IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR
JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE
MR. JUSTICE SANUSI KADO
2ND DAY OF DECEMBER, 2025
SUIT NO:
NICN/CA/35/2020
BETWEEN
1.
The Nigerian
Customs Service Board
2.
Nigeria Custom
Service defendants
3.
The
Comptroller General of Customs, Nigeria
Custom Service,
Cross River State command
JUDGMENT
1. On 27th day of November, 2020, the
claimant took out a general form of complaint accompanied by Statement of
facts, witness statement on oath, list
of witnesses, list of documents to be relied on and photocopies of documents to
be tendered in evidence. The claimant claims against the defendants for the
following reliefs. They are:-
I.
A
DECLARATION that the Defendants failure or refusal to pay the Claimant pension
and gratuity after 27 years of service amounts to a Constitutional breach of
the Claimant’s right pursuant to Section 173 of the 1999 Constitution of the
Federal Republic of Nigeria and the Civil Service Rule.
II.
A
declaration that the purported termination of the claimant’s appointment by the
defendants without strict compliance with the provisions of the Civil Service
Rules that regulates claimant’s appointment with the defendants is wrongful.
Illegal, null and void.
III.
A
declaration that the arrest and detention of the claimant for 3 months,
suspension without payment for 2 years and the demotion from the rank of DSC
GL09 to GL07 without a hearing is a breach of his constitutional rights.
IV.
A
declaration that the defendants conduct by transferring 8 suspected drug
traffickers from Murtala Mohammed Airport operational cell to the Federal
Operation Unit Armory to aid their escape is a criminal act or responsibility
which cannot be transferred to the Claimant.
V.
A
declaration that the Defendants’ conduct by transferring 8 suspected drug
traffickers from Murtala Mohammed International Airport to the Armory
containing 87 Mark IV Riffles and live ammunitions with unarmed guards to
prevent their escape was a criminal conspiracy aimed at aiding the escape of
the drug traffickers which cannot be transferred to the Claimant.
VI.
An order on
the defendants to pay the Claimant his withheld salary for the period of
suspension and balance of his withheld salary from the period of his demotion
in rank to his retirement.
VII.
An order on
the defendants to compute and pay the Claimant’s pension and gratuity from the
year 1996 to date at the present rate to reflect 1992 promotion from DSC to SC
which was wrongfully withheld.
VIII.
An order on
the defendants to release the Claimant’s promotional examination result from
the rank of DSC to SC conducted 1992.
IX.
N50,000,000
damages for various acts of breach of the claimant’s right and inhuman
treatment meted against hm by the Defendants.
2. The defendants upon being served with the
originating process commencing this suit on 23rd day of February, 2021,
filed memorandum of a conditional appearance. This was followed by an
application challenging the competency of this suit on the ground that it is
statute barred. The preliminary objection was argued and ruling was delivered
on 30th day of March, 2022. On 3rd day of March, 2022, the
defendants filed their statement of defence. On 28th day of May, 2024,
the defendants filed an amended statement of defence. In response the claimant
on 2nd day of July, 2024, filed reply to the statement of defence.
3. On 1st day of November, 2022, the
claimant opened his case and testified as CW1. CW1 tendered documents in
evidence, they were admitted in evidence and marked as exhibits A – N. on 30th
day of October, 2024, CW1 continued with his evidence in chief and tendered two
additional documents in evidence which were marked as exhibits O and P,
respectively. CW1 concluded his evidence in chief, he was cross examined by
counsel for the defendants thereafter he was discharged.
4. On 28th day of January, 2025, the
defendants called one A. E. Takon, DSC, who testified as DW1 in proof of the
defence of the defendants. No document was tendered in evidence through DW1. On
19th day of March, 2025, DW1 was cross examined by counsel for the
claimant at the end she was discharged.
THE CASE OF THE CLAIMANT.
5. The Claimant was employed vide a letter of
employment dated 13th January, 1969. The claimant’s employment is
governed by the Federal Public Civil Service Rules. The claimant in the course
of his employment rose to the rank of Deputy Superintendent of Customs (DSC) in
1989. While the claimant was serving as Assistant Superintendent of Customs in
1986, five out of eight drugs traffickers were transferred from Murtala
Mohammed Airport to the Federal Operations Unit Armory on the 13th
day of August, 1986. The drugs traffickers escaped from detention. The claimant on that fateful day after
feeding the detainees, left instruction that nobody should open the cell, while
he proceeded for medical treatment as a result of his health problem only to be
informed about the escape the next day.
6. The claimant was arrested and detained as duty
officer after the incident. He was also suspended for two years and detained
for three months running concurrently with his suspension. After two years
suspension on the strength of the investigation report which exonerated him of
any involvement in the escape, he was recalled to back to duty on 10th
day of August, 1988.
7. However, upon being recalled he was demoted in rank
from DSC GL. 09 to SC GL. 07 vide letter dated 6th day of July, 1989
and that of 5th day of March, 1990.
8. The claimant stated that no query was issued to him
either before or after the incident before the punishment of arrest, detention,
suspension and demotion in rank were imposed on him by the defendants thereby
denying him a fair hearing. After serving the 3 years demotion in rank he was reverted to the rank of DSC. But,
the defendants withheld and refused to pay claimant his salaries and allowances
for the 2 years of his suspension till date.
9. The claimant states that upon the reversion in rank
from SC to DSC after his demotion, the Defendant refused to pay him his full
salaries as DSC but continued to pay him the salary of GL 07 from the year of
demotion in rank until the termination of his appointment based on his alleged
involvement in the escape of the drug suspects. The Claimant states that the
Defendants also withheld the result of the promotional examination he passed in
1992, for promotion from DSC to SC conducted at Owerri Zonal Headquarters, thereby
denying him his right against discrimination and in breach of the Civil Service
Rules.
10. The claimant states that in response to the letters
of protest against his discrimination and failure to follow the Civil Service
Rules in handling his case the CIPB in a letter CIPB/CE/1439/VOL.1/15 of 5th
March 1990 directed a re-investigation of the Claimant’s case and trial as
stipulated by the Civil Service Rules and directed the defendants to submit the
report to the CIPB and the Defendants out of malice refused to comply with the
directive.
11. The Claimant states that following several
complaints on his case and others the Federal Government gave a directive in a
letter dated 6th November 1995 on rationalization exercise in the
civil service the directive was flouted and disobeyed by the defendants in the
handling of the claimant’s case. The claimant states that the defendants rather
than observe the provisions of the Civil Service Rules and clear directives of
the Federal Government hurriedly terminated his appointment with a view to
cover their criminal activities with drug dealers.
12. The termination of claimant’s appointment was based
on misconduct which under the Civil Service Rule must be investigated and
proved and disciplinary procedure provided for by Rule 04305 and 04306 at
Chapter 4 of the 1990 to 1999 Revised Edition strictly followed.
13. The Claimant states that his right to fair hearing,
right against discrimination and his pension provided for by the constitution
was denied him and his appointment wrongfully terminated to cover defendants’
criminal activities.
14. The Claimant states that he wrote severally to the defendants
to address the irregularities by paying his pensions, his withheld salaries,
his promotional result and the influence and degrading treatment against him
but to no avail.
THE CASE OF
THE DEFENDANTS.
15. For the defendants, the Claimant is a former
employee of the Defendants, who was employed sometime in 1969 to work for 35
years or 60 years, whichever comes first, and he served as an officer of the
Defendants for a total of 27 years before he was duly dismissed from service in
1996 due to his involvement in a case of allowing the escape of five suspects
of hard drugs from lawful custody. Investigations at the time revealed that the
Claimant who happened to be on duty on the fateful day of the escape of the
drug traffickers that were transferred to the Federal Operations Unit Armory of
the Defendants, deliberately absented himself from duty, without permission or
official booking of his whereabouts, for the purpose of aiding and abetting the
escape of the said drug traffickers. In line with the service rules, the
Claimant was subjected to disciplinary measures, such as suspension without pay
and demotion in rank, and was subsequently dismissed from the service of the
Defendants in 1996. The dismissal of the Claimant was in compliance with the
procedure stipulated by the extant Civil Service Rules at the time. The
Claimant, however, waited until 2020, that is, 24 years after his dismissal
before filing this suit challenging his suspension and subsequent dismissal
from the service of the Defendants.
16. On claim for pension by the claimant, the defendants
stated that an employee was only entitled to pension and gratuity upon his retirement from the service,
and not upon dismissal. Thus, the payment of pension and gratuity was upon
meritorious service. This is so because, as at that time, there was no contributory
pension scheme, and the Pension Act was not yet in force at the time. The
claimant was not entitled to any pension his employment was duly terminated on
ground of misconduct. It is further averred that during the period of the
claimant’s suspension, he was also not entitled to the payment of his salaries,
as his suspension without pay was clearly in compliance with the Civil Service
Rules.
REPLY TO DEFENDANTS’
AMENDED STATEMENT OF DEFENCE
17. In reaction to the amended statement of defence, the
claimant stated that the termination of his appointment was not in line with
the Civil Service Rules and the Constitution but contrary to both, as his
suspension from service, demotion in rank, arrest and detention all arise from
the same incident. The claimant in answer to paragraph 5, states that he was on
duty before he took ill as a duty officer and not a guard officer whose duty is
to guard the drug traffickers already armed by the defendants to aid their
escape.
18. The claimant insisted that he was exonerated and
challenge the defendants to produce the report of the investigation in their
custody before the court and prove his indictment.
19. The claimant stated that he was not dismissed from
service as there is a difference between dismissal and termination of
appointment and both the Rule and the Constitution provides for payment of
pension and gratuity, which is paid the moment a worker worked for up to 10
years of service. The defendants are challenged to produce any legal documents
backing their violation of both the Constitutional provisions and the Service
Rules for Payment of Pension as it was done then.
20. By the ruling of this court, the only claim of the
Claimant sustainable is his pension and gratuity.
THE SUBMISSION OF
THE DEFENDANTS.
21. Mercy D. Tuggar, Principal State Counsel, appearing
for the defendants adopted the final written address of the defendants as his
argument in this case. In the final written address, a lone issue was
formulated for determination, to wit:
Whether the Claimant
has adduced sufficient cogent, credible and convincing evidence before this
Honourable Court which entitles him to the grant of the reliefs sought in his
Complaint?
22. In arguing the sole issue counsel submitted
that the answer to the issue for
determination is in the negative, as according to counsel by the totality of
evidence adduced before this Honourable Court, the Claimant has failed to
successfully establish his entitlement to the grant of any or all of the
reliefs sought in this suit. Counsel submitted that it is settled law that, he
who asserts must prove, and that, in civil proceedings, the burden of proof lies on that person who would fail if no evidence at all is
given. This means that, it is the party who would invariably loose, if no
evidence were adduced at all from either side, that would have the burden of
proof. This is by virtue of Sections 131 and 133 (1) of the Evidence Act; Nitel
Ltd. v. Okeke (2017) 9 NWLR (pt. 1571) 439 at 462, paras.
G-H; and Helios Tower Ltd. v. Bello (2017) 3 NWLR (pt. 1551) 93 at
pp. 111 - 112, paras. H-A.
23. Counsel further submitted that it is also trite law that, a party who seeks declaratory reliefs must
establish his case by adducing sufficient cogent, credible and convincing
evidence establishing his entitlement to the reliefs sought. He must succeed on
the strength of his own case and not on the weakness of the defense. In support
of this contention counsel relied on the case of Faleke v. I.N.E.C.
(2016) 18 NWLR (pt. 1543) 61 at 149 - 150, paras. H- A (SC). Reference was also
made to the case of Oyewusi v. Olagbami (2018) 14 NWLR (pt. 1639) 297 at 317, paras. C-D (SC), where
the Supreme Court held on the duty on a party seeking declaratory reliefs to
succeed on the strength of his own case and not on the weakness of the
defence, thus:
a.
“Where a party seeks declaratory reliefs, he must
succeed on the strength of his own case, and not on the weakness of
the defence, if any. A declaratory relief must be proved to the
satisfaction of the court notwithstanding default of defence or any admission
in the defendant’s pleading.”
24. Reliance was also placed on the case of Wulangs v.
C.B.N. (2021) 16 NWLR (pt. 1802) 195 at pp. 276-277,
paras. D – D, where the Court of Appeal reiterated the law, thus:
“A party seeking declaratory relief is first required to plead and prove
his claims and entitlement to the reliefs sought. He cannot rely on the
weakness in the defence of his adversary. In other words, to succeed, the
claimant must plead such facts and materials to sustain his claims and adduce
evidence to prove same. Secondly, the law requires the claimant to
plead and prove his declaratory reliefs on the evidence he calls without
relying on the evidence called by the defendant. In the instant case, pursuant
to section 131-134 of the Evidence Act, 2011 the appellant had the
onus to establish his case as postulated on the pleadings. The appellant failed
to dislodge the allegation levied against him after he was given the
opportunity to defend himself vide query given and reply to the query given by
the appellant.”
25. According to counsel
in the instant case, the
Claimant failed to adduce cogent and convincing evidence to support or ground
the grant of any of the reliefs sought in this suit. The claimant, who claimed
that his suspension and subsequent dismissal from service were not in
compliance with due process of law, did not produce any cogent and compelling
evidence before this Honourable Court to establish his allegation. All the
documents tendered by the Claimant and admitted by this Honourable Court do not
in any way support the claimant’s claim of wrongful termination of his
employment. Similarly, the claimant failed to produce any material before this
Court to establish his entitlement to pension as claimed by him in his
statement of claim as well as statement on oath. In other words, the claimant
did not adduce anything before the Court to show that during the period of his
employment with the defendants, he was entitled to the payment of pension.
Also, none of the weighty allegations made by the claimant was supported by any
cogent and credible material before this Honourable Court.
26. Counsel further submitted that apart from the bare
averments of the claimant in his witness statement on oath, there is nothing
before this Honourable Court from the claimant to substantiate his claim. This
is more so, as the defendants have sufficiently denied the bare averments of
the claimant. It is submitted that upon a careful examination of the totality
of evidence adduced by the claimant, the claimant has failed to establish his
case, and is therefore not entitled to the grant of any of the reliefs sought
in this suit. Counsel urged the court to so find and hold.
27. Counsel drew the attention of the court to the
evidence of the claimant which clearly established that the claimant engaged in
act of misconduct for which he was rightly disciplined and his employment
consequently terminated. In his evidence under cross-examination, the Claimant
admitted that he was a duty officer on the day the suspects escaped from
custody and that he did not stay on duty till the end of his duty hours. He
also admitted that he did not take any permission before leaving his duty post
on that day. Counsel submitted that absenting himself from duty without
official permission is a serious misconduct under the defendants’ service
rules, one in which the defendants reserve the discretion to punish by
termination of the employment of the defaulter. Counsel also submitted that the
claimant did not adduce any cogent, credible evidence to show that the
termination of his employment did not follow due process of law. For instance,
the claimant did not establish before this Honourable Court that termination of
his employment was not the appropriate disciplinary measure prescribed for his
act of gross misconduct, neither did the claimant established before this
Honourable Court the prescribed procedure which the Defendants ought to have
followed before terminating his employment for gross misconduct nor the claimant
lead any cogent, credible and convincing evidence to show that any such
procedure was never followed by the defendants in the termination of his
employment as was done by the defendants.
28. Counsel submitted that it is settled law that a claimant
who seeks the judgment of the Court in his favour must succeed on the strength
of his case and cannot depend on the weakness of the Defendant’s defence. On
this submission reliance was placed on the case of Cargill Ventures Ltd. v. Coastal
Serv. (Nig.) Ltd. (2012) 9 NWLR (pt. 1304) 60 at 87, paras. G-H, where the
Court of Appeal held, thus:
“A claimant is to succeed on the strength of his case and not on
the weakness of the defence. Obasi Bros Co. Ltd. v. M.B.A. Secs Ltd. (2005) 9
NWLR (Pt. 929) 117; Daniel Holdings Ltd. v. U.B.A. Plc (2005) 13 NWLR (Pt. 943)
533.
29. Also, in Appi-Agama v. George N.D (2021) 8 NWLR (pt. 1778)
221 at 235, para. F, the Court of Appeal reiterated the law when it held inter
alia, thus:
“In civil matters, a claimant ought to succeed on
the strength of the case he is able to establish, and not
on the weakness of the defence.”
Similarly, in MTN (Nig.) Comm. Ltd.
v. Corporate Comm. Inv. Ltd (2019) 9 NWLR (Pt. 1678) 427 at 456, paras. A-C,
the Supreme Court held, that:
“A party seeking declaratory
reliefs must succeed on
the strength of his own case and not on the weakness of the
defence, if any. He has an obligation to prove his claims to
the satisfaction of the court notwithstanding any admission made by the
defendant. This is because the grant of a declaratory relief is discretionary.
In this case, the respondent did what was required of it by tendering
evidence in support of its claims. It pleaded and led evidence to prove that
exhibit A was terminated by exhibit B. The admission of that fact by the
appellant’s witness bolstered the respondent’s claim. And the respondent was
entitled to rely on the admission as additional support for its. [Okoye v.
Nwankwo (2014) 15 NWLR (Pt.1429) 93; Kwajaffa v. B.O.N. Ltd. (2004)
13 NWLR (Pt. 889) 146; Emenike v. P.D.P. (2012) 12 NWLR (Pt.1315) 556
referred to.”
30. Counsel submitted that the above established position of
law clearly shows that it is the duty of the claimant to adduce cogent and
convincing evidence to establish his claims before this Honourable Court, Where
the claimant fails to adduce such evidence, as in the instant case, he cannot
rely on the weakness of the defense of the defendants. In the instant case, as clearly
pointed out above, the claimant did not adduce any cogent and credible evidence
to show that the termination of his employment did not follow due process, neither
did he adduce any evidence whatsoever to show that he was entitled to the
payment of pension or any other payment whatsoever after the termination of his
employment. Also, the claimant did not adduce any cogent and credible evidence
to show any complicity of the defendants in the escape of the suspects as
alleged by the claimant. The exhibits tendered by the claimant do not in any
way support or make out the claimant’s claim before this Honourable Court. In
the light of this counsel submitted that the Claimant is not entitled to any
judgment in his favour. Counsel urged the court to so hold.
31. It is also the sub mission of counsel that the claimant was dismissed from service since 1996, but he never
challenged his dismissal in Court until 2020, that is more than 2 decades after
his dismissal, knowing fully well that by this time, the defendants would no
longer have records of the incident involving the claimant, as same would have
been destroyed by the defendants in line with extant provisions of the law. Counsel
posited that, the conduct of the claimant in waiting until after more than 20
years before challenging his dismissal in Court is a clear indication that this
suit is merely an afterthought, as the claimant reasonably knew that his
dismissal was in strict compliance with the extant Civil Service Rules at the
time. Thus, the instant suit having been instituted more than two decades after
the dismissal of the Claimant is brought in bad faith, knowing fully well that
the defendants would no longer be ceased of records to sufficiently defend the
baseless claims and allegations of the claimant. The claimant was indolent and
failed to bring the instant suit within reasonable time to enable the defendants
properly defend the claims against it. It is settled law that, delay defeats
equity, and the law aids the vigilant, not the indolent. On this counsel relied
on the case of In Re: Yaradua (2011) 17 NWLR (pt. 1277) 567 at 590, paras. E-F;
600, para. A, where the apex Court reiterated the law, when it held, thus:
“Delay defeats equity. Also, the law
aids the vigilant and not those who sleep. Vigilantibus et non dormientibus
jura subsenient. In other words, even equity that waters down
structures of strict application of law, loathes and will not aid the indolent.
In the present application, the applicants should not have waited that long as
they did to seek to join the legal tussle between the two sets of respondents.
They should have promptly and expeditiously joined the tussle at the trial
court.”
32. Similarly, in Oko v. A.-G., Ebonyi State (2021) 14 NWLR (Pt.
1795) 63, the apex Court further held, thus:
“Equity follows the
law. Delay defeats equity as equity assists only the vigilant. Equity would not
assist a litigant resuscitate and resurrect a wasted right of action.
33. Counsel submitted that in the instant case, the claimant
having slept over his right, if any, for over two decades cannot suddenly rise
up from his slumber to lay claim to those rights which he had slept over. He
cannot be assisted by law to resuscitate and resurrect a wasted right of
action, if at all he even had any. In view of this, counsel submitted that the
instant suit of the claimant clearly lacks merit, and thus should not be
granted by this Honourable Court. Counsel urged the court to so find and hold.
34. Counsel argued that the Claimant has failed woefully
to establish his case, as the totality of evidence adduced by him does not in
any way establish his entitlement to the grant of any or all of the reliefs
sought before this Honourable Court. Counsel urged the court to so hold and to
resolve the lone issue of the defendants against the claimant and in favour of
the defendants.
THE SUBMISSION OF THE CLAIMANT.
35.
Chidi
Goodluck Moses, Esq; counsel for the claimant adopted the final written address
of the claimant franked by him as his argument in this case. In the written
address counsel formulated twin issues for determination. They are:-
1.
Whether
considering the facts and circumstance of the case and the evidence placed
before the Court the Claimant has proved that he was employed by the defendants
and therefore entitled to pension and gratuity as provided by Law. (That is
relief No. 1)
2.
Whether this
honourable Court has the power to enforce the Claimant right in relief 7.
ARGUMENT:
36.
Issue 1:
Whether considering the facts and circumstance of the case and the evidence
placed before the Court the Claimant has proved that he was employed by the
defendants and therefore entitled to pension and gratuity as provided by Law.
(That is relief No. 1).
37.
In arguing
issue 1, counsel submitted that considering the facts and circumstances of this
case and the evidence put forward before this Court the Claimant has proved his
employment with the defendants and his entitlement to pension and gratuity as
provided by both the constitution and the Civil Service Rule.
38.
In making
this submission counsel placed reliance on the evidence offered by the Claimant
before the Court at the trial. According to counsel to prove his case the
claimant had tendered a number of documentary evidence which includes exhibit A
letter of appointment dated 13th June, 1969 Letter of his promotion
dated 25th December Exhibit B. letter of suspension dated 1st
September, 1986, exhibit D Letter of Re-instatement dated 15th
November, 1988. Letter of Termination of appointment dated 20th
June, 1996 exhibit K among other exhibits.
39.
Counsel
further submitted that the claimant through his oral testimony and by exhibit A
letter of appointment has proved and establish his employment with the
defendant according to his pleading and oral testimony before the Court
moreover the defendants admitted the fact at paragraph 1 of their amended
statement of defence filled on the 28th May, 2024 where the
defendant stated as follows:
“The Defendants admits paragraph 1 of the statement
of facts only to the extent that the Claimant was employed by the Defendants
for 35 years or 60 years whichever comes first and he worked for a total of 27
years. The Defendants avers that contrary to the Claim of the claimant, during
this period the claimant earned himself suspension from the service and even
demotion in rank before his appointment was subsequently duly terminated in
line with the Civil Service Rules and the constitution. The letter of suspension
with reference No. CE/ANM/EST/P6245/C/56 of September 1986 pleaded by the
Claimant shall be relied upon at the trial by the defendants.
40.
In
furtherance to their pleadings the defendants states as follows: The Defendants
admits paragraphs 2, 3, 4, 5 and 6 of the statement of facts. The law is trite
that both the Court and the parties are bound by the parties’ pleadings, as
decided in the case of BEST OILS LTD V. SIMON ORUOSA (2003) F.W.L.R (PT. 147)
page 1038 at 1048 para F.
Parties are bound by their pleadings and evidence
led that is at variance with a party’s pleadings goes to no avail in the same
manner as pleadings that have not been proved are deemed abandoned. HARUNA V.
MODIBBO (2004) 16 NWLR (Pt 900) page 487 p. 584 para H.
41.
According to
counsel the defendants have equally through their pleadings admitted paragraph
4 of the statement of facts wherein the Claimant states as follows:
“The Claimant was employed vide a Letter of
employment dated 13th January 1969 to work for 35 or 60 years
whichever comes first and to receive pension as provided for by the
constitution unless his appointment was terminated in strict compliance with
the provisions of the Civil Service Rules which regulates employment of public
service of the federation”.
42.
It is the
submission of counsel that both parties are at ad idem that the Claimant was dully
employed by the defendants. The law is trite that what is admitted needs no
further prove. See section 20 and 21 of the Evidence Act 2011.
43.
Counsel also
submitted that under cross examination DW1, confirmed that Claimant was
employed by the defendants and worked for 27 years see paragraph 3 of the DW1’s
written Statement on Oath.
44.
Counsel in
support of whether the Claimants employment or appointment with the defendants
is of statutory flavor placed reliance on the provision of section 173 (1) and
(2) of the 1999 constitution of the Federal Republic of Nigeria as amended which provides that 173 (1)
subject to the provisions of the constitution, the right of a person in the
public service of the federation to receive
pension or gratuity shall be regulated by law” While 173 (2) states: 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 in permissible under any law; including the code of conduct?
45.
Counsel
submitted again that section 318 of the constitution defined the claimants
employment as one of statutory flavor being regulated by the constitution and
other laws:
46.
It is
further submitted that section 122 (1) and (2) of the Evidence Act 2011 enjoins
the court to take judicial notice of the fact that Claimant was a public
servant whose employment has statutory flavor.
47.
On kinds of
employment counsel relied on the case of K.S.J.SC V. TOLANI (2019) 7 NWLR (PT
1671) page 382 at p.400 para C the apex Court has this to say.
There are three factors that must co-exist to
constitute a public office, namely;
The office was created by the constitution, statute
or other enabling Legislation.
Its function, duties and powers are as defined by
law and other regulations and
The position must show some permanency.
48.
In concluding
his submission on issue 1, counsel submitted that claimant has proved his
employment or appointment with the defendants and that same has statutory
flavor and therefore must be determinate in strict compliance with the law.
49.
ISSUES 2:
Whether this honourable Court has the power to enforce the Claimant right in
relief 7.
50.
Counsel
submitted that the claimant is entitled to the reliefs sought that is reliefs 1
and 7 of his claim and the Court has the right to make award in pursuant to the
reliefs sought, the Claimant having
proved his case.
51.
According to
counsel under cross examination DWI contradicted herself by stating that
Claimant appointment was dismissed contrary to the written deposition on Oath
when confronted with exhibits O and P, DWI, admitted that the Claimant’s appointment
was terminated contrary to the laid down rules and procedures. Counsel continued
his submission that it is the law that in employment with statutory flavor, the
rules and procedure for termination and dismissal must be strictly followed
failure of which such act become unlawful and void.
52.
Counsel
submitted that the defendants admitted that claimant’s appointment was
terminated without any query or hearing as stated in his evidence which
ordinarily entitled him to
re-instatement however being that Claimant has reached the (Sixty) 60
years age limit he is entitles to the
reliefs of pension and gratuity. To support this contention reliance was
placed on the case of OYEYEMI V. OWOEYE (2017) 12 NWLR (PT1580) page 364 at 404
para B-G, where the Supreme Court, has this to say:
In the final analysis, we paused to anticipate what
in essence, will be or is the real (sweet) fruit of the labour of the
appellants in travelling the long tortuous and expensive journeys of pursuing
judicial remedies from trial court to the Supreme Court. Assuming the
appellants had remained in office, their tenure would have ended by now,
regrettably. However, as a Court of law, justice and policy, it is our
considered view that the appellants would appear to have lost most, despite
gaining all in judicial victory. The justice of this appeal would, in our
thinking, be better served by treating the appellants as retiring appointees
for the purpose of enabling them to be
paid their salaries and severance packages(s) applicable to the current
occupants of those offices as at the date of this judgment.
Having resolved all the issues in favour of the
appellants, this appeal succeeds in whole. The judgment of the trial Court and
Court of Appeal are hereby set aside. No
order is made as to cost. No order is made reinstating appellants to their
offices either as Chairman, secretary and members of the Osun State Independent
Electoral Commission (OSSIEC).
As stated immediately above, the justice of this
appeal demands that appellants be, and are hereby treated as retiring
appointees for the benefit of payment of the full salaries and allowance up to
the time they would have left their offices, by expiration of their tenure and
severance packages as provided by law applicable to the current occupants of
those offices as at the date of this judgment.
53.
In
furtherance to the above legal position the apex Court in the case of
K.S.J.S.C. V. TOLANI (2019) 7 NWLR (PT. 1671) at c/04 para C-E put it succinctly
thus:
Where an employee’s services is protected by status
and it is wrongfully terminated or withdrawn, he would be entitled to
reinstatement, in the instant case, the respondents marital status, not having
been shown to be a precondition for her employment under regulation 72 of the 1st
appellants regulation, the withdrawal or termination of her employment on the
ground that she had lied about same, was ultra-vires, null and void. Thus, the
respondent was entitled to an order of reinstatement.
54.
Counsel
submitted that by paragraph 14 of the DWI statement on Oath exhibit O Claimants
appointment or employment was not dismissed but only terminated and it is only
dismissal that attracts punishment of non-payment of pension and gratuity DWI
also confirmed under cross examination that Claimant appointment was terminated
and not dismissed without observing the strict provision of the Civil Service,
Rules which provides for query to be issued to enable the party to be heard.
55.
Counsel
urged the Court to hold that Claimant is entitled to his constitutional right
of receiving pension after 27 years of meritorious service to the defendant. As
pension being a constitutional right any law or regulation that is inconsistent
with the constitutional provision is null and void to the extent of its
inconsistency.
56.
According to
counsel, what is left is an order of this honourable Court on the Defendant to
compute and pay to the Claimant his pension and gratuity at the current rate
paid to the presence occupiers of the Claimant grade level in line with the
Supreme Court in Oyeyemi V. Owoeye cited above. in the interest of justice.
COURT’S DECISION:
57.
I have
considered the processes filed by the parties, the evidence led at the trial
and exhibits tendered in evidence. I have equally considered the final written
addresses filed by counsel as well as the oral submissions made in adumbration.
58.
There is no
doubt the ruling of this court delivered on 30th day of March, 2022,
on the preliminary objection of the defendants has circumscribed the scope of
the issues to be considered in this
judgment. For avoidance of doubt the ruling of 30th day of March, 2022,
found that, apart from reliefs 1 and vii which are on pension, all other
reliefs were caught by the doctrine of statute barred and they were accordingly
dismissed. This means this court can only delve into issue of pension alone.
The court has become functus officio in respect of claims bordering on
termination, arrears of salaries, arrest and detention of claimant and
promotion etc.
59.
In view of
the foregoing, the issue calling for resolution is whether the claimant has proved
entitlement to reliefs 1 and vii or not.
60.
The law remains
that he who asserts has the onus of proving his assertion. In civil cases,
like the present case the burden of proof is on the party who asserts a fact to
prove the same because he who asserts must prove. In other words, the burden of
proof lies on the party against whom judgment would be given if no more
evidence were adduced successfully until all the facts in the pleadings have
been dealt with. The burden of proof is on the party who alleges the
affirmative. This means the burden of proof is on the party who will fail if no
evidence is led in the case. A party who pleads and asserts a fact bears the
burden of proving same. Thus, the claimant in this case who pleaded that the he
is entitled to pension for the 27 years he served the defendants bore the
burden of establishing his claim by adducing credible evidence in proof. See
Mbukurta v. Abbo (1998) 6 NWLR (Pt. 554) 456; Osawaru v. Ezeiruka (1978) 6-7 SC
135; Odukwe v. Ogunbiyi(1998) 8 NWLR (Pt. 561) 339; Corporate Ideal Ins. Ltd.
v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165; Dagaci of Dere v.
Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382; Are v. Adisa (1967) NMLR 359;Atane
v. Amu (1974) 10 S.C. 237; Obimiami Brick & Stone (Nig.) Ltd. v. African Continental
Bank Ltd. (1992) 3 NWLR (Pt. 229) 260; Ibrahim v. Ojomo (2004) 4 NWLR (Pt.862)
89; International Messengers (Nig.) Ltd. v. Pegafor Industries Ltd. (2000) 4
NWLR (Pt.652) 242; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307.
61. While the
general burden of proof in civil cases rests and lies mainly on the claimant,
such burden is not static as the matter progresses, such burden may be foisted
on the defendant to call evidence in proof or rebuttal of some particular
points arising at the trial. That is to say the burden shifts from one side to
another. See Abiodun v. Adehin (1962) 2 SCNLR 305; Adegboyega v. Awe (1993) 3
NWLR (Pt. 280) 224; Imana v. Robinson (1979) 3 & 4 S.C. 1; Ezendu v.
Obiagwu (1986) 2 NWLR (Pt.21) 208; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378)
448; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Faloughi v. First Impression
Cleaners Ltd (2014) 7 NWLR (Pt. 1406) 335.
62. It is clear from the facts and evidence before the
court there is no dispute that the claimant served in the Nigerian Customs Service
for a period of 27 years i.e. from 1969 to 1996, when his employment was
terminated vide exhibit K, letter dated 20th day of June, 1996.
63. The claimant
in his pleadings and evidence stated
that his appointment being pensionable he is entitled to pension since he had
served the defendants for 27 years. The relevant provisions of the claimant’s
pleading are hereby reproduced for ease of reference. They are as follows:-
64. The claimant was employed vide a letter of
employment dated 13th January, 1969 to work for 35 or 60 years
whichever comes first and to receive pension as provided for by the
constitution unless his appointment was terminated in strict compliance with
the provision of the civil service rules
which regulates employment of public
service of the Federation.
23. The claimant states that his employment with the
defendants was pensionable as provided
by the constitution. It was regulated by the Civil Service Rules and must be
terminated in accordance with the rules.
24. The claimant states that the defendants has
(sic) failed to pay him his pension after 27 years of service without any query
and has withheld his salaries for the 2 years he was suspended for a crime he
was cleared by the defendant till date.
32. The termination of claimant’s appointment was
based on misconduct which under the civil service rules must be investigated
and proved and disciplinary procedure provided for by Rule 04305 and 04306 at
chapter 4 of the 1990 to 1999 Revised Edition strictly followed. The said civil
service rules shall be relied upon at the hearing.
33. The claimant states that his right to fair
hearing, right against discrimination and his pension provided for by the
constitution was denied him and his appointment wrongfully terminated to cover
defendants’ criminal activities.
34. The claimant states that he wrote severally to
the defendant to address the injustice against him by paying his pensions, his
withheld salaries, his promotional result and the inhuman and degrading
treatment against him but to no avail. Letters by the claimant and his counsel
to the defendants are hereby pleaded.
65. It is clear from the pleading of the claimant that he
averred that his appointment was governed by the provisions of 1990 and 1999 Civil
Service Rules Revised Edition. The claimant maintained that his pension was
guaranteed by the Constitution and civil Service rules. But the said revised
civil service rules were never tendered in evidence nor produced for inspection
of the court. The claimant has also not referred this court to the relevant
specific civil Service rules applicable to him on his entitlement to his claim
for pension.
66. For the defendants they admitted that the claimant
was employed by the defendants to serve for 35 years or upon reaching 60 years
of age whichever comes first. They have also admitted that the claimant served
the defendants for 27 years. But during the period of service, the claimant
earned himself suspension from service and even demotion on rank before his
appointment was subsequently duly terminated in line with civil service rules
and constitution. However, the defendants have also not referred this court to
the relevant specific provisions of the civil service rules or provisions of
the constitution, which they claimed the suspension and demotion of the
claimant in rank were based on and subsequently terminated.
67. In clarifying the reason for demotion of the
claimant to a lower rank and why claimant’s is not entitled to pension and
gratuity, the relevant averments in the amended statement of defence are hereby
reproduced for proper appreciation. They are as follows:-
8. The
Defendants admits paragraph 11 of the statement of facts only to the extent
that the claimant was recalled from suspension after the conclusion of
investigations. The Defendants further aver in answer to the said paragraph 11
that, contrary to the averment therein, the claimant was never exonerated, but
rather was indicted for violating the service rules by absenting himself from
duty without any official leave,. Or booking of his movement on that fateful
day, and this clearly formed the basis for the demotion of the claimant’s rank
from DSC GL 09 to ASC GL 07,
9, The
Defendants admit paragraph 12 of the statement of facts on/y to the extent that
the claimant was re-called from suspension and demoted in rank from DSC GL 09
to ASC GL 07, and further submits that the claimant was never cleared of any
complicity in the matter, contrary to the averment of the claimant,
10. The Defendants admit paragraph 13 of the
statement of facts only to the extent that, under the Constitution of the
Federal Republic of Nigeria, a person cannot be punished twice for the same
offence. The Defendants however avers in further answer to the said paragraph
13 that the claimant was never punished more than once for the same offence,
11. The Defendants denies the averment in paragraph
14 of the statement of facts, and aver that all the disciplinary actions taken
against the claimant were in compliance with the laid down procedure as
contained in the Civil Service Rules.
12. The
Defendants aver that paragraph 15 of the statement of facts is false and same
is accordingly denied, and the claimant is put to the strict proof of same,
13. The Defendants aver in answer to paragraphs 16
and 17 of the statement of facts that, contrary to ‘the claim of the claimant,
his suspension was without pay, and upon the claimant being re-called from
suspension, his salaries were paid to him based on his new rank, ASC GL 07.
14. In further answer to paragraph 17 of the
statement of facts, the Defendants aver that, contrary to the claimant’s claim
therein, the claimant’s rank was never reverted from ASC to DSC after his
demotion,
16. The Defendants admit paragraph 23 of the
statement of facts, and submits further that during the period of the claimant’s
employment with the Defendants, an employee was only entitled to pension and
gratuity upon his retirement from the service, and not upon dismissal. Thus, the
payment of pension and gratuity was upon ‘meritorious service. This is so
because, as at that time, there was no contributory pension scheme, and the
Pension Act was not yet in force at the time,
17. The
Defendants aver that paragraph 24 of the statement of facts is false, and misleading.
In answer to the said paragraph, the Defendants aver that the claimant was not
entitled to any pension as his employment was duly terminated on ground of
misconduct. It is further averred that during the period of the claimant’s
suspension, he was also not entitled to the payment of his salaries as his
suspension without pay was clearly in compliance with the Civil Service Rules,
18. In
further response to the averment in the said paragraph 24, the Defendants aver
that, contrary to the claimant’s claim, the Defendants never cleared the
claimant of any wrongdoing,
20. The Defendants, in further answer to the said
paragraphs 25,.6 and 27 of the statement of facts, aver that, the claimant
alongside other officers who were indicted during the investigation of the
escape of the drug suspects from custody were all disciplined according to the
degree of their respective involvements in the matter,
21. The
Defendants deny the averments in paragraphs 28 and 29 of the statement of facts
for being false, and aver that, the claimant was lawfully dismissed from the
service in accordance with the Civil Service Rules,
23. The Defendants admit the averment in paragraph
32 of the statement of claim only to the extent’ that the claimant’s
appointment was terminated on ground of misconduct, and avers further that all the
disciplinary actions taken against the claimant were in compliance with the
laid down procedure in the Civil Service Rules.
24. The Defendants deny the averments in paragraph
33 of the statement of facts for being false, and states in answer thereto that
the none of the rights of the claimant was violated by the Defendants, and that
the claimant’s employment was dully terminated in accordance with the Civil
Service Rules in force at the time.
68. It is clear
from the pleadings of the parties that the claimant is insisting on entitlement
to be paid pension for services rendered to the defendants for 27 years. While
the defendants are of the view that claimant is not entitled to succeed in this
case, as he has not proved entitlement to pension. It is regrettable that none
of the counsel for the parties has emphatically made reference to specific
provisions of the public service rules relevant to claimant’s case wherein
pension was granted.
69. However, in
my view this court can by law take judicial notice of all relevant laws and
subsidiary legislation applicable to the claimant’s claim for pension. However,
the facts applicable to the laws to be judicially noticed are within the
province of the claimant. This means the claimant must by his pleading states
the facts based on which the laws to be judicially noticed apply.
70. There is no
doubt from the facts as disclosed by the pleadings the claimant served the
defendants from 1969 to 1996. By virtue of the provision of section 8 (1) of
the Nigerian customs service Board Act, the law establishing the 1st
defendant in this case, the claimant’s
service/appointment was pensionable. Therefore, the relevant civil service
rules that governed payment of pension applicable to the claimant is the 1974
Civil Service Rules, which was subsequently amended. The appropriate applicable
pension law as at the time the claimant’s appointment was terminated was the
Pension Act, No. 102 of 1979, now Pension Act Cap 346 of Laws of the
Federation, 1990. It is equally important to note that Pension Act, Cap 346 of
1990, has been repealed by the Pension Reforms, Act of 2004 and 2014, which is
now the extent Act on pensions in Nigeria. The major difference between the
pensions law is that under the old scheme pension i.e. Pension Act cap 346,
Laws of the Federation is not based on contribution to the pension scheme, like
the case with pension Reforms Act, of 2004 and its subsequent amendment of 2014.
71. As pointed
out above, the Pensions Act, Cap 346, of 1990, applies to the claimant as it
applies to employees in the public service of the Federation. See section 8(3)
and (4) of the Nigerian Customs Service Board Act.
72. Let me state here that pension right is one that an
employee has and must enjoy if proved. There are no dearth of case law
authorities on this point. For instance, by the decision in the case of Momodu v.
NULGE [1994] 8 NWLR (Pt. 362) 336 CA, a pension is an accrued right
of an employee, be the right in money or other consideration, on retiring from
the services of his employer and satisfying the conditions for payment of the
said pension. It is a right which cannot be unilaterally taken away by the
employer. The case of NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 on its
part held that entitlement to pension and gratuity is a vested right; and
whether an employee is eligible for pension and gratuity can be decided only by
reference to the conditions of service. By RSCE v. Omubo [1992] 8 NWLR (Pt. 260) 456, in a
pensionable employment the employee’s right to pension ripens in the year of
his retirement; until then that right is only contingent upon attaining his age
of retirement.
73. Going by the provision of Pension Act, Cap 346, for
the claimant to qualify or be eligible for payment of pension he has to show
that he served the defendants for a period of 15 years, but the payment of
pension shall not commence until such officer has attained 45 years of age or had
attained 60 years of age to be able to qualify for pension under the Act. Or he
was compulsorily retired due to medical unfitness, public interest or
organizational restructuring. See section 3 of the Pension Act, Cap 346, Laws
of the Federation, 1990. The claimant has shown that he served the defendants
for a period of 27 years which has been admitted by the defendants when his
appointment was terminated.
74. What is clear is that the Pensions Act Cap 346 LFN
1990 is not an all-comers law. It applies only to employees of the “public
service of the Federation”, The claimant in the instant case is an employee of
the public service of the Federation and so eligible and entitled to claim the
benefit of Cap 346 LFN 1990.
75. However, the defendants have insisted that the
claimant is not entitled to pension because as he did not retire from service.
76. A careful perusal of the facts leading to taking of
disciplinary action by the defendants against the claimant will clearly show
that the defendants have by demoting the claimant disciplined the claimant on
the alleged escape of five hard drugs suspects when the claimant was on duty.
Therefore, the subsequent termination of claimant appointment as per exhibit K,
cannot be said to be termination based on misconduct as he cannot be punished
twice for same offence based on same facts. This means claimant’s appointment
was terminated not based on misconduct and that cannot serve as a clog to
prevent the claimant from entitlement or accessing his pension.
77. It is pertinent to state that applying the
purposeful and holistic interpretation to the provision of section 24 of the
Pension Act, as it relate to ‘termination’ in relation to an officer’s service it
means termination of service by retirement or withdrawal. Given this
definition, therefore, the termination of the claimant’s appointment/employment
by the defendants would mean termination of service by retirement or
withdrawal. However, the decision in the case of Achimugu v. Minister of FCT
[1998] NWLR (Pt. 574) 467, held that by virtue of sections 3(2)(a) and (b) and
4(2) of the Pensions Act, for a public servant to qualify for pension he must
have been in the service for 15 years and aged 45 years at the time of his
retirement.
78. In the case at hand there is doubt the claimant has satisfied
the requirement of been on pensionable age, the fact of having attained 27
years of service is more than sufficient. The claimant has in his pleading
stated that his appointment was pensionable, which has not been contradicted, a
prerequisite to recovery under the pension law. However, section 3(2)(c) of the
Pensions Act Cap 346 LFN 1990 provides that an officer retiring under section
3(1), if he is required to retire after fifteen years’ qualifying service
pursuant to the provisions of section 3(1)(c) to (h), he shall be entitled to
pensions immediately on retirement, notwithstanding that he has not attained
the age of forty-five years. By this provision, the requirement of age (at
least 45 years as enjoined by Achimugu v. Minister of FCT) as a prerequisite for
recovery of pension under the Pensions Act Cap 346 LFN 1990 appears to have
been waived. The evidence before the Court clearly shows that claimant served
the defendants for 27 years. This means since the claimant is an employee in
the public service of the Federation, he is dully entitled to his claims as per
the Pensions Act Cap 346 LFN 1990, since this was the law applicable at the
time his employment was terminated by the defendants in 1996.
79. On the whole, the claimant is entitled to be
receiving pension for the 27 years he had served the defendants. However, this
is for the period from 1996 when his employment was terminated to July, 2014,
when the Pension Reforms Act, 2014, came into force and transfers the
responsibility of payment of pension under the old pension scheme i.e. Pension
Act cap 346, to the Pension Transitional Directorate (PTAD) established by the Pension
Reforms Act 2014. This means that the
success of claimant is only in respect of his pension from 20th
June, 1996 to July, 2014, when the
responsibility of payment of pension was transferred to the Pension
Transitional Directorate (PATD).
80. The claimant whose employment was terminated in
1996, has his pension preserved by section 173 of the Constitution of the
Federal Republic of Nigeria, 1979, which was the constitution in force when
claimant ‘s appointment was terminated and become eligible to benefit from the
pension scheme then in operation.
81. The responsibility for continuing with the payment
of these old pension liabilities, specifically the accrued rights, is primarily
vested in the Federal Government for its employees see section 39 of the
Pension Reform Act 2014, which outlines the funding mechanism for these accrued
rights. For Federal Government employees, the Act mandates the Federal
Government to issue bonds to fund the retirement benefits of its employees for
their past service. These bonds are then redeemed and the proceeds are paid
into the employees' RSAs. This mechanism was designed to systematically clear
the backlog of pension liabilities that had accumulated under the old scheme.
81.The law is clear to the effect that, while the old
pension scheme ceased to admit new members, its liabilities for existing public
servants were not extinguished. Instead, they were converted into 'accrued
rights' which government is legally bound to fund. The Supreme Court, in cases
such as Federal Republic of Nigeria v. Osahon & Ors. (2006) 5 NWLR (Pt.
973) 361, has consistently upheld the sanctity of pension rights, emphasizing
their importance as a deferred remuneration for service rendered.
81.From all I have been saying above the claimant has
succeeded in establishing entitlement to grant of relief 1 i.e. a declaration
that the failure or refusal to pay the claimant’s pension and gratuity after 27
years of service amounts to a constitutional breach of the claimant’s right
pursuant to section 173 of the constitution of the Federal Republic of Nigeria,
1979, which was the applicable law as at the time claimants was terminated.
82. Having granted relief 1, the declaration, the claimant
is also entitled to grant of relief vii praying for an order directing the
defendants to compute and pay the claimant’s his pension. However, this court
can only grant to the claimant his pension for the period from 20th
June, 1996 to July, 2014. This is because as from the commencement of Pension
Reforms Act 2014, payment of pension to public officers under the old pension
scheme of Pension Act, Cap 436, of LFN 1990, was transferred to the Pension Transitional
Directorate (PTAD). In view of this the claimant’s prayer for payment of his
pension up to date, cannot be granted. But, the claimant is entitled to be paid
his pension from 20th June, 1996 to July, 2014.
83. In view of the foregoing, relief vii succeed only to
the extent that the defendants are hereby ordered to calculate and pay the
claimant his pension for the 27 years he served the defendants i.e. from 20th
June, 1996 to July, 2014, at the last salary on which the claimant’s
appointment was terminated.
84. I am unable to order payment of pension beyond July,
2014, because the statutory agency responsible for payment of pension under the
old scheme which the claimant is entitled to benefit is no longer the employer
of the claimant, but on a new body established by Pension Reforms Act, 2014, i.e.
The Pension Transitional Directorate (PTAD), and the agency is not a party in
this suit. The law prohibits making order against a party that is not a party
before the court.
85. The success of relief vii was made possible by
success of relief 1, which is the main or primary relief sought by the
claimant. This court having found claimant entitled to declaration has a duty
to make pronouncement to give effect to the declaration made. This is in line
with the decision in the case of Infinity Tryst Savings & Loans Ltd &
Anor v El-Ladan & Anotr. (2022) LPELR-574333(CA) P. 77, Paras A-C, which
states that a court has a duty to make pronouncements on reliefs claimed by a
party once it finds that such party has proved his claim.
85.It is my view that even if there is no prayer for an
order directing the defendant to compute and pay the pension and gratuity, this
court can still make such an order as a consequential relief flowing directly
from the established declaration of entitlement.
86. Furthermore, order for computation is an appropriate
order to be make in this case having regards to the facts that the defendants
are in possession of the necessary, relevant information for making such
calculation. The defendant, being former employer, is usually in the best position to
carry out such computation, as they possess all the necessary records
pertaining to the claimant's employment, salary, and applicable pension
schemes. They also possess the requisite resources for carrying such activity
as they have actuarial and certified accountants to do such calculations. Therefore,
directing the defendant to compute is in the right direction, to give effect to
the primary relief which the claimant is entitled to. This approach ensures
that justice is served and that the claimant, whose entitlement has been
proven, is not denied his due.
87. In view of the foregoing, the defendants are hereby
ordered to compute and pay to the claimant his pension from 20th day
of June, 1996 to July, 2014, when the Pension Reforms act 2014 came into force
and took away the responsibility of payment of pension from the defendant and
transferred it to the Pension Transitional Directorate (PTAD).
88. Having regards to the circumstances of this case, I
make no order as to costs. Parties to bear their respective costs.
89. Judgment is hereby entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
Chidi Goodluck Moses, Esq; for the
claimant
Mercy D. Tugga, Esq; assistant chief
State Counsel, for the defendants.