WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

THIS 2nd  DAY OF OCTOBER, 2024     

SUIT NO. NICN/LA/180/2023

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA

BETWEEN

MR. OFUNLANA OLADIMEJI – -----------------------------CLAIMANT

AND

PENSIONS ALLIANCE LIMITED –-------------------------- DEFENDANT

PARTIES

LEGAL REPRESENTATION

1.         D. D. Duru Esq. for the Claimant

2.         Precious Aweh with Maris Owobu Miss for the Defendant

JUDGMENT

This action was commenced by a General Form of Complaint dated and filed 23^rd June, 2023, wherein the claimant sought from this court against the defendant the following reliefs;

i.                    The sum of N7,300,075.08 (Seven Million, Three Hundred Thousand, Seventy Five Naira, Eight Kobo) being the outstanding balance in the claimant’s Retirement Savings Account (RSA) No. PEN1000403724033 domiciled with the defendant.

ii.                  Pre-judgment interest on the sum claimed in ‘i’ at the rate of 20% from 1^st October 2021 till the date of judgment and thereafter at the rate of 10% till liquidation.

iii.               N10,000,000.00 (Ten Million Naira) general damages.

However, by the leave of this Honourable Court sought and obtained on 4^th July, 2024, the claimant amended his General Form of Complaint and Statement of Facts dated and filed 11^th July, 2024 wherein the claimant sought from this court against the defendant the following reliefs;

i.                    The sum of N8,608,464.36 (Eight Million, Six Hundred and Eight Thousand, Four Hundred and Sixty-Four Naira and Thirty-Six Kobo) being the outstanding balance in the Claimant’s Retirement Savings Account (RSA) No. PEN1000403724033 domiciled with the defendant.

ii.                  Pre-judgment interest on the sum claimed in ‘i at the rate of 20% from 1^st October 2021 till the date of judgment and thereafter at the rate of 10% till liquidation.

iii.                N10,000,000.00 (Ten Million Naira) general damages.

The defendant did not file an amended statement of defence, but relied on its memorandum of appearance and statement of defence filed already dated and filed 16^th August, 2023.

CASE OF THE CLAIMANT

The claimant averred that he retired from the Private Sector in June 2014 and under the contributory pension scheme domiciled with the defendant with account number PEN100403724033. His last employer was Unity Bank Plc, and upon his retirement from the banking sector, the total balance in the claimant’s Retirement Savings Account (RSA) domiciled with the defendant was N7,054,419.19 (Seven Million, Fifty- Four Thousand, Four Hundred and Nineteen Naira, Nineteen Kobo). The Claimant averred that as a 50 year old retiree, he approached the defendant in December 2015, to apply for his pension and withdrawal benefits and the defendant offered to pay the lump of N1,983,385.53 (One Million, Nine Hundred and Eighty Three Thousand, Three Hundred and Eighty Five Naira, Fifty Three Kobo) representing 25% of the claimant’s total retirement savings.

Upon payment of the 25% lump sum, the claimant entered into a Programmed Withdrawal Agreement with the Defendant.  The claimant averred that the essence of the said agreement, was to enable him utilize the outstanding pension funds with the defendant by way of monthly or quarterly withdrawal of his pension from the pension account domiciled with the defendant. The essence of the said agreement was to enable the claimant utilise his outstanding pension funds from his pension account domiciled with the defendant. Under the agreement, the defendant was to manage the pension funds standing to the credit of the claimant’s Retirement Savings Account (RSA) until termination of the said agreement.

 The Claimant stated that certain amounts were debited from the claimant’s staff current account by Access Bank as pension deductions in 2012, but were never remitted into the Claimant’s account number PEN100403724033 domiciled with the defendant. By an email dated 16^th November 2019, the claimant requested the defendant to collect the said unremitted pension money from Access Bank on the claimant’s behalf. The defendant by an email dated 18^th November 2019, acknowledged receipt and promised to accordingly treat the claimant’s request. The claimant averred that the defendant failed to collect his unremitted pension sum from Access Bank contrary to Regulation 4.14 of the Regulations for the Administration of Retirement and Terminal Benefits and the Programmed Withdrawal Agreement.

It is the contention of the claimant that in Suit No. NICN/ABJ/218/2018 between Maroof Abdul Giwa v. Arm Pension Managers Limited, the National Industrial Court delivered judgment on 18^th May, 2020, to the effect that a retiree above 50 years is entitled to be paid 50% lump sum of his retirement savings. The claimant averred that by his letter of 8^th August 2021, he approached the defendant and applied for payment of N1,815,944.12 (One Million, Eight Hundred and Fifteen Thousand, Nine Hundred and Forty Four Naira, Twelve Kobo) representing 25% of the claimant’s total retirement savings for the payment of his son’s school fee and the defendant by its letter of 17^th August 2021 rejected the claimant’s request.

The claimant averred that in line with the said judgment of this court, the defendant ought to have-remitted an additional 25% lump sum of N1,815,944.12 (One Million, Eight Hundred and Fifteen Thousand, Nine Hundred and Forty Four Naira, Twelve Kobo) to the claimant from the claimant’s pension to make up the 50% lump sum, but the defendant failed to do so. The claimant stated that following the defendant’s failure to collect his unremitted pension fund from Access Bank, failure to credit the claimant’s account with the sum of N1,815,944.12, which caused the claimant’s child not to return to school, and the non-compliance with the judgment of this Honourable court, the claimant terminated the Programmed Withdrawal Agreement by letter dated 20^th August 2021 and demanded that the outstanding balance in his Retirement Savings Account then in the sum of N7,263,776.48 be credited into his Union Bank account.

Contrary to the claimant’s demand, the defendant refused to terminate the Programmed Withdrawal Agreement and failed to transfer the said sum of N7,263, 776. 48 into the claimant’s Union Bank Account. Following the defendant’s failure to retrieve claimant’s unremitted pension fund from Access Bank Plc, the claimant was constrained to engage the Central Bank of Nigeria to intervene in the matter. And by letter dated 6^th July 2022, the Central Bank of Nigeria assured the claimant that it was treating the Claimant’s complaints. The  CBN’s intervention finally bore fruits. Thus, Access Bank Plc vide letter dated December 8, 2022, directed Stanbic IBTC Pensions to remit the claimant’s pension sum of N302,515.92 (along with interest) for the period of February 2012 to April 2012 to the claimant’s Retirement Savings Account domiciled with the defendant. By a letter dated 3^rd January, 2023, the claimant demanded the defendant to transfer the entire sum to be remitted by Stanbic IBTC Pensions into the claimant’s Retirement Savings Account domiciled with the defendant into his Union Bank Account.  By a reply dated 19^th January 2023, the Defendant made it clear that it was not willing to terminate the Programmed Withdrawal Agreement but would continue to hold the Claimant’s money including the expected inflow from Stanbic IBTC Pensions notwithstanding the claimant’s desire to terminate the said Agreement. The total sum of the Claimant’s money in the defendant’s custody as at 29^th May 2024, is N8,608,464.36 (Eight Million, Six Hundred and Eight Thousand, Four Hundred and Sixty-Four Naira Thirty-Six kobo), and that without the intervention of this Honourable Court; the defendant is not willing to give the claimant his money.

CASE OF THE DEFENDANT

The case of the defendant is that in compliance with the Pension Reform Act 2014 and the extant regulations issued by PENCOM, the defendant paid the claimant the approved lump sum of N1,983,383.53 (One Million Nine Hundred and Eighty-Three Thousand, Three Hundred and Eighty Three Naira and Fifty-Three kobo) representing 25% of his Retirement Savings Account (RSA) as demanded by the claimant. The defendant was to administer the benefits in the RSA of the claimant and under a Programmed Withdrawal Scheme for life or termination. The defendant averred that they fulfilled the terms of the Programmed Withdrawal Agreement executed by the Claimant for the administration of the claimant’s retirement benefits by paying monthly and quarterly pension sums to the claimant since December 2016.

The defendant under the Regulations for Administration of Retirement and Terminal Benefits 2022 as amended, issued by PENCOM, requested all outstanding contributions and accrued benefits due to the claimant from his previous employers; Access Bank and Unity Bank Plc. Access Bank responded to the defendant’s letter issued to them that all the pension contributions due to the claimant had been paid to date. The defendant stated that based on the annexed statement of account at the time of correspondence with the Claimant, the defendant was not aware that Access Bank was owing the claimant the sum of N282,348.20 (Two Hundred and Seventy-Two Thousand,Three Hundred and Forty- Eight Naira and Twenty kobo) being outstanding pension contribution as the Claimant’s benefits were remitted by Access Bank Plc to the Claimant’s Retirement Savings Account in 2012.

Defendant averred that as a PFA, they are bound by the provisions and requirements of the Pension Reform Act 2014, and the extant regulations and directives of PENCOM, which mandates the amount and extent of withdrawal from a Retiree Account under a Programmed Withdrawal Scheme with the defendant. The defendant did not reject the claimant’s demand to withdraw the sum of N1,815,944 (One Million Eight Hundred and Fifteen Thousand Nine Hundred and Forty Four Naira) from his Retirement Savings Account. The defendant averred that the claimant requested a withdrawal of 25% of his existing balance in the RSA with the defendant in contravention of the extant PENCOM regulations. The defendant informed the claimant that they are strictly regulated by PENCOM, hence, could not accede to the withdrawal of lump sums from the claimant’s RSA as he was already under a Programmed Withdrawal Scheme.

The defendant stated that they were not parties to the judgement mentioned by the claimant and that it is bound by the provisions and requirements of the Pension Reform Act 2014 and PENCOM directives and regulations. Also, the defendant stated that it did not fail to collect the claimant's unremitted pension as the amounts from Access Bank Plc as the claimant’s RSA statement reflects remittance by Access Bank Plc in January 2012, the defendant was unaware of any further contributions due to the claimant, and that when the claimant informed the defendant about the unremitted contribution from Access Bank, the defendant proceeded to request for the outstanding amount from Stanbic IBTC Pensions Limited. The defendant stated that they did not violate any provision of the Programmed Withdrawal Agreement or any judgment of the Court, and that the alleged unilateral termination of the Programmed Withdrawal Agreement by the claimant was wrongful. The defendant averred that they are not unlawfully holding on to the claimant’s money in his RSA, as the defendant is on a Programmed Withdrawal Agreement to receive monthly/quarterly pension payments as agreed. Furthermore, the PENCOM regulations does not allow for further lump sum payments to the claimant as the balance in the RSA is inadequate to accommodate the claimant’s lump sum payment request, as this is calculated in accordance with PENCOM industry calculator for spread of retirement benefits.

CLAIMANT’S REPLY TO THE DEFENDANT’S STATEMENT OF DEFENCE.

The Claimant stated that contrary to paragraph 5 of the Defendant’s statement of defence, the Defendant was to manage the pension funds standing to the credit of the Claimant’s Retirement Savings Account until termination of the said Agreement. In response to the averments in paragraph 6 of the statement of defence, the Claimant stated that he was initially paid the retirement benefits on quarterly basis, and this was subsequently changed to monthly basis. In response to the averments in paragraph 7 of the statement of defence, and contrary to the Defendant’s claim of compliance with Articles 4.1 and 4.2 of the Programme of Withdrawal Agreement, the claimant stated that the Defendant acted in bad faith as they refused to take any step to act on the Claimant’s email of 16^th November, 2019 which the defendant duly acknowledged on 18^th November, 2019. The claimant averred that he had to approach CBN before Access Bank instructed Stanbic IBTC Pension on 8^th December, 2022 to pay the Claimant his outstanding unremitted pension fund of N302,515.92 along with interest.

It is stated in response to the averments in paragraph 8 of the Statement of Defence, the Defendant refused to act on the Claimant’s email of 16^th November 2019  which was duly acknowledged on the 18th November 2019 by her help desk to collect the outstanding unremitted pension. This is in flagrant disobedience to Article 3 sub section 3.7 of the Programme of Withdrawal Agreement which provides that “the Administrators shall provide a help desk to attend to enquires and/or queries from the retiree”.

In response to the averments in paragraph 9 of the Statement of Defence, the Claimant stated that the Defendant by exhibiting her letter dated 6^th June 2012 to Access bank Plc has confirmed that she has not taken any step to act on the Claimant email of 16^th November 2019 duly acknowledged on the 18^th November 2019 by the Defendant, which requested the Defendant to collect the N282,348.20 outstanding unremitted pension from Access Bank Plc on his behalf. In response to the averments in paragraph 10 of the Statement of Defence, the Claimant stated that the Access bank Plc letter dated December 8, 2022, ten  clear years after the 12^th June 2012 letter is a confirmation that the Defendant acted in bad faith by not taking step to act on the Claimant email of 16^th November 2019 duly acknowledged on the 18^th November 2019 by the Defendant., which requested the Defendant to collect the N282,348.20 outstanding unremitted pension from Access Bank Plc on his behalf. In response to the averments in paragraph 11 of the Statement of Defence, Claimant stated that his email of 16^th November 2019 included the Claimant Access Bank Plc statement of account that confirmed that the Claimant bank account was debited with N141,174.10 Pension Deduction (i.e. 50% contributory pension deduction) by Access Bank Plc on 24^th February 2012 and the Pensions Alliance Retirement savings account statement for the period of January to September 2021 confirmed that the contributory pension of employee (N141,174.10 – (50%) and employer (N141,174.10 – 50%) totalling N282,348.20 has not been credited into the Claimant’s Pension Alliance Retirement savings account. Furthermore, by the letter by Access bank Plc dated December 8,2022, the bank confirmed that the outstanding unremitted pension for the Claimant was N302, 515.92 (along with interest thereon).

It was stated in response to the averments in paragraph 12 of the Statement of Defence, the Judgment in Suit No. NICN/ABJ/218/2018 between Maroof Abdul Giwa v. Arm Pension Managers Limited, delivered by the National Industrial Court interpreted the Provisions of the Pension Reform Act. In response to the averments in paragraph 13 of the Statement of Defence, the Claimant stated that the non payment of N1, 815,944 till date is the evidence of the wanton disregard and disrespect to demand of the Claimant contrary to the decision of this court in Suit No. NlCN/ABJ/218/2018 between Maroof Abdul Giwa v. Arm Pensions Managers Limited. In response to the averments in paragraph 14 of the Statement of Defence, the Claimant stated that the judgment in Suit No. NICN/ABJ/218/2018 between Maroof Abdul Giwa v. Arm Pensions Managers Limited is a judgment in rem and binds the Defendant even when the Defendant is not a party to

the said judgment. In response to the averments in paragraph 15 of the Statement of Defence, the Claimant stated that the Defendant failed to approach and collect Claimant's unremitted pension fund from Access Bank. Also, the  Defendant failed to credit the Claimant's account with the sum of N1,815,944.12, which caused the Claimant's child not to return to school and the Defendant refused to terminate the Programmed Withdrawal Agreement and failed to transfer the outstanding balance in his Retirement Savings Account then in the sum of N7,263,776.48 be credited into his Union Bank account. In response to the averments in paragraph 16 of the Statement of Defence, the Claimant stated that it is the CBN's intervention that made the Access Bank Plc vide the letter dated December 8, 2022 to direct the Stanbic IBTC Pensions to remit the Claimant's outstanding pension sum of N302,515.92 (along with interest) for the period of February 2012 to April 2012 to the Claimant’s Savings Account domiciled with the Defendant and this is yet to be remitted to date, and that he is entitled to the sum of N7,300,075.08 (Seven Million, Three Hundred Thousand, Seventy Five Naira, Eight Kobo) being the outstanding balance in the Claimant’s Retirement Savings Account (RSA) No. PEN1000403724033 domiciled with the Defendant.

It was stated  that in response to the averments in paragraphs 17, 18 and 19 of the Statement of Defence, by a letter dated 3^rd January, 2023, the Claimant demanded the Defendant to transfer the entire sum to be remitted by Stanbic IBTC Pensions into the Claimant’s Retirement Savings Account domiciled with the Defendant into the Claimant’s Union Bank Account. The Claimant stated that the Defendant made it clear that it was not willing to terminate the Programmed Withdrawal Agreement but would continue to hold the Claimant’s money including the expected inflow from Stanbic IBTC Pensions notwithstanding the Claimant’s desire to terminate the said Agreement. In response to the averments in paragraph 19 of the Statement of Defence, the Claimant stated that the Defendant is holding on to the Claimant’s money in his RSA contrary to the decision of this Court in Suit No. NICN/ABJ/218/2018 between Maroof Abdul Giwa v. Arm Pensions Managers Limited. In response to the averments in paragraph 20 of the Statement of Defence, the Claimant stated that the Claimant is entitled to all the reliefs sought against the Defendant.

TRIAL

Trial commenced on 29^th April, 2024 where CW1 while testifying, adopted his witness statement on oath sworn to on 23/6/2023 and further witness statement on oath sworn to on 28/9/2023, and tendered the following documents as exhibits-

1.      Pension Account Statement- Exhibit 1.

2.      Programmed Withdrawal Agreement- Exhibit 2.

3.      Claimant’s email dated 16^th November, 2019- Exhibit 3.

4.      Acknowledgement of receipt dated 18^th November, 2019- Exhibit 4.

5.      Judgment of NICN- Exhibit 5.

6.      Letter dated 8^th August, 2021- Exhibit 6.

7.      Letter dated 17^th August, 2021- Exhibit 7.

8.      Letter dated 20^th August, 2021- Exhibit 8.

9.      Letter from CBN dated 6^th July, 2022- Exhibit 9.

10. Letter from Access Bank dated 8^th December, 2022- Exhibit 10.

11. Claimant’s letter dated 3^rd January, 2023- Exhibit 11.

12. Claimant’s letter dated 15^th September, 2021- Exh. 12

Defendant’s letter dated 19^th January, 2023- Exhibit 13.

CW1 was cross examined by learned counsel for the Defendant and subsequently re-examined. The case of the Claimant was then closed.

The Defendant opened it’s defence on 30^th April, 2024 by calling its sole witness (Kareem Lawal-DW1) who adopted the  written statement on oath sworn to on 23^rd August, 2023 and tendered the following documents as exhibits-

1.      Programmed Withdrawal Agreement- Exhibit 1.

2.      Claimant’s statement of account in RSA- Exhibit 2.

3.      Defendant’s letter to Unity Bank Plc dated 28^th October, 2015- Exhibit 3.

4.      Defendant’s letter to Access Bank Plc dated 6^th June, 2012- Exhibit 4.

5.      Letter from Access Bank Plc dated 12^th June, 2012 to the Defendant- Exhibit5.

6.       Claimant’s statement of account for the period of January 2000 to September 2021- Exhibit 6.

7.      Copy of Article 4 of PENCOM Regulation for the Administration of Retirement and Terminal Benefits- Exhibit 7.

8.      Claimant’s letter dated 8^th August, 2021 to the Defendant- Exhibit 8.

9.      Defendant’s letter dated 17^th August, 2021 to the Claimant- Exhibit 9.

10. Defendant letter to the Claimant dated 17^th September, 2021- Exhibit 10.

11. Defendant’s letter dated 19^th January, 2023 to the Claimant- Exhibit 11.

12. Certificate of compliance- Exhibit 12.

DW1 was cross examined by learned counsel for the claimant, and there was a re-examination. The case of the Defendant was then closed.

DEFENDANT’S FINAL WRITTEN ADDRESS

Defendant filed their final written address dated 21^st May, 2024 wherein Counsel raised a sole issue for determination to wit:

“Having regard to the totality of the facts pleaded and the evidence led by the Claimant in support thereof at the trial of this suit, whether the Claimant’s claim is not liable to be dismissal for lacking merit”.

Counsel submitted that the Claimant’s principal relief is contrary to the provisions of the Pension Reform Act 2014 and attendant regulations promulgated thereunder. The law is settled that the reliefs of a party are ungrantable where such reliefs will violate existing law, and the court is deprived of jurisdiction/powers to entertain same; and must immediately dismiss it. Counsel referred the court to Alamieyeseigha v. Yeiwa (2002) 7 NWLR (Pt. 767) 581, 601-2 where it was held that;

“The relief of mandamus will not lie if the act to be done will fall foul of the provisions of the law or the Constitution. Order of mandamus should be refused once it has become clear that there is an impossibility of its performance. A court must not make an order in any circumstance or circumstances when same will be unenforceable, ineffective, impotent, abortive or impossible to obey."

Counsel submitted that the law is settled that this honourable court, as a creation of statute, and bound by the rule of law, is enjoined to give interpretation to all validly enacted Acts of the National Assembly, and as such, is prevented from granting any relief/claim which operates to violate the Acts of the National Assembly, which has not been repealed or struck down. Counsel referred to the case of Ugwu & Ors. V.  PDP & Ors. (2015) 2 SC. (Pt. II) 60, 87- 88, the Court held that reliefs are the destination of any court proceedings and that no court acts in vain or without purpose. The law is settled that the purpose of all proceedings in court is the relief/prayer sought by the party invoking the court’s jurisdiction. Hence, where a court lacks the jurisdiction/power to grant the reliefs sought, the court is also divested of the jurisdiction to entertain the entire suit.

Counsel further submitted that the Court’s powers can only be invoked in respect of reliefs that are grantable and enforceable. Counsel relied in the case of AG Ogun State v AG Federation (2002) 12 SC (Pt. II) 1, 30, 31. Also, in Yusuf & Ors. V Akindipe & Ors. (2000) 8 NWLR (Pt. 669) 376, 386, the Supreme Court held that where the reliefs sought in a suit are ungrantable, the entire suit must be dismissed.

Learned counsel referred the court to the relevant provisions of the Pension Reform Act 2014 to provide clear guidance on the issues thereof. Section 1(a) of the PRA (2014) on the objectives of the Pension Law provides:

 “To establish a uniform set of rules, regulations and standards for the administration and payment of retirement benefits for the public service of the Federation, Public Service of the Federal Capital Territory, the Public Service of State Governments, and the Public Service of the Local Government Council and private sector.”

Consequently, Section 17 of the PRA 2014 establishes the National Pension Commission (PENCOM), to inter alia enforce the provision of the PRA 2014; as well as co-ordinate, enforce, regulate, supervise, and ensure the effective administration of pension and retirement benefits in Nigeria. See also: Sections 18, and 23 of the PRA 2014. The powers of PENCOM to make regulations for the administration of the PRA 2014 is clearly stated in Section 115 thus:

“(1) The Commission may make regulations, rules or guidelines as it deems necessary or expedient for giving full effect to the provisions of this Act.

 (2) The contravention of any regulation issued pursuant to any of the provisions of this Act shall constitute an offence and shall be punishable as prescribed in the particular regulation.”

On the payment of retirement benefits to contributors, including the Claimant. Counsel referred this Honourable Court, to the provisions of Section 7 of the PRA 2014. Section 7(1)(a)-(b) of the PRA, on the payment of retirement benefits provides:

“7(1) A holder of a retirement savings account shall, upon retirement or attaining the age of 50 years, whichever is later, utilize the amount credited to his retirement savings account for the following benefits :

 a) withdrawal of a lump sum from the total amount credited to his retirement savings account provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by the Commission, from time to time;

b) programmed monthly or quarterly withdrawals calculated on the basis of an expected life span;

Section 7(2) and (3) of the PRA 2014 provides:

(2) Where an employee voluntarily retires, disengages or is disengaged from employment as provided for under section 16 and (5) of this Act, the employee may with the approval of the Commission, withdraw an amount of money not exceeding 25 per cent of the total amount credited to his retirement savings account, provided that such withdrawals shall only be made after four months of such retirement or cessation of employment and the employee does not secure another employment.

(3) Where an employee has accessed the amount standing in his retirement savings account pursuant to subsection (2) of this section, such employee shall subsequently access the balance in the retirement savings account in accordance with subsection (1) of this section.

Learned counsel submitted that as clearly shown in the above reproductions of the PRA 2014, that the payment of retirement pension benefits to all persons including the Claimant, is governed by the provisions of Section 7(3) of the PRA 2014 and with the approval of PENCOM as outlined above. The provision of Section 7 of the PRA is clear and unambiguous. Put simply, on retirement, where a retiree assesses his pension/retirement benefits, and has been paid a lump sum equivalent to 25% of the total amount credited to his RSA during employment, the retiree can only continue to access the funds in his retirement account, under a programmed monthly or quarterly withdrawal payments.

Counsel referred to the case of Access Bank Plc v. Ogboja (2022) 1 NWLR (pt. 1812) 547, 576, the Court held thus;

“By virtue of section 18 of the Interpretation Act, a subsidiary legislation generally has the force of law like the parent statute to the extent of its consistency with same, having derived its authority from the substantive legislation made by Parliament. Thus, a subsidiary legislation, subject to its conformity with the principal law which provides the source of its existence and substance, enjoys the same clout of authority and efficacy as the principal law.”

Furthermore, by the Revised Regulation for the Administration of Retirement and Terminal Benefit 2018 (Exhibit D7), which guides the payment of retirement/pension benefits to individuals, including the Claimant. Regulation 2.2.9. on the requirement of a retiree to execute a programmed withdrawal agreement, in the form provided by the PENCOM states thus:

“A retiree who opts for [programmed withdrawal] PW shall jointly execute PW Agreement with his/her PFA. The specimen format with the terms and conditions of PW Agreement is contained in the attached Appendix 3.”

Where a retiree has agreed to a programme withdrawal, he is required to agree on the frequency of the payment. Regulation 2.2.10 provides thus:

“The retiree shall endorse a Consent Form, which will indicate the agreed lump sum, monthly/quarterly pension (within the approved limits), periodic pension enhancement (if any) with the PFA. The signing of the Consent Form indicates that the retiree has been properly enlightened and consents to the terms of PW.”

Where a retiree has been paid the regulatory approved lump sum and is on a programmed withdrawal. Regulation 2.2.11 provides thus:

“The retiree shall not be allowed to access additional lump sum after the payment of initial lump sum, except where there is additional inflow(s) of funds into the RSA from the employer(s).

It is the submission of counsel that the Claimant’s relief/prayer before this honourable court must fail, as he has prayed this court to compel the Defendant, to pay him additional lump sums, and or liquidate his RSA, in violation of the PRA 2014; particularly as the Claimant has already been paid the regulatory approved initial lump sum in compliance with the PRA and is on a programmed withdrawal. Furthermore, counsel submitted that the Claimant cannot urge the honourable Court to order the Defendant to violate the PRA 2014, which already prescribes how payments of retirement benefits may be accessed and the Claimant is already accessing the same in line with the Act. The grant of the Claimant’s reliefs as prayed, would amount to this honourable court ordering the Defendant to violate the PRA 2014 and do an illegality, which is impossible.

Counsel submitted that it is instructive that the Claimant has not sought to pray this court to strike down the provisions of the PRA 2014, as being unlawful or inconsistent with the Constitution of the Federal Republic of Nigeria (1999) as amended but has rather sought to encourage this court to order the Defendant to violate the PRA 2014, and grant him his claims. Counsel further submitted that where there is no prayer to strike down the PRA 2014, as a law, the Defendant cannot be compelled to do an impossibility or be punished for complying with the law, which expressly prohibits the Claimant from further access to his RSA in the manner that he has prayed.

Learned counsel submitted that the Claimant has not sought any declaratory principal reliefs that are paramount and of importance. Where the principal reliefs are ungrantable, all ancillary reliefs become ungrantable also. Counsel referred the court to Awoniyi v Registered Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, 539; Hemason (Nig.) Ltd v Pedrotech (Nig.) Ltd (1993) 3 NWLR (Pt 283) 548. 554. The law is trite that a court must not grant to a party a relief, or declaration which he has not sought. In the same vein, where a party seeks the indulgence of the court to pronounce on a state of affairs or a legal right, the party must seek declaratory reliefs and show/prove his entitlements to the same. It is therefore in order that where no declaratory order is sought, no injunctive or executory orders can be granted, especially when the injunctive order presupposes declaration of the claimant’s rights. In other words, this honourable court cannot grant an injunctive relief, where no principal declaratory relief is sought. Counsel referred to Noekoer V. Gov., Plateau State (2018) 16 NWLR (Pt. 1646) 481, 501, the court held that an executory/injunctive order orders the defendant to act in a particular way or refrain from interfering with the plaintiff’s right. Counsel also cited Jimoh v. Aleshinloye 11 (2014) 15 NWLR (Pt. 1430) 277, 318, the Court held:

 “An injunctive relief is always adjunct to main reliefs. It cannot stand alone. In the instant case, the trial court was therefore counter-factual in hearing the 1^st respondent’s claim for injunctive relief. Nothing can stand on nothing.”

Learned counsel submitted that in the light of the foregoing, he urged the court to consider the relief as stated in the Claimant’s Statement of Claim. Relief (I) on the Claimant’s Statement of Claim is:

“i. The Sum of 7,300,075.08 being the balance in the Claimant’s Retirement Savings Account (RSA) No.: PEN1000403724033 domiciled with the Defendant.” The Claimant’s Relief (1) is clearly injunctive, as it seeks this honourable court to direct and compel the Defendant to do an act – i.e. pay the sum in the Claimant’s RSA to the Claimant.

Counsel submitted that the Claimant has not sought a declaratory relief as its principal relief. The Claimant has failed to seek any declaratory reliefs to warrant and substantiate the grant of the injunctive/executory relief – Relief (1). The law is trite that a declaratory relief is the backbone on which injunctive reliefs rely. Where there is no declaratory relief, the injunctive reliefs go to nothing. The law is trite that an applicant for an injunctive relief must establish that he has a legal right to which the injunctive order could be invoked to protect. The Claimant’s principal relief presupposes that this honourable court assumes the Claimant’s entitlement to a legal right, without specifically praying or requesting the same by a declaration. The absence of a declaratory relief is fatal. The law is trite that this honourable court will only grant a relief as prayed and will not grant or assume reliefs or declarations where the same is not specifically sought. Counsel referred the court to Bukar v. Bashir (2014) 11 NWLR (Pt. 1417) 68, 93 where the court held: ‘A court of law cannot grant a relief that has not been sought by a party’. Also, in lyen v FRN (2010) 2 NWLR (Pt. 1177) 1, 16, the court held that ‘the power of the court to grant reliefs is strictly circumscribed by the relief sought. There is no power in any court to grant a relief that was not sought’. Similarly, reliefs can only be granted as couched. Indeed, it is the manner of drafting the relief that would determine if such relief is grantable or not.

Counsel submitted that the failure of the Claimant to seek declaratory reliefs on the legal right being sought, dooms every other relief to fail. The lack of declaratory reliefs is fatal to the Claimant’s claims, as this honourable court is handicapped from granting the injunctive order claimed, as the same presupposes a declaration of a right, which has not been sought, and cannot be assumed or presumed. The law is trite that where the principal reliefs sought by a party fail, the ancillary or associated reliefs would also fail, having no foundation. Counsel referred to the case of Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117, 156. In light of the foregoing we submit that the Claimant’s other reliefs, which are predicated on the principal relief, must fail, particularly as counsel has shown that the principal relief cannot be granted.

Learned counsel submitted that the Claimant has failed to discharge the burden of proof that should establish his entitlement to the reliefs claimed. It is clear in this case that the burden of meeting the standard of proof is on the Claimant, who will fail if no evidence at all was led. Counsel relied on Sections 131, 132, 133(1) of the Evidence Act, 2011; Olaiya v Olaiya (2002) 12 NWLR (Pt. 782) 652, 664; and All Progressives Congress (APC) v Independent National Electoral & Ors. (2015) 8 NWLR (Pt. 1462) 531, 586. The law is clear that he who asserts must prove. Adjunct to this, is the trite principle that the Claimant must succeed on the strength of his own case and not on the weakness of the defendant’s case.

Counsel submitted that to succeed in this action, the Claimant has a duty to show the following:

1.      That as a retiree he was not paid the regulatory approved lump sum requested by him in December 2015; and

2.       That lawful refusal of the Defendant to pay him the requested additional lump sum, while he was on a programmed withdrawal was unlawful; and

3.      That the Defendant has violated the terms of the Programmed Withdrawal Agreement by not paying him the monthly and quarterly payments as agreed; and

4.      That he is entitled to lawfully liquidate and access the entire sum in his RSA at once in contravention of the PRA 2014.

Counsel submitted that the Claimant has not led any evidence on any of the foregoing, particularly as the Defendant’s lawful refusal to pay the Claimant the demanded additional lump sum is in compliance with the PRA 2014 and extant regulation. Also, the Defendant has continued to pay the Claimant his monthly and quarterly pension entitlements as agreed (see Exhibit D6). Lastly, the Claimant has not shown or led any evidence that he is entitled to fully liquidate any amount in his RSA, for personal use, in contravention of section 7(3) of the PRA 2014, which expressly states that a retiree may only have access to the balance in his RSA only via a programmed withdrawal and or annuity. Counsel contended that the Claimant is already accessing his retirement benefits vide a programmed withdrawal.

Counsel submitted that it is settled law that even though the burden of proof oscillates between parties in litigation, the burden does not shift until a party on whom the initial onus rests has discharged his responsibility. Counsel referred to Ishola v. Union Bank Ltd (2005) 2 SC. (Pt. I) 80, 91; Buhari & Anor. V Obasanjo & Ors. (2005) SC, Pt.  1, 32. Regardless of the fact that the Claimant has failed to lead any shred of credible evidence in support of his claim, the Defendant led evidence, which is uncontroverted evidence, that shows the following:

1.      That in compliance with the PRA 2014 and extant Regulation, the Defendant lawfully refused the Claimant’s demands for payment of an additional lump sum while he was on programmed withdrawal;

2.      The Defendant informed the Claimant of the regulatory constraint that prevented it from acceding to the Claimant’s demands;

3.       In spite of the Defendant’s communication to the Claimant in (2) above, the Claimant proceeded to institute this action against the Defendant and not the PENCOM or challenge the regulation;

4. The Defendant followed up with all of the Claimant’s previous employers on all of these benefits prior to the Defendant entering the programmed withdrawal agreement.

It is the submission of counsel that in the Claimant’s depositions on oath, the Claimant erroneously alleged that the Defendant failed to follow up with the benefit contributions owed to him by his previous employers suggesting that Access Bank PLC was the Defendant’s final employer. Contrarily, the Claimant’s final employer was Unity Bank PLC where he was disengaged and retired in 2015. He referred to Exhibit D3, which shows that the Defendant’s final employer before entering into a programmed withdrawal is Unity Bank Plc. The Defendant stated that they dutifully followed up with every employer of the Claimant, and received confirmation that all benefits due to the Claimant had been paid to his RSA with the Defendant. Counsel referred the court to the letter from Access Bank to the Defendant in Exhibit D6, which shows that the Defendant received confirmation from Access Bank Plc that all payment had been made in respect of the Claimant’s benefits. Counsel submitted that the Defendant at that point discharged whatever responsibility on it to follow up with any further benefits due to the Claimants, particularly, as this obligation cannot exist in perpetuity.

Learned counsel submitted that in resolving this point, he referred the court to provisions of Regulation 2.3 of (Exhibit D7), which provide guidance on the consolidation requirement of PFA’s prior to a retiree withdrawing from RSA. The provisions of Regulation 2.3 which states;

“2.3.1. A retiree shall only be entitled to access his/her retirement benefits upon consolidation of his/her RSA.”

“2.3.3 In consolidating the components of RSA under this section, the PFA shall take necessary steps to liaise with the employer and other relevant parties, to ensure that all the entitlements of a retiree or deceased person is credited to his/her RSA for the purpose of determining the final balance, before processing of benefits.”

“2.3.7 Where the employer fails to remit the outstanding pension contributions and/or accrued benefits (if any) of a private sector retiree as at the date of retirement, the employer is deemed to be in default.”

It is the submission of counsel that it is clear that the Claimant’s grouse for the non remittance of any pension benefits due to him should be with Access Bank Plc and not the Defendant, who is only a PFA, who took all necessary steps to liaise the Claimant’s employer to secure all benefits due the Claimant.

Learned counsel submitted that the Claimant’s principal relief runs contrary to public interest and social investment safety. It should be noted that the Nigerian Pension scheme is a privately managed social investment scheme, and the rationale for the establishment of the compulsory pension savings, mandatory contributions, as well as measured/restricted withdrawals by retirees, as provided for in the PRA 2014, is a matter of public interest, policy and safety. It should be stated that the Defendant is not a Bank and not guided by the principles of banking, where a customer can make deposit and withdrawals at will. The Defendant is a pension administrator which manages the retirement benefits of the retirees, beyond the Claimant to ensure that consistent payments are made to all retirees irrespective of the amount in their RSA balance at the time of retirement. And as such, the compulsory payments and limited and programmed withdrawals are to preserve the liquidity of the system to ensure that present retirees are paid on time, and also future retirees who have contributed to the scheme are also catered for when they cease to be in employment. Counsel relied in Section 1(d) of the PRA 2014; and the Supreme Court case in Alagbaoso v INEC (2023) 8 NWLR (Pt 1885) 115, 154;

“In Okonkwo v. Okagbue (1994) 9 NWLR(Pt.386) Pg. 301, the Supreme Court defined public policy as the ideals which for the time being prevails in any Community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest. Public policy holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against public good which may be termed as it sometimes has been the policy of law or policy in relation to the administration of law.

CLAIMANT’S FINAL WRITTEN ADDRESS

Claimant filed his final written address on 4^th July, 2024 where he submitted a sole issue for determination;

“Whether the Claimant has by a preponderance of evidence adduced at trial, established his entitlement to the grant of the reliefs sought in this suit”.

Learned counsel submitted in answer that  the Claimant has established his entitlement to the grant of the reliefs sought in this suit as the Claimant has established by credible evidence that the Defendant breached several terms of the Programmed Withdrawal Agreement dated 4/12/1015 compelling the Claimant to terminate the agreement to entitling the Claimant to the balance of N8,608,464.36 left in his pension fund. He submitted that the two outright breaches of the programed withdrawal agreement by the Defendant established by Claimant at the trial were the Defendant’s failure to secure the remittance of unremitted pension deductions made by Access Bank Plc which was discovered in 2019 and the Defendant’s failure to pay to the Claimant the pre-agreed lump sum payment from the Claimant’s pension fund. These two breaches of the Programmed Withdrawal Agreement by the Defendant will be highlighted individually hereunder for ease of reference.

Counsel submitted that the Defendant’s failure to secure the remittance of the Claimant’s unremitted pension deductions by Access Bank Plc, the funds standing to the Credit of the Claimant in his Retirement Savings Account with the Defendant accrued as deductions from the Claimant’s salaries by various employers over the years the Claimant was employed, and upon retirement the Defendant had a duty to ensure that all the deductions made from the Claimant’s salaries until his retirement were duly remitted into his RSA. Under the Programmed Withdrawal Agreement dated 4/12/2015 and admitted as Exhibit 2, the entirety of the contractual relationship of the Claimant and Defendant is clearly defined and the duties of the Defendant are spelt out and it is the duty of the court to determine the rights of parties based on the ordinary construction of the agreement between them. Counsel referred the court to WILLIAMS V.  WILLIAMS (2014) 15 NWLR (Pt. 1430) 213 at Page. 244, paras. A-B, ratio 8, wherein the Court of Appeal held thus:

“Where parties voluntarily enter into an agreement and willingly endorse the said terms, the agreement must be honoured. Courts of law being courts of justice and conscience will certainly not allow anything to be read into an express agreement, terms on which parties were not in agreement.”

Counsel submitted that under the Programmed Withdrawal Agreement (PWA), and the ordinary nature of the relationship between the parties, the Defendant as the Claimant’s pension fund administrator had a duty to ensure that all pension remittances due to the Claimant’s Reserve Savings Account from any third party were duly remitted at all times. The existence of this duty is contained in the PWA and was also established during cross examination of DW1 wherein the said DW1 admitted that the Defendant had a duty to ensure all unremitted deductions due to the Claimant were duly remitted at all times. By the records of the proceedings which is reproduced hereunder for ease of reference:

Q- “Do you agree that as pension manager of the Claimant, you have a duty to acquire all unremitted deductions?”

DW1- “Yes, we have that duty”

Article 111 clause 3.6 of the PWA is also reproduced hereunder for ease of reference:

 3.6- The Administrator shall continue to update the Retiree’s records as may from time to time become necessary.’

Counsel submitted that at trial, the Claimant established that sometime around 2019 it was discovered that some pension deductions made from the Claimant’s salaries prior to his retirement had not been remitted by Access Bank Plc to the Defendant, and in line with the PWA, the Claimant promptly informed the Defendant vide Email dated 16/11/2019. The Claimant’s email dated 15/11/2019 is marked Exhibit 3. The email was received by the Defendant who acknowledged same vide email dated 18/11/2019 admitted as Exhibit 4.

Counsel submitted that the Defence of the Defendant over its failure to retrieve the Claimant’s unremitted pension contributions as at 2019 was that as at 2012, prior to the Claimant’s retirement in 2014, the Defendant wrote to Access Bank Plc vide letter dated 6/6/2012 requesting for the status of the Claimants pension contribution and Access Bank responded vide letter dated 12/6/2012 informing the Defendant that the Defendant’s pension remittances were up to date as at 2012. (The Defendant’s letters dated 6/6/2012 and Access Bank’s response dated 12/6/2012 are marked Exhibits and 5 respectively). Further, at paragraph 11 of its Statement of Defence and Paragraph 12 of its witness statement on oath, the Defendant denied knowledge of the unremitted pension contributions of N282,348.20 due to the Claimant from Access Bank Plc. Paragraph 11 of the Defendant’s statement of defence is reproduced hereunder:

“ Further to (10) above, and based on the annexed Statement of Account, as at the time of the correspondence with the Claimant, the Defendant was not aware that Access Bank plc is owning the Claimant the sum of N282,348.20 being outstanding pension contribution as the Claimant’s benefits were remitted by Access Bank Plc to the Claimant’s retirement savings account in January 2012”.

Under cross-examination however, DW1 admitted that the Defendant was indeed aware of the Claimant’s unremitted pension payments by Access Bank in 2019. The record of proceedings which is reproduced hereunder:

Q- “Do you agree that you received the Claimant’s email dated 16/11/2019 informing you of some unremitted monies by Access Bank?”

 Dw1- “Yes I do”

 Q “Applied for Exhibit 4 (tendered by the Claimant) to be shown to the witness (the Defendant’s acknowledgment email dated 18/11/2019). Is that not confirmation of the Defendant acknowledging receipt of the Claimant’s email that there were unremitted monies?”

DW1- Yes”

Counsel submitted that it was clearly established at trial that the Defendant was aware of the unremitted pension deductions after being notified by the Claimant and that the Defendant failed to take any step towards securing the unremitted pension deductions from Access Bank plc, as was the Defendant’s duty to do, and owing to the failure of the Defendant to perform its obligations under the PWA, the Claimant took it upon himself to recover his unremitted pension deductions, leading the Claimant to write to CBN for intervention; vide letter dated 6/7/2022 and admitted as Exhibit 10, compelling Access Bank’s eventual refund of the pension sum on December 8, 2022 admitted as Exhibit 11. The breach of the Defendant’s duty to ensure remittance of all pension deductions was admitted by DW1 during cross examination and this is contained in the record of proceedings wherein DW1 testified thus:

Q: “Do you have evidence on record to show that since 2019 when you acknowledged receipt of the email that the defendant took any step to attend to any complaint of the Claimant? Please point out any record from 2019 that you attended to the claimant’s complaint”

DW1: No, we do not have any record or evidence from 2019 to date.

 Q: “From these exhibits, is it not true that the claimant has to resolve by himself the complaint he made in 2019?

 DW1: Yes.

Counsel submitted that; a breach of terms of a contract, the innocent party is entitled to rescind or terminate such contact. He referred to the case of KOREA NAT. OIL CORP. V.O.P.S. (NIG.)LTD. (2018) 2 NWLR (Pt. 1604) 394 at pages 444-445, paras. A-D; 461, paras. D-E ratio 12, wherein the Supreme Court held thus:

“Where there is a contractual obligation between the parties, both parties are expected to comply with the terms and conditions of the contract. Where one party defaults in his obligations under the contract, the other party is entitled to terminate the contract.”

Under clauses 7.1.5 and7.1.6 of Article VIl of the Programmed Withdrawal Agreement, Acts of breach include the Defendant’s failure to meet any of its obligations and responsibilities contained under the agreement or any acts of omission capable of undermining the efficient and effective operation of the scheme. Under Clause 12.1 (g) and (h) of Article XIl of the programmed withdrawal agreement, the Claimant is entitled to terminate the agreement should the Defendant breach its obligations under the PWA. Clause 12.1(g) and (h) of Article XIl of the programmed withdrawal agreement is reproduced hereunder:

12.1. The Retiree may by written notice terminate this agreement or suspend performance of all or any of the obligations under it immediately and without liability for compensation or damages if:

 (g) the Administrator breaches its obligation under this Agreement or any agreement supplemental to it, and the breach if capable of being remedied, remains un-remedied for seven (7) days after being to its attention by written notice

 (h) the Administrator fails or ceases to perform the duties under this Agreement

It is the submission of counsel that the Defendant failed to perform its duty to recover the Claimant’s unremitted pension deductions, hence, the programmed withdrawal agreement was rightly terminated by the Claimant under this circumstance.

Learned counsel submitted that the Defendant’s failure to pay to the Claimant lump sum payment from the pension fund. It is the Claimant’s contention that under Clause 3.8 of Article 11 of the programmed withdrawal agreement, the Claimant is entitled to payment of lump sum from his pension fund. Cause 3.8 of Article 11 are reproduced thus:

“The Administrator shall ensure prompt payment of both lump sum and periodic withdrawal from his/her pension fund.”

Counsel submitted that under this sub heading, it is the case of the Claimant that the Defendant failed to pay the lump sum from the pension fund after due demand was made. The Defendant’s defence to this claim is that the Claimant earlier requested 25% lump sum payment of his RSA and was paid the sum of N1,983,385.53. This is contained at paragraph 3 of the Defendant’s statement of defence. It is apposite to state that it was never established anywhere or at all, that the Claimant requested for 25% of his pension fund as lump sum payment. In fact, during cross-examination, DW1 admitted that no evidence of the Claimant making earlier request for lump sum payment was before the court. By the record of proceedings which is reproduced hereunder; it is stated:

Q: “Do you have before this court evidence in writing of the Claimant’s request for lump sum withdrawal prior to the commencement of this case”

 DW1: “No”

 Q: “Do you have- any evidence that the Claimant specifically asked for payment of 25%”

 DW1: “No”

It is the submission of counsel that under Clause 2.1 of Article 11 of the programmed withdrawal agreement, it is mandatory that the request for lump sum withdrawal is made in writing and since no document evidencing same is before the court, it is the Claimant’s submission that any averment to the effect that the Claimant made a request for 25% lump sum payment or there was ever any intention that the sum of N1,983,383.53 paid to the Claimant was to be treated as lump sum payment from the pension fund must be discountenanced. Counsel submitted that the Defendant’s defence runs contrary to the express terms of the Programmed Withdrawal Agreement, the Pension Reform Act 2014 and the National Pension Commission Revised Regulation on the Administration of Retirement and Terminal Benefits, as the Defendant’s contention shows a misconception on the difference between the Claimant’s RSA and Retiree/Pension fund.

Counsel submitted that the Retirement Savings Account of the Claimant is made up of pension deductions remitted from employers whilst the retiree is gainfully employed, while Retiree/Pension fund represents monies from the RSA appropriated towards a pre-agreed withdrawal program. This distinction can be gleaned under Regulation 4.1(a) & (b) of the National Pension Commission Revised Regulation on the Administration of Retirement and Terminal Benefits wherein the programmed withdrawal annuity is deemed to only commence after the amounts in the retiree’s RSA is moved to the Retiree/Pension fund. The Regulation is reproduced hereunder:

 4.1(a) A PFA shall at the point of processing a retirement benefit, ensure that all components of the RSA are consolidated.

 (b) The amount in the retiree’s RSA shall be moved to Retiree Fund.

Counsel submitted that during cross-examination of DW1, it was admitted that the Defendant moved the Claimant’s pension remittances from the RSA to the Retiree fund prior to the commencement of the programmed withdrawal. See the Records of proceedings which is hereunder reproduced:

Q- I want to draw your attention and can you see section 4.1(b) of the regulations?

DW1- The amount in the RSA should be moved with the Retiree fund.

Q- Did the Defendant comply with this regulation?

DW1- Yes we did.

Counsel submitted that the sum of N1,983,383.53 paid the Claimant represented payment from the Claimant’s RSA before being moved to the pension fund and under Clause 3.8 of the Programmed Withdrawal Agreement, the Claimant is entitled to lump sum payment from the Pension fund. Clause 3.8 is reproduced hereunder:

“The Administrator shall ensure prompt payment of both lump sum and periodic withdrawal from his/her pension fund.”

Counsel submitted that from the express wordings of the programmed withdrawal agreement, lump sum payment was to be made to the Claimant upon appropriating the funds from the RSA into the pension fund, and such payment from the pension fund is yet to be made till date. Assuming but not conceding however that the Sum of N1,983,383.53 represented lump sum payments as contemplated under the Programmed withdrawal agreement, it is the submission of counsel that the said sum only represents 25% of the total amount that was in the RSA at the time of payment whereas the Claimant was entitled to 50% of the amount standing to his credit in his RSA at the time the sum was paid to him. Under Regulation 4.1 (e) of the National Pension Commission Revised Regulation on the Administration of Retirement and Terminal Benefits, a retiree is entitled to the entirety of all monies left over after the amount required to provide pension for life is set aside and same is to be given in accordance with the desires of the retiree. Regulation 4.1(e) is reproduced hereunder:

“Where a retiree desires to withdraw a lump sum, the PFA shall first determine the amount required to provide pension or annuity for life. The residual amount in the RSA may be paid as lump sum in accordance with the retiree’s desire”

It is the submission of counsel that upon a combined look at the above regulation alongside Clause 2.1 of the PWA, it can be gleaned the Claimant is entitled to determine the percentage to be paid. In the instant case, it is the Claimant’s contention that he is yet to be paid any amount from the pension fund as lump sum as provided for, however, should the sum of N1,983,383.53 be treated as a lump sum payment, the Claimant has demanded to be given 50% of his outstanding balance as lump sum, and counsel contended that the right of the Claimant to his pension benefit cannot be stifled. Counsel referred to ABDULRAHMAN V. N.N.P.C. (2021) 12 NWLR (Pt. 1791) 405 at pages.421-422, paras. B-B, ratio 6, wherein the Court held thus:

“Section 210(1) and of the Constitution provide that pension or gratuity shall not be withheld under any circumstance. It is inhuman and wicked for a retiree or pensioner to be denied his pension or gratuity when he ought to enjoy same and when he ought to be enjoying the fruit of his labour. The 1999 Constitution vide section 210 is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated.”

Counsel submitted that the only factor upon which the Defendant could have validly limited the lump sum entitlement of the Claimant to 25%, as contemplated under Regulation 4.1(e) of the National Pension Commission Revised Regulation on the Administration of Retirement and Terminal Benefits, is if the Claimant’s RSA balance could not provide 50% of the ATE as monthly/quarterly pension payments at the time of retirement, however, in the instant suit the Defendant unilaterally decided to erroneously pay 25% of the RSA balance as lump sum payment to the Claimant upon its own whims and caprices.

Counsel relied in SUIT NO: NICN/ABJ/218/2018 MAROOF ABDUL GIWA V ARM PENSION MANAGERS [unreported]. In the instant case, the Defendant led no evidence to show it’s basis for calculating the lump sum to be 25% and neither did the Defendant lead any evidence to show that the Claimant at any time requested for lump sum payment of 25% in writing as mandated by the PWA and it is the submission of counsel that the Defendant’s decision to unilaterally limit the Claimant’s lump sum payment to 25% of the RSA balance, assuming but not conceding that the sum of N1,983,383.53 did represent lump sum payment, was wrongful, done in bad faith and a bar to the right of the Claimant to enjoy his pension benefits. Counsel referred to the case of NU METRO RETAIL (NIG.) LTD TRADEX S.R.L & ANR (2017) LPELR-42329 CA wherein the Court of Appeal held thus;

“In law, admission against interest by one party is perhaps one of the best form of evidence in favour of the adversary.”

Learned counsel submitted that the entirety of the argument canvassed by the Defendant in its final written address is in variance to facts established at trial and contains misapplied laws and regulations. In paragraphs 6.1 to 6.1.12 of the Defendant’s Final Written Address, the Defendant argued that the Claimant’s reliefs are un-grantable as it violates the provisions of the Pension Reform Act 2014. According to the Defendant, the claim of the Claimant in this suit is in violation of Sections 7(1) (2) and (3) of the Pension Reform Act 2014 which the Defendant argued restricts lump sum payments to 25% and further restricts a retiree from accessing further lump sum payments after the programmed withdrawal is initiated. In specific response to paragraph 6.1.11, counsel submitted that the prayer of the Claimant in this suit is not for additional lump sum as submitted by the Defendant, but for the remittance of the balance outstanding in the Claimant’s RSA further to the termination of the programmed withdrawal agreement occasioned by the Defendant’s breach of its duties as the Claimant’s pension fund administrator as contained in the said agreement. From the entirety of the Pension Reform Act 2014 and the regulations made further to same, the right of the Claimant to request the entirety of the balance in his RSA sequel to a breach of duty by the Pension und Administrator is not prohibited.

Counsel referred the court to UGO-NGADI V. FRN (2018) 8 NWLR (PT. 1620) 29 AT PAGE. 50, PARAS. B-C, RATIO 11, wherein the Supreme Court held:

“The words of a statute which are unambiguous must be given their ordinary grammatical meaning. It is not the function of the court to import words into the statute which do violence to the intent and meaning of the statutory provision”

Counsel submitted that the Claimant in this suit does not fall under the class of retirees envisaged under section 7(2) of the PRA 2014 cited by the Defendant as its erroneous basis for arguing that the Claimant is only entitled to 25% of the balance in his RSA as lump sum. Section 7 (2) of the Pension Reform Act 2014 provides as follows:

“Where an employee voluntarily retires, disengages or is disengaged from employment as provided for under section 16 (2) and (5) of this Act, the employee may with the approval of the commission, withdraw an amount of money not exceeding 25% of the total amount credited to his retirement savings account, provided that such withdrawals shall only be made after four months of such retirement or cessation of employment and the employee does not secure another employment”

 It is the submission of counsel that the entirety of Section 7(2) of the PRA 2014 applies solely to retirees envisaged under Section 16(2) and (5) of the PRA 2014.Section 16 (2) and (5) of the PRA 2014 is reproduced hereunder:

“Notwithstanding the provisions of subsection (1) of this section, an employee who retires, disengages or is disengaged from employment

 (a) On the advice of a suitably qualified physician or a properly constituted medical board certifying that the employee is no longer physically capable of carrying out the functions of his office;

 (b)Due to total or permanent disability either of the mind or body; or 

(c) Before the age of 50 years in accordance with the terms and conditions of his employment, shall be entitled to make withdrawals in accordance with section 7 of this Act.

(5) Without prejudice to subsection (1) of this section, any employee who disengages or is disengaged from employment before the age of 50 years and is unable to secure another employment within four months of such disengagement may make withdrawal from his Retirement Savings Account in accordance with section 7(2) and (3) of this Act.

It is the contention of counsel that since the Claimant was never disengaged as a result of any medical incapacity or disengaged before the age of 50, the provision of 25% lump sum provided under Section 7(2) of the PRA 2014 cannot apply to the Claimant. Counsel relied in SUIT NO: NICN/ABJ/218/2018; Maroof Abdul Giwa v. Arm Pension Managers, admitted as Exhibit 5 at page 12, 12 and para 14. Counsel submitted that the Defendant never made the retirement age of the Claimant an issue at trial nor led evidence to show that the claimant can be classified under the class or retirees contemplated under section7(2) of the PRA 2014. Therefore, the Defendant’s contention should go to no issue. Furthermore, under Regulation 2.2.11 reproduced by the Defendant in paragraph 6.1.8 of its written address, the Claimant is entitled to more lump sum payment where there is additional inflow of funds in to the RSA, and this has been established that there have been several addition inflows in the Claimant’s RSA in 2022 and 2024 respectively, and the Claimant is entitled to additional lump sum payments. Counsel referred to Regulation 2.2.11 of the National Pension Commission Revised Regulation on the Administration of Retirement and Terminal Benefits which is reproduced below;

“The retiree shall not be allowed to access additional lump sum after the payment of initial lump sum, except where there is additional inflow(s) of funds into the RSA from the employer(s).”

This provision is also contained in Regulation 4.3.1 of the National Pension Commission Revised Regulation on the Administration of Retirement Terminal Benefits wherein it provides thus:

“Retirees on Programmed withdrawal who receive additional remittances into their RSA shall have Benefits reprogrammed as follows:

a.      A PFA shall use the additional Benefits withdrawal template to compute the new pension and lump sum (if any), using the RSA balance of the Retiree after the additional remittance(s).”

It is the submission of counsel that the arguments of the Defendant to the effect that a retiree is prevented by statute and regulations from accessing additional lump sum once programmed withdrawal commences has been rendered redundant by Regulation 2.2.11 and 4.3.1 of the National Pension Commission, Revised Regulation on Administration of Retirement and terminal benefits.

Counsel submitted that in the instant case, the Defendant neither reprogramed the benefits of the Claimant nor even sought to advance additional lump sums to reflect the new remittances in flagrant breach of the PWA, PRA 2014 and PENCOM Regulations. Contrary to paragraph 6.1.10 of the Defendant’s Final Written Address, the Claimant’s grouse with the Defendant is not that he was prevented from accessing additional lump sum, the claim of the Claimant in this suit is that the Defendant breached several express terms of the Programmed Withdrawal Agreement by failing in several of its duties and did not act in the best interest of the Claimant as the Defendant is statutorily and contractually obligated to do and as highlighted in paragraphs 3.1 to 3.37 of this final written address.

Counsel submitted that in paragraphs 6.2.1 to 6.2.6 the Defendant erroneously argued that the reliefs of the Claimant are injunctive reliefs, and since there is no declaratory relief, the reliefs sought by the Claimant cannot be granted. It is the contention of counsel that the arguments by the Defendant is misconceived and flawed ab initio as the 1^st relief claimed by the Claimant in his Complaint and Statement of fact in this suit is not an injunctive relief but is a liquidated money demand, and as such, accords with the form of the monetary claim to be sought from this Court and as stipulated under the rules of court, and  that declaratory reliefs are not required when the claim is for a liquidated money demand. This position is codified under Order 3 Rule 12 of the National Industrial Court (civil Procedure) Rules 2017which is reproduced hereunder:

Rule12 (1) Where a party files an originating process arising from or connected with payment or non-payment of any monetary claim or salary, allowances, pensions, gratuity or benefit arising from any employment, the party shall clearly state in the statement of claim

(a) the source of the claim;

(b) the amount being claimed or owed;

(c) when the amount for payment became due;

(d) when the demand(s) for payment was or were made;

(e) how the demand(s) for payment was or were made; and

(f) the response, if any, of the defendant to the demand(s) for payment being made.

Counsel submitted that a cursory look at the Amended Complaint and Statement of Fact filed by the Claimant shows that the Claimant complied with the requirement of the Order 3 Rule 12(1) (a)-(f) of the Rules of this Court, which does not require the Claimant in claims of this nature to seek declaratory reliefs from this Honourable Court. The Clear intention of the framers of the Rules of this Court is shown, when Order 3 Rule 12(1) of the NICN Rules 2017, which relates to liquidated money demand is juxtaposed with Order 3 Rule 16 of the National Industrial Court (Civil Procedure) Rules 2017, which provides for claims arising for construction of the Court in relation to enactment, constitution, agreement or other written instruments, should contain declaratory reliefs provided the Court is clothed with Jurisdiction in the matter.

ORDER 3 RULE 16 OF THE NATIONAL INDUSTRIAL COURT (CIVIL PROCEDURE) RULES 2017 provides thus:

 16.(1) Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may by originating summons apply to the Court for the determination – of. Any question of construction arising from the instrument and for a declaration of the rights of the person(s) interested, in so far as such question of construction arises from a subject matter over which the Court has Jurisdiction.

It is the submission of counsel that a combined reading of the two provisions of the Rules of this Court, clearly imply that the framers of the Rules of this Court do not intend that a litigator, who is claiming for monetary reliefs in relation to pension of a retiree, as in the instant case, seek declaratory reliefs before the principal relief is sought. Furthermore, it is contended that there will be no order in judicial process where the Rules governing the process are not obeyed, or where parties are free, for example, to seek reliefs from a court as they wish, and in their own style without any regard to the Rules providing for the procedure which a relief could be sought in the court.

Learned counsel submitted that the requirement for the Claimant to not seek declaratory relief(s) in monetary claims arising from pensions, as contained in Order 3 Rules 12(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 is not a discretionary provision of the Rules but a mandatory provision as the word ‘shall’ is used in that provision. He referred to the Supreme Court case in UGWUANYI-V-NICON INSURANCE PLC (2013)11 NWLR (PT.1366) P.582 held thus:

 “The use of “shall” in the provisions of section 26(2) of the National Insurance Corporation of Nigeria Act shows that it is Compulsory and imperative that a plaintiff must serve a pre-action notice before commencing any suit against the corporation.”

Counsel therefore urged this court to discountenance the submissions of the Defendant as contained in Paragraphs 6.2.1-6.3.2 of its Written Address, as being completely misconceived. Counsel also submitted  that a claim for a liquidated sum need not be made via a declaratory relief because where the liquidated claim is admitted, the court is bound to give judgment on admission in favour of the Claimant. However, if the liquidated claim is made by a declaratory relief, the court cannot enter judgment without first going through a plenary trial even if the Defendant admits the liquidated money claim.

Counsel submitted that in paragraphs 6.3.1 to 6.3.7of the Defendant’s Final Written Address, the Defendant argued that the Claimant failed to discharge the burden of proof to establish its case and did not lead any credible evidence at trial. The Defendant further submitted in paragraphs 6.3.5 to 6.3.7 that the Defendant did not owe a duty to the Claimant to ensure that his pension remittances were up to date at all times. It is the contention of counsel that the arguments of the Defendant in the above paragraphs are completely misconceived. It is the submission of counsel that the duty of the Defendant to ensure that all the pension remittances of the Claimant were updated at all times was admitted by DW1 during cross-examination and such admission must be treated as settled fact. He referred to NU METRO RETAL (NIGLIP TRADEX S.R.L & ANR (2017) LPELR-42329 (CA), wherein the Court of Appeal, held thus;

“...In law admission against interest by one party is perhaps one of the best form of evidence in favour of the adversary.”

In the instant suit, counsel submitted that the attempt by counsel to the Defendant to lead evidence contrary to what has already been established must be discountenanced as the final written address can never take the place of evidence. He relied in the case of TIMOTHY .V. THE PEOPLE OF LAGOS STATE (2021) 11 NWLR (Pt. 1787) 251 at page 272, paras. F-G, ratio 16, wherein the Supreme Court held thus:

“Counsel cannot, in the guise of final address, give evidence from either the Bar or in the final written address. In any case, a bare statement from the Bar has no force of evidence.”

Counsel submitted that contrary to the argument made by the Defendant in paragraph 6.3.5 to the effect that the responsibility the Defendant owes the Claimant cannot exist in perpetuity, it is the  submission of counsel that the obligations owed the Claimant by the Defendant is deemed to continue for as long as the contractual relationship between the parties exist, and at the time the unremitted sums from Access Bank Plc was discovered in 2019, the contractual relationship between the Claimant and Defendant was still subsisting. Furthermore, by Exhibit 4, the Defendant acknowledged the instruction of the Claimant contained in Exhibit 3 wherein the Claimant directed the Defendant to collect the unremitted pension sums on his behalf, and the Defendant confirmed its commitment to effect the Claimant’s instruction. Counsel submitted that such admission is binding on the Defendant, as the duty contained in the said correspondence was never disputed by the Defendant. Counsel referred to VASWANI V. JOHNSON (2000) 11 NWLR (PT. 679) 582AT PAGES 588-589, PARAS.H-D RATIO 3, wherein the Court of Appeal held thus:

“In business and mercantile transactions where in the ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means to dispute the facts that he did not agree. Where there is silence in circumstances in which a reply is obviously expected an irrebutable presumption of admission by conduct or representation is raised. In the instant case, the appellants having failed to deny the contents of Exhibit “CACJ1” and “CACJ2”, which were letters reflecting the agreement between the parties, must be deemed to have admitted the contents”

 Counsel reiterate the arguments made by the Claimant in paragraphs 3.1 to 3.37 of this written address and submitted that the Claimant led credible and substantial evidence to show that:

i.                    The Defendant owed the Claimant a duty to follow up on all unremitted pension deductions.

ii.                 The Defendant was informed of unremitted pension deductions from Access Bank Plc in 2019 and was instructed by the Claimant to collect same. (Exhibit 3)

iii.               The Defendant acknowledged this instruction and failed to take any steps to ensure the remittance. (Exhibit 4 and admission contained in page 8 of records of proceedings)

 iv. The Programmed Withdrawal Agreement signed between the Claimant and Defendant stipulated the Claimant’s entitlement to lump sum from the Claimant’s pension fund and not the RSA. (Clause 3.8 of Exhibit 2)

v. Even if the monies advance the Claimant from the RSA were to be treated as lump sum, the Claimant is entitled to 50% of same and not 25% as unilaterally decided by the Defendant. (Exhibit 5)

It is the submission of counsel that the Claimant duly led credible evidence to establish all its claims against the Defendant and it is the Defendant who relied on loose interpretations of extant laws and regulations to avoid liability for its breach of duty to the Claimant as his Pension Fund Administrator.

Counsel further submitted that in paragraphs 6.4.1 to 6.4.3 the Defendant argued that the relief of the Claimant runs contrary to public interest and social investment safety. Counsel submitted that contrary to the submissions of the Defendant, it is the refusal of the reliefs of the Claimant that will run contrary to public interest and social investment safety. The operation of a pension account must be done in the best interest of the retiree above all other considerations. In the instant case, the Claimant had to personally retrieve his unremitted pension deductions after several years of following up with the CBN due to the failure of the Defendant to carry out its duties. Further still, the Defendant’s denial of the express term of the programmed withdrawal agreement prepared by the Defendant itself which stipulates that the Claimant is to be paid lump sum from the pension fund, is either tantamount to the Defendant misleading the Claimant abinitio regarding the payments that were due him upon execution of the PWA or the Defendant out rightly refused to comply with same. Counsel submitted that this court must not aid the Defendant in its illegality or breach of contract. He relied in the case of SHERIFF V DPP(2017) 14 NWLR (Pt. 1585) 212 at page. 310, paras. D-F, ratio 4, the Court of Appeal held that:

“illegality once brought to the attention of the court overrides all other questions and the court will not close its eye against such illegality, neither will the court lend its aid to the perpetrators of any illegality.”

 It is the submission of counsel that the case of the Claimant is one which borders on a long overdue tendency of institutions like the Defendant to overlook contractual and statutory responsibility owed pensioners who are perceived as lacking in funds and capacity to seek redress and it is our submission that entering Judgment in favour of the Claimant will ensure that all Pension Fund Administrators take positive steps towards ensuring their duties to retirees are executed with utmost good faith.

DEFENDANT’S REPLY ON POINTS OF LAW

Defendant filed its reply on points of law on 12^th July, 2024, wherein Counsel submitted that on the alleged failure to secure the Claimant’s unremitted pension deduction, counsel contended that the Claimant in paras 3.5 to 3.19 of his written address totally misapplied the law, Pension Reform Act 2014, aw well as the Revised Regulation on the Administration of Retirement benefits (2018), on the non remittance of the Claimant’s employment benefits by the Claimant’s previous employer s into the Claimant’s Retirement Savings Account held with the Defendant, thereby wrongly asserting that the Defendant breached it’s duty to the Claimant under the Programmed withdrawal agreement in respect of the benefits not remitted by the Claimant’s previous employers.

Learned counsel submitted that in making this point, the provision of paragraph 2.3.7 of the Revised Regulation on the Administration of Retirement Benefits (2018) which provides as follows:

“Where the outstanding pension contributions and/or accrued benefits (if any) of a private sector employer fails to remit the retiree as at the date of retirement, the employer is deemed to be in default.”

Counsel contended that the provision of the law is clear. The liability (if any) for the failure to remit the Claimant’s employment benefits lies with the Claimant’s employers and not the Defendant. Counsel submitted that the Claimant cannot unilaterally impose onerous duty beyond what is provided for by the law i.e. – Pension Reform Act 2014 and extant regulations; and PWA on the Defendant. The object of the PWA is to contractually define the terms under which the Defendant would pay the Claimant his defined pension benefit monthly of quarterly – which the Defendant complied with and the Claimant admitted that he received his benefits regularly. The PWA was not to create liability for the Claimant’s perceived and manufactured failure to follow up with the Claimant’s ex-employers for his employment benefits. What the Claimant has done is to import new obligations into the PWA, which was not the intention or object of the parties. Hence, urged the court not to give credence to such importations.

Counsel also submitted that the Claimant has not shown anywhere in its pleadings or arguments where the PWA specifically obligates the Defendant to follow-up with outstanding contributions unremitted by the Claimant’s previous employers prior to retirement, and where such alleged failure is a breach of the PWA, so as to warrant the grant of the claimant’s reliefs before this court. The law is settled that this honourable court will give the exact meaning to words used in an agreement, and will not rewrite the agreement of parties to accommodate a relief sought. Counsel referred to Ogwuche v. B.S. C.S.C. (2014) 7 NWLR (Pt. 1406) 374, 391; Desemyof (Nig.) Ltd. V. Kwara State Govt. (2019) 6 NWLR (Pt. 1667) 97, 106. On the construction of words used in a contract, the law is trite that the primary duty of this court in construing contractual agreement is to interpret the contract entered into between parties in the light of their clear intention as conveyed in the agreement. The court is not to re-write, draft or make out a different agreement or meaning for the parties. Counsel referred to U.E.S. Ltd. Vs R M A.& F. C. (2022) 10 NWLR (P. 1837) 133, 165.

Learned counsel submitted that the Claimant in paragraph (3.9) of his arguments, has sought to unduly expand the generic/mundane provisions of Clause 3.6 of the PWA, which state that the “Administrator shall continue to update the Retiree’s records as may from time to time become necessary” beyond its contemplated meaning in order to accommodate its reliefs. The provisions of Clause 3.9, by its ordinary meaning relate to the records of the Claimant with the Defendant including names, addresses, email addresses, next of kin, etc. Importantly, it should be noted that the PWA is not an agreement unique to the Claimant but a statutory form mandated by the PENCOM to all Pension Fund Administrators to issue to Retirees.

Counsel submitted that it is not the contemplation of the drafter that Clause 3.9 of the PWA that the Defendant incur any liability or a duty be imposed on the Defendant to secure all unremitted benefits due to the Claimant, particularly as the funds in the RSA have been consolidated for payment and paragraph 2.3.7 above of the Revised Regulation on the Administration of Retirement Benefits (2018) remove all liabilities from the Defendant in respect of the Claimant’s allegations. Further to paragraphs (2.13) – (2.16) above, paragraph 2.3.1 of the Revised Regulation on the Administration of Retirement Benefits (2018) provides that the a PFA can only process the payment of pension benefits from an RSA account, including the Claimant’s, only after the RSA account has been consolidated. A combined reading of paragraph 2.3 reveals that consolidation of the RSA involves -:

(I.) Liaising with the employers of the Retiree on outstanding benefits,

(11.) determining accrued pension rights and voluntary contributions.

Learned counsel submitted that from the records of this honourable court, the Defendant has exhibited evidence of its letter to Access Bank dated 6 June 2012 (Exhibit D4), wherein the Defendant requested confirmation of any unremitted pension benefits due to the Claimant, and Access Bank Letter dated 12^th June, 2012 (Exhibit D5) confirming to the Defendant that all contributions due to the Claimant was up to-date. Also, prior to consolidating the Claimant’s RSA on his request to access same and enter into a Programmed Withdrawal Scheme, the Defendant sought confirmation from Unity Bank Plc (Exhibit D3) that all benefits due to the Claimant had been paid. Counsel submitted that where there are any outstanding contributions discovered in 2019 or whenever, due to the Claimant, the Claimant can only ventilate such grievance with his ex- employers. Hence, the claim cannot stand, and the reliefs cannot be granted.

Counsel submitted that without prejudice to Paragraphs (2.1.1) – (2.1.9) above, Exhibit D11 – the Defendant’s letter dated 19^th January, 2023 to the Claimant, clearly reveals that the Defendant informed the Claimant that it had yet to receive the funds transferred mistakenly by the Claimant’s ex-employer -Access Bank Plc, to Stanbic IBTC as opposed to the Defendant. The Defendant further informed the Claimant that the expected inflow of N282,200 cannot sufficiently provide for the Claimant to secure a lump sum, but a pension enhancement. The law is settled that documents tendered at trial speak for themselves and no adumbration of counsel would change or alter the content of the documents as tendered. Counsel referred to Ogundepo v Olumesan (2011) 18 NWLR (pt.1278) 54, 69; Adetoro v. UBN Plc (2008) 13 NWLR (Pt. 1104) 255, 277; and urged the court to so hold and discountenance the unfounded authorities cited by the Claimant.

Learned counsel submitted that on the alleged failure to pay the Claimant an additional lump sum, the Claimant in his arguments contained in paragraphs (3.20) – (3.30) of his Written Address has shown a complete misunderstanding and misapplication of the Pension Reform Act 2014 and the Revised Regulation on the Administration of Retirement Benefits (2018). The Claimant has argued that there is a difference between Pension fund, Retirement Savings Account, and Retiree Fund. Counsel submitted that this is absolutely wrong and a misdirection. The Retirement Savings Account is the pension (PEN) account opened for an employee such as the Claimant with a Pension Fund Administrator, where his pension contributions are paid. Counsel referred to the Definition of Terms – RSA, paragraph 1.3 Revised Regulation on the Administration of Retirement Benefits (2018). The RSA is oftentimes interchangeably referred to as a pension account. The Pension Fund, is the totality of funds and assets under management by a Pension Fund Administrator or Custodian. This includes funds not limited to any single contributor or RSA Holder – this has nothing to do with the Claimant’s reliefs. Lastly, the Retiree Fund is a special class of low-risk investment class fund comprising of safe and fixed income securities, which can be easily liquidated to ensure prompt payment of retirement benefits to retirees. The object of the Retiree Fund is not to co-mingle the pension funds of impending retirees with active contributors still in employment. It is not a separate or different kind of account that warrants the Claimant to a lump sum as argued by the Claimant in paras (3.23) and (3.26) of his Final Written Address. Counsel referred to the National Pension Commission Framework and Implementation Guideline for RSA Retiree Fund made on 1 January 2019. (attached for ease of reference), which provides guidance on what the Retiree Fund is, and how it is of relevance to the pension industry.

 Hence, the provision of paragraph 4.1(a) of the Revised Regulation on the Administration of Retirement Benefits (2018), which provides for the transfer of funds from the RSA account to the Retiree Fund is an instruction to the PFA not to comingle the investment of funds for retirees under a PWA as such any investment made, must be quickly liquidated to meet the demand of payment of programmed withdrawal amounts.

Counsel therefore submitted that the Claimant’s arguments in paragraph (3.29) of his Final Written Address, that he is entitled to a further lump sum from his ‘pension fund’, despite admitting to receiving 25% lump sum form his RSA on execution of his Programmed Withdrawal Agreement, is flawed and should be discountenanced by this court, as there is no such differentiation between a Pension Fund and Retirement Savings Account to warrant an additional lump sum.

Counsel submitted that the Claimant relied on the case of Abdulrabman v NNPC (2021) 12 NWLR (P. 1791) 405, 421 – 422, stating that the withholding of pension is unconstitutional, while misapplying the statement of the learned justices in the excerpt reproduced herein. Counsel submitted that Abdulrahman’s case is an employment dispute wherein the claimant took an originating summons to compel his ex-employers to pay his outstanding benefits, which include pension and medical benefits. The excerpt reproduced, is inapplicable as the Claimant has sought to cite it without the necessary facts and context. Counsel referred the court to P.D.P. v. I.N.E.C (2018) 12 NWLR (Pt. 1634) 533, 550 where the Supreme Court held:

“A case is authority for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper context. The whole purpose of citing a case for the law on it to be known” Counsel urged the Court to discountenance with  authorities relied on by the Claimant as they are inapplicable.

 Learned counsel submitted that the decision in Suit No:NICN/ABI/218/2008 – MAROOF ABDUL GIWA V ARM PENSIONS MANAGER cannot hold water, as the facts of the Maroof Abdul Giwa decision were made on a set of different facts than are being considered in this case. Counsel re-iterate the authorities that a case is only an authority for what it decides. He relied on Dongtoe v. CS.C Plateau State (2001) 9 NWLR (pt. 717) 132, 155. A cursory reading of the ratio in Maroof Abdul Giwa decision reveals the following distinctions:

i. The claimant in the Maroof Abdul Giwa decision voluntarily retired, and prior to entering a programmed withdrawal agreement with his PFA, applied to withdraw a lump sum of at least 50% from his Retirement Savings Account, as the amount in his RSA was sufficient to pay him at least 50% of his final salary in accordance with paragraph. 4.1.(d) & (e) of the Revised Regulation on the Administration of Retirement Benefits (2018).

ii. Unlike the Claimant in this suit, Maroof Abdul Giwa, had not assessed his pension funds, nor had he been paid any amount from his RSA prior to instituting the action. The claimant in Maroof Abdul Giwa was not requesting for payment of additional lump sum.

iii. The Claimant argued, and the court agreed that the Claimant’s balance in his RSA was sufficient to pay him at least 50% as a lump sum, and the balance paid under a programmed withdrawal scheme. Hence, the court order that he be paid 50% of his RSA balance and the balance be distributed under a programmed withdrawal or annuity for life in accordance with section 7(3) of the PRA 2014.

iv. The Claimant in this suit, is seeking to terminate his Programmed Withdrawal Agreement after receiving the regulatory approved lump sum and being paid the monthly/quarterly payments by his PEA.

Counsel submitted that from the foregoing, it is clear that the Maroof Abdul Giwa case relied upon by the Claimant in this suit, must be discountenanced, as there is no stare decisis that can be followed. Counsel referred to the Supreme Court in Aliyu v. Namadi (2025) O NWLR (Pt. 1885) 161, 207 held:

 “A Case is only an authority for what it decides and nothing more. Where the facts of the earlier case differ from the facts of the latter case, the decision in the former cannot serve as precedent in the latter case. [See also Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt.109) 250];”

Counsel urged the court to discountenance the authorities sought to be relied on, as they are inapplicable.

Learned counsel submitted that in paragraphs (4.6) – (4.10) of the Claimant’s Final Address, the Claimant argued that his claims do not fall under section 7(2) of the PRA 2014, as same only applies to retirees who were disengaged on medical grounds or were disengaged prior to the age of 50. It is the submission of counsel that they have not argued that the Claimant’s reliefs are a violation of section 7(2) but rather that the Claimant has assessed/utilized the funds in his RSA in accordance with section 7(1) PRA 2014 and as such executed a programmed withdrawal agreement in line with Section 7(1) (b) of the PRA 2014. The law is clear and unimpeachable, that a retiree who has assessed his Retirement Savings Account and is paid a lump sum, can only continue to assess same under a Programmed Withdrawal scheme, or life insurance annuity. See: Section 7(3) of the PRA 2014, The Claimant opted for a programmed withdrawal, and the Defendant has continued to promptly pay the Claimant the monthly payments, and urged the court to discountenance the arguments in paragraphs (4.5) – (4.10), as they are misguided. Lastly, the Claimant has not proved his case and as such is not entitled to the relief sought. The law is that a claimant must prove his claim extensively, and may not rely on the failures of the defendant (if any). The Claimant has not placed sufficient evidence to tilt the scales in his favour.

DECISION OF THE COURT

 Having carefully read through all the processes filed, the evidence of the witnesses alongside the Exhibits tendered by both side and listened to the arguments of both parties on the basis of the issues raised by each, to my mind, I am of the view that the two issues raised by the parties are germane and I adopt the sole issue of the claimant in determining this suit to wit:

“Whether the Claimant has by a preponderance of evidence adduced at the trial, established his entitlement to the grant of the reliefs sought in this suit.”

In determining this issue, Let me state that the issue before the court as arising from the questions formulated by the Claimant which I adopt in determining this suit, is simply to see whether by the letter dated 20^th August, 2021, the claimant terminated the Programmed Withdrawal Agreement. Following the termination, the Claimant demanded the Defendant to transfer the sum of N7,263,776.48 being the balance in the Claimant’s RSA to the Claimant’s Union Bank Account. However to the Claimant’s demand, the Defendant did not terminate the Programmed Withdrawal Agreement and stated that the Claimant had utilized the funds in his RSA in accordance with Section 7(1) of the Pension Reform Act and as such executed a programmed withdrawal agreement in line with Section 7(1)(b) of the Pension Reform Act 2014.

It is very clear from the reliefs sought by the Claimant that the claim is for liquidated demand which in a nutshell is not  declaratory upon a closer look at.

Arriving at a decision will require the interpretation of section 7 (1) of the Pension Reforms Act, 2014 as posited by the Claimant I must state quickly at this juncture without hesitation that the decision of the Court in the case of MAROOOF ABDUL v. ARM PENSION MANAGERS (PEA) LTD & ANOR, Suit No.: NICN/ABJ/218/2018 delivered on 18^th May, 2020 is a decision of a coordinate court of jurisdiction which though on similar matter, has no binding effect on this court in deciding the case at hand, but of mere persuasive given that the said decision is dependent on its peculiar facts. This in clear terms means that this court can chart its own course in deciding the instant suit.

In exemplifying that decisions of coordinate courts do not bind another coordinate court, the court in the case of ARUGU & ORS v. RIVERS STATE INDEPENDENT ETECTORAL COMMISSION & ORS (2010) LPELR-9086(CA) posited that:

“Suit Numbers PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 are judgments of a High Court which has co-ordinate jurisdiction with the court below in the appeal. It is trite law these decisions are of persuasive authority to the court below. See OBEYA V. SOWADE (1969) NNLR 17; 1969 (1) NMLR 112; see also POLICE AUTHORITY FOR HUDDERS FIELD v. WATSON (1947) KB 842 at 848. If the learned trial Judge agrees with the decisions in the judgments he is right to follow them. On the other hand, if he disagrees with the said decisions, he also would be right to arrive at a different decision. "per AWOTOYE, JCA. (P. 40, paras. B-G).

Much as said above, let me start to consider the questions before the court by evaluating the provision of the law in question which is section 7(1) of the Pension Reforms Act, 2014 which provides thus:

A holder of a retirement savings account shall, upon retirement or attaining the age of 50years, whichever is later, utilize the amount credited to his retirement savings account for the following benefits:

(a)   Withdrawal of a lump sum from the total amount credited to his retirement savings account provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by the Commission, from time to time;

(b)   Programmed monthly or quarterly withdrawals calculated on the basis of an expected lifespan;

Bearing the foregoing provision in mind, it is instructive to note that in the interpretation of statutes, the starting point is to apply the literal rule of interpretation which requires giving ordinary meaning to words used in statutes. In this regard, the court in the case of G.C.M. Ltd. V. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507 held that:

“The literal rule of statutory interpretation is the first rule applied by Judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the judges will take the ordinary and natural meaning of a word and apply it, even if doing so creates an absurd result”. (Pp. 530, paras. D-E; 531, paras. B-C).

In the same vein, the court in the case of Oluwabukola v. A.-G., Lagos State (2022) 2 NWLR (Pt. 1815) 499 held that:

“The literal rule of interpretation requires that when interpreting a statute, the court should give the words in the statute their normal, ordinary and grammatical meaning as it is presumed that the law maker’s intention for making a law can be deduced from the words used in the statute. Thus, in interpreting a law, the words used are given their ordinary grammatical meaning”. [A.-G., Fed. V. Abubakar (2007) 10 NWLR (Pt. 1041) 1 referred to.] (Pp. 561-562, paras. E-A).

It is also instructive to mention that a guiding principle in the interpretation of statutes is that the statutory provision should be read in whole, in this wise, the Supreme Court in Umeano v. Anaekwe (2022) 6 NWLR (Pt. 1827) at 516 held that:

“Generally, statutory provisions must be interpreted in the context of the whole statute and not in isolation. They must be interpreted in a manner that is most harmonious with the scheme and general purpose of the statute. Furthermore, where the subject matter being construed relates to other sections (or subsections) of the same statute, they must be read, considered, and construed together as forming a composite whole. [General Cotton Mill Ltd. V. Travellers Palace Hotel (2019) 6 NWLR (Pt.1669) 507; Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560; Akpamgbo-Okadigbo v. Chidi (2015) 10 NWLR (Pt. 1466) 171; Nobis-Elendu v. INEC (2015) 16NWLR (Pt. 1485) 197 referred to.] (P. 532, paras).

Guided by the foregoing authorities, it is instructive that the said section 7(1) of the Pension Reforms Act permits a holder of a retirement savings account to utilize the amount credited to the said savings account where such holder is retired or has turned 50years of age, whichever is later.

The way the said holder can utilize the amount to his credit is then stated under paragraphs (a) and (b)  to the effect that the holder can make withdrawal of a lump sum from the total amount credited to his retirement savings account with a condition that  the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by the Commission, from time to time; while the programmed monthly or quarterly withdrawals is calculated on the basis of an expected lifespan.

Following the fact that the Defendant ought to have remitted an additional 25% lump sum of N1,815,944.12 to the Claimant from his pension to make it 50% lump sum, the non collection of the Claimant’s unremitted pension fund from Access Bank and refusal to credit the Claimant’s account with the sum of N1,815,944.12 caused the claimant to terminate the Programmed Withdrawal Agreement and the Defendant’s refusal to terminate the Programmed Withdrawal Agreement at this point is where the Claimant and Defendant have joined issues.

I find it apposite to foremost state that I am not oblivious of the fact that statutes such as the provision of section 7 of the Pension Reforms Act 2014 comes within the realm of expropriatory statutes as it tends to limit or regulate the proprietary rights of a pensioner and in the interpretation of such statutes, it is the position of the law that such statutes are to be interpreted fortisimme contra preferentes. In this wise, the court in N.U.P. v. I.N.E.C. (2021) 17 NWLR (Pt. 1805) 305 stated that:

“expropriatory statutes need to be construed fortissime contra preferentes; that is, strictly in favour of the citizen and against the government. However, the golden rule in the interpretation of statutes is to determine and reflect the intention of the law maker particularly when the intention is clear. In such an event, resort cannot be had to a liberal Interpretation. [Provost, Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476; I.N.E.C. v. Musa (2003) 3 NWLR (Pt. 806) 72 referred to.] (P. 354, paras. C-D)

Similarly, the point must even be made that it is a principle of labour law tha any ambiguity regarding the payment of any entitlement to an employee must be resolved in favour of the employee. THIS principle was given judicial approval by the Supreme Court as per  OGUNWUMIJI JSC, whil delivering the lead judgment to which others cocurred that in the case of NNDC Vs UGBAGBE (2021) LPELR 56666 SC @ 25-26 para E when the court was considering entitlement of an employee to pension and in respect of which the court emphatically held thus:

“ However, it is a principle of labour law that any ambiguity regarding the payment of any entitlement to an employee, must be resolved in favour of the employee- in this case, the retiree. I cite with approval Chiroma v Forte Oil plc, Suit no. NICN/ABJ/165/2018 delivered on 2/5/2019 by Justice BB Kanyip, PhD, Owulade v Nigeria Agip NICN/LA/41/2012 delivered on 12/7/2016 by Justice BB Kanyip, PhD. Thus, the rule of the retiree getting his full pension and gratuity from his last place of employment and the last place to get reimbursed by previous employers is borne out of the fact that the methot practicable and most humane to the employee must prevail”

Bearing the foregoing authority in mind and whilst still taking into account the clear and unambiguous provision of section 7(1), I find that the provision employed the use of a ‘proviso’ to qualify the claim to the withdrawal of a lump sum. It must in that regard be noted that the use of a proviso (that is where a provision employs the phrase “provided that”) has its own place in the interpretation of a statute as a means of emphasizing on the exception.

For avoidance of doubt, the court in the case of Abasi v. State (1992) NWLR (Pt. 260) 383 held with clarity that:

“It is a well recognised principle of the interpretation of statutes that a proviso is an exception to the main rule. The object of a proviso in a statutory enactment is to qualify or cut down the enacting clause which precedes it. In reality it is used as an exception to the main rule” Per KARIBI-WHYTE, J.S.C. (P. 30, paras. E-G).

The learned justice added that:

“Where the words of a section are capable of showing more than one meaning the proviso will show the proper meaning to be attached to it.” Per KARIBI-WHYTE, J.S.C (Pp. 30-31, paras.G-A)

Taking into account the function of a proviso in a statute, it is without a doubt that the entitlement to withdrawal of lump sum is made upon the condition that or dependent on whether the amount left in the account after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life. The determination of whether what is left in the account after withdrawal will be sufficient for programmed withdrawal or life annuity is then to be in accordance with extant guidelines issued by the Commission, from time to time.

Parties both referred to the guidelines of the Defendant which Regulates the said determination of the programmed withdrawal which is attached as exhibit; the Revised regulation on the Administration of Retirement and Terminal Benefit. The Defendant referred to Rule 4.1.(e) of the said Regulation to contend that where a retiree desires to withdraw a lumpsum from his RSA, the PFA shall first determine the amount required to provide pension or annuity for life before the residual amount may then be paid as lump sum.

The said Rule 4.1.(e) Revised regulation on the Administration of Retirement and Terminal Benefit (the Regulation) for avoidance of doubt reads thus:

“Where a retiree desires to withdraw a lumpsum, the PFA shall first determine the amount required to provide pension or annuity for life. The residual amount in the RSA may be paid as lumpsum in accordance with the retiree’s desire.”

In the light of the foregoing provision, it is instructive to note that what features repeatedly is that the programmed withdrawal which ought to be computed first before determining the lumpsum to be withdrawing a lumpsum in view of both the provision of section 7(1) of the Pension Reforms Act and the Rule 4.1(e) of the Regulation is that the balance should be sufficient for the rest of the life of the pensioner. This in other words, means that what must be said to be left after withdrawing a lumpsum must be sufficient for the rest of the Pensioner’s life. The question that arises therefore is, how many years computation did the Defendant use in computing the life expectancy of the Claimant before coming to the conclusion that what was left will not be sufficient to permit the Claimant’s demand for an additional 25% lumpsum of N1,815,944.12 of his pension contribution.

I have gone through processes filed more particularly the statement of defence of the Defendant and find nothing in relation to the expected year of life or life expectancy.

For sake of clarity, I must state that the number of years (life expectancy) for which a person would live is not guaranteed by anyone. Consequently, what can be used as a guide is the standard life expectancy which can be statutorily fixed and where there is no such statutory prescription, we would be left with the standard set by the World Health Organization which is an international organization to which Nigeria is a signatory.

The World Health Organization (WHO) on its part put out life expectancy in Nigeria at 2019 to be 61 years (male)/64years (female).

Bearing the foregoing in mind, it is clear that the life expectancy of the Claimant using the World Bank statistic is spent having attained the age of 50 upon retirement while he has 11 years span using the statistics of the World Health Organization.

I must quickly at this point state that the failure of specifying the number of years for which the life expectancy is computed for the purpose of the payment of the programmed monthly withdrawal or annuity for life is a lacuna which must be strictly resolved against the Defendants and in favour of the Claimant going by the principle of fortissime contra preferentes.

I should also mention that I am not unmindful of the objective of the Pension Reform Act, for the purpose of putting up uniform standard for the administration of pension in Nigeria. This is clearly stated in section 1 of the Pension Reforms Act 2014 which provides thus:

Establish a uniform set of rules, regulations and standards for the administration and payment of retirement benefits for the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the State Governments, the Public Service of the Local Government Councils and the Private Sector;

I also reckon that the PENCOM has the responsibility of implementing the provisions of the Act as Section 23(d) of the Pension Reforms Act 2014, provides that”:

“The Commission shall:

d)     establish standards, benchmarks, guidelines, procedures, rules and regulations for the management of pension funds under this Act”.

In complying with the said provisions, it would have been clearly a standard indeed applicable to everyone where it is certain the life expectancy for which the programmed monthly withdrawal is computed before the pensioner can withdraw a lumpsum. However, as I said, no such standard period is stipulated hence the Defendant’s computation is shrouded with ambiguity following the use of its whims and caprices to determine the length of period it intends to pay the computed programmed withdrawal.

Having clearly stated the foregoing, I must mention that I am not oblivious of the decisions of my learned brother which was placed before this court for consideration and in that regard, I must reiterate as I had earlier posited that the decisions are only of persuasive capacity and not binding. The forgoing analysis is not exactly a predication on any of the authorities although I reckon that Hon. Justice O.O. Oyewumi (J) (as then he was) in MAROOF’s case also alluded in page 17 of the judgment to the use of the life expectancy as stipulated by the WHO to compute the Claimant’s pension in order to determine the lumpsum to be withdrawn and I must state that I am very much persuaded by the analysis made in that regard.

It is instructive to note that the provision of section 7(1) (b) of the Pension Reforms Act stipulates that the programmed monthly or quarterly withdrawal is to be calculated on the basis of an expected life span projection. With this provision, it is incumbent on the Defendant to make it clear to all and sundry the expected life span that was used in the computation and the failure to so do has shrouded the computation with incongruity.

It is instructive to note that the general position in the 2014 Pention Reform Act, by virtue of section 7(1) (a) thereof, it is for the pensioner to get a lumpsum although subject to proper computation of the balance for expected lifespan for the sake of programmed withdrawal.

Bearing all of the foregoing in mind, it is beyond conjecture that the Defendant has not justifiably established in view of the circumstances why the Claimant cannot withdraw a lumpsum of his pension contribution at an additional rate of 25% making it the rate of 50% since there is no indication of the life expectancy used for the computation of programmed monthly withdrawal before the Claimant was bench-marked for 25%.

Although the provision of section 173 of the Constitution of Federal Republic of Nigeria specifically mention persons in public service with regards to right to Pension, it must be noted that the same right has been extended to persons in the private service/employment by virtue of the Pension Reforms Act. The said provision of the Constitution reads thus:

(1)       Subject to the provisions of this Constitution, the right of a person in the Public Service of the Federation to receive pension or gratuity shall be regulated by law.

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

The bottom line of the foregoing provision is that, a person who is entitled to pension shall have the right to the pension regulated by law and the benefit accruable to the person shall neither be withheld nor altered to his disadvantage.

It is pertinent to note the procedure for processing benefits under the Revised Regulation on the Administration of Retirement and Terminal Benefits which states thus:

4.0. PROCEDURE FOR PROCESSING BENEFITS

4.1 Programmed Withdrawal/Retiree Life Annuity

(a.) A PFA shall at the point of processing a retirement benefit, ensure that all components of the RSA are consolidated.

(b.) The amount in the retiree’s RSA shall be moved to Retiree Fund.

(c.) The PFA shall compute the monthly or quarterly pension/annuity and lumpsum from the retiree’s RSA balance using the Standard Retirement Benefits Computation (SRBC) Template issued by the Commission, which will guide the RSA holder on the choice of his/her preferred mode of payment.

(d.) Where the RSA balance is sufficient for PW/Annuity option, the monthly or quarterly pension/annuity shall be at least 50% of the final salary based on the ATE as at the date of his retirement.

(e.) Where a retiree desires to withdraw al lumpsum, the PFA shall first determine the amount required to provide pension or annuity for life. The residual amount in the RSA may be paid as lumpsum in accordance with the retiree’s desire.

(f.) Without prejudice to 4.1(d) above, where the RSA balance cannot provide 50% of the retiree’s ATE as monthly/quarterly pension, such retiree shall be entitled to a concessionary Regulatory Lumpsum of 25% of the RSA balance.

(g.) Notwithstanding 4.1(d)(e) and (f) above where the RSA balance cannot provide a monthly/quarterly pension or annuity of at least one third of the prevailing minimum wage, the retiree shall be allowed to take the entire balance in the RSA en-bloc.

(h.) PFAs shall use the SRBC Template to compute the benefits of retirees and arrears of monthly/quarterly pension (if any).

(i.) Further to (h) above, PFAs shall use the RSA Balance as at date of Consolidation for determining the retirement benefits of a retiree.

(j.) A retiree shall be eligible for pension arrears, only for the period between the date of retirement and date of consolidation of his/her RSA. In the case of retirees from self-funding agencies and private sector, pension arrears shall be for no more than 6 months.

(k.) Where a retiree on PW secures employment, he/she may request the suspension of his/her monthly pension in writing and by filling a consent form.

(l.) Further to (k) above, when the retiree decides to resume collecting his/her monthly pension, he/she shall request in writing. The pension would oe determined by reprogramming the current RSA balance using the retirees current age. In such circumstances there shall be no pension arrears.

(m.) PFAS shall use the SRBC Template to calculate the lumpsum for retirees who choose RLA.

(n.) For the purpose of computation and payment of pension/annuity, the applicable date of retirement for a person that disengaged before the age of 50 years and had accessed 25% of his/her RSA balance shall be on his/her 50^th birthday, if he/she is not re-employed before the 50 years of age.

(o.) In line with 4.1(j) above, a retiree is not entitled to pension arrears for the period before his/her 50^th birthday anniversary.

(p.) The retirement and terminal benefits of employees of any State or Local Government under the CPS shall be computed in accordance with the respective States/Local Government Pension Laws where such differs from those of the Federal Government and private sector.

The provision of the Programmed Withdrawal Agreement ie Exhibit 1, Article 1, clause 1.1 and 1.2 at page 2 states thus:

1.1.           The retiree hereby appoints the administrator for the provision of Programmed Withdrawal services.

1.2.           For the purpose of giving effect to Article 1.1 above, the administrator shall continue to manage the pension fund standing to the credit of the Retiree’s RSA until demise or termination of this Agreement, which is earlier.

From the above, the Claimant can terminate the Programmed Withdrawal Agreement which he did already by a letter dated 20^th August, 2021 and demanded the Defendant to transfer the sum of N7,263,776.48, being the balance in the Claimant’s Retirement Savings Account as at 20^th August, 2021, to the Claimant’s Union Bank Account.

Article X11, clause 12.1 at page 7 of the Programmed Withdrawal Agreement states thus:

“The retiree may by written notice terminate this agreement or suspend performance of all or any of the obligations under it immediately and without liability for compensation or damages if;

12.1.       The Retiree may by written notice terminate this agreement or suspend performance of all or any of the obligations under it immediately and without liability for compensation or damages if;

f.) Any remittance by the Administrator under this Agreement is not effected on the due date provided that such failure or delay is not due to any event of force majeure.

g) The Administrator breaches its obligation under this Agreement or any agreement supplemental to it, and the breach if capable of being remedied, remains un-remedied for seven (7) days after being to its attention by written notice.

h.) The Administrator fails or ceases to perform the duties under this Agreement.

 i.) The Administrator ceases to hold a license issued by the Commission to operate as a PFA.

Consequent upon the foregoing, the sole issue formulated for the determination of this suit is resolved in favour of the Claimant to the effect that upon a proper construction of the provision of section 7 of the Pension Reforms Act, the Revised Regulation on the Administration Retirement and Terminal Benefit, the Claimant is entitled to terminate the Programmed Withdrawal Agreement. The defences put up by the defendant highlighted in this case seemed to me very porous and a bare after thought on the part of the defendant to deny the claimant his entitlements particularly in a pension matter.

Upon resolving the lone issue in favour of the Claimant, I find that the reliefs sought by the Claimant particularly relief (i) of the amended processes is grantable and it is accordingly granted as prayed.

As for the claim of pre-judgment interest, the Claimant also sought payment of interest on the above sums at the rate of 20% per annum from 1^st October, 2021 till date of judgment and thereafter at the rate of 10% till liquidation. The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties; or under mercantile custom or under the principle of equity.  See Dantama v. Unity Bank Plc (2015) LPELR-24448 (CA). It is for the Claimant to prove his entitlement to the stated pre-judgment interest. This accords with the old age principle that he who asserts must prove same. The Claimant has failed or neglected to prove how he is entitled to the rate of interest claimed. Not having proved same, this is refused and dismissed.

As for the claim for general damages of N10,000,000 (Ten Million Naira), it was held in the case of Afolabi v. Ola (2016) LPELR-40186 (CA); that general damages are only awarded where there is a breach.

The law is settled that general damages are such that naturally flow from the wrongful act of the Defendant as claimed and established by the Claimant although it does not need to be specifically pleaded and proved like special damages. General damages are said to be implied or presumed from the proximate, direct or immediate result of the act of the Defendant that the Claimant complained of and is normally granted at the discretion of the court taking into consideration the peculiar circumstances of the case and guided by the judgment or standard of a reasonable man.

See Garba vs. Kur (2003) 11 NWLR (PI.831) 280; ljebu Ode Local Government Vs. Adedeji Balogun &: Co. Ltd. (1991) 1 NWLR (PI. 166) 136; Mobil Oil (Nig.) Ltd. Vs. Akinfosile (1969) 2 SCNLR 322; A.G. Oyo State vs. Fairlakes Hotel Ltd. (NO.2) 30 (1989) 5 NWLR (Pt.121) 255 and the celebrated cases of EX. Odulaja Vs. A.F. Haddad (1973) 11 S.C. 357 at PP.361-362; Stroms Bruks Aktie Balog Vs. Hutchison (1905) A.C. 515 and British Transport Commission vs. Gourley (1 956) A.C. 185.

 In all the above cited cases, the principles governing award of damages particularly general damages were clearly enunciated to the effect that: “damages are compensation in money.” They are a sum of money given to a successful party in a case for loss or harm of any kind.

The Claimant is to be paid the sum of N1,000,000 (One Million Naira) by the Defendant as general damages.

Judgment is entered accordingly.

..................................................

HON. JUSTICE S. A. YELWA

(JUDGE)