Nndc V. Ugbagbe (2021)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This appeal is against the judgment of the Court of Appeal, Kaduna Division Coram: Ibrahim Shata Bdliya, Obietonbara Daniel-Kalio and Oludotun Adebola Adefope-Okojie (JJCA), delivered on 17th February, 2017 in Appeal No: CA/K/69/2014, setting aside the judgment of the Kaduna State High Court delivered on 21/10/2011 by Hon. Justice A. A. Othman.
The facts that led to this appeal are as follows:
The Respondent started work at Ahmadu Bello University in 1972. In 1976, he transferred his service to the Benue Polytechnic. In 1980, he transferred back to the Ahmadu Bello University as the Bursar of the University. In 1988, the Respondent was appointed the Chief Executive Officer, Group Managing Director of the Appellant, the New Nigeria Development Company. The Respondent insisted at trial that he accepted the appointment with the Appellant on condition that his previous services at Ahmadu Bello University and the Benue Polytechnic would be transferred to the Appellant as continuation of service for the purpose of computing his pension and gratuity. The Respondent had served for 16 years at both Ahmadu Bello University and Benue Polytechnic. He served a further 4 years with the Appellant as its Chief Executive Officer, Group Managing Director and retired in 1992 after serving a total of twenty years in the public service.
However, when he retired, the Appellant refused to compute and pay his full entitlement to gratuity and pension as provided by the Pensions Act and other related circulars of the Federal Government. The Appellant claimed that it is a Limited Liability Company not bound by the Pensions Act or Federal Government circulars in that regard. After several attempts at reconciling their differences, the Respondent initiated an action at the High Court on 2/7/2003. The learned trial Court dismissed the Respondent’s claim and the Appellant’s Counter claim for arrears of rent. The trial Court held that the Respondent was bound by the conditions in his letter of appointment with the Appellant and no more.
The Respondent appealed to the Court of Appeal which delivered judgment on 17/2/2017 and allowed the appeal on the ground that the Appellant is an “Approved Service” under the Pensions Act and consequently the Respondent being an employee who retired therefrom is entitled to have his pensions and gratuity computed in accordance with the Pensions Act and extant circulars in that regard. This appeal is against the judgment of the Court of Appeal.
From the grounds contained in the Appellant’s amended notice of appeal, the Appellant submitted three issues for determination in the brief settled by Samson Adikwe Egige Esq. In the Respondent’s brief settled by E. O. Isiramen Esq. similar issues were identified. Both briefs basically asked the questions stated below:
- Whether in view of the clear provisions of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended), the lower Court was right when it categorized the Appellant as a Public Service of the Federation and extended the application of the provisions of the Pensions Act, CAP 346, LFN 1990 (now repealed) to the Appellant, for purposes of computation of the Respondent’s pension entitlements. (Distilled from Ground 1 of the Amended Notice of Appeal).
- Whether the Appellant was bound by the provisions of the Pensions Act, Cap 346 LFN 1990 (now Repealed) and the various Federal Government circulars and regulations in respect of the computation and payment of the retirement benefits, notwithstanding that the Appellant is not part of the public service of the Federation. (Distilled from Grounds 3, 4, 5 and 7 of the Amended Notice of Appeal)
- Whether the lower Court was right in excluding the Appellant’s Personnel Administrative Manual/conditions of service governing its employment contract with the Respondent, in the computation and payment of the Respondent’s retirement’s benefits. (Distilled from Grounds 2 and 6 of the Amended Notice of Appeal)
The Appellant also filed a reply brief.
After reading the record and the briefs of counsel, only one sole issue has been crystallized by me for the determination of this appeal.
SOLE ISSUE
Whether the Appellant was bound by the provisions of the Pensions Act and the various Federal Government Circulars and Regulations rather than solely on its Personnel Administrative Manual and Conditions of Service in the computation and payment of the retirement benefits of the Respondent, in the circumstances of this case.
Learned Appellant’s Counsel argued that there is no doubt that the provisions of the Pensions Act, CAP 346, LFN 1990 (repealed), are applicable to the Public Service of the Federation, and that it is clear from the provisions of Section 318 of the 1999 Constitution which is applicable to this case, and which the Court below relied on, that a company such as the Appellant in this Appeal can only be regarded as part of the Public Service of the Federation, if the Government of the Federation or its agency owns controlling shares or interest therein. Appellant’s counsel argued that the mere listing of the Appellant as an “Approved Service” in the Official Gazette No 26, Vol 61, Government Notice No 737 in respect of Organizations declared as Approved Services under the Pensions Act CAP 147, neither qualifies the Appellant’s staff to be in the public service of the Federation nor changes the status of the Appellant; in view of the clear provisions of the Constitution. Counsel argued that the undisputed facts on record are to the effect that the Appellant is a registered company whose shareholders are the nineteen (19) Northern States of Nigeria. It is undisputed that neither the Government of the Federation nor any of its agencies owns any share or interests in the Appellant. Therefore, it cannot be bound by the provisions of the Pensions Act. Counsel cited Abdullahi v. Mil. Admin, Kaduna State (2009) 15 NWLR (Pt. 1165) Pg. 417 Paras G-H. Counsel further argued that the Appellant is a limited liability company registered under the Companies and Allied Matters Act 1990 and the government of the nineteen (19) Northern States are its separate and individual shareholders and none of the nineteen (19) States have majority shares in the Company. It argued that its management and operation is regulated by its memorandum and articles of association and its Personnel Administration Manual which is reviewed by its Board of Directors. The Appellant argued that it is only liable to pay the Respondent’s pension to the extent of the period the respondent served with the Appellant while it is the responsibility of the other organizations with whom the Respondent served to contribute towards his pension for the period he served with them.
The Appellant’s counsel submitted that the Court below in holding that the Appellant was part of the Public Service of the Federation by virtue of Exhibit F, relied on instruments that are by far inferior to the provisions of the 1999 Constitution to expand the scope of the Public Service of the Federation whose meaning is exhaustively covered by Section 318 of the 1999 Constitution. Counsel submitted that where the constitution has covered the field by providing for any subject matter, the provision of the Constitution on that subject matter is the overriding authoritative statement of the law on the subject matter. Counsel cited INEC v. MUSA (2003) 3 NWLR (Pt. 806) Pg. 72 at 110 Paras C.F.
Counsel further argued that the evidence on record established that the Respondent was employed into the services of the Appellant by appointment conveyed vide his letter of appointment which also notified the respondent of the Appellant’s conditions of service governing the said contract of employment. The relationship was of master and servant not subject to civil service rules. The finding of the Court below that the Appellant enjoyed the benefit of the Respondent’s transfer of service was therefore not supported by the evidence or the evidence on record. Counsel submitted that such a finding amounts to speculation and relying on extraneous matters between the parties and therefore perverse. Counsel cited Ikenta Best (Nig) Ltd. v. AG Rivers State (2008) 6 NWLR (Pt. 1084) Pg. 612 @ 653, Paras G-H; Ladoja v. Ajimobi (2016) LPELR- 40658 (SC) at 102 Paragraphs C-F; Madu v. Madu (2008) 6 NWLR (Pt.1083) Pg. 296 at 326 Para E. The Appellant’s counsel submitted that the Respondent’s employment was governed exclusively by Exhibit A, the letter of appointment and the conditions in the modified Personnel Administrative Manual, Exhibit T. Counsel cited Shuaibu v. UBN Plc (1995) 4 NWLR (Pt. 388) Pg. 173 @ 180 Paras D-E; Katto v. CBN (1999) 6 NWLR (Pt. 607) Pg. 390 at 405 Paras E-F; John Oforishe v. Nigerian Gas Company Ltd (2017) LPELR-42766 (SC) Pg. 10 Para C.
The Appellant also argued that it is only liable for the period the Respondent served with the Appellant, while it is the responsibility of the other organisations with whom the Respondent served to contribute towards his pension for the period he served with them. The Appellant insisted that the Respondent should go and source from previous employers the remainder of his gratuity and pension as it was not obliged to pay him the full gratuity and pension in accordance with the prevailing Federal Government Circulars etc.
In reply, learned Respondent’s counsel argued that the employee/employer relationship between the Appellant and the Respondent was governed by the repealed Pensions Act, CAP 346, LFN, 1990. Notwithstanding, by Sections 6 of the Interpretation Act and Section 117 of the Pension Reform Act, 2014, the rights and benefits enjoyable by retirees under the repealed Pensions Act and before the commencement of the Pension Reform Act 2014 are preserved. Counsel drew our attention to the fact that the Appellant admitted this at paragraph 4.08 of its brief.
Respondent’s counsel submitted that it is not the intention of Section 318 of the 1999 Constitution to limit the meaning of Public Service only to the offices mentioned therein. The introductory part of the portion of Section 318 relevant to this appeal reads that: “Public Service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as …”. The use of the words “in any capacity” and “includes” clearly shows that the meaning of public service of the Federation is not limited to the list of establishments or organization mentioned therein. Counsel cited Ibrahim v. The State (1991) LPELR-1404 (SC); Rabiu v. Kano State (1980) LPELR – 2936 (SC); Aso Tim Doz Investment Co. Ltd v. Abuja Markets Management Ltd & Anor (2016) LPELR – 40367 (CA).
Section 173 of the 1999 Constitution provides that the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by the law and it is pursuant to this Constitutional provision that the Pensions Act was enacted. By Section 24 of the Pensions Act, the Minister is vested with the power from time to time by order to determine which organization is termed a public service.
Counsel argued that the essence of qualifying an organization as an “Approved service” is to allow organizations or establishments like the Appellant to provide retirement benefits comparable with the pension scheme for Federal and State public servants, i.e. to permit employees in the service of the Federal Government to transfer their service to State service and vice versa for continuity of service for pension purposes as provided by the Pensions Act. In the Circular B.11190/S.2/11/356 dated 4th November 1976 contained in Exhibit E14 at pages 4 to 5 and Exhibit F, “Approved Service” qualifies as “public service” and the Appellant is number 15 on the list of the organizations declared as “Approved Service”. It is based on the above undeniable fact that the Respondent transferred his service from ABU to the Appellant. Counsel cited Abdullahi v. Mil Admin Kaduna State (Supra). Counsel argued that by the Appellant’s act of accepting the Respondent’s transfer of service, the Pensions Act, the Federal Government Circulars and other conditions of service which governed the Respondent’s employment while with his previous employers were incorporated by reference into the Respondent’s service with the Appellant. Counsel citedIwuoha v. N.R.C. (1997) 4 NWLR (Pt. 500) 419 PP 430, Paras B-C, 434, Para. D.
The Respondent further argued that the Appellant had always followed the policy of paying the full terminal benefits to its retirees for their entire period in public service whether or not the employees transferred their services from other places. Counsel insisted that whatever new policy was adopted by the Appellant is inapplicable to the Respondent as one implemented after his retirement. The Respondent complained against the policy of the Appellant which stipulates that the compilation and payment of retirement benefits shall be in proportion to only the period the employee served the institution. Counsel insisted that the Appellant is a company in the public scheduled service sector and bound to give effect to Federal Government Circulars relating to pensions under the Pensions Act.
OPINION
In this Appeal, of note from some of the pleaded facts on record which are undisputed is that the Appellant computed and paid pension to the Respondent for the period of the Respondent’s service with the Appellant. The Respondent’s contention which was agreed to by the Court below is that the Appellant should pay the Respondent’s pension covering both the period of his service with the Appellant and for services rendered by him to Federal Government agencies i.e. Ahmadu Bello University and Benue Polytechnic prior to joining the Appellant, as provided for in the Pensions Act CAP 346, LFN 1990 (repealed). At trial, the Respondent challenged both the quantum of his gratuity and pension paid by the Appellant based only on his service with the Appellant.
The Respondent retired from the service of the Appellant on 19/8/1992. It is common knowledge that pensions and gratuity are hardly ever paid as at when due by any government establishment in Nigeria in these times. The Respondent filed the action on 2/7/2003 when the cause of action had crystallised and he was certain that he had been denied his full entitlements.
According to Section 318 of the Constitution of the Federal Republic of Nigeria 1999 which is the interpretation section, “Public Service of the Federation” and “Public Service of a State” are defined as follows:
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as: (a) Clerk or other staff of the National Assembly or of each House of the National Assembly; (b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other Courts established for the Federation by this Constitution and by an Act of National Assembly; (c) member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; (d) staff of any area council; (e) staff of any statutory corporation established by an Act of the National Assembly; (f) staff of any educational institution established or financed principally by a Government of the Federation; (g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and (h) members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.”
“Public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as: (a) Clerk or other staff of the House of Assembly; (b) member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other Courts established for a State by this Constitution or by a Law of a House of Assembly; (c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly; (d) staff of any local government council; (e) staff of any statutory corporation established by a Law or a House Assembly; (f) staff of any educational institution established or financed principally by a Government of a State; and (g) staff of any company or enterprise in which the Government of a State or its agency holds controlling shares or interest; (Underlining Mine)
The Pensions Act is an Act of the National Assembly which is to regulate the retirement, gratuity and benefits of retirees of institutions approved to render public service. Under the Act, the Federal Government may regulate the procedure and authentication of the implementation of its mandate through Official Gazettes and Circulars in that regard. By Official Gazette No. 26, in Volume 61; Government Notice No. 737, certain provisions were mandated in respect of organizations declared as Approved Service under the Pensions Act. The Appellant is listed as No. 15 on the list of Approved Service Institutions.
The main issue of material consideration is whether the Pensions Act, which is an Act of the National Assembly is applicable to an employee of the State Government or company or an Institution which the State Government has a controlling interest. Section 210 of the 1999 Constitution (as altered) provides for the right of any person in the public service of the Federation or State to receive pension or gratuity which shall be regulated by law.
In CBN v. Amao (2011) All FWLR Pt. 558 Pg. 806, (2010) 5 SCNJ 64, the Supreme Court held that it is in the exercise of the powers conferred by the Constitution pursuant to Section 210 that the Federal Government of Nigeria has the exclusive power or right to legislate on pension related matters and the Pensions Act was enacted in that regard. The Federal Government thus has the exclusive right to legislate on pensions, gratuities and other benefits payable out of the Consolidate revenue funds or any other Public funds. See also Section 4 of the CFRN (as altered).
In Abdullahi v. Mil Admin Kaduna State (2009) 15 NWLR Pt. 1165 Pg. 417, this Court held that the Pensions Act is an Act to consolidate all enactments dealing with pensions and like matters and it is applicable to employees of the Public Service. In other words, the Pensions Act has “covered the field” in respect of pension matters all over the Federation.
In A.G. Abia State v. AGF (2002) 6 NWLR Pt. 763 Pg. 264 this Court held inter alia that the doctrine of covering the field also referred to as the doctrine of inconsistency means that when a state law, if valid, would alter, impair or detract from the operation of a Federal Law, then to that extent it is invalid. Moreover, if it appears from the terms of the enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State Law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Federal Law and so is inconsistent. Lakanmi v. Attorney General, Western State (1971) UILR 201, cited with approval.
The Supreme Court also held that where a provision of an Act of the National Assembly is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.
On the applicability of the doctrine, this Court held that the doctrine of “covering the field” is usually applied between a law enacted by the Federal legislature and that enacted by a State legislature on the same subject, thus, where identical legislations on the same subject matter are validly passed by virtue of their constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject-matter. (Attorney-General of Ogun State v. Attorney-General of the Federation (1982) 3 NCLR 166 referred to).
Thus, the Federal Law on Pensions has covered the field as it were and is superior to any State legislation in that regard.
In the circumstances, the Pensions Act is applicable to both the Federal and State employees and persons in the public service of both the Federal Government and the State Government.
In CBN v. Amao (supra), Onnoghen JSC (as he then was) emphasized the Federal Government’s exclusive right and power to prescribe pensions payable to Public Servants and issue circulars pursuant to that power.
Contrary to the view of the learned Appellant’s counsel, I am of the opinion that the intention of the framers of Section 318 of the Constitution relating to the meaning of Public Service is that the meaning indicated or the specific institutions or offices mentioned therein are not limited.
This is because the introductory part of Section 318 state relating to the Federal Public Service use the word “includes” which in my view clearly shows that the meaning of Public Service of the Federation is not limited to the list of establishment or organization mentioned therein. Thus, giving the golden rule of interpretation, other establishments or organizations not specifically mentioned but which may reasonably be held to come within the purview of what is mentioned can qualify as Public Service. See Ibrahim v. The State (1991) LPELR -1404 SC Pg. 38; see also Rabiu v. Kano State (1980) LPELR -2936 (SC).
In setting aside the decision of the trial Court, the Court below relied on the provisions of Section 210 of the 1999 Constitution (as altered) and the decision of this Court in CBN v. Amao (Supra).
I agree with the Court below that for the purpose of computing retirement benefits by Section 24 of the Pensions Act, the Public Service includes organizations which the Minister may from time to time for the purpose of the Pensions Act designate as a “qualifying service”. In accordance with the Pensions Act, a qualifying service includes an Approved Service which is taken into account in computing an officer’s pension under the Act.
The other significant issue in contention really is whether the Respondent who worked as a Public Officer in the Public Service of the Federation at both Ahmadu Bello University and Benue Polytechnic (both institutions bound by the provisions of the Pensions Act) can transfer his service to the Appellant (a Limited Liability Company which is fully owned by the Northern States and which is herein held to fall under the Public Service of a State).
Section 210 of the Constitution provides for the protection of pension rights of persons in the public service of a State. If Sections 210 and 318 of the Constitution are read together, it is obvious that the intention is to ensure that certain categories of officers who are engaged by certain companies or institutions which have strong affiliations with the Federal and/or State Governments are entitled to enjoy certain perquisites of office during service and after they retire from service. They come within the circle of those which the Constitution defined as public officers working in the public service of a State within the meaning of “staff of any company or enterprise in which the Government of a State or its agency holds controlling shares or interest.” The argument that the Appellant does not fall into the above category is misconceived. In Buba Marwa v. Nyako (2012) LPELR -7837 (SC) the Supreme Court held that the principles upon which the constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions. It is clear that constitutional language must be given a reasonable construction wherein absurd consequences are to be avoided. The argument that because the Appellant is owned by the nineteen (19) Northern States jointly and individually makes it fall outside the definition of a company in which the Government of “a State” has controlling shares or interest is an absurd interpretation of the constitutional provision.
In Adekoye v. N.S. P.M.C. Ltd (2009) 5 NWLR Pt. 1134 Pg. 322 at Pg. 358 this Court held as follows:
On Meaning of “public service “for purpose of Pensions Act.
“By virtue of Section 24 of the Pensions Act, Cap.346, Law of the Federation of Nigeria, 1990, “public service” or “service” means service under the Government of the Federation in a civil capacity or such other service in any organization specified in the Schedule to the act or such other orgainsation as the Minister may from time to time by order determine to be civil service for the purposes of the Act and service under any superannuation scheme in respect of which there is a reciprocal arrangement for the acceptance of service as qualifying service under the act or any regulation made thereunder. (P .358, Paras, D-F).”
Therefore, the reciprocal arrangement claimed by the respondent is validated by decision law. The respondent as I said earlier had argued that he had accepted the appointment with the appellant on condition that his previous years of service in the Federal Institutions would be commuted in computing his retirement benefits whenever he retired from public service.
My Lords, all the arguments of the Appellant’s counsel relating to the inapplicability of Section 318 to the Respondent since Section 318 applies only to the public service of the Federation and not the public service of the State are manifestly wrong because learned counsel chose to advert his mind only to the portion of Section 318 dealing with the Public Service of the Federation and not the Public Service of the State.
The Directors of the Appellant are all the Northern States of Nigeria. The Government of the Northern States are its separate and individual Shareholders. The argument of the Appellant’s counsel that the Appellant is not a Federal Government institution which cannot be bound by the Pensions Act is not valid. The Appellant is a public service of a State within the meaning of Section 318 of the 1999 Constitution and an “Approved Service” within the meaning the 2nd Schedule to the Pensions Act and Official Gazette No. 26, in Volume 61, Government Notice No. 737 under the Pensions Act and other enabling Circulars. The argument that Section 318 of the Constitution had “covered the field” as it were, is relevant in the peculiar circumstances of this point, since the interpretation section had included “Public Service of a State” which in my view covers the Appellant. As I said earlier, the Appellant chose to read the portion of Section 318 that relates to Public Service of the Federation and ignored the portion of Section 318 which relates to the “Public Service of a State”. Section 277 of the 1979 Constitution which is in pari materia with Section 318 of the Constitution specifically states the institutions or organization that fall within the definition of Public Office. It is difficult to appreciate the hair splitting argument of the Appellant that the Appellant is not an organization which can be classified as a “Public Service of a State” because it is jointly owned by the nineteen (19) Northern States and that since the Government of the nineteen (19) Northern States are its separate and individual shareholders, thus none has controlling shares in the Appellant. That is erroneous in law. The phrase “jointly and severally” has been interpreted to mean joint liability or individual liability. See Ifeanyi Chukwu Osundu Co. Ltd v. Soleh Boneh Nig. Ltd (2000) LPELR- 1432 (SC); Onwuka Kalu v. Chief Victory Odili (1992) 6 SCNJ Pg. 76 at 96, Justice Kalu Anyah v. ANN Ltd. (1992) 7 SCNJ Pg. 47 at 57. Thus, each of the nineteen (19) Northern States have a majority share in the Appellant to enable it come within the definition of public service of a State.
On the ancillary issue of who should pay the full pension of the retiring person, the Pensions Act in Sections 15 & 16, is not specific on the point whether the last employer should pay ALL entitlements and seek reimbursement from previous employers or pay only for the period the employee worked for it. However, it is a principle of labour law that any ambiguity regarding the payment of any entitlement to an employee must be resolved in favour of the employee – in this case, the retiree. I cite with approval Chiroma v. Forte Oil Plc Suit No. NICN/ABJ/165/2018 delivered on 2/5/2019 by Justice B. B. Kanyip, PHD, Owulade v. Nigeria Agip NICN/LA/41/2012 delivered on 12/7/2016 by Hon. Justice B. B. Kanyip, PHD. Thus, the rule of the retiree getting his full pension and gratuity from his last place of employment and the last place to get reimbursed by previous employers is borne out of the fact that the method most practicable and most humane to the employee must prevail.
My Lords, I agree with the Court below that the Respondent having transferred his service from Ahmadu Bello University to the Appellant, he qualified as an employee of an approved service under the Pensions Act who upon retirement is entitled to gratuity and pensions to be computed in accordance with the provisions of the Pensions Act and other circulars to that effect.
Therefore, I find absolutely no merit in this appeal. I affirm the orders contained in the judgment of the Court below made pursuant to Section 15 of the Court of Appeal Act in granting the reliefs sought in paragraph 21 of the Respondent’s Amended Statement of Claim filed on 22/9/2005.
I commend the well-researched briefs of Counsel on both sides which have been an immense help in arriving at the determination of this appeal.
The Respondent is entitled to costs assessed at Five Hundred Thousand Naira (N500,000.00) and it is so awarded.
SC.591/2017
