Download PDF
<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Louis Akanimo, with Bayo Yusuff and Miss Ezinne Umozurike, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">M. C. Okwara, for the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">This is an originating summons filed on 26<sup>th</sup> February 2015 and brought pursuant to Order 3 Rule 5A of the National Industrial Court (NIC) Rules ‘2006’ and under the inherent jurisdiction of this Court. It is meant to be a matter of an application for judicial review by the claimant for a declaration and an order of mandamus brought pursuant to Order 22 of the NIC Rules ‘2006’ and under the inherent jurisdiction of this Court. The sole question for determination is –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Whether on a true construction of (a) the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October, 1997 and (b) the National Salaries, Incomes and Wages Commission’s letter to the Industrial Training Fund dated 8<sup>th</sup> June, 2007, the claimant is entitled to have his pensions reviewed upwards as salaries and allowances are being reviewed upwards by the Industrial Training Fund.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The reliefs the claimant is praying for are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->A.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that on a true construction of (a) the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October, 1997 and (b) the National Salaries, Incomes and Wages Commission’s letter to the Industrial Training Fund dated 8<sup>th</sup> June, 2007, the claimant is entitled to have his pensions reviewed upwards as salaries and allowances are being reviewed upwards by the Industrial Training Fund.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->B.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandamus directing the defendants to review upwards the pensions payable to the claimant as at the time of increase in salaries and allowances by the Industrial Training Fund variously in 2002, 2007, 2010 and 2012 and pay the claimant within 30 days from the date of judgment all accrued arrears of pensions calculated with effect from 1<sup>st</sup> May, 2002 and subsequently all such pensions as and when they fall due.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->C.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Interest at the rate of twenty-one percent (21%) per annum on all such accrued pensions from 1<sup>st</sup> May, 2002 till date judgment is given.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->D.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Interest at the rate of twenty-one percent (21%) per annum on all such accrued pensions from the date judgment is given until liquidation.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->E.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->General damages in the sum of N5,000,000.00 (Five Million only).<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->F.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Cost of this action assessed at the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira only).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The originating summons is supported by an affidavit (with accompanying exhibits) and a written address. The defendant entered formal appearance and then on 10<sup>th</sup> April 2015 filed its counter-affidavit and written address, to which the claimant filed on 8<sup>th</sup> March 2016 a further affidavit in support of originating summons (with accompanying exhibits) and a “reply on points of law to defendants’ responsive address”. The defendant on its part reacted by filing on 21<sup>st</sup> March 2016 a “reply on points of law to the claimants further affidavit”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">From the onset, the claimant indicated that his case is not that he is complaining that his pension is not being paid, but only that the correct amount of pension is not being paid in line with Federal Government policies in that regard. The claimant had worked for the Industrial Training Fund (ITF) from 1974 to 1992 and then retired as an Assistant Director on Grade Level 15 Step 6 after putting in 17 years and 3 months’ service. Since his retirement, he has been collecting his pension on a monthly basis. To the claimant, in 1997 the Federal Government of Nigeria (FGN) issued a White Paper (Exhibit ATLP 1) on the Review Panel on Civil Service Reforms, which directed that pensions to retirees in the public service should continue to be reviewed upwards immediately salaries and allowances are reviewed. The case of the claimant, therefore, is that the ITF, a statutory body and an agent of the FGN as well as a member organization of the public service in virtue of section 318(1) of the 1999 Constitution, as amended, refused and neglected to increase his pension despite the fact that the ITF increased salaries and allowances of its serving officers in 2002, 2007 and 2012 (as his affidavit shows). That the ITF sought clarification from the National Salaries, Incomes and Wages Commission (NSIWC) on whether to reflect the increases in the pensions payable to pensioners, and the NSIWC clarified the position vide a letter dated 8<sup>th</sup> June 2007 (Exhibit ATLP 3) asking the ITF to comply with the directive of the FGN but the ITF still refused to comply.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that he then wrote several letters to the 2<sup>nd</sup> defendant (Exhibit ATLP 8) asking to be paid in line with the FGN directive and for the accrued arrears to be paid from May 2002 when the first of the increases in salaries and allowances of serving officers took place. That when the ITF finally responded on 16<sup>th</sup> July 2014 (Exhibit ATLP 9), it merely acknowledged the claimant’s earlier letters and stated that the claimant’s request is under processing. That the ITF promised to revert to the claimant in due course; but 7 months after, it was yet to revert to the claimant or address any of the issues contained in the claimant’s letters – hence this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The question the claimant had asked this Court to answer in his originating summons was then framed by the claimant as the sole issue for the determination of the Court. The claimant then submitted that the amount being paid to him as pension on a monthly basis falls far below the amount he ought to be paid having regard to the policy of the FGN on pensions as reflected in Exhibits ATLP 1 and ATLP 3, which documents enjoin that pensions should continue to be reviewed upwards immediately salaries and allowances are increased. The claimant cited and relied on <i>CBN v. Amao & ors</i> [2010] 16 NWLR (Pt. 1219) 271, a case he said is similar to his. Also referred to the Court is section 173(1) and (2) of the 1999 Constitution, as amended, as well as <i>Popoola v. AG of Kwara State</i> [2011] LPELR-3608(CA), which held the inapplicability of section 2(a) of the Public Officers Protection Act as on no account should pension or gratuity be withheld. The claimant the urged the Court to grant his reliefs as contained in the originating summons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reaction, the defendants framed four issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo2"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the condition precedent before the institution of this action has been complied with.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo2"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the action is not statute-barred.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo2"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether this action is properly brought by way of mandamus.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo2"><!--[if !supportLists]-->4)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the plaintiff has proved his case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1), the defendants first referred to sections 17(1), 23(h), 24(c), 106(1) and (2) and 107 of the Pensions Reform Act 2014, all of which enjoin that complaints as to pensions should first be made to the National Pension Commission (NPC) before any recourse to court can be made. To the defendants, the non-contributory pension scheme has a defined benefit. That the employee does not directly contribute to the funding of the scheme. That the act does not provide that pension shall increase with the increase in workers’ salaries and emolument. That the claimant has to refer his claim to the National Pension Commission’s Board whose membership includes a representative of Nigeria Union of Pensioners, referring to section 19(2)(d)(v) of the Pension Reform Act 2014. That it is when the claimant is dissatisfied with the decision of the National Pension Commission that he can approach this Court. To the defendants then, the condition precedent for bringing this action has not been fulfilled.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to issue 2), the defendants referred to Order 11 Rule 1(1) of the National Industrial Court (NIC) Rules 2007 and then submitted that the claimant brought this application under Order 22 of the NIC Rules 2006 when no such rule exists. However, that Order 22 Rule 3(1) of the NIC Rules 2007 provides that an application for judicial review shall be brought within three months of the date of the occurrence of the subject of the application and no leave shall be required for that purpose. That one of the claimant’s reliefs is on mandamus directing the defendants to review upwards the pension payable to him as at the time of the alleged increase in salaries and allowances by ITF variously in 2002, 2007, 2010 and 2012 and calculated form 1<sup>st</sup> May 2002. That the claimant’s action was brought in 2015 and he is asking for a right which accrued since 1<sup>st</sup> May 2002. That to know whether a matter is statute-barred or not, the Court has to look at the writ of summons and statement of claim to determine when the cause of action arose, which in this case is 1<sup>st</sup> May 2002. That the claimant waited for about 12 years before filing his action contrary to Order 22 Rule 3(1) of the NIC Rules 2007.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants went on that the defendants’ Staff Regulations and Conditions of Service (Exhibit ATLP 9) provides in chapter 20 paragraph 20.3 on time limit for the submission of claim as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Except where these regulations otherwise provides, no claim under them shall be entertained if it is submitted after the expiry period of 12 months after the date on which the right to bring it forward accrued to the person concerned, provided that in the case of financial claims, it is submitted within the first three months of the succeeding year.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Based on this, the defendants submitted that the claim for a cause of action which accrued since 1<sup>st</sup> May 2002 is now statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In respect of issue 3) i.e. whether this action is properly brought by way of mandamus, the defendants submitted that mandamus will not be granted as a matter of course, but only where there is discretion in the respondent to be exercised one way or the other, citing “<i>Alhaji Bisimilahi v. Yagba East Local Government & ors</i> [2003] FWLR (Pt. 41) 1939 at 572 CA”. That this Court would, therefore, not grant the prerogative order of mandamus on the defendants as payment increased of increased pension is dependent on general increase on the defendants’ workers’ salaries and subject to the assurance that the defendants can finance it without assistance from the Federal Government. That if the defendants are not able to pay and there will be no assistance from the government, granting the order of mandamus will be making an order in vain and this Court cannot make an order in futility, citing <i>Marbury v. Madison</i> 1 cranch at 163. That looking at the nature of the relief sought by the claimant and the content of the documents attached, being the basis of the claimant’s demand for increase in pension, it will be very unsafe for this Court to make an order of mandamus against the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 4) i.e. whether the claimant has proved his case, the defendants referred to sections 131 and 132 of the Evidence Act 2011, which place the burden of proof on he who asserts or would fail if no evidence was led. That the claimant’s case is predicated on Exhibits ATLP 1 and ATLP 3. That the document attached to Exhibit ATLP 1 was not signed, the maker is not known and it cannot be described as Federal Government White Paper Ref. No. AFNC/86/2/376 as no such reference number appeared on it. That Exhibit ATLP 3 made it clear that there will be a corresponding increase in pension “whenever there is general increase in the remuneration of workers”. That the claimant has not proved that there is a general increase in salary of the defendants’ workers. That the letter from the defendants the NSIWC dated 10<sup>th</sup> April 2007 (Exhibit ATLP 2) was making inquiries as to the status of their pension staff. That the letter never indicated that the approved new condition of service was paid. That it only stated that it took effect from 2002. That there is no evidence before this Court that the defendants paid the approved condition of service as it was never made mandatory as shown in Exhibits ATLP 4 and ATLP 5. That Exhibit ATLP 4 conveyed approval to the defendants of the new salary structure and allowance. That Exhibit ATLP 4, however, stated in paragraph 2 that the approval is based on the assurance that the defendants can finance the increase without recourse to government for financial assistance. That no evidence to show that the defendants gave any assurance that they would be able to finance the new structure.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants continued that Exhibit ATLP 5 also conveyed approval for the defendants to convert to Consolidated Tertiary Institutions Salary Structure (CONTISS). That paragraph 2 of the letter further added as follows: “this approval is based on the assurance that the new salary structure will be fully funded by your organization without recourse to government for assistance”. That the defendants have not implemented CONTISS because they cannot afford it and cannot get government’s assistance. That the claimant has not proved the defendants have implemented it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendants, so long as they have not effected “general increase in the remuneration of workers”, there will not be a corresponding increase in the pension of workers. That Exhibit 7, which is the defendants’ staff regulation and condition of service stated in chapter 10 paragraph 10.9 that “all pensioned officers of the fund shall be entitled to increase in their pension whenever there is salary increase by government, subject, however, to approval by the government”. That the claimant has not proved any increase in salary by government. That all the letters written to the defendants to effect increase in salary were made subject to the ability of the defendants to pay and without recourse to the government for assistance. That Exhibit 8 is the claimant’s personal calculation, which was not based on any substantiated fact. That they were, however, not claimed in his originating summons and affidavit in support; as such Exhibit ATLP 8 is of no moment. That Exhibit ATLP 9 showed that the defendants are still considering how to meet the claimant’s demand, which has not been met due to non-increase in the general remuneration and non-availability of fund.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants concluded by urging the Court to dismiss the case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reacting on points of law, the claimant first filed a further affidavit and then the reply on points of law. In his reply on points of law, the claimant identified five issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether having regard to the provisions of the Evidence Act paragraphs 1 – 12 of the defendants’ counter-affidavit are not defective and incompetent.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the provisions of sections 106 and 107 of the Pension Reform Act are applicable to the claimant in this suit at all.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the defendants’ defence of statute of limitation can be sustained having regard to the peculiar circumstance of this case.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Issues 3) and 4) as formulated in the defendants’ written address are misconceived and irrelevant.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether Exhibit ATLP 1 represents the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue a), the claimant observed that the defendants’ counter-affidavit was sworn to, not by the defendants, but by a litigation clerk in the law firm of counsel to the defendants. That the deponent deposed to facts clearly outside her personal knowledge, referring the Court to section 115 of the Evidence Act 2011, which forbids affidavits from containing arguments, conclusions and or other extraneous matters. That it is also a requirement that where information deposed to in an affidavit is derived not from the personal knowledge of the deponent, the deponent should state the name of the informant, the time, date, place and circumstances in which he received the information from the informant, citing <i>TM Ltd v. S. Engr. Ltd</i> [2009] 6 NWLR (Pt. 1136) 1 CA at 11. To the claimant, in the instant case, apart from the fact that paragraphs 3 – 10 of the defendants’ counter-affidavit contain facts which the deponent has absolutely no knowledge of, and the deponent has failed to explicitly state the name(s) and give reasonable particulars of the informants which ought to have been so stated and/or given as provided for under section 115(4) of the Evidence Act. The claimant then proceeded to show how each of paragraphs 3 – 10 of the defendants’ counter-affidavit offended section 115(4) of the Evidence Act 2011. To the claimant, each of these paragraphs did not state the name of the informant, did not give any particulars of the informant, did not state the time the information was passed to the deponent, and did not state the place where the deponent was furnished with the information contained therein.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In particular, that as regards paragraph 3 of the counter-affidavit, the mere fact that the deponent stated that she was informed by the “defendants”, whose names were not provided as required by the Evidence Act, is certainly insufficient. That the “defendants” in this suit are juristic persons who are sued in both their corporate name and official capacity as prescribed by law. Therefore, the deponent ought to have been informed by the defendants through natural person(s), if she was informed by anyone at all. Moreover, that one would wonder how the defendants, which include the entire members of the ITF Governing Council would all converge at the office of the defendants’ counsel at the same time on 1<sup>st</sup> April 2015, and the deponent of the defendants’ counter-affidavit would depose to facts without giving the name(s) of each and every member from whom she had derived such information from. That there is no gainsaying the fact that the 1<sup>st</sup> defendant is a body corporate with perpetual succession and consists of 13 members by virtue of section 3(3) of the ITF (Amended) Act 2011.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that a perusal of paragraphs 11 and 12 of the counter-affidavit shows that they fall far short of the mandatory requirement of section 115(2) of the Evidence Act 2011 in that the said paragraphs contain prayers and legal arguments which ought not to have found place in an affidavit at all, referring to <i>Bamaiyi v. State</i> [2001] NWLR (Pt. 715) 270 at 289. The claimant accordingly called on the Court to strike out paragraphs 11 and 12 of the counter-affidavit since they both contain legal arguments, citing further <i>Ogunwale v. Syrian Arab Republic</i> [2002] 9 NWLR (Pt. 771) at 153 – 154. In fact, the claimant called for the striking out of paragraphs 3 – 12 of the counter-affidavit since they offend section 115 of the Evidence Act 2011; and that once they are struck out, the case of the defendants accordingly collapses, citing <i>Edu v. Commissioner for Agric.</i> [2000] 12 NWLR (Pt. 681) 316 at 334 – 335, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to issue b) i.e. whether the provisions of 106 and 107 of the Pension Reform Act are applicable to the claimant in this suit at all, the claimant contended that the defendants cited without any nexus the provisions of sections 17(1), 19(2)(d)(v), 23(h), 24(c), 106(1) and (2) and 107 of the Pension Reform Act 2014 as authority for their argument. To the claimant sections 106 and 107 are not applicable to the claimant given that he retired in 1992, relying on the combined effect of sections 2(1) and 3(1) and (2) of the Pension Reform Act 2014. To the claimant, the word “scheme” used in section 2(1) of the Pension Reform Act 2014 is defined by section 120 of same Act as “the Contributory Pension Scheme established under section 3 of this Act”. That the effect of the combined reading of sections 2 and 3 is that the Pension Reform Act 2014 is applicable only to employees to whom the Contributory Pension Scheme applies under the Act. That he averred in paragraphs 9 and 10 of his affidavit in support that he joined the service of ITF in September 1974 and retired in January 1992, and that in paragraphs 12 – 16 he averred that he receives pension under the “non-contributory pension scheme” and that the ITF being a parastatal of the Federal Government is aware of the policy as in Exhibit ATLP 1. That these facts have not been contradicted by the defendants in any of the paragraphs of their counter-affidavit. That what is not expressly denied is deemed to have been accepted and stands un-contradicted, referring to <i>Oke v. Aiyedun</i> [1986] 2 NWLR (Pt. 548) 565.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that section 5(1) of the Pension Reform Act 2014 stipulates the categories of persons exempted from the contributory pension scheme, which includes any employee who is entitled to retirement benefits under any pension scheme existing before 25<sup>th</sup> June 2004, being the commencement of the Pension Reform Act 2004, but as at that date had 3 years or less to retire. That by this provision, the claimant has been directly exempted from the Contributory Pension Scheme. That he is not a beneficiary of a Retirement savings Account under the contributory pension scheme as stipulated in the Pension Reform Act; as such sections 106 and 107 do not apply to him and so there is no condition precedent to be satisfied before the institution of this suit. That the defendants’ elaborate argument in this regard is thoroughly misconceived and is baseless, urging the Court to totally discountenance same.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In respect of issue c) i.e. whether the defendants’ defence of statute of limitation can be sustained having regard to the peculiar circumstance of this case, the claimant submitted that although he commenced this action in 2015, it cannot be said that it is statute-barred because the right of action is deemed to have accrued on the date the cause of action arose, referring to <i>Lawal v. Ejidike</i> [1997] 2 NWLR (Pt. 487) 319 CA at 328 – 329. That from his affidavit in support, it is clear that his cause of action is founded on non-compliance by the ITF with the Federal Government Policy on the increase of the claimant’s pension as salaries and allowances of serving officers are increased. That begins to run as soon as the cause of action arises, citing <i>Grains Production Agency & ors v. Ezegbulem</i> [1998] LPELR/CA/E/137/96 and <i>Ijale v. AG, Leventis & Co. Ltd</i> [1961] All NLR 1. That pensions are essentially of a recurrent nature and fall due for payment every month and the cause of action arises every month particularly as the defendants pay to the claimant less than his harmonized pensions. Once again, the claimant referred the Court to <i>CBN v. Amao & ors</i> [2010] 16 NWLR (Pt. 1219) 271 SC. That the defendants in his case pay every month pensions to him (the last being January 2015 pension paid in early February 2015) although less than what is provided for in the White Paper; as such the cause of action arises every month when the defendants short-pay him. That cases like <i>CBN v. Amao & ors</i> (<i>supra</i>) on continuance of damage or injury knock the bottom off the defendants’ argument on this issue. The claimant then urged the Court to discountenance the defendants’ arguments here and hold that the claimant’s action is not statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue d) i.e. issues 3) and 4) as formulated in the defendants’ written address being misconceived and irrelevant, the claimant first reiterated the point. The claimant acknowledged that the grant of mandamus is at the discretion of the Court, the principles of which were laid down in <i>Alhaji Mohamed O. Atta v. Commissioner of Police, Kogi State</i> [2003] LPELR-10367(CA). The principles are: there must have been a demand for the performance of the duty, which was not complied with; there is no undue delay; and the motives of the applicant are not unreasonable. The claimant then referred to <i>Ohakim v. Agboso</i> [2010] 19 NWLR (Pt. 1226) 172 at 229. That the claimant made several requests to the defendants (Exhibit ATLP 8) for the performance of their official duty and the defendants refused or failed pay him. That he filed this suit as soon as he was able to gather sufficient information to request for an upward review of his pension; as such he cannot be accused of undue delay. Lastly, that his motives are not unreasonable as it is not unreasonable to request the defendants to pay him his pension in line with government policy. That in view of all of this, the Court should grant the order of mandamus as prayed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the defendants’ argument with regard to the claimant’s prayer for a declaration is equally misplaced given that <i>CBN v. Amao & ors</i> (<i>supra</i>) at pages 299 – 300 had put the issue to rest. Given the conditions laid down by <i>CBN v. Amao & ors</i> then, the claimant submitted that the declaration he seeks has not been rendered unnecessary by passage of time, the injury continuing; that the claim to which the declaratory relief relates is real and substantial; that there is breach on the part of the defendants, they having failed to pay him his appropriate pension in line with Federal Government policy; and that he has a legal right, to be paid the appropriate pension, that must be protected. To the claimant, given the processes before the Court, he has satisfied all the requirements for the grant of the declaratory relief he seeks for in this suit; and that the declaratory relief is one readily available under the Rules of this Court, referring to Order 22 of the NIC Rules 2007. To the claimant, his present action seeking for an order of mandamus and a declaratory relief is properly brought pursuant to the Rules of this Court, urging the Court to follow the reasoning in <i>CBN v. Amao & ors</i>. The claimant urged the Court to hold that a declaratory relief can be granted in the circumstance of the instant case and that he is entitled to an order of mandamus.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue e) i.e. whether Exhibit ATLP 1 represents the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997, the defendants’ argument here was that this document was not signed and has no reference number. In answer, the claimant submitted that not every part of a public document will be signed and given a reference number; and that signature and reference number are not what determine the validity of public documents. That any public document that is to be tendered in any court, whether in whole or in part, must conform to the requirements of section 105 of the Evidence Act 2011, which provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Copies of documents certified in accordance with section 104 of this Act may be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997 is a public document. That Exhibit ATLP 1 is part of this public document that is relevant to the issues before this Court. That this part of the public document that is relevant to the issues before this Court has been duly certified in accordance with section 104 of the Evidence Act 2011 and has, therefore, met the requirements of the law as demanded by section 105 of the Evidence Act 2011. That it follows then that in line with section 105 of the Evidence Act 2011, Exhibit ATLP 1 is sufficient proof of the contents of the part of the Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997, which it purports to represent.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that importantly, the proceedings in <i>CBN v. Amao & ors</i> (<i>supra</i>) at the Supreme Court (Exhibit ATLP 12), it is on record that the same exhibit which is now before this Court as Exhibit ATLP 1 had been successfully relied on at the High Court, the Court of Appeal and at the Supreme Court in the same form and content without any further modifications whatsoever and had been admitted in evidence and adjudged to be in proof of the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997 without any doubt, dispute or argument whatsoever. That Exhibit ATLP 1 adequately represents the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October 1997. That the statements of the defendants to the contrary should, therefore, be discountenanced by this Court. The claimant concluded by urging the Court to grant his prayers in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants reacted to the claimant’s reply on points of law by filing a reply on points of law to the claimant’s further affidavit. To the defendants, their counter-affidavit is very competent and have not offended section 115 of the Evidence Act, referring also to <i>Abiodun v. Chief Judge Kwara State</i> [2008] All FWLR (Pt. 448) 340 CA, which held that a third party in a suit can depose to an affidavit even when he/she is not a party to the suit. The defendants then submitted that the conditions set forth in section 115(3) and (4) of the Evidence Act were met in paragraph 3 of the counter-affidavit. That the deponent need not repeat the same averment in all the paragraphs of the counter-affidavit as all the other information were given at the time paragraph 3 of the counter-affidavit was provided. That the counter-affidavit contained only issues of facts and no extraneous matter. That where an action is not competent or statute-barred, there is no other way to say it than the way the deponent has stated it in the counter-affidavit and this was information given to the deponent by counsel handling the matter. That where one is relying on statute of limitation, it has to be specifically pleaded. In any event, that this Court is not bound by the strict application of the Evidence Act, referring to section 12(2) of the NIC Act 2006. The defendants then urged the Court to discountenance the claimant’s argument in this regard.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants proceeded to reiterate the arguments they already made as to this suit being statute-barred given Order 22 Rule 3(1) of the NIC Rules 2007; and then for the first time (may be so that the claimant may not have a right of reply) referred the Court to the Public Officers Protection Act as stipulating 3 months within which an action against a public officer may be brought. In this respect, the Court was referred to <i>CBN v. Ukpong</i> [2007] All FWLR (Pt. 357) 95 at 965 – 7 (CA), <i>Ibrahim v. Judicial Service Commission & anor</i> [1998] 14 NWLR (Pt. 584) 12 536, <i>Chief Awolowo v. Alhaji Shagari</i> [2979] 6 SC 51 at 268, <i>Permanent Secretary, Ministry of Works, Kwara State v. Balogun</i> [1975] SC 57, <i>Fajimolu v. University of Ilorin</i> [2007] All FWLR (Pt. 350) at 1372 – 3 (CA) and <i>Egbe v. Alhaji</i> [1989] 1 NWLR (Pt. 128) 546 at 596 – 7 (SC). That the claimant was aware that there was no increase in his salary after the alleged increase of salaries of the defendants’ officers in 2012 that was why he had to write in 2014 for a review. That this action was instituted about 3 years after the alleged act complained of by the claimant was committed, urging the Court to dismiss the action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the defendants submitted that Exhibit ATLP 11 attached to the claimant’s further affidavit clearly showed that all the increase mentioned has been paid to the defendants’ pensioners including the claimant. That if the claimant has been paid the increases in Exhibit ATLP 11, one wonders why the claimant is in court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. In addressing the merit of this case, I need to make a remark. The defendants’ counsel did not page his written address filed on 10<sup>th</sup> April 2015. What should be page 2 of his written address was put after what should be page 3. Because the written address is not paged, this created some confusion at first and I had to take a while to unravel the sequence of the argument of the defendants. Counsel should note that little errors such as this can be fatal to a case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The first issue that needs to be resolved is the status of the defendants’ counter-affidavit, which the claimant submitted offends section 115 of the Evidence Act 2011. The reply of the defendants is that the conditions set forth in section 115(3) and (4) of the Evidence Act were met in paragraph 3 of the counter-affidavit, which provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">That I was informed by the defendants in our office on 1<sup>st</sup> April, 2015 by 12noon and I verily believe them that they have not effected any general increase of the salaries of their workers as claimed by the claimant and as per exhibit ATLP3.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendants, the deponent need not repeat the same averment in all the paragraphs of the counter-affidavit as all the other information were given at the time paragraph 3 of the counter-affidavit was provided.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This assumption may be true but the defendants miss out the point. To start with, the deponent in paragraph 1 described herself as a litigation clerk in the law firm of the counsel to the defendants. Is the defendants’ counsel saying that when clients come to his law firm, it is to litigation clerks that they tell their story or that litigation clerks are always in the sessions where clients are debriefed? Courts have over time cautioned on the necessity of litigants deposing to affidavits themselves, not their counsel or staff of their counsel. However, counsel always want to be clever by half. The defendants’ counsel cannot in all seriousness tell this Court that the kind of information deposed to by his litigation clerk as per paragraphs 3 – 10 are facts that a litigant would tell a clerk. This is the sense in which the claimant submitted that the deponent deposed to facts clearly outside her personal knowledge.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The issue is not so much about a third party deposing to an affidavit as the defendants stressed, but whether given the fact of the counter-affidavit itself, the deponent can be said to have been so informed by the defendants as to the very facts she deposed to. This yields to the second point. When section 115(4) of the Evidence Act 2011 enjoins that deposition as to information derived from another person must indicate the name of the informant with reasonable particulars given as to the information, and the time, place and circumstances of the information. The defendants in this suit are an artificial entity (the 1<sup>st</sup> defendant) and an office (the 2<sup>nd</sup> defendant). The question that arises is whether any of these two defendants can be an informant. An informant, defined as somebody who supplies information or who gives confidential or incriminating information to the police about somebody else, cannot be an artificial person. The word is understood to refer to human beings. So when the deponent of the counter-affidavit in paragraph 3 stated that she “was informed by the defendants…”, can it really be said that she has given the name(s) of her informant as enjoined by section 115(4) of the Evidence Act 2011? I really do not think so. The law, by <i>Okoye v. Centre Point Merchant Bank Ltd</i> [2008] LPELR-2505(SC); [2008]15 NWLR (Pt.1110) 335 SC, is that “affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity”. See also <i>Ahmed & ors v. CBN</i><span style="font-family:"Verdana","sans-serif"; color:#009933;mso-bidi-font-weight:bold"> </span>[2013] LPELR-20744(SC). For the reasons given, I agree with the claimant that paragraphs 3 – 10 of the counter-affidavit offend section 115 of the Evidence Act 2011; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant pointed out to the Court that paragraphs 11 and 12 of the counter-affidavit are legal arguments and so offend section 115(2) of the Evidence Act 2011. The defendants do not think so. To them since this action is incompetent and statute-barred, there is no other way to say it than the way the deponent has stated it in the counter-affidavit and this was information given to her by counsel handling the matter. That where one is relying on statute of limitation, it has to be specifically pleaded. To start with, the issue whether a case is statute-barred is one of law and so does not need to be pleaded as the defendants argue here. See <i>Standard Cleaning Service Co. v. The Council of Obafemi Awolowo University, Ile-Ife</i> [2011] LPELR-4977(CA), <i>NDIC v. CBN</i> [2002] 7 NWLR (Pt. 766) 272 at 296 – 297; [2002] 3 SC 1, <i>Liverpool and London Steamship Protection and Indemnity Association Ltd v. M/T Tuma & ors</i> [2011] LPELR-8979(CA), <i>Pastor Sunday Falodun Akeredolu v. James Femi Omiyale & ors</i> [2013] LPELR-22800(CA), <i>Lasisi Akanji Oluode & anor v. Mr. Waidi Ishola Abesupinle</i> [2008] LPELR-4424(CA), <i>Wuro Bogga Nig. Ltd & anor v. Hon. Minister of FCT & ors</i> [2009] LPELR-20032(CA) and <i>Oniode Babajide v. The Nigerian Army & anor</i> unreported Suit No. NICN/LA/61/2014 the ruling of which was delivered on 25<sup>th</sup> February 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Secondly, I carefully looked through paragraphs 11 and 12 of the counter-affidavit. They provide as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(11) That the Defendants would be urging this court to dismiss this action as the condition precedent for the increase in pension of the Claimant has not taken place in the work place of the Defendants.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(12) That I was informed by counsel handling this matter M. C. Okwara Esq. and I verily believe him that this action is not properly brought before this Honourable court and that this matter is statute-barred. The condition precedent before bringing this action has not been met.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Now, what is a statement that “the condition precedent for the increase in pension of the Claimant has not taken place in the work place of the Defendants” (paragraph 11), “this action is not properly brought before this Honourable court”, “this matter is statute-barred” and “the condition precedent before bringing this action has not been met” (all of paragraph 12), if not a legal argument and conclusion? If these statements are not legal arguments and conclusions as the defendants argue, I wonder what would be. I accordingly agree with the claimants that paragraphs 11 and 12 of the counter-affidavit are legal arguments and conclusions and so offend section 115(2) of the Evidence Act 2011.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants sought refuge under section 12(2) of the NIC Act 2006, which permits this Court to depart from the Evidence Act in the interest of justice. In <i>Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors</i> unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7<sup>th</sup> April 2016, this Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">While it is true that this Court can depart from the Evidence Act when the interest of justice demands, this has never been the case where the authenticity of a document is in issue. An unsigned document calls to question its authenticity. The interest of justice in that regard cannot justify this Court departing from the Evidence Act in that regard and in the manner canvassed by the defendants. The authenticity of Document 15 has been called to question. This Court cannot answer that question by jettisoning the Evidence Act and its rules as to authenticity. This Court cannot accordingly call to aid section 12(2)(b) of the NIC Act 2006 as canvassed by the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">In the instant case, what is in issue is the evaluation of affidavit evidence as per the defendants’ counter-affidavit in order to ensure its veracity and or authenticity. This is not an issue for which the Evidence Act can simply be departed from as urged by the defendants. This Court cannot accordingly call in aid section 12(2) of the NIC Act 2006 as urged by the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The Supreme Court in <i>Ahmed & ors v. CBN</i> [2013] LPELR-20744(SC) held that if depositions do not meet with the conditions stipulated in section 115 of the Evidence Act 2011 then the paragraphs containing those offending averments go to no issue since they would be incurably defective and unusable. On this authority, therefore, paragraphs 3 – 12 of the counter-affidavit being offensive to section 115 of the Evidence Act 2011 all go to no issue and so cannot be used in this judgment; I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next issue to be considered is whether this action is statute-barred. Here, I need to point out that the claimant did not address the issue raised by the defendant that he did not come under a known law when he referred to “Order 22 of the NIC Rules 2006”. In fact, the claimant repeated this folly in paragraph 31 (but corrected it in paragraphs 58 and 59) of his reply on points of law. The point that the claimant missed out is that the Rules of this Court were made in 2007, not 2006 as the claimant repeatedly puts it. Despite this, I really do not know why the defendants are making a fuss or ruckus of this. <span lang="EN-GB">The law is that w</span>here a relief or remedy is provided for by any written law or by the common law or equity, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under a wrong law. See <i>Pius Adaka & ors v. Christopher Anekwe & ors</i> [1997] 11 NWLR (Pt. 529) 417, <i>Falobi v. Falobi</i> [1976] 1 NMLR 169, <i>Akuma v. AG, Anambra State</i> [1977] 5 SC 161, <i>Majekodunmi v. Wapco Ltd</i> [1992] 1 NWLR (Pt. 219) 566 and <i>Dim v. Adibua</i> [2002] FWLR (Pt. 107) 1271. Additionally, failure to state the Rule of Court under which an application is brought will not <i>ipso </i>facto vitiate the application. See <i>Adaka v. Ikot Abasi TRC</i> [1991] NWLR (Pt. 198) 480. See generally this Court’s decision in <i>Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor</i> unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on 3<sup>rd</sup> July 2014.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants themselves cited Order 22 Rule 3(1) of the NIC Rules 2007, meaning that they know of the existence of the appropriate law or rule. And quite aside from Order 22 of the NIC Rules 2007, which only provides the procedure for applying for an order of mandamus, the power of this Court to make the order of mandamus is actually governed by section 17 of the NIC Act 2006, which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(1) The Court shall have the power to make an order of mandamus requiring any act to be done or an order of prohibition prohibiting any proceedings, cause or matter, or an order of certiorari removing any proceedings, cause or matter into the Court for any purpose.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(2) The power conferred on the Court by this section to make an order of mandamus, prohibition or certiorari may be exercised notwithstanding that the order is made against an officer or authority of the Federal, State or Local government as such. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">And the Court’s power to make declaratory orders is regulated by section 19(b), which provides that this Court may in all other cases and where necessary make any appropriate order, including a declaratory order.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">All of this means that the argument of the defendants that the claimant came in this suit under a non-existent law goes to no issue and so is hereby discountenanced.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the issue of the Staff Regulations and Conditions of Service making provision for limitation of action against the defendants by employee as per paragraph 20.3, the claimant again did not react to this issue. The defendants had referred this Court to paragraph 20.3 of chapter 20 of their Staff Regulations and Conditions of Service (Exhibit ATLP 9) as creating a limitation period for making claims by employees. I really do not think that the defendants are serious here. Matters of limitation of action (for that is what the limitation law in constricting the time to sue provides for) are strictly speaking matters of law. An employer cannot simply put in the Conditions of Service the period within which a claim must be made against it. I do not accordingly know where the defendants got the legal authority to do what they did vide paragraph 20.3 of chapter 20 of Exhibit ATLP 9. I do not accordingly think that that clause is legal and accords with fair labour practice; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The question, however, remains whether the claimant’s action is actually statute-barred as canvassed by the defendants, whether under the Rules of this Court or under the Public Officers Protection Act. When the defendants raised this issue, the claimant relied on a number of authorities notably of which is <i>CBN v. Amao & ors</i> [2010] 16 NWLR (Pt. 1219) 271 SC, a case the claimant insisted is similar in facts and law with his own. Surprisingly, in their reaction, the defendants made no reference at all to, not even citing, <i>CBN v. Amao & ors</i>. This fact alone means that they concede to the authority of <i>CBN v. Amao & ors</i>, not that they have a choice anyway. I took time to go through the case, and I agree with the claimant that <i>CBN v. Amao & ors</i> is actually similar in facts and law with the claimant’s in the instant case. For instance, the action in that case was commenced by way of judicial review; the action deals with complaint as to underpayment of pensions; the claimants in that case relied for their entitlement on Government White Paper, etc – all like in the instant case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the issue whether the action in that case was statute-barred, the Supreme Court in <i>CBN v. Amao & ors</i> held at page 296 as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The appellant pays the monthly pension due to the respondents less than what it provided in the White paper and the two circulars every month thereby leaving part of their entitled monthly pension unpaid. This clearly demonstrates the fact that the cause of action in the circumstance arises every month when appellant pays less pensions to the respondents than their full harmonized pensions, which appellant had agreed to pay. It is therefore very clear that there is continuance of injury the cessation of which cannot be determined as long as the respondents live and are paid their monthly pensions other than as harmonized. There is therefore no way by which [one] can calculate the “three months next after the ceasing thereof…” It follows therefore that each month that the respondents are paid pensions less than the harmonized pensions, a cause of action arises in respect of the balance or sum outstanding.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I therefore agree with the lower courts that the provisions of section 2(a) of the Public Officers Protection Act does not apply to the facts of this case and consequently resolved the issue against the appellant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">From this authority, once there is periodicity in a payment, and the complaint is that there is underpayment of what is due, then the continuance of damage or injury exception to the limitation law sets in to do away with the basic rule as to an action being statute-barred. The Supreme has maintained this stance as to the test of continuance of damage or injury even in subsequent cases. Accordingly, in <i>AG, Rivers State v. AG, Bayelsa State & anor</i> [2013] 3 NWLR (Pt. 1340) 123 at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1<sup>st</sup> defendant who had raised it. See also this Court’s decision in <i>Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors</i> [2013] 32 NLLR (Pt. 91) 63 NIC, where this Court said of<i> AG, Rivers State v. AG, Bayelsa State & anor</i> –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">On the strength of these authorities, therefore, I find and hold that the claimant’s case is not statute-barred. The claim for the payment of his appropriate pension from the defendants means that each failure to pay same by the defendants yields to a fresh of action which brings the claimant’s case within the continuing damage or injury exception of the limitation laws. The argument of the defendants in this regard according fails and is hereby rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants raised the issue of the claimant not fulfilling the condition precedent needed to institute this action in terms of referring the case to the National Pension Commission before coming to this Court. I agree with the claimant that, as one who is not a beneficiary of a retirement savings account under the contributory pension scheme, sections 106 and 107 of the Pension Reform Act 2014 do not apply to him; as such there is no condition precedent to be satisfied by him before instituting this action. The argument of the defendants in this regards equally fails and is hereby rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The third issue raised by the defendants is that this action was not properly brought by way of mandamus. The short answer to the defendants is that<i> CBN v. Amao & ors</i> was commenced by way of judicial review; as such the claimant is right to commence this action as he did.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The last issue raised by the defendants is whether the claimant proved his case. Here the defendants complained of the claimant relying on Exhibit ATLP 1, which was not signed and the fact that the instruments relied upon by the claimant all stressed that ITF is to fund any salary increase without recourse to government for financial assistance. In any event, that the pension increases were contingent on a general increase in the remuneration of workers, something the claimant did not prove. The claimant took time off to get the certified true copies of the record of proceedings at both the Court of Appeal and the Supreme Court as relates to the case of<i> CBN v. Amao & ors</i> (Exhibit ATLP 12). Exhibit ATLP 1, which the defendants in the instant case complain was not signed, is the same document relied upon by all the Courts in <i>CBN v. Amao & ors</i>. I do not know whether the defence counsel now expects this Court to rule that such a document is worthless, even when section 105 of the Evidence Act 2011 allows “part of the public documents of which they purport to be copies”, if certified, to be produced in proof of the contents of public documents. In any case, this Court in <i>Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor</i>, unreported Suit No. NIC/12/2000 delivered on 30<sup>th</sup> March 2006,<i> Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria</i> unreported Suit No. NIC/8/2004 delivered on 8<sup>th</sup> May 2007, <i>Ondo State Government v. National Association of Nigeria Nurses and Midwives & anor</i> unreported Suit No. NIC/1/2007 the judgment of which was delivered on 4<sup>th</sup> July 2007, and <i>Oyo State v. Alhaji Apapa & ors</i> [2008] 11 NLLR (Pt. 29) 284 held that a law, circular or collective agreement can create an entitlement upon which an employee can base his/her action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants made an issue of the permission given ITF to pay salary increases being contingent on it not running to government for financial assistance; and that the claimant did not prove that there is a salary increase in ITF to warrant the corresponding increase in pensions as the claimant claims. Exhibit ATLP 2 is a document the defendants wrote to the NSIWC requesting for the approval that pension rates be increased. By Exhibit ATLP 3, the NSIWC told the defendants that they were in default of effecting the corresponding increase in pensions when salaries were increased. So how can the defendants now turn around and talk of the claimant not proving his case? The defendants must note that they are the ones who wrote for clarification, intimating in the process that they could pay. I do not according have any hesitation in holding that the claimant has proved his case in terms of reliefs A and B.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This Court does not grant pre-judgment interest. See <i>Mr. Kurt Severinsen v.</i><i> Emerging Markets Telecommunication Services Limited</i><span lang="EN-GB"> [</span>20<span lang="EN-GB">12]</span><span lang="EN-GB"> </span><span lang="EN-GB">27</span> NLLR (Pt. <span lang="EN-GB">78</span>) <span lang="EN-GB">374 NIC. Accordingly, relief C as claimed cannot be granted. It is dismissed. The claimant did not prove or even address the issue of his claim for general damages and cost; as such reliefs E and F cannot be granted. They are dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Having, therefore, held that the claimant has proved his case in terms of reliefs A and B, I answer in the affirmative the question posed for determination by the claimant, to wit –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Whether on a true construction of (a) the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October, 1997 and (b) the National Salaries, Incomes and Wages Commission’s letter to the Industrial Training Fund dated 8<sup>th</sup> June, 2007, the claimant is entitled to have his pensions reviewed upwards as salaries and allowances are being reviewed upwards by the Industrial Training Fund.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In answering this question in the affirmative, the claimant is, therefore, entitled to the reliefs he seeks from this Court but only in the following terms –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It is hereby declared that on a true construction of (a) the Federal Government White Paper Ref. No. AFNC/86/2/376 dated 7<sup>th</sup> October, 1997 and (b) the National Salaries, Incomes and Wages Commission’s letter to the Industrial Training Fund dated 8<sup>th</sup> June, 2007, the claimant is entitled to have his pensions reviewed upwards as salaries and allowances are being reviewed upwards by the Industrial Training Fund.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of mandamus is hereby granted directing the defendants to review upwards the pensions payable to the claimant as at the time of increase in salaries and allowances by the Industrial Training Fund variously in 2002, 2007, 2010 and 2012 and pay the claimant within 30 days from the date of judgment all accrued arrears of pensions calculated with effect from 1<sup>st</sup> May 2002 and subsequently all such pensions as and when they fall due; failing which they attract interest at the rate of 10% per annum until fully paid.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>