UNIVERSITY OF JOS & ANOR v. VICTOR ARO
(2019)LCN/12858(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/J/96/2013
RATIO
INTERPRETATION: MEANING OF DISMISSAL
“I note, too, that it was also said by Rhodes-Vivour, J.S.C., in Odunlami v. Nigerian Navy (2013) 12 NWLR (PT 1367) 20 @ 56, (2013) LPELR-SC 20701 (S.C) p.35, albeit by way of obiter dictum it seems, that dismissal means rejection, discarding, that once an officer is dismissed, it would be nave of him to expect to be paid his entitlements. Dismissal and forfeiture go together. That is the more reason why respondent should have properly pleaded and proved his acclaimed 5% pension contribution while in employment and his concomitant right to receive it upon dismissal. That is even on the assumption that his action for interpretation of the clearly inapplicable Pension Reform Act 2004 could have accommodated such claim. A claimant is bound by his claims no matter how misconceived they are: Commissioner for Works, Benue State v. Devcon Construction Co. Ltd (1988) 3 NWLR (PT 83) 407 @ 420; Okoya v. Santilli (1990) 3 SCNJ 83 @ 126 -127; Ransome Kuti & Ors v. Attorney-General of the Federation (1985) 2 NWLR (PT 6) 211.” PER BOLOUKUROMO MOSES UGO, J.C.A.
INTERPRETATION: RULES OF INTERPRETATION
“These are the operative provisions of the Act and the common words used in both provisions are “shall be”. It is obvious that the words refer to something that would happen going forward, and not to a past event, in the con in which there were used in the two provisions. Similar phrases, “shall be entertained” and “shall not be set aside”, used is similar cons were interpreted by the Courts as referring to acts ? Are Vs Attorney General, Western Region (1960) 5 FSC 111, Kpema Vs The State (1986) 1 NWLR (Pt 17) 396 at 405 and Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 72 B-G. The provisions of Sections 1 and 2 of the Act set the tone for the Act as a futuristic, a prospective, legislation, and not as a retrospective legislation. Further, it is a rule of Interpretation that common sense must be applied in construing documents and Statutes and that the construction agreeable to justice and reason must always be adopted Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt 1097) 12, Congress for Progressive Change V. Independent National Electoral Commission (2012) 1 NWLR (Pt 1280) 106, Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2016) 7 NWLR (Pt 1510) 10.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
INTERPRETATION: WHO IS AN EMPLOYEE
“Who is an employee within the meaning of the Pension Reform Act 2004 It is defined in Section 102 of the same statute thus: ‘Employee’ means any person employed in the Public Service of the Federation and Federal Capital Territory or private company or organization or firm.” PER BOLOUKUROMO MOSES UGO, J.C.A.
STATUTE: WHERE STATUTE IS TO BE READ WITH RETROSPECTIVE EFFECT
“In the first place, as said earlier, there is a presumption against retrospective application of statute and a statute ought not be interpreted to apply retrospectively unless it is clearly shown that a retrospective effect was intended:Afolabi v. Governor of Oyo State (1985) 2 NWLR (PT 9) 734; Ojokolobo v. Alamu (1987) LPELR-2392 (SC) p.12-15.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. UNIVERSITY OF JOS
2. THE COUNCIL OF UNIVERSITY OF JOS – Appellant(s)
AND
VICTOR ARO – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
There is a presumption that except that for enactments which only affect the procedure and practice of the Court, statutes do not apply retrospectively. This presumption will only be displaced where the language of the enactment clearly and expressly states otherwise. The main issue in this case revolves around that principle as it relates to the provisions of the Pension Reform Act 2004 which came into force and commenced from 25th June 2004. The issue is whether the Pension Reform Act 2004 and the Contributory Pension Scheme established therein for employees inures to the benefit of the Respondent who was dismissed from appellants’ employment three months prior to the enactment of the Pension Reform Act 2004. That is barring the equally important jurisdictional issue, which the parties and the lower Court seem to have overlooked, of whether the originating summons by which the respondent commenced the action is valid given the fact that no questions were framed in it by the plaintiff/respondent for the Court to answer.
The facts of the case are that respondent, a former senior staff of 1st appellant who was dismissed from its service as far back as 22nd of March 2004 on allegations of fraud and had sued unsuccessfully in the Federal High Court, Jos to overturn that dismissal, initiated the present action in the same Federal High Court, Jos Division once again in the year 2012 by way of originating summons claiming against appellants the following four reliefs:
1. A Declaration that Section 25 of the Regulations Governing the conditions of service of then senior staff of University of Jos, Nigeria is ultra vires and of no effect whatsoever in view of Section 8(4) and 101 of the Pension Reform Act 2004.
2. A Declaration that the plaintiff is entitled to his gratuity and pension having put in 22 years in the employment of the defendants notwithstanding his dismissal from the employment.
3. An order of Court directing the defendants to forthwith compute and pay to the plaintiff gratuity, enlist him for pension and all other entitlements that are consequential to his dismissal.
4. An order for such further or other orders as this Honourable Court may deem fit to make in the circumstances of the case.
He did not set out in his summons any questions for the Court to answer as is customary in proceedings by way of originating summons and is also required by the Rules of the Federal High Court but nevertheless set out the grounds for his originating summons thus:
1. The plaintiff had put in 22 years in the employment of the defendants.
2. That Section 25 of the Regulation Governing the Conditions of Services of the Senior Staff of the University of Jos, Nigeria is ultra vires considering the provisions of Section 8(4) and Section 101 of the Pension Reform Act 2004.
3. That Section 2(b) of the Pension Reform Act emphasizes that the essence of pension and gratuity is to assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age.
4. That there is no dispute in the entire suit but purely a subject of statutory interpretation.
He then deposed to a 20-paragraph affidavit in support of these grounds.
The respondents, besides raising a preliminary objection to the summons on the grounds that it was caught by Section 2(a) of the Public Officers Protection Act by reason of respondent’s failure to bring his action within three months of accrual of his cause of action, opposed the summons with a 7-pargraphed counter affidavit, where they deposed to the following:
6(a) That the Plaintiff was dismissed from the service of the defendants on 22/3/2004.
(b) That the Plaintiff is not entitled to gratuity or benefits as a consequence of his dismissal from the services of the 1st defendant.
(c) That the Plaintiff knows full well that Section 25 of the Regulations Governing the employment of Senior Staff, which applies to him, clearly provides that as a dismissed staff he loses all benefits that would normally accompany cessation of employment.
(d) That at the time of Plaintiff?s dismissal on 22 March 2004, the government had not introduced the Contributory Pension Scheme which came into effect with the Pensions Reform Act, 2004.
(e) That the Plaintiff thus while in the employ of the Defendants never made any contributions towards pension because the defendants did not have such a Scheme in place for its employees.
(f) That it was not until after the Plaintiff?s dismissal that the Pensions Reform Act 2004 came into effect on 25th June 2004 that the Defendants in line with the provisions therein (particularly as contained in Sections 1, 2 & 9) started its employees on the Contributory Pensions Scheme.
(g) That even if the Contributory Pension Scheme was in place as at when the Plaintiff was dismissed (which is not the case) every issue concerning it would be administered by the Pensions Fund Administrators (PFA) of his choice and not the Defendants as provided for by Section 44 of the Pension Reforms Act 2004.
(h) That the Defendants do not administer pension to any of its staff even on normal cessation of employment. It is only the Pensions Fund Administrators of choice of such an employee that administers such pension.
(i) That the defendants have not stopped the plaintiff from accessing his pension if any from his Pension Fund Administrators if any.
In a 23-paragraph Reply Affidavit, the respondent, besides averring that his right of action arose in 2012 when appellants in response to his demand for payment of pension replied him that he was not entitled to pension by reason of his dismissal from their service so it was not caught by Public Officers Protection Act, maintained that:
2. That I am entitled to gratuity and enlistment for pension even though I was dismissed.
3. That the Pension Reform Act of 2004 further reinforced provisions of the repealed Pension Act of 1990 in respect of my right to entitlement.
9. That the Law in force when my cause of action arose on 4th June 2012 was 2004 Pension Reform Act.
14. That my right to retirement benefit was transfer (sic) from 1994 Pension Act to Section 12 of 2004 Pension Reform Act
15. That it was what the defendants had been mandated under the former scheme to be deducted from my salary that I am demanding for.
16. That what was in operation under the old scheme that is being protected under Section 12 of the new Act is called retirement saving account as against the present Contributory Scheme.
17. That it is the defendant that has been responsible for my retirement saving account and not any fund administrator as speculated by the defendant.
18. That the right in which I alleged under Section 8(4) and Section 101 of the Pension Reform Act includes the right under the retirement saving account as protected by Section 12(1) and Contributory Pension Scheme.
19. That the defendant has been paying 5% of my salaries into Federal Government Redemption Fund which I am entitled to.
20. That Section 29(3) of the Pension Reform Act 2004 mandated the defendants to use whatever has been deducted from my salary to settle my entitlement and benefit that is transfer (sic) from the old scheme to the new scheme under Section 12 of the new Pension Reform Act.
21. That it is the balance standing at my retirement saving account that I am agitating for which was deducted from my salaries.
Arguments of parties in their written addresses for and against the summons proceeded along the lines expressed in their affidavits.
In its judgment, the lower Court (Allagoa J.), after dismissing the preliminary objection, placed particular emphasis on the adjective ‘worked’ appearing in Section 2 of the Pension Reform Act 2004 and held that the said statute enacted on 25th June 2004 and commencing from that date applied to the respondent dismissed three months earlier in March 2004 so he was entitled to benefit from the Contributory Pension Scheme established by it (Pension Reform Act 2004) and appellants bound to pay him pension.
Irked by that judgment, appellants have brought this appeal on the following 5 Grounds, which, shorn of their particulars, read thus:
Ground 1: The learned trial Court erred in law and thus occasioned a miscarriage of justice when it held the plaintiff was entitled to pension even though he was dismissed before the Pensions Reform Act 2004 came into operation.
Ground 2: The learned trial Court erred in law and thus occasioned a miscarriage of justice when it held the Plaintiff was entitled to gratuity or benefit.
Ground 3: The judgment of the trial Court was against the weight of evidence.
Ground 4: The learned trial Court erred in law and thus occasioned a miscarriage of justice when it failed to order that the suit being commenced wrongly be struck out or is properly brought.
Ground 5: The learned trial Court erred in law and thus occasioned a miscarriage of justice when it held ?the plaintiff proved its case against the defendants and therefore all the reliefs sought by the plaintiff against the defendants are hereby granted.
From those five amended grounds of appeal, appellants distilled the following four issues for determination:
1. Whether the respondent as a dismissed staff can be enlisted for pension.
2. Whether the respondent as a dismissed staff is entitled to any gratuity or benefit under his conditions of service.
3. Whether the suit was properly commenced at the lower Court.
4. Whether the respondent proved his claim at the lower Court to entitle him to judgment.
Respondent on his part saw the issues arising in the appeal as:
1. Whether the right to retirement benefit of the respondent which was already under existing pension Scheme (i.e.1999 Pension Act) before the Pension Reform Act 2004 was enacted is protected under it. (This issue, respondent said, arose from appellants’ issue 1.)
2. Whether the appellants who are not challenging the declaration of the trial Court at page 241 in paragraph 2 of the record to the effect that it is combination of the provision of Section 101 and Section 2(a) of the Pension Reform Act 2004 that renders the provision of Section 25(c) of the University Regulation Governing the Condition of Service of the Senior Staff of the University of Jos null, void and of no legal effect can turn around to challenge the auxiliary reliefs relating to pension and gratuity that naturally flow from such declaration.
3. Whether ground 3 would not be deemed abandoned having not formulated any issue from it nor argued it.
4. Whether respondent’s suit which was clearly a question of construction or interpretation could be said to have been commenced wrongly under the originating summons.
I must observe in earnest that Issues 2 and 3 above of respondent are in the nature of objections rather than issues arising from appellants’ five grounds of appeal reproduced above. Issues for determination in an appeal can only arise from the grounds of appeal filed by the appellant; a respondent who has not filed a Respondent’s Notice in the appeal cannot proceed to frame issues outside the grounds of appeal filed by the appellant (Oniah v. Onyia & Ors(1989) 1 NSCC 319 @ 327) let alone frame his own ‘issues for determination’ tending to attack the very issues and grounds of appeal filed by the appellant as respondent has done with his issues two and three. Issues 2 and 3 of respondent are for this reason incompetent and I accordingly strike them out.
The surviving issues 1 and 4 of respondent are covered by the four issues of the appellants, which I here adopt for the determination of the appeal.
Arguing appellants’ issue 1, Mrs. M. Adeniyi citing Osisanya v. Afribank (2007) 2 SCNJ 71 @ 80-81 where it was stated that termination and dismissal translates into bringing the employment to an end submitted that respondent as a dismissed staff is not entitled to any pension. Counsel argued that while it is true that Section 2(a) of Pension Reform Act 2004 provides for pension, that section does not apply to respondent and the lower Court wrong to have ruled otherwise.
In response, Mr. S.A. Oguntuyi for Respondent submitted that the lower Court was correct in its conclusion because the right of Respondent under what counsel called ‘the old pension regime’ is protected by Section 12(1) (c) of the Pension Reform Act 2004. The sum total of the Pension Reform Act 2004, particularly Section 12(b), Mr. Oguntuyi submitted, places the onus on employers to do everything possible to see that employees benefit from the scheme so appellants cannot claim that they have no part to play under the Pension Reform Act 2004. Counsel argued that the tone of Subsections 1 and 2 of Section 12 of the Pension Reform Act 2004 is that the employer is required to deduct from the take-home income of the employee from the very day of his employment until its termination or dismissal, it will therefore not only amount to denial of the employee’s (appellant in this case) hard-earned money but also contrary to the aims and objectives of Section 2 of Pension Reform Act 2004 which states that ?Every person who worked in either public service of the Federation, Federal Capital territory or private sector receives his retirement benefit as and when due.
He cited in support of this argument the Lagos High Court decision of Danmole v. A.G. Leventis & Co. (Nig.) Ltd (1981 1-3 CCHCJ219), even as he conceded that that case was decided before the enactment of the Pension Reform Act 2004.
On issue 2, Mrs. Adeniyi for appellants cited the provisions of Section 25(c) of the University Regulation Governing the Condition of Service of the Senior Staff of the University of Jos (1st appellant) stating that ?Where an employee commits an offence which in the opinion of the Council is serious enough to demand greater punishment than termination of his appointment, the Council may dismiss such an employee. An employee so dismissed shall lose all benefit normally accompanying cessation of appointment.”
Counsel submitted that the word ‘shall’ in this Regulation does not leave appellants with discretion; that once such a senior officer is dismissed he loses any benefit that normally follows cessation of appointment. She referred us to Jombo v. P.E.F.M.B. (2005) 7 SCNJ 257 @ 272-273 where the Supreme Court held that termination and dismissal of appointment translates to bringing an employment to an end, that while an employee whose employment is terminated receives benefits, dismissal is punitive and, depending on the contract of employment, often entails a loss of terminal benefits. Counsel equally citedOdunlami v. Nigerian Navy (2013) 12 NWLR (PT 1367) 20 @ 5 E-G (S.C.) where it was said (Rhodes-Vivour, J.S.C.) that dismissal means ‘rejection, discarding,’ that once an officer is dismissed it would be nave of him to expect to be entitled to his entitlements as dismissal and forfeiture of entitlements go together. That, counsel submitted, is the position of the respondent who was dismissed from service and we should so hold and resolve this issue in favour of appellants.
In response, Mr. Oguntuyi, following the pattern he set in the issues he framed for respondent in his incompetent issue 2, argued that appellants did not challenge the decision of the lower Court declaring Section 25(c) of the Regulation Governing the Condition of Service of the Senior Staff of the University of Jos (1st appellant) null and void and of no effect so it was not open to them to argue the validity of auxiliary reliefs which flow from that declaration. Counsel next called in aid Sections 2(a) and 101 of the Pension Reform Act 2004 in urging us to resolve this issue in respondent’s favour.
Appellants in issue 3 attacked the lower Court’s decision rejecting their contention that respondent’s action was not suitable for determination or commencement by way of originating summons under Order 3 Rule 9 of the Rules of the Federal High Court (Civil Procedure) Rules 2009 given that facts were disputed or likely to be disputed. They observed that upon responding to the originating summons with their counter affidavit, appellant also saw it necessary to make a further response by way of a Reply Affidavit. In those circumstances, they submitted, the lower Court ought to have directed filing of pleadings rather than reject their argument and proceed with the case under originating summons procedure. Respondent?s action, they submitted, was not properly commenced at the lower Court and we should so hold.
Mr. Oguntuyi in response cited Amasike v. The Registrar General of corporate Affairs Commission & Ors (2010) 42 NSCQR 610-611 to argue that what determines whether an action should be commenced by way of originating summons is not the number of processes filed but whether the issue raised in it is or likely to be one of construction of a written Law or Instrument, Deed, Will, contract or some other question of law and there is unlikely to be any substantial issue of fact. There was no substantial issue of fact between parties in the case but just the construction of Section 2(a) of the Pension Reform Act 2004 so the lower Court was in order in proceeding with the case the way it was filed as originating summons, counsel argued.
On appellants’ issue 4 relating to proof of his claims by respondent, Mrs. Adeniyi pointed out that while appellants in their counter affidavit to the summons denied that respondent ever made any contribution towards pension whilst in their employment and he in turn asserted in his Reply affidavit that he had been paying 5% of his salaries into Federal Government Redemption Fund which he is entitled to upon his dismissal, he never proved that assertion the onus of which, according to counsel, was upon him. The lower Court was therefore wrong, it was argued, to have entered judgment for him and we should so hold and overturn that judgment.
I carefully perused the Respondent’s brief of argument but did not come across where he responded to this argument of appellant that he did not discharge the onus on him to prove his assertion of paying 5% of his salaries to a Federal Government Redemption Fund while in appellants’ employment which correspondingly entitled him to receive it as pension upon his dismissal from service. Any issue raised by a party in an appeal that is not countered is deemed conceded: Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296; Nwankwo v. Yar? Adua (2010) 3 SCNJ (PT 1) 244 @ 265.
Resolution of issues
Before I delve into the merits of these contentions of parties, I deem it imperative to first revisit the way respondent framed his originating summons without framing questions for determination. Order 3 Rule 7 of the Rules of the Federal High Court 2009 relating to commencement of proceedings by originating summons reads thus:
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as the right claimed.
From the foregoing, formulation of questions for determination is central to the validity of an originating summons in the Federal High Court and it is essential that the particular question of construction between the parties be clearly identified in the body of the summons. In Olley v. Tunji(2013) 10 NWLR (PT 1362) 275 @ 322 Para B-G, (2013) LPELR-283/2012 the apex Court held without equivocation that an originating summons without questions for determination is incurably defective and denies the Court, including this Court on appeal, of jurisdiction notwithstanding that the summons has reliefs spelt out in it and also has in its title the provisions of the enactment sought to be interpreted. The apex Court (Ngwuta, J.S.C., with his learned brothers Onnoghen, J.S.C., later C.J.N, Muntaka-Coomassie, Ariwola and Dattijo Muhammad, JJ.S.C, in agreement) held thus in that case:
With profound respect, the lower Court grossly erred in its assumption that the mere indication that the originating summons was brought pursuant to named legislations ipso facto raised question or questions on the cited legislations for the Court to interpret. If by mere bringing the originating summons pursuant to Order 3 of the Federal High Court (Civil Procedure) Rules, Section 87 of the Electoral Act, Section 66 of the Constitution and the inherent jurisdiction of the Court, 1st respondent had ignited the interpretative jurisdiction of the Court, how would the trial Court interpret its inherent jurisdiction? The position of the lower Court is tantamount to reading into the process filed before the Court what was not contained therein. The trial Court and the Court of Appeal went their different, but wrong ways ? the trial Court treated the non-inclusion of questions for determination in the originating summons as mere irregularity whereas the lower Court treated the questions for determination as inherent in the indication of the rules and statutes pursuant to which the originating summons was brought.
With respect, each of the lower Courts was wrong for a different reason. As for the trial Court, the questions for construction in the instrument in question is an integral part, a sine qua non, of the originating summons without which the originating summons is incurably defective and not merely irregular. See B.A. Alegbe, Speaker House of Assembly v. M.O. Oloyo (supra).
On the other hand, the finding of the Court below that the questions for construction are inherent in the rules and statutes cited cannot be substantiated. For instance, no interpretation of Order 3 of the Federal High Court Rules can afford a relief to the 1st respondent or any party for that matter. The order simply affords a plaintiff the right to approach the Court by way of originating summons.
In my humble view, the originating summons without the questions on which to predicate the declarations sought is incompetent and by extension the lower Court had no jurisdiction in the matter. The originating summons was not commenced by due process of law. The issue of question or questions for determination in an originating summons is a question of substance in which Order 51 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 is of no avail.
Because we did not hear parties on this point, I wish to let this issue rest, even as I am not by any means convinced that we must necessarily hear parties on clear issues of jurisdiction before we can pronounce on them: see Katto v. C.B.N. (1991) LPELR-1678 (SC) P. 31 (Akpata, J.S.C.) .
At any rate, pronouncing on it may well be academic given that even the reliefs sought by respondent were in my view not grantable. In other words, it does not appear to me that framing questions for determination would have made any difference to the outcome of the action.
As mentioned earlier, the first and most important issue in the appeal is whether the Pension Reform Act 2004 which was only enacted on 25th day of June 2004 and commenced from that same date applied to respondent whose employment with appellants was terminated before its enactment. The lower Court answered that question in the affirmative. It founded that interpretation principally on the provisions of Section 2(a) and the word ‘worked’ as well as Sections 12 and 101 of the Pension Reforms Act 2004. With due respect a calm reading of the provisions of the Pensions Reform Act does not support that interpretation. In the first place, as said earlier, there is a presumption against retrospective application of statute and a statute ought not be interpreted to apply retrospectively unless it is clearly shown that a retrospective effect was intended:Afolabi v. Governor of Oyo State (1985) 2 NWLR (PT 9) 734; Ojokolobo v. Alamu (1987) LPELR-2392 (SC) p.12-15. The Pension Reform Act 2004 does not seem to have any such retrospective intendment. Besides clearly fixing its commencement date as 25th June 2004, its Section 1 establishing a Contributory Pension Scheme for employees in public and private sectors, which scheme respondent founded his right to pension, provides in its sub section (1) that:
1(1) 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.
Who is an employee within the meaning of the Pension Reform Act 2004 It is defined in Section 102 of the same statute thus:
‘Employee’ means any person employed in the Public Service of the Federation and Federal Capital Territory or private company or organization or firm.
Respondent who was dismissed from service three months earlier in March 2004 cannot seriously claim that he was any person ’employed’ in the public service of the Federation within the meaning of the Pension Reform Act 2004 and its commencement date of 25/06/2004. By the same token he cannot also seriously assert as he did in his summons that he had a right to draw from a Contributory Pension Scheme which was only established by a Statute enacted after his dismissal from service. What is more, the provisions of the same Pension Reform Act 2004 even shows that it is not even every employee in employment at the commencement of the Act that is covered by its Contributory Pension Scheme. Employees who had three or less years to retirement as at the 25/06/2004 commencement date of the Pension Reform Act 2004 are also excluded from benefitting from it. This is again made clear in its Section 8 titled Exemption from the Scheme.
Subsection (1) of section 8 reads:
S.8(1) Notwithstanding the provisions 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 three years or less to retire, shall be exempted from the scheme.
So when one reads all these provisions alongside Section 2 which contains the word ?worked? and provides that:
2. The objectives of the Scheme Shall be to –
(a) ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory or Private Sector receives his retirement benefits as and when due;
(b) assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age; and
(c) establish a uniform set of rules, regulations and standards for the administration and payments of retirement benefits for the Public Service of the Federation, Federal Capital Territory or Private Sector,
it becomes quite clear that the adjective ?worked? in Paragraph (a) of Section 3(1) is intended to apply to only employees as defined by the Act, namely (1) employees who worked during the currency of the Pension Reform Act 2004, (2) had not less than three years to retirement as the date of enactment and commencement of the Pension Reform Act 2004, and (3) have been contributing to the Contributory Pension Scheme established by it. Pension Reform Act 2004 does not apply to persons like respondent who were disengaged from service before its commencement and so could never have and did not contribute to the Contributory Pension Scheme established by it.
Section 12 of the Pension Reform Act which the lower Court also referenced for its construction does not, with all due respect to it, derogate from these provisions. Section 12 is titled Transfer of entitlement from defined benefits scheme into the Scheme and provides thus:
12(1) As from the commencement of this Act, the right to retirement benefits of any employee who is already under any pension scheme existing before the commencement of this Act and has over three years to retire shall —
So when the lower Court held in its judgment at p. 240 – 241 of the records that, The inconsistency is fuelled by the provisions of Section 2(a) of the Pensions Reform Act 2004 which provide:
2. The objectives of the Scheme Shall be to –
ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory or Private Sector receives his retirement benefits as and when due.
The operative word there is EVERY PERSON WHO WORKED that to my mind includes and (sic) a person who worked but was dismissed
it was wrong, even more so when it proceeded on that wrong interpretation to further hold that:
Therefore a combination of the provisions of Section 101 and 2(a) of the Pension Reform Act 2004 renders the provisions of Section 25(c) of the University Regulation Governing the Conditions of Service of the senior Staff of the University of Jos null, void and of no legal effect.
The defendant cannot therefore argue that the Plaintiff was dismissed before the coming into effect of the Act the Scheme is no longer application (sic) to him.
Respondent cannot compel appellants to pay him benefits from a Scheme he never contributed a dime to. If he made contributions to any other Pension Scheme as he asserts, it was up to him to prove that assertion and confine his claim to that Scheme rather than claim through the Pension Reform Act and its Contributory Pension Scheme which is very clear as to who can benefit from it and even excludes employees in service who had less than three years to retirement as at the date of its commencement.
For the same reason, the provisions of Section 101 of the same Pension Reform Act 2004 stating that ?If any other enactment or law relating to pensions is inconsistent with this Act, this Act shall prevail,? which provision the lower Court cited to nullify Section 25(c) of the University Regulation Governing the Conditions of Service of the senior Staff of the University of Jos, is of no avail to respondent. Issue 1 is accordingly resolved in favour of appellants.
And that renders every other issue in the appeal academic. At any rate, even if the respondent had not founded his case on the provisions of the Pension Reform Act but simply brought it pursuant to any other pension scheme he claimed to have been paying 5% of his salary to while in appellants? service, the onus of proving the said contribution, as appellants correctly argued, is on him as the person asserting it since appellants denied it. That onus he failed to discharge and even had no answer to appellants? contention on it, which means he concedes it: Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296; Nwankwo v. Yar? Adua (2010) 3 SCNJ (PT 1) 244 @ 265.
I note, too, that it was also said by Rhodes-Vivour, J.S.C., in Odunlami v. Nigerian Navy (2013) 12 NWLR (PT 1367) 20 @ 56, (2013) LPELR-SC 20701 (S.C) p.35, albeit by way of obiter dictum it seems, that dismissal means rejection, discarding, that once an officer is dismissed, it would be nave of him to expect to be paid his entitlements. Dismissal and forfeiture go together. That is the more reason why respondent should have properly pleaded and proved his acclaimed 5% pension contribution while in employment and his concomitant right to receive it upon dismissal. That is even on the assumption that his action for interpretation of the clearly inapplicable Pension Reform Act 2004 could have accommodated such claim. A claimant is bound by his claims no matter how misconceived they are: Commissioner for Works, Benue State v. Devcon Construction Co. Ltd (1988) 3 NWLR (PT 83) 407 @ 420; Okoya v. Santilli (1990) 3 SCNJ 83 @ 126 -127; Ransome Kuti & Ors v. Attorney-General of the Federation (1985) 2 NWLR (PT 6) 211.
So, whichever way one chooses to look at it, the lower Court was incorrect in entering judgment for respondent on his summons. Accordingly, I allow the appeal and set aside the 12/12/2012 judgment of the Federal High Court, Jos Division in Suit No FHC/J/CS/33/2012. In its stead I make an order dismissing the said summons.
Parties shall bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my learned brother, Ugo, J.C.A. just delivered. I completely agree with his reasoning and conclusion that the appeal ought to be allowed. I also allow the appeal and endorse all the consequential orders contained in the lead Judgment inclusive of costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses. His lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusion reached therein.
The first grouse of the Appellants in this appeal is with the retrospective application given by the lower Court to the Pension Reform Act of 2004 which became operational from the 25th of June, to cover the Respondent who was dismissed from service on 22nd of March 2004 and to, in the process, declare as null and void Section 25 of the Regulation Governing the Conditions of Service of the Senior Staff of the University of Jos which provides that a dismissed staff loses all benefits that would normally accompany cessation of employment. It is trite that at common law, a Statute will always be presumed not to have retrospective operation and this is because retrospective legislations are considered offensive to the principles of social justice. The point was made by Thomas Hobbes when he wrote in Leviathum, first published in 1665, that “harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of the law.” William Blackstone wrote in his Commentaries on the Laws of England.
“Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to Commence in future, and be notified before their commencement.”
Elaborating on the point, an Australian Court in Australian Education Union Vs General Manager Of Fair Work Australia (2012) 246 CLR 1 17, the Court noted that rule of law principles underpin the common law presumption against retrospective operation of a Statute:
“In a representative democracy governed by the rule of law, it can be assumed that Clear language will be used by the Parliament in enacting a Statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality ”
The general rule of the common law is that a Statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts and events that have already occurred in such a way as to confer or impose or otherwise affect the rights or liabilities which the law had defined by reference to the past events.
This approach is part of the common law of Nigeria. It is a fundamental rule of our laws in this country that statutes operate prospectively and no statute shall be construed so as to have retrospective operation as to impair an existing right or obligation unless its language is such as plainly require such construction and such effect cannot be avoided without doing violence to the language of the enactment ? Adegbenro Vs Akintola (1963) 1 All NLR 299 at 301302, Okafor Vs Ibeziakor (1965) I All NLR 407 at 411, The Council of University of Ibadan Vs Adamolekun (1967) 1 All NLR 213 at 214, Johnson vs The State (1981) 2 SC 29 at 38, Ikpasa Vs Bendel State (1981) 9 SC 7 at 15-16, Adesanoye Vs Adewole (2000) 9 NWLR (pt 671) 127. In Shell Petroleum Development Company of Nigeria Ltd Vs Anato (2015) 12 NWLR (Pt 1472) 122, the Supreme Court stated:
“There is a general presumption against retrospective legislation. It is presumed that the legislature does not intend injustice or absurdity. Courts therefore lean against giving certain statutes retrospective operation. Generally, statutes are as operating only in cases or on facts, which into existence after the statutes were passed a retrospective effect is intended.”
Thus, one of the questions arising in this appeal is whether, from the wordings of the Pension Reforms Act 2004 (as amended in 2011), it can be said with reasonable certainty that a retrospective application of its provision was clearly intended to confer retirement benefits on persons who were not so entitled before the commencement of the Act? The simple answer to the question is, No. Section 1(1) of the Act which deals with the establishment of a Contributory Pension Scheme for employees in the public and private sectors reads:
There shall be established for any employment in the Federal Republic Of Nigeria a Contributory Pension Scheme… for payment of retirement benefits of employees to whom the Scheme applies under the Act.”
Section 2 which deals with the objectives of the Scheme States:
“The objectives of the Scheme shall be to
a. ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory or Private Sector receives his retirement benefits as and when due;
b. assist improvident individuals by ensuring that they save in order to for their livelihood during old age; and
c. establish a uniform set of rules, regulations and standards for the administration and payments or retirement benefits for the public Service of the Federation, Federal Capital Territory and the Private Sector.”
These are the operative provisions of the Act and the common words used in both provisions are “shall be”. It is obvious that the words refer to something that would happen going forward, and not to a past event, in the con in which there were used in the two provisions. Similar phrases, “shall be entertained” and “shall not be set aside”, used is similar cons were interpreted by the Courts as referring to acts ? Are Vs Attorney General, Western Region (1960) 5 FSC 111, Kpema Vs The State (1986) 1 NWLR (Pt 17) 396 at 405 and Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 72 B-G. The provisions of Sections 1 and 2 of the Act set the tone for the Act as a futuristic, a prospective, legislation, and not as a retrospective legislation.
Further, it is a rule of Interpretation that common sense must be applied in construing documents and Statutes and that the construction agreeable to justice and reason must always be adopted Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt 1097) 12, Congress for Progressive Change V. Independent National Electoral Commission (2012) 1 NWLR (Pt 1280) 106, Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2016) 7 NWLR (Pt 1510) 10. This position of the law is well captured in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a Statute if there is some other construction available.”
Applying commonsense to the interpretation of the words in Section 2(a) of the Act, “ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory or Private Sector receives his retirement benefits as and when due”, the provision can only be referring to someone who worked in the mentioned places and who was entitled to receive retirements benefits as at the date of commencement of the Act. It was not everyone who worked in the mentioned places that was entitled to receive retirement benefits, and the provision cannot be said to be referring to such people. The provision did not confer retirement benefits on persons not entitled to it; it only assures that persons who are entitled to retirement benefits will receive it as and when due.
The lower Court was thus in clear error when it gave a retrospective connotation to the provisions of the Act to confer retirement benefits on the Respondent who was not entitled to any retirement benefits as at the date of the commencement of the Act.
Another issue agitated by the parties was whether the suit was properly commenced by the use of originating summons. Counsel to the Appellants contended that the lower Court was wrong to have entertained the suit on an originating summons in view of the dispute in the facts as deposed in the affidavits and counter affidavits of the parties. It is elementary that facts make cases and that it is disputes in the facts that lead to litigation ? Pam Vs Mohammed (2008) 16 NWLR (Pt 1112) 1. Thus, it is not the law that matters commenced by originating summons are devoid of dispute on the facts and the use of the procedure is proper as long as the dispute on the facts do not affect the live issues in the matter ? Sani Vs Kogi State House of Assembly (2019) LPELR 46404(SC). Counsel to the Appellants did not show how the dispute on the facts in the instant case affected the live issues for determination in the matter. The agitation of the Appellants on the point was thus misconceived.
I agree with the lead judgment that this appeal has merit and I hereby allow the appeal. I too set aside the judgment of the Federal High Court sitting Jos in Suit NO FHC/J/CS/33/2012 delivered by Honorable Justice A. L Allagoa on the 12th of December, 2012. I abide the Order on costs in the lead judgment.
Appearances:
Mrs. M. Adeniyi with her, B. D. Daze, Esq., and A. Dennis Esq.For Appellant(s)
S. A. Oguntuyi, Esq.For Respondent(s)
