma & Ors (2016) LPELR-40165. In the case of Osayomi v Government of Ekiti State & Ors (2018) LPELR-43514, this Court per Elechi, JCA expressly confirmed this position when it held that:
“Therefore, the Writ of Summons, having been properly signed and competent could not and should not be allowed to be killed by an incompetent statement of claim…” PER UMAR, J.C.A.

WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE FORMULATED FROM THE GROUNDS OF APPEAL

It is trite that issues must be formulated from grounds of appeal which in turn must also derive from the ratio decidendi of the judgment appealed against. See Awuse v Odili (2004) 8 NWLR (Pt. 874-876) 494; Eyigebe v Iyaji (2013) LPELR-20522 (SC). I have considered the grounds 1, 2, 3, and 4 contained in the Notice of Appeal and it is crystal clear that this issue under consideration is well distilled from those grounds, particularly ground 2 and I do not see how it “attacked” the said interlocutory decision of the lower Court made on the 16 June, 2003 in any form whatsoever. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Lagos Division (“the lower Court” or “the trial Court”) delivered on the 9th day of June 2008 coram D.D Abutu, J. in Suit No: FHC/L/CS/06/2003 wherein the trial Court gave judgment in favour of the Respondent.

The Respondent as Plaintiff commenced the action by a Writ of Summons and Statement of Claim dated 3rd January, 2003. The suit was consolidated with 13 other suits by the Order of the trial Court made on the 3rd of March, 2004. The Respondent thereafter filed an Amended Statement of Claim dated 25th May, 2004 against National Insurance Corporation of Nigeria, the Defendant at the lower Court. The reliefs sought by the Respondent as endorsed on the Amended Statement of Claim are as follows:
1. A Declaration that the defendant has a statutory duty to pay the Plaintiff his pension entitlements and accrued arrears thereof, in line with the following Federal Government circulars:
a. Ref No B.63216/S.1/X/T3/105 dated 30th January, 1997
b. Ref No B.63216/S.1/X/T3/124 dated 7th January, 1998
c. Ref No SWC/S/04/S.8/25 dated 11th May, 1999 and
d. Ref No B.63216/S.1/X dated 6th July, 1999
e. Ref No SWC.OH/VOL.IV/1011 of 17th May, 2000
2. An Order of the Mandatory injunction compelling the defendant to pay to the Plaintiff forthwith, the accrued arrears of his pensions entitlements as at 31st December 2002 in the sum of N1,321,801.52 calculated in accordance with the circulars referred to above.
3. A declaration that the Plaintiff is entitled to the payment of N35,485.91 monthly pension from 31st December 2002 being the harmonized and revised pension due and payable to the plaintiff in line with the Federal Government circulars listed above.
4. An Order of mandatory injunction compelling the defendant to pay the plaintiff his monthly pension in the sum of N35,485.91 calculated in line with the directives of the Federal Government of Nigeria contained in the circulars listed above and to make up any shortfall between this monthly payment and the amount of the monthly pensions paid to the plaintiff subsequent to the filing of the action.

In response to the suit, the Appellant filed a Statement of Defence on 14th September, 2003. In the course of the proceedings, the Respondent vide an Application dated 10th June but filed on the 13th of June, 2003, sought the leave of the lower Court to join Bureau of Public Enterprise (BPE) as the 2nd Defendant, the lower Court granted the Application in its ruling dated 24th July, 2003. The Respondent however discontinued the suit against the 2nd Defendant when it was adjudged that the 2nd Defendant was not a relevant party to the suit. The lower Court thereafter struck out the suit against the 2nd Defendant on the 12th November, 2003.

On the 9th of June, 2008, the trial Court in its judgment granted all the claims of the Respondent.

Being dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court via an Amended Notice of Appeal dated 7th April, 2022 but filed on the 12th April, 2022. The Notice of Appeal contains five grounds of Appeal upon which the Appellant sought to set aside the trial Court’s decision.

The Appellant filed his Brief of Argument. The Appellant’s Brief of Argument was settled by EMMANUEL O. PIPPA, ESQ. Counsel to the Appellant formulated two issues for the determination of this appeal in his Appellant’s Brief of Argument to wit:
1. Whether or not the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co, Counsel to the Respondent is competent and capable of invoking the jurisdiction of the lower Court to entertain the Respondent’s case. (distilled from ground 5 of the grounds of appeal)
2. Whether or not the lower Court was right in entering judgment against the Appellant notwithstanding the admission by the Respondent in their affidavit dated 6th Day May, 2003 of the privatization of the Appellant, and without hearing evidence in each of the consolidated suit. (Distilled from grounds 1, 2, 3 and 4 of the grounds of Appeal)

The Respondent also filed his Brief of Argument. The Respondent’s Brief of Argument was settled by PETER O. OLALERE, ESQ. Counsel to the Respondent formulated two issues for the determination of this appeal in his Brief of Argument to wit:
1. Considering the relevant Writ of Summons originating the suit leading to this appeal was duly signed by a legal practitioner qualified to practice law in Nigeria, whether failure of counsel to sign the amended statement of claim in his name could invalidate the competence of the suit. (Ground 5)
2. Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal. (Grounds 1, 2, 3 and 4)

I have given due consideration to the grounds of Appeal, the issues distilled therefrom and the arguments put forward by Counsel in their respective briefs and I have therefore framed the following two issues which succinctly encompasses all the issues raised by the Appellant. I am of the firm view that the following issues can accommodate all the complaints distilled from the grounds of appeal. The issues are as follows:
1. Whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case.
2. Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal.

ISSUE ONE
Whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case.

APPELLANT’S SUBMISSIONS
Counsel to the Appellant submitted that jurisdiction is a threshold issue which goes to the root of the power of the Court to adjudicate over the parties and subject matter before it, therefore where a Court goes to hear a matter of which he has no jurisdiction to hear, the decision of the Court in such matter is a nullity. Counsel further submitted that because of the fundamentality of jurisdiction, issues concerning it can be raised at any stage of the proceedings or even for the first time on appeal. Counsel placed reliance on the case of NURTW & Anor v RTEAN & Ors (2012) 1SC (Pt. 11)119; Usman Dan Fodio University v Kraus Thompson Organization Ltd (2001) 15 NWLR (Pt. 736) 305.

Counsel to the Appellant submitted that the Statement of Claim filed by the Respondent at the lower Court and signed in the name of SPA Ajibade & Co is fundamentally defective and incapable of conferring jurisdiction on the trial Court, Counsel referred us to Onyekwuluje & Anor v Animashaun & Anor (2019) 1SC (Pt. VI); Emmanuel Okafor & Ors v Augustine Nweke & Ors (2007) 3SC (Pt. II) 55; Chief Gabriel Igbinedion & Anor v Watson & Sons Ltd (2018) 8 NWLR (Pt. 1621) 381. Counsel further submitted that from the plethora of decisions of the Supreme Court, the suit before the lower Court is fundamentally defective and liable to be struck out for want of jurisdiction. Counsel therefore urged this Court to resolve this issue in favour of the Appellant and strike out the Respondent’s suit.

RESPONDENT’S ARGUMENT
Relying on the case of Braithwaite v Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1 at 22, Respondent’s Counsel argued that a Writ of Summons is the originating process in this suit and it is the Writ of Summons that ignites the jurisdiction of the Court. Counsel further argued that the submission of the Appellant that a Statement of Claim constitutes an originating process runs foul of Order 2 Rule 1 of the Federal High Court Civil Procedure) Rules, 2000 which is in pari materia with Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019) and the decision of the Court in the case of Buhari v Adebayo (2014) 10 NWLR (Pt. 1416) 560.

Respondent’s Counsel argued that the suit leading to this appeal was duly originated by a Writ of Summons duly signed by a legal practitioner in line with the rules of Court. Counsel further argued that non-compliance with any of the requirements of the Rules of Court would be treated as an irregularity which would not invalidate the process and can only be challenged timeously. Counsel conceded that by the decision of the Supreme Court in the case of FBN Plc v Maiwada (2013) 5 NWLR (Pt. 1348) 444, a process that is not properly signed in the manner prescribed by the Legal Practitioners Act is incurably defective and is liable to be struck out but a process or Writ that is properly signed is not liable to be struck out, therefore if the defective Statement of Claim is to be struck out, the case will be alive as the properly signed Writ of Summons cannot be buried.

Respondent’s Counsel relied on the case of Heritage Bank Ltd v Bentworth Finance Ltd (2018) 9 NWLR (Pt. 1625) 420 to argue that there is a distinction between an originating process and a defective Statement of Claim and that a defect in the Statement of Claim is a mere irregularity while an irregularity affecting an originating process is a fundamental irregularity which goes to the root, the Statement of Claim is not such an originating process. Counsel further argued that the Appellant did not raise an objection on the irregularity of the Statement of Claim before the trial Court, therefore an attempt to raise the issue now is belated as equity aids the vigilant and not the indolent. Counsel further referred us to the case of Integrated Merchants v Osun State Government (2007) LPELR 8803 to argue that while a defect in the Writ of Summons will affect the entire action and deprive the Court of jurisdiction, defect in the accompanying processes like Statement of Claim, List of Witnesses and List of Documents will not affect the Writ and therefore, any defect in them is incapable of nullifying the whole proceedings, to buttress this argument, Counsel further relied on the case of Okunade v Olawale (2014) 10 NWLR (Pt.1415)207; DHL v Ademola (2018) LPELR-46041(CA)

RESOLUTION OF ISSUE ONE
This issue is raised against the signature of the Respondent’s Counsel which was made in the name of the law firm “SPA Ajibade & Co” and signed thus on the Amended Statement of Claim (see page 80 of the Record). The question is whether the signature is in consonance with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act.
Sections 2(1) and 24 of the said Legal Practitioners Act which reproduction would be pertinent for better comprehension and appreciation provides that:
2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll…
24. In this Act, unless the context otherwise requires, the following expressions have the meaning hereby assigned to them respectively, that is to say: “Legal Practitioner” means a Person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purpose of any particular office proceedings.
By the combined effect of the two sections supra, it is apparent therefore that, for any person to qualify as a Legal Practitioner within the meaning of Section 24, he must have attained the status and recognition of having been called to the Nigerian Bar and with his name which must be on the roll of Legal Practitioners at the Supreme Court.
There is no evidence before this Court to show that the name “SPA Ajibade & Co” is on the roll of legal practitioners at the Supreme Court. The Supreme Court in the case of Okafor & Ors v Nweke & Ors (2007) 5 SC 185 at 186-187, made pronouncement on the interpretation of the provisions of Section 2(1) and 24 of the Legal Practitioner’s Act to the effect that no name or person outside the designated and recognized “roll” would either be competent or acceptable to qualify as a legal practitioner and can validly sign Court processes. See NBC & Anor v Mohammed (2012) LPELR-9325. Consequentially, a Court process signed by a law firm or someone whose name is not on the roll would be defective and incompetent. See SLB Consortium Ltd v NNPC (2011) 9NWLR (Part 1252) 317 at 337-338; FBN Plc v Maiwada (2013) 5 NWLR (Part 1348) 444.

However, the Respondent’s Counsel has made adequate distinction between an Originating Process and other accompanying documents. It should be noted that in the instant case, the Writ of Summons was properly signed by the Respondent’s Counsel but the Amended Statement of Claim was signed in the name of law firm ”SPA Ajibade & Co”.
Simply put, the Originating Process is the ignition of any action, the foundation upon which pleadings are constructed. In Okpe v Fan Milk Plc & Anor (2016) LPELR-42562 (SC), the Supreme Court held per Ibrahim Tanko Mohammad JSC:
“an originating process is the foundation stone of any proceedings in any Court. It thus affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective process. If it does, the proceeding however well conducted will amount to a nullity.” A Writ of Summon that is defective goes to the root of the action and also borders on the jurisdiction of the Court, therefore failure to commence proceedings with a valid Writ makes such proceeding liable to be set aside as incompetent and nullity, see Aromire & Anor v Aromire & Ors (2019) LPELR- 47704. It is therefore apposite that because the Writ of Summon in the instant case was properly signed, it cannot be deemed defective notwithstanding the fact that the Amended Statement of Claim was not properly signed. This position of the law did not expressly extend to a Statement of Claim and other accompanying process. What then is the effect of an improperly signed Statement of Claim in an action such as this where the Writ of Summon is valid? The Supreme Court provided a clear distinction between the writ and statement of claim in the case of Heritage Bank Ltd v Bentworth Fin. (Nig.) Ltd (2018) 9 NWLR (Pt. 1625) 434 per Eko, JSC held thus: “an irregularity affecting an originating process is a fundamental irregularity that goes to the root. The statement of claim, I must point out, is not such an originating process” It is without doubt that a Statement of Claim not properly signed or not signed in the name of a legal practitioner in accordance with Section 2(1) and 24 of the Legal Practitioner’s Act is not a valid statement of claim and therefore no evidence could be considered on a defective Statement of Claim but it will however not warrant an order dismissing the suit since the Writ of Summons is valid and the suit itself is legally in existence. See Hamzat & Anor v Sanni & Ors (2015) LPELR-24302 (SC); Gama v Abba (2015) LPELR-25638(CA); Moudkas Nig Ent. Ltd & Anor v Obioma & Ors (2016) LPELR-40165. In the case of Osayomi v Government of Ekiti State & Ors (2018) LPELR-43514, this Court per Elechi, JCA expressly confirmed this position when it held that:
“Therefore, the Writ of Summons, having been properly signed and competent could not and should not be allowed to be killed by an incompetent statement of claim…”

It is my considered view however that the Appellant, as the defendant in the trial Court, condoned the defective process. They participated in the proceedings, filed a Statement of Defence to join issues with the defective Statement of Claim. The judgment of the trial Court, based on the evidence elicited from the Statement of Claim, was delivered without objection. See Heritage Bank Ltd v Bentworth Fin. (Nig.) Ltd (Supra); Bakari v Ogundipe & Ors (2020) LPELR-49571(SC).
In Bakari v Ogundipe & Ors (supra), the Supreme Court per Eko JSC held that:
“In the instant case. The point of the statement of claim being defective. Having been settled by an unknown proxy of Chief A.S Awomolo, SAN, is being raised for the first time in this second tier of appeal. The Appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 0f the Evidence Act, 2011 is provided thus- when one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. I should think it is now inequitable and unjust to the plaintiff/1st Respondent for this Court to accede to this belated objection; the Appellant having waived his right of timeous objection to the irregular Statement of Claim. Delay defeats equity…”
From this well-considered holding of the Supreme Court above, it is my view that the Appellant having condoned the defective Statement of Claim all through the proceedings at the trial Court and did not raise objection to it cannot now belatedly raise the objection on appeal. Equity helps the vigilant and not the indolent.

From the foregoing, I hold that this issue of whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case goes to no issue. This issue is therefore resolved in favor of the Respondent.

ISSUE TWO
Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal?

Counsel to the Appellant submitted that the lower Court entered judgment wrongly against the Appellant for claims applicable only to public officers under the Pension Act of 2004 despite the lower Court’s awareness of the Respondent’s affidavit in support of Motion for Joinder dated 6th May, 2003. According to the Counsel to the Appellant, the basis for joining the Bureau of Public Enterprise in the suit before the lower Court was because the Respondent was aware that the Appellant was in the process of being privatized and his claim would be overtaken by event if the process is concluded before the lower Court give judgment.

Counsel further submitted that the application for Joinder filed by the Respondent was an admission that NICON Insurance Plc. Which was eventually acquired by the Appellant was not going to be liable for the claims for the Respondent which was brought under the Pension Act 2004. He also submitted that the Respondent did not take any step to join NICON Insurance Plc in the suit and as such, the Respondent cannot enforce the lower Court’s judgment against NICON Insurance Plc. Counsel relied on the case of Ukaegbu v Ugoji (1991) 6 NWLR (Pt. 196) 127.

Counsel to the Appellant also submitted that the subject matter of the suit before the lower Court ceases to exist after the privatization of the Appellant was concluded and the Appellant ceases to be a public corporation, Counsel further submitted that the lower Court was in error and in breach of NICON Insurance Plc right to fair hearing to have given judgment against NICON Insurance Plc who was not a party to the proceedings.

Counsel to the Appellant submitted that the lower Court wrongly considered the evidence of a single witness and held same as evidence in the consolidated suits. Counsel further submitted that the failure of the Respondent to call evidence in the case before the lower Court is fatal to the case of the Respondent which is liable to be struck out for want of evidence, Counsel therefore urged this Court to strike out the Respondent’s case for want of evidence.

RESPONDENT’S ARGUMENT
In arguing this second issue, Respondent’s Counsel submitted that the issue does not arise from any of the grounds of appeal. Counsel argued that the second issue attacks the ruling of the lower of the Court made on 16th June, 2003 in respect of an application for Joinder filed by the Respondent seeking to join the Bureau of Public Enterprise as a party, the application was supported with an affidavit wherein the Respondent admitted that the Appellant was in the process of being privatized. Counsel further argued that there is no ground of appeal attacking either the Order for Joinder made on the 16th June, 2003 or the Order made on the 14th December, 2003 to strike out Bureau of Public Enterprise from the suit or complaint about lack of hearing of evidence in each of the consolidated suits before entering Judgment. Counsel relied on the case of Dagaci of Dere v Dagaci of Ehwa (2006) 7 NWLR (Pt. 979) 382 at 444; Nwokocha v Ike & Ors (2015) LPELR- 25662 (CA) and Unity Bank Plc v Akpeji (2018) LPELR-44995 to argue that issues for determination in an appeal must arise from ground of appeal. Counsel argued that the Appellant did not base his argument on the complaint that the Appellant was not a statutory corporation or a public service organization to which the provisions of the Pension Act apply but veered off to argue on an alleged admission of the respondent in an affidavit and failure of the lower Court to call for evidence in each of the consolidated suit. Counsel further argued that the issue is not based on any ground of appeal and is liable to be struck out together with grounds 1 to 4 from which no issue for determination has been raised.

Respondent’s Counsel also argued that at the lower Court, oral evidence was led by 4 of the 14 Plaintiffs as the remaining 10 plaintiffs appropriated relevant parts of the evidence given by the first 4 plaintiffs in their depositions to their respective affidavits, therefore all the Plaintiffs gave affidavit evidence in the 14 consolidated suits.

Respondent’s Counsel further argued that the Appellant was formerly known as NICON, a statutory corporation which was not liquidated but was acquired and transformed into its present name and status, he argued that consequently, the assets and liabilities of the Appellant was transferred to its present status as well and the Appellant is obligated to pay the pension of the Respondent for life. Counsel relied on Sections 1(1), 24 and Schedule 2 of the Pensions Act, 1990 and NSPMC v Adekoya (2003) 16 NWLR (Pt. 845) 128; Augustine F.I Ibam v. Shell Petroleum Company of Nigeria (1998) 3 NWLR (Pt. 543) 493 at 499.

Respondent’s Counsel also argued that the judgment of the lower Court was not delivered against a non-existing party or unknown party as submitted by the Appellant but that fair hearing was given and the Appellant had ample opportunity to file counter affidavit and also to cross-examine any of the witnesses or deponents.

In conclusion, the Respondent’s Counsel submitted that the judgment of the lower Court has been implemented and enforced partially and this has led to the reinstatement of the Respondent and other NICON pensioners alive on the Pension Payroll of the Federal Government via the Pension Transitional Arrangement Directorate and thus, the instant appeal is academic and liable to be dismissed.

RESOLUTION OF ISSUE TWO
It is my view that the argument of the Respondent that this issue attacks the ruling of the lower of the Court made on 16th June, 2003 in respect of an application for Joinder filed by the Respondent seeking to join the Bureau of Public Enterprise as a party and that it does not arise from any ground of appeal is utterly misconceived. It is trite that issues must be formulated from grounds of appeal which in turn must also derive from the ratio decidendi of the judgment appealed against. See Awuse v Odili (2004) 8 NWLR (Pt. 874-876) 494; Eyigebe v Iyaji (2013) LPELR-20522 (SC). I have considered the grounds 1, 2, 3, and 4 contained in the Notice of Appeal and it is crystal clear that this issue under consideration is well distilled from those grounds, particularly ground 2 and I do not see how it “attacked” the said interlocutory decision of the lower Court made on the 16 June, 2003 in any form whatsoever.

Going forward, the fulcrum of this appeal is the question of whether the Respondent is entitled to be paid by the Appellant the benefits from the increment to which Exhibits 1, 1A-1E relate. A careful consideration of Exhibits 1, 1A-1E reveals that these circulars apply to officers in the public service of the Federation. Also, the review of pension rates as shown in Exhibit 1C applies to officers in the public service of the Federation. Furthermore, by Section 24 of the Pensions Act, 2004, the National Insurance Corporation of Nigeria was one of the enterprises declared a public service.

However, the National Insurance Corporation of Nigeria, a public corporation, having been privatized became defunct and changed into a different entity being NICON Insurance Ltd. It is my view that the Appellant formerly known as National Insurance Corporation of Nigeria did not undergo dissolution or liquidation but was privatized and transformed to its current status. Privatization is the transfer of control of a public enterprise from the State to the private sector. In effect, the assets and liabilities including the pension liabilities of National Insurance Corporation of Nigeria is transferred to the Appellant accordingly.

It has long been firmly established that where relevant and credible evidence is unchallenged and uncontroverted, the Court has no alternative than to accept it and act on it. See Omoregbe v Lawani (1980) LPELR- 2655(SC); Durosaro v Ayorinde (2005) LPELR-967 (SC).

In view of the fact that the computations made by the Respondent of their arrears of pension based on the directives contained in Exhibits 1,1A to E was not challenged by the Appellant and also the evidence of the Respondent relating to the computation of monthly pension, the amount of pension arrears due to him and other former employees in the consolidated suits at the lower Court has neither been challenged nor controverted, I hold that the Appellant is liable to pay the judgment debt due to the Respondent. On the whole, I hold that this appeal is unmeritorious and it is hereby dismissed. Accordingly, the judgment of the trial Court Per D.D Abutu, J. of the Federal High Court, Lagos, delivered on the 9th day of June 2008 in Suit No: FHC/L/CS/06/2003 is hereby affirmed.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance, draft of the judgment just by my learned Brother ABUBAKAR SADIQ UMAR, JCA. I also dismiss the appeal for being unmeritorious. I abide by the consequential order.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment prepared by my learned brother, ABUBAKAR SADIQ JMAR, JCA, in this appeal was made available to me in draft before now. I am in agreement with his reasoning and conclusion that the appeal lacks merit and is deserving of dismissal. The Appellant having failed to challenge the computation of the Respondent’s arrears of pension by credible evidence, is liable to pay the Respondent the sum adjudged against it by the lower Court. I hold that the lower Court was right in finding the Appellant liable to the Respondent. Consequently, I adopt the reasoning in the leading judgment as mine in also dismissing the appeal and affirming the judgment of the lower Court.