IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: November 6, 2015 SUIT NO. NICN/CA/53/2013
1. MRS. JENNY EDEM
2. AKPOKE ASIKONG AKPOKE
3. EJA ASIKONG AKPOKE CLAIMANTS
4. EKEBI A. AKPOKE 5. EBEI ASIKONG AKPOKE
1. THE NIGERIAN POLICE FORCE
2. INSPECTOR GENERAL OF POLICE
3. DIRECTOR, POLICE PENSION OFFICE DEFENDANTS
4. FEDERAL MINISTRY OF POLICE AFFAIRS
5. COMMISSIONER OF POLICE (CROSS RIVER STATE
Mercy A. Ekpuk for claimants. Nenfort Amos for 3rd defendant, holding brief for Mrs K. Kida. No appearance for 1st, 2nd, 4th and 5th defendants.
The claimants filed this complaint on 15th March 2013 seeking the following reliefs jointly and severally against the defendants:
1. Payment of pension and gratuity due to the deceased Emmanuel Akpoke, to the claimants as his death benefits and special damages.
2. Payment of N100 Million only for the mental and psychological trauma suffered by claimants and the bereaved family of late Emmanuel Akpoke, as general damage.
3. Payment of N10M (Ten Million Naira) as cost of litigation.
Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon.
The 1st, 2nd and 5th defendants did not enter appearance or defend the action. The 3rd and 4th defendants entered appearance and each filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the suit.
The 4th defendant’s objection was struck out for want of diligent prosecution. The 3rd defendant’s objection was dismissed in a considered ruling delivered on the 29th September 2015. The 3rd defendant filed a statement of defence on the 15th June 2015. None of the other defendants filed any defence process.
The claimants’ case on the pleadings is that they are the children of late Emmanuel Akpoke, who died on the 15th December 1992, intestate, in the University of Calabar Teaching Hospital, as a result of cerebro-vascular accident, while in active service. They averred that the 2nd and 3rd claimants are the registered next-of-kin of their late father Emmanuel Akpoke.
The claimants pleaded that deceased Emmanuel Akpoke (SP) was a staff and officer of the 1st defendant and was promoted to the rank of Superintendent of Police on the 1st January 1989 and that the 3rd defendant is the body responsible for the payment of pension, gratuity as well as payment of death benefits to families of Police Officers who die while in active service.
The claimants pleaded that after the death of their father, they began the process for payment of his death benefits; that a police wireless message, dated 23/12/1992, was sent to Calabar, directing fringe benefits/relief package to be paid to the 2nd claimant as the deceased’s next of kin.
The claimants averred that a letter sent from Director of Finance and Admin, Police Headquarters, Calabar, dated 6th April, 1993 with the particulars of their late father was sent to the Director of Police Pensions recommending that the death gratuity due to the deceased's estate be paid to the 2nd claimant as registered next of kin through the Administrator General, Ministry of Justice, Sub Treasury, Abi Local Government Area, Cross River State.
They pleaded that the file of their late father with all the documents needed for preparation of pension/gratuity was sent to the Police Pension Office, Lagos, in 1993 and they were advised by defendants to wait till they hear from them.
Claimants were always in contact with the pension office, Calabar, for any information from defendants. The 2nd claimant while following up on their late fathers death benefits travelled to Lagos to the Police Pension Office, Lagos and discovered that the file earlier sent was torn and most of the documents were missing. The office of the 1st defendant in Calabar prepared a new file which was forwarded to the Police Pension Office.
The claimants averred that a team of Police Pension Officers came to Calabar to see the 2nd claimant and request for other documents which they collected on 09/02/2009. That since then they heard nothing from the defendants and on further inquiries by the 2nd claimant at the Pension Office now in Abuja, he was told his late father’s file could not be found despite all efforts he made.
The claimants further averred that the particulars of death of their deceased father was sent to the Director, Police Pension Office, Ikeja- Lagos in the letter dated, 8th January, 2009. That despite all the efforts they have made the defendants failed, refused and neglected to pay to the claimants the death benefits due to their deceased father. They pleaded that they instructed their Solicitors, the law firm of Tony Ukam & Co to write to defendants for payment of their late father’s death benefits. That their Solicitors have written several letters to the defendants yet the defendants have not paid death benefits, gratuity and pension to the family since their father died on 15th December, 1992.
The claimants averred that the late Emmanuel Akpoke was enlisted by the 1st defendant on 1/12/1959 and died on 15/12/1992 while in active service to the Nation and that his last place of National assignment was at the office of Provost, Nigerian Police Force, Calabar, Cross River State. They pleaded that the entire family of the deceased have suffered untold hardship, mental and psychological trauma and have been left completely destitute, after the death of their father due to the failure and/or refusal of the defendants to pay their father’s death benefits. The 1st claimant gave evidence in support of the case of the claimants. Her evidence in chief was by witness statement on oath which she adopted. It was in the exact terms of the pleadings. The defendants did not appear in court to cross examine the witness. The case of the claimant was then closed.
The 3rd defendant’s case on the pleadings is that with the establishment of Pension Transitional Arrangement Directorate (PTAD) in September 2013 (in line with the Pension Reform Act 2004), the Police Pension Office was incorporated as a Department under PTAD. It pleaded that it inherited numerous files and records from the former Police Pension Office with questionable, fictitious and manifestly unreliable records and that a number of the records inherited are also missing. That Several attempts were made to sanitize and return integrity to the Pension records and in July 2014, a mini-verification exercise was organized. The 3rd defendant pleaded that the claimants counsel, Mr. Etim Effiong was informed of the verification exercise told to pass the information to his clients. The 3rd defendant pleaded that the claimants came for the verification but could not produce some of the relevant documents required for the verification exercise; and they were informed by the verifying officer to make available all relevant documents that will enable them include the name in the payroll but that the claimants never showed up with the said documents.
The 3rd defendant pleaded that subsequently, a 3 stage nationwide verification exercise was conducted for Police Pensioners/ Next of Kin of Deceased Officers but the claimants did not show up. That verification has been on-going since January 2015 for Police Pensioners and Next-of-Kin who may have missed the verification for their zones, at the premises of the 3rd Defendant in Maitama, Abuja. The 3rd defendant averred that the Pension Transitional Arrangement Directorate (PTAD) cannot include the name of a beneficiary on the payroll without verifying the claim of the Pensioner or Next of Kin of a deceased officer. That paying the pensioners/Next of Kin without following due process will cause unnecessary financial loss to the Government as people without genuine claim may come up with claim that cannot be substantiated.
The 3rd defendant pleaded that the only proper thing for the claimants to do is to submit their documents for verification for them to be entitled to any claim and that by their action(s), they failed to pursue their claims diligently; that no cause of action has been disclosed against the defendants. The 3rd defendant did not lead any evidence in support of its case.
The law is trite that if a party fails to lead evidence in support of his pleadings, the averments will be taking as having been abandoned. See Help Ltd v Silver Anchor Ltd  Vol 5 MJSC 171. This action is therefore undefended by all the defendants. The claimant’s final address is dated 8th July 2014 and filed the same day.
Learned counsel submitted the following issues for determination:
1.Whether the claimant has been able to prove his case before this Honourable Court.
2.Whether the deceased family is entitled to be paid their father’s gratuity and pension which are due to him as an employee of the Federal Government of Nigeria who has served this nation meticulously and actively for thirty three (33) years and two (2) weeks before he met his untimely death.
3.Whether the continuous refusal, neglect to pay the death benefits which accrued to the deceased Late SP Emmanuel Akpoke’s family amounts to gross infringement of Section 210(1-4) of the 1999 Constitution of the Federal Republic of Nigeria and Pension Reform Act Cap P.4 Laws of the Federal Republic of Nigeria 2004.
She submitted that by the combined effect of Section 135, 136 & 137 (1) of the Evidence Act, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgement of the court would be given, if the evidence were produce on either side, regard being had to any presumption that they may arise on the pleadings. She submitted that on the evidence adduced the claimants have proved that the deceased was a Nigerian Police Officer who served the Nigerian Police Force for 33 years and died interstate while in active service. Counsel submitted that the 3rd defendant has in clear and unequivocal terms admitted non-payment of the deceased gratuity/pension and that what is admitted need no further proof.
She further submitted that the unchallenged evidence of the claimants ought to be accepted by the court as proof of the facts contained therein; and that once an evidence is unchallenged and uncontroversial, a court has a duty to act on it where it is credible citing Magaji v Nigerian Army  8 NWLR (Pt. 1089) 338 & 351, Adim v N.B.C Ltd  9 NWLR (Pt. 1200) 543 & 549, Alhaji Jibran Babale v Innocent Eze  11 NWLR (Pt. 1257) 48 & 71.
She referred to Section 210 (1-4) of the 1999 Constitution and submitted that the pension rights of public servants are protected and that the Constitution expressly provides that the entitlement due to the deceased family shall not be withheld to their disadvantage. It was her further submission that by the combined provisions of Section 5 (1) & (2), and Section 9 (3) of the Pension Reform Act Cap P. 4, LFN 2004 that the deceased family is entitled to his death benefits.
I have carefully considered the processes, documentary evidence and written submissions. The effect of a party’s failure to call evidence in defence of a claim against him is that he is presumed to have admitted the case made against him by the other party and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd  Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig.  6 NWLR (Pt 1030) 221, Okolie v Marinho  15 NWLR (Pt 1002) 316.
This however does not mean automatic victory for the claimant because he must succeed on the strength of his case and not rely on the fact that there is no defence before the court. The absence of evidence by the defendant does not exonerate the claimant of the burden of proof placed on him by law.
See Section 131 (1) & (2) of the Evidence Act 2011, Ogunyade v Oshunkeye  15 NWLR (Pt 1057) 218.
The claimant must adduce credible evidence worthy of belief. Evidence does not become credible merely because it is unchallenged. See Akalonu v Omokaro  8 NWLR (Pt 821) 190.
The question which arises is whether the claimants have adduced credible evidence in proof of their claims. I find that the claimants have established that they are the children of the late Emmanuel Akpoke (SP) and the 2nd and 3rd claimants are his registered next of kin.
The law is settled that in the determination of the employment rights, the employee must place before the court the contract of service that provides for his rights and obligations. See Fakuade v. O.A.U.T.H.  5 NWLR (Pt. 291) 47, Idoniboye-Obe v. NNPC  2 NWLR (Pt. 805) 589 at 630. The evidential burden of proof of establishing the terms of the contract of service is on the employee. See Section 131(1) and (2) of the Evidence Act 2011.
The claimants have placed before the court their deceased father’s appointment documents into the Nigeria Police Force and other required component pieces of evidence relating to his appointment, status, service details and death certificate.
I am satisfied that the claimants have adduced credible evidence worthy of belief in support of their claims and have discharged the legal burden of proof placed on them by law.
I find that the defendants have refused to pay to the claimants their late father’s death benefits since his death on 15 December 1992 in spite of all the efforts made by them.
I believe that the defendants have no defence to this action. The defendants are to pay the claimants the gratuity and other death benefits of late SP Emmanuel Akpoke. It is most unfortunate that the family of late SP Emmanuel Akpoke who died in the service of his country 23 years ago will be treated in this dreadful manner by the Force their late father worked for.
The family of any deceased Policeman in this country should not be put through such harrowing experience as the claimants have gone through just to be paid death benefits that they are entitled to. That they have had to approach the Court for succour and assistance to collect their father’s death benefits after all the effort they have made is a shame and disgrace to the Force. The claimants have asked for an award of general damages. They have suffered untold hardship, trauma and financial hardship by the actions of the defendants.
I believe that an award of general damages which the claimants are entitled to will meet the justice of this case. Consequently, and on the authority of Section 19 (d) of the National Industrial Court Act, 2006,
I make an award of general damages in favour of the claimants in the sum of Five Million Naira (N5 Million). For all the reasons given above, I make the following orders:
1.The defendants are to pay the gratuity and other death benefits of the late SP Emmanuel Akpoke to the claimants as special damages.
2.The defendants are to pay general damages in the sum of Five Million (N5 Million) for mental and psychological trauma suffered by the claimants and entire family members of the deceased.
3.The defendants are to pay costs of N150,000.00 to the claimants. 4.All payments are to be made within 90 days from the date of this judgement.
Judgement is entered accordingly.
Hon Justice O.A.Obaseki-Osaghae