IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE R.B. HAASTRUP
DATE: MAY 28, 2021 SUIT NO: NICN/ABJ/306/2019
MR AMAECHI EZIOKA…………………………………….……. CLAIMANT
CITEC INTERNATIONAL ESTATES LIMITED ……………. DEFENDANT
1. Ani Remiguis Esq. for the Claimant.
2. Abimbola Kayode Esq. with O.G. Adejumo Esq. for the Defendant
This suit was instituted by the Claimant vide a General Form of Complaint dated 9th October, 2019 and filed same day.
The reliefs sought by the Claimant are as follows:
1. A declaration that the Claimant is entitled to the payment of all his entitlements whether terminal benefits or other accrued benefits due from the Defendant to the Claimant under the said letter of offer of appointment dated 13th August 2003, duly accepted by the Claimant.
2. An order of this Honourable Court directing the Defendant to forthwith pay the Claimant the sum of N1,200,000.00 (One Million Two Hundred Thousand Naira) being the computed company terminal benefits due from the Defendant to the Claimant or such other sum as the Claimant may be entitled to by the computation and/or estimation of this Honourable Court.
3. An order of this Honourable Court directing the Defendant to forthwith remit in full all the Claimant’s contributory pension fund to the said pension fund administrator (PFA) to wit NLPC Pension Fund Administrators Limited appointed by the Defendant, for immediate payment to the Claimant.
4. An order of this Honourable Court directing the Defendant to forthwith furnish evidence of the remittances of all the Claimant’s contributory pension fund to the Claimant to enable the Claimant access his payment from the said Pension Fund Administrator (PFA) to wit NLPC Pension Fund Administrators Limited.
5. The sum of N200, 000.00 (Two Hundred Thousand Naira) being the cost of filing and prosecution of this unprovoked action against the Defendant.
6. The sum of N10, 000,000.00 (Ten Million Naira) being general damages for the hardship, inconveniences, pain and suffering which the Defendant has caused to the Claimant.
7. The sum of N20,000,000.00 (Twenty Million Naira) being exemplary damages for the Defendant’s flagrant violation of the Claimant’s statutory pension rights to wit, the delayed registration of the Claimant for the contributory pension scheme until after nine (9) years of working for the Defendant, the Defendant’s exploitation of the Claimant by which the Defendant never remitted the mandatory statutory employer percentage of the contributory pension fund for the said (9) years, the denial of the Claimant’s right to appoint a Pension Fund Administrator of his choice, and the issuance of a letter dated 13th May 2019 alleging that the Claimant resigned on July 30th 2013 whereas the Claimant resigned on 31st December 2018 which letter the Defendant apparently issued to cut down, appropriate and convert the Claimant’s contributory pension fund which ought to have been running and computed up to the said 31st December 2018 when the Claimant retired.
8. Court interest on the judgment sum from the date of delivery in this suit till the date of final liquidation of judgment debt.
9. Such further order(s) that this Honourable Court might deem fit to make in the circumstances of this case.
Claimant’s complaint is accompanied by a 34 paragraphs Statement of Facts, witness statement on oath of the Claimant, list of witnesses, list of documents and frontloaded documents as required by the Rules of this Court.
As gleaned from his averments in his statement of fact, the claimant was employed by the Defendant vide a letter dated 13th August 2003 and was placed on a commencement salary of One Hundred and Ninety-Two Thousand Naira (N192, 000.00) per annum. The said employment took effect from 21st July 2003, until 31st December 2018, when the claimant voluntarily retired from defendant’s employment.
It is the averment of Claimant that although the letter of employment stated that he would be entitled to other benefits after confirmation, the Defendant never communicated details of those benefits even after Claimant’s confirmation. Also that the Defendant failed to register the Claimant under the pension contributory scheme as required by law until after nine (9) years of service to the company, and a letter dated 17th August 2012 was issued to the Claimant by NLPC Pension Fund Administrator Limited through the Defendant. That the claimant was not consulted or afforded the opportunity to choose his own Pension Fund Administrator.
The Claimant by a letter dated 21st November 2018 applied for his voluntary retirement effective 31st December 2018. Thus by Claimant’s calculation he had served the Defendant for fifteen years, five months and five days and his salary at that point was Forty-Two Thousand Naira (N42,000.00) net.
It is the claim of the Claimant that the Defendant never furnished any evidence of monthly remittance to the pension fund administrator, that by Defendant’s letter dated 13th May 2019, it was falsely alleged that Claimant’s resignation took effect in July 2013 with a view to cutting down the Claimant’s pension contributory fund and benefits and that the Defendant never paid him any of his accrued and outstanding benefit despite his letter of demand dated 15th July 2019.
Upon receipt of the letter of demand, the Defendant held a meeting with Claimant’s solicitor on the 18th July 2019 whereby the Defendant admitted it’s indebtedness of the sum of One Million Two Hundred Thousand Naira (N1, 200,000.00) to the Claimant and promised to make payments before 23rd July 2019. However, Defendant failed to do as promised.
The Claimant averred that due to the action and inaction of the Defendant, he has been subjected to hardship hence this suit.
Upon service of the Claimant’s Originating processes on Defendant, the Defendant filed its Statement of Defence on 22nd November 2019 of which same was deemed to be properly filed by this Court on the 27th of November 2019. The Statement of Defence was accompanied by a witness statement on oath and other requisite documents in accordance with the Rules of this Court.
On its part, the Defendant admits that the Claimant was its employee, until 31st December 2018 when the Claimant voluntarily retired. Thus the letter dated 13th May 2019 which seems to backdate Claimant’s date of resignation was only an administrative oversight and not calculated to deny Claimant of his entitlements and benefits.
In its defence, the Defendant contended that the Claimant had received details of all his entitlements and benefits including his contributory pension during the pendency of his employment and that the delay in registering Claimant under the contributory pension scheme was due to the opposition of the Claimant alongside other junior staff to the deduction in the contributory pension scheme from their meagre salaries. Thus in 2012, the Defendant forcefully registered the Claimant and its other workers under the pension scheme.
It is Defendant’s averment that there was no deduction from Claimant’s salary from 2004-2012 for pension remittance for reasons stated above and that it remitted deductions from Claimant’s salary to the pension fund administrator from 2012 to 2013. Accordingly, all pension deductions from 2013 to 2016 that were not remitted were computed as part of Claimant’s terminal benefits. That the Claimant’s pension fund administrator had issued a letter of confirmation of Claimant’s pension contribution dated 30th April 2019 to the Defendant and on their part, the Defendant wrote a letter of confirmation dated 2nd May 2019 confirming the resignation of the Claimant and also instructed the pension fund administrator to process Claimant’s terminal benefits.
Defendant also stated that it never made any representation to the Claimant that he would be paid before the 23rd of July 2019. In fact, the Claimant was told by the General Manager (Legal) that due to the financial situation of the Defendant, he would be paid after other disengaged or retired staff ahead of him have been paid.
Defendant urged Court to dismiss suit for lacking merit.
CLAIMANT’S REPLY TO DEFENDANT’S STATEMENT OF DEFENCE
The Claimant filed a reply to Defendant’s statement of defence on 3rd December 2019 and stated that the Defendant never furnished him any details of his entitlements or benefits and at no time did he (the Claimant) oppose the deduction of his salary for the contributory pension scheme, thus the Defendant had no reason to forcefully register the Claimant under the contributory pension scheme.
Claimant also stated that the Defendant lacks the right to withhold any of his contributions or choose which to remit and not to remit. Likewise, the Defendant lacks the power to merge any part of Claimant’s contributions to the contributory pension scheme with the computed terminal benefits of the Claimant.
In reply to paragraph 6, 7 and 8 of the statement of defence, the Claimant stated that the Defendant having failed to plead any records of payment of Claimant’s salary cannot allege that it did not make deductions from Claimant’s salary from 2004 to 2012. Likewise, the Defendant did not plead any evidence to support its claim that it remitted Claimants contributions to his pension fund administrator from 2012 to 2013 or from 2017 to 2018 when the Claimant retired.
That the failure of the Defendant to write any subsequent letter retracting the letter dated 13th May 2019 proves that it was not an administrative oversight as alleged by the Defendant; that the letter 2nd May 2019 by the Defendant to Claimant’s pension fund administrator confirmed that the Defendant had the intention of cutting down the Claimant’s pension entitlements.
The Claimant also stated that he never conceded to be paid his terminal benefits after other staff that resigned before him had been settled and that the Defendant has failed to show how payment of his benefits will occasion hardship on the other staff.
Claimant urged Court to grant claims sought in this suit.
COMMENCEMENT OF HEARING
Trial commenced on 12th November 2020, and the Claimant in proof of his case, testified as CW1 and tendered nine (9) documents marked Exhibits CA1 (A&B) – CA 9. Defendant opened its defence on 11th of December 2020, and called a sole witness; one Mr Jimoh Razaq Olaide who testified as DW1 and documents tendered through him, were admitted and marked as exhibits D1-D6.
Upon, close of evidence, the Defendant filed its final written address on 24th December 2020, which is also dated same date. The Claimant on the other hand filed his final written address on the 25th January 2021, but dated 19th January, 2021. In reply, the Defendant filed its reply on point of law on the 1st February 2021, and dated same date. Parties adopted their respective addresses on 25th February 2021.
SUBMISSIONS OF DEFENDANTS
In Defendant’s Final Written Address, learned Counsel to the Defendant formulated a sole issue for determination to wit:
“whether the Claimant has proved its case against the Defendant by preponderance of evidence to be entitled to Judgment in this Suit”
It is the contention of counsel to the Defendant that the burden of proof lies on the party who is asserting. To the Defendant, burden of proof can only be discharged by adducing satisfactory evidence; failure of which the Claimant must fail. He referred Court to section 131-133 of the Evidence Act 2011 and PHILIP V. E.O.C. & INDS. CO. LTD (2013) 1 NWLR (PT. 1336) 618.
The Defendant’s counsel argued further that declaratory reliefs are not granted unless the Claimant adduces cogent evidence in support of his claims. He relied on A.G CROSS RIVERS STATE V. A.G FEDERATION (2012) 16 NWLR (PT 1327) 425.
On the claim for the sum of N1,200,000.00, the Defendant contended that the Claimant has failed to proffer evidence in support of the reliefs claimed particularly the declaratory reliefs, the Claimant failed to establish by leading credible evidence to show that the amount stated by the Defendant as his accrued terminal benefit is incorrect, thus it is Defendant’s counsel submission that the Claimant has admitted the computation of the Defendant which amounts to N1,220,861 ( One Million, Two Hundred and Twenty Thousand, Eight Hundred and Sixty One Naira only). Counsel referred to ACHILIIHU V. ANYANTONWU (013) 12 NWLR (PT 1368) 256.
Regarding Claimant’s claim for remittance of his contributory pension fund, Defendant’s counsel submitted that exhibit D1 discloses the amount in Claimant’s contributory pension and there is nothing to support Claimant’s claim that said amount is false. Counsel urged Court to hold that Claimant has failed to prove his entitlement to reliefs iii & iv.
Counsel to Defendant in arguing against Claimant’s relief for cost of filing and prosecution submitted that claims for solicitor fees is by nature special damages which must be specifically pleaded and proved, furthermore according to the Defendant, such claim is an affront to public policy. Counsel referred Court to GUINESS NIG. PLC V. NWOKE (2000) 15 NWLR (PT. 689) 135. Counsel urged Court to disregard the claim.
On Claimant’s relief for 10,000,000.00 (Ten Million Naira) general damages, Defendant’s counsel contended that the Claimant failed to show the act of the Defendant that occasioned any damages to him to entitle him to the relief. It is Defendant’s argument that general damages are compensatory in nature and are not awarded as a punishment for wrong doing. Counsel cited UBA V. AJABULE (2011) 18 NWLR (PT 1278) 152.
On Claimant’s relief for the sum of N20, 000,000.00 (Twenty Million Naira) as exemplary damages, it was submitted that exemplary damages are awarded as a punitive measure for a wrong doing, however there are conditions for grant of this damages. Defendant argued that the Claimant failed to lead evidence in support of this claim. Also, that the delay in registering of the Claimant under a contribution pension scheme was due to the opposition by its employees including the Claimant.
Defendant further contended that Claimant failed to discharge the burden of proving that the Defendant deducted money from his salary in the years of Defendant’s default to register Claimant under the contributory pension scheme. Defendants counsel cited DANJUMA V S.C.C. (NIG.) LTD (2017) 6 NWLR (PT. 175) 175, SUN PUBLISHING LTD V. ALADINMA MEDICARE LTD. (2006) 9 NWLR (PT.1518) 557. Defendant thus urged Court to hold that the claim for exemplary damages has no merit.
Addressing Claimant’s claim for interest on judgment sum, the Defendant conceded that order 47 rule 7 of the rules of this Court empowers Court to grant post judgment interest. However, it was argued by Defendant counsel that the Claimant has failed to establish his case and thus not entitled to this relief. Counsel cited DUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361.
Regarding Claimant’s claim for further order(s) by Court, it is Defendant counsel’s submission that same is untenable as it would amount to speculation. He referred Court to C.A.C. V. I.T.P.C.N. (2016) 2 NWLR (PT. 1496) 236.
The Defendant urged Court to dismiss Claimant’s relief save relief ii which was admitted by the Defendant.
SUBMISSIONS OF CLAIMANT
In his written address filed 25th January 2021, Claimant’s counsel formulated three (3) issues for determination as follows:
1. Whether from the totality of the pleadings and evidence of the parties in this suit, the Claimant has proved his case, to be entitled to judgment in this suit.
2. Whether the Honourable Court can rely on the Defendant’s categorical admission of the Claimant’s case to enter judgment in favour of the Claimant in this suit.
3. Whether the Defendant’s written statement on oath which admittedly was signed outside with B.J. Bulama Esq. is a valid written statement on oath capable of supporting the Defendant’s defence in this suit.
ISSUE 1 - Whether from the totality of the pleadings and evidence of the parties in this suit, the Claimant has proved his case, as to be entitled to judgment in this suit.
Learned Claimant’s counsel arguing in the affirmative submitted that civil cases are determined on balance of probabilities and accordingly, the Claimant led credible evidence in support of his pleadings. Counsel referred Court to ALHAJI GANIYU M.B. ISEOGBEKUN AND ANOR V. ALHAJI SIKIRU GBERIGI ADELAKUN AND ORS (2013) ALL FWLR (PT. 664) 168. In addition, Claimants counsel submitted that the Defendant admitted most of Claimant’s case, and it is settled law that facts admitted need no further proof.
It is Claimant’s contention that he has suffered hardship, inconveniences and pain as a result of the Defendant’s actions. Furthermore, that the Defendant’s intention to cut down his benefits evidenced by exhibits CA1A and B and CA4 where it was shown that Defendant misrepresented Claimant’s date of disengagement as 31st July 2013 instead of 31st December 2018 is utterly high handed. He cited ODIBA V. AZEGE (1998) 9 NWLR (PT. 566) 370. In addition, learned Claimant’s counsel submitted that the said letter was never retracted by the Defendant.
Learned counsel to Claimant submitted that the Claimant has pleaded facts to entitle him to the reward of general and exemplary damages and urged Court to grant same. Counsel cited R.O. IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) 7-12 S.C. PAGE 151
Relying on Pension Reform Act 2004 and 2014 and the constitution of the Federal Republic of Nigeria, Claimant’s counsel submitted that the Defendant had no right to withhold payment of Claimant’s pension to his disadvantage or lump up Claimant’s pension with his other entitlements together. To the Claimant, the Defendant who alleged that the Claimant is entitled to N1, 220,861 as pension and benefits failed to specifically prove same.
Addressing claim for cost of N200, 000.00, Claimant’s counsel submitted that grant of award of cost is discretionary and must be exercised judicially and judiciously. Counsel placed reliance on the case of THEOBROS AUTOLINK LTD V. B.I.A.E. CO. LTD (2013) 2 NWLR (PT. 1338) 337. Claimant’s Counsel contended that the case of GUINESS NIG. PLC V. NWOKE (Supra) cited by the Defendant should be discountenanced as Claimant never made any claim for solicitor’s fee.
ISSUE 2 - Whether the Honourable Court can rely on the Defendant’s categorical admission of the Claimant’s case to enter judgment in favour of the Claimant in this suit.
It is Claimant’s contention that the Defendant through the testimony of DW1 admitted all facts needed for Claimant’s suit to succeed and that facts admitted need no proof. He cited JIMOH ATANDA V. MEMUDU ILIASU (2013) ALL FWLR (PT 681) 1469 and urged Court to so hold.
ISSUE 3- Whether the Defendant’s written statement on oath which admittedly was signed outside with B.J. Bulama Esq. is a valid written statement on oath capable of supporting the Defendant’s defence in this suit.
Placing reliance on section 2 of the Oaths Act, LFN 2004, and the case of OUT BASSEY EKPENETU V. MFAWA OFEGOBI (2012)15 NWLR (PT 1323) 276, Claimant’s counsel vehemently contended that when a person deposes to an affidavit, it must be done before a person duly authorised to administer oath. Thus the Defendant’s witness statement on oath having been signed with B.J. Bulama Esq. a staff of the Defendant is incompetent.
To Claimant’s counsel, the implication of this is that all averments contained in Defendant’s statement of defence which is not supported by a competent written statement on oath remain mere averments and goes to no issue. He cited MAERSK NIGERIA LTD & ANOR V. ZATS INTERNATIONAL LIMITED (2013) ALL FWLR (PT. 685) 386.
Accordingly, the Claimants evidence in proof of his case should be relied upon. Counsel urged Court to grant Claimant’s entire claims.
DEFENDANT’S REPLY ON POINT OF LAW
In reply to Claimant’s final written address, the Defendant filed a reply on point of law on 1st February 2021.
Defendant’s counsel argued that the fact that the Defendant did not oppose document tendered does not discharge burden of proof on Claimant. That section 123 of the Evidence Act empowers Court to require facts admitted to be proved otherwise by such admissions, thus the mere fact that the Defendant failed to retract the letter dated 2nd May 2019 does not mean that the Defendant admits the Claimant’s claim.
It is the submission of counsel that documents are tendered pursuant to the pleadings and stand independently of the witness statement on oath, and that a party can prove his case entirely by documentary evidence without having to call viva voce evidence. In such a situation, such a party has adduced evidence in law, relying on THE AUTOMATIC TELEPHONE AND ELECTRIC CO. LTD V. THE FEDERAL MILITARY GOVERNMENT OF THE REPUBLIC OF NIGERIA (1969) ALL NLR 42.
Counsel then urged the Court to discountenance all arguments of claimant in his final written address, and hold in defendant’s favour.
RESOLUTION OF COURT
I find it of utmost importance to address issue no. 3 of the Claimant’s final written address to wit:
“Whether the Defendant’s written statement on oath which admittedly was signed outside with B.J. Bulama Esq. is a valid written statement on oath capable of supporting the Defendant’s defence in this suit.”
By records of this Court at page 33, defendant’s witness (DW1) upon being asked by the Claimant’s counsel during cross-examination stated that he signed his witness statement on oath outside with Barrister Bulama who is the general manager (legal) of the Defendant.
Now Section 2 of the Oaths Act makes it mandatory for an affidavit to be taken before a Commissioner for Oaths or a Registrar of the Supreme Court or of the Federal High Court authorised. In the same vein, Section 112 of the Evidence Act 2011 provides that “an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner”. The combined effect of section 2 of the oaths act and 112 of evidence act is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must be signed before a person authorised to administer the oath such as commissioner for oaths and failure to so do renders the affidavit incompetent. See UDUSEGBE V SPDC (NIG) LTD (2008) 9 NWLR (PT. 1093) 593.
The conditions necessary to make an affidavit competent were stated in the case of DR MUHAMMAD IBRAHIM ONUJABE & ORS V. FATIMA IDRIS (2011) LPELR – 4059 (CA) as follows:
“the Oaths Act is a general statute that deals with oaths. The provisions under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is in this vein that the provisions under the oaths act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance.”
Also, see BUHARI V. INEC 2008) 12 SCNJ 1, EROKWU V. EROKWU (2016) LPELR 41515 (CA).
Applying the rationale in the judicial authorities cited above to this instant case, Mr Bulama though a legal practitioner lacks the competence to take depositions which in turn will be used as evidence before this Court in accordance with section 2 of the Oaths Act and 112 of the Evidence Act. It is settled law that an affidavit that is bereft of the requirements of the law will not be admitted; where it is wrongly admitted, must be expunged. In addition, where a written deposition has been adjudged incompetent, any evidence sourced from the defective deposition is equally defective, inadmissible and cannot be relied upon in proof of any fact. As the latin maxim goes “ex nihilio nihil fit” from nothing comes nothing, hence any evidence derived from DW1 cannot stand having no base to rest upon.
Bound by the decisions in the statutory and judicial authorities cited above, the written statement on oath of DW1 along with exhibits tendered through him are hereby expunged from the record and I so hold. Accordingly, this matter will be decided solely upon the evidence adduced by the Claimant.
I have carefully considered the relevant processes filed in this suit, together with final written submissions of learned counsel for both parties. The issue for determination of this suit is distilled to wit:
“Whether the Claimant has proved his case to be entitled to the reliefs sought.”
In civil matters, parties are bound by their agreement. Thus when contracts are voluntarily entered into by parties, they become binding on them based on the agreed terms and conditions. On this note I make reference to exhibit CA 8 which is the offer of appointment dated 13th August 2003. Paragraph 4 of exhibit CA 8 provides that the Claimant shall be entitled to fourteen (14) days working leave after 12 months of service, uniforms and other benefits which shall be communicated after confirmation of Claimant’s employment. The aforementioned forms the basis for reliefs 1 and 2 of Claimant’s claims.
At this juncture it is important to determine whether the Claimant by the evidence tendered before this Court has been able to prove his entitlement to these reliefs. It is settled that the burden of proof lies on he who asserts. Such a party must lead credible and legally admissible evidence in order to succeed. See sections 131, 132 and 133 Evidence Act 2011, NITEL LTD V. OKEKE (2017) 9 NWLR (PT. 1571) 439, ONOVO V. MBA (2014) 14 NWLR (PT 1427) 391. Accordingly, the burden of proof lies on the Claimant who desires judgment in his favour to establish his case on preponderance of evidence.
Relief 1 being declaratory in nature can only succeed on the strength of the Claimant’s case and not on the weakness of the Defendant’s. Now from the totality of evidence before me, it is not disputed that the Claimant was in the employment of the Defendant for several years or that the Claimant voluntarily resigned effective 31st December 2018. Also not in dispute is the fact that by virtue of the contract of employment between both parties, the Claimant is entitled to benefits as specified in the contract. Accordingly, I find that the Claimant is entitled to payment of all his entitlements, and that the Defendant is in default. See exhibit CA 3 (which is Defendant’s reply to Claimant’s letter of demand for payment of benefits dated 23rd July 2019 and wherein the Defendant admitted that it is in default of payment of Claimant’s benefits and stated that it would pay the Claimant “as soon as those ahead of him have been settled”).
Flowing from above, it can be said that the Defendant has admitted to the existence and non-payment of Claimant’s entitlements. Generally, facts admitted need no proof and the Court is expected to act thereon. See ATANDA V. ILIASU (2013) 6 NWLR (PT. 1351) 529. The paramount question that arises thus is whether a claim for special damages such as the Claimant’s claim as contained in relief no. 2 will succeed on the Defendant’s admission. See NNPC V. CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 where the Supreme Court held that:
“A claim for special damages will not succeed simply because there is an admission of claim; special damages are never inferred from the nature of the act complained of. They do not follow the ordinary course as is the case in general damages. They are exceptional and so must be claimed specifically and proved strictly.”
From the evidence tendered by the Claimant can it then be said that he has strictly proved his case to be entitled to relief no. 2? I answer in the negative. Where a Claimant is alleging special damages, he must prove per force by laying before the Court concrete evidence establishing the special damages being claimed. In this case, having disregarded evidence of DW1 with all the exhibits tendered through him, the Claimant’s claim for special damages cannot in any way be said to have been proved as he has failed to bring before this Court any evidence that specifically proves the claim for One Million Two Hundred Thousand Naira (N1, 200,000.00) as contained in his relief 2.
It is a settled position of law that cases are won and lost on the evidence presented by parties before the Court, therefore, the success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. See RAMONU RUFAI APENA & ANOR V. OBA FATAIAILERU & ANOR (2014) 6 – 7 MJSC (PT.11)184 @ 188. In the absence of cogent and credible evidence in support of Claimant’s claims as contained in relief 2, it can only but fail.
Addressing Claimant’s reliefs 3 and 4 hinged on contributory pension scheme, I must say that this Court is not oblivious of the fact that the Pension Reform Act 2004 (subsequently referred to as PRA) was repealed by the Pension Reform Act 2014. However, considering that the Claimant’s employment was in the year 2003 and he was registered under the contributory pension scheme in the year 2012 all before the enactment of PRA 2014, the former Act which is the PRA 2004 shall apply in this case.
I have read the PRA 2004 and I find section 11 of said Act relevant for the just determination of Claimant’s claims for his pension. I find that the said provision is clear and unambiguous and it is trite that where the words used in a statute are plain and unambiguous they must be given their plain meaning – DICKSON V. SYLVA (2017) 8 NWLR (PT. 1567) 167
Section 11(1) of the PRA 2004 compels an employee to maintain a retirement savings account with any pension administrator of his choice. In section 11 (3) of the Act it further provides that the employee has the duty to notify his employer of his pension fund administrator and details of his retirement savings account.
On the part of the employer, section 11(5) of PRA 2004 makes it the duty of the employer to deduct at source the contribution of the employee on a monthly basis not later than 7 working days from date of payment of employee’s salary.
In this present suit, it can be seen that the Claimant is dissatisfied as he believes that the Defendant waited for 9 (nine) years after his employment before registering him under a pension contributory scheme. I am of the view that the grievances of the Claimant in this regard are misguided, section 11(1) of PRA 2004 clearly puts the burden of registering under the contributory pension scheme upon the employee. Hence, it was the duty of the Claimant and not the Defendant to get himself registered under the contributory pension scheme in the first place.
Now after the Claimant’s registration under the contributory pension scheme, the Defendant in adherence to Section 11(5) PRA 2004 owed a duty to the Claimant to remit all his contributions to the Claimant’s pension fund administrator. This duty as provided for under the aforementioned Act is mandatory and gives no room for discretion of any form. Accordingly, the averment of Defendant that pension deductions from 2013 to 2016 that were not remitted have been computed as part of Claimant’s terminal benefits as seen in paragraph 9 and 22 of Defendant’s statement of defence is untenable and I so hold.
As can be seen on the originating process, Claimant is also seeking for cost of litigation, general and exemplary damages, interest on judgment sum and further orders by this Court. These issues are resolved below.
Regarding cost of litigation and prosecution, it is trite that cost follows event for most civil actions. This means that the cost of an action may be awarded to a successful litigant subject to the discretion of the Court. Accordingly, this Court is inclined to award the sum of N20, 000.00 (Twenty Thousand Naira Only) in favour of Claimant as cost of this suit.
The Claimant is also seeking for the award of general damages of N10,000,000.00 (ten million naira). General damages are always made as a claim at large, they need not be pleaded or proved and is awarded for loss or inconvenience which flows naturally from the act of the Defendant. See UBN PLC V. ALHAJI ADAMS AJABULE & ANOR (2011) LPELR 8239 (SC).
The Claimant in this suit served his master the Defendant diligently for 15 years and 5 months (evident by the certificate of excellence issued to the Claimant by the Defendant marked as exhibit CA 9) and I find it unjust for him to be made to wait indefinitely for the payment of his accrued benefits. Section 19(1) of the National Industrial Court of Nigeria Act 2006 permits this Court to make an award of damages. Given the circumstances of this case, I agree with the Claimant that he is entitled to general damages for hardship and inconvenience the act of the Defendant has caused him. Accordingly, this Court awards the sum of N200, 000.00(Two Hundred Thousand Naira Only) in favour of the Claimant.
On relief 7 which is for exemplary damages, it is trite that exemplary damages are awarded by Courts with the intent of punishing the Defendant for his wrongdoing which has inflicted injury upon the Claimant. It has been settled in plethora of cases that for exemplary damages to be awarded it need not be specifically claimed, but facts to justify it must be pleaded and proved. Thus Claimant in his statement of facts particularly paragraphs 7, 8, 9, 10, 11, 17, and 19 pleaded facts in support of this particular claim. Having read these set out paragraphs, I repeat that it was the duty of the Claimant to get himself registered under the contributory pension scheme and appoint a pension fund administrator of his choice; not that of the Defendant. Consequently, I do not agree with the Claimant that the Defendant violated his statutory pension rights by delaying his registration; the Defendant cannot be held liable for the Claimant’s slothfulness. I so hold.
However, the Claimant also averred that the Defendant issued a letter to Claimant’s pension fund administrator on 2nd May 2019 wherein it was alleged that Claimant’s employment commenced on 1st July 2012 instead of 21st July 2003, length of service was alleged to be 1 year and 1 month instead of 15 years and 5 months and that Claimant’s resignation took effect on 30th July 2013 instead of 31st December 2018. The Defendant also issued a letter dated 13th May 2019 to the Claimant where it stated that the Claimant’s resignation was effective 30th July 2013.
To the Claimant, this was a calculated attempt by the Defendant to cut down from his contributory pension fund. In proof of this claim, Claimant tendered exhibit CA1A &B (Defendant’s confirmation letter issued to Claimant’s pension fund administrator) and CA4 (Defendant’s letter of acceptance of resignation dated 13th May 2019) The Defendant in its defence averred that the said letters are results of administrative oversight.
I have carefully examined the aforementioned exhibits and have observed that information contained therein are grossly contradictory with undisputed pleaded facts in this suit. I find it noteworthy to state that the Claimant’s solicitor wrote the Defendant on 15th July 2019 where it categorically brought up the issue of misrepresentation of date of Claimant’s resignation and out rightly accused the Defendant of intending to appropriate his earned benefits, yet the Defendant did not see the need to retract or take any step to correct the misrepresentation.
To my mind, if this was an administrative oversight as claimed by the Defendant, upon the Claimant pointing it out, the Defendant ought to have taken steps to address same. Hence, I am not persuaded that the misrepresentations of the Defendant contained in exhibits CA1A & B and CA4 are just administrative oversight. Accordingly, the sum of N500, 000.00 (Five Hundred Thousand Naira Only) as exemplary damages is awarded against the Defendant for misrepresentation of Claimant’s effective date of resignation to his pension fund administrator.
On relief seeking Court interest on judgment sum, Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 empowers the Court to grant 10% interest per annum post judgment interest payable to a successful litigant. Accordingly, this Court may grant this relief where it deems necessary.
The Claimant is also seeking for “further orders that this Court may deem fit in the circumstance of this case” I find this particular claim rather strange. It is general principle of law that a Court will not grant a party a relief not claimed nor will it grant a party more than what was claimed. See JERIC NIGERIA LTD V. UBN PLC (2000) 15 NWLR (PT. 691) 447.
On the whole, and for the avoidance of doubt, the Claimant’s case succeeds in part only in terms of the following declaration and orders:
1. It is declared that the Claimant is entitled to all of his entitlements as contained in the letter of offer of appointment dated 13th August 2009, and the defendant shall compute same and pay accordingly to the claimant.
2. It is ordered that the Defendant remit all Claimants unremitted contributory pension fund of Claimant from 2013 to 2018 to Claimant’s pension fund administrator to wit NLPC Fund Administrators Limited.
3. It is ordered that the Defendant furnish the Claimant with evidence of remittance of all Claimant’s contribution to the pension fund, to enable him access his payment accordingly.
4. It is ordered that the Defendant shall within 30 days of this judgment pay to the Claimant the sums of N20,000 for cost of litigation, N200,000 being general damages for inconveniences caused the Claimant, N500,000 being exemplary damages for misrepresenting effective date of Claimant’s resignation.
5. Failure to pay the amounts specified above within the stipulated time shall attract interest of 10% per annum until fully paid.
Judgment is entered accordingly.
Hon. Justice R.B. Haastrup