IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK
ON THE 16TH DAY OF SEPTEMBER, 2019
SUIT NO: NICN/ABJ/311/2018
BETWEEN
PETER OWOICHO CLAIMANT
AND
- NIGERIAN ARMY
- MILITARY PENSION BOARD DEFENDANTS
REPRESENTATION
Emmanuel S. Njoka Esq. for the claimant.
- A. Umoru Esq. for the defendants.
JUDGMENT
- INTRODUCTION
The claimant filed a complaint in this Court on 14/11/2018 accompanied by statement of facts, witness statement on oath, list of witnesses, list and copies of documents as required by the Rules of this Court.
The defendants did not participate in the proceedings until after the case was adjourned for adoption of final written address when they brought a motion whereupon time was extended for them to file statement of defence and to defend the case.
The defendants’ statement of defence was deemed properly filed and served on 30/4/2019.
The claimant prays for;
1.An order of mandamus compelling the 1st respondent to forthwith assess the severity of the complainant’s injury /wound and rate same in accordance with Chapter 14:22 Tables A and B (other – Disablements) of the Harmonised Terms and Conditions of Service for Soldiers/Ratings and Airmen, 2012.
2.An order of mandamus compelling the 1st respondent to forward, forthwith to the 2nd respondent, Disability Pension Payable to the Complainant for immediate payment commencing from when the Disability pension became due.
3.An order directing the 1st and 2nd respondents to pay forthwith the sum of N350, 000 only as special damages.
4.An order of court directing the 1st and 2nd respondent to pay N2,000, 000.00 only as general damages for inconveniences suffered by the complainant.
- STATEMENT OF FACTS
The claimant was enlisted into the Nigerian Army on 22nd January 1996. In the cause of performing security duties, he received injury /wound in his right lower limb in 2005. The claimant was diagnosed with Chronic Foot Ulcer with Cellulitis by the Medical Board of the 1st defendant. He was discharged on Medical ground from the Nigerian Army on 23rd October, 2015, having served as a Soldier for 19 years 274 days.
- CASE OF THE CLAIMANT
The claimant testified in line with his statement of facts as follows;
He was enlisted into the Nigerian Army on 22nd January 1996 and assigned Registration No: 96 NA/41/3466. His enlistment into the Nigerian Army (NA) was made pursuant to Armed Forces Act while the terms and condition of his enlistment are contained in the Harmonised Terms and Condition of Service for Soldiers/Ratings/Airmen, 2012 (as amended). Until his discharge from the Nigerian Army in 2015, he was of the Nigerian Army Artillery corps-(NAAC) 245 Battalion Ikom, Cross River State. At all times material in 2005, while in the cause of performing security duties and without default on his part, he received injury /wound in his right lower limb. He has gone for treatment in several Hospitals. A Medical Invalidation Board for soldiers was constituted by the 1st respondent pursuant to extant laws to examine the injury /wound to determine its severity under the Disability Pension Act, 2004 and the Harmonised Terms and Conditions of services for soldiers/ ratings/ Airmen, 2012. The report of the Medical Invalidation Board with reference No- NAMC/G1/300 /330 is dated 25th August, 2015. The Medical invalidation Board met and examined the injury /wound and found that he was being managed for Right Foot “Chronic Ulcer with Cellulitis and associated Limp deformity for over five (5) years. That due to the severity of the injury /wound, the Medical Board recommended that he be Boarded out of the Nigerian Army on Medical grounds. However, the Board did not state the Degree of the Disability in terms of percentage as provided for in the Terms and Conditions of service, but only described the injury /wound as “Chronic”.
He was discharged on Medical ground from the Nigerian Army on 23rd October, 2015, having served as a Soldier for 19 years 274 days. Upon his discharge from service, he opened an account with the 2nd Respondent on 6th of March, 2016, and was issued with new Personnel Documentation Slip containing his details and particulars. Based on the Documentation slip the 2nd Respondent did not record the percentage for the injury, instead zero percent (0%) was recorded. Due to the failure by the 1st Respondent’s Medical Invalidation Board to record the “degree” of Disability in terms of Percentage as stated, the 2nd Respondent did not record any percentage to him. Upon his retirement from service, he collected N964. 038.56 only as gratuity. He is currently being paid N32. 659.06 only as pension excluding disability pension. He has incurred N350,00.00 only as the cost of Legal Representation and Fees in his effort to claim his Disability Pension.
The claimant tendered 13 documents and they were admitted in evidence and marked as exhibits PO1 to PO13. Reference will be made to specific exhibits as the need arises.
- CASE OF THE DEFENDANTS
One Staff Sargent Adamu Mustapha with service number 79NA/28786 of Military Pension Board Headquarters testified for the defendants in line with the statement of defence as follows;
He is a personnel attached to the Legal Office of the Military Pension Board Headquarters. By virtue of his position and functions at the Military Pension Board, he is conversant with the facts of this case. The legal office of the Military Pension, which he is attached to, reviewed the personnel file of the Claimant. The Claimant was enlisted to the service of the Nigerian Army on the 22nd day of January, 1996. The claimant was diagnosed with Chronic Foot Ulcer with Cellulitis by the Medical Board of the 1st defendant. The Medical Board Proceedings of the 1st Defendant was convened on the 23rd day of May, 2015 to assess and determine the percentage of the Claimant’s disablement. Claimant was thereafter discharged from service of the Nigerian Army on medical grounds on the 23 October, 2015. The Medical Board assessed the Claimant’s percentage at 20% disablement. In addition to medical pension, the scale of percentage paid as pension is also measured and determined by the years of service and the rank of the personnel.
The Claimant had served in the Army for a cumulative period of 19 years. Claimant’s service rank at the time of his discharge from the Army was Lance Corporal. The Claimant by virtue of the years of service and Rank in the Army is entitled to 172% Gratuity and 58% pension. The 20% medical pension of the Claimant is included in the calculation of the total amount payable as pension to the Claimant. The addition of the 20% of the medical pension of the Claimant entitles the Claimant to be paid the same pension payable to persons who had served for 20 years in the Army, assessed at 180% Gratuity and 60% pension. The claimant is currently paid N42, 000 including the 20% medical pension which is the amount payable to personnel who have put in 20 years of service.
The defendants tendered three documents which were admitted and marked as exhibits AM1, AM2 and AM3. Reference will be made to specific exhibits as the need arises.
- FINAL WRITTEN ADDRESS OF DEFENDANTS’ COUNSEL.
In his final written address, the learned DR. Elijah Oluwatoyin Okebukola Esq. of counsel to the defendants formulated one issue thus;
Whether based on the available evidence before the Honourable Court, the Claimant is entitled to the reliefs claimed in this suit.
Learned counsel submitted that an order of mandamus by its nature relates to the power of Court to compel the performance of public duty. The public act which the Claimant seeks to compel the Defendants through an Order of Mandamus is the assessment to be carried on the degree of injury/wound due to claimant. That it is undisputed that the assessment on the degree of injury/wound which pertains to the Claimant has been done and perfected by the Medical Board of the 1st Respondent and same was assessed at 20%. See EXHIBIT AM1. OHAKIM V AGBASO (2010) 19 NWLR (PT 1226) 172 SC and SHITTA-BEY V FEDERAL PUBLIC SERVICE COMMISSION (1981) L. S.C. 4.
Counsel submitted further that the facts of the assessment of 20% degree of injury/wound done by the Medical Board of the 1st Respondent in favour of the claimant prior to the institution of this suit was unchallenged during the course of hearing and admitted by the Claimant in his evidence before the Honourable Court via the letter dated 1st March 2018 written by Goldfield & Springs Solicitors on behalf of the Claimant acknowledging the fact that an assessment of 20% on the degree of the claimant’s injury was done by the Medical Board of the 1st Respondent.
Counsel urged the Court to find and hold that the Defendants’ having performed the act which the Claimant seeks to compel performance against them prior to the institution of this suit, the reliefs which the Claimant seeks before this Honourable Court is spent and amount to academic and hypothetical questions. That the Court is divested of powers to determine or rely on issues that are spent UGBA V SUSWAM (2012) LPELR-8635 (CA).
Counsel submitted on relief 2 sought by the claimant that second relief is a corollary of the first relief. The order which the Claimant seeks in relief two has been complied with as evidenced by Exhibit AM 1, paragraph 4 (xi), (xii) and (xv) of the Defendants’ Statement of Defence and the unchallenged evidence of the Defendants as contained in paragraph 5(j), (k), (i) and (n) of the Defendants’ Witness Statement on Oath which did not only establish the fact that the 1st Respondent had transmitted the said medical assessment to the 2nd Respondent but also the fact that the 2nd Respondent has implemented same in favour of the Claimant.
On the claim of special damages of N350, 000, counsel submits that the award of special damages is not made in vacuum. The law is settled that special damages must be specifically pleaded and proved. Special and general damages in all cases must flow from a wrongful conduct of the Defendants. Claimant did not show or proof any wrongdoings by the Defendants against him in this suit. The Claimant in this suit has failed to show a breach of a legal duty by the Defendants.
The law is established that solicitors or legal fees which does not form part of the Claimant’s cause of action does not qualify as a special damages.
On the whole, counsel urged the Honourable Court to dismiss the Claimant’s case for lacking in merit.
- FINAL WRIRREN ADDESS OF CLAIMANTS COUNSEL.
Learned Emmanuel S. Njoka Esq. of counsel to the claimant formulated two issues for determination thus;
- Whether the claimant is entitled to the reliefs sought.
- Whether by the facts of this case the claimant is entitled to damages.
Submitting on issue 1, learned counsel submitted that Section 9(1)(2) of the Armed Forces Pension Act, 2004 has stated in clear terms how the disablement benefit of a service man in respect of disablement due to service war is computed which is on the basis of last pay of such service man. The terms and condition of service, chapter 14:22. The claimant is entitled to disability pension. The rates are 1. “not less than 66%” the disability pension payable is 100% of last pay, 2.where the injury is described as “very severe” the assessment percentage is 100%·
Counsel submitted further that the 1st defendant stated that it assessed the claimant’s percentage at 20% disablement. He tendered Exhibit AM1 to support his claim. While exhibit AM 2 was tendered to show the Scale of percentage paid as pension. On the face of exhibit AM1, particularly on question 14 therein, the 1st defendant recorded thus:
- Principal disabilities (1) resolve (R) chronic foot
Other disabilities: ulcer with Cellulitis”
This contradicts the 1st defendant’s findings in Exhibit PO12 and P013 respectively. These exhibits clearly stated that:
“…… he is being managed for right foot chronic ulcer with cellulitis and associated limb deformity for more than 5 years”
We submit that the 1st defendant’s answer to question 14 of Exhibit AM 1 should have been thus:
Principal disability: Right foot chronic ulcer with cellulitis
Other disabilities: Associated limb deformity for more than 5 years”
From the above, we humbly but firmly submit that the 1st defendant wrongfully stated the findings of the Medical Board as demonstrated above, its answer to question 14 of Exhibit AM1 is also wrong. It is common since that once you start on a wrong premise, the conclusion will also be wrong.
Exhibit AM2 relates to Gratuities and pensions of all categories of personnel only. It has nothing to do with disability benefits which is the fact in issue. In his evidence, DWl stated clearly that Exhibit AM2 was used to calculate the benefit accruable to the claimant which was 20%.
On his issue 2, learned counsel submitted that the rationale for the award of damages indeed is to compensate the plaintiff for the wrong suffered by him as a result of the defendant’s act or omission. S.P.D.C. VS OKONEDO (2007) ALL FWLR (PT 368) 1104 CA. While strict proof is required in respect of special damages, small or minimal proof is required in respect of general damages. This means that even if special damages cannot be awarded because they have not been proved strictly, proof of general damages could be established on the satisfactory evidence. NARINDEX TRUST LTD V C.M.B (200) FWLR (PT49) 1564 SC
In the instant case, the Claimant claims the sum of N350,000.00 and N2,000,000.00 only as special and general damages respectively for expenses incurred in procuring the services of a legal practitioner and general damages for inconveniences suffered by the claimant. Failure by the respondents to schedule a meeting with the claimant left the claimant with no option than to instruct his Solicitors to take out a writ of summons against the respondents at a great cost to the claimant. Had the defendants responded positively to the complainant’s letters, he would have no need of approaching a lawyer to file this suit
- DEFENDANTS’ REPLY ON POINT OF LAW
Replying on points of law, learned defendant’s counsel submitted that the Plaintiff counsel erroneously relied on section 9(1) (2)of the Armed Forces Pensions Act to submit that the Plaintiff’s disability arises from the effect of war. There is nothing in the records of the Court, or the Plaintiff pleadings to indicate that the Plaintiff was engaged in situation of war or internal security operations when he sustained the said injury or the injury arises from war or internal security operations.
That part B of the Harmonised Terms and Conditions of Service expressly provides specific assessment of degree of injuries with respect to certain specified categories of injuries and disablement which the Plaintiffs injury or disability does not fall under. That under Part A, where an injury is assessed at 20% the beneficiary is entitled to only 60% of his last pay.
The power to assess the degree of injury due to the Plaintiff is exclusively within the discretion of the Medical Board of the 1st Defendant. We refer the Court to paragraph 1 (1) Second Schedule Armed Forces Pensions Act which provides that “The authorities concern shall refer to the Medical Board all servicemen who in their opinion may be eligible for an award under this Act.”
That the mere fact that the Plaintiff’s injury was described as “chronic” does not translate to an assessment of “very severe” under the Harmonised Terms and Conditions of Service relied on by the Plaintiff.
That the Defendants having exercised the discretion to assess the degree of injury of the Plaintiff, the only remedy for the Plaintiff when challenging the exercise of discretion is to apply to the Minister of Defence for reassessment or review. On this point we refer the Court to the proviso in paragraph 4 of the Second Schedule of the Armed Forces Pensions which provides that; “Any person who is aggrieved by the decision of the Medical Board may appeal to the Minister whose decision shall be final”.
That damages are not given as a matter of course. Damages must arise from a breach of a legal duty. The Defendants have performed their duties to the Plaintiff. The Plaintiff is therefore not entitled to damages in this case.
- ISSUES FOR DETERMINATION
The lone issue formulated by the defendant’s counsel is the same with the 1st issue formulated by the claimant’s counsel. In my view, this issue can conveniently dispose of the entire case. It is hereby adopted as the issue for determination as follows;
Whether based on the available evidence before the Honourable Court, the Claimant is entitled to the reliefs claimed in this suit.
- COURT’S DECISION
The learned defendants’ counsel in his reply on points of law, submitted that there is nothing in the records of the Court, or the Plaintiff pleadings to indicate that the Plaintiff was engaged in a situation of war or internal security operations when he sustained the said injury or that the injury arises from war or internal security operations.
‘War service” is defined in section 16 of the Armed forces Pension Act as follows;
“war service” means any or all of the following, that is-
(a) service in the armed forces after 27th May, 1967 and ending immediately before 17th January, 1970;
(b) service in connection with internal security operations, that is all operations in aid of civil authority in the maintenance of law and order;
(c) any other service as may be declared from time to time by Order made by the President.
The evidence of the claimant as in his paragraph 8 is as follows;
8.“That at all time material in 2005, while in the cause of performing security duties and without default on my part, l received injury /wound in my right lower limb”.
In my view, this qualifies as injury incurred during war service in line with section 9 of the Armed Forces Pension Act, and this is more so, given the state of the pleadings and evidence of both parties as to assessment of disability of the claimant, which shall be considered presently.
The facts of this case are generally agreed upon except for the following points of divergence: According to the claimant;
Based on the documentation slip the 2nd Respondent did not record the percentage for the injury, instead zero percent (0%) was recorded. Due to the failure by the 1st Respondent’s Medical Invalidation Board to record the “degree” of Disability in terms of Percentage as stated, the 2nd Respondent did not record any percentage to him. He is currently being paid N32. 659.06 only as pension excluding disability pension.
On the other hand, according to the Defendants;
The Medical Board assessed the Claimant’s disability percentage at 20% disablement.
The claimant is currently paid N42, 000 including the 20% medical pension.
The primary question herein is whether the defendant assessed the percentage of the claimant’s disability. It is true that exhibit PO3 records the claimant’s disability as 0%. However, exhibit AM1, the medical Board proceedings has the following record;
RESOLVE (R) CHRONIC FOOT ULCER 10%
CELLULITIS 10% 20%
It is to be noted that the claimant through his counsel wrote 2nd defendant a letter dated 30/5/2017, (exhibit PO4) complaining about nonpayment of disability pension. The 2nd defendant, in its reply letters dated 13/6/2017 and 6/11/2017,(exhibits PO6 and PO8), informed the claimant that his disability was assessed at 20% disability by the Medical Board. The claimant through his counsel, on 9/10/2017, wrote a REQUEST FOR INFORMATION UNDER THE FREEDOM OF INFORMATION ACT, 2011 IN THE MATTER OF EX-96NA/41/3466 LCPL PETER OWOICHO, (exhibit PO7).
Subsequently, in what is seemingly a follow up letter by claimant’s counsel dated 1/3/2018, (exhibit PO10), claimant solicitors’ letter stated that a paltry 20% was purportedly awarded, that 100% should have been awarded and appealed for an upward review to 100%.The said solicitors letter is titled APPLICATION FOR PAYMENT/UPWARD REVIEW OF DISABILITY PENSION PAYABLE TO 93NA/41/3466: PETER OWICHO.
Paragraphs 4, 5 and 6 of exhibit PO10, claimant solicitor’s letter, particularly read as follows;
- Unfornmare1y, in recommending the Percentage of Disability Pension payable to Mr Owoicho, the Medical Invalidation Board purportedly awarded a paltry 20% as claimed by the Military Pension Board (MPB) as his entitlement under the Harmonised Terms and Conditions of Service for Soldiers/Ratings/Airmen, 2012. See annexure A.
- It is our submission that, had the Medical Invalidation Board averted its mind to Chapter 14, Article 14.22. Table A, Serial l(a)(b)(c] and (d)- OTHER DISABLEMENTS, Serial,1(a)(b) and (c) of the Harmonised Terms and Conditionsof Service for Soldiers/Ratings/ Airmen, 2012, it would have awarded 100 % as Disability pension in view of the circumstances and the findings on the severity of the injury sustained by Mr. Owoicho.
- In view of the forgoing, we most humbly urge that you Sir, to kindly grant our application. Direct/Order the Nigeria Army Medical Corps (NAMC), the Medical Invalidation Board, to forthwith, review upwards to 100% Disability Pension, payable to Mr. Owoicho in compliance with the extant laws and conditions of service applicable to Mr. Owoicho.
In view of the series of communication between claimant’s counsel and the second defendant as above shown, the contents of Exhibit PO10 certainly confirms or agrees with the defence that 20% disability was awarded to the claimant and he knew about it before coming to Court, and this is against the claimant. More so, the case before the Court is not for an upward review of the disability rating from 20% to 100% but for an order of Mandamus for the disability of the claimant to be assessed.
Learned claimant counsel submitted that the 1st defendant wrongfully stated the findings of the Medical Board and its answer to question 14 of Exhibit AM1 is also wrong.
The essence of the query and submissions of learned claimant’s counsel on exhibit AM1 is not denying the said 20% assessment but challenging same as wrong. It is to be noted that the case of the claimant is not one challenging the description or wrong assessment of his disability but the failure to record the percentage of his disability. The claimant never queried the report on his disability in this suit. It is not his claim that the assessment was wrong. His claim is simply based on failure or refusal of the 2nd defendant to assess or record the percentage of his disability and not the proper description or assessment of his disability.
In any event, without being a medical expert, any person who can read and understand English will agree that the report of
Principal disabilities: (1) resolve (R) chronic foot
Other disabilities: ulcer with Cellulitis on the face of exhibit AM1,correctly represents the findings of “ he is being managed for right foot chronic ulcer with cellulitis and associated limb deformity for more than 5 years” in Exhibit PO12 and P013 respectively except otherwise explained by a medical expert of which learned counsel is not one.
I accordingly find and hold that the 1st defendant assessed the claimant’s disability at 20%.
The defendants also pleaded and testified on some facts that the claimant did not file any reply to deny, neither did his counsel discredit same under cross examination nor is there any document indicating the contrary. These facts as pleaded and testified are as follows;
In addition to medical pension, the scale of percentage paid as pension is also measured and determined by the years of service and the rank of the personnel. Claimant’s service rank at the time of his discharge from the Army was Lance Corporal. The Claimant by virtue of the years of service and Rank in the Army is entitled to 172% Gratuity and 58% pension. The 20% medical pension of the Claimant is included in the calculation of the total amount payable as pension to the Claimant. The addition of the 20% of the medical pension of the Claimant entitles the Claimant to be paid the same pension payable to persons who had served for 20 years in the Army, assessed at 180% Gratuity and 60% pension. The claimant is currently paid N42, 000 including the 20% medical pension which is the amount payable to personnel who have put in 20 years of service.
The claimant had said he is currently being paid N32, 659.06 as pension while the defendants said claimant is currently being paid N42, 000 as pension, including the 20% medical pension. The claimant has not contradicted this either. The evidence of the defendant that the claimant is currently being paid N42, 000 as pension, including the 20% medical pension is therefore taken as proved.
As to whether the said amount of N42,000.00 is sufficient, the Court can only determine whether or not what is being paid to the claimant accords with what the Armed Forces Pension Act prescribes after ascertaining what was the last salary of the claimant.
Looking at Section 9(1)(2) of the Armed Forces Pension Act, 2004 as relied upon by learned claimants counsel, all calculations are based on a percentage of an officers last salary. The last monthly pay of the claimant is neither pleaded nor proven before the court by either party.
The burden of proof only shifts to a defendant when the claimant has discharged the burden of proof laid on him. See
| ADAMU SHEHU SULEIMAN V. SALISU ZAKARI & ORS (2009) LPELR-4984(CA) | ||
“The law is well settled, that the burden of proof does not ordinarily shift to a defendant until it has been proved by the plaintiff. And that a claimant must rely on the strength of his own case, and not on the supposed weakness of the defendant’s case. See ANSAMBE V. BON LTD (2005) 8 NWLR (Pt. 928) 650 at 661 – 662; ARABAMBI V. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (Part 959) 1 at 28.
Similarly, a claimant is only entitled to what he has pleaded and proved before the Court. See AYENI V. ADESINA (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A – B (CA); where the Court held;
“It is trite law that who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See A.G, Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255.” and
| IN-TIME CONNECTION LIMITED V. MRS. JANET ICHIE (2009) LPELR-8772(CA) where the Court held; |
“The duty of every court of law is to render to everyone according to his proven claim, and nothing more. It cannot give to a party a relief he has not proved. See AKAPO v. HAKEEM-HABEEB [1992] 6 NWLR [pt.217] 266; HARUNA v. MODIBO [2004] 16 NWLR [pt. 900] 247 at 564”
I find therefore that the claimant disability was assessed at 20% disability. I find that the claimant is currently being paid N42,000.00 as normal pension and disability pension. I hold that whether this amount is adequate or not cannot be determined in the absence of evidence of the claimant’s last pay. I hold that the defendants cannot be compelled to do what has already been done by them. The claimant has failed to prove his case and accordingly prayers (a) and (b) are hereby dismissed.
Damages, whether special or general are only awarded to a successful party in the litigation and not to a party who has failed to prove his case .See
| NATIONAL UNIVERSITIES COMMISSION v. REV’D SEGUN ADEMOLA ALLI & ANOR |
| (2013) LPELR-21444(CA) where the court held; |
“Again, the award of damages is ancillary to the success of the other reliefs. It cannot stand on its own. The award of damages only arises when the plaintiff has established a wrongful act.
The claimant’s prayers (c) and (d) accordingly fail and are dismissed.
For all that has been said, the case of the claimant has not been proved, the same fails and is hereby dismissed.
I make no order as to cost.
This is the judgment of the Court and it is entered accordingly.
………………………………
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA.
