IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
SUIT NO. NICN/MKD/69/2016
DATE: FRIDAY 24TH JULY, 2020
AWASE NAIBO MICHAEL………………………………………………………CLAIMANT
1. SIGMA VAUGH STERLING PENSION
2. NATIONAL PENSION COMMISSION
John Ioryina for the Claimant.
Jane otor with Lizzy Igodo for the 1stDefendant,
M.I. Danliti with P.I. Terna for the 2nd Defendant.
The Claimant commenced this suit by a Complaint and Statement of Facts dated13th October, 2016 but filed on 28th October 2016 seeking the following reliefs against the Defendants:
“i. A declaration that the Claimant is entitled to the gratuity of
N8,357,690.88 and monthly pension of N185,720.46 as his entitlement upon his retirement and in line with his contractual agreement with the 1st Defendant.
ii. An order of court directing the 1st Defendant to pay the Claimant the sum of
N8,357,690.88 as gratuity and monthly pension of N185,726.46 with effect from October, 2015 and consistently thereafter.
iii. Refund of the sum of
N490,972.45 wrongly deducted from the Claimant’s account.
iv. General damages of N50 million against the Defendants.”
Upon service of the claimant’s originating processes on the defendants, the 1st Defendant filed a memorandum of appearance and Statement of Defence with accompanying processes and counter- claim dated 25th April 2017 but filed on 26th April 2017 via leave of the Court sought and obtained on 6th June 2017.While the 2nd Defendant also filed its memorandum of appearance and a statement of defence. On the 19/4/2018, it also filed an amended statement of defence and accompanying processes dated the 16thof April, 2018 via leave of the court granted on 19th April 2018.
In reply to the statements of defence, claimant filed a reply to the defendants' statements of defence on the 15/6/2017 and another reply to the 2nd Defendant`s Statement of Defence on 3/5/2018.
CASE OF THE CLAIMANT
The facts of the Claimant’s case as gleaned from the pleadings are that he was a staff of the Federal Medical Centre Makurdi and retired on 20/10/2015.That in 2004, he registered as a customer with the 1st Defendant for the purpose of his pension and gratuity. The Claimant stated that upon his retirement on 20th October 2015, the 1st Defendant presented his lump sum withdrawal to be
N3,000,000 as his gratuity and N65,000 as his monthly pension. The Claimant disagreed with this figure as his correct retirement benefits hence he engaged the services of his lawyers to write to the 2nd Defendant. Claimant stated that his computed gratuity is N8, 357, 690.88 while his monthly pension is N185, 726.46.
According to the Claimant he complained to the 2nd Defendant who calculated his recommended lump sum to be
N5,171,058.00. The Claimant is aggrieved by the lesser figure offered to him as lump sum and monthly pension, and also various sums of monies withdrawn from his Retirement Savings Account by the 1st Defendant hence this suit.
CASE OF THE DEFENDANTS
The defence of the 1stDefendant is that the Claimant started remitting his pension contribution in January 2006 and as of October 2015 when the Claimant retired, his bond as computed by the 2nd Defendant from 1980 when the Claimant was employed to 2004 when the Pension Act came into force and his contributory pension amounted to
N10,401,825.07 with a lump sum payment of N3,288,658.30 calculated between 25% to 50% as provided by the Pensions Act and N58,039.50 as his monthly pension. Thus; the lump sum as calculated by the 1st Defendant`s Head office to be N5, 171,058.00 was in error.
The 1st Defendant stated that the sum of
N490,972.45 deducted from the account of the Claimant was an over deduction paid into the account of the Claimant by the 2nd Defendant from the Contributory Pension Account domiciled with the Central Bank of Nigeria. Therefore the computations as regards the contributory pension and monthly pension of the Claimant is correct. The 1stDefendant in addition to its defence filed a counter- claim seeking for the following reliefs;
a. declaration that the 1st Defendant computes the Claimant’s entitlements correctly using the following parameters; age, sex, final salary and retirement savings account at the time of retirement.
b. A declaration that the Claimant is only entitled to between 25%, in between 25% & 50% or 50% of his pension as gratuity with the final choice rests with the 1st Defendant taking into account other valuables.
c. A declaration that the 1st Defendant as a pension administrator reserves the right to choose either to use 25%, in between 25% & 50% or 50% using the following parameters; age, sex, final salary and retirement savings account at the time of retirement.
d. A declaration that the 2nd Defendant has the responsibility of computing the accrued entitlements right from when the Claimant entered employment.
e. A declaration that the 2nd Defendant instructed the 1st Defendant to deduct the excess payment from the Claimant’s account to Contributory Pension Account (CPA) maintained by the Central Bank of Nigeria.
f. A declaration that the action of the counter- claimant in deducting and remitting to Contributory Pension Account is valid and proper.
g. A declaration that the action of the Claimant in collecting the sum of Six Hundred and Fifty Thousand Naira only from one Mrs. Mwuese Sor on guise of bribing the 1st Defendant’s officials is criminal.
h. An order mandating the Claimant to produce the said amount and return same to Mrs. Mwuese Sor.
i. An order mandating the Claimant to accept as correct and accurate the sum of Three Million, Two Hundred & Eighty- Eight Thousand Six hundred & Fifty Naira Thirty kobo as his gratuity and or lump sum and the sum of Fifty Eight Thousand and Thirty – Nine Naira Fifty Two kobo (N58,039.52) as the Claimant’s monthly pension.
j. Two Million Naira (N2,000,000,00) as general damages.
The 2nd Defendant in its defence stated that the accrued right of the Claimant from 20th October 1980 to June 2004 was
N6,440,000 as per HATISS and that after reconciliation of the account of the Claimant between July 2004 to February 2015 when the salary structure changed to CONHESS, there was an excess of N67,592.81 which was the only figure it requested for from the 1st Defendant to be paid back into the Contributory Pension Account. The 2nd Defendant stated further that when the (IPPIS) took over in March 2015, the monthly pension contribution of the Claimant between March 2015 to October 2015 was handled by the IPPIS office.
The 2nd Defendant goes further to state that the amount allowed by the Pension Fund Administrator of the Claimant as lump sum was
N5,484,449.49 and N55,750.08 as monthly pension. The 2nd Defendant urged the Court to dismiss the suit against it for being vexatious and frivolous.
After close of pleadings, hearing commenced on 6th March 2019 where one Hor Samuel Tsejime testified as CW1 by adopting his statement on oath dated 28th October 2018 and tendered exhibit ANM1- (Computation of gratuity and pension for the Claimant).
After cross examination of CW1 by each of the defendants, he was discharged as there was no re-examination. The Claimant thereafter testified as CW2 by adopting three sworn statements dated 28th October 2016, 15th October 2017 and 10th May 2018, and tendered the following documents as exhibits:
1. ANM2- Letter of employment dated 17/10/1980
2. ANM3- Letter of absorption into Federal Medical Centre dated 20/5/1996
3. ANM4- Letter of retirement dated 20/10/2015
4. ANM5- Pay slip as at 20/8/2015
5. ANM6- Computer printout dated 31/5/2016
6. ANM7- Letter from the Claimant’s lawyer dated 26/5/2016
7. ANM8- Template of lump sum dated 31/5/2016
8. ANM9- 2nd Defendant’s letter to the Claimant dated 6/6/2016
9. ANM10- 2nd Defendant’s letter to the Claimant dated 1/7/2016.
CW2 was then cross examined by counsel to each of the Defendants and as there was no re-examination, the case of the Claimant was closed.
On 17th July 2019, one Mathew Msugh Anure testified as DW1 by adopting his sworn statement dated 26th April 2017 on behalf of the 1st Defendant and tendered the following documents as exhibits;
1. ANM11- Claimant’s statement of account
2. ANM12- Letter from the National Pension Commission dated 5/2/2016
3. ANM13- Payment advice dated 24/3/2016
4. ANM14- Letter from Sigma Pensions dated 17/2/2016
5. ANM15 A & B- Two templates of lump sums dated 3/1/2016 and 7/5/2016.
DW1 was cross-examined by counsel to the 2nd defendant and that of the claimant and he was discharged thereafter as there was no re-examination.
On 30th October 2019, one Fatsuma Banaru Abubakar testified as DW2 on behalf of the 2nd Defendant by adopting her deposition dated 6th March 2019. DW2 was cross examined by Counsel to the 1st defendant and that of the Claimant. As there were no re -examinations, DW2 was discharged and the case of the Defendants was closed.
At the close of the case of the parties, The 2nd defendant filed its final written address on the 20th November, 2019 but was dated 19th November 2019. While that of the 1st defendant dated 6th December, 2019 was filed on the 9th December 2019.
Meanwhile the Claimant's final written dated 19th December 2019 was filed on 20th December 2019.
SUBMISSIONS OF THE 2ND DEFENDANT
The final written address of the 2nd Defendant contains a lone issue for determination to wit:
"Whether the Claimant had made a case against the 2nd Defendant."
Counsel submits that the Claimant has not made out a case against the 2ndDefendant. According to Counsel in civil proceedings, the standard of proof required is based on preponderance of evidence or balance of probabilities. This is done by putting evidence from both the claimant and the Defendant on an imaginary scale to see which side preponderates. In support of this, Counsel cited the cases of Agboola V. UBA Plc (2011) All FWLR (pt. 574) 74 and Akpan V. Isa (2011) All FWLR (pt. 579) 12.
It is the submission of Counsel that evidence of an expert must be carefully scrutinized to weigh its admissibility and veracity even where it is not challenged. Counsel relied on the cases of Ude V. Osuji (1990) 5 NWLR (pt. 151) 488, Bello V. Ringim (1991) 7 NWLR (pt. 206) 608, IzeIyamu V. Alonge (2007) All FWLR (pt. 371) 1570, Kaydee Ventures Nig. Ltd. V. Hon. Minister, F.C.T (2010) All FWLR (pt. 519) 1114 and Oyo State V. Fairelakes Hotels (No. 2) (1989) 5 NWLR (pt. 121) 255.
Counsel submits further that the evidence of DW2 outweighs that of the CW1 as the DW2 who is a staff of the 2nd Defendant properly showed the parameters of calculating what is due to the Claimant as his pension and that the 2nd schedule to the Pension Reform Act used by CW1 to arrive at his calculations was made pursuant to section 5 (2) of the Pension Reform Act and it deals only to persons exempted from the contributory pension scheme and that the Act excludes gratuity. The Court is urged by Counsel to discountenance the evidence of CW1 as being baseless and weak.
Counsel contends that the Claimant has not led evidence to show connivance between the 1stand 2ndDefendants in remitting his monthly contribution. Under cross examination the Claimant admitted that he never complained to the 1st defendant about skipping of his contributions between 2006- 2015.
Counsel contends further that there was over remittance of the pension due to the Claimant hence the request for refund of N490,972.45 which is the difference between N3,193,609.23 which was wrongly credited to the retirement savings account of the Claimant instead of N2,726,016.42.
Counsel submits that it is trite law that in construing a statute the court is enjoined to give a literal and clear interpretation and give effect to the intention of the legislature. To support this assertion, Counsel cited the cases of Ojokolobo V. Alamu (1987) 3 NWLR (pt. 610 377, Ejuetami V. Olaiya (2001) 18 NWLR (pt. 746) 572, AG. Adamawa State V. Ware &Ors. (2000) All FWLR (pt. 306) 860 and Salami V. Chairman LEDB (1989) 5 NWLR (pt. 123) 539.
It is the submission of Counsel that the Latin maxim expressed as “expression unis est exclusion alterius” clearly shows that the Claimant is clearly excluded from the provisions of Section 5 (2) of the Pension Reform Act 2014.
Finally, counsel urged the court to dismiss the entire claim of the Claimant for being frivolous, vexatious and time wasting.
SUBMISSIONS OF THE 1ST DEFENDANT/COUNTER- CLAIMANT
Counsel to the 1st Defendant/Counter- Claimant formulated two issues for determination in the final written address to wit;
“i. Whether or not the Claimant has proved his claim to warrant the Honourable Court to enter judgment for him.
ii. .If issue one is negatively resolved, whether or not the 1st Defendant has proved her counter- claim to warrant the Honourable Court enter judgment in her favour.”
On issue one, Counsel argued that it is not true that the Claimant is a registered customer of the 1st Defendant for the purpose of remitting his monthly pension and gratuity or that the 1st Defendant held the Claimant’s monthly contributions from 2006 to October 2015 and that N490,972.45 was deducted from the Claimant’s gratuity. Counsel expressed the point that facts not denied need no further proof as held in the case of Igori V. Igori (2014) All FWLR (pt. 729) 1154.
It is the contention of counsel that the response of questions put to CW1 shows that the CW1 did not obtain full facts on how the computation of the Claimant’s entitlements are made under the Pension Reform Act. Thus the evidence of CW1 is unreliable and should be discountenanced hence exhibit ANM1 should be expunged as being wrongly admitted. Counsel cited the case of Bernard Anyanwu V. Jack Sagrani (2008) All FWLR (pt. 426) 1995 and submitted that in the cases of Waziri V. The State (1997) 3 NWLR (pt. 496) 689 and Ogbodo& Anor V. COP (1972) 2 ECSLR 719, it was held that any doubt in the evidence or report of an expert makes it unreasonable and should be discountenanced.
According to counsel, all the exhibits tendered by the Claimant with his evidence under cross examination reveal that the Claimant knew the truth as regards his monthly contributions which he admitted commenced in January 2006 and not 2004 and the fact that the Claimant never challenged any discrepancies in his financial details.
Counsel submits that a party who asserts must prove that those facts exist by adducing credible evidence. Counsel cited the case of Hope V. Ekeh (2009) All FWLR (pt. 537) 699 and sections 131, 132, 133 and 136 of the Evidence Act 2011.
On issue two, Counsel urged the court to resolve the issue in the affirmative by adopting his submissions under issue i and enter judgment in favour of the 1st Defendant/Counter- Claimant.
It is the submission of counsel that civil cases are proved on the preponderance of evidence or balance of probability. Counsel cited the case of Shell Edamkue, Koro V. Nwikunee(not properly cited)and The Liquidator of Efufu (PMS) Ltd V. Adeyefa (1970) 1 AMLR 13.
Counsel submits that exhibits ANM15 A& B were not controverted as DW1 gave evidence as to the correct parameters used in calculating the retirement benefits of the Claimant and that the excess money deducted was an instruction from the 2nd Defendant as corroborated by DW2.
Counsel argued that exhibit ANM 13 shows invoice for the money collected from Mrs. Mwuese Sor by the Claimant. The Claimant has not led evidence to contradict same hence the Claimant is to refund the said amount of N650,000.
Counsel urged the court to dismiss the suit of the Claimant for being baseless and lacking any evidential proof.
SUBMISSIONS OF THE CLAIMANT.
The Claimant in his final written address formulated the following three issues for determination;
“i. Whether the calculation of the Claimant’s entitlements as made by the Claimant is done in line with the extant laws relevant to his entitlements.
ii. Whether the 1st Defendant has made out her case to be entitled to her counter- claim.
iii. Whether the Claimant has made out his case to be entitled to the reliefs sought from the Honourable Court.”
Counsel argued on issue one that the evidence as regards the case of the Claimant is structured after second schedule to the Pension Reform Act 2014, Laws of the Federal Republic of Nigeria. This schedule according to the Counsel provides that entitlement of retirees including the Claimant is 300% of his annual basic salary as gratuity or lump sum as called by the Defendants and 80% of his annual basic salary as his pension. Therefore the annual basic salary of the Claimant at the time of retirement in October 2015 was N2,785,896.72 which the 1st Defendant computed correctly before turning around to divide it by two based on a parameter known only to the 1st defendant.
Counsel submits that whatever yardstick used by the 1st Defendant to compute the entitlement of the Claimant must be a subsidiary legislation to the Pensions Reform Act which is an enactment of the National Assembly. Therefore such a subsidiary legislation which is in conflict with the parent law must be null and void to the extent of its inconsistency. Counsel on this relied on the case of NNPC V. Famfa Oil Nig. Ltd (2012) 17 NWLR (pt. 1328) 148.
Counsel urged the court to hold that the computation made by the Claimant is correct and in line with the extant laws.
Counsel contends that the 1st Defendant has admitted in paragraphs 15 and 17 of the statement of defence that the money she holds in trust for the Claimant amounts to over ten million naira thus the 1st Defendant has decided to frustrate the Claimant by different strokes of calculation. Counsel went ahead to show the various inconsistencies in the entitlements of the Claimant as presented by the 1st and 2nd Defendants and the monies unaccounted for.
Counsel argued that it was curious that the 1st Defendant deducted
N200,221.27 from the Claimant’s account in 2015 before it had any instruction to deduct monies in 2016 and this money was not remitted to the Claimant. Also by the request from the 2nd Defendant to the 1st Defendant on 5th February 2016, a total of N467,592.81 was to be deducted from the Claimant’s account but the 1st Defendant deducted about N490,972.45 which is more than the amount requested to be deducted.
Counsel argues further that the 2nd Defendant in paragraph 6 of her deposition stated that the amount due to the Claimant before reconciliation was N3,192,609.23 and after reconciliation of accounts was N2,726,016.42 which is a difference of N467,592.81. This is exactly the figure the 2nd Defendant by the letter of 5th February 2016 requested to be deducted from the Claimant’s account. Meanwhile exhibit MM12 tendered by the 1st Defendant shows that the sum of N691,194.33 was deducted from the Claimant’s account.
Counsel equally contends that it is worrisome that the figure arrived at as the lump sum by both the 1st and 2nd Defendants are different. While the 1st Defendant gave the figure to be N3,288,658.30 as the lump sum and N58,039.52 as monthly pension, the 2nd Defendant in the deposition of DW2 gave the figure to beN5,484,449.49 as lump sum and N55,750.08 as monthly pension. Curiously, the deposition of DW1 gave the figure to be N5,171,058.00 as lump sum and N42,192.98 as monthly pension.
Counsel submits from these arguments that the counter claim of the 1st Defendant cannot be granted as the 1st Defendant admitted under cross examination that the figure of the Claimant’s entitlements is more than what is presented in court and also the fact that the figure of the 1st Defendant contradicts that of the 2nd Defendant who regulates the activities of the 1st Defendant.
It is the submission of Counsel that both 1st and 2nd Defendants admitted under cross examination to be bound by the PENCOM Act 2014. Therefore any calculation inconsistent with the Act is null and void. Counsel relied on the case of HDP V.Obi (2011) 18 NWLR (pt. 1278) 80.
Counsel urged the court to look into the documents in its record and referred the court to the case of Eromosele V. FRN (2018) LPELR- 43851 (SC).
In response to the written address of the 1st Defendant as regards the issue of Mrs. Mwuese Sor, Counsel submits that the 1st Defendant is using that as a shield to the threat it issued.
Counsel submits that the Claimant has proved his case and is entitled to all the reliefs sought including damages.
DECISION OF THE COURT
I have gone through the pleadings filed, the evidence adduced and the Exhibits admitted. And having also considered the submissions of the respective Counsel to the parties, the following questions call for consideration;
i. Whether the Claimant has by the evidence before the court proved his case to warrant a grant of the reliefs sought.
ii. Whether the 1st defendant has proved its counter- claim.
The reliefs of the Claimant before this court are for declaratory and executory orders. The crux of the Claimant’s case is the figure he is entitled to as his gratuity and pension out of his entitlements with the Defendants and the refund of monies deducted from his retirement savings account by the Defendants. The law is well established that for a claimant to succeed in his case, it is his responsibility to assert the affirmative to prove his case thereof. See sections 136 (1) and 131 (1) & (2) of the Evidence Act 2011(as amended) and the case of Adighije V. Nwaogu (2010) 12 NWLR (pt. 1209) 419.
Under reliefs 1 and 2, the Claimant seeks a declaration that he is entitled to the gratuity of
N8,537,690.88 and monthly pension of N185,720.46 and an order of court for the payment of these monies by the 1st Defendant. In support of these reliefs the Claimant tendered exhibit ANM1 (Computation made by CW1). The contention of the Claimant is that the calculation made by the CW1 who is a financial expert and which is done according to the second schedule to the Pension Reform Act 2014 is what he is to be paid enbloc and as monthly pension too. The 1st Defendant however denied the calculations made by the Claimant and stated that only a percentage of between 25% to 50% of the total entitlement of the Claimant is to be paid to him. This percentage based on certain parameters amounts to N3,288,658.30 and monthly pension of N58,039.52.
The 2nd Defendant in their defence stated that the allowable amount as determined by his pension fund administrator was N5,484,449.49 as lump sum and N55,750.08 as monthly pension. The 2nddefendant stated also that they wrongly remitted the sum of N3,193,609.23 to the Retirement Savings Account of the Claimant but after reconciliation, the amount came down to N2,726,016.42 and that they equally transferred to the Retirement Savings Account (RSA) of the Claimant the sum of N6,440,000.00 covering the period of October 1980 to June 2004.
The Claimant’s claim as shown under reliefs 1 and 2 is dependent on exhibit ANM1 prepared by CW1. The CW1 testified that he based his analysis as contained in exhibit ANM1 on second schedule to the Pension Reform Act 2014. Yet the Claimant did not deem it necessary to plead or tender the portion or content of the second Schedule to the Pension Reform Act 2014 to give life to exhibit ANM1. Surprisingly Exhibit ANM1 was not accompanied by that second schedule also.
I also observe that in the entire Written Address of the Claimant, there has not seen reproduced the content of the Second schedule to Section 5 of the Pension Reform Act, 2014.
CW1 stated under cross-examination by the 2nd defendant that his qualifications showing his expertise are not before the court and Exhibit ANM1 was prepared by an expert. CW 1 in his evidence in chief said that he is the Chief Financial Consultant at Kwadam NIG. Ltd, a firm of financial analyst and consultants. But I observe that Exhibit ANM1 prepared by CW1 was not written on the Letter head paper of the said firm which will consists of the name, address, and a logo or corporate design of the firm. I have also observed that throughout the entire pleadings of the Claimant, there is no where that it was stated that his entitlement was prepared or computed by any financial analyst. Suffice it to say that evidence not pleaded goes to no issue.
It is trite that it is the sole duty of the Claimant to establish declaratory reliefs by presenting material facts before this court in order to be entitled to those reliefs. See the case of Nwaogu V Atuma (2003) 11 NWLR (pt.1364) 117 at 141.
Similarly, in the case of Aji V. Chad Basin Dev. Authority & Anor (2015) 246 LRCN 194 at 201, the Supreme Court held that the burden is heavy on the Plaintiff to establish declaratory reliefs as declaratory reliefs are never granted even upon admission by the Defendant or on the weakness of the defence. See also the cases of Maihaja V. Gaidam (2017) LPELR- 42474 (SC), Daudu v. NNPC (1998) 2NWLR (Pt. 538) 355; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; Alhaji Otaru& Sons Ltd v. Idris (1999) 6 NWLR (Pt. 606) 330.
Consequently, I am unable to attach any weight or give any probative value to Exhibit ANM1. It sounds strange that CW1 as the Chief Financial Consultant at Kwadam NIG. Ltd. does not state his qualifications on Exhibit ANM1. What he only wrote was "Hon. Tsjime Samuel (JP)"
Claimant's Relief 3 is for the refund of the sum of N490,972.45 deducted from the Claimant’s account. The evidence before this court shows that the deduction of this sum from the Retirement Savings Account of the Claimant has not been denied. It is the law that facts admitted requires no further proof. See the cases of Asafa Foods Factory Ltd V. Alraine Nig. Ltd & Anor (2002) 12 NWLR (pt. 781). 353 or LPELR-570 (SC), Ndayako&Ors. V. Dantoro&Ors (2004) 13 NWLR (pt. 889) 187, Ajomale V. Yaduat (1991) 5 NWLR (pt. 191),Owena Mass Transportation Co. Ltd v. Okonogbo (2018) LPELR-45221(CA).
The 1st defendant has rather explained in its pleading and evidence of DW1 that the said sum was deducted based on the instructions from the 2nd Defendant vide exhibit ANM12. However Exhibit ANM12 only instructed the 1st defendant to refund the sum of
N467,592.8 to the Contributory Pension Account due to over payment.
Conversely, Exhibit ANM14 was written in compliance with Exhibit ANM12 but has indicated that it was the sum of
N490,972.45 that was refunded to the Contributory Pension Account. There appears to be a difference of N23, 379.64 and there is nothing in the pleadings of the defendants to explain these discrepancies. Although DW1 said that 5% interest was not stated in Exhibit ANM 12 but DW2 said under cross-examination that the request of the refund was with an interest.
I find that even though, the deduction made was justified by the defendants to be as a result of over payment but the failure of the defendants, particularly the 2nd defendant to explain the discrepancy is not acceptable.
I wish to note that Exhibits ANM6 and 11 reveal that there were three refunds amounting to
N200,221.88that were made by the 1st defendant to the 2nd defendant from the Retirement Savings Account (RSA) of the Claimant on 10th September 2015, before the deduction of N490,972.45 was made. However there is no evidence for the request of the said deductions of N200,221.88.
It is instructive to note that although the claimant stated in his reply to the 2nd defendant's amended statement of defence that the sum of N200,221.88 was deducted and not accounted for, but there is nowhere in the claimant's statement of facts and in fact in the reliefs sought that he asked for the said sum to be paid to him. It has also not been shown that the claimant has amended his statement of facts or reliefs sought. I need to say here that a reply should not take the place of amendment of the statement of fact, for such will over-reach the defendant. A reply is simply an answer or response to any issue raised by the defendant in his Defence and which the claimant seeks to challenge, deny or admit or object to either on the grounds of law or misstatement of the cause of action. It is not permissible in a reply to the defence to raise a new cause of action not set out in the complaint. The claimant must not in his reply make any allegation of fact or raise any new grounds of claim different from what is contained in his statement of fact. See Oscar Concord Finance and Securities Limited V Ogunleye(2007) LPELR - 8719(CA). Adepoju V Awoduyilemi(1999) LPELR - 6703(CA).
Even though the Claimant has failed to show that he is entitled to a lump sum of
N8,357,690.88 and monthly pension of N185,720.46, there is ample evidence before this court that the Claimant is entitled to a lump sum from his entitlements upon retirement and also an amount as his monthly pension. The 1st Defendant in paragraph 11 of its pleadings and paragraph 13 of the deposition of DW1 stated that the Claimant is entitled to N10,342,116.00 as his total entitlements but can make only a lump sum withdrawal of N3,228,949 and N58,039.50 as monthly pension respectively.
In another breath however, Exhibit ANM8 which is a template made by the 1st Defendant to the Claimant on 31st May 2016 gives a recommended lump sum withdrawal to be made by the Claimant as
N5,171,058.00 and the recommended monthly pension as N42,192.98.
Although in paragraph 16 of the DW1's deposition, the 1st Defendant stated that exhibit ANM8 was wrongly prepared by its head office but this leaves a lot to be desired.
The evidence of DW2 has led further credence to what is to be paid to the Claimant's lump sum and monthly pension. Paragraph 11 of the deposition of DW2 reads,
"Defendant states that contrary to the claim of the Claimant in paragraph 23 of the statement of claim the Claimant’s allowable amount as determined by his Pension Fund Administrator (PFA) was the sum of N5,484,449.49 as lump sum and a monthly pension of N55,750.08."
None of these averments were controverted by the 1st Defendant. And it is trite that where evidence is unchallenged or uncontroverted, the court can safely act on same. See the case of Okolo v. FRN (2018) LPELR-45431(CA).
Furthermore, paragraph 17 of the statement of facts reads,
That after I was sent out from the Makurdi office of the 1st Defendant, I went to the Abuja office for the computation of my gratuity and pension where they calculated as at 3/5/2016 my recommended lump sum withdrawal to stand at N5,171,058.00, that I was not satisfied with the amount but decided to take it and leave the 1st Defendant to God, but when I returned to Makurdi, they refused to pay the money to me and said I should come for “negotiation” otherwise I be paid nothing.
The fact as stated above which is supported by exhibit ANM8 has neither been successfully controverted nor rebutted and this court under the circumstance has no option but to accept same and act on it accordingly. See
Amobi V. Nzegwu & Ors. (2013) LPELR-21863 (SC) wherein Peter-Odili, J.S.C. reiterated thus:
It is an elementary principle that a court must rely on such lawful evidence that had neither been challenged nor controverted.
See also CBN & ORS V. OKOJIE (2015) LPELR-24740 (SC).
Considering the counter- claim of the 1st Defendant, the reliefs ought therein are declaratory and they must be specifically pleaded and proved by credible evidence for the 1st Defendant to succeed. The 1st Defendant has not shown the basis of how it arrived at the said computation of the lump sum of
N3,228,949and monthly pension of N58,039.50 due to the Claimant. The 1st defendant has not proved how the computation made by its Abuja office contained in exhibit ANM8 is wrong.
There is equally no cogent evidence from the 1st defendant as regards the claims of monies received by the Claimant from one Mrs. Mwuese Sor. Exhibit AMM13 which is the payment advice shows a transaction between one Sor Terungwa to the Claimant. There is no evidence before this court as to who Sor Terungwa is and why she was not called to testify. There is also no evidence of complaint of any allegations against the claimant from the said Mrs. Mwuese Sor. It is trite that a statement of claim or statement of defence as the case may be, not followed up by evidence is deemed abandoned. See Brig-General B. A. M. Adekunle (Rtd.) V. Rockview Hotel Ltd (2003) LPELR-5414(CA) per Muhammad J.C.A.
“ It has for long been settled law that a statement of claim/defence, as the case may be, by a party with no evidence in its support amounts to abandonment of the averments contained therein however cogent and a trial court has no business in considering those averments. See: MallamInusa Yaktor v. Governor of Plateau State & 2 Ors. (1997) 4 NWLR (Pt. 498) page 216 at pages 229-230 paragraph H-B; Israel O. Aina v. United Bank for Africa Plc. & Anor. (1997) 4 NWLR (Pt. 498) page 181 at page 191, paragraphs A-C. There was therefore no evidence from the appellant to deny owing the respondent the sum claimed under paragraph 14(a).”
At any rate, even if there is enough evidence to prove the allegation of crime made against the Claimant, It will not be within purview of this Hon. Court going by section 254 of 1999 of the FRN as amended to declare the act of the alleged bribe against the Claimant as criminal or to mandate him to return the said amount. Those reliefs are out of place and I therefore find all the reliefs in the counter- claim having not been proved as unmeritorious.
From the evidence and uncontroverted facts above, suffice it to say that the following are clear;
i. The Claimant is a customer with the 1st Defendant for purpose of his retirement benefits.
ii. The Claimant has Retirement Savings Account with the 1st Defendant amounting to
N10,342,116 before filing of this suit.
iii. The 2nd Defendant oversees the activities and transactions of the 1st Defendant with regards to retirees registered with it.
iv. The Claimant upon retirement is entitled to a certain amount from his total savings as lump sum and then as monthly pension.
v. The amount due to the Claimant as lump sum and monthly pension is the crux of this suit.
Having exhaustively considered the evidence and exhibits before the court and applicable law, I am of the opinion that the case of the Claimant succeeds only as to the following orders;
1. That the Claimant is entitled to a lump sum of
N5,484,449.49 and monthly pension of N55,750.08 from 2015 as stated in Exhibit ANM8.
2. That the Claimant is entitled to a refund of onlyN23,379.64 as interest deducted from his Retirement Savings Account by the 1st Defendant on 15/9/2015.
3. That the 1st Defendant shall pay the Claimant the lump sum of
N5,484,449.49 and monthly pension of N55,750.08from 2015 , and the 2nd defendant shall refund to the claimant the sum of N23,379.64.
4. The said sums shall be paid within 30 days of this Judgment, failing which it shall attract 10% interest per annum until the judgment sum is fully liquidated.
N50,000 cost is awarded against the 1st Defendant in favour of the Claimant.
Judgment is entered accordingly.
HON. JUSTICE S. H. DANJIDDA