IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: TUESDAY 21ST MAY, 2024          SUIT NO: NICN/KD/32/2023

BETWEEN

1.     JONAH ADZE AMBISA mni

2.     LAWRENCE A. SHEMANG

3.     ESTHER C.TSUWANG

4.     VICTORIA GALADIMA

5.     MARY MUSA SAWOK

6.     KANDE NANA BAGE

7.     LUKMAN SOBA MUSA

8.     MAMMAN SENIOR GARBA

9.     IBRAHIM SAMBO mni                                           CLAIMANTS

10.           HAUWAU. UMAR

11.           RAUBILU SHEHU IBRAHIM

12.           MUSA A. ADAMU

13.           AMINA ADAMU IKARA

(Suing for themselves and on behalf of

Permanent Secretaries who have Retired

from the Kaduna State Public Service

by 31st January, 2023).

AND

1.     THE GOVERNOR OF KADUNA

2.     STATE ATTORNEY - GENERAL              DEFENDANTS

OF KADUNA STATE

REPRESENTATION

Mercy Umar Esq with B.R. Bulus Esq and Nafisat Musa Esq for the Claimant

T.A. Maigari Esq holding the brief of J.A. Kanyip Esq for the Defendant

 

JUDGMENT

The Claimants filed an Originating Summons Pursuant to Order 3 Rule 3 and Rule 17 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017 on the 30th November 2023 wherein the Claimant set out four questions herein reproduced below for the determination of this Court:

1.     WHETHER by a construction of the clear and unambiguous provision of inter-alia the entirety of Section 210 of the 1999 Constitution (as amended) and the provisions of the Kaduna State Pension Reform Law 2016 the Plaintiffs right to pension being retired officers in the public service of Kaduna State is not guaranteed and protected.

 

2.     WHETHER the Defendants can validly legislate retrospectively to derogate from the Plaintiffs vested right to enjoyment of pension in the manner provided upon their retirement from the public service of Kaduna State to their disadvantage without the concurrence/consent of the Plaintiffs.

 

3.     WHETHER the Kaduna State Government circular duly signed on behalf of the Head of Service of Kaduna State can validly operate in a manner as to strip the Plaintiffs of their status as retired public servants in the public service of Kaduna State and to now convert them to political office holders upon their retirement from the public service of Kaduna State upon attainment of the mandatory 60 years for retirement, 35 (Thirty Five Years) in service and or 8 (Eight Years) in the rank of permanent secretary.

 

4.     WHETHER the Defendants unilateral reduction of the Plaintiffs monthly pension is not a violation of the spirit and letter of the provisions of the Section 210 (3) of the 1999 Constitution (as amended) and the Kaduna State Pension Reform Law, 2016.

Upon the determination of the questions set out above, the Claimants pray for the following reliefs:

1.     A DECLARATION that the Plaintiffs right to pension as retired public servants in the public service of Kaduna State is quaranteed and protected by the provisions of Section 210 of the 1999 constitution (as amended) and the provisions of the Kaduna State Pension Reform Law, 2016.

 

2.     A DECLARATION that the Plaintiffs are retired public servants from public service of Kaduna State and the Defendants are from their Conduct in the entire circumstances of this Suit estopped from asserting otherwise.

 

3.     A DECLARATION that the Defendants lack the vires to Legislate/act retrospectively in a manner that purports to derogate from the Plaintiffs enjoyment of their pension right to their disadvantage without their Concurrence.

 

4.     A DECLARATION that the Defendants purported reduction of the Plaintiffs monthly pension to their (Plaintiffs) disadvantage is unconstitutional, ultra vires the Defendants and therefore null and void ab-initio.

 

5.     AN ORDER directing the Defendants to pay the Plaintiffs the difference in their monthly pension resultant from the Defendants unlawful deductions from the Plaintiffs' monthly pension which commenced sometime in 2017 till date.

 

6.     AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether by themselves, agents, officers, successors, agencies, parastatals, Commissions e.t.c whomsoever and howsoever otherwise described from acting in any manner whatsoever prejudicial to the Plaintiffs' enjoyment of their pension rights as retired public servants in the public service of Kaduna State.

At the plenary hearing on the 13th of March, 2024, Mercy Umar, Esq. Counsel for the Claimants identified the Originating Summons filed on the 30th day of November 2023. The Summons was accompanied by a 17-paragraph affidavit, attached therewith are Exhibits A - D. In compliance with the Rules of this Court, the Claimant also filed a Written Address in support of the Originating Summons. Again, Counsel identified a 20-paragraph Further and Better Affidavit and Reply on Points of Law filed on the 20th of February 2024. The affidavits were deposed to by the 1st Claimant, attached with the Further and Better Affidavit is Exhibit E. Counsel adopted these processes and urged the Court to grant the reliefs sought.

The Defendants, in responding to the Originating Summons, Kanyip J. A. Esq identified a 12 – paragraph Counter-Affidavit deposed to by Alexander Garba, the director of Establishment in the office of the Head of Service; attached wherewith are Exhibits 1 – 3 and Written Address filed on the 23rd of January 2024 and adopted same and urged this Court to dismiss the claims of the Claimants.

FACTS IN SUPPORT OF THE ORIGINATING SUMMONS

The Claimants stated that they are retired public servants having retired from public service as  Permanent Secretaries from the Kaduna State Civil Service. While in the public service of Kaduna State, the 1st Claimant worked in the Administrative Cadre and on personnel matters and therefore knowledgeable as it relates to the record of service of employees and scheme of service of the public service of Kaduna State especially the Claimants herein before their retirement therefrom. That all the Claimants retired from the civil service of Kaduna State within the substantive rank of permanent secretary.

That upon his retirement from the public service of Kaduna State, the 1st  Claimant was served with Notification of Cessation of Appointment dated 5th of August 2019 by the civil service commission of Kaduna State. That the Kaduna State Government also prepared his record of service which chronicled his journey in the public service of Kaduna State up to retirement.

That all the other Claimants herein were issued with letters similar to Exhibits 'A' and B' where upon the Claimants started drawing their drastically reduced monthly pension from their dates of retirement as computed by the Kaduna State Government in flagrant disobedience and disregard of the Constitution and Pension Laws.

That their pensions were drastically reduced by the Kaduna State Government as the said pension was calculated based on their previous cadres as Directors and Deputy Directors before the Claimants attained their respective ranks of Permanent Secretaries as at the time of their retirements which act is flagrant disobedience and abuse of the Constitution and the  Pension Law. That based on the above, their pension was calculated and paid at the sum of N49,319,01 instead of N550,000 monthly and Gratuity in the sum of N18,000,000 which is the 100% of their total emoluments having retired as Permanent Secretary from the Public Service.

That this act of the Defendants was done pursuant to a purported circular issued by the Kaduna State Permanent Secretary (Establishment) on behalf of the Head of Service of Kaduna State to the effect that the Kaduna State Government now considers retired Heads of Service and Permanent Secretaries as political appointees who are not subject to Compulsory retirement at the age of 60 years or completion of 35 years in service and therefore not entitled to draw 100% of their annual salary for life as gratuity.

That from Exhibit C herewith annexed, the 11th and 12th Claimants have not even yet been paid any amount whatsoever as pension or gratuity by the Defendants. The Defendants have withheld part of the Claimants' pension. That the Claimants herein all retired from the public service of Kaduna state for reason of attainment of 60 years of age, 35 years in service or for having spent a period of Eight (8) years in the position of Permanent Secretary. That the Defendants have since increased the salary of workers in the Public service of Kaduna State resultant from the increase in minimum wage to N30,000 (Thirty Thousand Naira Only).

 

FACTS IN OPPOSITION TO THE ORIGINATING SUMMONS

Responding to the deposition in Affidavit in support of the Summons, the Defendants stated that the computation and payment of the monthly pensions and other retirement benefits of the Claimants is not the responsibility of the Defendants or Kaduna State Government, but that of their respective Pension Fund Administrators under the Contributory Pension Scheme. It is the responsibility of the respective Pension Funds Administrators of the 11th and 12th Claimants, not the Defendants or Kaduna State Government, to pay them their monthly pensions and other retirement benefits under the Contributory Pension Scheme.

The Defendants or Kaduna State Government did not withhold part of the Claimants' pensions whatsoever. The Defendants did not act in any manner whatsoever in total disregard to the Claimants' respective vested rights to their pensions to their disadvantage.

The true position is that in the aftermath of the passage of the Pension Reform Act by the Federal Government which is applicable to any employment in the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the States, the Public Service of the Local Governments and the Private Sector, Kaduna State Government enacted the Kaduna State Pension Reform Law No. 2 of 2016 which came into effect on the 1st of March, 2016. The Law was amended in 2020. The core objectives of the Law, among others, are to establish a uniform set of rules, regulations and standards for the administration and payment of pensions and retirement benefits for the employees of the State Public Service; and make provisions for the smooth operations of the Contributory Pension Scheme in the State.

Before the coming into effect of the Law No.2 of 2016, Kaduna State Government was operating the Defined Benefit Pension Scheme which was found to be absurd and causing a lot of hardship to pensioners in the State. The purpose of enacting both the Pension Reform Act at the Federal level and the Law No. 2 of 2016 (as amended) in Kaduna State is to migrate from the Defined Benefit Pension Scheme to Contributory Pension Scheme to remedy the said hardship. Under the Law No. 2 of 2016, an employee who is entitled to pension and other retirement benefits under any Pension Scheme existing by 31-of December, 2016 (that is the Defined Benefits Pension Scheme) shall be exempted from the Contributory Pension Scheme in the State.

Comversely, any employee who is entitled to pension and other retirement benefits after the 31st of December, 2016 shall be included in the Contributory Pension Scheme in the State. All the Claimants in this suit retired from Kaduna State Public Service variously within the years 2017 to 2021 as stated in Exhibit C attached to the Afidavit in support of the Originating Summons. All the Claimants are entitled to their pensions and other retirement benefits under the Contributory Pension Scheme and not the Defined Benefit Pension Scheme.

Under the Contributory Pension Scheme, each public servant in the State shall open a Retirement Savings Account (RSA) with an accredited Pension Funds Administrator (PFA) of his choice wherein Kaduna State Government (as employer) shall contribute a minimum of 8% of the employees' monthly emoluments as its contributions, and the employees (public servants) shall also contribute a minimum 7% of their monthly emoluments, deductible at source, as their contributions, totaling 15% contribution every month. Kaduna State Government shall also credit the RSAs of the public servants with their accrued rights pension which are the total sum of ther pensions and retirement benefits that had accrued and due to them under the Defined Benefit Pension Scheme before the migration to Contributory Pension Scheme.

The Defendants and Kaduna State Government have complied with the deposition by ensuring that the 15% monthly contributions and accrued rights pension of all the Claimants were paid into their respective RSAs before their retirememt from the State Public Service: hence the reason why they have started drawing their monthly pensions as deposed to in the Affidavit in support of the Originating Summons and as contained in fifth column of Exhibit 'C’ attached thereto. Upon retirement, a pensioner shall meet with his PFA to mutually agree on the mode of payment of his monthly pension based on an agreed withdrawal plan or programme in accordance with the balance in his RSA. The Defendants and Kaduna State Government are not parties to this agreement and are not in a position to know the credit balance standing in the respective RSAs of the pensioners.

The Claimants had met with their respective PFAs to agree on the said mode of payment of their monthly pensions and had agreed on the withdrawal plan based on the respective balances in their RSAs as stated in the fifth column of Exhibit 'C' attached to the Affidavit in support of the Originating Summons. The payment of the Claimants' pension was not done based on Exhibit 'D' attached to the Affidavit in support of the Originating Summons or any circular issued by the Defendants or Kaduna State Government. Also, the payment of the expected pensions and expected gratuities of the Claimants as stated in sixth and seventh columns of Exhibit 'C attached to the Affidavit in support of the 0riginating Summons are not the responsibility of the Defendants or Kaduna State Government under the Contributory Pension Scheme.

The general role of Kaduna State Government under the Contributory Pension Scheme is to regulate, supervise, and ensure the effective administration of pension matters in the State through the Kaduna State Bureau of Pension. The only instance when Kaduna State Government will pay a pensioner the accumulated 15% monthly contribution or accrued right pension directiy to him (through his estate, next-of-kin or heir) is when he dies and has no operational or active RSA with any of the accredited PFAs.

The 6th Claimants herein died on the 12th of April, 2020 after his retirement on 8th of February, 2017 without an RSA. The administrators of his estate applied to the Office of the Head of Service vide a letter dated 6th of April, 2021 (and attached the Letters of Administration) on behalf of his family requesting for the payment of his pension entitlements.

Kaduna State Pension Bureau of Service wrote to the Head of Service a mail dated 5th July, 2021 informing the office that it could not lay its hands on any law that guaranteed the payment of retirement entitlements to a retiree/deceased officer who had no RSA. In view thereof, the State Pension Bureau advised the Head of Service two options: to seek the approval of the Governor to pay the administrators of the estate of the 6th Plaintiff his accrued right pension which stood at N11,001,073.00 (Eleven Million, One Thousand, Seventy-Three Naira) only; or credit the gratuity benefit account of the State Pension Bureau with the said amount so that the Bureau would pay to the administrators of the 6th Claimant as his death benefit in line with the Defined Benefit Pension Scheme.  Vide a mail dated 23rd of February, 2023, the State Pension Bureau wrote to the Governor informing him that the sum of N11,001,073.00 (Eleven Million, One Thousand, Seventy-Three Naira) only had been paid to the family of the 6th Claimant.

ISSUES FOR DETERMINATION

Counsel for the Claimants nominated four issues for the determination of this suit to wit:

1.     WHETHER by a construction of the clear and unambiguous provision of inter-alia the entirety of Section 210 of the 1999 Constitution (as amended) and the provisions of the Kaduna State Pension Reform Law, 2016 the Plaintiffs right to pension being  retired officers in the public service of Kaduna State is not guaranteed and protected.

 

2.     WHETHER the Defendants can validly legislate retrospectively to derogate from the Plaintiffs' vested right to enjoyment of pension in the manner provided upon their retirement from the public service of Kaduna State to their disadvantage without the Concurrence/consent of the Plaintiffs.

 

3.     WHETHER the Kaduna State Government circular duly signed on behalf of the Head of Service of Kaduna State can validly operate in a manner as to stripped the Plaintiffs of their status as retired public servants in the public service of Kaduna State and to now convert them to political office holders upon their retirement from the public service of Kaduna State upon attainment of the mandatory 60 years for retirement, 35 (Thirty Five Years) in service and or 8 (Eight Years) in the rank of permanent secretary.

 

4.     WHETHER the Defendants unilateral reduction of the Plaintiffs' monthly pension is not a violation of the spirit and letter of the provisions of the Section 209 (3) of the 1999 Constitution (as amended) and the Kaduna State Pension Reform Law, 2016.

Counsel for the Defendants nominated a sole issue for the determination of this suit to wit:

Whether, based on the materials placed before this Honourable Court, the Plaintiffs have proven that they are entitled to the reliefs sought in the Originating Summons.

I have carefully gone through the issues submitted for the determination of this suit alongside the facts of this case, I will consolidate the issues and treat them together.

SUBMISSION OF THE CLAIMANTS

Counsel for the Claimants submitted that a proper starting point is to state what is apparent and well established by the affidavit evidence before the court i.e. that the Plaintiffs are retired public servants having retired from the public service of Kaduna State and who are entitled to the payment of 100% of their salary as pension. Issues 1 and 4 herein brings into sharp focus and scrutiny the clear and unambiquous provisions of Section 210 of the 1999 Constitution (as amended). The right to pension in Nigeria now enjoys a pride of place having acquired a constitutional flavor/protection. The provision of Section 210 of the Constitution also reveals that the right to pension cannot be dealt with in a manner that is disadvantageous to the holder of such a right. Our law reports are replete with so many judicial pronouncement of the highest courts in our judicial echelon.  Counsel refer to the Court of Appeal decision in the case of POPOOLA & ORS VS. A. G. KWARA STATE & ORS (2011) LPELR- 3608 (CA)

The fact that the Defendants action in arbitrarily without any lawful justification cutting off part of the Plaintiffs pension amounts for all intents and purposes to withholding the Plaintiffs right to pension. This is evidently so because the right to pension donated by Section 210 of the 1999 Constitution (as amended) is complete and any slightest derogation therefrom amounts to an infraction of the said constitutional provision.

That the only seeming justification for the Defendants action giving rise to this suit can be found within the confines of Exhibit 'D' attached to the affidavit in support to wit:- that the Defendants now consider Heads of Service and Permanent Secretaries as political appointees who are not subject to the retirement age of 60 years or 35 years in service, this was not the case at the time the Plaintiffs retired from/exited the Kaduna State Public Service. This lame attempt vide exhibit 'D' at justifying the actions of the Defendants is untenable in law as shall be demonstrated subsequently hereunder.

Submitted that it is pertinent to state in clear terms that the following are not in dispute from the facts and circumstances of this suit viz: that the Plaintiffs are retired public servants who have retired from the public service of Kaduna State as Permanent Secretaries; the Defendants recently vide Exhibit 'D' which is a circular issued by the Defendants purport to now regard Heads of Service and permanent secretaries as political appointees. Whereas the Plaintiffs exited the service based on the fact that they are public servants i.e. all of them exited the service by reason inter-allia of being 60 years of age, 35 years in service and or Eight (8) years in a given position. Having distilled the foregoing facts which are not in dispute in this suit, the next reasonable question that agitates the mind is whether the Defendants can legislate/act in a retrospective manner by converting the Plaintiffs who retired from the public service of Kaduna State as public servants which entitles them to pension in the first place to political appointees (who by law are not entitled to payment of pension at all.)

The obvious answer to the poser in the foregoing paragraph 5.2 is obviously in the negative primarily because of inter-alia three settle principles of law in our jurisprudence i.e. the rule against retrospective legislation, vested rights and estoppel by conduct. The rights acquired by the Plaintiffs i.e. the payment of 100% of their annual salary payable monthly as pension upon their retirement from the public service is for all intents and purposes a right which has vested in them. These are rights which the Courts guard jealously and frowns at any legislation which attempts to derogate therefrom as if it is a penal legislation.  Cited OJO & ORS VS. THE GOVERNOR OF OYO STATE & ORS (1989) LPELR 2380 (SC).

It is apparently in conformity with the foregoing principles of law that the apex court has held that an employee who has successfully retired from public service cannot subsequently purport to be dismissed from the self same service. Cited WILSON V. A. G., BENDEL STATE (1985) 1 N.W.L.R [PT. 4] Page 572 at page 605 paras. E- F.

Corrollary to all the foregoing is the fact that another formidable principle of law which hydra like stares the Defendants in the face and which it seems most unlikely that the Defendants can surmount is the common law doctrine of ESTOPPEL BY CONDUCT statutorily enacted in Section 151 of the Evidence Act. The apex court had cause in the case of AG. RIVERS STATE V. A. G. AKWA IBOM STATE & ANOR (2011) LPELR -633 (SC) to adumbrate/interpret the said provision of Section 151 Evidence Act,

The Defendants vide Exhibits 'A' and 'B' to the affidavit in Support shows that the Plaintiffs are retired public servants from the Kaduna State Public Service and consequently, the Defendants cannot now vide Exhibit 'D' purport to say that the Plaintiffs are political office holders and not retired public servants.

LEGAL SUBMISSION OF THE DEFENDANTS

The crux of the contention of the Plaintiffs as can be gleaned from the depositions in the Affidavit in support of the Originating Summons is that after their retirement as Permanent Secretaries from the Kaduna State Public Service, the Kaduna State Government has been paying them various amounts as captured in Exhibit C attached to the Affidavit in support of the Originating Summons as their monthly pensions which are less than the purported N550,000.00 and 100% of their monthly salaries representing the gratuities due and payable to them; that this is a violation of their constitutionally vested right as enshrined in section 210 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered/amended); and that Kaduna State Government relied on Exhibit 'D' to justify its action.

The Defendants argued that the Plaintiffs are entitled to enjoy their pensions and other retirement benefits under the Contributory Pension Scheme, not under the Defined Benefit Pension Scheme, as provided under Law No. 2 of 2016 (as amended). It is important to note Law No. 2 of 2016 was enacted pursuant to the provisions of section 210 (1) of the Constitution. That Law No. 2 of 2016 is a derivative of the Constitution; and has not offended any provision thereof whatsoever. By virtue of the amendment to section 8 of Law No. 2 of 2016, any public servant in the State who is entitled to pension and other retirement benefits after the 31st  of December, 2016 shall be migrated from the Defined Benefit Pension Scheme to the Contributory Pension Scheme. And since all the Plaintiffs retired from Kaduna State Public Service variously within the years 2017 to 2021 as stated in the fourth column of Exhibit 'C attached to the Affidavit in support of the Originating Summons, that they are entitled to their rights to pension under the Contributory Pension Scheme and not the Defined Benefit Pension Scheme.

That under the outdated Defined Benefit Pension Scheme, the responsibility to pay public servants (qua employees) their pension and other retirement benefits (including gratuities) when they retired from the Public Service was on Kaduna State Government (qua employer); and under the Contributory Pension Scheme the responsibility is now on the respective PFAs of the public servants. This fact is admitted by the Plaintiffs in Exhibit 'C’ attached to the Affidavit in support of the Originating Summons.

By virtue of the amendment to section 7 of Law No. 2 of 2016, Kaduna State Government is responsible to pay a minimum of 8% of the public servants' monthly emoluments into the RSAs of the public servants as its contribution, and the public servants are also responsible to pay a minimum of 7% of their monthly emoluments, deductible at source, as their contributions, totaling 15% contribution every month. Based on the foregoing submissions, that the contention of the Plaintiffs in paragraph 4.6 of their Written Address that Exhibit 'D' attached to the Affidavit in support of the Originating Summons is the purported justification why Kaduna State Government is paying the Plaintiffs their entitlements less than they constitutionally deserve as stated in fifth, sixth and seventh column of Exhibit 'C is baseless. This is because the Defendants have established from the depositions contained in paragraphs 10 (a) to (v) of the Counter-Affidavit and the provisions of section 7 of Law No. 2 of 2016 (as amended) that the entitlement of the Plaintiffs to their pensions and other retirement benefits is based on the Contributory Pension Scheme and not Exhibit 'D.

COURT’S DECISION

I have carefully considered the processes filed by both Parties in this suit, the gravamen of the claim of the Claimants as contained in the Affidavit in support of the Summons is that the Claimants are retired from the service of the Defendants as permanent secretaries, that upon their retirement from the public service of Kaduna State, the Claimants were served with Notification of Cessation of Appointment and the Kaduna State Government also prepared their record of service which chronicled their journey in the public service of Kaduna State up to retirement, whereupon the Claimants started drawing their drastically reduced monthly pension from their dates of retirement as computed by the Kaduna State Government in flagrant disobedience and disregard of the Constitution and Pension Laws.

Their pensions were drastically reduced by the Kaduna State Government as the said pension was calculated based on their previous cadres as Directors and Deputy Directors before the Claimants attained their respective ranks of Permanent Secretaries at the time of their retirement which act of flagrant disobedience and abuse of the Constitution and Pension Law. Based on the above, their pension was calculated and paid at the sum of N49,319,01 instead of N550,000 monthly and their Gratuity in the sum of N18,000,000 which is 100% of their total emoluments having retired as Permanent Secretary from the Public Service.

That this act of the Defendants was done pursuant to a purported circular issued by the Kaduna State Permanent Secretary (Establishment) on behalf of the Head of Service of Kaduna State to the effect that the Kaduna State Government now considers retired Heads of Service and Permanent Secretaries as political appointees who are not subject to Compulsory retirement at the age of 60 years or completion of 35 years in service and therefore not entitled to draw 100% of their annual salary for life as gratuity.

The Defendants have withheld part of the Claimants' pension. The Claimants herein all retired from the public service of Kaduna state for the reason of attainment of 60 years of age, 35 years in service or for having spent Eight (8) years in the position of Permanent Secretary. That the Defendants have since increased the salary of workers in the Public service of Kaduna State resulting from the increase in minimum wage to N30,000 (Thirty Thousand Naira Only).

It is very glaring from the fact set out here that the Claimants retired as permanent secretaries from the service of the Defendants, the Claimants claim that the retirement benefit ought to be 100% of their total emoluments having retired as Permanent Secretary from the Public Service but they were being paid the sum of N49, 319, 01 instead of N550, 000 monthly and their Gratuity in the sum of N18, 000, 000 which is 100% of their total emoluments having retired as Permanent Secretary from the Public Service. The Claimants stated that the basis of withholding part of their retirement benefit is Exhibit D.

The Defendants vide their Counter-Affidavit stated that the computation and payment of the monthly pensions and other retirement benefits of the Claimants is not the responsibility of the Defendants or Kaduna State Government, but that of their respective Pension Fund Administrators under the Contributory Pension Scheme. It is the responsibility of the respective Pension Funds Administrators of the 11th and 12th Claimants, not the Defendants or Kaduna State Government, to pay them their monthly pensions and other retirement benefits under the Contributory Pension Scheme. The Defendants or Kaduna State Government did not withhold part of the Claimants' pensions whatsoever. The Defendants did not act in any manner whatsoever in total disregard to the Claimants' respective vested rights to their pensions to their disadvantage.

Upon retirement, a pensioner shall meet with his PFA to mutually agree on the mode of payment of his monthly pension based on an agreed withdrawal plan or programme per the balance in his RSA. The Defendants and Kaduna State Government are not parties to this agreement and are not in a position to know the credit balance standing in the respective RSAs of the pensioners. The Claimants had met with their respective PFAs to agree on the said mode of payment of their monthly pensions and had agreed on the withdrawal plan based on the respective balances in their RSAs as stated in the fifth column of Exhibit 'C' attached to the Affidavit in support of the Originating Summons. The payment of the Claimants' pension was not done or based on Exhibit 'D' attached to the Affidavit in support of the Originating Summons or any circular issued by the Defendants or Kaduna State Government.

It is based on the perceived acclaimed withholding of the part of their retirement benefit of the Claimants that ignites this suit for the interpretation of Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). For the avoidance of doubt, may I reproduce the provision of Section 210 of the Constitution:

210.—(1) Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.

                     (2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.

(3) Pensions shall be reviewed every five years or together with any State civil service salary reviews, whichever is earlier.

The provision of Section 210(1) of the Constitution subjects the administration and management of the pension funds and gratuity of the public service of the various states of the Federation to the law to be enacted by the State House of Assembly.  Subsection (2) of the Constitution emphatically states that the retirement benefit of the public servant shall not be withheld to the disadvantage of an employee except to the extent provided under the Law enacted by the State House of Assembly.

Thus, Section 210(1) of the Constitution ushered in the pension law architecture of Kaduna State. The Kaduna State House of Assembly enacted the Pension Reform Law 2007 which came into force on the 25th of May 2007. After that, the Kaduna State House of Assembly enacted the Kaduna State Pension Reform Law 2016 which substituted the Pension Reform Law 2007. Lately, there is a further amendment to the Kaduna State Pension Reform Law 2016 in 2020  which amended some provisions of the Principal Law, that is the Kaduna State Pension Reform Law 2016. The trite principle of law, as it applies to this case, is that the coming into life of the Kaduna State Pension Reform Law 2016 is the final burial rite of the Pension Reform Law 2007. Once a law is validly repealed by an enactment, the repealed law is deemed moribund, dead, and spent: see OGHENEOVO. V. GOV., DELTA STATE (2023) 2 NWLR (PT. 1868) 275.

The necessary implication here is that the Pension Reform Law 2007 having been substituted by the Kaduna State Pension Reform Law 2016 makes it a moribund law and the Court cannot rely on it to determine the claim of the Claimants. The applicable Laws regulating retirement benefits of the public service of Kaduna State are the Kaduna State Pension Reform Law 2016 otherwise known as Principal Law and the Kaduna State Pension Reform (Amendment) Law 2016.

That being said, gleaning from Exhibit C, the Claimants retired from the service of the Defendants between 2017  to 2021. The Provision of Section 15(1) of the Kaduna State Pension Reform Law 2016 otherwise known as Principal Law every employer (inclusive of the Claimants herein) shall maintain an account known as Retirement Savings Account in their names with any Pension Fund Administrator of their choice. As a corollary to Section 15(1) of the Principal Law, Section 7(1) of the Laws, (that is the Principal Law and the Amendment Law) provides for the percentage of the contribution to the Contributory Pension Scheme.

As it can be patently dissected from the questions for determination, reliefs sought by the Claimants and the fact of this case, the complaint of the Claimants does not bother on the percentage of the deduction of the contribution of the Claimants and the Defendants to the Contributory Pension Scheme but the retirement benefit ought to be 100% of their total emoluments having retired as Permanent Secretary from the Public Service. The premise of the chagrin of the Claimants is Exhibit D which reads thus:

DRAFT REVISED CIRCULAR ON REVIEW OF TERMINAL BENEFITS FOR HEADS OF SERVICE, PERMANENT SECRETARIES AND DIRECTOR-GENERAL

Further to Establishments Circular number S/GEN.138/S.30/VOL.I/2 of 11/3/20, ED.1/2020 dated 10th September 1998 on "Review of Terminal Benefits for Heads of Service and Permanent Secretaries" which provided that officers appointed from the Civil Service to the post of Head of Service shall earn 100% of their total annual emolument as pension for life while Permanent Secretaries/Directors-General who have put in minimum of twenty (20) years of pensionable service shall earn 100% of their total annual emolument as pension for life.

2. The Kaduna State Government now recognizes those who hold such offices as Political appointees and are not subjected to compulsory retirement at the age of 60 years or completion of 35 years in service.

3. As a result of the foregoing, the Kaduna State Executive Council has vide its conclusion of Monday 3rd February 2020 approved that all past Heads of Service/Permanent Secretaries/Directors-General pension shall be calculated at their last grade prior to the political appointment as Heads of Service/Permanent Secretaries/Directors-General with effect from 1st March, 2020, please.

Besides the content of Exhibit D which recognizes the appointment of the permanent secretaries/Directors-General as political appointees and that all past Heads of Service/Permanent Secretaries/Directors-General pension shall be calculated at their last grade before the political appointment as Heads of Service/Permanent Secretaries/Directors-General with effect from 1st March 2020; the Claimants’ pension was calculated and paid at the sum of N49,319,01 instead of N550,000 monthly and their Gratuity in the sum of N18,000,000 which is 100% of their total emoluments having retired as Permanent Secretary from the Public Service. The payment of their pension and gratuity of the Claimants is a sequel to Exhibit D.

Having thoroughly read the Principal Law and the Amendment Law, there is no such provision in the Principal Law and the Amendment Law that prescribes that the retirement benefit of the Claimants is 100% of their total emoluments having retired as Permanent Secretary from the Public Service. Even the Claimants, throughout their address, did not refer to any provision of any law upon which the Claimants claim the entitlement to 100% of their total emoluments having retired as Permanent Secretary from the Public Service.

Though, I take cognizance of the memo found in the records of this case, it is dated 10th September 1998 and titled Review of Terminal Benefit for Heads of Service and Permanent Secretaries which states that permanent secretaries/Directors-General who have put in a minimum of twenty (20) years of pensionable service shall earn 100% of the total annual emolument as pension for life.  The snag here is that the said memo was not refer to the Affidavit in Support of the Originating Summons or Further and Better Affidavit that was filed by the Claimants; neither was it annexed by the Defendants in their Counter-Affidavit. The position of law is that documents attached to an affidavit as exhibits form as much part of the affidavit as if they had been annexed to and filed with it. Such exhibits are not attached to an affidavit just for the fun of it; they form part of it. See EZEANOCHIE V. IGWE (2020) 7 NWLR (PT. 1724) 430.

In effect, the Originating Summons must be accompanied by an affidavit in support of the summons. The affidavit must be attached to the exhibits in support of the sworn averments in the affidavit. The affidavit in support is the statement of claim while the exhibits are the relevant pieces of evidence tendered. The counter-affidavit is the statement of defence and the exhibits attached would be the evidence in rebuttal. Therefore, if there is any document upon which a plaintiff intends to rely upon in support of the originating summons, the facts of which have been stated in the supporting affidavit, then the document must be exhibited as it is the proof, the evidence, regarding the depositions in the supporting affidavit, especially where the depositions have been countered. A failure to attach a document in support is a failure to lead evidence in support of a fact that has been controverted: see IKPEAZU V. OGAH (2017) 6 NWLR (Pt. 1562) 439.

Even if the said memo dated 10th of September 1998 was referred to and attached to the affidavits filed by the Claimants, Exhibit D which now treats permanent secretaries/Directors-General as political appointees supersedes the Memo which the Claimant might rely on.

It is therefore the conclusion of this Court that there is no such law or directive from the Defendants that the Court can hold on to grant the reliefs sought by the Claimants. Another issue worthyto note is that Circular is no more than a mere admisnitartive document conveying new policy guidelines by the Federal or State Government. In themselves they have no legal effect whatsoever in so far it was not shown to have been issued under an Order, Act, Law or Statute. See the cases of AMAECHINA & ANOR. V. HON. MINISTER OF EDUCATION & ORS. (2018) LPELR – 51051 (CA), MAIDERIBE V. FRN (2014) 5 NWLR (PT. 1399) 68.

Lest I forget, the Claimant stated that the 11th and 12th Claimants have not even yet been paid any amount whatsoever as pension or gratuity by the Defendants. But the Defendants responded that it is the responsibility of the respective Pension Funds Administrators of the 11th and 12th Claimants, not the Defendants or Kaduna State Government, to pay them their monthly pensions and other retirement benefits under the Contributory Pension Scheme.

I will not dwell on this issue for two reasons, firstly, the Claimants in their Originating Summons did not seek relief for the payment of the retirement benefit of the 11th and 12th Claimants. A court of law has no jurisdiction to grant a relief not asked for by the plaintiff. The court is not a Father Christmas and does not grant what a party does not ask for. Therefore, a party who desires a court to grant him any relief must ask for it. Where a party fails to ask for relief from the court, no matter how sympathetic the situation may be, no relief shall be granted as sympathy has no place in the determination of disputes in the court: see N.E.P.A. V. AUWAL (2011) 5 NWLR (Pt. 1241) 571.

The defence of the Defendants is that it is the responsibility of the Pension Funds Administrators of the 11th and 12th Claimants to pay the 11th and 12th Claimants their monthly pensions and other retirement benefits under the Contributory Pension Scheme. Pension Funds Administrators of the 11th and 12th Claimants are necessary parties to this suit, thus, it will serve no judicial benefit to the 11th and 12th Claimants to determine the payment of their benefit where the Pension Funds Administrators of the 11th and 12th Claimants are not before this Court. Where a necessary party who ought to be joined is not joined in an action, any judgment obtained against such a party is not a nullity but shall be to no avail: see the case of ALIOKE V. OYE (2018) 18 NWLR (PT. 1651) 247

Flowing from the foregoing, the claim of the Claimants fails and it is hereby dismissed accordingly.

I decline to award any cost.

Judgment is hereby entered accordingly.

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

KADUNA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA