IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 30TH DAY OF JUNE, 2020
SUIT NO: NICN/MKD/84/2019
MR. EMABO ADAKOLE ERIC.....................................................................CLAIMANT
1. BUREAU OF SALARIES AND PENSION BENUE STATE
2. THE HEAD OF SERVICE CIVIL SERVICE BENUE STATE/THE ACCOUNTANT GENERAL OF BENUE STATE........................ DEFENDANTS
3. THE ATTORNEY GENERAL AND COMMISIONER OF
JUSTICE BENUE STATE
4. GOVERNMENT OF BENUE STATE
J.I. Tyoapine for the Claimant.
V. A. Nyamtamen (SSC) Benue State Ministry of Justice for the Defendants.
By an Originating Summons dated 21/10/2019 and filed on the 23/10/2019, the Claimant sought the determination of the following question:
"Whether by the combined effect of the provisions of section 210(1) (2) of the 1999 constitution, Federal Republic of Nigeria(as amended) and section 11(1) (3) 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. Emabo Joseph Sunday (Deceased) been the next of kin."
Upon the determination of the above question, the claimant claims for the following reliefs;
“a. DECLARATION that the Claimant is entitled to be paid in the circumstances the sum of Four Million Nine Hundred and Sixty Nine Thousand and Nine Two Naira (4,969,092.00) only as gratuity and Six Million Six Hundred and Twenty Five Thousand and Forty Five Naira (N6,625,045.00) only, as pension. Total sum is Eleven Million Five Hundred and Ninety Four Thousands One Hundred and Thirty Seven Naira (N11, 594, 137.00).
b. AN ORDER of the Honourable Court directing the Defendants to pay to the Claimant the Total sum of Ten Million, Nine Hundred and Ninety Two Thousand, One Hundred and Thirty Seven Naira (N10, 992, 137.00) Only, After deducting the Six Hundred Thousand Naira (N600,000.00) only, that had been paid to the Claimant and his mother jointly, as being the death benefits/entitlements of Mr. Emabo Joseph Sunday.
c. AN ORDER of the Honourable Court directing the respondents to refund back the sum of Sixty Thousand Naira (N60, 000,.00) only, being the 10% deducted from the Six Hundred Thousand (N600,000.00) only, paid to the Claimant and our mother jointly without explanation.
d. The cost of filling this suit
e. General damages of Two (20 million Naira(N2,000,000.00) only, for the sufferings and untold hardships the Defendants have caused the Claimants and other beneficiaries in the circumstance of this case.
f. 10% interest on the judgment debt from the date of the judgment until the entire judgment debt is paid.”
The Originating Summons is supported by 22 – paragraph affidavit. The claimant placed emphasis on all the paragraphs thereof. 12 exhibits were also attached. Some of the said paragraphs of the affidavit are hereby reproduced for ease of reference.
"4. That the Claimant is the next of kin to our father, late Emabo Joseph
Sunday, who until his death was in active service with Benue State Government, with Ministry of Education, Science and Technology.
5. That our late father was working with the Ministry of Education Benue State Civil Service one of his letter of promotion is hereby mark (sic) as Exhibit “E1”.
6. That before the Claimant became the next of kin after the demise of our father, our mother Mrs. Emabo Ada (Late) was named next of kin. A letter from ministry of Education address to the Registrar High Court introducing her as the next of kin is hereby attached as Exhibit “E2”.
7. The High Court of Justice Benue State granted our mother letters of Administration after the death of our father. The letter is hereby annexed and mark as Exhibit “E3”
8. That the State Government through this Permanent Secretary Bureau for Salaries and Pension calculated the death benefit of our late father and handed over to our mother as next of kin which is the sum of Four Million Nine Hundred and Sixty Nine Thousand and Ninety Two Naira(N4,969,092.00) Forty Five Naira (N6,625,045.00) only, as Pension. Total sum of Eleven Million Five Hundred and Ninety Four Thousand One Hundred and Thirty Seven Naira (N11,594,137.00)only. It is hereby attached as exhibit “E4”.
9. That after the calculation as stated above in paragraph 8, our mother was only paid the sum of Four Hundred Thousand Naira (N400,000.00) only. One of the pay voucher paid to our mother before her death on the 15/7/2018, dated the 16/9/2017, is hereby attached as Exhibit “E4A”.
10.That, thereafter we lost our mother, who was next of kin to our late father entitlement, to the cold hands of death. The death certificate is hereby attached as Exhibit “E5”.
11.That after the death of our mother, our late father employee, Benue State Government through Ministry of Education Science and Technology wherein our father was working, then wrote another letter of introduction, introducing the Claimant as next of kin tot our late father/mother`s estate and to take over as next of kin and collect our late father entitlements. The letter is hereby attached as Exhibit “E6”.
12.That our mother died on the 15/7/2019 and after the death of our mother, the Claimant (my younger brother) who is the first son of the family then took over as the next of kin. The declaration as to next of kin sworn at the High Court of Justice Benue State is hereby attached as Exhibit “E7”.
13.That the claimant then obtained letters of administration at the High Court of Justice Benue State, to take over payment of our late father (sic) death benefit. The letters of administration is hereby attached as Exhibit “E8”.
14.That the state Government through the Permanent Secretary Bureau for Salaries and Pension again handed over to the Claimant the calculated death benefit of our late father as next of kin which is the sum of Four Million Nine Hundred and Sixty Nine Thousand Ninety Two Naira(N4, 969,092.00) as gratuity and Six Million, Six Hundred and Twenty Five Thousand and Forty Two Naira (N6, 625,042.00) only, as Pension. Total sum is Eleven Million, Five Hundred and Ninety Four Thousand, One Hundred and Thirty Seven Naira (N11,594, 137.00) only. It is hereby attached as Exhibit “E9”.
15.That after the calculation in paragraph 14 above, the State Government only paid the Claimant Two Hundred Thousand Naira (N200,000.00) only, on the 14/12/2018 , wherein all the payments made were from gratuity the balance is Four Million, Three Hundred and Sixty Seven Thousand and Ninety Two Naira (N4, 367,092.00) only, The pay voucher is hereby attached as Exhibit “E10”.
16.That after the development in paragraph 15 above, the Ministry of Justice then paid the Claimant the Sum of One Hundred and Eighty Thousand Naira (N180,000.00) only, no further payment has been made till date. Photocopy of the cheque address (sic) to the claimant is hereby attached as Exhibit “E11”
17.That the Defendants had paid the Total sum of Six Hundred Thousand (600,000.00) only, from gratuity leaving the balance of Four Million Three Hundred and Sixty Seven Thousand and Ninety Two Naira (N4,367, 092.00) only, to the claimant and our mother jointly, and pension, the sum of Six Million, Six Hundred and Twenty Five Thousand and Forty Five Naira (N6,625,045.00).
18.That the total sum owned (sic) the claimant is Ten Million, Nine Hundred and Ninety Two Thousand, One Hundred and Thirty Seven Naira (N10,992,137.00)only.
19.That at each payment made to the claimant and our mother jointly 10% deduction unaccounted for is always deducted for by the defendants.
20.That the Claimant engage the services of a lawyer who wrote a demand letter to the 1st Defendant and copied the 2nd – 4th Defendants, which was equally served on them, wherein they all acknowledge same. The demand letter acknowledgment copy is hereby attached as Exhibit “E12”(sic)
21.That failure, Neglect and or refusal of the defendants to pay our father`s death benefits/entitlements has been causing the Claimant and entire family serious untold hardship."
In the written address which learned counsel for the claimant filed in support of the Originating summon, counsel presented for determination of the Honourable Court the sole issue of 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.
On the issue so formulated, counsel referred the court to the provisions of Section 210 of the 1999 Constitution( as amended) and urged the court to answer the lone issue in the affirmative.
It is the submission of counsel that the Defendants have failed to comply with the constitutional provision by paying the death benefit of the claimant's late father after the claimant had made a demand for that.
Counsel for the Claimant also referred the court to the provisions of section 11(1) of the pension and gratuities law of Benue State which state the claimant is dully entitled to the death benefit of his late father, being the next of kin.
Counsel finally submitted that by the combine effect of the provisions of the 1999 constitution and the Benue State pensions and gratuities law, the withholding of the claimant's father's death benefits by the defendants is a breach of the said provisions stated above.
The Defendants filed memorandum of appearance on 28/11/2019. A 7 – Paragraph Counter Affidavit deposed to by Richard Ihua, a Registrar in the Directorate of civil litigation, Ministry of Justice Makurdi was filed. Paragraphs 4, 5 and 6 which are most relevant state thus:
"4. That the Defendants admit paragraphs 1-3 of the claimant's supporting affidavit as they relate to facts within the knowledge of the claimant.
5. That the Defendants deny the rest of the paragraphs of the affidavit and shall put the claimant to the strictest proof thereof.
6. That all Defendants documents and /or Exhibits annexed to the motion are photocopies of public documents "
A written address of counsel for the Defendants was filed in support of the Counter Affidavit. It featured the sole issue for determination as being: Whether the claimant has successfully proven his case to be entitled to judgment, having put before this Honourable court photocopies of public documents in proof of his case.
In submission, learned counsel for the Defendants urged that the issue be answered in the negative. That the exhibits the claimant has put before the court are all photocopies and cannot stand in evidence before the court. They are therefore wrong type of evidence which automatically defeats his case. Citing the case of Fawehinmi V. IGP (2000) FWLR (PT. 12)2015. Counsel submitted that the only secondary evidence of a public document that is admissible in law is the CTC of that document.
Claimant’s counsel in his reaction filed a further affidavit of 8 paragraphs and a written address and urged the court to hold that the documents attached to the claimant's affidavit do not need any certification, citing the cases of British American Tobacco NIG. Ltd. V International Tobaco Co Plc (2013) 2 NWLR (Pt. 1339) Pg. 493 & Jukok International Ltd V Diamond Bank Plc (2016) NWLR (Pt. 1507) 55 among others.
OPINION OF THE COURT
I have gone through the processes filed by the parties and their respective submissions. It is not out of place to state that the purpose of commencing action by way of originating summons is to simplify and speed up procedure and can only be useful where there is no serious dispute concerning facts. See the case of ATTORNEY GENERAL ADAMAWA STATE V. ATT. GEN. FEDERATION (2005) 12 SCNJ 35 (P. 14, Paragraphs. B-C)
The Originating Summons of the Claimant basically asks for a declaration that the Claimant is entitled to be paid the pension and gratuity of his late father.
The Claimant also asks a refund of the sum of 60,000 deducted as tax.
The Defendants in their counter- affidavit to the originating summons have denied the claims of the Claimant and stated that the documents attached to the claimant's affidavit in support of the originating summons are photocopies of public documents and therefore need to be certified.
It is pertinent to state that by virtue of section of 12 of the National Industrial Court Act, 2006, this Court can in the interest of justice depart from the provisions of the Evidence Act and admit documents in evidence. Similarly section 3 of the Evidence Act, 2011 also states thus; "Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria."
Arising from the above, I hold the view that the argument canvassed by the defendants' counsel that the documents attached to the affidavit in support of the originating summons are inadmissible is of no moment and is hereby dismissed.
Section 210 of the 1999 Constitution provides for the protection of pension rights. Subsection (1) thereof says: Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.
Subsection (2) says: 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 relevant provisions of the Benue State Pensions and Gratuities Law being a subsidiary legislation to the 1999 Constitution of the Federal Republic of Nigeria (as amended) tows the same line on the protection of pension rights.
These Constitutional provisions are statutory fulcrum for the payment of pensions and gratuities and same cannot be taken away for whatever reason and the court must give force to them. The words are straight forward and unambiguous and must be given their simplest meaning without more. See the case of Ogaga V. Umukoro (2012) 205 LRCN 66 at 70.
Certainly, the combined effect of the provision of Section 210 of the 1999 Constitution (as amended) and Section 11 of the Benue State Pensions and Gratuities Law Cap 125, Laws of Benue State 2004, does not entitle the Defendant to unlawfully deny and/or withhold from the claimant his late father's pension and gratuity which have been computed and submitted to the claimant. The Claimant therefore has constitutional right to expect
immediate payment and receipt of his late father's Gratuity and Pension from the Defendants.
It is therefore illegal and unlawful for the Defendants to deny and/or withhold the benefits of pension and gratuity from the Claimant under any pretext. It is simply inexcusable. See the case of Martin V. Kolawole. (2011) LPELR-4475(CA).
I need to also refer to the argument of Mr. V. A. Nyamtamen, learned Counsel for the Defendants that by virtue of the Benue State Internal Revenue and Administration law, 2015 published in Gazette NO. 17 Vol. 40 of 20/4/2015 and the 2nd schedule of that law, 10% is charged as tax by the state hence the claim for the refund of 60,000 deducted as tax should be dismissed. However, this law appears to be in contravention of section 210(4) of the 1999 constitution which says that "Pensions in respect of service in the service of a state shall not be taxed" Consequently, the said deduction is by virtue of section 210(4) above unlawful and void.
Flowing from the above, I hold the view that the proper interpretation of section 11 of the Benue State Pension and Gratuity Law Cap 125 Laws of Benue State 2004 and section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) leads to no other conclusion than in favour of the Claimant. I hereby find that the case of the Claimant succeeds and I order as follows:
That the withholding of pensions and gratuity of the Claimant by the Defendants is unlawful and unconstitutional.
That the Defendants shall pay to the claimant the sum of N10, 992,137.00 as gratuity and pension of his late father.
The Defendants shall also refund to the claimant the sum of N60,000 being 10% deducted as tax within 30 days from the date of this judgment failing which it shall attract 10% interest per annum until the judgment sum is fully liquidated
Judgment is entered accordingly and I make no Order as to cost.
HON. JUSTICE S. H. DANJIDDA