IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
DATE: 3RD DAY OF DECEMBER, 2019 SUIT NO: NICN/MKD/43/2015
BETWEEN:
1. COMRADE FIDELIS ORIAREWO
2. MICHAEL B. IWAR
3. ADA CELESTINE G.
4. SIMEON N. AKASE
5. OKOH AMODU
6. ADAJI EJIGA ZAKARI
7. OCHUBE ANTHONY
8. OPARA MARCILLINA CHINYERE
9. OKONKO LINUS
10. AYATSE JUSTIN GIWA
11. OLIVER NGBEA
12. NYAJO JOHN …………………………………CLAIMANTS
13. TSUA TERKIMBIR
14. VERONICA NDUKUBA
15. FELIX ONYIA
16. TSUA RITA
17. UDE E. ABA
18. AUGUSTINE AKIE
19. DAVID AOV
20. FRANCIS UTENKULE
21. IROBA N. RAPHAEL
22. RIVAH IORHEMEN M.
23. UKPOJU PAUL
24. UMEH DORATHY W.
25. PIUS OCHIJOLE A.
AND
1. 
NIGERIAN POSTAL SERVICE (NIPOST)
2. THE POSTMASTER-GENERAL/CEO (NIPOST) ……………………DEFENDANTS
3. THE GENERAL MANAGER, (NIPOST)
REPRESENTATION:
1st to 5th Claimants present
Defendants absent
Vershima Akaangee holding the brief of D.I. Kajo for the Claimants.
No appearance for the Defendants.
RULING
For consideration of the Honourable Court is the Claimants’ application for summary judgment dated 15/03/2019 and filed on 29/03/2019. The motion is praying the Honourable Court for the following reliefs:
“1. AN ORDER entering final/summary judgment against Defendants/Respondents:
a) For the sum of N2, 642, 985.75 (Two Million, Six Hundred and Forty Two Thousand, Nine Hundred and Eighty Five Naira and Seventy-Five Kobo) only, being a total of various sums of money wrongfully deducted by the Respondents from Claimants’ entitlements either as loans that did not exist or programming errors.
b) For the sum of N300, 000.00 (Three Hundred Thousand Naira) only, being solicitor’s fees.
c) For cost of prosecuting this claim.
d) For the sum of N2, 057, 015 (Two Million and Fifty Seven Thousand and Fifteen Naira) only, as general/exemplary damages.
e) For interest at the rate of 15% per annum on judgment debt and costs from date of judgment until final payment.
1. AN ORDER deeming as properly filed and served all relevant court processes previously filed and served in this matter more particularly, the originating process, amended statement of claim and exhibits.
2. FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.”
The applicants have founded their application on the following grounds:
“1. By Respondent’s admission the claimant’s claim for the sum of N2,642, 985.75 is correct and represents the total of various sums of money wrongfully deducted from claimants’ severance entitlements and that same has remained unpaid to date.
2. By Respondents’ further admission vide their letter Ref. NIP/CS/13/MISC/VOL.1 dated 24/8/2001 Respondents requested the Accountant General of the Federation to deduct the various sums due to the Claimants and they did so.
3. By Respondents’ request which was complied with by the Accountant General of the Federation to the Claimants detriment Respondents have no defence to this suit.”
The 28-Paragraph Affidavit of Comrade Simeon Akase, the 4th Claimant/Applicant was filed in support of the application. Paragraphs 3 to 27 thereof are most pertinent and are hereby reproduced.
“3. That I have the consent, permission and authority of all the claimants as well as our counsel to depose to this affidavit.
4. That we were at different times offered appointments by 1st Respondent on terms contained in our various letters of appointment.
5. That 1st Respondent is an Agency/ or parastatal under the Federal Ministry of Communication established by an Act of the Federal Republic of Nigeria carrying on business of postal and communication services with offices in all states and local governments in Nigeria.
6. That 2nd Respondent is the administrative head/Chief Executive Officer of the 1st Defendant/Respondent.
7. That 3rd Respondent is the General Manager of 1st Respondent in charge of severance benefits of retirees, pensions etc.
8. That I know as of fact that prior to 2006 we were all bona-fide staff of the 1st Respondent at her Makurdi branch but now belong to a class of staff compulsorily disengaged by the 1st Respondent in 2005/2006.
9. That I know as of fact that upon our disengagement from service in 1st Respondent, the Account Department of the 1st respondent carefully computed and forwarded for payment, the severance benefits/entitlements of all affected retirees including Applicants.
10. That Respondents however, unilaterally and without any just reason, wrote the office of the Accountant General of the Federation vide a letter dated 24th August 2001 with reference No. NIP/CS/13/PEN.MISC/VOL.1, requesting that various sums of money be deducted from retirees’ severance benefits including the sum being claimed by us in relief 1(a) of this application and Respondents were obliged.
11. That I know as of fact that a copy of the letter referred to in paragraph 10 above is in Respondents’ custody but the admission of its contents was however substantially reproduced by respondents in another letter dated 9th November, 2011 with reference No. NIP/SAPMG/PEN/MISC/S.13/VOL.II addressed to the office of the Accountant General. This letter is hereby produced, shown to me and marked EXHIBIT NIP A1.
12. Following the Respondents’ request of 21/08/2001 noted above, Claimants’ benefits/entitlements were accordingly wrongfully deducted to their detriment.
13. That I know as of fact that the list below shows our names and the amount wrongfully deducted from each of our entitlements:
NAMES AMOUNT DEDUCTED
a. SIMEON AKASE……………….…….N170,195.52
b. VERONICA NDUKUBA………..…….N164,876.94
c. FELIX ONYIA…………………….......N83,579.94
d. TSUA RITA……………………….…….N117,255.92
e. UDE E. ABA…………………………...N146,320.84
f. AUGUSTINE AKIE……………….…….N100,058.44
g. DAVID AOV……………………………N91,497.70
h. FRANCIS UTENKULE ………………......N79,788.44
i. IROBA N. RAPHAEL ………………......N129,129.90
j. RIVAH IORHEMEN M. .………….……N127,452.30
k. UKPOJU PAUL…………….……………N36,799.48
l. UMEH DORATHY W. ……..…………...N127,645.66
m. PIUS OCHIJOLE A. ……….…………..N79,341.78
n. FIDELIS ORIAREWO……….……………N128,144.02
o. MICHAEL B. IWER……….……………..N98,040.24
p. ADA CELESTINE G. ………..……........N126,161.42
q. OKOH AMODU………………..……….N35,911.68
r. ADAJI EJIGA ZAKARI…………..…….N94,946.00
s. OCHUBE ANTHONY……………………N44,624.95
t. OPARA MARCILINA CHINYERE……..N152,852.48
u. OKONKO LINUS………………………..N127,831.88
v. AYATSE JUSTIN GIWA…………………N91,139.52
w. OLIVER NGBEA…………………………N148,034.66
x. NYAJO JOHN………………………..N58,294.46
y. TSUA TERKIMBIR……………………...N83,294.46
14. That I know as of fact that the total sums wrongfully deducted worked out by simple addition equals to N2,642,985.75 (Two Million, Six Hundred and Forty Two Thousand, Nine Hundred and Eighty Five Naira and Seventy Five Kobo) only.
15. That I know as of fact that upon becoming aware of the wrongful deductions we petitioned Respondents through several written correspondences and even through letters by our solicitor dated 6th October 2014 and 24th November 2014 but same yielded no positive result. The said correspondences and letters are hereto attached and marked EXHIBIT SA2 a, b, c SA3 & SA4 respectively.
16. That I know as of fact that it was consequent upon Respondents’ failure to meet our demand that we instituted the instant suit against them in 2015.
17. That I know as of fact that parties in this suit have already filed and exchanged pleadings as well as other processes prior to this application.
18. That I know as of fact that Respondents have admitted the above mentioned wrongful deductions both by their pleadings and other court processes.
19. That the Respondents have only attempted to blame the Accountant General of the Federation for carrying out their wrongful request.
20. That I know as of fact that we charged and have paid to our counsel the sum of N300,000.00 only as solicitor’s fees in respect of this suit. The receipts of payment are hereto attached and respectively marked EXHIBIT SA5 and SA6.
21. That I know as of fact that from 2015 to date, we have expended over N200,000.00 settling filing fees, appearance fees, accommodation fees, transportation fare to and from court.
22. That I know as of fact that we have been subjected to great embarrassment, loss of face, grave financial losses and emotional torture as a result of Respondents’ conduct.
23. That I know for a fact that from 2011 when Respondents directed the said wrongful deductions claimants have been deprived of the use of their said severance benefits/entitlements amounting to N2, 642, 985.75 up to date.
24. That I know as of fact that the above sum has seriously lost its value due to the recalcitrance of Respondents and inflationary trends over the years.
25. That I know as of fact that the above sum would have yielded interest or dividend of over N2, 057, 015 if same was invested in CBN Treasury Bills or any dedicated interest yielding account and claimants claim the said sums as exemplary damages.
26. That I verily believe that the Respondents have no defence to this suit.
27. That it will serve the interest of justice if judgment is given against Respondents and they will not be prejudiced thereby as they will only be paying us what they are obligated by law to pay us.
…”
The written address of counsel for the applicants accompanied the application. Counsel posed for the consideration of this Honourable Court, the following issue: “Whether or not having regard to the facts and circumstances of the instant case, the reliefs sought in this application are grantable.”
Arguing the issue so formulated, learned counsel for the applicants outlined that the applicants had complied with all requisite conditions for the grant of the application sought. Counsel further pointed out that the Respondents do not in fact have any defence to the suit. Counsel stressed that even if it were that it was the office of the Accountant General that was in default, it is the responsibility of the Respondents and not Applicants to ensure that the wrongfully deducted sum is recovered and paid to the Applicants as no privity of contract exists between the applicants and the office of the Accountant General of the Federation.
In all, counsel urged the court to grant all the reliefs of the Claimants’ application in the interest of justice.
Opposing the application, the Respondents caused a 29-paragraph Counter Affidavit to be filed. Dotimi Crosswill Aketi, Assistant Chief Finance Officer in the Pension/Finance and Investment Division of the 1st Defendant/Respondent deposed to the said Counter Affidavit. The said Counter Affidavit was filed pursuant to application for extension of time so to do, dated and filed on 16/5/2019. Paragraphs 5 to 27 of the affidavit of Dotimi Crosswill Aketi are worthy of note and same are hereby re-rendered thus:
“5. That I have been shown and read the Claimants`/Applicants’ affidavit in support of their motion for Summary Judgment dated the 15th day of March 2019 but filed on the 29th day of March 2019 and hereby state that the facts deposed therein by one Comrade Simeon Akase, 4th Claimant/Applicant are misconceived, misconstrued misleading and intended to cause miscarriage of justice by misleading this Honourable Court.
6. That I know as of fact that paragraph 5, 6, 7, 8 and 17 of the affidavits in support of the motion are correct and true.
7. That I know as of fact that paragraphs 1, 2, 3, 4, 9, 10, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are false, untrue, misleading and a calculated effort to mislead this Honourable Court to do injustice.
8. That I know as of fact that the Defendants/Respondents have a defence to the Claimants/Applicants action.
9. That I know as of fact the prior to the year 2005/2006 when the Claimants/Applicants were disengaged/severed from the service of Federal Civil Service of Nigeria on the directives of the Federal Government through the Bureau of Public Service Reforms (BPSR), the Claimants/Applicants were on the 1st Defendant/Respondent’s payroll and were paid their salaries up to date without any form of complaints.
10. That I know as of fact that in the year 2004, the Federal Government decided to carry out reform of the Federal Civil Service and to achieve this it established a body known as the Bureau of Public Service Reforms as a special purpose vehicle to carry out the reform exercise.
11. That I know as of fact that in the year 2006 and 2008 the Bureau of Public Service Reforms (BPSR) for and on behalf of the Federal Government of Nigeria directed all Ministries, Department and Agencies of the Federal Government including the 1st Defendant/respondent to implement the reform process otherwise known as Public Service Right-Sizing Exercise by disengaging members of staff which fall within the prescribed criteria. Copy of a letter reference no. BPSR/ERGP/248/1/266 of 16th May, 2012 on severance and social assistance programme in the Federal Civil Service that was undertaken in the Federal Civil Service between 2006 and 2008 is hereby attached and marked exhibit NIP/D1.
12. That I know as of fact that the twenty-five claimants/applicants in this suit fall within the category of staff that were affected by the reform process and severed/disengaged from the service of the 1st Defendant in the year 2006.
13. That I know as of fact that the disengaged/severed staff of the different Ministries, Departments and Agencies inclusive that of the 1st Defendant/respondent inclusive the twenty-five claimants/applicants were not paid their terminal benefits immediately upon their disengagement thus the Federal Government directed vide its circular reference no. HCSF/PS/E&P/90/32 of 18th April, 2006 that until the terminal benefits of the staff concerned are paid; Ministries, Departments and Agencies (MDAs) are authorized to advance to their staff concerned, monthly amounts equal to their monthly salaries to reduce the hardship being experienced by the retired staff and the total amounts advanced to the individuals concerned should be recovered en-bloc from their terminal benefits at the point of payment. Copy of the circular is hereby attached and marked exhibit NIP/D2.
14. That I know as of fact that in the year 2010, the 1st Defendant/respondent submitted a total sum of N4,071,398,252.47 as the total of her pensions arrears liabilities for her 9,433 pensioners inclusive the twenty-five (25) Claimants/applicants in this case to be paid by the office of Accountant General of the Federation.
15. That I know as of fact that in November, 2010 the office of the Accountant General of the Federation vide its letter reference no. OAGF/SD/ABJ/225/II/571 of 29th November, 2010 intimated the 1st Defendant/respondent through it letter to the 2nd Defendant that the validation and verification for the 1st defendant/respondent’s retired staff will take place from Monday 13th December to Friday 24th December, 2010.
16. That I know as of fact that by paragraph 5 of the above referred letter the office of Accountant General of the Federation noted that “payment will be effected as soon as the amounts are mutually agreed”. Copy of the letter reference no. OAGF/SD/ABJ/225/II/571 of 29th November, 2010 is hereby attached and marked exhibit NIP/D3.
17. That I know as of fact that the office of the Accountant General of the Federation engaged the services of one M/S COMSOFT LIMITED, a firm of consultants to conduct the validation and verification exercise of the 1st defendant/respondent’s retired staff including the twenty-five claimants/applicants in this suit and a report of their exercise as well as all subsequent exercises on 1st defendant/respondent’s retire staff exercises were submitted to the office of Accountant General of the Federation who thereafter contact the 1st Defendant/respondent if there is any need for clarifications. Copies of some reports by M/S COMSOFT LIMITED and letters from the office of the Accountant General of the Federation intimating the 1st defendant of such reports is attached as Exhibit NIP/D4A-C.
18. That I know as of fact that after the validation and verification exercise of the retired staff inclusive of the twenty-five claimants/applicants were carried out in December, 2010 and the 1st defendant/respondent observed that the Office of Accountant General of the Federation was yet to pay her validated and verified retired staff on 13th April, 2011 vide her letter reference no. NIP/APMG/PEN/MISC/13/VOL. II wrote the Office of the Accountant General requesting to know when the validated and verified retired staff including the claimants/applicants in this suit would be paid their arrears of terminal benefits. Copy of the letter is hereby attached and marked exhibit NIP/D5.
19. That I know as of fact that all the retired staff inclusive the twenty-five claimants/applicants were eventually paid their terminal benefits arrears directly into their individual bank account details as provided by each of them without further recourse to the 1st defendant/respondent in August, 2011.
20. That I know as of fact that contrary to the facts deposed by the 4th Claimant/Applicant in support of their motion for summary judgment in paragraphs 18 and 19 of the affidavit in support, the Defendants/respondents unequivocally deny admitting that it was the 1st Defendant/Respondent that wrongfully/erroneously deducted the Claimants/Applicants terminal benefits and wish to respond to the above referred paragraphs as follows:
a) That the defendants/applicants’ have categorically denied that the 1st Defendant was responsible for the payment of the retirement benefit and other deductions made from the benefit of the 1st Defendant’s retirees affected by the 2006 Federal Government retirement policy inclusive of the claimants/applicants;
b) That the said payments and deductions was carried out by the office of the Accountant General of the Federation after carrying out the validation and verification exercise of all the 1st defendant’s retirees inclusive the claimants/applicants by the Consultant engaged by the office of the Accountant General of the Federation namely M/S COMSOFT LIMITED;
c) That the defendants/applicants did not admit in their joint statement of Defence that the 1st Defendant was responsible for the alleged wrongful deduction made from the Claimants/Applicants retirement benefits.
d) That the letter Ref: NIP/CS/13/PEN/MISC/VOL.I/ of 24th August, 2001 referred to in exhibit NIP. 1A and paragraph 10 of the affidavit in support of this application did not ignite the alleged various wrongful and erroneous deductions claimed by the claimants/applicants.
e) That paragraph 2 of exhibit NIP. A1 which relates to over deduction and other deductions from the 1st Defendant’s retiree made in error to the tune of N276,514,454.74 relates to such deductions that were made both in respect of retirees to which the circular Ref: NIP/CS/13/PEN/MISC/VOL.1/ of 2nd August, 2001 refers as well as those who were compulsorily retired under the Federal Government Civil Service reform exercise of 2006 to 2008 to which the 25 Claimants/Applicants herein belonged.
21. That I was informed by S. O. Sangotayo, Esq. of Counsel on the occasion of the discussion of this case in his office and I verily believe him that the various alleged claims of the claimants/applicants as itemized in paragraph 13 of the affidavit in support of this application are special claims.
22. That I know as of fact that the short payments/deductions in the Claimants/Applicants terminal benefits were discovered by the 1st Defendant/Respondent when the complaints were received from the claimants/Applicants.
23. That I know as of fact that the 1st Defendant/Respondent immediately set machineries in motion to ensure that the Office of the Accountant General of the Federation refunded the deduction erroneously/wrongly made and to that effect the 1st defendant wrote to the Office of the Accountant General of the Federation demanding that the wrongful/erroneous deductions of her retirees inclusive of that of the Claimants/Applicants be refunded to them since they paid them and the deducted sums was not paid to the 1st Defendant. Copy of such letters written demanding for the refund of the wrongful/erroneous deductions to all 1st defendant/applicants retirees inclusive of the Claimants/Applicants by the office of the Accountant General of the Federation written in years 2011, 2015 and 2017 respectively are hereby attached and marked exhibit NIP/D6, D7 and D8.
24. That the defendants/respondents have filed their Joint Statement of Defence as well as their witness deposition in defence of this action. A copy of the Joint Statement of Defence and witness deposition is hereby attached and marked exhibit NIP/D9 and D10.
25. That I know as of fact the (25) twenty-five Claimants/Applicants are currently being paid their monthly pension by the Pension Transitional Arrangement Directorate (PTAD) and not the 1st Defendant/Respondent.
26. That I know as of fact the Pension Transitional Arrangement Directorate (PTAD) was not the employer of the claimants/applicant while in the service of the Federal Civil Service with the 1st Defendant/Respondent.
27. That the Defendants/respondents have defence to the Claimants/Applicants claim.
The Respondents in their written address formulated one issue for determination thus; “Whether the Claimants/Applicants are entitled to the reliefs sought in this application before this Honourable Court?”
Counsel on behalf of the respondents referred the court to Order 26 Rule 5(1) if the Rules of this Honourable Court to submit that the instant application is not grantable because the respondents have a good defence.
Counsel submitted also that a careful consideration of the processes filed by the Respondents will show that this case is disputed and contestable as to who made the erroneous deductions form the claimants' terminal benefits. Counsel referred to the case of Osunde V Ecobank Nig. Plc (2019) ALL-FWLR P. 742 at 763.
Reacting to the Counter Affidavit of the Respondents, the 4th Applicant caused a 19- Paragraph Further and Better Affidavit of Comrade Simeon Akase to be filed in support of the application for summary judgment. In substance, the deponent has stated, particularly at paragraphs 4- 17 of the said affidavit that: paragraphs 5,8,13,17,20,21,27 and 28 of the Respondents’ counter affidavit in opposition to the claimants’ application for summary judgment are particularly false and calculated to mislead the Honourable court. That paragraph 17 of Respondents’ counter affidavit is true only to the extent that the office of the Accountant General of the Federation through M/S COMSOFT LIMITED, had in early 2011 conducted a validation and verification exercise for the 1st Respondent’s retirees inclusive the claimants/Applicants herein. That in the course of the validation and verification exercise each retiree was given a slip
with the heading: “NIGERIAN POSTAL SERVICE PENSIONER VALIDATION AND VERIFICATION EXERCISE 2011”. Copies annexed as Exhibit SA7a-y.
The deponent further averred that the Exhibits SA7a-y contain Applicants’ individual information including the correct sum that ought to have been paid to each Applicant as his/her severance benefit, termed in the said Exhibit SA7a-y as gross amount; the amount that was wrongfully deducted therein termed as NIPOST Salary Loan and the amount that was actually paid to the Applicant termed “net payable.” That depending on the bank, the amount that was actually paid into some of our individual accounts was a little less than the sum indicated respectively as “net payable” in Exhibit SA7a-y because bank charges of between N200 and N400 were deducted by the banks. Copies of the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, 14th, 15th, 16th, 17th, 21st, 22nd and 24th claimants/applicants’ individual bank statements are annexed as Exhibit SA8a-q.
That the severance benefits/entitlements were wrongfully deducted because the Respondents had by their letter dated 24/8/2001 reference No. NIP/CS/13/PEN/MISC/VOL.1 requested the office of the Accountant General of the Federation to deduct various amounts of money from retirees’ entitlements including the sum of N2, 642, 985.75 as salary loan. The purported NIPOST Salary Loans contained in Exhibits SA7 a-y were fictitious creation of the Respondents as no retiree of the 1st Respondent between 1996 and 2011 was ever advanced any loan known as Nipost salary loan. That the Applicants’ claim in relief 1(a) of this application therefore is for the sum total of the various amounts wrongfully deducted from each of the claimants/applicants severance benefit purportedly as NIPOST Salary Loan.
That the validation and verification exercise of 2011 mentioned above covered the 1st Respondent’s retirees of between 1996 and 2011. Prior to the 2011 validation and verification exercise there was no other time between 1996 and 2011 at which the office of the Accountant General conducted a validation and verification exercise for the 1st Respondent’s retirees and none of the retirees within the relevant period was paid his/her severance benefit or advanced any loan known as NIPOST Salary Loan. The directive of the federal government in Exhibit NIP/D2 annexed to the Respondents’ counter affidavit was never implemented by Respondents at any time after its issue.
That the Respondents’ directive/request for wrongful deductions contained in their letter of 24/8/2001 reference No. NIP/CS/13/PEN/MISC/VOL.1 deposed to in paragraphs 10 and 11 of the supporting affidavit was not immediately implemented/complied with by the office of the Accountant General until after the validation and verification exercise of 2011.
The deponent further deposed information volunteered to him by counsel for the applicants thus:
a. That paragraph 20(d) of Respondents’ counter affidavit is an objection, legal argument or conclusion and not a statement of fact.
b. That in paragraphs 7 & 8 of the affidavit in support of Respondents’ motion for third party notice dated 4/03/2017 and filed on 21/9/2017 the Respondents had deposed that the sum of N2, 643, 9985.75 (two million, six hundred and forty two thousand, nine hundred and eighty five naira and seventy five kobo) being claimed jointly by claimants/applicants in relief 1(a) of this application was in fact and truth wrongfully deducted from claimants/applicant severance benefits as salary loans which never existed or programming error and that same has remained unpaid to date. A copy of the affidavit is now produced, shown to me and annexed as Exhibit SA9.
c. That Respondents had in this suit frontloaded along with their joint statement of defence and other processes a copy of a letter addressed to the office of the Accountant General of the Federation (now annexed to their Counter Affidavit as Exhibit NOP/D70 which letter has attached to it a schedule of retirees’ names (inclusive of 1st, 2nd, 4th, 7th, 11th, 12th, 15th, 17th, 18th, 19th, 20th and 23rd claimants/Applicants) their bank details and the amount purportedly deducted wrongfully from their severance benefits/entitlements. Copies of the said schedule carrying 1st, 2nd 4th, 7th, 11th, 12th, 15th, 17th, 18th, 19th, 20th and 23rd claimants/applicants’ information are now produced, shown to me and annexed as Exhibit SA10.
In the written address of counsel for the applicants filed in support of the further affidavit, counsel submitted for determination of the court an issue to wit:
“Whether having regard to the Respondents’ counter affidavit, a defence on the merit or triable issues are disclosed to warrant a plenary trial.”
Counsel argued that the Counter Affidavit filed by the Respondents did not disclose a defence on the merit. Similarly counsel contended that the Counter Affidavit in certain respects offends relevant provisions of the Evidence Act 2011.
Citing a number of cases, Counsel urged the court to answer the lone issue formulated in the negative.
OPINION OF THE COURT
I have considered the processes before me and the respective submissions of the parties. Briefly, it is pertinent to note that facts and circumstances of the case leading to instant application as gleaned from the Statement of Claim of 1/06/2015 is that the claimants were at time material to this suit staff of the 1st Defendant until they were disengaged in 2006. The claimants have stated that the conditions provided in the collective agreements between the Federal Civil Service
Commission, Ministries and Parastatals and the NIPOST 2005/2006 Retiree union formed part of the terms of their respective employments and as such, Sections 7(1)(2)of the PENCOM ACT 2004 and other relevant provisions entitle them to:
Appropriate pension under the relevant table in the1st schedule.
10% of their pension and gratuity as compensation for premature retirement so however that their total award shall not exceed 70 percent of their salary as pension and 300% of their salary as gratuity.
That though their entitlements were worked out, the Defendants unilaterally and illegally deducted from their severance payments amounts totaling Two Million, Six Hundred and Forty-Two Thousand, Nine Hundred and Eighty-Five Naira, Seventy-Five Kobo (N2,642,985.75). The 25 claimants who were disengaged by the 2006 exercise within the Benue State territory further averred that the Defendants in a bid to short-change them proffered justification for the unilateral deduction, claiming the existence of fictitious loans in the records of the claimants. Where as the claimants have maintained that such claims of loans are false and non-existent.
The claimants are aggrieved that their objection and complaints about this issue to the Defendants have met with levity and non chalance, hence the instant suit.
In response, the Defendants had filed a Joint Statement of defence dated 8/10/2015 wherein they contended that the claimants were disengaged as a result of the Federal Government Policy directive made in 2005 (titled: Reform of Public Service) directing the disengagement from the public service of redundant and monetized staff. That further to the policy directive, the Federal Government assumed responsibility for the payment of all disengaged Public Servants through the office of the Accountant-General of the Federation. The defendants deny liability for payment of the entitlements of the disengaged staff of the 1st Defendant including the Claimants. The Defendants maintain that the funds for payment of pension arrears of the claimants were released to the Accountant-General of the Federation by the Federal Government and that the Claimants along with other retirees were verified by the office of the Accountant-General and paid their pension sometime between August and November 2011.
The Defendants are contending that the Claimants were paid their pension arrears except alleged deducted loans from their entitlements due to computing and/or programming errors. The Defendants maintain that the short fall in the claimants’ entitlements were retained by the Office of the Accountant-General of the Federation and not remitted to the 1st Defendant.
The Defendants allege that being aware of their non-responsibility for the payment of arrears to the claimants; they accordingly made representation of the Claimants’ claims to the Office of the Accountant-General of the Federation.
Needs to be understood first that Summary Judgment is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. This position has already been abundantly made clear by the courts. However, for this type of judgment to issue, the court will upon corresponding application only consider the contents of the pleadings, the motion and additional evidence adduced, such as documents produced as Exhibits, by the parties rather than one of law. It is settled that the summary judgment procedure is devised and intended to allow for speedy disposition of a controversy without the need for trial. See: AKPAN v. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD.(2013) LPELR-20753(SC); BONA V. V. TEXTILE LTD. & ANOR. V. ASABA TEXTILE MILL PLC (2012) 12 SCNJ 28, (2012) 12 SC (PT.1) 25. (2012) 213 LRCN 63; (2013) 2 NWLR (PT.1338) 357; NKWO MARKET COMMUNITY BANK (NIG) LTD (NMCB) V. OBI (2010) 14 NWLR (PT.1213) 169 SC; (2010) LPELR 2051(SC).
The law expects that pleadings should be sufficient, comprehensive and accurate. Suffice it to say that all parties are bound by their pleadings. See CHIEF EDMUND I. AKANINWO & ORS. V. CHIEF O. N. NSIRIM & ORS.(2008) LPELR-321(SC).
The burden is on the defendants to satisfy this Court that there exists a good defense or to disclose other facts that will entitle them to defend, otherwise judgment would be entered for the Claimant.
The Court of Appeal (per Abiru JCA) in the case of ISIAKA MOHAMMED & ANOR V. PAUL OKAFOR & ANOR (2016) LPELR - 25909 (CA) at pages 21 - 25, paras A – D, stated that:
“The defence must condescend upon particulars and as far as possible deal with the plaintiffs claim and should also deal specifically with the plaintiffs claim and should also state clearly and concisely what the defense is; A mere denial by the defendant of being indebted to the plaintiff is not enough, the defense should state why the defendant is not indebted in full or in part and then state the true position? iii. It is not enough for the defendant to show a case of hardship, nor a mere inability to pay; iv. In all cases the defendant must provide sufficient particulars to show that there is a bonafide defence; v. Only defenses on merit are allowed; the defendant cannot rely on sham defense; vi where the defendant raises a legal objection, the fact must be clearly and adequately stated, see the cases NISHIZAWA v JETHWANI (1984) 12 SC 234, MACAULAY v. NAL MERCHANT BANK LTD [1990] 4 NWLR (144) 283 AND SANUSI BROTHERS (NIG) LTD v. COTIA COMMMMERCIO EXPORTACAO E IMPORTACAO SA [2000] 11 NWLR (PT. 679) 566”
I have looked through the Defendants’ objection to the claimant’s motion for summary judgment and by necessary extension, their defence to the suit. In substance, what the Defendants hinge their defence on is the fact that it is not their responsibility to pay the Claimants. That the responsibility for making such payments rests with the Office of the Accountant General of the Federation. The Defendants have drummed this fact extensively. I am not in doubt that the responsibility of making payments to the claimants as far as this case is concerned resides with the Office of the Accountant General of the Federation. Granted, for what it is worth that this is indeed the case, I also find from the pleadings before me that the initial payments made to the claimants were done by/from the Office of the Accountant General of the Federation.
Be that as it may, Exhibit NIP A1 being the letter dated 9/11/2011 with reference No. NIP/SAPMG//PEN/MISC/S. 13/VOL.II which has been pleaded is indicative of the fact that the Defendants had requested the Office of the Accountant General of the Federation to deduct various amounts of money from retirees’ entitlements including the sum of N2, 642, 985.75 owing to the claimants as NIPOST salary loan. It seems fairly clear that the subsequent deductions made by the office of the Accountant General of the Federation on the entitlements of the claimants were induced by this singular instruction. It is therefore safe to say that the Office of the Accountant General of the Federation was simply acting in line with the instructions of the 1st defendant while deducting funds from the claimants’ entitlements. So clearly, the responsibility for making such deduction might have been that of the Office of the Accountant General of the Federation but the mandate was issued from the 1st Defendant and therefore the liability should rest with it squarely.
The said Exhibit NIP A1 also alluded to the fact that the deductions were made form NIPOST Retirees arrears money into NIPOST Pension Board Account.
Moreover, the Defendants have in their pleading admitted and/or acknowledged that deductions were indeed made to the arrears of the Claimants’ benefits. The law is settled that fact admitted by a defendant in his pleading should be taken as established and should form one of the agreed facts of the case. See CHIEF EDMUND I. AKANINWO & ORS. V. CHIEF O. N. NSIRIM & ORS.(SUPRA). An admission in pleadings basically puts an end to proof. This is because by the admission, the parties no more join issues on the matter. Since proof presupposes a dispute and since admission drowns the element of dispute, proof becomes superfluous. This principle of law is well founded and settled that facts admitted need no proof. See Sections 20, 24 and 26 of the Evidence Act 2011. See also the cases of NARINDER TRUST LTD. V. N.I.C.M.B. LTD. (2001) FWLR 1546 AT 1558; BUNGE V. GOVERNOR RIVERS STATE (2006) 12 NWLR (Pt. 995) 573; CHUKWU & ORS v. AKPELU(2013) LPELR-21864(SC).
It is essentially abysmal that the defendants have sought to attribute the deductions from the Claimants’ entitlements to computing errors. But even this fact is potentially lacking in merit to exculpate the defendants from culpability, at least in negligence, if for nothing else.
What becomes apparent is that the defendants have no defence on the merit to warrant transferring this matter to the general cause list. In the circumstances, I hold that the Claimants’ motion for summary judgment succeeds in the following terms.
a) The sum of N2, 642, 985.75 (Two Million, Six Hundred and Forty Two Thousand, Nine Hundred and Eighty Five Naira and Seventy-Five Kobo) only being total of various sums of money wrongfully caused to be 4deducted by the Respondents from the Claimants’ entitlements either as loans that did not exist or programming errors is awarded in favour of the Claimants against the Defendants which shall be paid within 30 days.
b) N100, 000.00 (One Hundred Thousand Naira Only) is awarded against the Defendants in favour of the Claimants as cost of prosecuting this claim.
c) Post judgment Interest is awarded in favor of the claimants at the rate of 20% per annum on the judgment sum from the date of judgment until final liquidation.
Ruling is entered accordingly.
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HON. JUSTICE S. H. DANJIDDA
(Presiding Judge)
