10th May, 2022
By Glory Abuh-Adejoh
The National Industrial Court on Tuesday ordered the Benue State Government to pay its retiree, Atsar Vincent, the sum of N6.1 million, being his gratuity and pension arrears.
Those joined as co-defendants in the suit are the Benue State Pension Commission and the Attorney General of Benue State.
Delivering judgment, Justice Isaac Essien also declared that the claimant was entitled to pension and gratuity.
The judge in addition declared that the withholding of the claimant’s pension and gratuity was unconstitutional, unlawful and unwarranted.
He, therefore, ordered the defendants to forthwith pay the claimant accumulation of his gratuity and arrears of pension from the day of entitlement to Oct. 2021 in the sum of N6.1million.
From Statement of Facts as submitted by the claimant’s counsel, V. T. Amela, the claimant was an employee of the Universal Basic Education Board of the defendant.
The claimant served until he retired in March 2018 after attaining the mandatory retirement age.
According to the counsel, the computation of his client’s retirement benefit was made and from the computation, the claimant was entitled to N3.1 million as his gratuity.
The claimant was also entitled to another sum of N862,318 as annual pension.
“When his annual pension of N862, 318 is divided by 12 months, his monthly pension will be N71,859.
“His monthly pension of N7l, 859 will be multiplied by 44 months less the payment in June and Nov. 2021. The total of his pension arrears will be three million,’’ he said.
The claimant was therefore owed as at the time of filing the suit a total of 42 months pension.
Evidence, however, showed that since retirement, the claimant was only paid pension twice in June 2021 and November 2021.
In instituting the suit, the claimant sought the determination of two questions.
Whether upon the proper construction of Section 25 of the Benue State Pension Reform Law, 2019, and Section 210 of the Constitution of the Federal Republic of Nigeria, 1999, (As Amended), the claimant was entitled to gratuity.
The claimant also sought to know whether the withholding of his pension and gratuity by the defendants was constitutional.
The defendants on their part through their counsel, D.E. Ikape, filed a joint counter-affidavit on Dec. 21, 2021, supported by a written address.
The judge after going through the argument made by both counsel in their written addresses said:
“I will start by referring to the provisions of section 210 of the 1999 constitution which provides:
“Subject to the provisions of sub-section (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law.
“Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage.
“Except to such extent as is permissible under any law including the Code of Conduct.
“The law referred to here, must be the Benue State Pensions and Gratuities Law CAP 125 Laws of Benue State 2004.
“Section 10 of the law which provides:
“Any pension or gratuity which an officer is entitled in accordance with the provisions of this Law shall not be withheld or altered to his disadvantage.
“Except where such officer is dismissed from service for any offence, including a breach of the code of conduct specified in the Constitution of the Federal Republic of Nigeria, he may forfeit such pension or gratuity.
“The community reading of the above two laws guarantees to the claimant, as a retiree, a right to his gratuity and pension upon retirement from service of any state of the federation,” Essien stated.
The judge in addressing the defendants counter affidavit stated thus: I have carefully read the joint counter affidavit of the defendant.
“There is nothing in the affidavit that looks like a defence to the claimant’s affidavit and the exhibits annexed to the claimant affidavit in support of this originating summons.
“The well-entrenched position of the law is that averments in affidavit which are not controverted by the adverse party must be accepted and acted upon as establishing the truth of the facts stated in the affidavit.
“The counter affidavit in a matter such as this must also condescend on particulars.
“Where the defendant claims not to be so indebted to the claimant state the ground upon which the defendant relies as showing that he is not so indebted.
“The counter affidavit of the defendant in this matter has fallen short of the requirement of the law.
“I am satisfied that the claimant has been able to prove his entitlement to the gratuity claimed as computed in exhibit AVM 4,” the judge held.
The court in conclusion directed that the sum awarded shall be paid by instalments.
The courts, therefore, directed that the defendants shall pay the first instalment of two million immediately.
The judgment further stated that thereafter, the defendants shall continue to pay the sum of N500,000 from the end of May until the liquidation of the judgment debt.