| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
————————————————- Suit No: NICN/LA/424/2014 Petitioner: National Pension Commission And Respondent: Tradeways Express International Limited Date Delivered: 2017-07-04 Judge(s): JUSTICE B. B. KANYIP Judgment Delivered REPRESENTATION Adeniyi Ishola, with F. A. Ajetunmobi, for the claimant. No legal representation for the defendant. JUDGMENT 1. On 19th September 2014, the claimant filed a complaint together with the statement of facts and other accompany originating processes against the defendant praying for the following reliefs: (1) Declaration that the defendant being bound by the Contributory Pension Scheme statutorily provided in section 1 of the Pension Reform Act Cap. P4 LFN 2004 is in breach of section 11(5) – (7) of the said Act by its failure, neglect and refusal to remit its employees including its own counterpart monthly pension contributions as at when due, to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators already furnished the defendant by its employees. (2) Declaration that the defendant being bound by the Contributory Pension Scheme statutorily provided in section 1 of Pension Reform Act Cap. P4 LFN 2004 is in breach of section 9(3) of the said Act by its failure, neglect and refusal to maintain a Life Insurance Policy in favour of its employees. (3) Payment of the N10,240,229.77 (Ten Million, Two Hundred and Forty Thousand, Two Hundred and Twenty-Nine Naira, Seventy-Seven Kobo) to the claimant being the aggregate outstanding pension contributions and interest penalty incurred by the defendant between 2010 and 2012 but which the defendant has refused to remit to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators. (4) An order directing the defendant to furnish the claimant evidence of subsequent remittance from 1st January 2013 till date of its employees’ monthly pension deductions forthwith including its own contributions paid to the Employees Pension Fund Administrators or payment of the aggregate sum to the claimant for onward remittance to the Employees Pension Fund Administrators. (5) An order directing the defendant to furnish the claimant all the identities and detail of its Employees Retirement Savings Accounts with their Pension Fund Administrators in its custody to facilitate the remittance of any judgment debt obtained in this suit directly by the claimant to the said Pension Fund Administrators. (6) 2% of the judgment debt per month from the date of judgment until the entire sum is finally liquidated. 2. The suit is basically undefended as the defendant despite service of the originating processes and hearing notices failed to make any appearance or defend the suit. Indeed, no defence process was filed. For this, relying o Madukolu v. Nkemdilim [1962] 1 All NLR (Pt. 4) 581, the claimant submitted that this suit is properly constituted; and that pursuant to several proof of service of originating process and hearing notices on the defendant, this Court can competently adjudicate and exercise jurisdiction on it. This aside, the claimant called one witness, Elendu Ojukwu Awa, Manager Legal, who testified as CW and tendered 4 documents, Exhibits C1 to C4. At the close of trial, the claimant filed its final written address on 13th March 2017. 3. The case of the claimant is that the defendant is statutory required under the Pension Reform Act (PRA) 2004 (as amended in 2014) to deduct at source 8% of her employee’s monthly emolument and the defendant (as an employer) shall contribute 10% of the employee’s months emoluments totaling 18% and shall remit an amount equal to 18% of the employees’ monthly emoluments within 7 days from the day her employees are aid their salaries to her Employees Retirement Savings Account with their Pension Fund Administrator every month. However, that the defendant defaulted in remitting the said contributory pension for the period of year 2010 – 2012 which prompted the claimant to engage the services of a firm of Chartered Accountants as its recovery agent and whose report vide a letter/demand notice daed 1st July 2013 confirmed that the defendant is in default of N10,325,347.66 (Ten Million, Three Hundred and Twenty-Five Thousand, Three Hundred and Forty-Seven Naira, Sixty-Six Kobo) which the defendant has refused to pay onsite of repeated demand; hence this suit to enforce compliance with the PRA 2004 (as amended in 2014) as it affects the defendant. 4. The claimant submitted a lone issue for determination, to wit: whether the claimant has proved its case to be entitled to judgment. To the claimant, this suit was instituted under the PRA 2004, which in section 1(2) provides thus: Subject to section 8 of this Act, the Scheme shall apply to all employees in the Public Service of the Federation, Federal Capital Territory and the Private Sector – (a) in the case of the Public Sector, who are in employment; and (b) in the case of the Private Sector who are in employment in an organization in which there are five or more employees. That section 2 of the PRA 2014, which amends the PRA 2004, provides thus: (1) The provisions of this Act shall apply to any employment in the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the States, the Public Service of the Local Government and the Private Sector. (2) In the case of the Private Sector, the Scheme shall apply to employees who are in the employment of an organization in which there are 15 or more employees. (3) Notwithstanding the provisions of subsection (2) of this section, employees of organizations with less than three employees as well as self-employed persons shall be entitled to participate under the scheme in accordance with guidelines issued by the Commission. The claimant also referred to section 3 of the PRA 2014. 5. The claimant continued that the defendant is an incorporated company with more than 5 employees at its place of business, which is still an ongoing concern. That the defendant is a private sector organization referred to in the PRA of 2004 and 2014 and so is bound to observe and comply with the 2004 and 2014 PRA in virtue of the provisions cited earlier. Relying on sections 131 to 134 of the Evidence Act 2011 and Union Bank of Nigeria Ltd v. Prof A. O. Ozigi [1994] 3 NWLR (Pt. 333) 385, the claimant submitted that the burden of proving a particular fact is on the party who asserts it; or that the onus is on the person who will fail if such evidence was not adduced. That if he fails to prove the assertion, then the proper order is one of dismissal. Tye claimant noted that the suit is undefended and so it is deemed that the defendant has admitted the veracity of the uncontroverted testimony of CW and Exhibits C1 to C4, certified true copies of which were tendered and admitted. That since the claimant’s evidence was not challenged, it open to the Court, need bound, to rely on same, citing Mobil Producing Nig. Unltd v. Monokpo (No. 2) [2001] 1 FWLR (Pt. 78) 1210 and Folorunso & anor v. Shaloub [1994] 3 NWLR (Pt. 333) 413 at 433. That whether a party proves his case or not will depend on whether the legal evidence led, will, if put on the proverbial scale, tilt it one or the other, citing Nwaga v. Regd. Trustees, Recreation Club [2004] FWLR (Pt. 190) 1360. The claimant the urged the Court to hold that the claimant has adduced credible legal evidence in proof of his claims and is entitled to judgment. 6. The claimant went on that the defendant who has no defence to this suit in view of his default in complying with the PRA 2004 (as amended in 2014) has chosen not to defend the suit for obvious reason. That by virtue of section 11(7) of the PRA 2004 (as amended in 2014), the claimant in discharging its statutory duties under the Act is empowered to impose 2% as interest penalty on the unremitted contributory pension deduction against any of defaulting party/organization including the defendant. That in the circumstances of the case, minimal proof is required, urging the Court to hold that the claimant has discharged the legal burden placed against it and it is entitled to judgment as per its claims. The claimant concluded by urging the Court to grant it judgment. COURT’S DECISION 7. The suit was fled on 19th September 2014 after the PRA 2014 came into effect on 1st July 2014. By reliefs (3) and (4), the claimant is praying from this Court the sum of N10,240,229.77 being the aggregate outstanding pension contributions and interest penalty incurred by the defendant between 2010 and 2012 but which the defendant refused to remit to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators; and an order directing the defendant to furnish the claimant evidence of subsequent remittance from 1st January 2013 till date of its employees’ monthly pension deductions forthwith including its own contributions paid to the Employees Pension Fund Administrators or payment of the aggregate sum to the claimant for onward remittance to the Employees’ Pension Fund Administrators. The cause of action regarding this case accordingly arose when the PRA 2004 was the enabling law; but given the PRA 2014, the PRA 2004 was repealed under section 117(1) of the PRA 2014. However, under section 117(3)(b) of the PRA 2014, the repeal of the PRA 2004 shall not affect anything done or any action taken under or pursuant to the repealed Act except that such thing done or any action taken shall be construed in accordance with the provisions of the 2014 Act. And by section 117(4), every regulation, order, requirement, certificate, notice, direction, decision, authorization, consent, application, request or thing made, issued, given or done under the repealed Act shall, if in force at the commencement of the 2014 Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of the 2014 Act. Given these provisions, I shall according rely on the PRA 2014 in deciding this suit. I am not unmindful of the rule that enjoins that a cause of action is decided based on the law as at the time the cause of action arose. From all indications, section 117 of the PRA 2014 to an extent creates an exception to this rule. 8. On face value, there is no doubt that the defendant as a going concern and an employer of labour, is bound to adhere to the provisions of the PRA, if it comes within the minimum threshold laid down by the law itself. For instance, under section 2(2) of the PRA 2014, for the PRA to apply to an organization in the Private Sector (the defendant is one such organization), it must have 15 or more employees. The PRA 2004 in section 1(2)(b) puts the minimum number of employees for organizations in the Private Sector to be 5 or more. In paragraph 2 of the statement of facts (and paragraph 4 of the statement on oath of CW), the claimant simply stated that the defendant is an incorporated company carrying on business in Nigeria with more than 5 employees at its place of business. By this averment, the claimant is not certain of the number of employees the defendant has. This means that there is no proof before the Court of the exact number of employees the defendant has upon which and on whom the claimant is claiming pension contributions. The minimum pension contribution for any employee is provided for in section 4(1) of the PRA 2014 as 10% of the employee’s monthly emoluments by the employer and 8% of same salary by the employee. (Under section 9(1)(a) of the 2004 PRA the minimum pension contribution is 7.5% of the employee’s monthly emoluments by the employer and 7.5% by the employee.) Without knowing the exact number of employees that the defendant has in its establishment, how did the claimant come by the N10,240,229.77 it claims as per relief (3)? In paragraph 2.02 of its written address, the claimant even put this sum as N10,325,347.66. Where did this latter sum come from? 9. The PRA 2014 in section 120 defines “monthly emoluments― to mean “total emoluments as may be defined in the employee’s contract of employment but shall not be less than a total sum of basic salary, housing allowance and transport allowance”. Section 102 of the 2004 PRA, on its part defines it to mean “a total sum of basic salary, housing allowance and transport allowance―. The difference in the two definitions is that the 2014 PRA gives the leverage to go higher that just the aggregate of basic salary, housing allowance and transport allowance where the total emolument as defined in the contract of employment is higher. The claimant exhibited 4 documents: Exhibit C1, a letter dated 1st July 2013 from a firm of Chartered Accountants demanding from the defendant for the period 2010 – 2012 the sum of N10,325,347.66 as outstanding audit pension audit liability for the said period; Exhibit C2 dated 25th October 2013 being a final notice to the claimant by the defendant threatening legal action; Exhibit C3 dated 9th July 2013, a letter of warning from the claimant to the defendant to pay up the outstanding pension contribution; and Exhibit C4 dated 12th March 2013, a letter from the claimant granting a “no objection― request to its firm of Chartered Accountants to issue a demand notice to including the defendant. Now from all of these exhibits, there is none showing the total emoluments of the employees upon which the pension contribution was calculated; there is nothing before the Court disclosing the basic salary, housing allowance and transport allowance of the defendant’s employees since the period of recovery (2010 – 2012) was regulated and covered by the PRA 2004. 10. The claim for N10,240,229.77 is a claim for special damages; and the law is that special damages must be claimed specially and proved strictly. In the words of Rhodes-Vivour, JSC in NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC): Now, can what appears to be an admission apply to a claim for special damages, or put in another way, can a claim for special damages succeed because it is admitted. I do not think so. Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with General damages. They are exceptional and so must be claimed specially and proved strictly… …To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court. In the instant case, no such proof has been put before the Court; as such the claim for N10,240,229.77, having not been proved, fails and is hereby dismissed. Relief (6) prays for post-judgment interest on the judgment debt. Since the judgment debt failed, relief (6) cannot be granted; it fails and so is equally dismissed. 11. Relief (1) is for a declaration that the defendant being bound by the Contributory Pension Scheme statutorily provided in section 1 of the PRA 2004 is in breach of section 11(5) – (7) of the said Act by its failure, neglect and refusal to remit its employees including its own counterpart monthly pension contributions as at when due, to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators already furnished the defendant by its employees. This relief cannot be granted given that it is not even known if the defendant comes within the purview of the Act in terms of the exact number of its employees. Relief (1) accordingly fails and so is dismissed. 12. Relief (2) is for a declaration that the defendant being bound by the Contributory Pension Scheme statutorily provided in section 1 of the PRA 2004 is in breach of section 9(3) of the said Act by its failure, neglect and refusal to maintain a Life Insurance Policy in favour of its employees. Section 9(3) of the PRA 2004 provides that employers shall maintain a life insurance policy in favor of the employee for a minimum of three times the annual total emolument of the employee. The Court, like I indicated earlier, was not told the employees of the defendant as well as their respective total emoluments in order to ascertain that there is an obligation on the defendant to maintain the life insurance policy for each employee. As it is, therefore, relief (2) has not been established; it fails and so is dismissed. 13. Relief (4) is for an order directing the defendant to furnish the claimant evidence of subsequent remittance from 1st January 2013 till date of its employees’ monthly pension deductions forthwith including its own contributions paid to the Employees Pension Fund Administrators or payment of the aggregate sum to the claimant for onward remittance to the Employees Pension Fund Administrators. The prerequisites required for this relief to be granted have not been shown to this Court to exist. For instance, the defendant must have the requisite minimum number of employees to come within the purview of the PRA. This fact has not been shown to the Court; and once that fact has not been pleaded and proved, the order that evidence of remittance be furnished cannot be given. Relief (4) fails and so is dismissed. 14. Relief (5) is for an order directing the defendant to furnish the claimant all the identities and detail of its Employees Retirement Savings Accounts with their Pension Fund Administrators in its custody to facilitate the remittance of any judgment debt obtained in this suit directly by the claimant to the said Pension Fund Administrators. Once again, this order cannot be granted as the claimant did not show to this Court that the defendant even comes within the purview of the PRA. How can the Court grant this order when it is not proved the exact number of employees the defendant has? Relief (5) accordingly fails and so is dismissed. 15. On the whole, and for the avoidance of doubt, the claimant’s case fails in its totality. It is accordingly dismissed. 16. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD |
