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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: APRIL 28, 2015 SUIT NO: NICN/LA/317/2012 BETWEEN Mr. Eni Okechukwu - Claimant AND Union Bank of Nigeria Plc - Defendant REPRESENTATION S. J. Uzoigwe for the Claimant. Anyalewa Onoja Miss for the Defendant. JUDGMENT The Claimant by his Amended General Form of Complaint dated 23/5/13 approached this Court and sought the following reliefs - 1. A declaration that the Claimant is entitled to receive his annual pension in the sum of N74,808.63 (Seventy-Four Thousand Eight Hundred and Eight Naira Sixty-Three Kobo) immediately from the day his appointment with the Defendant was terminated, being the 10th day of July,2000, including all pension salary increments up to date. 2. An order compelling the Defendant to pay the Claimant’s annual Pension commencing from 10th day of July, 2000, till the final determination of this suit and interest herein at the rate of 25% per annum. 3. An order compelling the Defendant to continue to pay Claimant’s annual pension in the sum of N74,808.63 (Seventy-Four Thousand Eight Hundred and Eight Naira Sixty-Three kobo) including every other revision as per relevant circular or circulars of the Defendant, as should be due to him thereafter as for a retired staff of the Defendant from the date judgment is given till Claimant's death. 4. General Damages in the sum of N8,000,000.00 (Eight Million Naira) only, in favour of the Claimant as his pension has been withheld for over thirteen 13 years. The amended Form 1 was accompanied by all the requisite processes as mandated by the Rules of this Court. The Defendant filed its statement of defence on3/5/13. It accompanied same with list of witnesses, Defendant's witness deposition on oath and list of documents stating in there that 'the Defendant shall at the trial of this case rely on documents already frontloaded by the Claimant''. The trial of this commence on 6/3/14 when the Claimant testified as Claimant witness CW1. CW1 adopted his witness deposition dated 23/5/13 as his evidence in chief and tendered 8 documents as exhibits. The documents were admitted and marked as Exh. C1 - Exh. C8. Witness urged the Court to grant his claims. The case of the Claimant as deducible from his pleadings is that he was employed by the Defendant by a letter dated 24th September, 1982 when he was still bearing the name “Oke Eni Ukpong”; that he changed his name from “Oke Eni Ukpong” to Okechukwu Eni” and same was published in SATELLITE Newspaper, Wednesday edition, dated February 1st, 1984; that he rendered meritorious service to the Defendant for 18 years before his employment was terminated despite his branch’s recommendation that the said termination be committed to “First and Final warning”; that by a letter dated 18th August, 2000, the Defendant stated his terminal benefits and further stated that he was entitled to a deferred pension of N74,808.63 (Seventy-Four Thousand, Eight Hundred and Eight Naira Sixty-Three Kobo) per annum when he attains the age of 60 years on 3rd March, 2022 and that after his termination in the year 2000 he filed two appeals against the said termination and the 2nd and final appeal was dismissed and the dismissal was communicated to him in a letter dated 4th January, 2007. The Claimant further averred that in 2005 a new Pension Scheme came into force which provides for payment of pension on attainment of 45 years where the employee voluntarily retires; that he attained 45 years on 3rd March, 2007, and that since he did not retire voluntarily but was compulsorily retired by the Defendant, he was entitled to start receiving his pension with immediate effect or upon retirement; that by the provisions section 7 of the Staff Pension Fund Deed of Variation of Trust Deed of 1996, he was qualified and entitled to start receiving his yearly pension from the Defendant from the 10th day of July, 2000, when his appointment with the Defendant was compulsorily terminated without his consent; that he was qualified and entitled to start receiving his yearly pension from the Defendant from the 10th day of July, 2000, when his appointment with the Defendant was compulsorily terminated more so as he did not resign his appointment with the Defendant; that based on the foregoing he applied to the Defendant by a letter dated 26th April, 2010 for his pension to be paid which application was denied; that some of the ex-staff of the Defendant who are in the same position as him have started benefitting from the current scheme; that he instructed his Solicitors, who wrote a demand letter dated Monday, December 5, 2011, demanding that his pension arrears be paid; that the Defendant responded by its letter dated 18th January, 2012, stating that the Bank is already at the concluding part of transferring the legacy to the accredited Pension Fund Administrators (PFAS) and that he would not be able to access his pension even before he attained sixty years and that as a result of the attitude of the Defendant he filed this suit. Under cross examination, CW1 testified that he worked for the Defendant; that the Defendant pays pension and that the Defendant is not a Pension Fund Administrator. On 26/6/14, the Defendant opened its case and called one Anthony Nsoro as its lone witness. DW1 adopted his written witness deposition made on 8/5/14. Witness averred that the Claimant joined the employment of the Defendant on 4/10/1982 and his appointment was terminated on 10/07/2000; that the Claimant was in the employment of the Defendant for over 17 years before his appointment was terminated by the Defendant; that the Claimant’s employment was legally and lawfully terminated as the Defendant no longer desired his services; that the Defendant observed due process by acting in accordance with the contract of service and staff Handbook of the Defendant in terminating the employment of the Claimant with it; that the Defendant duly communicated the termination of the Claimant’s employment to him in its letter dated 10/07/2000 and duly credited his account with his gratuity and one month’s salary being payment in lieu of notice as stated in the condition of service; that the Executive Committee of the Defendant was saddled with the duty to determine the disciplinary action to be taken on the Claimant notwithstanding the recommendations by any party or person and that the branch’s recommendation cannot supersede the decision of the Executive Committee. According to the witness the Claimant’s terminal benefit was correctly computed to be N74,808.63 (Seventy-Four Thousand Eight Hundred and Eight Naira, Sixty-Three Kobo) per annum; that the Claimant was advised in his letter of termination that he is entitled to deferred pension when he attains the age of 60 years on 3rd March, 2022; that by the records of the Claimant with the Defendant, the Claimant’s was born on 3rd March, 1962; that the two appeals filed by the Claimant were found unmeritorious, baseless and were accordingly dismissed; that the new pension scheme which came into effect was the Pension Reform Act which was enacted in 2004; that the Act provides that a retired employee can only be entitled to pension fund on the attainment of 50 years of age; that the new scheme which is the Pension Reform Act, 2004 does not apply to the Claimant as he was no longer in the employment of the Defendant when the Act came into effect in 2004; that the Claimant is not entitled to any upward review of pension at all; that there is no ex-staff of the Defendant whose appointment was terminated on or about the same time as the Claimant and whose pension has been deferred to 60 years that had received pension before the attainment of age 60 years; that since the Claimant’s pension has been rightly deferred, his Solicitor’s letter of demand dated 5/12/11 was premature and unnecessary; that the Defendant’s response dated 18/1/12 stating that the Bank is at the concluding part of transferring the legacy to the accredited Pension Fund Administrators does not refer to the Claimant at all; that the Defendant’s letter referred to above was written in respect of one Eni Nwachukwu and that the Claimant is not entitled to any of the reliefs sought in the paragraph 16 of the Claimant's statement of fact or at all. Under cross examination, DW1 stated that he joined Defendant in August 2009; that he was not with Defendant when Claimant exited Defendant service; that the Claimant is not entitled to pension at the time of his exit; that the Defendant's letter dated 18/1/12 was a response to Claimant’s Counsel's letter dated 5/12/11; that the Claimant was born 1962 and that he joined Defendant in 1982. At the close trial, the Court directed learned Counsel on either side to file their final written addresses for adoption. The final written address of the Defendant was dated and filed on 25/9/14. In it learned Counsel raised a lone issue as follows - Whether in light of the fact that the Claimant's claim is based on a non-existent 'new Pension Scheme', the Claimant is entitled to the reliefs sought. Arguing this lone issue, learned Counsel submitted that for a Claimant to succeed in his claims he must prove his case; that the Claimant's case is based on the fact that he is entitled to pension by virtue of the provisions of what he called a new 'Pension Scheme 2005' and that the putative Pension Scheme 2005 not having been produced by the Claimant his claim must fail, arguing that it is the law that he who asserts must prove same. Counsel cited Sokwo v. Kpongbo (2003)2 NWLR (Pt. 803) 111 at 148, Imam v. Sheriff (2005)4 NWLR (Pt. 914) 80 at 167 and Metibaiye v. Narelli International Limited (2009)16 NWLR (Pt. 326) 343-345. According to learned Counsel, having regard to the fact that the Claimant solely relied on the said new Pension Scheme 2005, it is important for the Claimant to produce same before the Court. Counsel submitted that failure of the Claimant to produce the said document leaves the Court with nothing to decide as it is the document that would determine if the Claimant is entitled to his claims since the Court cannot speculate as to the content of the document. Learned Counsel cited Odusole v. Military Governor of Ogun State (2002)10 NWLR (Pt. 776) 566 at 602, Womiloju v. Kiki (2009)16 NWLR (Pt. 1166) 143 at 155 and PDP & Anor. v.INEC & Ors (2012) LPELR-8429. Learned Counsel submitted that there is no such document same not having been tendered by the Claimant. Counsel prayed the Court to so hold and to dismiss the Claimant's action in its entirety with substantial cost. Claimant's final written address was dated 1/12/14 and filed 2/12/14. Here also learned Counsel set down a lone issue for determination as follows - Whether the claimant is entitled to his arrears of pensions having been compulsorily retired from the employ of the Defendant in the year 2000? In arguing this lone issue, learned Counsel cited and reproduced section 3(1)(c) and (2)(c) of the Pensions Act, Cap. 346, Laws of the Federation of Nigeria, 1990 and submitted that the Claimant having been in the employ of the Defendant for over 15 years falls within and is protected by the quoted section of the Pensions Act, 1990 and is thus entitled to start receiving his pension notwithstanding that he was up to 45 years old when he was compulsorily retired. Learned Counsel submitted further that rather than Pensions Reform Act, 2004, it is indeed the provisions of Pensions Act, Cap. 346, Laws of the Federation of Nigeria, 1990; that the Claimant has proved his case and that the Court should discountenance the submissions of the Defendant and enter judgment for the Claimant. While replying on points of law, learned Counsel to the Defendant, Anyalew Onoja, drew attention of the Court to paragraphs 8 and 12 of the amended statement of fact in which the Claimant placed reliance on a new Pension Scheme, 2005 and reiterated that no such document was tendered before the Court and that the existing law on pension is the Pensions Reform Act 2004. Counsel further submitted that the Pension Act Cap. 346, Laws of the Federation of Nigeria, 1990 which the Claimant relied on is applicable only to employees in public service and that the Defendant is neither a public service body nor the Claimant a public service employee. Counsel urged the Court to dismiss the case of the Claimant. I have read and understood all the processes filed by learned Counsel on either side including their final written addresses. I listened to the witnesses in this case, watched their demeanour and evaluated all the exhibits tendered and admitted. Having done all this, I set down a lone issue for the just determination of this case as follows - Whether the Claimant has proved his case to be entitled to the reliefs sought. The system of dispute resolution through the Court as inherited from the British in Nigeria is such that the burden of proof remains on he who asserts to be entitled to favourable disposition by the Court. The assertions are usually in the pleadings. The averments in pleadings must however be proved by concrete, credible and admissible evidence. This, no doubt remains the basis upon which a trial Court will make a finding in favour of a party seeking a grant from the Court. See Access bank Plc v. Trilo Nigeria Limited & Ors. (2013) LPELR-22945 & Olusanya v. Osineye/Osineye (2013) LPELR-20641 SC. The first relief sought is a declaratory one. It is for a declaration that the Claimant is entitled to receive his annual pension in the sum of N74,808.63 (Seventy-Four Thousand Eight Hundred and Eight Naira Sixty-Three Kobo) immediately from the day his appointment with the Defendant was terminated, being the 10th day of July, 2000, including all pension salary increments up to date. The law on the requirement of a party to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. See Dumez Nigeria Limited v. Peter Nwakhoba & Ors. (2008) LPELR-965; (2008)18 NWLR (Pt. 1119) 361 SC, Emenike v. PDP & Ors. (2012) LPELR-7802 (SC) and Addah & Ors. v. Ubandawaki (2015)LPELR-SC. 7/2012. Now, what are the evidence adduced by the Claimant in support of his claim for this declaratory relief? Claimant tendered 8 exhibits. Exh. C5 was the Application for Commencement of the Payment of my Pension Allowances written by the Claimant, dated 26/4/10 and addressed to the Defendant. Exh. C6 was the Claimant's Solicitor's letter to the Defendant demanding the payment of the Claimant's pension. Apart from these 2 exhibits, I find no concrete evidence in support of his claim for declaratory relief sought. In paragraph 8 of his Amended Statement of Facts filed on 23/5/13, the Claimant averred that - '... in 2005 a new Pension Scheme came into force which provides for payment of pension on attainment of 45 years where the employee voluntarily retires. The Defendant is put on notice to produce the pension scheme 2005'. Claimant did not produce or tender the said new pension scheme as exhibit. The Claimant has an obligation to produce and tender same since he would lose if such is not tendered. Unfortunately, rather than produce the document, the Claimant also in that paragraph 8 shifted the production of same to the Defendant. That procedure is certainly not the acceptable practice. The Claimant who asserts the existence of that new pension scheme is duty bound to produce same for he would lose if no such evidence is tendered. Learned Counsel for the Claimant in his final written address had made submission with reference to section 3(1)(c) and (2)(c) of the Pensions Act, Cap. 346, Laws of the Federation of Nigeria, 1990 and urged the Court to hold that the Claimant was entitled to his claim on the basis of the said statute. It is imperative for me to state right from the onset that that legislation was never referred to during the trial of this case (this is without prejudice to the fact that this Court is bound to take judicial notice of all legislation in existence). In any event, the law is trite that no matter how brilliantly couched and presented, address of Counsel cannot be substituted for the pleadings and evidence of a party, see Unilorin v. Ayodeji (2014) LPELR-CA/IL/50/2011. Now the Pensions Act, Cap. 346 cited by the learned Counsel to the Claimant has its commencement date as 1/4/74. According to the Long Title of that Act, it is ''An Act to consolidate all enactments dealing with Pensions, War Pensions and disability benefits and gratuities for civilian employees in the public service of the Federation''. Subsection 1 of section 1 of the Act states - 'Subject to this Act, any pension or gratuity granted hereunder to any person on his retirement from the public service of the Federation shall be computed on the final pay of the person entitled thereto and in accordance with the provisions of the First Schedule to this Act'. By evidence before me, the Defendant in this case is not a government or public institution. The Defendant by its name is a public quoted financial institution. See Exh. C3. There is also no evidence before me that the Claimant was employed as a ''civilian employee in the public service of the Federation'' within the meaning of Cap. 346, Laws of the Federation of Nigeria, 1990. The Claimant has not adduced sufficient cogent, credible and admissible evidence to merit a grant to him of the declaratory relief sought. This relief is thus refused and dismissed accordingly. Reliefs 2, 3 and 4 are dependent on the success of the first relief. The first having been refused and dismissed, the remaining reliefs must also fail for lack of proof. I so hold. Thus an order compelling the Defendant to pay the Claimant’s annual Pension commencing from the 10th day of July, 2000, till the final determination of this suit and interest thereon at the rate of 25% per annum is refused and dismissed. An order compelling the Defendant to continue to pay Claimant’s annual pension in the sum of N74,808.63 (Seventy-Four Thousand Eight Hundred and Eight Naira Sixty-Three kobo) including all pension salary increments up to date from the date judgment is given till Claimant’s death is refused and dismissed in like manner. In much the same vein, a claim for General Damages in the sum of N8,000,000.00 (Eight Million Naira) only, in favour of the Claimant as his pension has been withheld for over thirteen 13 years is equally refused and dismissed. Finally and for the avoidance of doubt and for all the reasons adduced in this Judgment, all the claims of the Claimant are refused and dismissed Claimant not having adduced cogent, credible and admissible evidence in support of any of them. I make no order as to cost. Judgment is entered accordingly. __________________ Hon. Justice J. D. Peters Presiding Judge