IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
HOLDEN AT MAKURDI
IN THE MAKURDI JUDICIAL DIVISION
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 5TH DAY OF APRIL, 2019 SUIT NO: NICN/MKD/47/2018
(Next of Kin/Administrator of the
Estate of Mr Simon Umande)……………………………………………...................CLAIMANT
1. BUREAU OF SALARIES & PENSION BENUE STATE
2. HEAD OF SERVICE CIVIL SERVICE BENUE STATE
3. THE ATTORNEY GENERAL …………………………………………………………..DEFENDANTS
AND COMMISSIONER OF JUSTICE BENUE STATE
4. GOVERNMENT OF BENUE STATE
M.M. Uparegh holding the brief of J.I. Tyoapine for the Claimant.
The instant suit was commenced by Originating summons dated 04/07/2018 but filed on 11/07/2018. Whereof the Claimant sought the following reliefs against the Defendants jointly and severally:
"(a) Declaration that the Claimant is entitled to be paid in the circumstances the sum of Two Million Eight Hundred and Nine Thousand, Three Hundred and Sixty Nine Naira (N2,809,369.00) Only as gratuity and three Million Seven Hundred and Seventy Three Thousand Seven Hundred and Eight Naira (N3,773, 780.00) only, as pension. Total sum is Six Million Five Hundred and Eighty Three Thousand One Hundred and Forty Nine Naira (N6, 583, 149.00) Only.
(b) An Order of the Honourable Court directing the Defendants to pay to the Claimant the sum of Two Million Eight Hundred and Nine Thousand, Three Hundred and Sixty Nine Naira (N2,809,369.00) only as gratuity and Three Million Seven Hundred and Seventy Three Thousand Seven Hundred and Eight Naira (N3, 773,780.00) only, as pension. Total sum is Six Million Five Hundred and Eighty Three Thousand One Hundred and Forty Nine Naira (N6, 583, 149.00) only, being the death benefit of Mr. Simon Umande (Deceased).
(c) The cost of filing this suit.
(d) General damages of Five (5) Million Naira (N 5,000,000.00) only, for the sufferings and untold hardships the Defendants have caused the claimants and other beneficiaries in the circumstances of this case.
(e) 10% interest on the judgment debt from the date of the judgment until the entire judgment is paid.
Claimant raised a question for determination in the originating summons as follows;
"Whether by the combined effect of the provisions of section 210(1)(2) of the 1999 constitution of the Federal Republic of Nigeria (as amended) and section 11(1)(3) of the Pensions and Gratuities Law(Cap. 125) Laws of Benue State 2004; the claimant can validly claim against the Defendants, or the Claimant is entitled to the pension and gratuities of Mr. Simon Umande (Deceased) been the next of kin."
Briefly, the Claimant’s case as stated in his 15- Paragraph Affidavit supporting the Originating Summon is that his father Mr. Simon Umande worked as a Civil Servant with the Benue State Government, under the Government Printing Department Makurdi until his death. That after the demise of the claimant's father, his entitlements were not computed untill 2017 and a copy was handed over to the claimant. The Claimant now having obtained a Letter of Administration is suing as administrator of the estate of his late father for the afore-stated reliefs.
The Claimant has attached 5 Exhibits to the Affidavit in support of the originating summons.
Claimant Counsel also filed a written address in support of the Originating Summons where he submitted an issue for determination of the court. The issue is;
"whether the claimant is entitled to the reliefs sought in the claim, in view of the exhibits before the Honourable Court as well as the relevant laws."
Arguing the issue, counsel relied on Section 210 of the 1999 Constitution (as amended) along with section 11 (1) and (3) of the Benue State Pensions and Gratuities Laws and submitted that the Claimant is entitled to the death benefit of his late father, being the next of kin.
Claimant also filed a further and better affidavit of 9 paragraphs and attached 3 Exhibits.
OPINION OF COURT
I have carefully gone through the originating summons, the affidavit in support and the further and better affidavit filed by the Claimant. This is a case for declaration that the Claimant is entitled to be paid the pension and gratuity of his deceased father who died while in active service.
The Claimant in his bid to prove the reliefs sought in his originating summons attached 8 Exhibits. Exhibit J1 is the Staff Identity Card of the deceased issued by the 4th Defendant. Exhibits J2 (a – c) are letters introducing the Claimant as the Next of Kin to the Deceased; Exhibit J2 (a) introduced the Claimant to the Accountant General, Exhibit J2 (b) introduced the Claimant to the sub treasurer and Exhibit J2 (c) introduced the Claimant to the Controller Federal Mortgage Bank of Nigeria Makurdi Branch. Exhibit J3 is the letter of administration dated the 27th day of July 2012 appointing the Claimant as the Administrator of the estate of the deceased. Exhibit J4 is a copy of the computed amount the deceased's family was entitled to which was handed to the Claimant. Exhibit J5 is the acknowledgment copy of the demand letter served on the 1st defendant and copied to the 2nd and 3rd Defendants by the Claimant. Exhibits J6, J7 and J8 are the deceased appointment letter, confirmation letter and last promotion letter respectively.
I observe that when Exhibit J5 which was a demand letter was served on the Defendants, they did not bother to respond to it. The Defendants did not file any process to counter or controvert the claimant’s contention. It is settled that facts not denied are deemed admitted.
Section 210(1) and (2) of the 1999 constitution as amended provides as follows;
"(1) Subject to the provisions of section (2) of this section, the right of a person in the Public service of a state to receive pension or gratuity shall be regulated by law.
(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct."
While section 11(1) and (3) of the Pensions and Gratuity law, Benue State provides also as follows;
“(1) Where an officer dies in the service after the completion of the minimum period of qualifying service, there shall be paid to his legal personal representative or any person designated by him during his life time as his survivor.
(3) Any pension payable under sub-section(1) shall be paid for a period expiring at the end of five years after the officer's death but it shall be lawful for the total to be paid forthwith. "
In Lawan V Attorney General Kwara State (2012) All FWLR (Pt 618) 958, the court of appeal deprecated the situation where the payment of retirement benefits were delayed or withheld.
Going by the above proposition of the law coupled with the facts established by the Claimant, Iam of the opinion that the law in this case is so common place and the facts straight forward that the Claimant has proved his case and is entitled to the reliefs claimed.
It is crystal clear that the Claimant derives locus standi to maintain his action against the Defendants by the combined effect of Exhibits J1 and J3. The Claimant`s Cause of action stems from Exhibits J4 and J5. Exhibits J2 series appears to be merely supplementary. The Claimant’s affidavit in support of the Originating Summon has proved to be highly instructive in this regard.
The Claimant as administrator of the estate of his late father is entitled to his father’s death benefits. It is beyond doubt that he has a good standing to claim as such; particularly, considering that his deceased father nominated him as his next of kin. Besides that, the Claimant has his letter of administration. Added to that, the Defendants at different times introduced the Claimant as Next of Kin to the deceased Mr. Simon Tyoapine Umande to the Accountant General, the sub-treasurer and the Controller Federal Mortgage Bank of Nigeria. Exhibit J2 series is in point.
In any event, there is no issue in controversy here and then again, there is no likelihood of facts being disputed. I find that this matter is resolved against the Defendants in favour of the claimant.
I have no hesitation in granting reliefs (a) and (b). Cost of N50,000.00 is also awarded in favour of the Claimant against the Defendants jointly and severally. Relief (d) is refused on the ground that it has not met proof based on the affidavit evidence before me.
For the avoidance of doubt, It is declared that the Claimant is entitled to be paid the sum of N6,583,149.00 by the Defendants as his late father's death benefit.(Mr. Simon Umande).
And Consequently the Defendant are directed to pay the claimant the said sum within 30 days from the date of this judgment.
10% interest per annum is awarded on the judgment sum until full and final liquidation of the judgment debt.
Judgment is delivered accordingly.
HON. JUSTICE S. H. DANJIDDA