IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABAKALIKI JUDICIAL DIVISION
HOLDEN AT ABAKALIKI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY AUGUST 12, 2022 SUIT NO.NICN/ABK/14/2018
MRS. GOODNESS IFEANYI OCHINGWAH CLAIMANT
(The Administratrix of Late Ifeanyi Nduisi Ochingwah)
1. TTRUSTFUND PENSION LIMITED DEFENDANTS
2. UNION BANK OF NIGERIA PLC
1. O.U. NWAEDU – FOR THE CLAIMANT.
2. ORJI PRINCE ONU – FOR THE 1ST DEFENDANT.
3. CHIEF CHRIS AGHANWA WITH O.O. NJOKU – FOR THE 2ND DEFENDANT.
CLAIMANT commenced this suit 31st December 2018. Later, the claimant filed an Amended Statement of Facts [ASF] 17th October 2019. At paragraph 37 thereof, the following reliefs were set out:
a. A Declaration that none payment of the sum of N1,208,432.04 to the Claimant is wrong and unlawful.
b. A Declaration that the 1st and 2nd Defendants are jointly and severally liable to indemnify the Claimant with the amount contained in the Retirement Savings Account balance and accruable interest due to the Claimant.
c. An order directing the 1st and 2nd Defendants to jointly and severally pay the Claimant the sum of N1,208,432.04 as an entitlement due to the Claimant for Retirement Saving Account/Legacy Fund Payment Balance.
d. An order directing the 1st and 2nd Defendants jointly and severally to be paying the Claimant the sum of N30,591.43 as yearly growth of the Retirement Savings Account annually from 2014 till the said legacy is liquidated.
e. An order directing the 1st and 2nd Defendants to jointly and severally pay the Claimant and be paying 30% of the said sum every month from August 2017 till final payment is made.
In reply the 2nd defendant filed Amended Statement of Defence [ASD] on 6th November 2019. The 1st defendant filed Statement of Defence [SD] on 11th January 2019. The claimant did not file reply pleadings to both the 1st and 2nd defendants’ pleadings. Thus, pleadings were completed and issues fully joined. I move to summary of the proceedings.
SUMMARY OF PROCEEDINGS
The case came before me for the first time 20th June 2019 and the 2nd defendant regularised her SD. On the 10th October 2019 leave was granted the claimant to amend the SF. On 20th February 2020, the case was opened with the claimant testifying as CW1. CW1 adopted the two Written Statements on Oaths [WSOs] made 31-12-2018 and 17-10-2019 and tendered Exhibits C1-C13 and the examination-in-chief closed. It came up for Cross-Examination [XX] on 7th October 2021. CW1 said the deceased started receiving pension in 2007 and was on Contributory Pension Scheme [CPS] and only started receiving pension after the verification of 2012 when his contribution was paid into 1st defendant. CW1 answered further that, it was one of the terms that, the next-of-kin takes the residue and that, the deceased, who was retrenched in 2001, started receiving pension in 2007, which was his retirement age.
CW1 also replied that after his husband’s death, she went to the 1st defendant to collect the balance in the RSA and the 1st defendant did not tell her that the 2nd defendant had collected the money but requested for documents, which he furnished her but all her subsequent visits did not yield results until her lawyer intervened and the 1st defendant revealed that, the 2nd defendant had collected the money. She said she was not aware that the 2nd defendant asked the 1st to refund the money because her husband was not entitled to it. CW1 said she deposed to affidavit showing that she was the one also referred to in her native name as the next-of-kin. XX by the 1st defendant was closed; and the 2nd defendant did her XX immediately.
Under XX by the 2nd defendant’s erudite counsel, CW1 admitted she did not have the payslips but that; some of their documents got lost and destroyed due to relocation and flood. CW1 replied that, the fact that the deceased had contributions was proved by the fact that he was asked to do verification and thereafter, his entitlement was calculated and paid into his account with the 1st defendant to be paying him. CW1 replied that, the 2nd defendant initially paid the pension but the 1st defendant started paying it after the verification. CW1 replied that, the pension right enure to the next-of-kin in accordance with the account statement from the 1st defendant. CW1 replied that, she would not know if the pension was being paid after the death of her husband in March 2016 till April 2017 but she knew she withdrew from the husband’s acct. CW1 replied that, the accrued interest was printed to her in the Statement of Account.
That was the last relevant question after which the XX was closed and CW1 discharged without re-examination.
On 4th March 2022 the 1st defendant opened her defence with Oghechi Owuru who testified as DW1. DW1 adopted the WSO made 11-01-2019 and tendered Exhibits D1-D6 and was immediately thereafter handed over for XX. DW1 said the contract was primarily with the 1st defendant while the 2nd defendant was the beneficiary. DW1 admitted however that, it was the deceased that maintained RSA with the 1st defendant, but with conditions attached by the 2nd defendant and that, the deceased only had access to the account with regard to his monthly pension as instructed by the 2nd defendant. DW1 explained that Exhibits D1 & D4 showed that the 1st defendant had the primary contract with the 2nd defendant. That was the last relevant question. The XX was brought to an end and DW1 discharged. The case was thereafter adjourned for the 2nd defendant’s defence.
It came up on 25th March 2022 for the 2nd defendant’s defence. Jimmy Mokikan testified for the 2nd defendant as DW2. DW2 adopted the two WSOs made 13-03-2019 and 06-11-2019. Exhibits D7-D17 were admitted and the DW2 handed over for XX. Under XX by the erudite claimant’s counsel, DW2 replied that RSA is for individuals and that; the 1st defendant paid the deceased RSA from April 2015 to April 2017. DW2 replied that the 2nd defendant paid the deceased under the old scheme till January 2013 but erroneously transferred lump sum to the 1st defendant in February 2013 under the assumption that the deceased fell under the CPS. DW2 said the verification done in 2012 was for all types of pensioners and that, once the accrued pensions of those that fell under the CPS had been transferred to their RSA; no further verification is done on them. DW2 replied that, the deceased became eligible for pension in 2007 but retired in 2001.
DW2 said because the deceased was not entitled to CPS the 2nd defendant did not contribute 25% of the pension and that; the deceased was being paid his monthly pension exactly the way she was being paid before the erroneous transfer. The XX was brought to an end and the case proceeded on XX by the erudite counsel to the 1st defendant. DW2 said the 1st defendant got the approval of the National Pension Commission before she refunded the money back to the 2nd defendant. The XX was brought to an end and the case adjourned for adoption of the Final Written Addresses [FWAs].
It came up for adoption of the FWAs as adjourned. Erudite ORJI PRINCE ONU, of counsel to the 1st defendant adopted the 1st defendant’s FWA. Thereafter, erudite CHIEF CHRIS AGHANWA, of counsel to the 2nd defendant adopted the FWA and the Reply on Points of Law [RPL] of the 2nd defendant. Thereafter, erudite O.U. NWAEDU, of counsel to the claimant, adopted the claimant’s FWA. The case was thereafter adjourned to 17th June 2022 for judgement. Judgment was not ready on this date and was for that reason adjourned sine die. When the judgment became ready, date for delivery was communicated to the erudite counsel to the parties.
Having done with summary of the proceedings, I move to summary of the theories of the case as formulated by the three erudite counsel.
SUMMARY OF THE THOERIES OF THE CASE
A: 1st Defendant’s Counsel’s Theory of the Case
Erudite ONU JOHN ONWE franked the 1st defendant’s theory of the case. The erudite counsel submitted a lone issue for the Court to determine, which is: Whether the claimant has proved her case to be entitled to the reliefs sought? Arguing this lone issue, the erudite counsel submitted that, it is the duty of the claimant to adduce evidence in proof of her case and cited Mkpmang v. Ndema & Ors (2013) SCJ. Vol. 13 p. 69. The erudite counsel submitted that, S. 8 of the Pension Reform Act [PRA 2004] exempts those less than three years to retirement at the commencement of the of the PRA 2004 in 2004; and that, since the deceased retired in 2001, he was not captured by the PRA 2004. On the basis of this, the erudite counsel urged the Court to hold that, the deceased is not entitled to contributory pension scheme more so that, there was no evidence that, he contributed to such scheme.
The erudite counsel submitted that, from the evidence of DW2, it was clear that, the deceased was entitled only to Defined Benefits Scheme [DBS], the obligation to pay which ceased with the demise of the deceased, which the 2nd defendant duly paid till he died. The erudite counsel submitted that, on the basis of this, the deceased was not entitled to the sum of N1,208,432.04 the 2nd defendant transferred into the deceased Retirement Savings Account [RSA], founded by the 2nd defendant. The erudite counsel submitted that, upon return of this wrong payment back to the 2nd, the 1st defendant directed the deceased family to make their enquiry from the 2nd defendant. The erudite counsel submitted that, this piece of evidence was not controverted at all and therefore deemed admitted by the 2nd defendant. The erudite counsel cited Adeusi & Anor v. Adeboyo (2012) Vol. 207 LRCN 77. The erudite counsel submitted that on the basis of the above, the claimant failed to prove her case against the 1st defendant and signed off. I move to the 2nd defendant’s FWA.
B: 2nd Defendant’s Theory of the Case
Erudite CHIEF CHRIS C. AGHANWA franked the 2nd defendant’s FWA and also submitted a lone issue to the Court to the effect: whether the deceased was entitled to pension under the PRA 2004 and, if not, whether the 2nd defendant was right to have recalled the balance in his RSA after his death?
The erudite counsel argued that, the 2nd defendant led evidence to prove paragraphs 9-11(a) of the 2nd Defendant’s ASD to the effect that, she solely founded the RSA and that, entitlement to pension was service for 10 years and attainment of 45 years age while the deceased left service in 2001 before the PRA 2004. The erudite counsel argued that, evidence was led thereto and on the error too. The erudite counsel submitted that, these pleadings raised new issues, which the claimant failed to file a reply against and therefore deemed to have admitted these facts. Citing SS. 131-134 of the EA and Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 347, the erudite counsel submitted that, the claimant had the burden of proof that, the deceased contributed to the RSA by way of deduction from his salaries while in service and failed to do and claimed that flood swept away the payslip, but that, this did not affect Exhibits C1-C13 whereas, the 2nd defendant, via Article 4 of Exhibit D16 tendered via DW2, showed that, she was the sole contributor to the RSA. The erudite counsel submitted that by this, it was clear the claimant contributed nothing to the RSA.
The erudite counsel submitted that, it was clear too that, the deceased was not entitled to pension under the PRA 2004, as claimed, having retired in 2001 because, the monthly pension, even began 2007 when the deceased attained age 45 and before he opened the RSA with the 1st defendant in 2013, into which the 2nd defendant mistakenly deposited the sum in issue. The erudite counsel submitted further that, based on the foregoing, the 2nd defendant was entitled and right to demand refund of the balance in the deceased RSA at his death, which Exhibits 8&9 proved to the hilt. The erudite counsel submitted further that; being that the deceased retired before the PRA 2004, he was not qualified in the first instance to even open the RSA while the 2nd defendant too erred in depositing money into the said RSA.
The erudite counsel submitted on the issue of interest on the RSA that, there was no proof of any contract between the deceased and the 2nd defendant in that regard more so that, the claimant failed to prove that, the RSA balance belonged to the deceased. The erudite counsel submitted that, the claimant is not even certain of the exact amount claimed between the sum of N1,208,431,04 deposited therein and the N1,036,216.86 refunded to the 2nd defendant by the 1st defendant. The erudite counsel thereafter urged the Court to dismiss the case and signed off the FWA. I move to the claimant’s FWA.
C: Claimant’s Counsel’s Theory of the Case
Erudite O.U. NWAEDU franked the claimant’s theory of the case and submitted two issues for the determination of the case. Under issue 1, which is whether the 1st defendant had power to transfer money in the RSA being an individual account, the erudite counsel argued that, the deceased was retrenched in 2001 and started earning pension in 2007, when he ought to have retired; and that, by this, he was entitled to the Contributory Pension Scheme [CPC] under the PRA 2004. The erudite counsel was of the view that, after verification exercise in 2012, the deceased opened RSA with the 1st defendant and the 2nd defendant paid the said money belonging to the claimant into it. The erudite counsel cited S. 11(1)&(3) of the PRA 2004 to the effect that, the RSA was opened pursuant to it. The erudite counsel argued that, whether or not the claimant was under the CPS or Defined Benefits Scheme [DBS], he was entitled to open a RSA into which his entitlements were to be deposited by the employer by virtue of S. 39(1) of the PRA 2004.
The erudite counsel submitted that, since the 2nd defendant admitted that the RSA was an individual account, the 2nd defendant had no right to withdraw money from it. The erudite counsel argued that the fact that, the 2nd defendant did nothing about this money between 2013-2017 when the deceased was alive showed that, it was his entitlement in accordance with S. 39(1) of the PRA 2004 and therefore not transferred in error; as the 2nd defendant is not allowed to approbate and reprobate and that Exhibit C10, relating to verification exercise supports this view. The erudite counsel referred to Exhibits C7 and D10 on how the 2nd defendant credited the deceased RSA and how the 1st defendant paid the deceased pensions from this till 2007. The erudite counsel wrapped the submissions up by saying equity aids the vigilant against the indolent.
The erudite counsel argued that, the 2nd defendant never paid anything to the deceased after crediting his RSA with his legacy funds. The erudite counsel submitted that, it was therefore too late in the day to recall the legacy fund paid into the claimant’s account. The erudite counsel argued that, Exhibits C1&C4 created a legal relationship between the deceased and the 1st defendant to entitle the deceased to hold in trust the legacy fund for the deceased thus making the deceased entitled to both the growth of N30,591.43 and interest of N434,664.82 on the legacy fund. The erudite counsel argued that, the deceased was more particularly entitled to the legacy fund as Exhibits C1 &D4 created legal relationship between the deceased and the 1st defendant and the deceased had been receiving his monthly pension of N11,880 from this without any complaint from the 2nd defendant. Erudite counsel submitted that, as from the commencement of the PRA 2004, pension funds are to be managed by pension funds administrators by virtue of S. 44 of the PRA 2004 hence, no relationship ought to exist between the 1st and 2nd defendants, and if any, it is illegal.
The erudite counsel argued that the 1st defendant, who said she did not know if the legacy in the deceased RSA was his accrued entitlement, yet paid monthly pension to the deceased from the RSA for about 4 years. Erudite counsel submitted that this showed the 1st defendant was lying. Erudite counsel argued that, in Exhibit C7, the 2nd defendant admitted she had no right over the legacy fund in the deceased RSA and cannot therefore turn round to say she had, more so that, the 2nd defendant paid the legacy fund into the deceased RSA in line with S. 4(1)(b) of the PRA 2004. Erudite counsel cited Alahasan v. Ishaku (2016) 9 WRN 1 at 12 r. 15 on admission. The erudite counsel submitted further that, the 2nd defendant had to show that, she paid the deceased monthly pension directly from 2013-2017 to prove that, she paid the legacy fund into the RSA by mistake. The erudite counsel submitted also that, the 2nd defendant has failed to show that, the deceased was not entitled to the legacy funds in his RSA or that, they were not his accruable rights and benefits under the PRA 2004. The erudite counsel submitted that, the fact that the legacy fund transferred to the deceased RSA was his accrued right is proved further by the fact that, the 2nd defendant carried out pension verification in 2012, in which the deceased participated after which the 2nd defendant transferred the legacy fund into his RSA as his accrued right in 2013.
The erudite counsel referred to S. 11(5) of the PRA 2004 to argue that, the employer deducted the contributions at source. The erudite counsel argued that, since the 1st defendant did not refer to the deceased next-of-kin before transferring the money in the RSA to the 2nd defendant, she breached the banking contract she had with the deceased and the next-of-kin and cited Corp. Ins. Ltd v. Ajaokuta Steel Co. Ltd (2014) 28 WRN 39 at 48-49, r. 3. The erudite counsel argued that, at the demise of the deceased, the claimant did documentation, as required by the 1st defendant, to access the balance in the RSA and received confirmation letter from the Zenith Bank Plc via Exhibit C9, D1, D3 and D4. The erudite counsel also argued that, the deceased was never classified as DBS till he died and the claimant [next-of-kin] laid claim to the residue of the RSA and that the fund was a legacy fund and not defined fund. The erudite counsel argued that, even if the deceased was under DBS, S. 39(1) of the PRA 2004 allowed him to open RSA into which his entitlement would be paid. The erudite counsel submitted that, it means the deceased DBS was computed as legacy fund accordingly and paid into the deceased RSA, which the 1st defendant was the administrator. On this, the erudite counsel cited Omojuyigbe v. NIPOST (2010) 24 WRN 61 at 77, r. 16 and Raji v. OAU (2014) 22 WRN 53, r. 9 on estoppel by conduct and rounded up on issue 1.
Under issue 2, which is whether the claimant is entitled to the reliefs claimed, the erudite counsel submitted that, Exhibit C1 provided for next-of-kin the conditions of which the claimant had met and therefore, the claimant is entitled as next-of-kin to the residue of the deceased’s RSA in accordance with S. 5(2) of the PRA 2004. The erudite counsel argued that, pursuant to this right, the claimant wrote to the 1st defendant, via Exhibit C3 for payment of the RSA and that the outstanding balance was N1,037,216.86 and that, the 1st defendant is liable to pay the accruable interest by virtue of S. 28 of the PRA 2004 and African Int. Bank Ltd v. Integrated Dimension System Ltd (2015) 12 WRN 1 at p. 12, r. 11. The erudite counsel finally submitted that arisen from the above, the claimant has proved her case and therefore entitled to the reliefs claimed. There ended the claimant’s FWA. I move to the 2nd defendant’s RPL.
D: 2nd Defendant’s RPL
CHIEF CHRIS C. AGHANWA franked the 2nd defendant’s RPL. The erudite counsel replied that all the cases cited on applicability of the PRA 2004 were cited out of context. The erudite counsel replied that SS. 4-6 of the PRA 2004 could not avail the claimant in that, the deceased opened the RSA in error thinking that the PRA 2004 was applicable to him just like the 2nd defendant paid into the RSA in error and that, all the cases cited were irrelevant. Thus ended the RPL.
That being the end of the FWAs, I move to my decision. But before then, let me say that, I have given very careful attentions to the pleadings, the WSOs, the XX and the FWAs and the focal authorities cited. Off to my decision I go.
COURT’S DECISION AND THE RATIONES DECIDENDI
In line with the age-long tradition and practice in judgment writing, of giving some preliminary assurances, I hereby state that, I have carefully read all the pertinent processes in the file, understood and digested their contents. I have also noted the authorities cited, most of which were irrelevant to the facts of this case. I am keenly aware that, I did not summarise the pleadings and WSOs, but, like I said earlier on, I have carefully read, understood and digested their contents. I did not bother to summarise them because, I found that the facts of this case are straightforward and mostly uncontested in reality. I have also discovered that, the WSOs are repetitious of the pleadings, but I shall refer to pertinent portions in the course of this judgment. I proceed to render my judgment with cogent reasons that evoke conviction and catharsis: those two results, being the essence of judgments.
I adopt the regnant lone issue formulated by the brilliant counsel to the 1st defendant against the prolix and largely irrelevant issues formulated by the other erudite counsel in the case. The issue is: Whether the claimant proved her case to be entitled to the reliefs sought?
In tackling this issue, I preface it with what I could gather from the pleadings of the parties. My own understanding of the claimant’s grouse is that, the claimant asserted she, is entitled to the balance in the deceased RSA for two reasons: 1. The PRA 2004 governs the pension because, the claimant became entitled to pension in 2007, by which time the PRA 2004 had taken effect. 2. The fact that the 1st defendant did pension verification exercise in 2012, in which the claimant participated and subsequent to which, the 2nd defendant caused the claimant to open RSA with the 1st defendant and paid the lump sum into it and from which the deceased monthly pension was withdrawn on monthly basis till his death and, even after his death, signifying that, the residue of the lump sum belonged to the deceased and therefore, the claimant, his next-of-kin and therefore, the defendants, especially the 2nd defendant, are estopped from tampering with this residue.
The 1st defendant’s defence is that: she had primary contract with the 2nd defendant and that, the deceased was just a beneficiary of the contract and as such, she was bound to comply with the directive of the 2nd defendant recalling the residue in the deceased’s RSA with her. The 2nd defendant had a three-pronged defence: 1. That the PRA 2004 did not apply to the pension in issue, the claimant having retired in 2001, while the PRA 2004 took effect in 2004. 2. A Trust Deed governed the pension. 3. That, the lump payment into the RSA was an error induced by erroneous belief that the PRA 2004 was applicable to the deceased. That ends a bird’s-eye-view of the cases made by every of the three parties.
Now, I found that, considerable efforts have been wasted citing and arguing the provisions of the PRA 2004 on all sides. That is the first point to examine to pave way for my decision. I quote S. 8(1) & (3) of the PRA 2004:
“Notwithstanding the provisions of subsection (2) of section 1 of this Act, any employee who at the commencement of this Act is entitled to retirement benefits under any pension scheme existing before the commencement of this Act but has 3 or less, years to retire shall be exempted from the scheme.
S. 8(3) any person who falls within the provisions of subsections (1) and (2) of this section shall continue to derive retirement benefit under such existing pension scheme as provided for in the First Schedule to this Act.
S. 8(4) Nothing in this Act shall preclude the right of any person mentioned in subsection (1) and (2) of this Act to be paid his pension as and when due.”
Those are the pertinent provisions that fall for primary construction here. The portions underlined are very focal. The first question to ask: when did the deceased retire? Paragraph 14 of the ASF says: “the Claimant…was retrenched sometime February, 2001.” There is no argument on this, coming from the claimant herself. It must be noted too that, the claimant herein is not challenging the retirement per se, but only the alleged improper recall of the lump sum in the RSA. It is thus clear that, the deceased, who retired in February 2001, had retired more than three years before 25th June 2004 when the PRA 2004 took effect. The deceased was therefore not an employee at the commencement of the PRA 2004. The PRA 2004 intended to govern employees who remained in service at the commencement of the PRA 2004 and who still had more than 3 years to spend.
Hence, it is clear the PRA 2004 was not applicable to the deceased. It does not matter the mode of his exit from service: whether by retrenchment or, by effluxion of age or length of service. The regnant law is that, he must still be in service at the commencement of the PRA 2004. The PRA 2004 is concerned with extant employees at the time of its ascendancy and not retirees before its ascendancy; even those who retired a day to its ascendancy are not covered. So, all those arguments about the deceased being due for pension at age 45 in 2007 and, for retirement by length of service in 2023 are totally irrelevant. It is clear that the 2nd defendant erroneously believed that the PRA 2004 was applicable to the deceased and that; the RSA opened by the deceased on the instruction of the 2nd defendant with the 1st defendant was a nonstarter. All the steps towards the RSA were therefore purely in error, as canvassed by the 2nd defendant’s erudite counsel. But that has not cleared the issue of the recall of the residue in the RSA. The deceased, and consequentially his beneficiaries, could have been entitled to the residue under the original pension arrangements. Until we examine this can we come to a definitive stance on the recall.
Now, I found that, the claimant neither pleaded nor led evidence on the terms of the original pension scheme before the RSA. This ought to be the end of the case, but I am persuaded that, this case has a peculiarity that inverts the burden of proof. It is a case of money had and received, whereby the law puts the burden of proof on the person alleging wrong payment – see unreported decision of this Court in Suit No. NICN/ABJ/104/2019 – Pension Transition Arrangement Directorate v. Onuaguluchi [delivered June 09, 2022] p. 16-17:
“A close study of the excerpts, especially the underlined portions, on the three concepts above, reveals that, the three concepts are kindred and a basic principle underlines their nature, the pleadings and proofs needed to sustain actions on them. Money had and received, liquidated money demand and special damages are all concerned with ascertained debts or moneys, arising either from contract or breach of duty imposed by law, and must therefore be strictly pleaded and proved, especially where there is no admission in pleadings. In fact, the law treats money had and received as debt – see Oduwobi & Ors v. Backlays Bank, D.C.O (1962) LPELR-25108 (SC) 3-4, B and Branco & Ors v. Otegbola [supra] thus, treating it as a sort of liquidated money demand. Therefore, it is not correct, as argued by the erudite SAN that, money had and received does not require strict pleadings and proof.
All the three concepts are actually variants of special damages though, with somewhat differing principles of law grounding them but having exactly the same needs in pleadings and proofs. In fact, that it needs strict pleadings and proofs is a matter of common sense and logic. If you are claiming that money was wrongly credited into a person’s account, or as in the instant case that, the defendant was overpaid, for a long period spanning a decade and above, you must strictly plead the details of everything that would show the existence of the overpayment and how you became entitled to its being refunded to you. You cannot expect the defendant to be the one that must prove that he was entitled to the overpayments: that would be inquisitorial and, we use adversarial system of litigation and adjudication in Nigeria. Law does therefore not permit it.
Flowing from the foregoing, it is not the duty of the defendant to prove his entitlement to the alleged overpayments but that of the claimant to prove that they were overpayments. What the claimant did not seem to understand is that, the defendant, in this case, having being receiving these moneys from the rightful official sources, with the duty and responsibility to calculate same, has presumption of regularity in his favour, which could only be rebutted by credible pleadings and evidence – see Citec International Estate Limited & Ors v. Francis & Co (2014) LPELR-22314 (SC) 44, D-E.
Besides, money had and received, being a cause of action founded on equity, the claimant must be above board and, be seen to be reasonably entitled to be refunded – see Oduwobi & Ors v. Backlays Bank, D.C.O [supra] p. 4, C-E.”
I do not feel the situation is any different because the person claiming money had and received is actually the defendant in the instant case, having used her leverage to recoup the money from a third party that domiciled the funds in issue. Since the 2nd defendant asserted wrong payment of funds, which ostensibly, the claimant seemed to be entitled to, as beneficiary of the deceased owner of the RSA, and which ostensible circumstances suggest the deceased was so entitled, there is presumption in favour of the deceased that he was so entitled, and hence, the claimant, as beneficiary of the deceased, to the residue – see Emesiani v. Emesiani (2013) LPELR-21360 (CA) 27, B-D. The claimant had proved that the money was in the RSA opened by the deceased [her husband] and into which the 2nd defendant paid the deceased pension entitlements. And the 2nd defendant did not contest these facts, except that, the RSA was opened in error and the fund paid to it in error too: that, the pension entitlements of the deceased were not governed by the PRA 2004, which specified the creation of RSAs for pensioners.
Hence, the 2nd defendant has the duty to plead and prove the error. The claimant, who has the benefit of presumption of regularity in her favour does not need to start pleading and proving how the deceased became entitled to the pension - Emesiani v. Emesiani [supra], it is the 2nd defendant who, alleged error in the payment to the RSA that needs. This is more particularly so that, a cause of action based on money had and received is an equitable one and for that reason, both sides must be above board, to assert any right that would be recognised by the Court. The claimant thus, has proved all that she needs to prove in the case and these, have been admitted by the defendants, only that, the opening of the RSA and the payment thereto was an error because the deceased did not fall under the PRA 2004 that mandated the creation of RSAs for pensioners. Let us now see if the factual errors, apart from the legal error that I have settled earlier, were proved.
The 2nd defendant pleaded the particulars of the errors in paragraph 11(a)-(n) of the ASD, especially subparagraph (L)(1)-(7) thereof. The gravamen is that: the 2nd defendant placed reliance on the Trust Deed, particularly Clause 9(b) of the Schedule to the Trust Deed [as varied], as containing the rights of the 2nd defendant and the deceased with regards to the pension entitlements of the deceased. The 2nd defendant gave evidence in line with her pleadings through DW2 and tendered the said Trust Deed [as varied] and it was marked as Exhibit D16. I have examined the Clause 9(b) thereof. It provides thus:
“(b) DEFERRED PENSION
If a member withdraws his/her services before attaining the normal retirement age, he/she will be entitled to receive pension as shown in the attached Schedule when the member has attained the age 45 years.”
I note that the clause actually talked of the deceased being the originator of the withdrawal of service and not about retrenchment per se or forced exit originated by the employer, as actually the case is here. Nonetheless, it is important to note that, the suit is not about wrongful termination but about wrongful recall of pension residue at the death of the deceased; and must be treated as such. The deceased accepted in good faith his termination. The DW2 was XX on these pieces of evidence and he maintained his stance: his evidence remained constant. In any case, the hard facts of this case are not really in contestation but rather the law. The 2nd defendant has pleaded and given evidence that, the deceased was entitled to only life-pension and that, upon death, the 2nd defendant is free from further obligation: in a nutshell that, the deceased had no right of reversion of the residue to the beneficiaries of his estate.
Now, recall that, I have found and held earlier on that the transfer to the RSA was truly in error in law and that, the only remaining thing to investigate was the right contained in the Trust Deed. Going by the rules relating to construction of instruments, one is barred from reading into an instrument things not suggested by their contents. Clause 9(b) of the Trust Deed did not contain anything suggesting that the pension right created therein is reversionary. I have checked the Schedule referred to at p. 17-19 of the Trust Deed and could not find anything suggestive of that too. But, I take note too that, the Clause 9(b) of the Trust Deed did not directly bar reversion to the beneficiaries at death too. This might be suggestive of ambiguity, which by contra proferentem rule, enures in favour of the employee, whom the law considers as the weaker party in employment contracts – see Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [June 15, 22].
I therefore take cognisance of the fact that, the Clause 9(b) creating the pension right might not normally immediately create any proviso or exceptions to the right created or might not set out the extent of the right. I am aware of the rule of law that, documents must not be dumped on courts. A witness is supposed to speak to his document by pointing out the portions of the documents that support his claim or defence. I am equally aware of another rule that says, a document, including contractual instruments, must be read as a whole and not disjointedly; and that, any clause in a contract could only be construed in the context of the whole clauses in the composite agreement – see Obatuga & Anor v. Oyebokun & Ors (2014) LPELR-22344 (CA) 50-51, D; Akinbisade v. The State (2006) LPELR-342 (SC) 18, B-E and PDP v. Oranezi & Ors (2017) LPELR-43471 (SC) 15, A-E. Since the DW2 had spoken to the Trust Deed citing Clause 9(b) thereof and I found that, he spoke to it correctly, it is for me to construe the said Clause 9(b) in the context of the whole of the Trust Deed as a composite instrument. Though, it leaves much to be desired on the part of the erudite 2nd defendant’s counsel not to read carefully through the composite instruments that made up Exhibit D16 [the Trust Deed] and marry all the relevant clauses with the case being pushed. I’m of the firm view that, Exhibit D16 [the Trust Deed] was not dumped on the Court.
More so, the duty on me to construe Clause 9(b) of the Trust Deed [as varied] within the compass of the composite documents becomes more poignant in view of the fact that, the reliefs and defence involved in this case are purely equitable: money-had-and-received, being the cause of action, which is based squarely on equity. For this more reason, the Court must strive within the law to unearth the truth. I found pertinent Clause 14(ii) of the Trust Deed:
“If a pensioner dies before enjoying pension for up to five years, the bank shall pay the proven dependents/relative [sic] unearned pension for the remaining period up to the five years.”
That is the only reversionary clause I could find in the instruments. And what is the legal connotation thereof. It is clear enough. It simply means if a pensioner had not collected pension for five years before he died, his beneficiaries shall be entitled to the residue of the number of years to mark the five-year benchmark. Now, the question is: has the deceased in the instant case enjoyed pension for five years? I think the answer is an emphatic yes. The deceased started enjoying pension in 2007 and died in 2016 = 9 years of enjoying pension – see paragraph 15(e) of the ASF. Hence, the deceased’s pension right is not reversionary on death and the next-of-kin is not entitled to any reversion on the deceased pension right at his death. I so find and hold. My finding and holding abovein is in consonance with Clause 4(a) of the Trust Deed [Exhibit D16] which provides:
“Contributions to the Fund shall be made solely by the Bank in the form of:
(i) Annual contributions
(ii) Such other contributions as it may from time to time decide to make and which are approved by the Joint Tax Board.”
There is no contrary evidence that, the deceased made any contribution and, inference could not be drawn in negation of the direct provision of the Trust Deed as to the manner of funding the pension in issue. Apropos of which, the ipse dixit that, the deceased made contributions to the pension is nonstarter, in the absence of documentary evidence to support it; apropos of which too, the allusion to the reversionary clause in the RSA is totally irrelevant to the facts of this case, the primary agreement that governed this contract being the Trust Deed [Exhibit D16]. It follows that, any secondary agreement on reversion by deceased with the 1st defendant on the RSA would only become relevant and binding, if anchored by the Trust Deed. There is no doubt that, the RSA was a tripartite agreement, at the centre of which was the 2nd defendant [the employer of the deceased], with a primary document [the Trust Deed], in which the terms of the pension are contained hence, the RSA could only be construed and understood in term of the provisions of the Trust Deed and not otherwise: the RSA cannot override the Trust Deed. The alleged general reversion right contained therein must be understood and limited to the right of reversion created in the parent agreement [the Trust Deed]. I so find and hold. And in any case, it must be in reckoning that, I have actually found and held supra that, the RSA was even opened in error and that, the PRA 2004 was not applicable to the facts of this case. The further examinations are for the purposes of fulfilling all righteousness.
In view of the foregoing, the 2nd defendant had unalloyed right to recall the residue of the pension funds erroneously paid into the RSA. The argument of the erudite claimant’s counsel on estoppel by conduct would not avail with regard to the residue, but only in regard to the ones paid out before the recall, which spanned more than a year. This is because, estoppel could neither be pleaded against fraud nor, as an instrument of securing fraud. For the Court to say, simply because the 2nd defendant erred in creating RSA for the deceased and paying the lump sum into it that, she could not recall the residue when she discovered the error because the claimant had been led to believe that, she owned the money, is an invitation to turn estoppel, an equitable defence, as an instrument of securing fraud and, turning this Court into an instrument of enforcing the fraud or inequitable benefit. These are not allowed – see Ntung & Ors v. Longkwang & Ors (2018) LPELR-45624 (CA); Onamade & Anor v. ACB Limited (1997) LPELR-2671 (SC) 30, B-D and Attorney-General of Bendel State v. Attorney-General of the Federation & Ors (1981) LPELR-605 (SC) 151-152, F-B. What the estoppel covered are the ones that had been paid out; and good enough, the 2nd defendant is not laying any claim to the paid out ones. My opinion above is in tandem with the ILO prescriptions on money had and received – see Pension Transition Arrangement Directorate v. Onuaguluchi [supra].
Rather than being crucified, the 2nd defendant actually ought to be hailed for being proactive in trying to comply with the PRA 2004 by entering into the contract of the RSA, albeit in error, in order not to run foul of the PRA 2004, pending clarifications from the National Pension Commission, at the instance of whose clarifications, DW2 testified under XX, the 2nd defendant realised her error and acted to recall the residue [without laying claim to the already wrongly paid out sums in violation of the Trust Deed.] This makes Exhibit D8 from the National Pension Commission to the 2nd defendant, relevant here and Paragraph (iv) of the attached Revised Guidance Note thereof:
“Those who retired before 30 June 2004 or from 1 July 2004 to 30 June 2007 as deferred pensioners before the age of 45 years, but after 10 years of service in the UBN. Any time they attain age 45years, their pension crystallizes and are due for payment under the DB scheme.”
The acronym [DB Scheme] means Defined Pension Scheme [DBS], as captured in the Trust Deed [Exhibit D16] under the old system. So, what are we still arguing about! The 2nd defendant has fulfilled all righteousness: both necessary and unnecessary ones, of which the RSA was a significant unnecessary one.
I must state before rounding up that, the defence of the 1st defendant is contingent on that of the 2nd defendant. Whatever is decided in favour of the 2nd defendant enures in favour of the 1st defendant. I therefore need not treat the defence of the 1st defendant. In all, it is clear that, the 2nd defendant has absolute defence against the claimant. Hence, both the 1st and 2nd defendants take the day on the lone issue adopted to decide this case. It is therefore resolved in their favour and against the claimant. The case therefore must proceed to conclusion.
In view of the foregoing, this case is liable to be dismissed for lacking merit. It is accordingly dismissed. I will not award cost against the claimant because, both the 1st and 2nd defendant induced her to believe that, she had a right to pursue and, she actually pursued the seeming right. That is my decision on the merits of this case.
Judgment is entered accordingly under my hand as the presiding judge today, being Friday the 12th day of August 2022.
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA