| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
———————————————————————————————————————————————————————- Suit No: NICN/UY/27/2015 Petitioner: MR. UBOH SUNDAY UBOH And Respondent: GRAFEN INTERGRATED OILFEILDS LIMITED Date Delivered: 2017-03-02 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: KELECHI OLUIGBO for the claimant E. E. EKANEM for the Defendant JUDGEMENT The claimant filed this action on 22nd June 2015 vide a General Form of Complaint accompanied by the statement of facts, list of witness, witness statement on oath, list of documents and copies of the documents. By originating processes, the claimant is claiming for the following reliefs – A DECLARATION that the non- remittance of pension fund made from the claimants salary to the Pension Fund Administrator, null and void. AN ORDER that the defendants pay directly to the claimant the sum of M3, 629.170.02 representing total non- remitted pension fund deduction and the claimant counterpart contribution to pension from December 2005 to October 2012 and interest at the rate of 10% per anum until the judgment debts is finally liquidated. Claimant’s Case The Claimant was employed by the defendant as a crane technician and from December, 2005, he stated that the defendant started deducting #21,862.47 from his monthly emolument as his monthly pension contribution. The Claimant averred that it was the defendant who recommended Trustfund Pensions Plc. as his Pension Fund Managers and other workers had facilitated the opening of the compulsory pension savings account. The Claimant after being disengaged from employment went to his pension account manager for payment but was told that he has nothing in his account. Subsequently, he instructed his solicitors to do a letter to the defendant demanding an explanation as to what happened to all the money deducted from his salary and the defendant’s contribution thereto. To which the defendant replied via a letter dated 24/9/2014 alleging that defendant had earlier demanded Pin Number from claimant which claimant had failed to submit. The Claimant stated that defendant subsequently notified the claimant that she had remitted #600,000.00 into his RSA even when the claimant did not furnish her with his Pin Number. The defendants entered appearance on 20th August 2015 and filed their statement of defence on the same day. STATEMENT OF DEFENCE dated and filed on 20th August, 2015. Responding to Paragraphs 1 & 2 of the Statement of Facts, defendant averred that claimant was employed in 2009 with his employment tied to a contract the defendant has with her client, Mobil Producing Nigeria Unlimited which contract terminated on 30/9/2011. Defendant stated that it was the claimant who chose Trustfund Pension Plc. as his pension’s manager. The Defendant denied that it started making deductions from claimant’s emolument from December, 2005 and stopped in October, 2012 at #21,862.47 per month the Defendant stated that Mobil Producing Nigeria Unlimited stopped paying the defendant in March, 2010 and was not remitting her own part of the contribution for onward payment to the claimant, thus, that it is Mobil that is owing the claimant and not the defendant. The further Defendant averred that she paid the claimant a total um of #845,905.61 (Eight Hundred and Forty Five Thousand, Nine Hundred and Forty Five Thousand, Nine Hundred and Five Naira, Sixty One Kobo) and Not #600,000.00 (Six Hundred Thousand Naira) as alleged by the claimant. WHEREOF the defendant states that she is not liable to the claimant’s claim and will urge the Court to dismiss the same as it amounts to an abuse of Court’s processes. The claimants filed their reply to defence on the 8th October 2015. REPLY TO DEFENCE dated 7th October, 2015 and filed on 8th October, 2015. Claimant averred that the defendant does not need the Pin Number of the claimant or nay other employee to pay deductions from claimant’s emoluments into his pension account as the Pin Number is given to only the account holder to access the account and know the accumulated balance and for purpose of making any withdrawal therefrom. The Claimant stated that the pension deduction made by the defendant from the claimant’s account commenced from December, 2005 and stopped in October, 2012. Reacting to paragraph 5 of the Statement of Defence, claimant averred that Mobil had nothing to do with the counterpart payment of the monthly pension fund to the pension manager and that defendant had no reason to deduct pension contribution from claimant’s salary from March, 2010 without remitting her counterpart contribution to Trustfund Pensions Plc. Furthermore, that the defendant never demanded and the claimant never furnished the defendant with his pension account Pin Number at any time whatsoever. Trial commenced on the 2nd December 2015 with the claimant testifying as CW, adopted his statement oath which was marked Exhibit C1 and tendered 6 other exhibits. He was duly cross examined and the claimant closed his case on The defendants opened their case on 30th June 2016, the defendants called one witness, Johnson Edoho the defendant’s Document Controller, who testified as DW, adopted witness deposition dated 20th August 2015 which was marked Exhibit D1 and proceeded to tender 2 other exhibits. He was also cross examined and the trial ended. TABLE OF EXHIBITS TENDERED TENDERED BY DOCUMENTS TENDERED DATED DATE TENDERED REMARK CLAIMANT DEFENDANT Witness on Oath Written Statement on Oath Reply Deposition on Oath Letter of Employment Termination of contract An email letter Non remittance of pension contribution Reply on non-remittance Witness on Oath Written deposition on Oath Letter from Grafen Intergrated Copy of Union Bank Cheque Details of pension not remitted 8-12-2015 22-6-2015 8-10-2015 1-01-2009 15-09-2011 13-08-2014 21-08-2014 24-09-2014 30-6-2016 20-8-2015 24-9-2014 21-11-2014 17-11-2014 8-12-2015 8-12-2015 8-12-2015 8-12-2015 8-12-2015 8-12-2015 ,, ,, 30-6-2016 ,, ,, ,, ,, CN C1 C2 C3 C4 C5 C6 C7 DW D1 D2 D3 D3(1) At the close of trial Parties were directed to file their final written addresses in line with the rules of this court. DEFENDANT’S FINAL ADDRESS dated and filed on 28th September, 2016. Wherein they raised one sole ISSUE; Whether the claimant is entitled to his claims. Learned Counsel E. E. Ekanem Esq. submitted that civil cases are proved on the balance of probabilities of the preponderance of evidence. IKEM v. VIDAH PACKAGAING LTD. (2011) FWLR (PT. 601) 1476 RATIO 11. Furthermore, that the law is he who asserts must prove and that the claimant had the burden of establishing his claims against the defendant. SEC. 136 of the EVIDENCE ACT, 2011; AGBOOLA v. U.B.A. PLC (2011) ALL FWLR (PT. 574) 74 RATIO 19. Defence Counsel submitted that where the evidence adduced by a party is apparently at variance or in conflict, the court is precluded from picking and choosing which of the evidence to believe or otherwise. He submitted that evidence is that is at variance with pleadings of a party foes to no issue and that ought to be discountenanced by the court. EROMOSELE v. WERMER (2014) ALL FWLR (PT. 751) 1531 HELD 11. It is defendant’s counsel’s submission that courts of law do not embark on conjecture or guesswork, as same can hardly produce a just and equitable decision. ADIGWE v. F.R.N. (2015) ALL FWLR (PT. 805) 76 RATIO 9. He submitted that there is nothing before the Court to show that the defendant deducted or continued to deduct claimant’s money during his employment with the defendant and/or after she terminated his contract in September, 2011; and that the Court is not allowed to speculate. ENTRPRISE BANK LTD. V. AMAO (2014) ALL FWLR (PT. 738) 994 RATIO 7. The CLAIMANT’S FINAL ADDRESS was dated 28th November, 2016 and filed on 1st December, 2016. Wherein he raised two (2) ISSUES Whether Mobil Producing Nigeria Unlimited is a party to the contract of employment between claimant and defendant? Whether the defendant was under obligation to remit deductions from claimant’s emolument and whether the defendant did remit her own contribution to the claimant’s pension account? ON ISSUE 1 Whether Mobil Producing Nigeria Unlimited is a party to the contract of employment between claimant and defendant? Learned Counsel to the Claimant Kelechi Oluigbo Esq. submitted that the defendant’s contract has nothing to do with Mobil Producing Nigeria Unlimited, a third party and that claimant’s employer was the defendant as no third party is privy to the contract of employment between claimant and defendant. AJAYI v. HARRY (2015) ALL FWLR (PT. 770) 1302 CA. ON ISSUE 2 Whether the defendant was under obligation to remit deductions from claimant’s emolument and whether the defendant did remit her own contribution to the claimant’s pension account? Relying on Sec. 11 (7) of the Pension Reform Act, Claimant’s counsel submitted that the attitude of the defendant is not excusable and ought to be visited with the attendant consequence of penalty payment as the defendant has not given any excuse for failing to remit deduction from claimant’s emolument to the claimant pension account. He stated that the defendant is like a person in a fiduciary position who is not entitled to make profit but to act in good faith On 7th December 2016 parties adopted their respective addresses and adumbrated their positions accordingly. Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there the claimant has proved entitlement to the reliefs sought in this case. Before I delve into the merits of this case it is necessary to make a few comments as to the arguments raised during the adoption from both sides of the divide. Wi7 regards to the claimants submission as the involvement of Mobil Nig., now this court has in certain cases upheld the existence of triangular or co employment See PENGASSAN VMOBILE PROD. NIG. LTD. [2013] 32 NLLR (Pt. 922) 34. However in order to establish that, the court is required to find vestiges of an employment relationship between the three or more parties,. This is not the position in the instant case. I find that I agree with the claimant. The defendants are the claimant’s sole employers and that his employer’s client whether it be Mobil Producing or any other person are not parties to this particular claimant’s contract. As to whether the defendants is under any obligation to make remittances to the claimants Pension Fund Administrator (PFA) maintained Retirement Savings Account (RSA), I find is a question of law. Section 9(1) of the Pension Reform Act 2004, mandates the employer make its own contribution and deduct according to the law from monthly emolument and this deduction is to be paid to PFA within 7 days Section 11(5). This means there is an obligation on the part of the employer to deduct and remit the deduction according to the law from the employee’s monthly emolument and failure to do so under would attract a penalty which under the 2014 Act. See BELOVED P. ANOWU Vs. OMATECK & ANOR a case of the Lagos division delivered on the 17th March 2016, the 2014 Act went on to prescribe a penalty for late remittance that be that as it may there is nothing before the court to justify the application of this law in that the claimant have not presented to the court any law or circumstance that enable his to attach a penalty to be paid by this court to himself, as from the wording of even to Pension Reform Act 2014 the claimant cannot compel a court to award the penalty or deduction to him, furthermore the applicability of the 2014 Act to the claimant has not been established either. In the instant suit, the claimant is praying this Court to order that the said pension contributions due to him be paid to him. Where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004 (note that as relates to this case, the cause of action is as governed by the 2004 pension Reform Act, not the 2014 Act, because the cause of action arose upon the claimant’s resignation on 20th July 2010) fall under this rule. This Court cannot, therefore, accede to the claimant’s prayer that the said pension contribution be paid to him. When the defendant asserted that it had paid the sums prayed for by the claimant and showed evidence of the payment, the claimant should have provided evidence that will contradict the defendant’s, but he did not; instead he merely joined issues with the defendant. Even when the defendant filed his written address and made references to statutory and judicial authorities, the claimant in his reply on points of law did not allude to contrary authorities to contradict the defendant’s. On the whole, I do not see any merit in the claimant’s claims for gratuity, share of company provident fund contributions and staff contributions as the claimant has not by any evidence proved entitlement to these claim as to enable the court make a determination in these areas. The claims accordingly fail and are hereby dismissed. Relief 3 and relief 2 in part accordingly fail and so are dismissed. …………………………………… Hon. Justice E. N. Agbakoba Judge |
