IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: December 14, 2017
Suit No: NICN/IB/64/2016
Between:
Engr. Onatoyinbo Olubunmi Onatola
———– Claimant
And
- Lead City University
- The Registrar, Lead City University
——— Defendants
Representation:
M.O. Folorunsho with O. M. Akinniyi (Miss) for the claimant.
No counsel for the defendant.
JUDGMENT
On June 8, 2016 the claimant filed this complaint against the defendants for the following reliefs:
- An order of this Honourable Court directing and compelling the defendants to pay the sum of N1,506,593.10k (One Million, Five Hundred and Six Thousand, Five Hundred and Ninety Three Naira, Ten Kobo) to the claimant being the claimant’s staff contributing pension scheme entitlement between November 2008 till June 2015 and salary for the month of July 2015.
- Cost of this suit.
- 10% post judgment interest on the judgment sum that may be finally awarded by this Honourable Court till the judgment sum is paid up.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. However, no counsel entered any appearance for the defendants neither did the defendants file any defence processes as required by the Rules of this Court.
The case of the claimant is that he was a former employee of the of the 1st defendant and that during the period of his said employment, the 1st defendant deducted 5% of his salary monthly from November 2008 to June 2015 as his contributory pension but failed to pay same into the Staff Contributory Pension Scheme for the claimant. The claimant also averred that the defendants failed to pay his salary for the month of July 2015 which is One Hundred and Thirty Thousand, Nine Hundred and Fifty-Three Naira Thirteen kobo only (N130,953.13k). He further avers that after the termination of his employment, the defendants failed to pay his contributory pension and his salary for the month of July 2015.
The claimant filed an application for summary judgment along with his complaint same date pursuant to Order 10 Rule 1 of National Industrial Court Rules, 2007 and under the inherent Jurisdiction of this Court; praying for the following orders:
- An Order of This Honourable Court entering summary judgment in the sum of N1,509,563.10k (One Million, Five Hundred and Nine Thousand, Five Hundred and Sixty Three Naira, Ten Kobo) in favour of the Claimant/Applicant and against the Defendants/Respondents who have no defence to this claim
- And For Such Order or Further Order(s) as this Honourable Court may grant in the circumstances.
The application is premised on the following grounds:
- The claimant’s claims are unpaid Staff Contributory Pension Scheme and arrears of salary.
- The total sum/claim by the claimant/applicant being the sum of N1,509,563.10k (One Million, Five Hundred and Nine Thousand, Five Hundred and Sixty Three Naira, Ten Kobo) is specific and certain.
- The Defendants/Respondents have no defence to the claim
This application is supported by a 23 paragraphed affidavit deposed to by the claimant. It is also supported by a written address of the claimant’s counsel in which he formulated an issue for determination this way:
Whether the Claimant/Applicant has put forward enough particulars to entitle him to summary judgment in the sum of N1,509,563.10k (One Million, Five Hundred and Nine Thousand, Five Hundred and Sixty Three Naira, Ten Kobo) in favour of the Claimant/Applicant and against the Defendants/Respondents who have no defence to this claim.
Arguing the said issue, counsel referred the Court to paragraphs 2 to 22 of the supporting affidavit and submitted that the purpose of the procedure for summary judgment is to enable the claimant obtains judgment without trial where his case is patently clear and unassailable; citing Okambah Ltd v. Sule [1990] 7 NWLR (Pt. 160) 1 at 11.
Relying on the supporting affidavit and exhibits attached to this application, counsel submitted that the 1st defendant has no defence to the claimant’s claim and that when the defendants received letter of demand for the payment from counsel to the claimant, they made attempt to effect payment to the claimant by cheque as exhibited but that the cheque bounced. To counsel, the issuance of the cheque is an admission of the fact that the defendants are indebted to the claimant. Thus, this application has all the necessary ingredients for granting same as contained in Order 10 Rule 1 of the Rules of this Court. Counsel further referred the Court to the cases of UNIBEN v. K.T. Org. Ltd [2007] 14 NWLR (Pt. 1055) pg. 461-462; Nnabude v. G.N.G (W/A) Ltd. [2010] 15 NWLR pg. 380 (No Part cited) and Agbabiaka v. F.B.N Plc. [2007] 6 NWLR (Pt. 1029) pg. 54 para C-D.
Counsel again referred the Court to sections 1 and 9 of Pension Reform Act, 2004 and submitted that the issue of payment of contributory pension between employer and employee like the defendants and the claimant is clearly regulated by law and that the employer has corresponding duty of contributing the amount being contributed by the employee to the Scheme on behalf of that employee. Counsel finally urged the Court to enter judgment in favour of the claimant.
FURTHER WRITTEN ADDRESS OF COUNSEL AS DIRECTED BY THE COURT On October 5, 2017 when this Court was to deliver its Summary judgment on the case, the Court directed counsel to the parties to further address it on the issue:
That even though the application for summary judgment was brought pursuant to Order 10 Rule 1 of the NIC Rules, 2007; the Court can still consider this Rule in its judgment, now that the NIC Rules, 2007 have been repealed since January 5, 2017. See Order 1 Rule 1 of the NICN (Civil Procedure) Rules, 2017.
Counsel to the claimant submitted that the claimant’s application was dated and filed on June 8, 2016 pursuant to Order 10 Rule 1 of the National Industrial Court Rules, 2007 and before the coming into effect of the new Rules of Court in 2017. To him, a relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because of the coming into effect of the new Rules of the Court; citing Joseph O. Falobi v. Elizbeth O. Falobi [1976] 9-10 SC pg. 1 at pg. 9 paras. 15-25. Thus, he urged the Court to so hold.
COURT’S DECISION
I have carefully considered the complaint and the application for summary judgment filed by the claimant. From these; I am of the view that two issues need to be resolved by the Court and they are:
- Whether or not the claimant can claim against the defendants, the sum of N1,509,563.10k as his contributions to the Contributory Pension Scheme from November 2008 to June 2015 and also claim his salary for July 2015.
- Whether or not the claimant is entitled to the Cost of this suit and to 10% post judgment interest on the judgment sum until the said sum is finally paid up.
There is evidence before the Court that the two defendants were served with the complaint and other initiating processes together with the application for summary judgment filed by the claimant. See proofs of these services including services of hearing dates of subsequent adjournments, which were adequately received by the defendants at pages 115 to 126 and 129 to 132 of the record. The effect of all these proofs is that the defendants were fully aware of this case and this application but they deliberately refused to defend it. This means that they are ready to abide by whatever decision the Court reaches on the case and the application and I so find and hold.
It should be noted that this complaint and the application for summary judgment were filed on June 8, 2016 under the NIC Rules, 2007 before these Rules were repealed with effect from January 5, 2017. On this I agree with the submission of the claimant’s counsel that the existence of a right under an old rule of court does not become otiose by the passage of another set of Rules of that Court, which were not in existence at the time of the filing of the application. Even though a new set of Rules of 2017 are now applicable in this Court, this application for summary judgment will still be determined under the NIC Rules, 2007 and I so hold.
Although the defendants did not file any defence, the claimant still has an obligation to proof his case to the satisfaction of the Court as required by sections 131 and 134 of the Evidence Act, 2011.
From the averments in paragraphs 4 to 11 of the statement of facts and paragraph 28 of the affidavit in support of the application for summary judgment at page 55 of the record together with the contents of all the pay slips issued to the claimant by the defendant; various amounts of money was deducted from the claimant’s salaries as pension contributions by the defendant from December 2008 to June 2015 as shown in the claimant’s pay slips at pages 19 to 47 and 65 to 100 of the record. The claimant went on to aver that all these deductions were not paid into his Pension Fund Administrator as required by the Pensions Reform Act. Furthermore, the claimant averred that he worked for the defendants in July 2015 but that he was not paid for that month by the defendant. He, therefore, prayed the Court to order the defendants to refund the said pension deductions and to pay him his salary for July 2015.
The defendants received all the processes of the claimant but deliberately refused to react to them. See proofs of services at pages 115 to 126 and 129 to 132 of the record. In the circumstance, the defendants are deemed to have admitted the claims of the claimant. Besides, at page 50 of the record is a copy of a cheque that was issued to the claimant by the 1st defendant to offset part of the debts but which bounced on presenting same at the bank to cash. This further supports the defendants’ admission of their debts to the claimant. I am, therefore, satisfied that the defendants made the said deductions without remitting same to Pension Administrator on behalf of the claimant. The claimant has also proved to the satisfaction of the Court that he worked for the defendants for the month of July 2015 and that they did not pay him salary for that month.
Consequently, I find and hold that the claimant is entitled to claim a total sum of N1,375,640.00k deducted from his salaries from December 2008 to June 2015 from the defendants as shown in his pay slips at pages 19 to 47 and 65 to 100 of the record. I further find and hold that the defendants owe the claimant his salary for July 2015. From the last pay slip of the claimant for June 2015 at pages 47 and 100 of the record, the last salary of the claimant from the 1st defendant less bank charges and tax was N130,953.13k. I again hold that the claimant is entitled to claim the sum of N130,953.13k as his salary for July 2015 from the defendants.
If this sum of N130,953.13k is added to the total pension contribution sum of N1,375,640.00k deducted without remission; we have the sum of N1,506,593.13k (One Million, Five Hundred and Six Thousand, Five Hundred and Ninety Three Naira, Thirteen Kobo) as the total indebtedness of the defendants to the claimant. I hereby order that the defendants are to pay the total sum of N1,506,593.13k to the claimant as judgment debt within 30days from today. Thereafter, the judgment debt shall begin to attract 10% interest per annum until liquidated.
Judgment is entered accordingly.
The defendants are to pay N50,000.00 cost to the claimant.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
