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REPRESENTATION U. E. Johnson, and with him are Godwin Inyang and Iroko Ademola, for the claimant. Felix Ogungbemi, and with him are Ayo Adeyemo, O. A. Omotoso, Bisi Oyelade, Damola Sodeinde and Mrs. Odunmola Jegede, for the defendant. JUDGMENT The claimant commenced an action by a complaint against the defendant dated and filed on 2nd December, 2011. The claimant is claiming for the following reliefs – 1. A declaration that by virtue of Rule 7 of the defendant’s Staff Pension Fund Deed of Variation Trust Deed made in 1996, the claimant was qualified to have started receiving his yearly pension from the defendant from 19th/1/2006 when the defendant terminated the claimant’s employment (and thus his employment ceased from that date), the claimant not having voluntarily withdrawn his services to the defendant. 2. A declaration that the defendant’s classification of the pension of the claimant under deferred pension is wrongful and contrary to Rules 7(a), 8, 9(a) and (b) and 11 of the defendant’s Staff Pension Fund Deed of Variation of Trust deed made in 1996 because the claimant did not voluntarily withdraw his services to the defendant. 3. A declaration that rule 9(b) of the defendant’s Staff pension Fund deed of variation of Trust Deed made in 1996 (deferred pension) is not applicable to the claimant’s pension because the claimant did not voluntarily withdraw his services to the defendant. 4. A declaration that the defendant is in arrears of the claimant’s yearly pension from 19th/1/2006 till date of judgment at the rate of N280,866.36 per annum. 5. An order that the defendant pay the claimant his pension arrears from 19th/1/2006 till date of judgment at the rate of N280,866.36 per annum and that the defendant should continue to pay his subsequent yearly pension which he is entitled to. 6. Interest on the pension arrears at the defendant’s commercial lending rate from 19th/1/2006 till date of judgment and thereafter at 30% per annum till the judgment debt is liquidated. 7. Damages in the sum of N200,000.00 (two Hundred Thousand Naira). Accompanying the complaint is the statement of facts date 30th November 2011, the list of witnesses dated 30th November 2011, and the claimant’s list of documents dated 30th November 2011 (and copies of the documents). There was no witness deposition on oath filed. The defendant reacted by filing the memorandum of appearance dated 1st February 2012 but filed on 2nd February 2012. The defendant then joined issues with the claimant by filing the statement of defence dated and filed on 5th March 2012 together with the list of witnesses and the list of documents to be relied on during the trial, which the defendant indicated will be the documents frontloaded by the claimant. The defendant too did not file any witness deposition on oath. In fact both parties agreed that they will not be calling any witness and so will argue the case on record, relying on the documents frontloaded and already in the case file. The parties then went on to file their respective written addresses. That of the claimant is dated and filed on 23rd March 2012. That of the defendant is dated and filed on 23rd May 2012. The claimant filed a reply on points of law dated and filed on 26th July 2012. Parties went on to formally adopt their respective written briefs. The case of the claimant is that he is a former employee of the defendant and had risen to the position of Officer II. By a letter dated 13th March 2006 (Document 1 in the list of documents frontloaded by the claimant), the defendant terminated the claimant’s employment with effect from 19th January 2006. By another letter dated 26th June 2006 (Document 2 in the list of documents frontloaded by the claimant), the defendant, while acknowledging the claimant’s entitlement to annual pension under its Staff Pension Fund Deed of Variation of Trust Deed made in 1996 (Document 3 in the list of documents frontloaded by the claimant), put the pension due and payable to the claimant yearly at N280,866.36. The claimant continued that in the said letter of 26th June 2006, the defendant classified the claimant’s pension under deferred pension and same was said to become payable as from 21st December 2023 when the claimant clocks 60 years of age. The claimant had worked with the defendant for more than ten continuous years prior to 19th January 2006 when his employment was terminated. The defendant paid him gratuity based on the deed and no reference whatsoever was made to Union Trustees and Williams Street Trustees in paying the claimant’s gratuity. The claimant went on that he did not withdraw his services from the defendant; neither did he resign his appointment. Rather, it was the defendant who terminated his employment on the ground that his services were no longer required. Consequently, that his pension was wrongly classified under deferred pension by the defendant as he never withdrew his services from the defendant. That under the Trust Deed, the defendant ought to have started paying his yearly pension immediately upon the cessation of his employment i.e. from 19th January 2006. A letter of demand for the pension arrears from January 2006 was written by the claimant’s solicitor to the defendant (Document 4 in the list of documents frontloaded by the claimant). The letter is dated 22nd July 2011 and has three documents attached to it including a photocopy of the judgment of Hon. Justice O. A. Taiwo (Mrs.) of the Lagos State High Court in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc unreported Suit No. LD/1280/07 delivered on 10th June 2008. The defendant did not respond to the claimant’s solicitor’s letter. To the claimant, he suffered a lot of inconveniences (including the inability to discharge family responsibilities as well as missed business opportunities that he may have utilized the pension sums for) as a result of the failure of the defendant to pay him his pension. The claimant framed two issues for the determination of this Court, namely – 1. Whether by virtue of the defendant’s letter of 26th June 2006 to its Assistant Manager, Central Accounts Department, Head Office, Lagos and copied to the claimant, the provisions of the defendant’s Staff Pension Fund Deed of Variation of Trust Deed made in 1996 are binding on the parties herein and enforceable by the claimant against the defendant. 2. Whether by virtue of Rule 7 of the defendant’s Staff Pension Fund Deed of Variation of Trust Deed made in 1996, the claimant was qualified to have started receiving his yearly pension as from 19th January 2006 when the defendant terminated his employment, the claimant not having voluntarily withdrawn his services from the defendant. Regarding issue 1, the claimant submitted that where a document is incorporated or embodied in the conditions of a contract of service, whether expressly or impliedly, it will be binding on the parties, more so when one of the parties acted and relied upon it in their dealings with one another; and the courts can safely rely and act upon it, referring to UBN Plc v. Toyinbo [2009] 13 WRN 143 and Dawodu v. UBA Plc [2004] 9 NWLR (Pt. 878) 276. To the claimant, the defendant’s letter of 26th June 2006 in referring to its Trust Deed of 1996 and stating that the claimant would be paid his pension in accordance with it has incorporated same as part of the claimant’s conditions of service. That the letter was not written by Union Trustees or Williams Street Trustees Ltd, nor was the letter copied to any of them. That the implication of all this is that the defendant clearly indicated an intention to pay the claimant his pension as from 21st December 2023 and to be bound by the provisions of the Trust Deed. The claimant continued that the defendant had acted on and used the Trust Deed before in relation to the claimant’s benefits. That the defendant used it to calculate and pay the claimant his gratuity upon the termination of his employment, referring to paragraphs 1, 2, 3 and 6 of the defendant’s letter of 26th June 2006, clause 18 (page 15) of the Trust Deed and the schedule thereto at page 17. That the claimant worked for 17 years and his total emolument was N739,122.00, which explains why 196% I accordance with schedule was used to calculate his gratuity. To the claimant, the defendant clearly followed and applied the pension and gratuity rules in the Trust Deed in the matter of calculation and payment of his gratuity; and same was followed in calculating his pension. That all of this evidences a correlation between the letter of 26th June 2006 and the Trust Deed; and note should be taken that the gratuity was not paid through Union Trustees or Williams Street Trustees Ltd or based on any claim or instruction by them but was paid directly by the defendant. In any event, that in the letter of 26th June 2006, the claimant’s annual pension is put at 38% of his terminal total emolument and this was shown to be N280,866.36, a calculation that is based on the Trust Deed (referring to paragraph 4 of the letter, clause 6, page 11, of the Deed and the schedule thereto, page 17). That had the claimant been 60 years as at January 2006, the defendant would have been paying the claimant his pension. Furthermore, the claimant contended that it is erroneous and escapist for the defendant to contend that it is Union Trustees Ltd and Williams Street Trustees Ltd that should initiate this action. That this contention is not posited in good faith in view of the incorporation by reference of the Trust Deed as part of the conditions of service of the claimant by the defendant and acting upon and using the Trust Deed by the defendant. The claimant continued that, by conduct, the defendant is stopped from asserting and/or denying that the provisions and terms of its Trust Deed apply and are enforceable by the claimant against the defendant; the stance of the defendant being one of approbating and reprobating, which should not be countenanced by the Court. The claimant then urged the Court to answer issue 1 in the affirmative. Regarding issue 2, the claimant contended that where the words of a document are clear and unambiguous, they should be given their natural, ordinary and grammatical meaning, referring to Adebanjo v. Adebanjo [2006] 37WRN 32 and AIB Ltd v. Asaolu [2006] 5 WRN 35. That the wordings of all the documents referred to in this suit are clear and unambiguous and same should be given their ordinary meaning by the Court. To the claimant, the defendant in its letter of 13th March 2006 acknowledged the claimant’s entitlement to pension under the Trust Deed, referring to paragraph 4 of the letter. That the defendant, relying on the Trust Deed acknowledged the claimant’s entitlement to pension under the Trust Deed because he worked for up to 10 continuous years in the defendant as stipulated under the qualifying period on page 12 of the Trust Deed, citing Rule 7(a) of the Trust Deed. The claimant continued that the defendant, however, stated in the letter of 13th march 2006 that the claimant was under deferred pension and that he would start receiving his pension as from 21st December 2023 when he would 60 years old. The claimant then asked what type of pension he is entitled to under the Trust Deed i.e. whether it one that is immediate under Rule 7(a) or one that is deferred under Rule 9(b) of the Trust Deed. The claimant submitted further that the deferred pension under Rule 9(b) of the Trust Deed at page 13 thereof and which the claimant’s pension is calculated is not applicable to the claimant’s pension. To the claimant, deferred pension under Rule 9(b) applies only “if a member withdraws his or her services before attaining the normal retirement age” and in such a situation the member has to wait until he/she is 45 years old. That the claimant did not withdraw his services from the defendant; rather, the defendant terminated the claimant’s employment, which employment ceased as from 19th January 2006. The claimant then referred the Court to page 9 of the judgment of Hon. Justice O. A. Taiwo of the Lagos State High Court in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc (supra), a case on all fours with the instant case, where it was held as follows – Deferred pension is referred to under Rule 9 headed Early Retirement and under Rule 9(b) it is stated that “if a member withdraws his/her services before attaining the normal retirement age he/she will be entitled to receive pension as shown in the attained (attached) schedule when the member has attained the age of 45 years”. I do not see how this rule relates to the Claimant as Rule 9 relates to a situation where a member voluntarily retires after attaining the age of 45 years or if a member withdraws his/her services before attaining the normal retirement age. In the instant case, the Claimant did not voluntarily retire nor did he withdraw his services…. To the claimant then, since the claimant in that case, as in the instant case, did not voluntarily retire, the pension of the claimant cannot be held to be under deferred pension. The claimant urged the Court to adopt and apply the reasoning in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc (supra) even though it is a case of persuasive authority. The claimant continued that since he did not withdraw his services from the defendant, he does not come under the exception to Rule 7(a) created under Rule 9(b) of the Trust Deed, which requires that an employee who withdraws his/her services before attaining the normal retirement age has to wait until he/she is 45 years old before receiving his/her annual pension instead of receiving same as from the date of cessation of employment as stipulated under Rule 7(a) i.e. the claimant ought to have started receiving his pension as from 19th January 2006 when his employment was terminated by the defendant. The claimant contended further that the defendant wrongly classified his pension as deferred pension in the letter if 13th march 2006 and that the defendant ought to have started paying his pension as from 19th January 2006 when his employment was terminated as he did not withdraw his services from the defendant, which would have brought him under deferred pension. That by Rule 7(a) of the Trust Deed at page 12, a qualified employee of the defendant should start receiving his/her pension upon retirement or cessation of employment. That the word “cessation’ as used in Rule 7(a) denotes bringing one’s employment to an end. The claimant then referred the Court to page 5 of the judgment of Hon. Justice O. A. Taiwo of the Lagos State High Court in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc (supra) where it was held regarding the word “cessation” as follows – Although the Pension Scheme Rules does (do) not define “cessation of employment” it is clear that the word cessation comes from the word cease which means stop or terminate. The New Webster’s Dictionary of the English Language defines the word “cease” as “to sop, to bring to an end”. Once again, the claimant urged the Court to be persuaded by and adopt this reasoning. In conclusion, the claimant prayed the Court to answer issue 2 in the affirmative and hold that the claimant is entitled to his pension under Rule 7(a) of the Trust Deed. Also the claimant prayed the court to find that the claimant’s pension cannot be declared as deferred pension under Rule 9(b) of the Trust Deed and then hold that the defendant ought to have started paying the claimant his pension as from 19th January 2006 when his employment was terminated by the defendant. The claimant then prayed the Court to enter judgment in his favour as per the complaint and statement of facts. By paragraphs 2.01 – 2.03 of the written address of the defendant, the case of the defendant is that the claimant is a former employee of the defendant whose employment was terminated vide a letter dated 13th march 2006. Upon this termination of employment, the claimant was advised of his gratuity and payments thereof vide a letter dated 26th June 2012. That “the claimant’s pension was initially categorized as deferred pension, however, the defendant in conformity with the provisions of the relevant law is in the process of transferring the Claimant’s pension to a pension fund administrator who is statutorily empowered to administer same”. The defendant then formulated three issues for the determination of this Court, namely – 1. Whether the Deed of variation Trust Deed 1996 is still in existence. 2. Whether the claimant can maintain this action against the defendant in this suit. 3. Whether the claimant is entitled to claim interest on their alleged outstanding gratuity. Before addressing these issues, the defendant addressed what it termed preliminary issues. To the defendant, it is the law that counsel cannot substitute evidence with submissions, referring to UBN Plc 7 anor v. Atodare & Sons (Nig) Ltd [2007] 13 NWLR (Pt. 1052) – the page was not supplied. That the claimant in his final address made copious arguments that the defendant relied on its Trust Deed which was frontloaded by the claimant in calculating the claimant’s gratuity after his employment was terminated, for which the Trust Deed is applicable to the present proceedings. Furthermore, that the claimant argued that in the letter of 26th June 2006, it was stated that his entitlements were being calculated in line with the Trust Deed. To the defendant, nowhere in the said letter did the defendant refer to the Trust Deed. That the defendant only stated that the claimant’s gratuity had been “calculated in accordance with the current gratuity rates”. The defendant continued that the wordings of the said documents are clear and unambiguous for which no extraneous facts should be read to it, referring to AG, Ekiti State v. Adewunmi & anor [2002] 1 SC 47. Further still, that the argument of the claimant stand on its head as the claimant never pleaded those facts nor led any evidence to show that his gratuity was calculated in line with the Trust Deed. That a perusal of the claimant’s statement of facts would reveal that no such facts were pleaded; more so, no document relied upon in his list of frontloaded documents support these facts, urging the Court to discountenance the claimant’s argument and strike out same. In any event, that the claimant did not put before the Court the evidence of the calculation of his terminal benefits; the Court cannot, therefore, speculate on same as one cannot put something on nothing and expect it to stand, referring to Skenconsult v. Ukey [1981] 1 SC 6 and UAC v. Mcfoy – the citation was not supplied. In addressing issue 1, the defendant rephrased it as “whether the Pension Reform Act is the applicable law in the circumstance”. Referring to sections 1(1) and (2) and 9 of the Pension Reform Act (PRA) 2004, the defendant submitted that all non-contributory pension schemes have since been abolished since the coming into effect of the PRA. That since the provisions of the PRA are clear in that regard, same must be given their ordinary and clear meaning, referring the Court to Awolowo v. Shagari [1979] 6 – 9 SC 37 and Awuse v. Odili [2003] 8 NWLR (Pt. 851) – once again the page is not supplied. To the defendant, the PRA recognizes the existence of pension schemes before the coming into effect of the Act. That the Act also recognizes the fact that some employers may choose to continue to operate “the pre-existing existing pension schemes”; but this can be only upon the fulfillment of the following conditions – a) Pension funds and assets shall be fully segregated from the funds and assets of the company. b) The pension funds and assets shall be held by a custodian…. That section 39 of the PRA cannot be read in isolation as it must be read in consonance with section 40. The defendant then went on to submit that since the commencement of the PRA, the defendant never applied to the Nigerian pension Commission for the license stated therein. That the defendant has made moves to compute and transfer all pension benefits of “all its employers” to pension fund administrators in line with the provisions of the PRA. That the defendant is bound by the express provisions of a statute which has abolished all forms of non-contributory pension schemes in existence before the commencement of the PRA; more so, the Act makes its provisions mandatory with punitive provisions therein. That the Trust Deed itself recognizes the possibility of being rendered void by operation of the law, referring to clause 14(a) of the Trust Deed on “Termination of Trust”. The clause provides that – The Trust constituted by these presents shall determine on winding up (whether voluntary or compulsory) of the Bank otherwise than for the purpose or reconstruction or amalgamation and otherwise shall continue until such period as may be lawful (the emphasis is the defendant’s). On this clause, the defendant submitted that by the provisions of the PRA and clause 14(a) of the Trust Deed, the Trust Deed has been rendered unlawful, urging the Court to so hold. That a careful reading of section 1, 9 and 39 of the PRA would reveal that the intendment of the statute was to abolish all non-contributory pension schemes. Consequently, that with the coming into effect of the PRA, the Trust Deed ceased to exist; and so all the reliefs sought for by the claimant in this suit which is predicated on the Trust Deed cannot stand in the light of the provisions of the PRA 2004, urging the Court to so hold. On issue 2 i.e. assuming issue 1 is answered in the negative whether the claimant can maintain this action against the defendant, the defendant contended that on the face of the Trust Deed, the parties to the Trust Deed are Union Bank, Union Trustees Ltd and Williams Street Trustees Ltd, each with specific responsibilities stipulated under the Deed. That payment under the Trust Deed is the sole responsibility of the Trustees of the pension fund appointed under the Trust Deed, referring the Court to clause 3 of the Trust Deed on “Declaration of Trust”, which provides that – The Trustee shall stand possessed of the fund upon Trust out of the capital or the income thereof or both as it may think proper to pay to the staff/employees of the bank and such pensions or other benefits as now are or may thereafter become payable under and in accordance with rules (emphasis is the defendant’s). The defendant also referred the Court to clauses 5 and 7 of the Trust Deed. The defendant then submitted that since clauses 3 and 7 provide that the “Trustee(s) shall stand possessed of the fund”, it is the Trustees (not the defendant) that are vested with the pension fund. Referring to Nwobodo v. Onoh & ors [1984] 1 SC 6 and Awolowo v. Shagari (supra), the defendant contended in interpreting any document, the court is expected to give it its clear and unambiguous meaning. That the provisions of the Trust Deed are clear and so should be given their ordinary meaning. That parties having entered into an agreement cannot rely on any extrinsic evidence in the interpretation of same, citing Ezemba v. Ibereme [2004] 14 NWLR (Pt. 894) – yet again the page was not supplied. The defendant then submitted that it has no control over the pension fund, the trustees being Union Trustees Ltd and Williams Street Trustees Ltd. In any event, that clause 5 of the Trust Deed is specific in providing that “[t]he Fund shall be administered by the Trustees”. Consequently, that the issues of who benefits from the fund, how much a beneficiary is entitled to under the fund, when a beneficiary is entitled to take under the fund are all determined by the trustees who administer and are vested with the trust fund. Consequently, that as far as reliefs 1, 2, and 3 of the claimant are concerned, the defendant is not responsible or answerable for them under the Trust Deed. That the parties that would enable this Court to effectively decide this suit are not before the Court, referring to Green v. Green [1987] 2 NWLR (Pt. 61) – yet still, the page is not supplied. Referring further to Awoniyi v. Registered Trustees of AMORC [2000] 10 NWLR (Pt. 676) 1, the defendant submitted that the necessary parties for the proper determination of this suit are not before the Court; and so the Court lacks the jurisdiction to entertain the suit as presently constituted. The defendant continued that the submission of the claimant that the defendant’s letter of June 26, 2006 incorporated the Trust Deed as part of the claimant’s conditions of service is erroneous as the only contract between the parties is that which was done in 1996 when the claimant was employed by the defendant; and same was determined in 2006. That the Trust Deed was never part of the claimant’s contract of service; and it contained a trust, not a contract. That the claimant’s contract of service and the trust made by the defendant for the benefit of the claimant are two separate arrangements. Furthermore, that the argument of the claimant as to estoppels is misconceived because for estoppels to apply, the claimant must not only plead the fact that constitutes estoppels, but he must also establish by evidence that he has placed reliance on the facts stated in the letter of June 26, 2006 and has also suffered a detriment by doing so; and that the claimant has failed woefully to do so, referring to Adone v. Ikebudu [2001] 14 NWLR (Pt. 733) 127 at 146. On the whole, that the claimant failed to place before the Court sufficient materials before the Court to prove his case, urging the Court to hold that under the Trust Deed, the claimant cannot maintain an action against the defendant in this suit, which is incompetent as constituted. Issue 3 deals with the question whether the claimant is entitled to interest on the alleged outstanding gratuity. To the defendant, in law, interest may be claimed and awarded in a case in two circumstances, which are – a. Where it is claimed as of right. b. Where there is a power conferred by statute to do so in the exercise of the Court’s discretion. The defendant then referred the Court to Ekwunife v. Wayne West Africa Ltd [1989] 5 NWLR (Pt. 122) 422 at 455, where the Supreme Court stated that – Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it in the writ and plead facts which show such an entitlement in the statement of claim. That the claimant failed to meet with the requirements of the law by their failure to plead facts which entitle them to claim interest on the alleged outstanding gratuity. The defendant continued that interest may be claimed as of right where it is contemplated by agreement between the parties or under mercantile custom or under a principle of equity such as breach of fiduciary relationship. However, that where the claim for interest is under a statute, it is not necessary and required of the beneficiary of the statutory provision to state in the endorsement of his claim on the writ or to plead in his statement of claim the fact or the grounds of his entitlement thereto. That for a party to be awarded interest not provided by statute, there must be evidence of the right to that sum on record, citing Texaco Overseas (Nig) Unlimited v. Pedmar Nig. Ltd [2002] 13 NWLR (Pt. 785) 526. That the claimant did not plead the basis of his claim for interest (whether it is by agreement between the parties or by mercantile custom to the transaction between the parties) or lead any evidence at trial on facts thereon. The defendant then submitted and urged the Court to hold that the claimant, having failed to plead and lead evidence on facts, which entitle him to claim interest on his alleged outstanding gratuity, is not entitled to the award of interest. In conclusion, the defendant submitted that the suit is frivolous and vexatious, and urged the Court to so hold. In replying on points of law, the claimant reiterated that the Trust Deed made in 1996 is still the applicable pension scheme of the claimant’s pension and not the scheme created under the PRA 2004. That by virtue of the transitional provisions in Part VII, sections 37 – 43 of the PRA 2004, an existing pension scheme of an employer as at the time the Act came into effect (in this case the 1996 Trust Deed) continues to exist and to be applicable until the employer transits from the existing scheme to the scheme created under the Act. That the Act came into effect on 25th June 2004. That there is no material placed before this Court to show that the defendant has transited from its existing pension scheme i.e. its Staff Pension Fund Deed of Variation of Trust Deed made in 1996, to the scheme created under the Act. The claimant went on to submit that in law a party is to address the Court on facts and materials pleaded. That the Court is not to entertain facts not pleaded but stated in an address, referring to Okwejiminor v. Gbakeji [2008] 17 WRN 1. Consequently, that the facts contained in paragraphs 2.03 and 5.10 of the defendant’s final address have no bearing on the claimant’s case as same were not pleaded and so should be discountenanced by the Court. Furthermore, that the claimant is an ex-employee of the defendant, not one of its present employees as contemplated by paragraph 5.10 assuming this Court can consider the paragraph. That assuming the Court can entertain the averment in paragraph 2.03, why is it that since 2006 when the claimant’s employment was terminated by the defendant, it is now that the defendant is “…in the process of transferring the Claimant’s pension to a pension fund administrator…” when the Act came into effect in June 2004? That the non-transfer of the claimant’s pension to a pension administrator since 2006 when the claimant’s employment was terminated further proves that the defendant intended to continue with its existing pension scheme and it is an afterthought now for the defendant to say that it is the scheme created under the PRA that applies to the claimant’s pension. To the claimant, it is only when an employer has transited to the contributory scheme created under section 1 of the PRA that section 9 can apply. And since the defendant has not transited from its existing scheme to the scheme created under the Act, it is the existing scheme that still applies to the claimant’s pension. In any event that there has not been any demand on the claimant by the defendant to make any contribution towards his pension. That under section ((2) of the PRA, an employer may bear the whole contribution. That by the defendant’s acts and conduct, it elected to continue to maintain and operate and be bound by its existing scheme as it has not transited to the scheme created under the Act. Lastly, that the failure of the defendant to transfer the claimant’s pension to a pension fund administrator till now also raises the presumption that the defendant from the time the claimant’s employment was terminated and the defendant’s letter of 26th June 2006 was written, the defendant intended to apply and be bound by its existing pension scheme in respect of the claimant’s pension. The claimant concluded by submitting that the defendant’s arguments on the issues raised in its written address are unmeritorious and should be discountenanced by the Court, urging the Court to give judgment in favour of the claimant. In considering the processes and submissions of the parties, I must remark on an issue or two. The defendant in its written address made propositions of law and referred the Court to authorities that were not disclosed. I am here talking of especially paragraphs 4.01, 4.09 and 6.31 of the defendant’s written address. This is in addition to the numerous cases cited by the defendant without their relevant pages in the law reports disclosed. There is also a measure of misrepresentation of submissions on the part of the defendant. For instance, under relief (f) of the claimant’s complaint and statement of facts, the claimant had claimed “interest on the pension arrears at the Defendant’s commercial lending rate from 19th/1/2006 till date of judgment and thereafter at 30% per annum till the judgment debt is liquidated”. Yet the defendant in paragraph 7.0 of its written address represented this in the following words – The claimant claimed interest on the alleged pension arrears at the Defendant’s commercial lending rate from 19/1/2006 till the date of Judgment to December 2007. Where the defendant got the words “to December 2007” from, I do not know. Furthermore, the defendant did not as much as mention (not to talk of discuss) the judgment of Hon. Justice O. A. Taiwo of the Lagos State High Court in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc unreported Suit No. LD/1280/07 delivered on 10th June 2008 and cited copiously and discussed as such by the claimant, a case of persuasive authority and on all fours with the case at hand. In like manner, despite the very detailed submissions of the defendant on the claim for interest by the claimant, the claimant chose to be silent on it in his reply on points of law. The defendant accused the claimant of leading evidence in his written address; yet that is exactly what the defendant did in paragraph 2.03 of its written address when it stated that “the Defendant in conformity with the provisions of the relevant law is in the process of transferring the Claimant’s pension to a pension fund administrator who is statutorily empowered to administer same” and in paragraph 5.10 when it stated that the “defendant has made moves to compute and transfer all pension benefits of ‘all its employers’ to pension fund administrators in line with the provisions of the Act”. No evidence whatsoever was led by the defendant to prove either of these assertions. Instead in paragraph 5.11, the defendant asserted that the claimant did not by his pleadings or evidence place any material facts before the Court to show that the defendant ever applied to the Pension Commission to be registered as a pension fund administrator; and then in paragraph 5.12 urged the Court to hold that the defendant is not a closed pension fund administrator. It is the defendant who made assertions here. It is the defendant who has the duty to prove the assertions. The defendant cannot impute to the claimant an assertion and then urge the Court to rule that the claimant should prove what it imputed to the claimant. Since the defendant did not prove its assertions, I cannot rule or hold that the defendant is a closed pension administrator as prayed for by the defendant. I agree with the submission of the claimant in his reply on points of law that by the transitional provisions in Part VII of the PRA 2004, an existing pension scheme of an employer (which is what the 1996 Trust Deed is) at the time the PRA came into effect continues to exist and to be applicable until the employer actually transits from the existing scheme to that that may be created under the PRA. The claimant had argued that in the letter of 26th June 2006, his entitlements were calculated in line with the Trust Deed. But the defendant contended that nowhere in the said letter did the defendant refer to the Trust Deed. That the defendant only stated that the claimant’s gratuity had been “calculated in accordance with the current gratuity rates”. A look at clause 20 of the Trust Deed will reveal the following provision – As from the 1st day of January, 1994, the Pension and Gratuity Scheme shall be based on total emolument of those classes of employees of the Bank as are qualified under the existing Rules regulating the payment of pensions and gratuity and shall include Basic salary, Lunch subsidy, and Housing and transport allowances. By paragraph 3 of the Schedule to the Trust Deed, “[a]ll categories of bank employees who have been confirmed to the permanent staff” (a group to which the claimant belongs) are qualifiedly covered by the trust scheme. Paragraph 6 of the schedule to the Trust Deed then provides that “[t]he scale of amounts receivable by a member of the Scheme shall be based on the appropriate percentage of his/her annual terminal total entitlement as set out in the attached schedule” (emphasis is the Court’s). The provision of paragraph 6 is repeated as paragraph 18 of the Schedule to the Trust Deed. Now, the first two, and fourth, paragraphs of the letter of June 26, 2006 provides as follows – We advise that a gratuity of N1,448,679.12 has been approved for the above named staff sequel to the termination of his appointment with effect from 19/1/2006. The amount represents 196% of his terminal annual total emolument calculated in accordance with current gratuity rates. In accordance with the terms of the current pension and gratuity scheme, he is entitled to a deferred pension of N280,866.36 per annum calculated on the basis of 38% of his terminal total emoluments (terminal basic salary, housing, transport and lunch) when he attains the age of 60 years on 21/12/2023 (emphasis is the Court’s). The language of the Trust Deed and the letter of June 26, 2006 is too close to be coincidental. So how can the claimant be wrong in arguing that, in the letter of 26th June 2006, his entitlements were calculated in line with the Trust Deed? I agree with the claimant that the claimant’s entitlements as disclosed in the letter of June 26, 2006 were calculated on the basis of the Trust Deed; and I so hold. The defendant had argued that by clauses 3 and 7 of the Trust Deed, the defendant is not the trustee and so cannot be held liable. Yet in clause 18 of the Trust Deed, the defendant is obliged to notify the trustees in writing of the granting, suspension, alteration or ‘cesser’ of a Pension or Gratuity payable under the Rules. So if this is the duty of the defendant, is the claimant wrong to have sued the defendant? I do not think so; more so if it is noted that under clause 8 of the Trust Deed, the powers of the Trustees are to invest the trust funds and to borrow. In fact, it is in this light that I see the advice of the defendant regarding the gratuity of the claimant vide the letter of June 26, 2006. Even when clause 7 talks of the trustees making payments as they may be required or authorized to make under or in accordance with the Trust Deed or the Rules or either of them, it must be realized that clause 18 is one such authorization. I, therefore, and hereby, hold that the defendant is responsible and answerable to the claimant for the claims under the Trust Deed. As a result, this Court has the jurisdiction to entertain the suit as presently constituted. Any order made by this Court on the defendant cannot be rendered nugatory, as argued by the defendant in paragraphs 6.18 – 6.23 of its written address, because under clause 18 of the Trust Deed, the defendant can simply authorize the trustees to pay to the claimant his entitlement under the Trust Deed. The arguments of the defendant in paragraphs 6.24 – 6.26 of its written address to the effect that the defendant (as settlor of the trust) cannot be sued by the beneficiary (the claimant in this case) loses sight of clause 18, which still gives the defendant the duty of notifying in writing the trustees of the grant of a pension or gratuity. If the defendant does not discharge this duty, the pension or gratuity is not payable. It is not in doubt that the claimant was an employee of the defendant and whose employment was terminated by the defendant. The defendant admitted this much in paragraph 2 of its statement of defence. The question that, therefore, remains is whether the claimant has proved his case. Reliefs 1 – 4 as claimed by the claimant are for declaratory orders, which centre on the interpretation of paragraphs 7(a), 8, 9 and 11 of the schedule to the Trust Deed. Paragraph 7(a) stipulates that the qualifying period of receipt of benefits under the scheme shall be ten continuous years’ service from the date of engagement, but payable only upon retirement or cessation of employment. Paragraph 8 provides that due notice of normal retirement may be given by either party to the other between six and twelve calendar months to the expected date of retirement. Paragraph 9 then provides that after attaining the age of 45 years, a member may retire voluntarily after giving the Bank twelve months’ notice of intention to retire in which case the member is entitled to receive immediate pension on retirement; but if the member withdraws his/her services before attaining the normal retirement age, he/she will be entitled to receive pension when the member has attained the age of 45 years. The entitlement of the member here is termed by paragraph 9(b) to be deferred pension. Paragraph 11 puts the normal retirement age to be 60 years “for those who were confirmed to the permanent staff as from 1/10/64” and 55 years for those confirmed prior to 1/10/64. The argument of the claimant here is that he did not voluntarily retire or withdraw his services from the employment of the defendant. So, it is wrong for the defendant to have classified his pension as deferred pension. I agree with the submissions of the claimant in this regard; and I am further persuaded on that score by the sound reasoning in the judgment of Hon. Justice O. A. Taiwo of the Lagos State High Court in Mr. Matthew Mbadiwe Okafor v. Union Bank of Nigeria Plc unreported Suit No. LD/1280/07 delivered on 10th June 2008, which I respectfully adopted for present purposes. I, therefore, find and hold that the claimant’s pension cannot be declared as deferred pension under paragraph 9(b) of the schedule to the Trust Deed; the claimant is entitled to his pension under paragraph 7(a) of the Trust Deed; and the defendant ought to have started paying the claimant his pension as from 19th January 2006 when his employment ceased and not as from 21st December 2023 when he will be 60 years old (as indicated in the defendant’s letter of June 26, 2006). The outstanding issue remaining is the claim by the claimant for interest on the pension arrears and damages, heads of claim that the claimant did not even address in both his written address and reply on points of law. The claimant must, therefore, be read as having abandoned same. Even if this were not so, this Court in Mr. Kurt Severinsen (suing through his lawful attorney Charles Edeki) v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 464, held as follows – The claimant also claimed for interest at the rate of 15% per annum from 1st December 2009 until the judgment debt is fully liquidated. By Order 21 Rule 4 of the National Industrial Court Rules 2007, this Court at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. This means that, as argued by the defendant, the claimant cannot ask for pre-judgment interest. The Court can only award interest on judgment as from the date of judgment. Applying this principle to the case at hand, the claimant’s claim for interest from 19th January 2006 cannot be granted. It is accordingly refused. However, I take judicial notice of the fact that the defendant is a bank and a lending institution. In that regard, I also take judicial notice of the fact that the entitlement of the claimant regarding his pension arrears since 19th January 2006 ought to have been paid since then. In consequence, the claimant was denied the benefit of the said pension arrears. On the authority of Order 21 Rule 4 of the National Industrial Court Rules 2007, the claimant is entitled to interest on part of his claim at least as from the date of judgment till it is liquidated; and I so hold. For all the reasons given, therefore, I hold that the claimant succeeds in his case in terms of only reliefs 1 – 5 prayed for. For the avoidance of doubt, I declare and hold as follows – 1. By virtue of paragraph 7 of the schedule to defendant’s Staff Pension Fund Deed of Variation Trust Deed made in 1996, the claimant was qualified to have started receiving his yearly pension from the defendant from 19th January 2006 when the defendant terminated the claimant’s employment (and thus his employment ceased from that date), the claimant not having voluntarily withdrawn his services to the defendant. 2. The defendant’s classification of the pension of the claimant under deferred pension is wrong and contrary to paragraphs 7(a), 8, 9(a) and (b) and 11 of the schedule to the defendant’s Staff Pension Fund Deed of Variation of Trust deed made in 1996 because the claimant did not voluntarily withdraw his services to the defendant. 3. Paragraph 9(b) of the defendant’s Staff pension Fund deed of variation of Trust Deed made in 1996 dealing with deferred pension is not applicable to the claimant’s pension because the claimant did not voluntarily withdraw his services to the defendant. 4. The defendant is, therefore, in arrears of the claimant’s yearly pension from 19th January 2006 till date of judgment at the rate of N280,866.36 per annum. 5. The defendant shall pay the claimant his pension arrears from 19th January 2006 till date of judgment at the rate of N280,866.36 per annum and thereafter the defendant shall continue to pay the claimant’s subsequent yearly pension. 6. All payments ordered under this judgment are due and payable forthwith. 7. The pension arrears due to the claimant as from 19th January 2006 to date of this judgment shall attract interest at the commercial lending rate of the defendant from the date of this judgment till such date as it may be liquidated. 8. Cost is put at Fifty Thousand Naira (N50,000) only payable by the defendant to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip