PRESUMPTION OF DEATH IN RELATION TO THE RIGHTS OF NEXT OF KIN TO PENSION BENEFITS[1]

1.0.        INTRODUCTION

Many times, it is possible for the bread-winner of a family or a family member to be missing but there is no definite proof that he is dead. How can his/her family members have access to his retirement benefits if he/she partook of the Contributory Pension Scheme? That will be the focus of this article.

2.0.        ANALYSIS OF THE POSITION OF THE LAW

The principal law on evidence in Nigeria is the Evidence Act 2011 which governs the mode by which evidence is proved before: Section 256 of the Act provides that:

“This Act shall apply to all judicial proceeding in or before any court established in the Federal Republic of Nigeria but it shall not apply to:

a)    proceeding before an arbitrator;

b)    a field general court martial; or

c)     judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court, unless any authority empowered to do so under the Constitution, by order published in the Gazette, confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area Courts or Customary Courts in the Federal Capital Territory, Abuja or a State, as the case may be, power to enforce any or all the provisions of this Act.”

This Act makes extensive provisions on proving the death of a person who has not been seen for a number of years.

In the same way, the Pension Reform Act 2014 which is the Successor-in-Title to the Pension Reform Act 2004 makes provisions on the minimum requirements to prove the death of a person who has not been seen for some time. The question to be answered is as between these two laws, which is more applicable in respect to accessing pension benefits by the next-of-kin of the missing person.

Section 9 of the Pension Reform Act No. 4 of 2014 provides that: Where an employee is missing and is not found within a period of one year from the date he was declared missing, and a board of inquiry set up by the Commission makes a determination that having regards to available information and all relevant circumstances, it is reasonable to presume that the employee is dead, the provisions of Section 8 of this Act shall apply. Section 164(1) of the Evidence Act of 2011 provides that: “A person shown not to have been heard of for 7 years by those, if any, who if had been alive would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it.”

This writer submits respectfully that Section 9 of the PRA 2014 is more applicable as its Section 119 provides that: “Where any other enactment or law relating to pensions is inconsistent with this Act, this Act shall prevail.”

Furthermore, it is a trite principle of law that in the interpretation of laws where there are general provisions of law and particular provisions of law applicable to a set of facts, the particular provisions will be upheld as exceptions to the general rule.

3.0.        CONCLUSION/RECOMMENDATIONS

It is clear without an iota of doubt that the provisions of Section 164 of the EA 2011 has not been rendered inapplicable by the provisions of Section 9 of the PRA 2014; rather, the former will continue to apply in respect to suits before the Court highlighted in its Section 256 to the exception of suits relating to pensions and its administration.

Furthermore, the practical application of Section 9 of PRA 2014 may be quite challenging unless the National Pension Commission puts in place forthwith a standing as against an ad hoc board of inquiry; the former has the advantages of developing as their experience grow and being able to address issues expeditiously.

The next-of-kin of the missing person (RSA holder) would also be required to present a valid will or Letter of Administration that confirms the beneficiaries of the RSA holder’s estate to the Pension Funds Administrator. (See Pension Today in Business Day of Wednesday, 11 May, 2016 at page 21.)

It is further recommended that the Board of Inquiry in coming to a decision that: “the employee is dead” should pay attention to Section 164 of the Evidence Act 2011 except in relation to the number of years. Thus, the Board should consider:

1.    Whether or not persons who would naturally have heard of him did or did not hear of him;

2.    Whether or not the failure of such persons to hear about him can be adequately explained without presuming his death.

Furthermore, Section 10(4) of the PRA 2014 will be relevant in the computation of the tax liability of the next-of-kin. It provides that: “Without prejudice to the provisions of sub-section (2) of this section, any income earned on any voluntary contribution mare under Section 4(3) of this Act shall be subject to tax at the point of withdrawal where the withdrawal is made before the end of 5 years from the date the voluntary contribution was made.” So, where a missing or deceased person makes a voluntary contribution into his Retirement Savings Account and within 5 years his next-of-kin withdraws the money, the money will be subject to taxation at the time of voluntary contribution. The next-of-kin made avoid paying tax if he decides to defer the withdrawal of the sum until at least five years after the voluntary contribution was made.

It is submitted that a better efficient pension administration must include a system for determining whether or not a missing person should be declared dead.

The author publishes this article for educational purposes only, not to provide specific legal advice. By using this article, you indicate that you understand there is no attorney-client relationship between you and the author. This article should not be used as a substitute for obtaining legal advice from a Legal Practitioner.

[1] Oluwakemi S. Adeyemi Esq. is an Associate Legal Counsel at P O Bajowa Chambers who is interested in the interconnectivity between Law and Economy of nations. He may be reached on [email protected]