IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON FRIDAY, THE 24TH DAY OF JULY, 2020
SUIT NO: NICN/MKD/90/2019
1. MRS. VERONICA AGBO ……………………………………………………………. CLAIMANT
1. GOVERNMENT OF BENUE STATE OF NIGERIA
(For and on behalf of Ministries, Departments and Agencies in Benue State)
2. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE BENUE STATE.… DEFENDANTS
3. BENUE STATE LOCAL GOVERNMENT SERVICE COMMISSION
4. BENUE STATE LOCAL GOVERNMENT PENSION BOARD
T.N. Ajonye holding the brief of A.F. Adah for the Claimant.
R.B. Ayilla for the Defendants.
For determination by the Honourable Court is the claimant’s motion for summary judgment dated 2/01/2020 but filed on 27/01/2020. The reliefs set out on the face of the motion paper are thus:
"1. An order of this Honourable Court to enter Summary Judgment in favour of the Claimant/Applicant against the Defendants/Respondents herein based on the claimant’s claim as follows:
a. A DECLARATION that the refusal deliberately by the 1st Defendant to pay the gratuity and accumulated monthly pension of the claimant many years after her statutory retirement from service/employment is illegal, unlawful, wicked and unfair Labour Practice and therefore a breach of the relevant provisions of the Labour Act of Nigeria and international best practices with impunity.
b. AN ORDER of the Honourable Court compelling and directing the defendants to pay to the claimant the total sum of N9,628, 058.44 (Nine Million, Six Hundred and Twenty Eight Thousand & Fifty Eight Naira, Forty Four Kobo) only being the claimant’s gratuity and her accumulated arrears of monthly pension as contained in her pensioner’s certificate/personal Data dated the 14th December, 2017.
c. Payment of Twenty-five (25%) percent interest on the claimants’ total sum payable to her until the total sum is fully liquidated.
d. Damages and cost of this action as claimant’s counsel my (sic) argue and assessed by the Honourable Court.
e. And for such further order or orders as this court may deem fit to make in the circumstances of this case."
The applicants stated 7 grounds for the application, to wit:
"1.The Defendants have approved the statutory retirement of the claimant
from her service having attained the mandatory retirement age of 60
years in service.
2. The Defendants computed the gratuity and pension allowance of claimant as her final retirement benefits from the Defendants’ employment.
3. The Defendants fail, neglected and/or refused to pay the claimant’s gratuity of N4,412,644.32 to her after statutory retirement from service of the Defendants.
4. The Defendants also refused to regularly pay the claimant’s monthly pension of N98,404.04 to her thereby making the monthly pension to run into arrears of 53 months.
5. The Defendants have no valid defence to the claimant's claim as presently constituted.
6. The Defendants cannot deny the retirement benefits of the claimant/applicant which was duly computed by the Defendants.
7. The claimant is entitled to summary judgment of this court."
A 31- paragraph affidavit was filed in support of the application with Eight (8) Exhibits attached to the supporting affidavit. Learned counsel for the applicant also filed a written submission urging the Honourable Court to grant the motion.
It was averred by the Claimant that she was employed by the defendants on 1/10/1983 and retired on 2/5/2016 upon attainment of mandatory retirement age of 60 years. That consequent upon her retirement from service, the Auditor General for local Government Councils computed her retirement benefits which was attached as Exhibit VA-6. That she is entitled to the sum of N4, 412,644.32 as her gratuity and N98, 404,04 as her monthly pension however the defendants have not been regularly paying her monthly pension for 53 months. That the accumulated monthly pension arrears which the defendants owe her stands at N5, 215,414.2 and the summation of the total amount the defendants are owing the claimant as at 30/9/2019 is N9, 628,058.44k. The claimant averred that since her retirement from service, the Defendants only paid her four times and attached her Bank Statement of Account as Exhibit VA-7. Claimant stated that the defendants have no defence to the claim of the claimant.
In opposition to the motion for summary Judgment, the Defendants/Respondents caused a 17-paragrapgh counter affidavit of Abraham Shie, a Senior Administrative Officer of the 4th Defendant to be filed on 06/02/2020. Paragraphs 3 to 16 thereof being most relevant are hereby re-rendered hereunder:
3. That the Applicants were served the Motion of the Applicant on 3-2-2020 via their lawyers and they passed it to our office and eventually to be for reaction.
4. That paragraphs 3, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 27, 28 and 31 of the supporting affidavit of Applicant are false and make-believe.
5. That the statement of defence filed by the Defendants jointly raises serious issues that are triable and has joined issues with the claimant.
6. That the prayers of the claimant in this motion are declaratory in nature and parties have to testify on it by evidence for the court to arrive at a just decision.
7. That I have been informed by J. T. Akpe Esq, one of my lawyers on 4th February 2020 at my lawyers office at 1pm and I believe him as follows:
a. That declaratory reliefs are not proven by affidavit evidence.
b. That pension and other severance entitlements of retirees in Benue state is paid from Pension Fund under Local Government Pension Law 1987 and not from 1st Defendant/Respondent.
c. That contributors to the Pension Fund is the Federal Government, State Government, Local Government Council and other Authorities.
d. That the 4th Respondent only, which is a board makes arrangement for the effective collection of fund and treats applications for payments of retirees.
e. That the pension fund is only payable when available to the 4th Respondent to screened and approved applicants.
8. That my office intends to defend this suit with vigor and diligence and undertake not to delay this matter from progress.
9. That the exhibits attached to this motion did not clarify the issue of nebulous claims of monetary amounts of the claimant raised in the defence and the statement of account has not helped in so doing on specific figure paid as gratuity and pension so far to the claimant by Defendants.
10.That the Claimant/Applicant merely dumps huge financial documents on the court and Defendants without explaining them as it bears and applies on her claim.
11.That the claimant paragraphs 11 – 14 of the affidavit in support is unclear and ambiguous to my understanding as the 53 months arrears of pension does not disclose the amounts derivable neither is the arrears of gratuity spread in months paid the claimant.
12.That I believe that the arithmetic and specific calculations and conclusions on monies owed the Claimant can only be done by evidence via testimonies of witnesses.
13.That the indices and formula used by the claimant to arrive at the amount owe her by mentioned (sic) in affidavit evidence is clumsy and not appreciated at all.
14.That the Local government of the claimant is not sued to state its role and contribution to the pension fund under above stated law but she is likely and probable to be affected by the judgment of this court.
15.That no demand Notice for payment nor application for payment of the alleged claims of the claimant was made on the Defendant before this suit was filed as stated in Local government Pension board.
16.That this application is premature, affidavit in support full of legal arguments/conclusions and without merit and will not be in the interest of justice and equity to grant this application as the claimant will not be prejudiced by its refusal."
The written address of the learned counsel for the defendants/respondents dated and filed on 6/2/2020 accompanied the counter affidavit.
Briefly, it is important to note that the instant suit was commenced by way of Complaint. The Statement of facts speak of the claimant being a retired Public Servant. That she was employed in 1983 and rose to the position of Chief Catering Officer on Grade Level 14 as at 1/01/2015, a position she held until attaining the mandatory retirement age of 60 years when she retired with effect from 2/05/2016. Upon retirement of the claimant, the Auditor-General for Local Government Councils computed her retirement benefits, showing that she is entitled to N4,412,644.32 in gratuity and N98,404,04 in monthly pension. The Claimant has averred that she is owed 53 months arrears of pension amounting to N5,215,414.12k(Five Million Two Hundred and Fifteen Thousand, Four Hundred and Four Naira Four Kobo)Only. The claimant has duly pleaded relevant documents, to wit: appointment letter, confirmation letter, letter of deployment, letter of offer of promotion, letter of approval of statutory retirement dated 18/07/2017, Claimant's life pensioner's certificate/personal Data and Claimant's modified salary table payment staff clearance warrant.
Cumulatively, the claimants has a claim for arrears of pension and gratuity amounting to N9,628,058.44k (Nine Million, Six Hundred and Twenty Eight Thousand Fifty Eight Naira Only).
On the other hand, the defendants stated in their statement of defence that pensioners and workers of the State were scheduled for screening regularly to ascertain their eligibility to be paid their entitlements as a result of ghost workers and pensioners. That the Claimant is likely to be among those who were unable to attend the screening exercise. That the Claimant needed to be further verified by the computing system to be properly captured for payment of pension and outstanding gratuity. That the Claimant did not display her Bank Statement of Account and that Okpokwu Local Government Council who is the employer of the claimant and a juristic person is not joined in this suit and renders the suit incompetent. That as a result of the world economic recession that has affected the economy of the Country particularly Benue State in recent times, the state has not received sufficient funds from the Federation Account to cater for payments of staff and pensioners' entitlements. That payment of pension has to be ripe or matured for payment via appropriation process by the State House of Assembly or allocations to the 4th defendant from the respective local Government of the claimant for payment.
Claimant also filed a reply to the defendants' joint statement of defence
Having gone through the processes filed before the court and the documents presented, It is worthy of note that this suit is primarily a claim under Summary Judgment Procedure for owed pensions and gratuity.
Summary Judgment procedure is similar to the undefended list procedure, in the sense that it is designed to enable a party obtain Judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the court that it should be allowed to defend the action: See; THOR LTD.V. FCMB LTD. (2005) LPELR-3242(SC).
Cases that can be placed for Summary Judgment procedure are such cases that involve recovery of debt and or liquidated money as in the instant case. The term liquidated money demand or liquidated sum means a debt or other specific sum of money usually due and payable, which amount must have already been as ascertained or capable of being ascertained as a mere matter of arithmetic without any other further investigation. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale or charges or other positive data; it is said to be liquidated. See; the case of AKPAN V. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD.(2013)LPELR-20753(SC),(2013)12NWLR(PT.1368)377AT400,
The question of whether or not a matter qualifies for Summary Judgment procedure turns upon the court’s exercise of discretion and on assessment of the capability and viability of the intended defence to the action. In essence, this court is required to determine whether or not the defendants have a defence to the applicant`s Summary Judgment application.
There is however a caveat to the nature of the defence that the court can accept; such that is direct, cogent and on the merit. The caveat to the Summary Judgment procedure is intended to act as a safety net; to afford a defendant the opportunity to adequately put across his case against the Claimant who has brought a Summary Judgment Application.
The Supreme Court has held in Obitude V. O.C.B.(2014)LPELR-22693 (SC) that the principles governing an application for Summary Judgment is that a defendant who has no real defence to a suit should not be allowed to frustrate or cheat the plaintiff out of Judgment and what is required of the defendant is to establish that he has a good defence by showing or disclosing in his statement of defence and counter affidavit such triable issues to entitle him to be granted leave to defend the action. It is not enough for the Defendant to merely deny the claim but he must set out the details and particulars of the defence.
It is not in doubt that the Defendants have a right to be heard, but for the purposes of this procedure, the law requires first, an ascertainment by this Honourable Court as to whether such defence is fit for purpose. Though the court in the exercise of its powers has to make its decision either way, however it will be inexpedient to allow a defendant to defend for mere purpose of doing so where there is seemingly no defense on the merit.
Suffice it to point out that the Defendants in their Joint Statement of Defence to the claims of the claimant have copiously traversed from pillar to post in an attempt to put-up a defence to the instant suit. Firstly, the defendants have stated that OKPOKWU local Government ought to be party to this suit. Then that the Local Government enjoys fiscal autonomy with regards to its allocation. Then again, the Defendants also stated that the claimant had not been verified and confirmed to be a legitimate staff of the Defendant, pointing out that verification exercise was intended to weed out ghost workers. That the defendant did not undergo the verification exercise, hence her status remains unascertained. The Defendants then faulted the sums claimed and lastly harped on the paucity of funds as being the reason for their inability to settle the benefits of retirees in the state.
Now, it is pertinent to note that the claimant, in proof of her claim for pension and gratuity has exhibited a cache of relevant documents, all of which this court has sighted and taken notice of. Those avalanche of documents speak well for themselves. All the figures pertaining to the Claimant`s entitlements were stated therein.
The law is settled that the right of a retiree to earn his/her pension and gratuity after meritorious service is constitutionally guaranteed. Section 210 of the 1999 constitution as amended is apt for that purpose. There can be no gain-saying that a letter of offer of appointment, letter of confirmation of appointment, letters of promotion, letter of approval of retirement and the calculation of pension and gratuity of the claimant by the 4th defendant contained in the claimant's life pensioner's certificate adequately dispel the notion or possibility of the claimant being undeserving of retirement benefits or questionable status.
Whilst it is understandable that there is a need to safeguard the process meant to cater for retirees through administrative measures such as the touted verification exercises; with respect, that should not constitute a hindrance or obstacle to be deployed to frustrate and/or deny deserving retirees of their retirement benefits. That will not be acceptable for the fact the claimant has retired since 2016 without being paid her gratuity and pension.
Ordinarily, a claim for arrears of pension and gratuity is not so different from a liquidated money demand in the sense that it is a claim for ascertainable sum(s) of money owed. Bearing this in mind, the case of the claimant appears clear cut; she is entitled to be paid retirement benefits but has not been paid. The reason though is that the Defendants sought to cast doubt on the legitimacy of the claimant to make or maintain a claim for her pension and gratuity. With respect, I do not see this as being an issue of substance.
What is concerning though is the fact that given the nature of the summary judgment procedure it is to enable claimant obtain Summary Judgment without the normal trial, where his case is patently clear and unassailable. However, it is not designed to shut out a defendant who can show that there is a triable issue. Thus, in determining whether a defendant has a good defense to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend, it is not necessary for the trial Court to decide at this stage whether the defense has been established. What is required is simply to look at the facts deposed to in the defendant's deposition on oath or statement of defense, where applicable, and see if they can prima facie, afford a defense to the action. The statement of defence and or the depositions on oath in support of the notice of intention to defend must show that the grounds for seeking to be heard in defence are not frivolous, vague or designed to delay the trial of the action. It must show there is a dispute between the parties. See. SODIPO V. LEMMINKAINEN (1986) 1 NWLR (PT. 15) 220.
On the issue of OKPOKWU Local Government Council not being joined as party, it is settled law that the court has a duty to ensure that all parties likely to be affected by the result of an action are joined in the action. OKUKUJE V AKWIDO(2001) LPELR-2526(SC).
Generally, parties in a suit are those persons whose names appear on the record and a claimant who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire and intention to sue. See; Green V. Green (1987) LPELR-1338(SC).
The rationale for a person to be a party in an action is that he should be bound by the result of the action. It follows naturally that the question to be settled in an action must be one which cannot be effectually and completely settled unless he is a party. See; Believers Fisheries Dredging V. U.T.B. Trustees Ltd. (2010) LPELR – 3864 (CA).
In the instant case, it is the prerogative of the claimant to choose the party to sue especially if her suit will not be affected by the non-joiner. The rationale for suing anyone at all is to say that there exists a cause of action against such a one, and the determination of which would invariably earn a remedy in favour of the claimant against the Defendant. In this case, the Claimant has sued all parties that she deems essential to her claim and who she has genuine belief that she has a cause of action against and would likely get remedy from. It is therefore of little consequence that she has elected not to have the Local Government as party to the suit. To my mind, the local government will at best be a nominal party to this suit, even if it were made party to the suit. The fact is that all parties necessary to the determination of the instant suit are already before the Honourable court.
I hold the respectful opinion that it is possible for the court to adjudicate on the cause of action set up by the claimant without Okpokwu Local Government being added as a defendant.
Lastly, the point has to be made that it is absolutely no defense to state that a retiree cannot be paid retirement benefits for the reason being that there is a paucity of funds. To put in a proper context, a retiree earns his pension and gratuity even whilst in employment and only becomes payable contingent upon meritorious retirement.
It is manifest from the defendants' counter affidavit that there does not appear to be any defence on the merit to any of the Claims upon which this court will refuse the Claimant's application for Summary Judgment.
Throughout the Defendants' counter affidavit and written address against the claimant's application for Summary Judgment, no cogent reason was advanced rendering the claimant’s supporting affidavit to the application for Summary Judgment in effective.
It was held in UTC Nig. Ltd V. Pamotei (1989) NWLR (Pt.103) SC 244 that a Defendant whose affidavit does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the plaintiff from entering Summary Judgment.
In light of the foregoing reasoning, I have no difficulty in coming to the finding that the Claimant’s motion for summary Judgment succeeds on the following moderate terms:
The refusal by the Defendants to pay the gratuity and accumulated monthly pension of the claimant many years after her statutory retirement from service is illegal and unlawful.
The defendants are hereby ordered to pay to the claimant the total sum of N9,628, 058.44 (Nine Million, Six Hundred and Twenty Eight Thousand & Fifty Eight Naira, Forty Four Kobo) only being the claimant’s gratuity and her accumulated arrears of monthly pension as contained in her Life pensioner’s certificate/personal Data dated the 14th December, 2017.
The Defendants shall pay 10% post judgment interest yearly from the date of this judgment until the judgment debt is fully liquidated.
Judgment is delivered accordingly and I make no Order as to cost.
HON.JUSTICE S. H. DANJIDDA