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National Industrial Court

MR. SUNMONU ATANDA VS NEGERIAN CONCRETE INDUSTRIES

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  THURSDAY 27TH SEPTEMBER 2018

SUIT NO. NICN/LA/98/2017

BETWEEN:

  1. SUNMONU ATANDA

                                                                       

CLAIMANT

 

AND

NEGERIAN CONCRETE INDUSTRIES LIMITED

                                   

DEFENDANT

 

Representation:

Taiwo Abolarin appears for the Claimant

Mobolaji Anjolaiye appears for the Defendant

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 2nd March 2017, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the 27th February 2017 and copies of all the documents to be relied on  by the Claimant at the trial of the suit. The Claimant claims the following reliefs against the Defendant:

  1. The sum of N1, 068,889.22 (One Million, Sixty-Eight Thousand, Eight Hundred and Eighty Nine Naira, Twenty Two Kobo) being gratuity and leave allowances due to Mr Sunmonu Atanda.
  2. General damages in the sum of N10, 000,000.00 (Ten Million Naira) only.
  3. N1, 000,000 (One Million Naira) only being the cost of litigating this suit.
  4. Interest at the rate of 10% per annum on all sums in (1) – (3) above until judgment is given in this suit and thereafter at the rate of 21%  per annum till final liquidation.
  5. AN ORDER of this Court mandating the Nigerian Concrete Industries Limited to remit all unremitted pension contributions due to Mr Sunmonu Atanda’s to his Trust Fund Pension Account from January 2012 – April 2016.
  6. AN ORDER of this Court mandating the Nigerian Concrete Industries Limited to give account of all sums deducted from Sunmonu Atanda’s salaries under the extinct Pension and Life Assurance Scheme as well as the Nigeria Social Insurance Trust Fund.
  7. AN ORDER mandating the Nigerian Concrete Industries Limited to remit to Sunmonu Atanda’s Trust Fund Pension Account, all sums deducted from his salaries under the extinct Pension and Life Assurance Scheme as well as the Nigeria Social Insurance Trust Fund.

In response to the claim, the Defendant entered appearance dated 17th March 2017. The Defendant filed its Statement of Defence on 17th March 2017 together with a List of Defendant’s Witnesses and Defendant’s Witness Statement on Oath deposed to by Joseph Adeoya Ojo, List of Documents and copies of the documents to be relied on at the trial.

This Court entered Summary Judgment in favour of the Claimant in the sum of N1,018,889.22(One Million Eighteen Thousand Eight Hundrd and Eighty Nine Naira Twenty Two Kobo); and ordered the Claimant to proceed to prove the remaining part of his Claims.  On 14th March 2018, Court granted Claimant leave to amend his Witness Written Statement on Oath.  On 8th May 2018, Claimant’s amended Witness Written Statement on Oath dated 20th April was ordered to be deemed as properly filed and served.

Trial commenced in the suit on 8th May 2018 and ended on same day.  The Claimant gave evidence for himself as CW1, by adopting his Amended Witness Statement on Oath deposed to on 20th April 2018.  The Claimant was thereafter cross-examined.  During the examination in chief, the Claimant tendered in evidence the following documents:

  1. Exhibit C1-  Claimant’s Appointment Letter (Conversion to Staff) dated 3st August 1988;
  2. Exhibit C2-  Claimant’s Retirement letter dated 11th January 2016;
  3. Exhibit C3-  Defendant’s letter dated 1st March 2016;
  4. Exhibit C4-  Defendant’s letter dated 22nd April 2016 with Claimant’s computed benefits attached;
  5. Exhibit C5-  Handbook of Akin George Life & Pensions Consultants;
  6. Exhibit C6-  Copies of Claimant’s payslips;
  7. Exhibit C7-  Claimant’s Solicitor’s Letter dated 11th October 2016;
  8. Exhibit C8-  Defendant’s letter dated 1st November 2016;
  9. Exhibit C9 – Claimant’s Solicitor’s letter dated 13th December 2016.
  10. Exhibit C10 – Cash voucher dated 22/12/16.
  11. Exhibit C11 – Cheque paid to Claimant’s Lawyer dated 26/9/17.
  12. Exhibit C12 – Cheque paid to Claimant’s Lawyer dated 15/5/17.

The Defendant’s Witness, Joseph Adeoya Ojo gave evidence as DW1 by adopting his Witness Statement on Oath deposed to on 22nd March 2017 and he was cross-examined accordingly. The Defendant tendered in evidence the following document:

  1. Exhibit D1- Computed deductions from the Claimant’s salaries.
  2. Exhibit D2- Copy of Claimant’s Trustfund Plc (Pension) Statement of Account

At the end of trial, the Court ordered the parties to file their respective final written addresses.   The Final Written Addresses were adopted on 19th July 2018 and the Court adjourned for judgment.

CASE OF THE CLAIMANT

The case of the Claimant is that he was employed by the Defendant on the 4th January, 1978 and became a staff on the 3rd August, 1988. That, 38 years after active service, due to old age, he tendered his resignation letter on 11th January, 2016 but which took effect from 11th April, 2016. The Defendant acknowledged the receipt of the letter of retirement from service with a letter dated 1st March, 2016. The Defendant by a letter dated 22nd April, 2016, computed all the claimant’s entitlement to be N1,068,889.22 (One Million Sixty Eight Thousand, Eight Hundred and Eighty Nine Naira, Twenty Two Kobo. It is Claimant’s case that in 1988, the Defendant enrolled its entire staff in a Pension Fund and Life Assurance Scheme prepared by Akin George Life & Pensions Consultants and the handbook handed to him. In furtherance of the above, the Defendant deducted certain sums of money monthly from his Salary. Again, in January 2012, the Defendant requested that all staff nominate and enrol with Pension Fund Administrators of their choice. The Claimant enrolled with Trust Fund Pension Plc. as his Pension Manager, and thereafter, the Defendant deducted an average of N1,216.00 (One Thousand, Two Hundred and Sixteen Naira Only) Monthly as his pension fund contribution till his retirement date. The Claimant states that since April 2016 when the Defendant handed him letter containing computation of his entitlements, he has not been paid a penny by the Defendant. The Claimant then proceeded to his pension Fund Administrator to lay claims to funds in his pension Account. Upon a visit to Trust Fund Pension Plc. by the Claimant, the Claimant Discovered that only N27,251.00 (Twenty Seven Thousand Two Hundred and Fifty One Naira Only) was remitted to his pension account.  The Pension Fund Administrator informed the Claimant that he could not lay claim to the funds in his pension until the Defendant remitted all outstanding contributions.  The Claimant instructed his Solicitor, Mrs. Abibat Bankole-Apena, of Afe Babalola & Co. to write an appeal letter to the Defendant for the payment of his entitlement and as well as remittance of all outstanding pending contributions. In response to the Claimant’s Solicitor Letter, the Defendant in a letter dated 1st November, 2016 admitted non remittance of the Claimant’s pension contributions and promised to pay the Claimant his entitlement by the end of November, 2016. The Defendant further stated in that letter that the Pension and Life Assurance Scheme prepared by the office of Akin George which was in operation for years had long been stopped. The Claimant states that the Defendant failed to give any account of all the sums deducted from the salaries of Claimant under the scheme for the decades for which the scheme was in use. When November 2016 passed by and the Defendant refused to pay a dime to the Claimant as promised, the Claimant’s Solicitor wrote another letter to the Defendant demanding the payment of the sum as well as remittance of unpaid contributions on or before 23rd December, 2016. The Claimant states that the Defendant has, notwithstanding all pleas and correspondences refused to pay his entitlements and failed to remit all the outstanding pension deductions to his Pension Fund account. During cross examination, Claimant stated that he knows Defence Witness.  That DW worked as Defendant’s Assistant Accountant and is currently Manager.  He stated that DW knows about his case.  Claimant confirmed receipt of N50, 000.00 on 22/12/2016; and being paid the sums stated in exhibit C11 and C12.  He stated that he wants the balance of his money.

CASE OF THE DEFENDANT

It is the case of the Defendant that the Claimant submitted his resignation letter dated the 11th January, 2016 but same took effect on the 30th April, 2016. That the Defendant enrolled its staff in the Pension Fund and Life Assurance Scheme in the year 1983 and same was discontinued in the year 1993. The Defendant enrolled with Trust Fund Pensions Plc. in January of 2010.   That the sum of N1,216.00 (One Thousand Two Hundred and Sixteen Naira) was deducted from the Claimant’s Salary only from 2014 until his retirement.  That the sum of N50,000.00 (Fifty Thousand Naira) was paid to the Claimant on the 22nd December, 2016 as part of his entitlements. The Defendant’s letter of the 1st November informed the Claimant of the inability of the Defendant to pay due to unavailability of funds and no promise was made to pay the Claimant his entitlement by the end of November, 2016. The Defendant also informed the Claimant through the letter dated the 1st November, 2016 that he will be paid as funds are available. Defendant states that the Pension Fund and Life Assurance Scheme ended in 1993 and the account for the sums deducted from the Claimant’s salaries have been made. The Defendant admits the sum of Nl,018,889.22 (One Million, Eighteen Thousand, Eight Hundred and Eighty Nine Naira, Twenty Two Kobo.) out of the sum claimed by the Claimant being the balance of the accumulated leave allowances and gratuity due to the Claimant.  The Defendant denies liability for the claims contained in Paragraph 21 (2), (3) and (4) of the Statement of Facts.   The Defendant states that all unremitted contributions due to the Claimant have been calculated and the sum of N88,530.29 (Eighty Eight Thousand, Five Hundred and Thirty Naira Twenty Nine Kobo) will be paid to him.  The Defendant states that it is not liable to remit to the Claimant, the deductions from the Claimant’s salaries that have been remitted under the defunct Pension Fund and Life Assurance Scheme.  During cross examination, DW stated that Defendant enrolled their workers in 1976 and did not enrol Claimant because it was a voluntary scheme.  Defendant stated that exhibit D1 was made after this suit had commenced from their records.

SUBMISSION ON BEHALF OF THE DEFENDANT

The Defendant in its Final Written Address raised the following issues for determination:

  • Whether the Claimant’s reliefs (2) & (3) as endorsed on the Statement of Facts dated 27th February, 2017 do not constitute double compensation and therefore not allowable in law.

Defendant submits that Claimant’s claim to Nl0, 000,000.00 as general damages is not only outrageous, but untenable in law. It referred to the case of Nicon Hotels Ltd v. NDC Ltd (2007) 13 NWLR (Pt. 1051) 237 @ 269-270, where the Court of Appeal explained the nature of General Damages:

General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss which flows naturally from the Defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgement of a reasonable man in the circumstance of the case.

 

Defendant questions whether it is equitable for the Claimant to receive compensation for the same injury by way of interest on one hand and damages on another hand. Defendant again referred to Nicon Hotels Ltd v. N.D.C. Ltd (supra) @ 269, Paras A-C, that:

The Courts are however always on the side of caution and usually scrutinize a plaintiffs claim for general damages where there is also a claim for special damages in order to avoid double compensation. By applying the rule of double compensation, the court ensures that if a plaintiff recovers in full under special damages for an injury, he will not be entitled to recover under general damages for the same injury.

Defendant submits that in so far as a claim in interest on relief has already been made, some of which has been paid, and also for the fact that the claim of interest is contemplated within the scope of relief 5, it will amount to double compensation for the Claimant to seek general damages.

On the issue of cost of litigation, Defendant submits that the award of cost involves a judicial discretion which must be exercised on fixed principles that is according to the rule of reason and justice and not according to private opinion – Haco Ltd. V. S.M. Daps Brown (1973) 4 SC 107.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant in his Final Written Address raised the following issue for determination:

  1. Whether the Claimant has proved his case and is deserving of the judgment of this Honourable Court?
  2. Whether the Claimant is entitled to damages for failure of the Defendant to pay his entitlements when due?
  3. Whether the Claimant is entitled to cost of litigation resulting from failure of the Defendant to pay his entitlements when due?
  4. Whether the Defendant is obligated to remit the Claimant’s pension contribution with his Pension Administrator as well as the Nigeria Social Insurance Trust Fund and whether failure to remit same is punishable?
  5. Whether the Defendant can be compelled by this Court to pay unremitted funds to Claimants pension administrators as well as penalty for late payment.

Issue 1 – Whether the Claimant has proved his case and is deserving of the judgment of this Honourable Court?

The Claimant submits that he has proved his case and is deserving of the Judgment of this Honourable Court in his favour. He referred to Section 11 (5), (6) and (7) of the Pensions Reform Act 2004 Cap P4 LFN 2004 which states that it is the duty of the employee to remit pension deductions and the penalty for non-compliance.

Claimant further submits that although the Defendant tendered Exhibit D1 which is an undated and unsigned paper and pencil projected deductions, that the said Exhibit be rejected by this Honourable court as it offends the rule of evidence that evidence manufactured by a party in the course of an action or in anticipation of same is inadmissible.  He referred the Court to Section 83(3) & (4) Evidence Act. 2011. Claimant submits that the Defendant’s sole witness, under cross examination stated expressly that the ‘Defendant does not have records’ and that Exhibit Dl was made for the purpose of this proceedings. Claimant also argued, referring to D1, that undated and unsigned document is worthless in evidence and should be expunged for having no evidential value.

He submits that the Court is left to rely on only Exhibits C6 which are copies of the Claimant’s payslips issued by the Defendant for the years 2013-2015 wherein the sum of Nl,216.00 (One Thousand Two Hundred and Sixteen Naira) was deducted monthly. He argues that it is lucid that the Defendant was deducting same monthly from the Claimant’s monthly salary for years and it refused to remit same nor even remit its (Defendant’s) own contributory obligation in line with the provisions of the Pensions Reforms Act. He argues that it is proof that Defendant has been deducting supposed pensions contributions from the Claimant’s salary monthly since the year 1988, thereafter under the NSITF and finally under the new pension dispensation.

Issue 2 – Whether the Claimant is entitled to damages for failure of the Defendant to pay his entitlements when due?

The Claimant submits that he is entitled to damages based on the failure of the Defendant to pay his entitlements as at when due. That it is the Defendant’s blatant refusal to pay his entitlement as at when due that forced him to resort to litigation.

Issue 3 –  Whether the Claimant is entitled to cost of litigation resulting from failure of the Defendant to pay his entitlements when due?

The Claimant submits on this issue that he is entitled to cost of litigating this suit as claimed. Claimant argues that he waited for over one year, visited, pleaded and wrote letters to the Defendant demanding payment of his entitlements and remittance of his pension contribution but the Defendant turned deaf ears. He then submits that it is the Defendant’s unrepentant refusal to do the needful that forced the Claimant after 38 years of toil, to institute this action.

Issue 4 – Whether the Defendant is obligated to remit the Claimant’s pension contribution with his Pension Administrator as well as the Nigeria Social Insurance Trust Fund and whether failure to remit same is punishable?

Claimant submits that by the provision of Section 11 (5), (6) and (7) of the Pensions Reform Act 2004 Cap P4 LFN 2004, that the Defendant is compulsorily obligated to remit the Claimant’s pension deductions and that the Defendant’s failure to do same is punishable.

Issue 5 – Whether the Defendant can be compelled by this Court to pay unremitted funds to Claimants pension administrators as well as penalty for late payment.

The Claimant submits that Exhibits C5 which is a copy of pension deduction handbook given to Claimant and other staff by the Defendants in 1988 and Exhibit C6 which are pay slips of the Claimant for some months in years 2013-2015, and that between January 1978 and January 2016, the Defendant will have deducted averagely the sum of N1216.00 X 12 X 38 years thus making an average sum of N552,672 (Five Hundred and Fifty Two Thousand, Six Hundred and Seventy Two Naira) unremitted sums.

DEFENDANT’S’REPLY ON POINTS OF LAW

The Defendant in his Reply on Point of Law stated that it is not the case that the Defendant enrolled the Claimant in the Pension Scheme in 1988; and that exhibit C5 did not prove that.  Defendant stated that contrary to Claimant’s submission, that exhibit D1 although undated, was signed by the Defendant’s witness, who the witness recognised in open Court to be the Branch Manager and Accountant of the Defendant.  That the computation in D1 is not a contract of deed requiring a common seal or date to prove its operation; and that it was the same DW that prepared the computation which forms Exhibit C4, which the Claimant relied on for his first Relief.  Defendant urged the Court to discountenance Claimant’s submission that exhibit D1 be discountenanced.

On issue 2 raised by the Claimant, Defendant in Reply submits that the Claimant has proffered no opposition in law to the Defendant’s submission that the Claimant’s claim for General Damages constitutes double compensation.

On Issues 4 and 5 raised in Claimant’s Address, Defendant submits that Claimant cannot urge the Court to grant a Relief not claimed – Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172 @205.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted. .  Having done all this, I set the following lone issue down for determination:

  • Whether the Claimant is entitled to his Claim;

The first Relief sought in this action is for The sum of N1,068,889.22 (One Million, Sixty-Eight Thousand, Eight Hundred and Eighty Nine Naira, Twenty Two Kobo) being gratuity and leave allowances due to Mr Sunmonu Atanda. By the Ruling of this Court on 9th May 2017 this Court entered Summary Judgment in favour of the Claimant in the sum of N1,018,889.22(One Million Eighteen Thousand Eight Hundred and Eighty Nine Naira Twenty Two Kobo). This sum is shown to have been paid vide exhibits C11 and C12.  This claim having been adjudged to the Claimant and the adjudged sum having been paid to the Claimant by the Defendant, is overtaken.

In Relief 4, Claimant seeks an Order of this Court mandating the Defendant to remit all unremitted pension contributions due to Mr Sunmonu Atanda’s to his Trust Fund Pension Account from January 2012 – April 2016. The Defendant in response to this Claim conceded that it will pay the unremitted contributions due to the Claimant, in the sum of N88,530.29 as represented in exhibit D1.  The Claimant did not challenge this figure by evidence showing what the sum should be.  However, Claimant challenged the document on the basis that:

  1. It was made while this suit was pending;
  2. It is not dated;

iii.                It is not signed.

Claimant did not tender his own computation of what the outstanding pension should be. I need to point out that the Claimant admitted that DW was known to him, as a former Assistant Accountant and current Manager with the Defendant.  DW stated that he computed D1 on account of this suit from their records.  DW did the computation himself, signed it and tendered it in evidence himself.  I do not find how better to authenticate a document than this.  This is more so when Relief 6 in this suit seeks for an Order mandating the Defendant to give account of all sums deducted from Claimant’s salaries under the extinct Pension and Life Assurance Scheme as well as the Nigeria Social Insurance Trust Fund.

Claimant’s Counsel’s submissions are somewhat contradictory and do not present a clear case for the Court to rely on.  In his written submission, Claimant’s Counsel after noting Defendant’s statement that “all unremitted contributions due to the Claimant have been computed totalling N88,530.29 which sum will be paid to him stated:

We submit that facts admitted need no further proof and the Court can safely found on same.

He then stated of the same document:

The Defendant tendered Exhibit D1 which is an undated and unsigned paper and pencil projected deductions.  We submit that the said exhibit be rejected by this Honourable Court as it offends the rule of evidence.  Evidence manufactured by a party in the course of an action or in anticipation of same is inadmissible.

He referred to section 83(3) & (4) of the Evidence Act which provides:

(3) “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”

(4) For the purposes of this section a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand or was signed or initialled by him or otherwise recognised by him in writing as one of the accuracy of which he is responsible”

It is instructive to note that paragraph 4 above provides that such a statement shall be deemed to have been made by such a person if he wrote it by his own hand, signed it or otherwise recognised it as one of the accuracy of which he is responsible.  As a result of the above, I consider and rely on the contents of exhibit D1 produced and tendered by DW himself; especially since its content has not been countered by evidence.

Also, the Claimant tendered Exhibit C5, a handbook prepared by Akin George in 1988 which guided the then monthly deductions from the Claimant’s monthly salary as well as that of other staff of the Defendant and contend that the Defendant could not shake this evidence nor present any better evidence to contradict same. I have considered exhibit C5, and find that no form of entry was made there.  It therefore does not prove that any form of deduction was made pursuant to it.

Exhibit D2 is a retirement savings account of Claimant tendered by Defendant.  At the time of its tender, Claimant objected to it on the ground that it is not an original.  It is instructive to note that the Claimant had sought to tender this same document and had withdrawn it at Defendant’s objection.  The Court, invoking Order 1 Rule 9 and Order 5 Rule 6 of the Rules of this Court admitted it on the ground that it is relevant and will assist the Court.  The Court however urged Counsel to address any question as to the authenticity of its content, at the Final Addresses.   Claimant, in his Written Address, now relies on exhibit D2 when he stated:

The Defendant through its witness denied that it requested its staff to enrol with Pension  Fund Administration in January of 2012 and that the Defendant never deducted the sum of N1,216.00 (One Thousand Two Hundred and Sixteen Naira) from the Claimant’s salary monthly from January 2012 until his retirement without tendering any evidence to contradict Exhibit D2.

By this, Claimant is seen to have admitted the relevance and authenticity of exhibit D2, and its usefulness in determining this case.  Claimant further suggests that this Court rely on exhibit C6, being Claimant’s payslips for September 2013, May and November 2014, and January 2015 where the sums of N1,159.85, N1,276.00, 1, 276 and N1,276 respectively.  A critical look at exhibit D1’s entries for 2013, 2014 and 2015 show that it tallies with the expected product of exhibit C6.

Claimant’s only calculation as evidenced in Counsel’s submission that between January 1978 to January 2016, the Defendant will have deducted averagely the sum of N1216.00 X 12 X 38 years thus making an average sum of N552,672 (Five Hundred and Fifty Two Thousand, Six Hundred and Seventy Two Naira) unremitted sums is preposterous.  Not only is it not pleaded, it is not founded on facts.  Exhibit C1 clearly shows that Claimant’s monthly salary in 1988 was N168.50K(One Hundred and Sixty Eight Naira Fifty Kobo); how could Defendant have deducted N1,216.00 monthly from his salary.

With the analysis above, I find that the calculations in D1 substantially represents Claimant’s outstanding pension payments.  Defendant is hereby Ordered to remit all unremitted pension contributions due to the Claimant, Mr Sunmonu Atanda’s from January 2012 – April 2016 to his Trust Fund Pension Account.

Relief 6 is for AN ORDER of this Court mandating the Defendant to give account of all sums deducted from Claimant’s salaries under the extinct Pension and Life Assurance Scheme as well as the Nigeria Social Insurance Trust Fund.  I find that this Relief has already been complied with by the Defendant through exhibits 11 and 12.

Relief 7 for an Order mandating the Defendant to remit to the Claimant’s Trust Fund Pension Account, all sums deducted from his salaries under the extinct Pension and Life Assurance Scheme as well as the Nigeria Social Insurance Trust Fund. I do not find any proof for that Relief.  As already stated, exhibit C5 (The Handbook on Staff Pension Fund and Life Assurance Scheme) only states the policies of the scheme, but does not show Defendant’s role or involvement in it.  The Defendant denied this liability; and stated that it had already made the remittance sought under the defunct Pension Fund and Life Assurance Scheme.  The Claimant made no response to this outright denial.  I therefore find that Claimant has not established his entitlement to this Relief.

With respect to Relief 2, I find, based on Defendant’s admission of Reliefs 1, 5 and 6, the Claimant is entitled to general damages.  General damages flow naturally from the wrongful act of a defendant complained of –  The Shell Petroleum Development Company of Nigeria Limtted v. Chief G.B.A. Tiebo VII (supra) at 466, para. C. per OGUNTADE, JSC.- Owena Mass Transportation Company Ltd. V. IMAFIDON (2011) LPELR-4810(CA)  For the breach of its responsibilities to the Claimant under Section 11 (5), (6) and (7) of the Pensions Reform Act 2004 Cap P4 LFN 2004 and Claimant’s admission to failure to pay Claimant’s entitlements, I set and award to the Claimant general damages of N200, 000.(One Hundred Thousand Naira) only.  As held by the Supreme Court in Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt.1098) 375 S.C

General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial.

The Claimant also sought payment of interest on the above sums at the rate of 10% per annum until judgment, and, thereafter, at the interest rate of 21% per annum till the said sum is liquidated. The first leg of this claim is pre judgment interest. The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of the equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448(CA). It is for the Claimant to prove his entitlement to the stated pre judgment interest. This accords with the age old principle that he who asserts must prove same. The Claimant has failed and/or neglected to prove how he becomes entitled to the rate of interest claimed. Not having proved same this head of relief is refused and dismissed.  See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC; Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc SUIT NO. NICN/LA/122/2014 judgment delivered on 12th July 2016.

The Claimant also sought payment of interest at the rate of 21% on the judgment sums from the date of Judgment till final liquidation. The Rules of this Court provides direction and guidance with respect to post judgment interest. In this respect, Order 47 Rule 7 of the Rules of this Court states inter alia that the Court at the time of delivering judgment may order interest at a rate not less than 10% per annum to be paid upon any judgment. Therefore, pursuant to Order 47 R 7 of the Rules of this Court all the sums due under and by virtue of this Judgment (except cost) shall attract 10% interest per annum from today until final liquidation.

Relief 3 seeks for N1, 000,000.00 (One Million Naira) as cost of litigating this suit.  Having already ordered for the payment of N200, 000.00 as general damages, It will not serve the end of justice to grant this relief.  I therefore refuse same,

Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, the case of the Claimant succeeds in part, and as follows –

  1. Relief 1 succeeds and has already been complied with by the Claimant.
  2. Relief 2 succeeds.  Defendant is to pay N200, 000.00 to the Claimant, as general damages for non-payment and non-remittance of his pension as at when it was due.
  3. Relief 3 fails considering the holding in Relief 2 above.
  4. Relief 4 fails.  However, all sums adjudged are to be paid within 30 days of this judgment, thereafter interest shall accrue at the rate of 10% per annum.
  5. Relief 5 succeeds and Defendant is hereby ordered to remit all unremitted pension contributions due to the Claimant from January 2012 – April 2016, to his Trust Fund Pension Account.
  6. Relief 6 has already been complied with.
  7. Relief 7 fails as having not been proved.

Judgment is entered accordingly.

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD

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