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PortHarcourt – The Presiding Judge, Portharcourt Judicial of the National Industrial Court of Nigeria, Hon. Justice F. I. Kola-Olalere, on Tuesday 11th December 2018 in a judgment held and declared that Ademola Popoola and 3 others (claimants) were Public Servants when they were in the employment of the Kwara Investment and Property Development Corporation (3rd defendant) before its liquidation, ordered Attorney- General of Kwara State (1st defendant) to calculate the gratuities of the claimants according to the terms of their employment and pay to them within 30days.
His Lordship further ordered the Attorney- General of Kwara State to ensure that the claimants are paid arrears of their pensions from when it accrued and to continue paying same forthwith.
This case was transferred to this Court on August 28, 2013 from the High Court of Justice, Kwara State. By its regularized/amended Complaint and Statement of Facts filed on July 4, 2016, the claimants sought for the following reliefs from the defendants among others;
A Declaration that the Claimants, being public servants in the employment of, and under the control of 2nd and 3rd Defendants, are entitled to their pensions and gratuities pursuant to Section 210 of the 1999 Nigerian Constitution and the Pensions Law of Kwara State 1994.
An Order to the effect that the claimants’ gratuities and pensions shall be calculated by Defendants’ Pension Board or summed up based on the existing subsidiary legislations/circulars on Pensions and Gratuities matters from 1998 till the Pensions and Gratuities are fully paid.
An Order mandating the Defendants through their Pensions’ Board to recognize and include the names of the Claimants in the Kwara State list of Pensioners and to pay their pensions as at when due.
The case of the claimants as pleaded is that they were former public servants of pensionable status in the employment of the 2nd and 3rd Defendants; parastatals under the control of Kwara State Government. They averred further that after serving the defendants for several years, they were disengaged from service by Kwara State Investment and property Development Corporation; on the basis of reorganization. Those defendants have refused them their deserved pensions and gratuities despite persistent demands for such payment from them.
The case of the defendants on the other hand is that the claimants were neither in any pensionable service of the Kwara State Government nor that of the 2nddefendant and that the 3rd defendant, which is now dead; was not a parastatal under Kwara State Government but a statutory corporation with its own legal entity and personality.
They continued that the 4thclaimant (Hammed Ibrahim) was never employed by, neither did he serve the defunct Kwara Investment Corporation nor Kwara Investment Company Limited (KINCO); and that the 3rddefendant did not give him any appointment.
Defendants’ counsel raised objection to the jurisdiction of this Court and prayed for its dismissal on the grounds that the Claimants have not sued competent Defendants and that The fundamental condition precedent was not fulfilled by the Claimants; and Failure of the Claimants to fulfill fundamental condition precedent to the initiation of this suit.
In the claimants’ Final Written Address, counsel responded that the defendant’s preliminary objection is brought pursuant to Kwara Investment and Property Development Company Limited Law 2006 when in actual fact this action was filed in 2001 and remained pending till date. To counsel, the law passed in 2006 cannot be applicable to a cause of action that arose in 1998 and to the suit filed in 2001.
Counsel’s posited from the submission of the defendants that before the institution of this action, the 3rd defendant had been liquidated in 1999; therefore, dead. Counsel noted that this case was instituted in 2001 and it is not possible for the claimants to serve the “dead 3rd defendant” a one month notice.
Counsel submitted that the claimants are entitled to their pensions and gratuities, since none of them was dismissed from their employment for any offence neither did they commit any blame worth act while in the public service of Kwara State.
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice F. I. Kola-Olalere held that the 2nd and 3rd defendants are not competent parties before this Court, struck out their names and expressed thus;
“The issue of whether claimants were Public Servants and are entitled to pensions and gratuities under section 210 of the 1999 Constitution of the FRN (As Amended) has been settled between the parties before the Court of Appeal in its judgment of June 9, 2011.
“Therefore, the claimants were Public Servants in the Public Service of Kwara State according to the provision of section 318 (1) (e) of the 1999 Constitution as Amended; because they were staff of a statutory corporation owned by Kwara State Government (the 3rd defendant before it was liquidated).
“I hold that the claimants were Public Servants when they were in the employment of the 3rd defendant before its liquidation and so, they are entitled to gratuities from the defendant and pensions from Gateway Insurance Company Ltd."
The court ordered the defendant to calculate the gratuities of the claimants according to the terms of their employment and pay to them within 30days.
His Lordship further ordered the defendant to ensure that the claimants are paid arrears of their pensions from when it accrued and to continue paying same forthwith.
