IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THEMAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 10th November, 2021
SUIT NO: NICN/MKD/121/2020
Ityoaor Michael Ungwa --------------------------------------------------- Claimant
1. Local Government Pension Board Benue State
2. State Universal Basic Education Board, Benue State.
3. Government of Benue State ---------- Defendants
Attorney General of Benue State
The claimant commenced this action by way of complaint filed on the 18/9/2020, supported by a statement of facts, a witness depositions and a number of attached documents. The claimant also filed a motion for summary judgment pursuant to Order 16 Rule 1 of the National Industrial Court Civil Procedure Rules 2017. The motion is supported by an affidavit and a written address of counsel. Upon being served with the originating process and the motion on notice the defendants filed a joint statement of defence and a written address in opposition to the motion for summary judgment on the 21/6/2021. The parties adopted their various processes on the 27/9/2021. The matter was thereafter adjourned for judgement.
In the motion on notice for summary judgment filed on the 18/9/2020, the claimant sought the following reliefs from the court.
1) An order entering summary judgment against the defendants/respondents in the sum of N1l,930,597.22 (Eleven million nine hundred and thirty thousand five hundred and ninety seven naira twenty two kobo) in favour of the claimant/applicant being his total emoluments owed him by the defendants/respondents.
In support of the motion is a statement of facts and an 18 paragraph affidavit deposed to by the claimant. Attached to the affidavit are exhibit A to exhibit J. Also in support is the claimant counsel written address. The facts of the case is that the claimant was employed vide an offer of appointment exhibit B on the 16/1/1986. The appointment was confirmed in exhibit C on the 5/6/2006. He was promoted in exhibit D to the rank of Deputy Director Education of the Benue State Basic Education Board on the 1st December 2017. After 32 years of service to the defendants, his retirement was approved in exhibit E effective from the 27/12/2018. In the letter dated the 14/12/2018 marked as exhibit F, the claimant retirement benefit was computed in the sum N6,271,208.32 as gratuity and N1,678,344.48 as his annual pension.
In paragraph 10 of the affidavit in support of the motion the claimant stated that prior to his final disengagement from service, he was owed ten (10) months salary arrears amounting to Nl,463,527.70, calculated at N146, 352.77k per month from March 2017 to December, 2017 which has remained unpaid till date. He tendered his Access Bank statement of account exhibit H, in an attempt to prove his assertion. In paragraph 11and 12 of the affidavit in support, the claimant states that his unpaid gratuity of N6,271,208.32k and pension arrears of thirty (30) months from 01/01/2018 to 30/06/2020 together with ten (10) months salary arrears of N1,463,527 .70k calculated at N146, 352.77 per month in the sum of N4,194,861.20, all amounting to the sum of N 11, 930, 597. 22k, has remained unpaid. He stated that he has made several demands for the payment of the entitlement as shown on exhibit J1 and J2. The claimant in paragraph 16 of his affidavit finally stated that the 1st, 3rd and 4th defendants/respondents owe him the total sum of N l0,467,069.52 being his gratuity of N6,271,208.32 plus N4,195,861.20 as pension arrears for thirty (30) months, while the 2nd defendant/respondent owe him the sum of N 1,463,527.70.
In response to this allegation of facts, the defendants did not file any counter affidavit to contradict the allegation of facts recounted above. The defendant only filed a written address in opposition to the motion for summary judgment.
I have carefully examined the affidavit and the documents annexed to the affidavit of the claimant. The claimant retired from the services of the Government of Benue State as shown on Exhibit E effective from 27/12/2018. The computation of his retirement benefit on Exhibit F shows that he was entitled to the sum of N N6,271,208.32k as gratuity and a further N1,678,344.48 as his annual pension. The payment of the pension was to commence from January 2019 going by exhibit F. The defendant did not file a counter affidavit to counter these facts. It is settled position of the law that unchallenged facts in affidavit must be accepted and relied upon by the court. See the case of NIPCO PLC. V. Hensmor Nig. Ltd. & Ors. LPELR-9264 (CA). This court is hereby bound to act on the unchallenged fact. This court hereby finds that the claimant has been able to prove his entitlement to the sum of N6,271,208.32. Judgment is hereby entered in the above sum in favour of the claimant against the defendant.
The claimant also claims the sum of N139, 862.04k as pension for 30 months beginning from 01/01/2018 to 31/07/2020, totalling N4,194,861.20k This amount is supposed to represents the breakdown of the annual pension of the claimant as contained in exhibit F. The claimant retired from the services of the 3rd defendant with effect from the 27/12/2018. There is no way the payment of his pension would have commenced on the 01/01/2018 a period of 11 months before his retirement from service. This makes the computation and the claim of 30 months pension wrong and inappropriate under the circumstances. It is trite law that in our adversary system, the rule is that the claimant must succeed on the strength of his case and not on the weakness of the defence. See Momoh & Ors. V. Umoru LPELR-8130 (SC). See also the case of Onwueringo V. Adedapo  LPELR-52491 (CA).The Court of Appeal have stated ‘ A claimant ordinarily must succeed on the strength of his evidence’ The evidence adduced by the claimant in proof this claim cannot sustain this claim. The claim must fail and it is accordingly refused. The claim is transferred to the general cause list for proof.
The claimant also claims ten (10) months salary arrears amounting to Nl,463,527.70, calculated at N146, 352.77k per month from March 2017 to December, 2017 from the 2nd defendant. The claimant tendered exhibit H, the Access bank statement of account No 0049032381. I have carefully examined that statement of account. I can find that the claimant was paid salary up to January 201. Thereafter there was no credit of his salary into the account until the 2nd defendant started paying the salaries again from January 2018 to October 2018. The next time the 2nd defendant paid salary into the account again was the payment of February 2017 salary on the 9/11/2018.
The claimant only exhibited statement that read up to the 9/11/2018. From that date up till now there is no statement which would have helped this court to determine whether the defendants had further credited the claimant account with the back log of the areas of salary being claimed in this head, considering the fact that by November 2018, the 2nd defendant had started paying the back log. The court cannot speculate on whether the backlog of salaries was not paid. The evidence offered in proof of this head of claim is insufficient. This claim is therefore refused. This claim is transferred to the general cause list for proof.
The claims of the claimant partially succeed. Judgment is entered in the following terms:
1. The 1st and 3rd claimant shall pay the sum of N6,271,208.32. being the claimant’s computed gratuity.
2. The claim of pension areas and salary arrears for 10 months are hereby transferred to the general cause list for proof.
Judgment is entered accordingly.
Hon. Justice (Dr.) I. J. Essien
F.T Uparegh Esq Hold brief for Amayange Esq. for the claimant.
A. Shima Esq (Assistant Director Civil Litigation) for defendant.