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: 9th May, 2022.
SUIT NO NICN/MKD/12/2022
REGINA ITODO Claimant
OKPE AGENE MICHAEL
1. BENUE STATE OF NIGERIA
2. BUREAU OF PENSIONS, OFFICE OF THE HEAD OF SERVICS,
CIVIL SERVICE SECRETARIAT, MAKURDI-BENUE STATE. Defendants
4. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE
The claimant in this action commenced this suit by an originating summons dated and filed on the 24/1/2022. In this originating summons, the claimants sought the determination of three (3) issues. The three issues in the originating summons are basically the same. They are repetitive. The court will adopt only question No.1, as the sole issue for determination in this originating summons.
This issue will completely address the other 2 issues which I have adjudged to be repetitive. The issue for determination is:-
Whether upon the true and proper construction of Section 10 of Benue State Pensions and Gratuities Law Cap 125 Laws of Benue State 2004 and Section 210 of the Constitut1on of the Federal Republic of Nigeria 1999 (As Amended),
1).The first claimant Regina Itodo upon her statutory retirement by the Civil Service Commission vide letter reference No SC.314/S/T.1/457 of 19th January 2016
2) The 2nd claimant Okpe Agene Michael upon his statutory retirement from the Benue State Teaching Service Board vide; letter reference No.BN/TSB/CONF/PER/682/1/198 of 2nd January, 2015,
are not entitled to the payment of the pension and gratuity.
Upon the determination of the above questions the claimants seek an order directing the defendants to pay as follows.
THE 1st CLAIMANT.
(a) N4, 115, 731 only as total balance of her gratuity.
(b)The outstanding pension arrears of N3, 599, 372.46K only representative of her outstanding pensions for Thirty Eight (38) months as at December, 2021.
(c) Thereafter the sum of N89, 457, 17k monthly representative of her monthly pension till judgment is delivered in the matter.
THE 2ND CLAIMANT
(a) N5, 741, 705.00k as his payable gratuity.
(b) The outstanding pension of N1, 508, 711.55 only representative of his outstanding pension for Thirty Five (35) months as at December, 2021.
(c) Thereafter the sum of N128,820.33K per month representative of his monthly pension till judgment is delivered in the matter.
(d) Such further or other reliefs as the Honourable Court may in equity grant in this suit.
In support of the originating summons is a 26 paragraphs affidavit. Attached to the affidavit are Exhibit A1, A2, A3 and Exhibits B1, B2 and also Exhibits C1, C2. In support of the application is also the verifying affidavit and the written address of the claimant counsel. Upon being served with the originating summons the defendants filed a joint counter affidavit of 19 paragraphs. Filed along with the counter affidavit is the written address of the defendants. On the 8/3/2022, counsels un-behalf of the parties adopted their processes and the matter was adjourned for judgment.
The issue for determination arising from the sole question submitted for determination in this originating summons is:
‘whether upon the construction of S. 210 of the 1999 Constitution and S. 10 of the Benue State Pension and Gratuities Law CAP 125 Laws of Benue State the claimant is not entitled to his pension and gratuity upon retirement from the services of the Benue State Government.’
I have carefully read and considered the argument made by counsel in their written argument. I will start by referring to the provisions of S. 210 of the 1999 Constitution which provides:
(1) Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.
(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law including the Code of Conduct.
The law referred to here, must be the Benue State Pensions and Gratuities Law CAP 125 Laws of Benue State 2004. Section 10 of the law which provides:
‘Any pension or gratuity which an officer is entitled in accordance with the provisions of this Law shall not be withheld or altered to his disadvantage, provided that where such officer is dismissed from service for any offence, including a breach of the code of conduct specified in the Constitution of the Federal Republic of Nigeria, he may forfeit such pension or gratuity’.
The community reading of the above two laws guarantees to the claimant as a retiree, a right to his gratuity and pension upon retirement from the service of any state of the federation.
It is not in dispute as shown on exhibits A1 and B1, that the 1st claimant was in the service of the 1st defendant until he retired from the employment on the 19/01/2016 after attaining the mandatory retirement age as shown on exhibit B. The computation of his retirement benefit was made in exhibit C1. From the computation in exhibit C1, she was entitled to the sum of N4,115,131.00k as his gratuity and annual pension of N1,073,414.00k. The claimant stated in the affidavit in support that 1st Claimant’s pension per month is N89,457.17. That in the year 2018, 1st Claimant was owed for three (3) months namely: October, November and December. That in the year 2019, 1st Claimant was owed for Twelve (12) months namely: January, February, March, April, May, June, July, August, September October, and December. That in the year 2020, 1st Claimant was owed for Eleven (11) months only namely: January, February, March, April, May, June, July, August, September, October and November. That in the year 2021, 1st Claimant was owed for (12) month only namely: January, February, March, April, May, June, July, August, September, October, November and December, That for the sum of N89, 457.17only per month, for the 38 months arrears of pension, the 1st Claimant entitled to N3, 399, 372.46, representative of her outstanding pensions for twenty eight (38) months as at December, 2021. The defendant affidavit did not condescend to any particulars in denying these assertions. There is nothing in the affidavit that looks like a defence to the claimant’s affidavit and the exhibits annexed to the claimant affidavit in support of the originating summons. The well entrenched position of the law is that averments in affidavit which are not controverted by the adverse party must be accepted and acted upon as establishing the truth of the facts stated in the affidavit. See the case of Jammal V. The State  LPELR-13977(CA). In the case of Sokoto V. Gusau  LPELR-52221 (CA) The court held that such defence ‘must deal specifically with the claimants claim and state clearly and concisely what his defence is and what facts are relied upon in support of same. Where the defendant claims not to be so indebted to the claimant state the ground upon on which the defendant relies as showing that he is not so indebted.
The counter affidavit of the defendant in this matter has fallen short of the requirement of the law. I am satisfied that the 1st claimant has been able to prove his entitlement to the gratuity claimed. Accordingly Judgment is entered in favour of the 1st claimant in the sum of N4,115,131.00k, being the 1st claimant computed gratuity and a also in the sum of N N3, 399, 37Z.46, representing 38 months arears of pension owed to the 1st claimant by the 1st defendant.
For the 2nd claimant, by exhibit A2 and A3 the 2nd claimant in the service of the 1st defendant until he retired from the employment from the employment on the 27/01/2015 after attaining the mandatory retirement age as shown on exhibit B2. The computation of his retirement benefit was made in exhibit C2. From the computation in exhibit C2, she was entitled to the sum of N5,741,705.00k as his gratuity and annual pension of N1,545,844.00k. Regarding the gratuity, The defendant in paragraph 7 of the counter affidavit deposed to the fact that the 2nd Claimant was paid the total sum of N1,431,572.00 from her gratuity leaving the balance of N3,384,436.00k. The claimant did not file any further affidavit to refute this fact. This court is persuaded to belief that that the 2nd claimant has received this sum and wants to keep it way from the court. This is further affirmed by the fact that the 2nd claimant failed to attach her statement of account to her affidavit which would have given this court a clear picture of the extent of payment to the 2nd claimant before instituting this suit. This court therefore finds that the claimant is entitled to the sum of N N3,384,436.00k as the balance of the 2nd claimant gratuity. Judgment is hereby entered in the sum of N3,384,436.00k as balance of the 2nd claimant computed gratuity upon retirement.
The 2nd claimant also claims 35 months pension. In the affidavit in support of this originating summons, the 2nd claimant position is that for the year 20I9, the 2nd claimant was owed for twelve (12) months from January to December. In the year 2020, 2nd claimant was owed for Eleven (11) months. In the year 2021, 2nd Claimant was owed for twelve (12) months from January to December. That at about N128,820.33k only per month, for the thirty five (35) months arrears of pension, the 2nd claimant is entitled to N4,508,711.55k as areas of pension. The defendant did not dispute these facts as stated in the affidavit in support of this originating summons. This court finds that the 2nd claimant is entitled to the sum of N4,508,711.55k as arears of pension. Judgment is hereby entered in favour of the 2nd claimant in the sum of N4,508,711.55k against the 1st defendant.
The 1st and 2nd claimants also claims sum of N89, 457, 17k monthly representative of her monthly pension till judgment is delivered in the matter and N128,820.33K per month representative of his monthly pension till judgment is delivered in the matter respectively. As at when this action was instituted these claims had not inured in favour of the 1st and 2nd claimants. It is not in dispute that a claim for pension is a claim that requires strict proof. There is no evidence place before this court to establish these claims. The court is unable to determine whether there has been no payment of pension to the claimants in the intervening period during the pendency of this action. This court finds that this claim is not proved. Accordingly the claim is refused. The claims are accordingly dismissed.
On the whole the originating summons succeeds. Judgment is entered in the following terms:
1. It is hereby declared that the claimants are entitled to their gratuity and pension following their retirement from the service of the 1st defendant after attaining the statutory retirement age.
2. The 1st defendants shall pay the 1st claimant N7,514,503.46k being the 1st claimant gratuity and arrears of pension as at 31/12/2021
3. The 1st defendant shall pay to the 2nd claimant the sum of N7,893,147.55k gratuity and arrears of pension as at 31/12/2021
4. The claim of pension until judgment is delivered is refused.
5. The sum awarded to the claimants shall be paid by instalments until the liquidation of the debt.
6. The 1st defendant shall pay the first instalment of N1,000.000 naira each as first instalment, to the 1st and 2nd claimant by the end of May, 2022. Thereafter the 1st defendant shall continue to pay the sum of N500, 000 each to the 1st and 2nd claimants monthly from June, 2022 until the liquidation of the debt.
Parties are to bear their respective cost of the action.
Judgment is hereby entered.
Hon. Justice (Dr.) I. J. Essien
A. A. SULE with A. E. Abutu Esq. for the claimants
B. E. Eyibio Esq for the defendants.