IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Before His Lordship-
HON. JUSTICE J. D. PETERS - JUDGE
DATE: 2016-11-17 SUIT NO: NICN/LA/264/2012
Mr. Abiodun Owoeye .........................................................CLAIMANT
Caxtban Nigeria Limited ………………………………..DEFENDANT
M.O. Akoyoware Miss with A. Agunbiade & O. Azinge for the Claimant.
By the General Form of Complaint dated 11/6/12, the Claimant approached the Court for the following reliefs against the Defendant -
1. The sum of Six Million, Nine Hundred and Ninety Two Thousand Six Hundred and seventy four naira only (=N=6,992,674:00K) being outstanding salaries due to the Claimant from the Defendant for the period 1st January 2010 – 31st January 2011 (thirteen months).
2. The sum of Three Hundred and Thirty One Thousand, Two Hundred Naira only (=N=331,200:00K) being pension contributions deducted but not remitted by the Defendant.
3. The sum of Three Hundred and Thirty One Thousand, Two Hundred Naira only (=N=331,200:00K) being employee contribution to the pension fund, which was not remitted.
4. The sum of Six Hundred and Sixty Two Thousand, Four Hundred and Thirty Two Naira only (=N=666,432:00K) being Pay As You Earn tax remittances, which were not remitted to the Lagos State Government.
5. The sum of One Million, Nine Hundred and Twenty Thousand Naira (=N=1,920,000:00K being reimbursable expense claims which the Defendant has not paid.
6. The costs of this action.
The facts of this case as revealed by the pleadings filed by the Claimant, in brief, are that the Claimant was an employee of the Defendant; that his salary was paid regularly till December of 2009 but not paid until January 2009 when he resigned; that the Managing Director of the Defendant who was also its alter ego died in May of 2010 and that before he resigned, the Claimant spent his personal funds to keep the Defendant running for which the Claimant seeks reimbursement.
The Claimant's Form 1 was accompanied by statement of facts, claimant's witness statement on oath, list of witnesses, list of exhibits as well as copies of the documents to be relied on at trial. The Defendant, though served all the processes as required, did not file any defence process and neither appear at all in this Court throughout the hearing of this case.
The hearing of this case commenced on 24/10/13 when the Claimant testified as CW1, adopted his witness statement on oath dated 11/6/12 as his evidence in chief and tendered 11 of the 12 documents listed on his list of documents. the documents were admitted as exhibits and marked as Doc. 1 - 9 & Doc. 11-12. Hearing continued on 17/7/14 when the Claimant still in evidence in chief tendered 9 additional documents as exhibits. The documents were admitted and marked as Doc. 13 - Doc. 21. There was no cross examination. As stated earlier, the Defendant did not show up to defend this case.
4. Submissions on Behalf of the Claimant
At the close of hearing and in accordance with the Rules of Court, learned Counsel to the Claimant filed a written address on 10/11/15. The final written address is essentially of 5 pages. The first two and half page contained introduction, the claims and the facts of the case. The next 2 pages contained issues for determination and argument of Counsel while the last half contains conclusion and reproduction of the claims sought. I have decided to reproduce the said final written address as follows -
''Issues for Determination
The issues for determination which are;
(i) Is the Claimant entitled to payment of his wages and reimbursement for expenses made on behalf of the company?.
(ii) And also if the claimant is entitled to sue for pensions deducted by his employer which are unremitted?. And for the due remittance of text which were deducted and remain unremitted.
3.1 The law is trite and well spelt out. A worker is entitled to his wages. We refer my Lord to Okiki v Nigerian Custom Service (2014) 51 NLLR (Part 169) 296 NIC On Entitlement of a worker to salary and consequences of failure to pay same, this court pronounced that;
A worker is entitled to his salary, all things being equal, at the end of every month. Therefore for every month in which the requisite salary and allowances are not paid to a worker, a cause of action arises for which he can seek judicial intervention. It means therefore that it does not matter that such a worker is owed outstanding salaries for upward of ten or even twenty years of action arises.
We also refer my Lord to Overland Airways Limited v Afolayan 7 & Anor. (2015) 52 NLLR (Part 174) 214 NIC
On the importance of wages/salaries in an employment contract
The courts view the employer’s obligations in respect of wages as a key element of the employment contract. In reality it is difficult to exaggerate the crucial importance of pay in any contract of employment. In simple terms, the employee offers his skills and efforts in exchange for his pay: that is the understanding at the heart of the contractual agreement between him and his employer’… The fact that an employer may have good reasons for failing to make payment in accordance with the terms of the contract is irrelevant.
On Legal implication of wrongly withholding an employee’s salary
Once the salary of an employee is wrongly withheld by an employer, actionable wrong has been committed and the employee is entitled to sue. The actionable wrong basically derives from the fact that non-payment of the salary as at when due amounts to breach of contracts by the employer who can be sued by the aggravated employee. In the instance case, the Claimant in anticipation of the expressed intention of the 1st Defendant to disengage from his services from 31st May, rightly commenced his action but wrongly withheld the salary of the 1st Defendant for the month of March 2011.
(Lagos State Teaching Hospital and Management Board v Prince M.B. Adewole (1998) 5 NWLR (Pt. 550) 406 at 411,
We submit with respect that from the uncontested evidence before this Honourable Court, the Claimant has shown that his salaries were not paid and have been paid till date. The remedy in this situation is for the court to hold that the claimant is entitled to his wages and an order made for the immediate payment of outstanding wages.
3.2. On whether the claimant is entitled to reliefs for deductions made from his wages but remain unremitted to his pension funds account and remittance to the authorities. We refer my Lord to Musa v G4S Nigeria Limited & Anor. (2014) 49 NLLR (Part 163) 546 NIC.
On consequence of failure to remit employee’s pension’s contributions within time specified.
By Section 11 (7) of the Reform Act, 200, any employer who fails to remit the contributions within the time prescribed in subsection (5) (b) of the section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission provided that the penalty shall not be less than two percent for each month or part of each month the default continues and the amount of the penalty shall be recovered as a debt to the employees retirement savings account at the case may be.
From the claimant’s testimony it is clear that the defendant failed to make pension remittance as required by the Pension Reform Act 2004.
We are also referring my Lord to Jerome A v. Leaders & Company (2014) 49 NLLR (Part 161) 233 NIC.
On deduction and payment of pensions and effect of failure of non-compliance therewith
By the provision of Section 11 (5) of the Pension Reform Act 2004, an employer should deduct from an employee’s salary certain amount comprising the employee’s contributions and same remitted into his pension managers. Going by Section 7 of the PRA, the employer should be compelled to make remittance of the sum of money deducted from the employee’s salary. It is the provision of the PRA that an employer who default in remitting and employee’s contribution would be required by the Commission to pay 2% of the total contribution of the employee it failed to remit as penalty. In the instant an employer who default in remitting and employee’s contribution would be In instant case, it was on record that the defendant failed and deliberately refused to remit already deducted sum of money from the claimant’s salary meant for his pension contribution as stated in exhibit JU8. The defendant is thus compelled to make the remittance of the sum of money deducted from the claimant’s IBTC Pension Managers Savings Account.
3.3. The Claimant has shown ample evidence before this court to the fact that he used his good faith to act in respect of the concerns of the company and all his expenses which have been placed before this court remain outstanding.
3.4. We submit with respect that the law is on the side of the claimant who has shown that he has been seriously aggrieved by the Defendant by their failure to make good their contract of employment and the claimant should not be made to suffer any longer.
3.5. The claimant is also entitled to a remittance of deduction made from his salaries as taxes to be duly remitted to the appropriate tax authority to put the claimant in the right standing with the tax authority of the state government as it were''.
I have read all the processes filed by the Claimant including the final written address. I listened to and watched the demeanor of the lone witness called at trial and also reviewed and evaluated all the documents tendered as exhibits. Having done that, I set a lone issue down for determination as follows -
Whether the Claimant has proved his claims to be entitled to any or all of them.
The law is trite that in civil proceedings, the burden on the party who will lose if no evidence is led. Therefore, the party who seeks to gain from the proceedings or who seeks judicial intervention for reliefs before the Court has an obligation to prove same if he/she is to be entitled to a grant by the Court. This is done by adducing credible, cogent and admissible evidence to the satisfaction of the Court. See Access Bank Plc v. Trilo Nigeria Company Limited (2013) LPELR-22945 (CA). It is simply an expression of the fact that he who asserts must prove his assertion. See Intercontinental Bank Plc v. Dayekh Brothers Limited (2014) LPELR-23485 (CA). I need to reiterate the fact that the Defendant did not defend this case. That fact however does not entitle the Claimant to Judgment automatically. For even where, as in the instant case, the Defendant did not defend a suit, the burden continues to remain on the Claimant to prove his case in order to find favourable disposition. After all the law remains trite that a party cannot rely on the weakness of the case of his adversary but only on the strength of his case. See Udeorah v. Nwakonobi  4 NWLR (Pt.811)643.
Essentially the claims of the Claimant are for arrears of salaries, pension contributions allegedly not remitted, tax deductions not remitted to tax authorities, reimbursable expenses as well as cost of this action. In an action of this nature, it is imperative for the Claimant to link whatever document he has as exhibits to his specific head of claim. What the Claimant has done here is to just dump series of documents on the Court perhaps for the Court to sort out and learned Counsel must be ready to bear the consequences of such act. The duty of the Court is simply adjudication. That of learned Counsel is advocacy. It is not for a Counsel to abandon his professional responsibility and expect the Court to add advocacy to its constitutional responsibility of adjudication.
I note that majority of the documents tendered and admitted originated from the Claimant. For instance, Doc. 8 is a 14-page document of several e-mail correspondences between the Claimant and several individuals from 10/12/10 to 30/1/11. Which of these e-mail correspondences is in proof of which head of claims of the case of the Claimant? There are several others like that. Unfortunately, the opportunity which the final written address affords was not utilised by the learned Counsel to the Claimant notwithstanding that a beautifully written address will not cannot take the place of evidence. See Aliyu & Ors. v. Intercontinental Bank Plc & Anor. (2013) LPELR-20716 (CA). The bottom line of this is that the Defendant has not defended this case, the Claimant has not proved his case by adducing cogent and admissible evidence. I so find and so hold.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed for lack of proof. I make no order as to cost.
Judgment is entered accordingly.
Hon. Justice J. D. Peters