IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON TUESDAY THE 27th DAY OF MARCH, 2019
SUIT NO:NICN /ABJ/333/2018
BETWEEN:
OBIOHA KELVIN
CLAIMANT
AND
GLOBAL INTERNATIONAL COLLEGE LTD
ABOLAJI OSIME
DEFENDANTS
REPRESENTATION
V.I.Uma Esq. for the claimant
No representation for the defendant
JUDGMENT
INTRODUCTION
By a general form of complaint dated and fled on 29/11/2018 and accompanied by all the processes required by the Rules of this Court, the claimant is claiming for the following:
An order of this Honourable Court directing the defendants to pay the claimant the sum of Nl,250,000 (One Million, Two Hundred and Fifty Thousand Naira) forthwith, which sum represents, the N50,000 (Fifty Thousand Naira) monthly deductions from the claimant’s salary from January. 2016 till January, 2018 when the Defendants out rightly stopped paying the claimant.
An order of this court compelling the Defendants to pay the claimant the sum of N354,000 (Three Hundred and Fifty-four Naira) Only, representing the claimant’s salary for the period of February and March 2018 at the rate of One Hundred and Seventy-seven Thousand Naira (N177,000) per month.
An order of this court directing the Defendants to pay to the Claimant the sum of One Million, Two Hundred and Twenty-four Naira (Nl,224,000) representing the claimant’s contributory pension, calculated at Thirty-Six Thousand Naira (N36,000) per month from May, 2015 to March, 2018 when the claimant resigned.
Alternatively, an order compelling the Defendants to remit the claimants contributory pension forthwith to the claimant’s pension account details with the Defendants.
An order compelling the Defendants to pay the claimant the sum One Hundred and eighty Thousand Naira (N180,00O) calculated at Sixty Thousand Naira representing the claimant’s annual leave allowance for 3 years.
An order compelling the Defendants to remit all Deductions made from the claimant’s salary for the purpose at his tax to the federal Inland Revenue Service (FIRS) forthwith.
The sum of N10,000,000 (Ten Million Naira) as general damages for the humiliation, emotional and psychological depression suffered by the Claimant .
Payment of 10% interest on the judgment sum from the date of .judgment till judgment sum is amortized.
Cost of this action calculated at One Million Naira (Nl,000,000).
FACTS OF THE CASE
The claimant was an employee of the defendant since 8/5/2015. At a point the defendant was not paying the claimant as and when due and as a result claimant was unable to pay rent and children school fees, he was evicted and his children stopped attending school. The claimant eventually resigned his appointment. He later discovered that the defendant was not remitting his N36,000 monthly pension contribution to STANBIC IBTC and also the defendant was not remitting his tax deductions to FIRS.
CASE OF THE CLAIMANT
The claimant testified in line with his statement of facts. The testimony in addition to the facts above summarized facts is to the effect that the 2nd defendant is the alter ego of the 1st defendant. The claimants annual remuneration was Two Million, Four hundred Thousand Naira (N2,400,000). The Defendants, were paying him the sum of one Hundred and Seventy-seven Thousand Na1ra (N177,000) upon his resumption. That when he tried to find out the reason for the deduction of the sum of Twenty Three Thousand Naira (N23,000) from the Defendants, he was told that the said sum is a direct deduction in accordance with the 1st Defendant’s internal policies, for the purpose of his Tax and contributory pension and he was thereafter asked to provide his Pension details which he sent to the officer in charge of account of the 1st Defendant through email titled pension details, dated 31/10/2026.After eight moths the defendant further deducted N50,000 from his salary and continued to pay him N127,000. Precisely in June 2016, he wrote to the 2nd defendant complaining of the incessant deductions of fifty Thousand Naira but the defendants ignored him. That few months after he wrote, complaining of the deductions from his salaries, the defendants started frustrating him by not paying his salaries as at when due irrespective of the deductions. That as a result he could not afford to renew his rent and he was therefore, embarrassed and evicted from his accommodation together with his four children and two dependants. His children were stopped from attending classes in their school as a result of non- payment of Tuitions. He resorted to borrowing money from people to sustain himself and his family as a result of the act of the Defendants. That he decided to resign his appointment with the 1st defendant who accepted and did not pay him any of any terminal benefits. That prior to his resignation in March, 2018, the Defendants paid him last in January, 2018. That after his resignation, he went to check his pension account balance with STANBIC IBTC pension as supplied to the Defendants, but to his surprise, nothing was in his account as the Defendants did not make any single deposit into his pension account. That his contributory pension is Eighteen Percent (18%) of his Monthly salary which is Two Hundred Thousand Naira (N200,000) before other charges, comprising of Ten percent (10%) from the Defendants and Eight percent (8%) from him. The said Eighteen percent (18%) of his monthly salary is Thirty six Thousand Naira (N36,000) and he spent a period of Thirty-four (34) months in the employment of the Defendants, making a total sum of One Million, Two Hundred and Twenty-four Thousand Naira (Nl,224,000). That the Defendants also did not remit the deductions made from his salaries for the Purpose of paying his tax to the Federal Inland Revenue Service (FIRS).
The claimant, while testifying on 21/3/2019, also tendered the following documents in support of his case which were admitted in evidence and marked as follows;
1. Claimants employment letter dated 28/5/2015 – exhibit OK1
2. Email dated 3/6/2016 – exhibit OK2
3. Email dated 31/10/2016 – exhibit OK3
4. Email dated 6/7/2018 by 1:54 pm – exhibit OK4
5. Email dated 6/7/2018 by 1:58 pm – exhibit OK5
6. STANBIC IBTC Account summary dated 4/6/2018 – exhibit OK6
COURT DECISION
It is imperative to start by pointing out that the defendants were both served with the originating processes on 3/12/2018. The defendants never filed any process in response. On 28/2/2019, one Emmanuel C. Obeta appeared for the defendants without filing any process and the matter was adjourned to 21/3/2019 for hearing. On 21/3/2019, one Tunde Ogundaini wrote a letter of adjournment on behalf of the defendants without filing any process before the court. The claimant was therefore allowed to prove his case in the absence of the defendants who have shown no interest at defending the suit. In the circumstance, the claimant is entitled to ask for judgment in line with Order 9 Rule 5(1) of the 2017 Rules of this Court.
I have read the statement of facts, the witness statement on oath and I have also considered the exhibits tendered, being the case that there is nothing on the other side of the scale, and the evidence of the claimant being credible and reasonably believable in respect of Claims (i), (ii), (iii), and (vii) , the Court has no reason not to act on the said evidence. See
IGBI V. STATE (1998) 11 NWLR (PT.574) where the court of appeal per Achike JCA held;
“where the trial Judge finds the evidence of a witness is unchallenged or uncontradicted, and where by its very nature the evidence is not incredible, the trial court has no option but to accept it and act on it.’’
I accordingly find that the claimant has proved his case against the defendant and his case succeeds to the extent of what is reasonably credible. Claims (i), (ii), and (vii) succeed and are hereby granted.
Even though there was no defence to the case, the position of the law is that to qualify for belief and reliance by a trial court, unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the plaintiff. See
FIRST BANK OF NIGERIA PLC v. MR. EFOBI EFFIONG BAM (2010) LPELR-4160(CA).
Similarly, The duty of every court of law is to render to everyone according to his proven claim, and nothing more. It cannot give to a party a relief he has not proved See
IN-TIME CONNECTION LIMITED V. MRS. JANET ICHIE (2009) LPELR-8772(CA)
Accordingly, claim (iii) is for an order of this court directing the Defendants to pay to the Claimant the sum of One Million, Two Hundred and Twenty-four Naira (Nl,224,000) representing the claimant’s contributory pension, calculated at Thirty-Six Thousand Naira (N36,000) per month from May, 2015 to March, 2018 when the claimant resigned. The pleading and evidence before the court is that the claimant’s salary was N200, 000 per month and N23, 000 naira was being deducted monthly as pension contribution whereupon the claimant was being paid N177,000 as take home pay. The claim for N36, 000 per month as contributory pension is therefore without basis and is contrary to pleadings and evidence. The right amount is N23, 000 per month. May, 2015 to March, 2018 is 35 months and N23,000 x 35 is N805,000.I therefore hold that the claimant has proven his entitlement to a refund of N23,000 per month as pension contribution deducted between May, 2015 to March, 2018 amounting toN805,000.00.
Claim (iv) is for an order compelling the Defendants to pay the claimant the sum of one Hundred and Eighty Thousand Naira (N180,000) calculated at Sixty Thousand Naira representing the claimant’s annual leave allowance for 3 years. This claim is neither supported by pleadings nor by evidence, it fails and same is refused.
Similarly, claim (v) is for an order compelling the Defendants to remit all deductions made from the claimant’s salary for the purpose of his tax to the federal Inland Revenue Service (FIRS) forthwith. This claim is without particulars and is vague, particularly that the claimant’s salary of N200,000 per month is fully accounted for by the granting of an order for the refund of N23,000 deducted from claimant’s salary monthly as pension contribution. This claim fails and it is refused.
Claim (vi) is for General damages, I do not think that refusal to pay salary resulting in resignation should attract damages as being claimed by the claimant. It is refused.
Similarly, claim viii is for N1,000,000.00 cost of this action. This claim too has not been proved and it cannot be granted, the claim fails and is refused.
COURT ORDER
For the avoidance of doubt, it is hereby declared and ordered as follows;
The defendants are ordered to pay the claimant the sum of Nl,250,000 (One Million, Two Hundred and Fifty Thousand Naira) forthwith, which sum represents, the N50,000 (Fifty Thousand Naira) monthly deductions from the claimant’s salary from January, 2016 till January, 2018 when the Defendants out rightly stopped paying the claimant.
The Defendants are ordered to pay the claimant the sum of N354,000 (Three Hundred and Fifty-four Naira) only, representing the claimant’s salary for the period of February and March 2018 at the rate of One Hundred and Seventy-seven Thousand Naira (N177,000) per month.
The defendants are ordered to pay to the Claimant the sum of Eight hundred and five thousand naira(N805,000) representing the claimant’s contributory pension, calculated at Twenty Three thousand Naira (N36,000) per month from May, 2015 to March, 2018 when the claimant resigned.
The judgment sum of N2,409,000 (Two Million, Four Hundred and Nine thousand naira) only is to be paid within 21 days of this judgment or it shall attract 10% interest per annum.
I make no order as to cost.
…………………………….
HON JUSTICE K.D.DAMULAK,
NICN, ABUJA
