unsupported quantum and not the substance. It is to be noted that the inability of
the Applicant to provide the correct records of payment made to the previous and
incumbent vice president does not necessarily vitiate his right to the pension due to
him as a Former Vice Chairman of the State Council in accordance with the
provisions of The Retirement Benefit Act.
68. It is trite law that when a document is in the custody of the adverse party, the
burden of proof of same shifts from the claimant to the custodian of the document.
It is common knowledge that information about pension benefits especially the
matrix of calculation is domiciled with the employer. The employee, more often
than not upon retirement is presented with the total entitlement due same having
been calculated by the employer. Thus when the records and the metric of
calculation are in the custody of the employer, as in this instant case, the
Respondent, the onus lies on them to provide.
This was the position held by this court in the case of Registered Trustees of
Association of Former Telecom Employees of Nigeria &17,102 Ors. V. Federal
Republic of Nigeria & Ors; ECW/CCJ/JUD/20/19, when this court held that:
“It follows therefore that once the claimant makes out a prima facie case of
entitlement to pension, by proof of employment but lacks access to the key
information needed to substantiate his claim same being in the control of
Respondent, such claim cannot fail due to being unsubstantiated. It is a
recognized fact that salary records and computations matrix are in the normal
cause of events in the custody and preserve of the employer in this case the
Respondent. The burden to provide records of the pension entitlement of the
Applicant having shifted to the Respondent, the Applicants are exonerated from
proving their entitlement.”
See also ESTATE OF BARTON V. ADT SECURITY SERVICES PENSION PLAN No. 1356379 (9th Circuit, April 2016) when the European Court held
“Though the claimant bears the burden of proving entitlements, this
burden must shift where the defending entity solely controls the
information that determines entitlement leaving the Claimant with no
meaningful way to meet his burden of proof.”
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