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NATIONAL PENSION COMMISSION -VS- FAMAKS INTERNATIONAL

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 4TH JUNE, 2016                                                    

SUIT NO:NICN/ABJ/128/2015

 

BETWEEN:

NATIONAL PENSION COMMISSION……………………………………. CLAIMANT

 

AND

FAMAKS INTERNATIONAL SCHOOL……………………………………DEFENDANT

 

PRESENTATION

  1. E. UKAEGBU Esq, or the Claimant.

INNOCENT EWA for the Defendant.

 

JUDGEMENT

  1. The claimant filed this Complaint on 12th Ma, 2015 with the accompanying frontloaded documents, claiming against the defendants as follows:
  2. The sum of Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51) being unremitted Pension Contribution of the Defendant’s employees by the Defendant for the years 2010, 2011 AND 2012.

 

  1. Interest on the said sum of Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51) at the rate of twenty one percent (2l%) per annum from 1st January, 2013 until judgment in this suit.

 

  1. Interest at the rate of ten percent (10%) per annum on the judgment sum and interest from the date of judgment until full compliance with the terms of the judgment.

 

  1. Claimant’s Case

 

  1. The Claimant in exercise of its statutory functions pursuant to the Pension Reform Act 2004 appointed Messers Henry Young and Company as Recovery Agents to recover non-remitted Pension contribution from the Defendant.

 

  1. In the course of carrying out its mandate, Messers Henry Young and Company held meetings with the Defendant and the Defendant supplied the necessary information regarding its employees, their salaries and Retirement Savings Accounts (RSAS) where available. The Claimant’s Recovery Agent was able to compute the Defendant’s unremitted pension contribution for its employees for 2010 — 2012 plus penalty which amounted to Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo ( N7,36 1,9 26.5 1).

 

  1. When the Defendant failed to comply with demand notices served on it by the Claimant’s Recovery Agent and the Claimant, the Claimant commenced this suit against the Defendant seeking the reliefs endorsed on the Complaint.

 

  1. The defendants were during the course of this trial represented by three separate and distinct legal offices none of whom, despite taking adjournment so to do, filed any defence process.  Namely J. Abubakar Esq, who filed a memorandum of appearance in 7th February 2017 and on the 5th May 2017 the defendant counsel was changed to A. I. Abaas Esq. and further changed to Ian Solomon Esq. on the 15th November 2017.

 

 

  1. At the trial, which commenced on the 16th March 2017, the claimant testified on his own behalf as CW1, adopted is written statement on oath; which was marked as C1, and proceeded to tender four (4) other documents which were marked C2-C5. Thereafter the matter was adjourned to 8th May for cross examination and Defence. The defendants were not in court and no reason was proffered for their absence, the natter was adjourned for definite cross examination to the 22d June, 13th July 19th September and on the 2nd November 2017 following the application of the claimant the defendants were foreclosed from cross examining CW1. The matter was then adjourned to 28th November 2017 for defence, once more the defendant were not in court with no excuse tendered to the court, the court, once more on application of the claimants,  foreclosed the defendant from putting in their defence and the matter was adjourned for filing of Final Written Addresses. The parties were accordingly directed to file their respective written addresses. The claimant’s final written address was dated and filed on 22nd January, 2018, while the defendants’ was dated and filed on 5th March, 2018. The claimant’s reply on points of law was filed on16th March, 2018.

 

  1. Tabulation of Claimant’s Documents ;

 

S/No. Name of Document Dated Dated Tendered Exhibit No Remarks
1. CW Witness Statement on Oath 12/5/2015 16th March 2017 C1  
2. Summary of Outstanding Pension Contributions and Interest undated 16th March 2017 C2 Certified
3. Claimant’s Letter to Messrs. Henry & Co. 5/3/2014 16th March 2017 C3 Certified
4. Messrs. Henry & Co. letter to the Defendant 18/3/2014 16th March 2017 C4 Certified
5. Claimant’s letter to the Defendant 28/4/2014 16th March 2017 C5 Certified

 

  1. On the             3rd May 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

 

  1. The CLAIMANT’S FINAL ADDRESS filed on 22nd January, 2018. Wherein the Claimant raised the sole ISSUE:

 

  1. Whether the Claimant has proved its case on the preponderance of evidence to be entitled to the reliefs sought in this suit.

 

  1. Learned Counsel to the claimant, submitted that it has been held by the Courts that civil cases are won upon preponderance of evidence. Dibiamaka v. Osakwe (1989) 3 NWLR (pt. 107) 101 at 113; Oilserv Ltd. v. L. A. I & Co. Nig. Ltd. (2008) 2 NWLR (pt. 1083); Udofin v. Mogaji (1978) 4 SC P. 91. He submitted that having produced and tendered Exhibit C2 as computation carried out from the information obtained from the Defendant, the Claimant discharged its burden arguing that Evidence, which is unchallenged, uncontradicted and in respect of which there is nothing showing that it is incredible should be admitted. Ogualaji v A.-G. Rivers State (1997) 6 NWLR (Pt.508) 209; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562.

 

  1. DEFENDANT’S F1NAL WRITTEN ADDRESS filed on 5th March, 2018. Wherein the Defendant raised the sole ISSUE for determination:

 

  1. Whether the Claimant has placed enough materials in evidence to enable this court grant all the reliefs sought.

 

  1. It is Defence Counsel’s contention that the Claimant’s claims are nebulous and lacks anchorage with evidence given on this suit as the claims are speculative and intended to lead this court to go fishing. That it is too dangerous for this court to speculate on evidence not before it as a court of law cannot speculate or conjecture. OGIJNYE V. TI-IE STATE (1999) 68 LRCN 699. OKONJI V. NJOKANMA (1999) 73 LRCN 3632; ONYIRIMBA V. STATE (2002) 11 NWLR (Pt. 777) 83: ACB Pie V. EMOSTRADE Ltd (2002) 1 NWLR (Pt. 770) 501.
  2. Furthermore, that where a document is speculative in content the court is entitled not to rely on it to make an award or order. OLALOMI INDUSTRIES LTD V. NDIC (2002) FWLR (Pt. 131) 1984. Counsel to the Defendants submitted that it is not enough to show that defendant is owing monthly contributions and that the monthly contributions must be established for the court to see that the monthly computed data culminates to the figures the claimant claims. This more so when what is computed by the claimant’s recovery agent Henry Young & Co. who is not directly before the court. KASIMU V NNPC (2008)3NWLR (PT 1075) 569 AT PAGE 586 PARA D-H, per Mary Odili, JCA (As She then was).

 

  1. Furthermore, that the court is not allowed to speculate on issues not before it. FARAJOYE V HASSAN (2007) ALL FWLR (Pt. 368 1070 at 1094. Paras A- C. Defence Counsel also submitted that the law is that the burden of proof lies on the party who will fail if no evidence at all were given on either side. Sections 132 & 133 (1) Evidence Act, 2011. LRONBAR VS. C.R.B.R.D. (2004) 2NWLR (PT.857) P 411 at 417, per Dennis O. Edozie J.C.A.; Agboola vs. U.B.A Plc. (2011)11 NWLR (Part 1258) 375 at 385 para3, per Mukhtar JSC.

 

  1. It is counsel’s submission that when a party pleads a document in support of his case, he is bound to produce it to substantiate his claim, and where he fails to so produce it, the law will presume that the evidence would be against him, hence he withheld it. ORJI V. PDP (2009) 14 NWLR (PT 1161) 310 at 407, Para. A-B, G, per Ogunbiyi. JCA. He further argued that the failure of the Defendant to prove or its refusal to testify cannot alleviate the primary burden on the claimants and that the only exception to this rule is only when asserted facts are admitted by the other party. HADYER TRADING MANUFACTURING LIMITED & ANOR v. TROPICAL COMMERCIAL BANK (2013) LPELR-20294(CA).

 

  1. Defence Counsel contended that exhibit C2 is computer generated document which did not comply with the provisions of the law at the time it was wrongly admitted. And that Sub section 4 of 84 of the Evidence Act provides for a certificate identifying and describing the computer generated document and the manner in which it was produced by giving such particulars of the device involved in the production of the document. KUBOR & ANOR V. D1CKSO1 & 2 ORS (2012) LPELR15364 (CA).

 

  1. To the defendants, assuming but not conceding that Messrs. Henry Young was commissioned to carry out a verification exercise and recover the non-remitted contributions from the defendant, contended that there is nothing, before this court to show that Messrs. Henry Young undertook the task in that there is no apparent communication from Henry Young to the Claimant in this regard. Again, there is nothing on record showing that the figures shown at exhibit C2 are a product of Messrs. Henry Young & Company. And that in the absence of that evidence the Court is urged to hold that the figures are cooked up figures. Keyamo v L.S.H.A (2002) NWLR (pt. 799) 439 at 6 5 paras. D-E.

 

  1. Defendant Counsel also argued that none of the certified true copies tendered in evidence met the requirement of the law for admissibility of a CTC and that where a CTC fails to meet the requirement for admissibility the law is that such a document should not be admitted; and if it has been wrongly admitted, the law is that the court has a duty to expunge same from its record or not place reliance on same. EMMANUEL v. UMANA & ORS (2016) LPELR-40037(SC).

 

  1. Maintaining, that in underscoring the need to satisfy any condition precedent to the validity of any act done subsequent thereto, the Supreme Court in ATOLAGBE V. AWUNI (1997) 9 NWLR (PT. 522) 536 specifically at 562 PARA F, Per Mohammed, JSC held that:
  2. “A condition is a provision which makes the existence of a right dependent on the happening of an event; the right is their conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is in the future the uncertain. A “condition precedent” is a condition which delays the vesting of a right until the happening of an event”. See also Orakul Resources Ltd ‘c N.C.C. (2007) 16 NWLR (Pt. 1060) 270.”

Furthermore, that where a condition for the doing of an act has not been complied with no act subsequent thereto can be regarded as valid. ORAKUL RESOURCES LTD V. N.C.C (2007) 16 NWLR (PT. 1060) 270 AT 302, per Odili JCA (as she then was).

 

  1. Counsel submitted that: ‘The process of certification of public document entails
  2. a)A demand is made by way of an application to the public officer having custody of the public document
  3. b)Necessary legal fees being made or paid upon the public document being, assessed.
  4. c)The public officer produces the document.
  5. d)The public officer issues certified True Copies of those documents.
  6. e)The public officer subscribes his name, title and signature on the document.
  7. f)The public officer will date the document and deliver same to the applicant. Ekpo v. Ukaonu (2013’) LPELR-2253 (CA).” Per Husaini, J.C.A. (Pp. 41-42 Paras. E-F) B.

 

  1. He submitted that the whole essence of the Court’s insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity, vis-a-vis, the original copies, to third parties. G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC) 42, C-E; Araka v. Egbue (2003) 33 WRN 7; Minister of Lands, Western Nigeria ‘v. Azikiwe (1969) 1 All NLR 49; Nzekwu v Nzekwu (1989) 2 NWLR (pt. 104) 373, Tabik Investment Ltd and Anor v Guarantee Trust Bank Plc. (2011) 6 MJSC (pt. 1) 1,21; Dagaci of Dere v. Dagaci of Ebwa (2006) 30 WRN 1; Iteogii v. LPDC (2009) 17 NWLJR (pt. 1171) 614, 634, Per NWEZE, J.S.C. (P. 51, Paras. A-E).

 

  1. It is Counsel’s submission that Interest may be awarded in a case in two distinct circumstances namely (a) as of right and (b) where there is a Power conferred by statute to do so. That in the instant case, the Claimant has failed to specify the law under which her claim of 21% is based; and not only this, that the Claimant did not plead any particulars for the interest claimed. MRS ENO UMO v. MRS CECILIA UDONWA (2012) LPELR-7857(CA).

 

  1. He maintained that where interest is claimed under any statute or Rule of Court, that fact must be set out in the claim with relevant particulars, especially in contractual interest claims. Himma Merchants vs. Aliyu (199.4) 5 NWLR (347) 667, per TINE TUR, J.C.A. (P. 23, Paras. B-E); STERLING BANK PLC v. FALOLA (2014) LPELR-22529(CA); ITB PLC v. KHC LTD (2006)3 NWLR PART 963 PAGE 443.

 

  1. It is Counsel’s contention that the Claimant did not furnish this Court with pleadings regarding the particulars claimed and that the Claimant did not also strictly prove the interest is payable be it by express agreement or by business or trade custom or a specific statutory provision; whereas, Interest is a matter of pleading and evidence. Edilco Nig. Ltd vs. UBA Plc. (2000) FWLR (Pt.21) 729.” Per TINE TUR, J.C.A. (P. 21, Paras. D-E).

 

  1. The CLAIMANT’S REPLY ON POINTSOF1.AW filed on 16th March, 2018.

 

  1. Learned Counsel to the Claimant, submitted that there is no evidence to be put on the imaginary scale on the part of the Defendant and to that extent, the entire weight of evidence in this case weighs in favor of the Claimant. Maito & Ors Ogunbodede (2013) LPELR 20892 (CA).

 

  1. Claimant Counsel pointed out that the Defendant in paragraphs 1.0 (sic) to 3.4 of its Final Address argued that Exhibit C2 is nebulous and speculative and that the listed employees are not shown to be employees of the Defendant. In response, he submitted that Exhibit C1, the Witness Statement on Oath of CW1 clearly establishes the link between the listed employees and the Defendant and the testimony of the Witness has not been challenged or controverted in any way. That this Honorable Court is bound to accept the evidence of CW1 that the listed employees on Exhibit C2 are the employees of the Defendant. Lawal v. UTC Nig. Plc. 13 NWLR pt. 943 601; Odutola v. Mabogunje (2013) 7 NWLR pt. 1384 522. He argued that the authority Kasimu v. NNPC (supra) cited by the Defendant in paragraph 3.7 of his Address is inapplicable to the facts of this case as the Claimant has placed sufficient facts before the Honorable Court and the Court will by no means go outside what is before it in deciding this suit.

 

  1. It is Claimant Counsel’s submission that the burden of proof is not static, having adduced the evidence that the Defendant failed to remit pension contributions in Exhibit C2, the burden shifts to the Defendant to establish that it remitted the pension contribution as required or that the listed persons are not its employees or that the Claimant’s computation is wrong. Agbakoba v. INEC (2008) 18 NWLR pt. 1119 489; Woluchem v. Gudi (1981) 5 SC 291.

 

  1. Counsel pointed out that in paragraphs 3.16 to 3.19 of its Witness Address, the Defendant accused the Claimant of withholding evidence and that the law presumes that evidence withheld will be against the party who withholds same. He submitted that it is not enough to accuse a party of withholding evidence and attempting to invoke Section 167 (d) of the Evidence Act 2011. That the Defendant has not mentioned the evidence withheld by the Claimant and cannot be availed by Section 167 (d) of the Evidence Act.

 

  1. Responding to the arguments of the Defendant in paragraphs 3.25 — 3.27, Claimant Counsel submitted that the arguments are of no moment in this suit as the Defendant cannot query the commissioning of the Claimant’s Recovery Agent not being a party to any contract between them. Ogundare v. Ogunlowo (1997) 6 NWLR pt. 509 360. Claimant Counsel further argued that the case of Tabik Investment Ltd. v. Guaranty Trust Bank Plc. (2011) 2011 LPELR 3131 (SC), also reposted in (2011) ALL FWLR pt. 602 1592 relied on by the Defendant does not support the Defendant’s argument.

 

Court’s Decision

 

  1. 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 the Claimant is entitled to the reliefs sought in this suit.

 

  1. Before I address the merits of this case, it is necessary to clarify some salient points, considering, as stated earlier that the Defendants did not file a Statement of Defence in this action or call any evidence. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the Defendant had ample the opportunity to defend this action but chose not to, in this regard I agree with the submission of the Claimants that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See the (unreported) case of NICN/LA/25/2011 MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. delivered 6th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case place before it by the claimant.  See IFETA Vs. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] Vol. 6 MJSC, CONSOLIDATED RES LTD. Vs. ABOFAR VENTURES NIG. [2007] 6NWLR (Pt. 1030) 221 and OKOLIE Vs. MARINHO [2006] 15 NWLR (Pt. 1002) 316.
  2. But this, however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the Defendants case or on the fact that there is no Defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the Claimant the burden or proof placed on him. See SECTION 131(1) and (2) Evidence act 2011, OGUNYADE Vs. OSHUNKEYE [2007] 15 NWLR (Pt. 1057). The Claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO [2003]8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the Claimant to prove his case in accordance with the minimum evidence rule. In (unreported) NICN/LA/275/2012A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS delivered 19th December 2012 this court held as follows; –
  3. “Order 15 of the National Industrial Court Rules 2017 (using the present Rules) enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 15 therefore recognizes the right of a Defendant not to defend an action filed against him or her. And by order 38 rule 2 where the Defendant is absent at the trial and no good reason is shown for the absence, the Claimant may prove his/ her case as far as the burden of proof lies on him upon her. These Rules, of course accord with the minima evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE supra at 247”

 

  1. Mindful of this position of law I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant
  2. The rule of thumb in evaluating the Claimants evidence is as follows; – “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour” Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) LPELR-2153(SC) (P. 9, paras. A-B).
  3. The Defendant raised question as to the admissibility and regularity of the claimants exhibits /evidence which I shall address while resolving the issue for determination; – whether the Claimant is entitled to the reliefs sought in this suit.
  4. The Claimants’ reliefs are as follows; –
  5. The sum of Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51) being unremitted Pension Contribution of the Defendant’s employees by the Defendant for the years 2010, 2011 AND 2012.

 

  1. Interest on the said sum of Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51) at the rate of twenty one percent (2l%) per annum from 1st January, 2013 until judgment in this suit.

 

  1. Interest at the rate of ten percent (10%) per annum on the judgment sum and interest from the date of judgment until full compliance with the terms of the judgment.

 

  1. This suit was filed on 12th May 2015 after the PRA 2014 came into effect on 1st July 2014. In reliefs (a)  and (b) the claimant is seeking the payment for the defendant the unremitted pension contributions of the Defendant’s employees for the years 2010-2012 I,e, Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51) being aggregate outstanding unremitted Pension for that period and interest penalty incurred by the defendant from 1st January, 2013.
  2. The cause of action in this case. I find, 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. 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. Mindful of these provisions, I shall rely on the PRA 2014 in deciding this suit. I am aware 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. See OBUIWEBI V. CENTRAL BANK OF NIGERIA Unreported Suit No. SC/226/2006. From all indications, section 117 of the PRA 2014 to an extent creates an exception to this rule.

 

  1. 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 3 of the statement of facts (and paragraph 4 of the statement on oath of CW), the Claimant simply stated that the Defendant is an employer of labour with over five persons in its employ. 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. However, 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.)
  2. The Defendants had argued in their final written address and I take heed that the Final Written Address is not evidence; See ALIYU & ORS v. INTERCONTINENTAL BANK PLC & ANOR (2013) LPELR-20716(CA), that the Claimant had not shown the Court the source of its computation and that there was no clear nexus between Exhibit C2 and the Defendants, the Claimants on their end had contended that having produced and tendered Exhibit C2 as computation carried out from the information obtained from the Defendant, and that that Exhibit C1, the Witness Statement on Oath of CW1 clearly establishes the link between the listed employees and the Defendant and the testimony of the Witness has not been challenged or controverted in any way the Honorable Court is bound to accept the evidence of CW1 that the listed employees on Exhibit C2 are the employees of the Defendant. To the Claimant, it had discharged its burden, arguing that the burden of proof is not static, having adduced the evidence that the Defendant failed to remit pension contributions in Exhibit C2, the burden shifts to the Defendant to establish that it remitted the pension contribution as required or that the listed persons are not its employees or that the Claimant’s computation is wrong.

 

  1. The argument of the Claimant I find does not accord with the minimum evidentiary rule. The Claimant had averred that ‘in the course of carrying out its mandate, Messers. Henry Young and Company held meetings with the Defendant and the Defendant supplied the necessary information regarding its employees, their salaries and Retirement Savings Accounts (RSA5) where available’ yet presented the court with no evidence of that meeting, its outcome not the nominal roll of the Defendants, even the said Exhibit C2, an undated and unsigned computer printout (I would get back to this point later on), was not tendered with any covering letter or introductory document to enable the court put it into perspective.
  2. Without knowing, or presenting to the court the exact number of employees that the Defendant has in its establishment, how did the claimant come by the Seven Million, Three Hundred and Sixty Thousand, Nine Hundred and Twenty Six Naira, Fifty One Kobo (N7,361,926.51)  it claims as per relief (a)? Where did this latter sum come from, I find is not before the court?

 

  1. 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 covers more than just the aggregate of basic salary, housing allowance and transport allowance where the total emolument as defined in the contract of employment is higher. In none of the claimants core exhibits C2-C5 is their anywhere where this court is shown 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.

 

  1. This court in the case of SUIT NO. NICN/LA/424/2014 NATIONAL PENSION COMMISSION VS.TRADEWAYS EXPRESS INTERNATIONAL LIMITED delivered on the 4th July 2017  held that the claim for remittance of outstanding pension 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):
  2. …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.
  3. That is not the only grouse raised by the defendant over the claimants exhibits, the Defendants argued that exhibit C2 is computer generated document which did not comply with the provisions of the law at the time it was wrongly admitted. And that Sub section 4 of 84 of the Evidence Act provides for a certificate identifying and describing the computer generated document.

 

  1. First and foremost, I find that Exhibit C2 is in fact a Computer Printout, the Learned Author Alaba Omolaye Ajileye in his book A Guide to Admissibility of Electronic Evidence LawLords Publication © 2016 Edition Abuja, Nigeria,  Had this to say about Computer printouts in treating the complexity and nature of computer stored information relied on Gahgtan, A.M. (1999) Electronic Evidence. P. 152 (Scarborough: Carswell). Quoted in Makulilo, A.B. (2007). Admissibility of computer evidence in Tanzania. Retrieved from: http://repository.out.ac.tz/321/1/Admissibility of Computer Evidence in Tanzania.pdf.

“When information is first entered into computer system, it is commonly stored in the system’s memory (for instance, ready/write or RAM memory on a PC, which generally has the quickest time). It is then usually quickly copied to a semi-permanent storage device such as a hard disk so that the system’s core memory can be freed up of all other tasks. At some point it may also be copied or moved to a magnetic tape or optical disk storage media for a longer-term storage. The information, as stored in any of the foregoing digital storage mediums, is not perceived by humans and must be printed out I hard form or displayed on a computer monitor. Courts have not always been consistent as to when a record stops being “original” and becomes “a copy”

 

  1. Under the Evidence Act there are clear provisions pointing to “the fact that a computer printout, for all practical purposes, can be treated as an original document. First, section 86 (4) of the Evidence Act 2011 provides one of the rules for determining primary evidence (also known as the “original” evidence). It states that: “where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photograph, computer or other electronic or mechanic process, each shall be primary evidence of the contents of the rest: but where they are all copies of a common original, why shall not be the primary evidence of the contents of the original.” (Italics mine). It is noteworthy that computer and other electronic processes have now been recognized as processes which documents can be made uniformly”.
  2. Also, the wording of section 84 of the Evidence Act, 2011 clearly assumes that “the statement contained in a document produced by a computer” referred to therein is one that is human readable. It may, therefore, be further argued, that for all practical purposes, if such a document is produced directly from the computer, it must be intended by the Legislature to be treated as primary evidence.

 

  1. Having said that the learned author continued in P 160 that “Section 84 of the Evidence Act, 2011 should not be treated or interpreted as a provision that has been enacted to abrogate other rules of evidence applicable to admissibility of documentary evidence under the Evidence Act, 2011. A public document is still required to be duly certified by a public officer having custody of the document under section 104. If the public document falls into the category of “a statement contained in a document produced by a computer”, it will further require that it satisfies the conditions stated under section 84 (2) and (4) to be admissible.”

 

  1. Now the Evidence Act the Learned Author continues at page 167, that section 84 of the Evidence Act, 2011 prescribes conditions that must be fulfilled to render electronically generated evidence admissible. Then, a distinction must be made between cases where evidence is inadmissible in any event in law and cases where evidence is admissible under certain conditions. In cases where the evidence is in no circumstance admissible in law, the evidence cannot be acted upon even if parties admit it by consent or without objection and an appellate court will entertain complaints in the admissibility of such evidence by the lower court. In respect of cases where evidence is admissible on fulfilment of certain conditions, if the evidence was admitted without objection or by consent of parties the trial court will not entertain any complaints on the admissibility of such evidence. In other words, in cases where the evidence complained of is not by law inadmissible in any event, a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal.

 

  1. These broad principles of law would appear to me to be applicable to electronically generated evidence. If such electronically generated evidence is not in the class of evidence that is absolutely inadmissible, it may be admitted without objection. In Eweka & Ors v. Rawson(2000) 10 NWLR (Pt. 722) 723 (CA)  the evidence involved was a tape recording which the trial court admitted without objection. It was clear that the trial court had placed reliance on the tape recording in coming to its decision on the dispute over succession whether or not the 1st respondent was indeed a son of the late Enogie and if so whether or not he was acknowledged as such by recording as such by the late Enogie. To prove those facts he tendered at the trial a tape recording in which the late man acknowledging him as the first son, which tape was admitted without opposition. On appeal the Appellants contended that the tape was inadmissible, but the Court of Appeal easily dismissed the argument, although the court refrained from a detailed discussion of the matter because there was no appeal on that particular point.

 

  1. The pronouncements of Karibi-Whyte, J.S.C. in Anyaebosi v R. T. Briscoe (1987) 3NWLR (Pt/ 50) 108 clearly answer this question. His Lordship elaborately stated thus:

For the purposes of admissibility, there is the category of evidence which is absolutely inadmissible on the grounds of statutory exclusionary provisions. This category of evidence remains legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or on appeal even where admitted by consent. See Ikenye v. Ofunne (1985) 2 NWLR (pt.5) 1; Onwoyin v. Omotosho (1961) 1 All NLR. 304, 308; Alashe v Ilu (1968) 1 All NLR 390, 397; Yashin v. Barclays Bank D.C.O. (1968) 1 All NLR 171, 177. There is the other category of inadmissible evidence rendered admissible on the fulfilment of certain conditions. This category of evidence are admissible if admitted without objection by the other party and where the admission of the evidence did not affect the result of the case) See Okeke v Obidife (1965) NMLR 113; Alade v Olukade (1976) 6 S.C. 183. In the last mentioned category, the other party is not entitled thereafter to complain where such evidence was admitted at the trial without objection. This principle of English Common law was stated in the English case of Gilbert v Endean, (1878) 9 Ch. B. 259 and applied in this Court in Alade v. Olukade (1976) 6 SC. 183. It is not applied to S96 of the Evidence Act. In Gilbert v Endean (supra) Cotton L.J. said, “But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is led does not object, but treats it as admissible then before the Court of Appeal, in any judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.” In adopting this view Idigbe J.S.C. in Alade v Olukade (supra) relying on the unreported decision of this Court in Cavatotti Govianni v Bonaso Luigi SC.402/67 of 31/10/69, and the West African Court of Appeal in case of Akunne v Ekwuno & Ors (1952) 14 WACA 59 on the non-compliance with section 96(1)(b) of the Evidence Act, Cap. 62, and where evidence was admitted without objection said, “….. in those cases where the evidence complained of is not, by law inadmissible in any event a party, may by his own act at the trial be precluded from objecting to such evidence on appeal … “ The show was stated lucidly in Yashin v Barclays Bank D.C.A. (supra) at p. 179. It is important to state that a computerized account which Exhibit P4 was described to be, does not fall into the category of evidence absolutely inadmissible by law. In my opinion it falls within the category of evidence admissible on the fulfilment of the conditions prescribed in section 96(1) and (2) of the Evidence Act, Cap. 62.

  1. What all that means is that as regard Exhibit C2, it is in fact an original document, secondly being computer generated such as the options raised in respect of the claimants /exhibits C3-C5, the Defendant having not objected to their admissibility during trial and seeing as the requirement for  a certificate of compliance is a condition upon which the documents can be tendered and not a statutory requirement such as certification of public documents, by ANYAEBOSI V R. T. BRISCOE SUPRA and to above listed cases, the  fact that the Defendant did not object to their admissibility neither in open Court, considering the example time the court gave for them to enter a defence, nor when presented with the frontloaded copies as is specified under Order 3 rule 11(2) of the NICN Civil Procedure Rules2017 the defendants “are not at liberty to complain of the documents admissibility”

 

  1. The Defendant also raised the question of Public documents requiring certification, I find that all the documents barring exhibit C1 were all duly certified. In STERLING GEOTECHNICALL (N9G) LTD. Vs. GALAMAS INTERNATIONAL LTD. (2010) 4 NWLR (Pt. 1184) 361 at 370 para F-G Bulkachuwa JCA held that A document is said to have been certified only after it has been dated and subscribed by the public officer who has custody of the document. In subscribing to it the public officer must state his name and official title and stamp same. Section 111 requires that the certification be done at the foot of the page of a copy of the documents that it is a true copy of such a document or part thereof, as the case may be. Such a certificate must be dated and subscribed by the public officer in custody of the document, with his name, official title, with a seal.  I find that the documents C2-C5 were all duly certified in line with the provision of the Evidence Act. Having said that it is pertinent to point out that it is not all documents emanating from a government agency that are public documents, what we have here are documents, correspondence by one public officer to a corporate organization(s) and replies therefrom being tendered by the government agency as documents they produced and documents they received in reply. Demanding that such documents be certified is akin to demanding that a government employee certify his employment letter See GOVERNOR OF EKITI STATE Vs. OJO 2006] 17 NWLR (Pt. 1007) 95 at 129 paras B-D this is not the law.

 

  1. I had undertaken to return to Exhibit C2, in addition to the above I find that exhibit C2, a print out with the heading “Summary of Outstanding Pension Contributions and Interest” stating the principal and penalty amount due, Pension Fund Administrator names and Personal Identification Number (PIN)s of 32 listed named employees of the Defendant for 2010 to 2012 as well as the same details in respect of 70 named and listed employees of the defendants for 2012, is neither dated with respected to when it was made nor signed.  This court had held in SUIT NO NICN/OS//03/2012 HON. BELLO & ORS. Vs. OSUN STATE GOVERNMENT & ORS  MAY 27TH  2014 rejected the argument that certification cured the defect of an unsigned document and held that an unsigned document that was certified was unreliable. In the instant case in addition to not being signed and having no reference this document bereft of date I find cannot be relied upon by this court and for that purpose in addition to attaching no weight to it Exhibit c2 is discountenanced for the purposes of this judgment.
  2. In the instant case, no such proof has been put before the Court; as such the claim for  N7,361,926.51, having not been proved, fails and is hereby dismissed.

 

  1. Relief (b) is for penalty interest. This court has in the case of SUIT NO: NICN/ABJ/128/2016 ENGR. TONY OLUMIDE JOHNSON Vs. COSTAIN (WEST AFRICA) PLC & 2 ORS delivered on the 10th May 2018 held that the 2014 Act has created offences, sanctions and penalties, in fact almost all parts of the act provide penalties for non compliance with the Act ……but this section as others of their ilk provided various fines and terms imprisonment but they all require liability upon conviction.

 

  1. Also the recent unreported Court of APPEAL Case of NATIONAL OIL SPILL DETECTION & RESPONSE AGENCY (NOSDRA) VS. EXXONMOBIL delivered on the 20th April 2018 the Court of Appeal struck down the powers of Regulatory Agencies to impose fines without recourse to the courts. The Court went on that section laws that empower regulatory agencies to impose fines on organizations it regulates, was in clear violation of the 1999 Constitution. In that the imposition of penalties, without due recourse to the courts, amounted to the regulatory body having  “acted in a judicial capacity which they were not imbued with” under the 1999 Constitution thereby constituted itself into a court with judicial or quasi-judicial powers, when infact the law creating it did not donate such jurisdiction to it. By the imposition of the fine, the federal agency acted in a judicial capacity which they were not imbued with under the constitution, and by so doing, it became a judge in its own cause, the complainant as well as the judge.

 

  1. The court continued, that penalties or fines were imposed as punishment for an offence or violation of the law, adding that the power, as well as competence to come to that finding, belongs to the courts since Section 6(6) of the Constitution in Section vests judicial powers on the courts, “sentence can safely be pronounced after a conviction for an offence has been made by a court of competent jurisdiction.”
  2. The Appellate court referred to the judgment delivered by Justice Abba Aji JCA  in ABDULLAHI VS. KANO STATE (2015) LPELR – 25928 (CA) where he defined fine as a payment of money ordered by a court from a person who has been found guilty of violating law and that a fine it may be specified as the punishment for an offender, usually a minor offence, but could also be specified and used as an option to imprisonment for major crimes or a complement to other punishments specified for such crimes.  For this reason relief (b) cannot be granted seeing as the claimant have not presented the court with any notification of any incidental conviction. This relief is also dismissed.
  3. Relief (c) prays for post-judgment interest on the judgment debt. Since the judgment debt failed, relief (c) cannot be granted; it fails and so is equally dismissed.

 

  1. On the whole, and for the avoidance of doubt, the claimant’s case fails in its totality. It is accordingly dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

…………………..…………………

HON. JUSTICE E. N. AGBAKOBA

PRESIDONG JUDGE, ABUJA JUDICIAL DIVISION

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