EMPLOYEES’ SHARE COMPENSATION SCHEME IN NIGERIA

1.0 BACKGROUND

1.2 This edition of Akintunde Esan's Legal Illumination is on a Company that has a share compensation scheme that is not pronounced desirous of establishing a pronounced Employees’ Share Ownership Plan (ESOP) via an Employees’ Share Ownership Trust (ESOT) to hold the company’s shares in trust for the employees awarded or granted its shares pending a vesting period and subject to vesting conditions.

1.3 The Company is now contemplating on the appropriate Trust Administrator for ESOT and thus considering whether to establish an Employees’ Trustee Scheme or to make use of its Employees’ Cooperative Scheme as the Trust vehicle for holding the Company’s shares in trust for its employees.

2.0 FACTORS TO CONSIDER

2.1 The following are the relevant factors to consider before establishing Employees’ Share Ownership Trust via the vehicle of an Employees’ Trustee Scheme or its Employees’ Cooperative Scheme.

2.2 Management and Control

2.2.1 The Company warehouses various portion of shares by transferring them to the Trustee who becomes the registered owner of the shares on behalf of members of staff of the Company. The ESOT is required to be managed by a corporate Trustee Company or Trust Manager generally appointed by the Company and whose appointment can only be terminated by the Company. Thus, the Trustee Company or another other party to the ESOT will be taking instructions from the Company and not the employees.

2.2.2 The Cooperative Society  is owned and controlled by the employees who have equal shares and equal votes, thus, If the ESOT is managed by the Employees’ Cooperative Society, the ESOT will be tacitly be controlled by the employees since the Cooperative Society is owned and managed by the employees.

2.3 Taxation

2.3.1 The benefit that accrues to an employee under the ESOT is liable to tax, but the Company is not liable to pay any tax as per ESOT, but it is required to compute tax on the difference between the actual price and exercise price and remit to the relevant authorities. Dividend received by a limited liability company from a unit trust scheme is exempted from tax. Dividends received by individual from a unit trust scheme is liable to personal income tax, the Trustee of the scheme will apply withholding tax at 10% on the dividend and remit to the LIRS.

2.3.2 Cooperative Societies enjoy tax exempt status. Though, the income of registered Cooperative Societies is exempted from taxation, however, the benefits that accrue to the employees under the ESOT are liable to tax and to be remitted by the Company.

2.4 Cost

2.4.1 The ESOT is not ideal for companies with less than 30 employees due to the administrative cost of setting up ESOT. The Company funds the purchase of the shares ESOT. The Trustee Company or Trust Manager or capital market operators will charge the Company for all the services rendered toward the actualization and administration of the ESOT.

2.4.2 A Cooperative Share Scheme would be less expensive, due to lower set up and on-going administration costs. The administrative cost of managing the ESOT will ordinarily be on the Society since it is managing it for the benefit of its members.  

2.5 Legality

2.5.1 The ESOT Trustee will issue a unit or certificate evidencing the employees’ right or interest in the ESOT. The use of such structure has legal complications and requirement making it fall within the definition of Unit Trust Scheme.

2.5.2 No legal personality  can perform any act or enter into any agreement or transaction for the purpose of administering a Unit Trust Scheme, unless such person is:

a. incorporated under CAMA; and 

b. registered as a fund or portfolio manager by the Security Exchange Commission (SEC). 

2.5.3 Section 315 of the Investment and Securities Act (I.S.A.) defines "capital market operator" as any person, individual or corporate, duly registered by SEC to perform specific functions in the capital market.

2.5.4 The Managers, Trustees or Custodians of an Employee Share Ownership Trust or Unit Trust Scheme are statutorily recognized as capital market operators, thus,  must be  body corporate incorporated under the Companies and Allied Matters Act (CAMA) and licensed by the Securities and Exchange Commission (SEC) in order to legally operate as such.

2.6 CONCLUSION 

2.6.1 The ESOT can only be managed by a Trustee Manager incorporated under CAMA and licensed by the SEC. The legal implication of this is that while an ESOT can be legally operated as a Unit Trust Scheme under the I.S.A., the  Employees’ Cooperative Scheme cannot be used as a legal vehicle for ESOP or ESOT of the Company on the grounds that a Cooperative Society:

• is not a body corporate incorporated under the CAMA

 

• is not statutorily recognized as a corporate capital market operator under I.S.A.

• lacks the corporate qualification and professional competence to operate as capital market operator or act as a Fund Manager, Trustee or Custodian of a Unit Trust Scheme under the I.S.A. See S.38 (1) I.S.A.

• is not licensed by the SEC to operate as a Manager, Trustee or Custodian of an Employee Share Ownership Trust  or Unit Trust Scheme; and

• SEC lacks the regulatory authority over the activities of Cooperative Societies scheme.  

2.6.2 Any advantage that using Employees’ Cooperative Scheme for ESOT may have is of no consequence on the ground that, there is no statutory or legal frame for using it as a Unit Trust Scheme under the Investment and Securities Act.

You may consult with Akintunde Esan (the Legal Adviser Online) for further legal illumination on Employee's Share Compensation Scheme in Nigeria.

EMPLOYEE'S SHARE COMENSATION SCHEME IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

Court declares 25 Percent Lump Sum Payment to Retiree above 50yrs by Pension Administrator Unlawful

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

 

DATED: 18^TH OF MAY, 2020                             SUIT NO.: NICN/ABJ/218/2018

BETWEEN:

MAROOF ABDUL GIWA                                      …….      CLAIMANT

AND

1. ARM PENSION MANAGERS (PFA) LTD…. DEFENDANTS
2. NATIONAL PENSIONS COMMISSION

 1.REPRESENTATIONS:

Joshua O. Fashola with him Gbenga Adesina for the claimant. Abdulraheem for the 1^stdefendant E.O Awa with him C.C Odega for the 2^nd defendant.

JUDGMENT

1. The claimant by a General Form of Complaint dated 29^th of July, 2019 and subsequently amended on the 14^th November, 2019, filed against the defendants claiming the following reliefs.
2. A DECLARATION that the computation of the claimant’s lump sum/benefits by the defendant done on the basis 25% of the claimant’s total Retirement Savings domiciled with the 1^st defendant is in bad faith, wrong, defective, ran foul of the law, not known to law, offends the principle of justice, fair dealing and good conscience therefore null and void of and no effect whatsoever.
3. AN ORDER of this Honourable Court directing the defendants to pay the claimant the amount of Fifteen Million, Eight Hundred and Ninety Seven Thousand Six Hundred and Eighty Naira, One Hundred and Seventy Five Kobo (N15,897,680.175) representing 75% of the claimant’s total Retirement Saving Account domiciled with the 1^st defendant.
4. AN ORDER of this Honourable Court directing the defendants to pay to the claimant 75% of the claimant’s total retirement savings at the time of judgment from the claimant retirement savings account domiciled with the 1^st defendant
5. Interest on the judgment sum at the rate of 10%.
6. Damages in the sum of N10,000,000 (Ten Million Naira) for non- payment of the correct lump sum to the claimant, the claimant having lost a life changing business opportunities and having suffered financial embarrassment, inconvenience, pains and economic hardship.
7. The sum of One Hundred Thousand Naira (N 100,000) as the cost of suit.

2. It is the claimant’s case that he retired from the Public Service on the 24/12/2017 and under the contributory pension scheme domiciled with the 1^st defendant with account number. PEN100217775555. He pleaded that his retirement record was registered with the 2^nd defendant on the 9^th of February 2017. That upon his retirement, he is entitled to a lump sum from his retirement savings account domiciled with the 1^st defendant provided the remaining is sufficient to do programmed withdrawal or buy annuity for life in accordance with the Pension Reform Act 2014. He averred that as at the 29^th of May, 2019 the total balance in his retirement savings account with the 1^st defendant was Twenty-one Million, One Hundred and Ninety-Six Thousand, Nine Hundred and Six Naira Ninety kobo (N21, 196,906.90). that on the 10^th of January, 2019, he approached the 1^st defendant to apply for his pension and withdrawal benefits but the 1^st defendant offered to pay the sum of Five Million, Sixty-Five Thousand Five Hundred and One Naira, Thirty-Six kobo (N5,065, 501.36) representing 25% of his total retirement savings. That he rejected the said offer and through his solicitor made a review to the 1^st defendant by a letter dated 15^th January, 2019 in the sum of Ten Million, Five Hundred and Ninety-Eight Thousand Four Hundred and Fifty-Three Naira Forty-Five Kobo (N10,598,453.45) representing 50% of his total savings. It is his averment that following the directives of the 1^st defendant in the response letter dated 8^th February, 2019 he re-presented his documents for computation  on the May 31, 2019 and on the 31^st of May, 2019 the 1^st defendant offered to pay the claimant the sum of N5,512,593.14 representing 25% of his retirement saving. That he received two letters from the defendant dated 3 July,2019 and 10^th of April, 2019 after he had filed a lawsuit. That he rejected the said sum as it could not augment a meaningful business and hence filed this suit.

3. The 1^st defendant in response stated that all the action in relation to the claimant complied with the Pension Reform Act, 2014. That claimant is yet to complete the documentation required to commence the payment approval process. That the claimant has no locus standi and his statement of fact discloses no reasonable cause of action against it. It averred that the claimant is not entitled to any of his claims.

4. The 2^nd defendant averred that it is the regulator of pension matters and supervisor of the contributory pension scheme. That its proper name it National Pension Commission and not as described by the claimant. That the 2^nd defendant is empowered to implement the provisions of the Pension Reform Act 2014 and ensure compliance with the objectives of the Contributory Pension Scheme, in addition to establishing uniform set rules, regulations and standards for the administration and payment of retirement benefits to all persons to whom the scheme applies. It averred that every holder of a retirement saving account is entitled to a withdrawal of a lump sum provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by it from time to time. It pleaded that the adjustment made on the computation template had been in the overall interest of the retirement savings account holders and transparently published in the circulars to pension operated dated 8^th August and 3^rd October, 2018. It stated that it did not refuse to approve the computation of the retirement benefit of the claimant rather the inability of the claimant to access his retirement saving is by his choice as several attempts to revisit the application on the basis of enhanced balanced had not satisfied and would not satisfy the claimant and he had failed to submit the necessary document to access his retirement benefits after appropriate  computation of same in compliance with the Pension Reform Act, 2014. It pleaded that SUIT NO NICN/ABJ/218/2019 did not precede the 2^nd defendant’s letter dated 23^rd January, 10^th April and 3^rd of July 2019. It is the 2^nd defendant’s contention that the claimant had filed two other suits on the same subject matter and against same parties in Suit Nos NICN/ABJ/173/2019 and NICN/ABJ/184/2019 and applied to the Court to suspend the balance of the retirement savings accounts of the claimant for the computation to be made on the basis of the amount standing to the credit of the claimant at the time of instituting the SUIT NO NICN/ABJ/173/2019 and the balance when the subsequent Suit No NICN/ABJ/184/2019 was instituted for abuse and consequential waste of its valuable resources.
5. During trial, parties prayed to this Court to invoke Order 38 Rule 33 of the National Industrial Court of Nigeria to argue their case on record, by dispensing with calling of parol evidence and cross examination. The Court granted the prayer. The claimant on the 28^th of January, 2020 filed his final written address and counsel on his behalf raised three issues. The 1^st Defendant filed their final written address dated 24/2/2020 wherein counsel on their behalf formulated a lone issue for the determination of the Court. The 2^nd defendant equally filed its written address on the 28^th of February, 2020. The Claimant also filed a reply on point of law on the 25^th February 2020 to the 1^st defendant and reply on point of law to the 2^nd defendant on the 9^th March, 2020 significant portions of which would be referred to in the course of writing this judgment.
6. I have had a careful examination of the processes filed by the parties, their supporting documents frontloaded in buttressing their case and the written submissions of counsel, it is in view of this that I find the issues distilled by counsel as appropriate and rephrase the issues framed in the consideration of this suit thus: whether or not claimant is entitle to a lump sum of his accrued pension at the time he retired at age 60 years and whether or not the defendant can estop the claimant from accessing his pension.
7. Before addressing the main issue, a pertinent preliminary issue need to be determined. It is learned 1^st defendant counsel’s submission that the claimant does not have a locus standi to bring this action on the ground that his claims does not reveal a sufficient and sustainable harm from the law to warrant this action. He stated that the powers to determine what the claimant and other RSA’S can withdraw as lump sum resides with the 1^st and 2^nd defendant and not with the claimant. Learned claimant’s counsel in response posited that the money being claimed is from the retirement savings account of the claimant and the non release of the lump sum by the 1^st defendant gives the claimant a right to sue. He cited in support the case of Ojukwu v Ojukwu [2001] FWLR (Pt 41) at page 1948. Counsel stated that claimant has the right to seek reliefs from the Court by Section 6(6)b of the 1999 Constitution as amended as he has a legal interest worth protecting. He urged the Court to hold that the 1^st defendant argument in this regard is misconceived. Locus standi denotes the legal capacity to institute an action in a Court of law based on a sufficient interest in the subject matter of a case.  The issue of legal capacity or standing of a party to initiate or institute an action in a Court of law, is one of a fundamental nature and also of crucial effect in Judicial proceedings as it touches not only the competence of a party to bring an action but also the legal capacity to do so. Generally, it is well settled that the locus standi to institute an action is the legal capacity and the condition precedent to initiate or institute proceedings in a Court of law for the determination of whatever legal right or obligations are being asserted. The determination of the question whether the Plaintiff has or has disclosed his standing in law to initiate legal proceedings is quite distinct from the merits of the case. The main test or determinant of locus standi is whether the Plaintiff, from his pleadings, has disclosed sufficient interest in the subject matter of the suit. Once he discloses in his pleadings, his sufficient interest in the subject matter, he is by law entitled to sue. See the cases of Edun v. Governor of Delta State of Nigeria & Ors [2019] LPELR 47464 CA; Atoyebi v. Governor of Oyo State [1994] 5 NWLR (Pt.344)290. In the case at hand, the pertinent question here is: has the claimant disclosed sufficient interest in his pleadings in the Court to entitle him to sue? For ease of reference paragraphs 8, 11, 13, 14, 16, 18, 22 and 25 is reproduced thus;

“8; the claimant avers that while in the employment of Nigeria Immigration Service certain percentage of his salary was being deducted every month and remitted to his Retirement Savings Account number PEN 100217775555 domiciled with the 1^st defendant since the contributory Pension Scheme commenced in 2004;

11; the claimant avers that as at 29^th May, 2019 the total balance in his retirement saving account with the 1^st defendant was Twenty one Million, One Hundred and Ninety Six Thousand, Nine Hundred and Six Naira Ninety Kobo (N21,196,906.90).

13; the claimant avers that on January 10 2019, he approached the 1^st defendant office with his relevant retirement documents to apply for his pension payment and withdrawal of benefits.

14; the claimant avers that the 1^st defendant computed and offered to pay him Five Million, Sixty Five Thousand, Five Hundred and One Naira, Thirty Six Kobo (N5,065,501.36) as lump sum representing 25% of his total Retirement savings domiciled with the 1^st defendant.

16; the claimant avers that he declined to sign the said form because he did not agree with the payment of N5,065,501.36 representing 25% of his total Retirement savings as lump sum out of the amount of Twenty one Million, One Hundred and Ninety Six Thousand, Nine Hundred and Six Naira Ninety Kobo (N21,196,906.90).

18; the claimant avers that through his lawyers, a letter of compliant Review of Lump Sum in Respect of Mr Giwa Abdul Maroof PEN 100217775555 dated 15 January, 2019 was written to the defendants for review of the lump sum to Ten Million, Five Hundred and Ninety Eight Thousand , Four Hundred and Fifty Three Naira Forty Five Kobo (N10,598,453.45) representing 50% of his total retirement savings domiciled with the 1^st defendant.

22; the claimant avers that the 1^st defendant re-computed and offered to pay him Five Million Five Hundred and Twelve Thousand Five Hundred and Ninety Three Naira Fourteen Kobo (N5, 512, 593.14) as lump sum representing 25% of his total Retirement savings domiciled with the 1^st defendant.

25; the claimant states that he for the second time, rejected the offer made by the 1^st defendant to pay him a sum of Five Million Five Hundred and Twelve Thousand Five Hundred and Ninety Three Naira Fourteen Kobo (N5, 512, 593.14) representing 25% of his total Retirement savings as lump sum from his retirement saving account domiciled with the 1^st defendant.”

From the above reproduced significant paragraphs of the claimant’s claims it is without peradventure that it discloses that his claims centers on the fact that he is entitled to pension to which he has contributed vide his savings account domiciled with the 1^st defendant and the 1^st defendant refused to accede to his request to withdraw 50% or 75% of his Retirement Savings domiciled in its establishment and hence the institution of this suit to seek redress to the wrong purportedly done to him by the 1^st defendant. By the provisions of Section 173(1)(2) of the 1999 Constitution as amended it provides for the right of a person in the public service of the Federation to receive pension or gratuity which shall not by any guise be withheld or altered to his disadvantage. Also Section 254C (1)(k) of the 1999 Constitution supra, the National Industrial Court is empowered excluding other Courts, in civil causes and matters to adjudicate on matters related or connected with disputes arising from payment or non payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlements of any employee, worker etc… It is therefore, discernable by the same statement of facts that the claimant has shown that he has sufficient legal interest, an expectation right to his pension donated to him by both the Constitution and the Pension reforms Act to his entitlement to Pension, this right is enforceable in law, which is likely to be affected if this Court does not intervene. I therefore, resolve this issue in favour of the claimant.

8. Next is the main crux of this case, the claimant claims that the computation of the lump sum/benefits by the defendant done on the basis 25% of his total Retirement Savings domiciled with the 1^st defendant is in bad faith, wrong, defective, ran foul of the law, not known to law, offends the principle of justice, fair dealing and good conscience therefore null and void of and no effect whatsoever. Learned claimant counsel in this respect argued that claimant having retired at the mandatory age of 60 years is entitled to a payment of lump sum from the total sum credited to his retirement savings account in accordance with the provisions of Section 7(1) (a) of the Pension Reform Act 2014. He stated that there is nothing indicating that Section 7 (1)(a) intends to place a percentage limit of 25% on the amount he can withdraw as lump sum in view of the fact that he retired mandatorily. He argued that Section 7 (2) of the Pension Reform Act and Sections 2.36, 2.3.7, 5.2.1 and 5.2.2 expressly placed limitation to other categories of retirement to 25% save for Mandatory retirement. Counsel posited that the 1^st defendant by its letter dated 8^th February, 2019 stated that it was working in line with the Regulation for the Administration of Retirement and Terminal Benefit. He submitted that both the Regulation and the said Guiding Computation Template the 1^st defendant used in calculating the purported lump sum are subordinate to the Pension Reform Act 2014 in the hierarchy of laws. He cited the cases of Powell v May [1946] K.B 330; Mobil Producing Nig Unlimited v Okon Johnson & 17 ors SC33/2010; Prince Ademolu Odenaje v Prince David Oluefunuga [1990] 11-22 SC and submitted that by doing so it has acted ultra vires its powers. Learned 1^st defendant’s counsel submitted that by Section 18 (c) of the Pension Reform Act the 2^nd defendant issued the regulations for the administration of retirement and terminal benefits. The purpose of the regulation is to provide a uniform set of rules of general application, procedure regulations and guidelines in the administration of retirement and terminal benefits and the template as provided by the 2^nd defendant only guarantees a minimum 25% lump sum payable and receiving a higher percentage lump sum(to the maximum of 50%) is dependent on several variables thus;
9. Accrued benefits which relates to the RSA holders past years of service as determined by the employer;
10. Total contributions in the retirement savings account as remitted by the employer.
11. Investments returns in the RSA
12. Final salary based on the current payslip submitted by the RSA holder
13. RSA holders age at retirement.
14. He submitted that to allow the claimant argument as per his claims will amount to tinkering with an Act of the National Assembly and it will allow not only the claimant but any other RSA holder determine what should be paid to him or her thereby usurping the powers of the 2^nd defendant as stipulated by law.
15. Learned counsel to the 2^nddefendant submitted that the claimant is under the misconceived notion that withdrawal of lump sum by a retiree was only subject to leaving an amount sufficient to procure a programmed withdrawal or annuity without more and is therefore subject to his whims and caprices. Counsel cited Section 7 (1)(a)& (b) of the Pension Reform Act 2014. He posited that the withdrawal of lump sum is an option predicated on the condition that the residue in the RSA would be sufficient to procure funds withdrawals or annuity. The computation is on the template with input determined by the data of the retiree. Counsel submitted that Section 7(1)(a) of the Pension Reform Act supra is also dependent on the extant guidelines issued by the 2^nd defendant. He cited Section 23(d) of the Pension Reform Act supra which provides thus;

“The Commission shall-

(d) establish standards, benchmarks, guidelines, procedure, rules and regulation for the management of pension funds under this Act”

Counsel submitted that the 2^nd defendant had not even had an opportunity to consider an application on behalf of the claimant. It was unable to compute and confirm the claimant’s lump sum due to unavailability of requisite documents as the required forms were unsigned and not returned by the claimant. Counsel argued that Section 7 did not make provision for lump sum of 50%, 65%, 75% or 25% except under Section 7(2) where it allows 25% lump sum on request to any employee that retires before the age of 50 years or disengages from employment.

11. The claimant in its reply on point of law posited that a close scrutiny of Section 7 (1)(a) ofPension Reform Act supra reveals that the lump sum is not calculated on the basis of an expected life span as in programmed monthly or quarterly withdrawal, it does not even require the approval of the commission as it is with categories of retirees under Section 7 (2) b Pension Reform Act supra. He posited that as soon as the account holder withdraws his lump sum from his retirement saving account (RSA) the balance in the RSA is then utilized for programmed monthly or quarterly withdrawal which is computed on the basis of life expectancy. He cited in support Regulations 5.1.1 and 5.1.5 and stated that the extant laws regulating pension matters have not placed any responsibility duty on the defendant to calculate or determine the lump sum the account holder can withdraw from his RSA. He submitted that 2^nd defendant could not have maintained that the 1^st defendant did not compute the claimant’s lump sum when the 1^st defendant asserts it did. The retiree benefit withdrawal consent form (showing 25% as lump sum) generated by the 1^st defendant is consequent to the computation made by the 1^st defendant upon presentations of relevant documents by the claimant. He urged the Court to so hold.
12. It is without any contradiction that the claimant retired from the Public service at the Mandatory age of 60 years. That on the 11^th of January, 2019 he applied to withdraw a lump sum from his retirement savings domiciled with the 1^st defendant. That he was offered the sum of N5,065,501.36 representing 25% of the lump sum of his retirement savings which he refused to sign for. The claimant through his solicitor reminded the 1^st defendant by a letter dated 24^th May, 2019 reminded the 1^st defendant to review the lump sum of 25%. The defendant on the 29^th May 2019 re computed the sum to N5,512,593.14. Now the question is what is the statutory right of an employee/retiree to his pension? By Section 1 of the Pension Reform Act 2014 provides as its objective thus;
13. The objectives of this law are to-
14. Establish a uniform set of rules, regulations and standards for the administration and payments of retirement benefits for the Public Service of the Federation, the Public service of the Federal capital Territory, the Public Service of the State Governments, the Public Service of the Local Government Councils and the Private Sector.
15. Make provision for the smooth operations of the contributory pension scheme;
16. Ensure that every person who worked in either the Public Service of the Federal capital territory, states and local Government or the private sector receives his retirement benefits as and when due; and
17. Assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age.
18. It is apparent from the above cited provision that the Pension Reform Act 2014 [hereinafter called ‘Act’] is meant to ensure that retirees receives their pension as at when due and to cater for their livelihood during old age. By Section 55 of the Act supra it provides for pension fund administrator licensed for the 1^st defendant. Section 1 (a) and Section 23 (b) and (d) of the Act specifically provides for the function of the Commission to the 1^st defendant which includes issuing guidelines rules and regulation for the management of the pension fund. What this means is that the 2^nd defendant can make regulations and apply same for the administration of retirement and terminal benefits as it did in this instant. By Section 7 (1) of the Act it provides that’

“7 (1) A holder of a retirement savings account shall upon retirement or attaining the age of 50 years, whichever is later, utilize the amount credited to his retirement savings account for the following benefits-

1. Withdrawal of a lump sum from the total amount credited to his retirement savings account provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life; in accordance with extant guidelines issued by the commission, from time to time or
2. Programmed monthly or quarterly withdrawals calculated on the basis of an expected life span; or [Emphasis is mine].
3. Annuity for life purchased from a life insurance company licensed by the National Insurance Commission with monthly or quarterly payments in line with guidelines jointly issued by the commission and National Insurance commission;
4. Professors covered by the Universities (Miscellaneous Provisions (Amendment) Act 2012 shall be according to the University Act;
5. Other categories of employees entitled by virtue of their terms and conditions of employment to retire with full retirement benefits shall still apply”

14. The claimant on the 10^thof January, 2019, approached the 1^st defendant to apply for his pension and withdrawal benefits but the 1^st defendant offered to pay the sum of Five Million, Sixty-Five Thousand Five Hundred and One Naira, Thirty-Six kobo (N5,065, 501.36) representing 25% of his total retirement savings. By the provision of Section 7 (1) (a) of the Act, it is clear that the claimant is entitled to lump sum withdrawal, it is noted that the Act did not make mention of a specific percentage of the lump sum which a retiree of the claimant’s age shall withdraw as it did vide Section 7(2) which is in relation to retirees of age 50 years, the only proviso lies in the fact that the amount after withdrawal of the lump sum by a retiree of others ages above 50 years should be sufficient to procure a programmed fund withdrawal or annuity/ income for life based on the life expectancy of the retiree. The key factor here is that there must be a programmed fund scheduled to be an income for life of the retiree based on his life expectancy. The money in the retirement savings of the claimant is the sum of N21,196,906.90. He applied for a lump sum and the 1^st defendant in its response computed the lump sum in the sum of N5,065,501.36 and re computed the sum to N5,512,593.14 representing 25% of the lump sum of claimant’s retirement savings. What this means is that the 1^st defendant calculated his lump sum based on 25% as applicable to a retiree of 50 years. The claimant’s grouse however, is that he cannot be treated like a retiree who retired voluntarily under Section 7(2) of the Act. He is 60 years and above and would thus want to withdraw 50% or 75% of his total pension. The question requiring an answer here is what the lump sum withdrawal that claimant can be entitled to? It is a cardinal principle in the construction of a statute that where the words of a statute are clear or unambiguous, those words shall be so construed as to give effect to their ordinary or literal meaning and enforced accordingly. See Gana v. SDP & ORS [2019] LPELR 47153 SC.  Further to this, is also a well settled principle of law, that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expression unuis est exclusion alterius rule; meaning, the express mention of one thing in a statutory provision automatically excludes any other thing which otherwise would have been included by implication. This principle has been applied by the Supreme Court in several decisions including Buhari v. Yusuf [2003] 14 NWLR (PT.8541) 446; Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt.1012) 544; Ogbunyiya v. Okudo [1976] 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board [1993] NWLR (PT.304) 139;  Applying the above legal principle to this case, is simply that the specific mention of 25% lump sum withdrawal for retirees of 50 years who voluntarily retires from service, excludes all others who are above the said 50 years age bracket as in the case of the claimant in this instant. In other words the age category of the claimant i.e. 60 years and above was not in the contemplation of Section 7(2) of the Act that specifically made provision for a 50 year old retiree to withdraw 25% lump sum. Differently put, the fact remains that the claimant has contributed money into his RSA account and the fact that the Act was silent on the percentage lump sum a 60 year old and above who retires mandatorily is entitled to withdraw from his account presupposes that the claimant or any retiree of his age bracket can withdraw a substantial percentage as lump sum from his RSA account without any let or hindrance. This in view of the unambiguous provision of Section 7(1) of the Act, which entitles the claimant to utilize the amount credited to his RSA account by withdrawal of a lump sum from the total amount credited to his account. The only proviso here is that the balance after withdrawal of the lump sum shall be enough to procure annuity for life for the retiree. This by paragraph (b) of Section 7(1) should be calculated on the basis of his life expectancy. These points made, by Section 173 of the Constitution claimant is entitled to pension. Section 173(2) of the Constitution states that any benefit accrued to a retiree under the Act shall not be withheld or altered to his disadvantage. The constitution of Nigeria is the ground norm and all other legislations are subservient to it. Similarly, the supremacy of the Constitution is above all other laws including the Act. Authorities abound that any law that is inconsistent with the provision of the Constitution, is null and void to the extent of its inconsistency. In other words the constitution recognizes the right of the claimant in this case to his pension as regulated by law, i.e. the Act. However, his right to his pension shall not be withheld or altered to his disadvantage. I have stated supra that the Act did not give a specific percentage a retiree of 60 years is entitle to withdraw as lump sum upon retirement. In other words Section 7(2) of the Act that specifies that a retiree under or at age 50 is entitled to withdraw 25% lump sum from his RSA account, that I must say does not apply to the peculiar case of the claimant in this case. I am afraid the argument by the learned counsel to the 1^st defendant that the claimant is only entitled to 25% lump sum withdrawal is unfounded in law. The Act also recognizes the fact that in calculating claimant’s lump sum withdrawal and annuity for life, the 1^st defendant is to consider the claimant’s life expectancy. Now, what is the life expectancy of the claimant? The 1^st defendant failed to give any specific guide or indices for which it calculated the claimant life expectancy in arriving at the table it frontloaded on record. The W.H.O in 2018, puts the life expectancy of a male Nigerian at 54.7 years, which is approximate to 55 years. This said, the claimant in this case has lived beyond the projection of W.H.O. of a life expectancy of a male Nigerian. This in my view displays the inadequacy of man and human frailty, in other words no one can actually determine when a man will die, except his maker. Life expectancy of man as enshrined in the Holy writ is 70 years, but if by strength he may live up to 80 years. These are all variables, which are subject to uncertainties. It is thus so difficult for man to determine life expectancy of another man except such is based on the W.H.O projection as stated supra. It is pertinent for me to state that the Act and the regulation for the Administration of retirement and terminal benefit by clause 4.0 the retirement benefit of a retiree is to be consolidated before withdrawal. While clause 5.1.1. Provides for the option to the retiree to either opt for periodic withdrawals or not. A community reading of Section 173 of the Constitution, Section 7(1) of the Act as well as clauses 4.0 and 5.1.1 of the regulation, clearly evinces that there is no specific amount or percentage stipulated as a lump sum that a retiree of claimant’s age(60 years and above) can withdraw. Secondly, the amount to be withdrawn by a retiree of claimant’s age is to be calculated in view of his life expectancy, his right to his pension shall not be altered or withheld to his disadvantage and finally the quarterly withdrawal has to be at his discretion, i.e. he has to opt for it and not at the whims and caprices of the 1^st defendant to determine what and how he could withdraw same. The 25% lump sum withdrawal as clearly stated in the Act is in respect of a retiree who voluntarily retired at age 50 as stated supra and not applicable to the claimant. I so find and hold.
15. Now, is the claimant entitled to a lump sum of 50% or 75% of his total pension? I am unable to find any provision under the Act or the regulation or even the Constitution restricting the claimant from taking a percentage as lump sum withdrawal from his RSA account. I have said earlier in this judgment that the claimant’s legal right to his pension is sacrosanct and nothing can withhold or alter it. The claimant’s right to his pension is inalienable, immutable and inviolable. See Amao v. CBN [2010] 16 NWLR (Pt. 1219) 271 S.C.  I wish to reiterate the apt reasoning of Onoghen JSC, thus “It is important for every organization in this country, including the appellant, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must re-examine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.” See also Momodu v N.U.LG.E [1994] 8 (Pt 362) CA; where the Court of appeal held that pension is a right of an employee that cannot be taken away unilaterally by his employer or anyone. Popoola & Ors v. A.G. Kwara State & ORS [2011] LPELR-3608(CA).  I have equally reasoned supra that the defendants’ power donated to them by the Act is to calculate claimant’s quarterly or monthly withdrawal based on his life expectancy after he has withdrawn a certain percentage from his pension. The exercise of that responsibility is to be carried out based on justice, equity and fairness all in the interest of the retiree. Now, it is apparent from the evidence on record that the 1^st defendant has not submitted before the Court the basis of its calculation, and how many years it projected as claimant’s life expectancy upon which it purportedly calculated claimant’s 25% lump sum. These are lacunas for which the defendants have failed to proffer cogent and credible evidence in prove of, this seems to be a shirking of its responsibility. In all, the overall interest of the retiree, i.e. the claimant in this case is paramount above any other reasoning or calculation. To the claimant he wants to invest his lump sum in a business of his choice that cannot be stifled by the defendants. This is in view of the fact that they cannot dictate to the claimant how to spend his pension. All that is required of the 1^st defendant is to compute claimant’s retirement benefit so far as it complied with the law in relation to his life expectancy. The amount to the credit of the claimant as at 29^th May, 2019 is the sum of N21, 196,906.90 domiciled in the 1^st defendant. It is in my considered view and in the peculiar circumstances of this case considering the age of the claimant, and the letter written by the claimant’s solicitor dated 30^th of May, 2019 wherein the claimant requested for the payment of 50% as lump sum and the life expectancy of male Nigerian as projected by WHO, that I find and hold that claimant is entitle to at least 50% lump sum of his pension, which the 1^st defendant admitted as a maximum lump sum a retiree can withdraw. The balance of the 50% remainder of the sum shall be sufficient to procure a program fund withdrawals or annuity for life to the claimant. The claimant’s right to his pension being sacrosanct and enforceable in law. I cannot therefore discountenance with his claim of right to 50% lump sum. It is therefore, proper in the circumstances to hold that the computation of the claimant’s lump sum/benefits by the 1^st defendant done on the basis 25% of his total Retirement Savings domiciled with the 1^st defendant is done in bad faith. I so hold.
16. Claimant also claims interest on the judgment sum at the rate of 10%. It is trite that he who asserts must prove. There is nothing evincing that the claimant is entitled claim in this regard as he has failed to prove credibly that he is entitled to this claim. It is in this regard that I find that the claimant claim fails.
17. Claimant also claims damages in the sum of N10,000,000 (Ten Million Naira). General damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of or the necessary result of the wrong complained of. It is awarded by the Court where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man. Tech Engineering Co. (Nig) Ltd & Anor v. Salisu [2018] 46654 CA. In this instant suit, I have awarded the claim for the claimant to be given a 50% lump sum by the 1^st defendant. I see no reason why I should award damages for his claim. He has failed to substantiate his claim that he suffered financial embarrassment, inconvenience, life changing business, pains and economic hardship. It is upon this premise that I find that claimant claim for general damages fails.
18. Claimant claims the sum of One Hundred Thousand Naira (N 100,000) as the cost of suit. It is the law that cost is at the discretion of the Court which must be done judicially and judiciously. See Order 55 Rule (1) of NICN Rules. I believe that claimant is entitled to cost, the claimant need not be put to the expenses of litigating this matter in the first place if the defendants have acted timeously and in accordance with the provision of the Act by given the claimant the 50% lump sum requested for. It is in consequence of this that I resolve this issue in favour of the claimant. Accordingly, cost of N100,000.00 is awarded to the claimant.
19. In conclusion, the claimant case succeeds in the most part. I therefore make these declarations and Orders-

20.1. That the 25% lump sum calculated by the 1^st defendant as claimant’s pension is unlawful.

2. That the claimant is entitled to withdraw 50% lump sum pension and this is to be calculated and paid to the claimant within 14 days of this judgment.
3. That claimant’s claim for interest and General damages fail.
4. That claimant is to be paid the sum of N100,000.00 as cost.

 Judgment is accordingly entered.

                         Hon. Justice Oyebiola Oyewumi

                                         Presiding Judge