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REPRESENTATION: Prof. I. A. Okafor SAN with C. I. Okafor Esq. and Jude Eze Esq. appeared for the Claimant. Mrs Ifesinachi Umeobika, Senior Legal Officer, Ministry of Justice, Enugu State appeared for the 1st and 2nd Defendants. V. O. Ene Esq. appeared with Mrs Chioma Egbuniwe for the 3rd Defendant. JUDGMENT The Claimant in this action took out a Complaint dated 21st day of February, 2012 and filed on the same date (accompanied with Statement of facts, list of witnesses, Statement on oath of the claimant, list of documents to be relied upon and copies of those documents). Endorsed on the Complaint as well as in paragraph 22 of the Statement of Facts are the Claimant’s reliefs sought against the Defendants jointly and severally as follows: a. A declaration that the Claimant is entitled to her pensions and gratuity having served as a Senior Instructor in the Institute of Management and Technology, Enugu State for at least 10 (ten) years from 25/09/87 to 31/12/97. b. An order that Claimant be paid her pensions and gratuity having served with said Institute for at least a period of 10(ten) years from 25/09/87 to 31/12/97. c. Forty percent interest on accumulated pensions and gratuity from date they became due and payable till date. Upon being served the Complaint, the 1st and 2nd Defendants entered appearance with leave of court on 15th May, 2012 and subsequently, with leave of court, filed a Statement of Defence with its accompanying processes on 29th day of November, 2012. Furthermore, the Claimant filed a reply to the 1st and 2nd Defendants’ Statement of Defence on the 20th day of February, 2013, accompanied with the Claimant’s deposition on oath. On 12th April, 2013 the 3rdDefendant, having entered appearance on 27th day of June, 2012, now filed a Statement of Defence with its accompanying processes. Thereafter, precisely on 19th of April, 2013, the Claimant filed a reply to the Statement of Defence of the 3rdDefendant along with a second additional Statement on oath of the Claimant. Subsequently however, the 3rd Defendant amended its statement of defence twice, the last being granted by the Court on 1st day of June, 2015. After the exchange of pleadings and the joining of issues by parties, the suit proceeded to trial. The Claimant gave evidence as CW1 and tendered exhibits C1 to C19. In addition Exhibits C20 and C21 were tendered by 1st and 2nd Defendants through the Claimant during cross examination. CW1 was cross examined by the learned counsel for the 1st and 2ndDefendants and that of the 3rd Defendant respectively. Thereafter the 1st and 2nd Defendants and the 3rd Defendant called their respective witnesses, DW1 and DW2. All the Defendants tendered Exhibits D1, D2, D3 and D4. However, Exhibit D5 was tendered by Claimant’s counsel through 3rd Defendant’s witness, DW2. At the conclusion of trial parties filed their respective written addresses. The 3rd Defendant’s final written address dated 24th day of February, 2015 was filed on 24th day of March, 2015. The 1st and 2nd Defendants final written address dated 28th May, 2015, was filed on 1st June 2015. The Claimant’s final written address dated 4th day of June, 2015 was filed on 5th day of June, 2015. Claimant’s reply final address took care of all the defendants’ final written addresses. Furthermore, the 3rd Respondent’s learned counsel filed a reply on points of law dated and filed on 9th day of July, 2015. The 1st and 2nd defendants’ counsel also filed a reply on points of law dated 13th July, 2015 on 15th July, 2015. In his final written address the learned counsel for the 3rd Defendant formulated and argued three issue for determination as follows: a. Whether the 3rd Defendant is responsible for the payment of Pension and Gratuity to the Claimant assuming the Claimant is entitled to payment of same? b. Whether from the facts of this case and evidence before the Court the Clamant retired on 2nd October 1997 or 31st December, 1997? c. Whether salaries overpaid a retired staff after her retirement like in the instant case is recoverable? On his own part, learned counsel for the 1st and 2nd Defendants formulated and argued two issues as follows: 1. Whether the Claimant is entitled to her claims? 2. Whether this action is statute barred? Furthermore, the learned Senior Counsel for the Claimant formulated and argued a lone issue for the Court’s determination as follows: Whether the Claimant is entitled to payment of Pension? Having considered the processes filed in this suit, the evidence led as well as the arguments and submissions of counsel to the parties, the issues that call for court’s determination are: 1. Whether in view of the facts and circumstances of this case the Claimant is entitled to her claims? 2. Whether or not the suit is statute barred? Before going into the determination of the issues let me get a summary of the facts of the case. According to the Claimant, she was employed in 1987 by the 3rd defendant through Exhibit C1, the letter of appointment. Sometime in May 1996, the Claimant applied for voluntary retirement but her application was not considered and this led to a reminder in January, 1997 and another in May, 1997. That during the pendency of these applications the Claimant continued discharging her duties and obligations and was duly paid her monthly salary up to December, 1997 (Exhibit C8). That the Claimant’s application for voluntary retirement was finally approved sometime in 1998 and Exhibit C3 is communication informing the Claimant of the said approval. The Claimant was also informed of the grant of leave of forty (40) days through the said Exhibit C3. The date on which the retirement was to take effect was not clearly stated except that it (the retirement) would take effect from the date the Claimant completed any outstanding academic matters and also inclusive of the 40 days leave. After the said communication of the approval of her voluntary retirement to the Claimant the 3rd Defendant, in an internal memo stated that the retirement date of the Claimant is 2nd of October, 1997 (Exhibit C9). The claimant however maintains that her voluntary retirement did not, and could not have, taken effect as from the 2nd of October, 1997; and it was an error on the part of the 3rd Defendant to have stated that she retired on 2nd of October, 1997. The Claimant continued with her pursuit of her retirement benefits and having become aware of the error contacted the 3rd Defendant about same. This made the 3rd defendant to write the 1st defendant about the said error in respect of her date of retirement. See Exhibit C18. However, the 2nd Defendant, instead of verifying the claims about the error in respect of the retirement date of the Claimant, the claimant maintains, wrote to her informing her of the decision to deny her the Pension. See Exhibit C15. This is basically the Claimant’s grouse in this matter. On the part of the 1st and 2nd Defendants they deny that the Claimant is entitled to any Pension at all. They maintain that since her retirement took effect from 2nd October, 1997, she had not served the minimum period of ten (10) years to enable her to claim Pension under the law. The 3rd Defendant equally maintained that the Claimant is not entitled to Pension. The 3rd Defendant maintained that the fact of the payment of salaries to the Claimant up to December, 1997 was just an overpayment which was made in error. The 3rd Defendant further argued that documents before the Court, especially Exhibit C21, show that the Claimant herself completed forms indicating that her retirement was to take effect from 2nd October, 1997. The Claimant in response though argued that she could not have retired in October, 1997 as her application was not approved till 1998. That she continued to work till her approval came in and could not have stopped work until her application was approved, hence the payment of her salaries up till December, 1997. Therefore she came to court for the determination of the dispute. In determining the first issue, the claimant’s case basically is that she retired voluntarily from the service of the 1st defendant as from the 31st December, 1997. This according to her is based on the fact that the letter communicating the acceptance of her voluntary retirement was communicated to her sometime in 1998. In fact Exhibit C3 is hereby reproduced as follows: NOTICE OF VOLUNTARY RETIREMENT FROM SERVICE Your letter dated May 2, 1996 on the above subject refers. I am pleased to inform you that the Governing Council of the Institute of Management and Technology, Enugu during its continued 112th (Regular) meeting held on 26th March, 1998, approved your voluntary retirement from the services of the Institute. The Governing Council also approved forty days terminal leave made up of 25 days duly deferred leave of 19989/99 (sic) and 15 days pro-rata leave for 1996. Please note that the retirement shall take effect from the date you complete any outstanding academic matters with you such as marking and grading of students scripts, etc. You should please call at the Personnel Department of the Registry for necessary documentation. By a copy of this letter the Bursar and the Personnel Department are hereby requested to set the machinery in motion towards the payment of your retirement benefits. We thank you for the period you served the Institute and wish you success in your future endeavors. Signed C. E. ATTAH (MRS.) REGISTRAR/SECRETARY TO COUNCIL. The letter of acceptance by the Governing Council of the 3rd Defendant did not specify the exact retirement date. It only clearly stated that the effective date was to become due upon completion of the academic work of the Claimant such as marking and grading of scripts or the statements. The Defendants on their part have argued strenuously that the effective date must be the 2nd of October, 1997. The evidence put forward for that is Exhibits C9, C20 and C21. Let me also reproduce the relevant parts of these pieces of evidence. Exhibit C9 reads: INSTITUTE OF MANAGEMENT AND TECHNOLOGY, ENUGU FROM: Registrar TO: Bursar Ref: IMT/RG/P/51 Date: May 6, 1998 EFFECTIVE DATE OF VOLUNTARY RETIREMENT FROM SERVICE OF MRS E.A. OKAFOR Further to our letter Ref. No. IMT/RG/II/XVIII/175 dated 22nd April, 1998 and following the confirmation by the HOD Food Technology that Mrs E.A. Okafor handed over all academic matter with her in September, 1997; we hereby inform you that the effective date of her retirement from service is 2nd October, 1997. With this clarification, you are hereby requested to set the necessary machinery in motion towards the payment of Mr (sic) E.A. Okafor’s retirement benefits. Thank you. Signed C. E. ATTAH (MRS.) Registrar Exhibit C20 is a Pension Form wherein the Claimant hand-filled same to show that she served in the 3rd Defendant and retired with effect from 2nd December, 1998, while Exhibit C21 is also a Record of service Form hand-filled by the Claimant where a column indicating ‘Date DUE RETIREMENT’ was completed as 02/10/1997. These pieces of evidence by the Defendants are the bedrock upon which they founded their defence to argue that the Claimant’s retirement took effect from 2nd of October, 1997. It is important to point out that the said Exhibits C9, C20 and C21 were all made in 1998 and 1999. However, subsequent to these documents, other documents were tendered. Exhibit C6 reads: Our Ref: IMT/SSE/058/Vol.IV/188 Date: 9th November, 2010 EFFECTIVE DATE OF VOLUNTARY RETIREMENT FROM SERVICE OF MRS EGOSONWA A. OKAFOR I am directed to refer to your letter dated 27th October, 2010 on the above subject matter. Please be informed that your retirement from the services of the Institute took effect from December 31, 1997 and not October 2, 1997 as was earlier communicated vide our memo Reference No. IMT/RG/P/969/51 dated May 6, 1998. Signed Jonas U. Abonyi SAR, Personnel for: Registrar The said Exhibit C6 was written in 2010 and it changed the effective date of retirement of the Claimant from 2nd October, 1997 to 31st December, 1997. The Claimant has maintained that her actual date of retirement must be deemed to be 31st day of December, 1997 because she continued to work and was paid salary by the 3rd Defendant up to December, 1997. The evidence of this is Exhibit C8. However, the Defendants have tried to explain this away as a mistake and an overpayment made to the Claimant which is even recoverable. Here it has to be pointed out that there is nothing before the Court that the 3rd Defendant had formally declared that the payment of salary to the Claimant up to December, 1997 was a mistake and a demand for its recovery made. The question therefore is whether the effective date of the Claimant’s voluntary retirement is the 2nd of October, 1997 as contended by the Defendants or the 31st of December, 1997 as contended by the Claimant herself? To start with, a voluntary retirement takes effect only upon its acceptance by the employer, very much unlike a notice of resignation which takes effect from the moment the notice is received by the employer. See WAEC vs Oshionebo (2006) LPELR-7739 (CA), OSU vs P.A.N. Ltd (2001) 13 NWLR (Pt. 731) 627, Yesufu vs Gov of Edo State & Ors (2001) 13 NWLR (Pt. 731) 517.In the instant case however, the employer, the Governing Council of the 3rd Defendant did not state the effective date of the Claimant’s retirement but only stated that it would be at the conclusion of academic work at her Department. The claimant averred and gave evidence that she was paid up to the end of December, 1997. She further under cross examination by the defendants confirmed that she had worked beyond December, 1997 up to April, 1998. The defendants attempt to explain away the fact that she was paid up to December, 1997, as a mistake does not seem to carry the desired weight when placed on the scale of justice. As argued by the learned Senior Counsel for the Claimant the 3rd Defendant had a system of checks and balances necessary to ensure that a person who is paid any salary actually works for it. This is supported by the evidence of DW2 under cross examination. I am convinced by the evidence before me that the payment of the claimant’s salary up to the month of December, 1997 shows that she had worked and the onus was on the Defendants to have led credible evidence to disprove same. This they did not do. See Cameroon Airlines vs Otutuizu (2011) 4 NWLR (Pt. 1238) 512. In fact, the explanation offered by the defendants that it was an error was not supported by any credible evidence as to how the error occurred, when it was discovered and how same was accordingly communicated to the claimant. It therefore is just an afterthought. The scale of justice in the circumstance therefore tilts in favour of the claimant. I therefore find and hold that the claimant’s effective date of retirement is 31st of December, 1997. The first issue is resolved in favour of the Claimant. On the second issue which is whether or not the suit is statute barred, the defendants have argued that the suit is statute barred. The defendants maintained that the cause of action arose in May, 1998 when the letter with reference number IMT/RG/P/969/51 was communicated to her. Therefore, according to the defendants, she should have come to court within three months as provided under Section 2(a) of the Public Officers Protection Act, Cap. P41, LFN 2004. It is quite clear from the submissions and arguments of the parties that there is no dispute over the fact that the Claimant came to court outside the three months stipulated by the Public Officers Act, the limitation law being relied upon by the defendants. However, the Claimant has argued and submitted that the cause of action of the claimant is denial of her pension and that it arose only when the defendants communicated that they were not paying her in Exhibit C15 and this was written in 2011.Nevertheless the contents of Exhibit C15 show that it was written on March 23, 2011 while the suit was instituted on 21st February, 2012. This is still outside the three months period. Be that as it may, the learned senior counsel for the claimant submitted that the pension right of the claimant is not one that can be held up by the limitation period stipulated in the Public Officers Protection Act. He relied on the provisions of Section 173 of the 1999 Constitution as well as the need to protect public interest by public policy in matters of pension rights. Learned counsel equally relied on decisions of this court in Ray Emeana vs Imo State & Ors (Unreported) Ruling in Suit no. NICN/EN/64/2012 delivered on 6th August, 2012, Emenaha vs Imo State Government & Ors, Suit No. NICN/EN/69/2012, Judgment delivered on February 19, 2013, Emaluba & Ors vs Imo State Government & Ors, Suit No. NICN/EN/109/2013, Judgment delivered on May 13, 2014 and Chukwu vs Imo State Government, Suit No. NICN/EN/66/2012, Judgment delivered on 6th August, 2012. On their own side the Defendants have relied on the provisions of Section 2(a) of the Public Officers Protection, Act and the decisions in Williams vs Williams (2008) 33 WRN 1 at 17-18 lines 40-45; Ibrahim vs Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt.584) 1; Nigerian Broadcasting Corporation vs Bankole (1972) NSCC 220; Bakare vs Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606; Fajimole vs Unilorin (2007) 2 NWLR (Pt. 1017) 74 at 88; and Egbe vs Alhaji (1990) 1 NWLR (Pt. 128) 546, amongst others. Having carefully considered the submissions and arguments of the parties on the issue, I am of the humble view that the Claimant’s suit is not caught up by the statute of limitation. This is because the claimant’s action is predicated on her right to pension which has been held to be within the exception of “continuing damage or injury” as interpreted by the Supreme Court in INEC vs Ogbadibo Local Government (2015) LPELR-24839 (SC) Per Okoro JSC at pages 57-59 paras C-C. See also Attorney-General of Rivers State vs Attorney-General of Bayelsa State & Anor (2012) LPELR-9336) (SC). The claim for pension right is said to be a continuing damage because the right to the payment for a pension accrues every month that it should be paid and if it is not, then a fresh injury is committed which makes the damage or injury a continuing one. See also CBN vs AMAO & ORS (2010) LPELR-838 (SC). This issue is also resolved in favour of the Claimant. On the whole the Claimant’s suit succeeds. I hereby accordingly order that: 1. The Claimant is entitled to be paid her pension and gratuity for having served as a Senior Instructor at the Institute of Management and Technology, Enugu for over ten years from 25th of September, 1987 to 31st of December, 1997. 2. The defendants are ordered to calculate and pay the Claimant her pensions and gratuity for the period she served, i.e. 25/09/87 to 31/12/97. 3. The pension and gratuity should be paid within sixty(60) days from the date of this judgment and thereafter at twenty per cent per annum interest. 4. The defendants shall pay the costs of this suit to claimant in the sum of sixty thousand naira (N60,000.00) only. Judgment is entered accordingly. Hon Justice A. Ibrahim, PhD Presiding Judge