IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 10th November, 2021
SUIT NO: NICN/MKD/09/2020
Mrs Helen Otokpa------- -------------------------------------------Claimant
1.Government of Benue State
(For and unbehalf of all its Agencies parastatals and Department)
2.Attorney General & Commissioner for Justice
3.Benue State Basic Education Board-------------------------------- Defendants
4.Benue State Local Government Service Commission
5.Benue State Local Government Pension Board
The claimant commenced this action by a complaint dated and filed on the 22/1/2019 wherein the claimant sought 7 reliefs against the defendant. The claimant also filed a motion for summary judgment wherein she sought the following reliefs which are the same reliefs endorsed on the complaint:
a) A Declaration that the refusal and continuous refusal by the defendants to pay the gratuity and the accumulated monthly pensions of the claimant many years after her statutory retirement from service is Malicious, illegal, unlawful, wicked and unfair labour practice and therefore a breach of the relevant provisions of the Labour Act of Nigeria and international best practices with impunity.
b) An order of the Honourable Court compelling the defendants to pay to the claimant the sum of N6, 186,636.00K only being the claimant’s lawful gratuity as contained in her re-submission of retirement benefits letter dated the 9th December, 2014.
c) An order of the honourable court compelling the defendants to pay to the claimant the sum of N6, 256, 046.92K only being the claimant’s due accumulated arrears of her monthly pensions from September to December 2014, January to December 2015, January 2016, August to December, 2017, January to December 2018 and January to December, 2019 respectively.
d) An order of the honourable court compelling the defendants to pay to the claimant the sum of N12,442,682.92K being the claimant’s lawful gratuity and accumulated arrears of her monthly pension in possession of the defendants since her voluntary retirement from the service of the defendants.
e) Payment of Fifteen ( 15%) percent interest on the claimants’ total sum payable to her until the total sum is fully liquidated.
f) Damages and cost of this action as claimant’s counsel may argue and assessed by the honourable court.
In support of the motion for summary judgment is a 34 paragraph affidavit deposed to by the claimant. Attached to the affidavit are exhibit HO1 to exhibit HO7. Also in support of the motion is the written address of the claimants counsel.
Upon being served with the originating process and the motion for summary judgment, the defendants filed a joint statement of defence and a joint counter affidavit on the 10/7/2021. At the hearing of claimant’s motion for summary judgment, the claimant counsel applied to withdraw prayers No1 (a), (d), (e) and (f). The prayers were accordingly dismissed. The reliefs remaining in the motion paper for determination are reliefs No (b) and (c)
In the first relief (b) the claimant seeks an order compelling the defendants to pay to the claimant the sum of N6, 186,636 only being the claimant’s lawful gratuity as contained in her re-submission of retirement benefits letter dated the 9th December, 2014. In prove of this claim, the claimant stated in paragraph 12 and 13 of his affidavit in support of the motion for summary judgment that he retired from the service of the 3rd defendant after 35 years of service effective from the 1/9/2014 as shown in the letter conveying the approval of the retirement annexed as exhibit HO-3. He also stated that his retirement benefit was computed vide exhibit HO-3 i.e. the letter of Re-submission of retirement benefit dated the 9/12/2014. In the said document the gratuity of the claimant was computed in the sum of N6,186,636.00k. The claimant stated that the defendants have not paid the said gratuity till date.
In the counter affidavit filed by the defendants in response to the originating summons the defendants did not deny that the claimant is entitled to the sum of N6,186,636.00, as gratuity as shown in exhibit HO-3. Rather the defendant states that it did not deliberately refuse to pay the claimant the pension or gratuity rather the delay in payment was due to absence of funds appropriated for that purpose. This cannot constitute a valid defence to claims brought under the summary judgment proceedings. The defence put forward by the defendant is an admission that the defendants are indebted to the claimant. I am satisfied that the defendant have no valid defence to the claim under this head. It is the decision of this court that the claimant has proved his entitlement to the sum claimed under this head. Judgment is hereby entered in the sum of N6,186,636.00 in favour of the claimant against the defendants.
In claim ‘c’ the clamant seeks an order of the honourable court compelling the defendants to pay to the claimant the sum of N6, 256, 046.92 only being the claimant’s due accumulated arrears of her monthly pensions from September to December 2014, January to December 2015, January 2016, August to December, 2017, January to December 2018 and January to December, 2019 respectively.
Exhibit H0-3, states that the claimant is entitled to an annual pension of N1,649,770.00k. In paragraph 17 of the affidavit in support of this motion the claimant states that when this sum is divided into 12 months, the claimant was entitled to be paid N136,001,02k as monthly pension. In paragraph 18 the clamant stated the number of months from 2014 to 2019 that the claimant paid the monthly pension. He stated that the total months that the pension is in arears is 46 months. I have carefully examined the statement of the claimant as stated above. The only problem which throws the claim of the claimant into doubt is that the claimant failed to establish or lead evidence to show how and when pension was paid for the months that the claimant admits in paragraph 18 of the affidavit, that the defendant paid pension to the claimant. The statement of account showing the months that pension was paid to the claimant by the defendants was not tendered in court. This becomes difficult for the court to verify the assertion of the claimant concerning the number of months that pension was not paid to the claimant. The settled position of the law is that a claimant must succeed on the strength of his case and not on the weakness of the defence case. See the case of Miracle Time Gospel Church Incorporated & Anor. V. Michael Unu  LPELR-44532 (CA), where the court Held ‘ a party succeeds or wins on the strength of his own case and not on the weakness of the opponent’s defence’. The court cannot begin to speculate on whether the assertion of the claimant in paragraph 18 of the affidavit is true or not. The court cannot grant this relief. The relief is refused and transferred to the general cause list for proof.
The motion for summary judgment succeeds in part and Judgment is entered for the claimant in the following terms:
(1) Judgment is entered in the sum of N6,186,636.00 being the claimants
gratuity against the 4th defendant.
(2) The claim of arrears of pension is hereby transferred to the general cause list for proof.
Judgment is entered accordingly.
Hon. Justice (Dr.) I. J. Essien
A. F. Adah Esq for the claimant.
O. Olu Esq with F.T. Akwatcha Esq for the defendant.