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<p class="MsoNoSpacing" style="margin-left:.25in"><b><u><span style="font-family:"Times New Roman","serif"">Representation:<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="margin-left:.25in"><span style="font-size:10.0pt; font-family:"Times New Roman","serif"">L. N. U. Ukaegbu for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in"><span style="font-size:10.0pt; font-family:"Times New Roman","serif"">No appearance for the Defendants<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in"><span style="font-size:10.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">JUDGMENT<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">This action was commenced by way of complaint dated and filed the 24<sup>th</sup> day of September 2014 wherein the claimant claimed against the defendants jointly and severally, the following:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">An order compelling the defendants to pay to the claimant the backlog of his pension being withheld and/or seized by the defendants from June 2012 till date immediately.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">An order of injunction restraining the defendants either by themselves, agents servants, privies and/or howsoever described from further seizing the Claimant’s pension and from arresting, detaining and harassing the claimant in connection with the subject matter of this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The complaint was accompanied by an affidavit in verification of the endorsement on the writ, Statement of Facts, Claimant’s sworn deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Prior to the issuance of the complaint, the Claimant had by a motion exparte dated and filed on the 22<sup>nd</sup> day of September 2014 sought and obtained the leave of this court to issue the complaint in Abuja, and to serve all the processes of this suit on all the defendants through the office of the O/C legal, Force Headquarters, Abuja by EMS Speed Post, and for the waybill thereof to be used as sufficient proof of service on all the defendants.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">B. Uelor appeared for the defendants and filed a preliminary objection, ruling of which was delivered on the 30<sup>th</sup> day of June 2015. The case then proceeded to hearing. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The Claimant’s son, his sole witness, Collins Chijioke Onyewuchi testified as CW1 on the 14<sup>th</sup> day of October 2015. After a number of adjournments to enable the defence cross-examine CW1, the court was on the 3<sup>rd</sup> day of February 2015, constrained to foreclose the defence from cross-examining the witness. The case was adjourned for defence even though no defence processes were filed on behalf of the defendants. Hearing notices were again ordered. After yet a number of adjournments, the defendants were on the 10<sup>th</sup> day of March 2016 were foreclosed from defending this action. Parties were then ordered to file Final addresses. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">In the interim, by a motion for amendment dated and filed on the 3<sup>rd</sup> day of December 2015, the Claimant sought to amend his complaint and Statement of Facts by adding a 3<sup>rd</sup> relief being:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">3.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">An order compelling the defendants jointly and severally to pay the Claimant the sum of N5,000,000.00 (Five Million Naira) only, as associated general damages.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Leave was granted for the said amendment on the 11<sup>th</sup> day of February 2016.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The defendants did not file any Final Address.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">In the Claimant’s final address filed on the 26<sup>th</sup> day of April 2016, Counsel submitted two issues for determination as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><b><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-language:HE">Whether a court can force a Defendant(s) to defend any suit against him/her. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><b><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-language:HE">Whether the claimant has proved his case on the balance of probability as required</span></i></b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE"> <b><i>by Law</i></b>. <b><i><o:p></o:p></i></b></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:108%;mso-bidi-language: HE">Counsel submitted that issue one was </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">necessitated by the fact that the Defendants were duly served with the processes of the suit and made few appearances within which period they filed an application seeking to strike out the suit on the ground that the suit is statute barred, for <br> want of jurisdiction and for being an abuse of Court process. When they lost that bid, they abandoned the suit and never appeared again inspite of repeated adjournments and hearing notices issued to them by this Court. Counsel therefore answered issue number one in the negative. According to counsel, no Court of Law can force a party to a proceeding before it to give evidence. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">See <b>Obimiami Brick & Stone (Nig.) Ltd. vs. ACB Ltd. (1992) 5 NWLR (Pt. 229) 260 at 296, paragraph F</b>. <span style="color:#646862"><o:p></o:p></span></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel cited the case of <b>Military Governor, Lagos State vs. Adeyiga (2001) FWLR (Pt<span style="color:#646862">. </span>83) Page 2155-2156 Paras. H-B</b>, where the Court of appeal held thus<span style="color:#646862">,- <o:p></o:p></span></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">"where after both parties to a dispute have been duly notified of the hearing date and a party for no justifiable reason decides to opt out of the proceedings, the case presented by the other, once it is not discredited in any legal way, should be the case to be considered on the merit. The intention of the other party as to its refusal to take part is not the business of the Court<span style="color:#646863">.</span>" <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">He cited further, the case of <b>Adele Eke vs. Ogbaonda (2007) Vol. 1 M.J.S.C. 160 at 181, Paragraphs B-C</b>, where the Supreme Court stated inter alia: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-language:HE">"The duty of a Court is to create the environment for fair hearing in an egalitarian manner for the benefit of the parties. A Court of Law cannot force parties to take advantage of the principles<span style="color:#646863">. </span>Once the Court creates the environment, its duty stops, and the parties are at liberty to take advantage of the environment created by the court.<span style="color:#646863"> </span>If they fail to take advantage of the environment and principles, they cannot be heard to complain that they are denied fair hearing. Such will be unfair to the judge who has placed the fair hearing principles at the door steps of the parties.” <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel made further reference to the case of <b>The Owners of M/V Gongola Hope & Anor. vs. Smurfit Cases Nig<span style="color:#646863">. </span>Ltd. (2007) Vol. 9 M.J.S.C. 90 @ (Page 106) paras. F-G Ratio 3</b>, where the Supreme Court stated inter alia <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 107%;mso-bidi-language:HE">"where the evidence of Plaintiff is unchallenged and uncontroverted and particularly, where the opposite party or side, had the opportunity to do so, it is always open to the trial Court seised of the matter, to accept and act on such unchallenged and uncontroverted evidence before it." </span></i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";color:#646863;mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">According to Counsel, the Court of appeal has said in <b>Mcchani vs<span style="color:#646863">. </span>Prinheiro (2001) 3 NWLR Pt. 701 at pages 573 paras. H-B<span style="color:#646863">. </span>Ratio 10</b>, that the Court must balance the requirements for fair hearing with the requirements for hearing within a reasonable time. Where a party indulges in dilatory tactics, it could not be said that the party is aiming at fair hearing; rather that party is using due process to defeat justice being done to the opposing party. In that case, the court should have enough courage not to lend weight to such act of filibustering and should be firm in refusing further delay tactics. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel stated further that delay defeats the notion of justice. It poses great danger to the smooth administration of justice. In other words, dilatory tactics by a party who unduly <br> delays the trial of a case must be seen as a condemnable conduct. Each party to a case must be afforded an opportunity of defending himself. The question whether a party has been afforded adequate opportunity and notice to answer the case he has to meet will depend on a careful consideration of the facts and the circumstance of each case. The test to be applied in each case is an objective one base on the impression of a reasonable and fair minded observer at the trial. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">It is Counsel’s submission that this Court has balanced the principle of fair hearing within a reasonable time in the circumstances of this case. The court had had to issue so many hearing notices to the defendants and adjourned the case several times at the instance of the same Defendants to enable them defend the suit, but all to no avail. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The Court is not expected to force the Defendants to defend this Suit. He urged the Court to so hold. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><u><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> </span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">On issue two, it is the submission of counsel that the proof required of the plaintiff or claimant to be entitled to judgment in a civil matter is a proof on the balance of probability as required by Section 134 of the Evidence Act 2011. See <b>Kwali vs. Dobi 2010 All FWLR (Pt. 506) 1883</b>; <b>Agala vs. Egwere 2010 All FWLR (Pt. 532) 1069</b>. According to Counsel, in <b>Owie vs. Ighiwi (2001) 25cm at 155-156</b> the Supreme Court held that it is elementary Law that the burden of proof in a civil matter is on the party in a civil case is on the balance of probability or on the preponderance of evidence. This means that where the parties give evidence as with the claim before the court, judgment will be given to the party that the evidence tilts in favour in the case. In determining either balance of probability or preponderance of evidence, the trial judge resorts to the imaginary scale of justice. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:107%;mso-bidi-language: HE">It is Counsel’s further submission that where a claimant produces evidence in support of his case which </span><i><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">prima facie </span></i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 107%;mso-bidi-language:HE">will entitle him to judgment, the defendant is required to lead some evidence to enable the court to consider on whose side the case preponderates, otherwise the court is competent to enter judgment for the claimant on his uncontroverted and unchallenged evidence. See <b>Ogunde vs. Oloyede </b></span><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:111%;mso-bidi-language:HE">2005 </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:107%;mso-bidi-language:HE">FWLR </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:111%;mso-bidi-language:HE">(Pt.264) 909 at 913 </span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 107%;mso-bidi-language:HE">R.6</span></b><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:107%;mso-bidi-language: HE">. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:107%;mso-bidi-language: HE">The claimant averred in paragraphs. </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">1-16(1) (2) and (3) of his amended statement of claim that he joined the employ of the Defendants in 1957, and that he left them by retirement after 34 years, in February, 1991. That as a retiree, he is entitled to monthly pension allowance from the Defendants. That he opened only one Bank account into which his pension allowances and all other monies from his friends and members of his family are paid to him. That payment of the said allowance by the Defendants have been irregular in the sense that often times no allowance is paid at all, while at some other times a backlog of the pension is paid. That he travelled to the U.S. on 3<sup>rd</sup> June 2012, and that while he was travelling, he authorized his daughter to withdraw money from his pension account and settle some of his financial issues at home on his behalf while he (the Claimant) was away to the U.S., the Defendants, through the instrumentality of the 4<sup>th</sup> Defendant alleged to have erroneously paid in some excess money into his account, which his daughter withdrew in line with the claimant's directive. That the alleged sum said to have been paid in inadvertently into account is not specified by the Defendants. That upon the inadvertent payment into his account, the Defendant decided to withhold his entire pension allowances and have not paid a kobo as pension allowance to him till date. That as a result of the seizure of his pension, he took steps to find out why his pension was being seized but in the course of that, he was arrested and detained by the Defendants. That on his application and that of Mr. Charles Chigbu, he was released on bail and was forced to enter into an undertaking to pay back the alleged sum within two weeks of his release. That he was also forced to own up that the sum of over N2.8 Million was paid into his account inadvertently. That he had written to the Defendants asking for clarification, but all to no avail. That he was not instrumental to any inadvertent payment into his account and that if ever there was any inadvertent payment into his account that <i>it was due to the inaptitude of the Defendants. </i>That assuming but not conceding that the alleged sum was ever paid into his account; it could be realized by simple and mild monthly deductions from his running pensions rather than withholding his entire pension allowances. That he had been exposed to untold hardship and his wards are sent out of schools due to the seizure of his pensions by the Defendants. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:106%;mso-bidi-language: HE">According to Counsel, the Claimant has through his only witness </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">Mr. Collins C. Onyewuchi, proved his averments as shown from paragraphs. 1-20 of the witness statement on oath of the said Collins C. Onyewuchi. He tendered a total of 9 Exhibits, including the Claimant’s statement of account from 2012 to date showing that he has not been paid any pension allowance from 2012 till date. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:106%;mso-bidi-language: HE">Counsel narrated that after the Claimant's evidence-in-chief, this Court adjourned the matter for the Defendants to cross examine the Claimant. On the said date of adjournment, the Defendants were still not in Court to cross examine the Claimant's witness; hence the court was moved by the claimant's counsel to foreclose the Defendants from cross examining the claimant's witness. Consequently, the claimant's counsel's application was granted and the matter was accordingly adjourned to 11<sup>th</sup> of February, 2016 for defence. Again on the said 11/2/2016, the Defendants were absent, then again, the matter was adjourned to the 10/3/2016, for the defendant to come and defend the matter, but all were to no avail, as the defendants never wrote a letter to the court explaining their whereabouts, nor sent a representation. According to Counsel, n</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">otwithstanding all these, the Court in his bid to indulge and accommodate the defendants and balance the principles of fair hearing and hearing within a reasonable time, had to bend over backwards, but the Defendants refused and failed to take advantage of the court's leniency. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel then submitted that in the circumstances of the foregoing, the question begging for answer now is whether the Court can make use of the unchallenged evidence of the Claimant. His response thereto is that the court is well founded and competent to comfortably use and rely on such uncontroverted evidence of the claimant and give judgment in his favour. In military Governor of <b>Lagos State vs. Adeyega (supra) </b>it was held that where after both parties to a dispute have been duly notified of the hearing date and for no justifiable reason decides to opt out of the proceedings, the case presented by the other, once it is not discredited in any legal way, should be the case to be considered on the merit, the intention of the other party as to its refusal to take part in the matter is not the business of the court.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel submitted that where a Defendant fails to offer evidence in a case against it, the Court obviously goes one way with no other set of facts or evidence weighing against it. In other words, there is nothing in such a situation, to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. In such a case or circumstances, the onus of proof, is naturally discharged, on a minimal of proof. Counsel submitted further that where a court has created an enabling environment for hearing a matter in an egalitarian manner for the benefit of the parties; the court of law cannot force parties to take advantage of the principles, as its duty stops thereat. See <b>Adeleke vs. Ogbonda (supra).</b></span><b><span style="font-size:13.0pt;font-family: "Arial","sans-serif";mso-bidi-language:HE"> </span></b><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:108%;mso-bidi-language: HE">Above all, according to Counsel, it is elementary law that uncontroverted and unchallenged evidence are taken as true. See </span><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">Newbreed Organization Ltd vs. Eromosele (2006) S.C (Pt. 1.) 136</span></b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">. In <b>Owners of M/V Gongola Hope & Anor. vs Smurfit Cases Nig. Ltd. (2007) Vol. 9 M.J.S.C. (supra)</b>, the Supreme Court stated inter alia: <i>"where the evidence of Plaintiff is unchallenged and uncontroverted and particularly where the opposite party or side had the opportunity to do so, it is always open to the trial Court seised of the matter, to accept and act on such unchallenged and uncontroverted evidence before it" </i><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-font-width:108%;mso-bidi-language: HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:108%;mso-bidi-language: HE">Counsel urged the court to enter judgment in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing"><a name="_GoBack"></a><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-indent:.5in"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Court’s Decision<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The facts of the claimant’s case, as revealed in the claimant’s statement of facts and the evidence of CW1, are that the claimant retired from the Nigeria Police Force on 1<sup>st</sup> February 1991 and his monthly pension was being paid to him through his bank account even though the payments were inconsistently and irregularly paid. Sometimes, backlog of unpaid pensions are paid at once. Between 3<sup>rd</sup> June 2012 and 23<sup>rd</sup> July 2013, he was away in the United States of America for medical treatment. When he was leaving in June 2012, he instructed his daughter to be withdrawing from his account into which his pension is paid for the purpose of settling his undertakings while he was away. While away in the USA, the 4<sup>th</sup> defendant inadvertently paid some money in excess of his pension allowance into his account. The claimant’s daughter, unaware of the excess payment, withdrew the entire sum. As a result of the excess payment, the defendants have since been withholding the claimant’s entire pension allowances and have not paid any sum to the claimant from June 2013 till date. When he attempted to find out why his pension was stopped, he was detained by the defendants and forced to admit that the sum wrongly paid into his account was <s>N</s>2.8 million before he was released on bail. To the claimant, even if it is assumed that some monies were wrongly paid into his account, the money was not up to <s>N</s>2.8 Million as alleged by the defendants. Since 2012 when the defendants seized his pension, a sizeable amount of the excess payment has been recovered by the defendants from his pension. The seizure of his entire monthly pension in recovery of the mistaken payment made into his account has placed the claimant in hardship and the mistake of the defendants ought not to be visited on the claimant. It was on the basis of these facts the claimant claims the following reliefs against the defendant in his amended Complaint:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -33.0pt"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">1. An Order compelling the defendants to pay the claimant his backlog of arrears from 2012 till date.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">2. An order restraining the Defendants from further seizing or withholding the Claimant's pension allowances and from arresting, detaining and harassing the claimant in connection with the subject matter of this suit. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">3. The sum of <s>N</s>5,000,000.00 as associated general damages to the claimant from the Defendants. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">From the facts of the claimant’s case, it is clear to me that sometime between 3<sup>rd</sup> June 2012 and 23<sup>rd</sup> July 2013 some amount of money, which is in excess of the claimant’s monthly pension, was paid into his account. The claimant, through his daughter, withdrew the money from the account. The defendants consequently stopped the payment of monthly pension to the claimant in apparent recovery of the sum paid to the claimant in excess of his pension. The claimant averred that he has not been paid any pension since then till date hence he claims for an order </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">compelling the defendants to pay him his backlog of arrears from 2012 till date. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Although the defendants did not defend this suit, the burden of proof of his claims is on the claimant. Since this case will be determined only on the facts and evidence presented by the claimant, the success of his case depends on the strength of the facts he presented. When evaluating the facts and evidence of the claimant’s case, fundamental questions whose answers will assist the court in determining the claimant’s claims came up. These questions relate to the time when the excess payment was made to the claimant; how much it was; when exactly the defendants stopped the claimant’s pension and how much was his usual monthly pension. However, I find that the case presented by the claimant has not been able to answer the many questions arising from his case. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Although the claimant admitted some money was paid into his account in excess of his pension, the question arising there from is: What was the amount of the money the defendants wrongly paid into his account? The claimant refused to mention the said amount anywhere in his case. When the claimant pleaded that the amount of <s>N</s>2.8 Million alleged by the defendants was not correct, I expected him to mention the correct amount he received in his account and spent by him or his daughter. To my surprise, he did not mention it anywhere. Let me mention that it was the claimant himself who told this court that the defendants inadvertently paid some money to him then and it was paid into his account. Why then was it difficult for the claimant to disclose how much the money was? Furthermore, the claimant pleaded that the sum paid to him was in excess of his pension and in paragraph 12 of the statement of fact, the claimant averred if his normal pension is deducted from the wrongly paid sum from June 2012, the defendants would have realized reasonable part of the sum. The question is: what was the claimant’s “normal monthly pension? The claimant did not mention this anywhere. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Again, the questions as to when the money was paid into the claimant’s account and when the defendant stopped further payment of pension to the claimant have been left unanswered in the claimant’s case. The claimant claims backlog of his pension from June 2012 but in paragraph 10 of the statement of facts and paragraph 14 of evidence of CW1, the facts was stated that the defendants stopped payment of the claimant’s pension from June 2013. However in paragraph 12 of the statement of facts, the claimant said his pension was seized from June 2012. The claimant is not consistent in his case. Even then, it appears, from the facts of his case, that the defendant’s could not have seized his pension in June 2012. It is his case that he travelled in June 2012 and “authorized his daughter to be withdrawing from his pension account”. He returned from the USA in June 2013 and it was within this one year the said excess amount was paid into his account. It does not appear to me that it was in June 2012 the defendants stopped the claimant’s pension. In addition, the claimant’s account statement was tendered in this case. The account statement began from June 2013. It does not prove the claimant’s allegation that the defendant’s stopped payment of his pension since June 2012. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The statement of account did not contain the period when the said excess payment was paid to the claimant. The foundation of the claimant’s case started from when the excess sum was paid to him. That fact is very crucial to enable the court know when it was paid and how much it was. Since the claimant said his pension was being paid into the account, the account statement is supposed to enable this court know the range of the claimant’s monthly pension and when the said excess sum was paid to him. But the claimant brought an account statement only from the period he alleged he was no longer being paid. The statement from June 2012, a very vital period in this case, was left out. I think it was deliberate. Basic information which could assist this court was left out. Why did the claimant not mention how much was paid into his account? Why did he not produce his comprehensive statement of account? He only produced the part showing when the defendants stopped his pension. Undoubtedly, the claimant has more to explain than he has revealed. In my estimation, the claimant has not been entirely truthful to this court. He was inconsistent in his case and also failed to disclose important facts to this court. The failure of the claimant to plead these vital facts has effect on his case. If he had stated how much his pension was and how much was the sum wrongly paid into his account, this court would have known what the defendants have recovered so far from him. The absence of these vital facts only goes to prevent this court from granting the relief sought by the claimant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In any case, when the claimant admitted that the defendants paid some money to him in excess of his pension, a right accrues in the excess payment to the defendant to recover the excess. Therefore, the defendants have the right to recover the excess. The recovery can only be from the claimant’s further pension payments. Since the claimant failed to tell this court how much was the excess sum paid to him nor the amount of his monthly pension, this court cannot be able to know whether the defendants have, by now, finished recovery or over recovered from the claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In <b>IYERE vs. BENDEL FEEDS AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1247 </b>it was held that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept and act on it unless it is palpably incredible. In this case, not withstanding that the case of the claimant is unchallenged, I find that his case is not credible. In view of the many lapses, inconsistencies and non disclosures found in the claimant’s case, I hold that his case lacks merit and ought to be dismissed. Accordingly, the suit is dismissed. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Judge<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Times New Roman","serif""> </span></p>