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/81/2021
BETWEEN
ATSAR VINCENT Claimant
AND
1. BENUE STATE PENSION COMMISSION
2. ATTORNEY GENERAL OF BENUE STATE Defendants
3. THE GOVERNOR OF BENUE STATE
4. GOVERNMENT OF BENUE STATE
JUDGMENT.
The claimant in this action commenced this action by an originating summons dated and filed on the 14/10/2021. In this originating summons, the claimants sought the determination of the following question.
Whether upon the proper construction of Section 25 of the Benue State Pension Reform Law, 2019 and Section 210 of the Constitution of the Federal Republic of Nigeria 1999, (As Amended), Claimants are entitled to gratuity and whether the withholding of the claimant’s pension and gratuity by the defendants is constitutional?
Upon the determination of the above question the claimant seeks the following reliefs:
1. A declaration that the claimant is entitled to pension and gratuity;
2. A declaration that the withholding of the claimant’s pension and gratuity by the defendants is unconstitutional, unlawful and unwarranted.
3. An order directing the defendants to forthwith pay the claimant an accumulation of his gratuity and arrears of pension from the day of entitlement to October, 2021 in the sum of N6,34 l ,630.88k now withheld by the defendants and additional months as may accrue after October, 2021.
The originating summons is supported by a 16 paragraph affidavit sworn to by the claimant. Attached to the affidavit are Exhibits AVM 1, 2, 3, and 4. Also in support of the originating summons is the written address of the claimant counsel. The claimant also filled a further and better affidavit of 11 paragraphs on the 31/1/2022. Attached to the affidavit is Exhibit A the statement of account of the claimant.
Upon being served with the originating process, the defendants filed a joint counter affidavit on the 21/12/2011. In support of the counter affidavit is the written address of the defendant counsel. The parties adopted their originating process on the 6/4/2022.
I have carefully read and considered the argument made by counsel in their written address. I will start by referring to the provisions of S. 210 of the 1999 Constitution which provides:
(1) Subject to the provisions of sub-section (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 AVM 1, 2, 3, 4 and 5, that the claimant was in the service of the Universal Basic Education Board of the 4th defendant until he retired from the employment from the 16/3/2018 after attaining the mandatory retirement age as shown on exhibit AVM 3 The computation of his retirement benefit was made in exhibit AVM 4. From the computation in exhibit AVM4, the claimant was entitled to the sum of N3,179,797.92k as his gratuity and a further sum of N862,318.08k as annual pension. The claimant made a demand of the above sum in exhibit AVM 5 (i.e. the claimant solicitor’s letter of demand for payment of gratuity and outstanding pension) dated the 23/6/2021. In the further and better affidavit filed by the claimant, the claimant exhibited his statement of account exhibit A which shows that since retirement the claimant was only paid pension twice i.e in June and November 2021. There is no evidence that the claimant has been paid any of his gratuity since retirement.
I have carefully read the joint counter affidavit of the defendant. 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 this 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 [1996] LPELR-13977(CA). The counter affidavit in a matter such as this must also condescend on particulars. In the case of Sokoto V. Gusau [2020] 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 claimant has been able to prove his entitlement to the gratuity claimed as computed in exhibit AVM 4. Judgment is hereby entered in the sum of N 3,179,797.92k being the claimants computed gratuity upon retirement form the service of the Benue State Government.
The claimant also claims arrears of pension. In paragraphs 10, 11 and 12 of the affidavit, states that his pension per annum as disclosed in Exhibit AVM 4 is N862, 3 l 8.08k. That when his annual pension of N862,318.08k is divided by 12 month, his monthly pension shall be N7 l ,859.84k. That when his monthly pension of N7 l ,859.84 k is multiplied by 44 months less the payment in June and November 2021. The total of his pension arrears will be N3,018,113.28k only. The claimant is therefore owed as at the time of filing this suit a total of 42 months pension. Judgment is hereby entered in the sum of N3,018,113.28k being arears of pension owed the claimant by the defendants. I must also not forget to state that the 3rd defendant is not a necessary party to this action. Accordingly, the 3rd defendant name is hereby struck out from this suit,
On the whole this action succeeds and judgment is entered in favour of the claimant in the following terms;
1. A declaration is hereby made that the claimant is entitled to pension and gratuity;
2. A declaration is also made that the withholding of the claimant’s pension and gratuity by the defendants is unconstitutional, unlawful and unwarranted
3. The defendants is to forthwith pay the claimant an accumulation of his gratuity and arrears of pension from the day of entitlement to October, 2021 in the sum of N6,197,911.20k .
4. The sum hereby awarded shall be paid by instalments.
5. The defendants shall pay the first instalment of N2,000,000 immediately to the claimant who is terminally very ill to enable him seek medical attention. Thereafter the defendant shall continue to pay the sum of N500,000 from the end of May 2022 till the liquidation of the judgment debt.
Parties are to bear their respective cost.
Judgment is hereby entered.
----------------------------------------------------
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
REPRESENTATION.
V. T. Amela Esq. for the claimant
D. E. Ikape Esq. for the defendants.