IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 23rd day of October, 2019
SUIT NO: NICN/PHC/59/2018
BETWEEN:
CHIADIKAOBI OGMOR OBIAKARA CLAIMANT
AND
MIFE CONSTRUCTION NIGERIA LTD DEFENDANT
Representations:
U.E. Uzoho with Ijeoma Goodluck for the Claimant.
O.J. Ezuma with K.E. Ejiofor for the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 7th of May, 2018 along with a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
Arising from the complaint and statement of fact, the Claimant claims against the Defendant as follows:
- A. The Sum of N4,050,000.00 (Four Million and Fifty Thousand Naira) being unpaid Salaries and allowances due to Claimant from the Defendant, and
- The sum of N972,000.00 being part of Claimants salary now unlawfully retained by the Defendant, as money had and received and other contractual entitlements.
TOTAL AMOUNT CLAIMED N5,022,000.00 (Five Million and Twenty Two Thousand Naira).
- Interest on the above sums at the rate of 30% per annum from date hereof until judgment, and thereafter 40% per annum until judgment sum is paid in full.
In reaction to the foregoing claims, Defendant entered appearance and filed statement of defence on the 2nd of May, 2019 along with list of witnesses, witness statement on oath, list of documents and copies of same.
The Claimant consequently filed a reply to the statement of defence on the 16th of May, 2019.
Trial of the suit commenced on the 6th of February, 2019 with the Claimant opening his case. The Claimant was himself called as the sole witnesses in support of his case as CW1 he adopted his witness statement on oath which was marked as C1(a). Through the said CW1, 3 documents were tendered and admitted in evidence as C2 – C4.
Arising from the statement of fact and witness statements on oath, the case of the Claimant is that sometime in the month of October 2016, the Defendant employed him as Project Coordinator effective from 1st November 2016 on a Gross Monthly Salary at the sum of N450,000.00. Claimant averred that he worked as a staff of the Defendant until the 31st Day of October 2017, when he was disengaged from service by the Defendant, by a letter dated 31st October 2017 titled Stood Off and in the course of the period of employment, the Defendant was not regular with payment of his salary as and at when due such that the Defendant only paid his monthly salaries for the months of November 2016 to March 2017 hence the Defendant owes him 7 months salaries which amounts to the sum of N3,150,000.00. Claimant further averred that by his appointment Letter, he was entitled to 30 days Leave and a Leave Allowance, upon working for the Defendant for One Calendar Year and that having worked for one year, he was entitled to 30 days of leave and a leave allowance which is same as his monthly salary. Claimant added that he was also not paid one month salary in lieu of notice having disengaged him without a prior one month notice. Claimant averred that he discovered that his contributions of N432,000.00 being 8% of his annual salary and Defendant’s 10% contribution of N540,000.00, were not applied to any pension scheme at all, and that the said monies totaling N972,000.00 are with the Defendant making him entitled to the sum of N972,000.00 from the Defendant as money had and received and also as money contractually due to him. He stated that he has demanded for the said monies but the Defendant failed to pay.
Upon cross examination of CW1, he posited that he was employed on 13th October, 2016 to start on 1st November, 2016 and that the employment was in writing. He also stated that he agrees that the employment was subject to probation for a period of three months while insisting that his confirmation comes after three months and not one year. CW1 also posited that he worked up to 1st November, 2017 before the letter came and posited that his salary was paid for 5 months while denying that 50% of the salary he is claiming has been paid. He then admitted that a sum of N1,206,000.00 was paid to him. Witness also stated that as a project Coordinator, he worked throughout the year and he does not agree that stood off is a normal event during the rainy season. He also stated that he did not disappear after receiving the letter of stood off and posited that he has not seen any condition of service except the conditions in the letter of employment. CW1 also stated that he is not the one that deducts pension contributions and that 5 months were deducted while admitting he did not tender any confirmation letter in court and posited that stood off means disengagement while affirming that he was only given a stood off letter and not a termination letter.
Upon the Defendant filing their amended statement of defence, the Claimant filed additional witness statement on oath marked as C1(b) and through the said CW1, 5 documents were tendered in evidence and admitted under protest as exhibit C5-C9.
CW1 was further cross examined and he posited that the letter of stood off has the same effect as termination of appointment. He added that it is the company’s discretion to lay off or put a staff on stood off and agreed that in stood off, an employee can be recalled but in termination he cannot. When asked if he was paid all his salaries in his first and second employment with the Defendant, he posited that the Defendant is in the habit of paying in arrears. He stated that the 8% deducted from his salary is supposed to be paid to him and admitted that the sum of N1,208,250.00 as part of the salary he is claiming and that he is no longer claiming N3,150,000.00. CW1 also state that no official memo was issued to him in respect of the allegation in paragraph 17 of his witness statement on oath.
The Claimant closed his case upon his discharge while the Defendant in opening their case called one witness in person of Chinedu Mba as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, 1 document was tendered in evidence and admitted as D2.
Arising from the statement of defence and witness statement on oath, the case for the defence was that though the employment of the Claimant was effective from 1st November, 2016 the Claimant was not confirmed as an employee of the Defendant while the confirmation takes place after one year. The Defendant added that 50% of the salaries claimed by the Claimant had been paid. The Defendant added that the Claimant was engaged based on his representation that he was competent and qualified but between the time he was employed by the Defendant, he never generated any letter of completion which would have made the company (Defendant) get paid. The Defendant also posited that the Claimant’s employment was not terminated but was stood off. The Defendant averred further that the youth restiveness by the host communities where the project was sited i.e. where the Claimant was set to work and lack of payment by the company, especially lack of generation of certificate constituted force majore (unforeseen circumstance intervened) that made it impossible for the contract to continue and it is in the light of this that the Claimant is not entitled to his claim being salary already due before he absconded of which half of it has already be paid. the defendant posited that the Claimant’s Letter of Appointment did not make provisions entitling the Claimant for anything like interest for delayed salary payment and that Claimant is not entitled to the sum of N450,000 (Four Hundred and Fifty Thousand Naira) being leave allowance, N450,000 (Four Hundred and Fifty Thousand Naira) being one month salary in lieu of notice of termination, the sum of N540,000 (Five Hundred and Forty Thousand Naira) being 10% of Claimant’s Annual Salary and the sum of N432,000 (Four Hundred and Thirty-Two Thousand Naira) being 8% of Claimant Annual Salary contributed.
Upon cross examination of DW1, he posited that he was employed in 2005 and aware that the Claimant had been with the Defendant for two periods. DW1 also admitted that he is the maker of Exhibit C5 and C6 and that the amount contained in Exhibit D2 is the balance of 50% after deduction of tax while admitting that exhibit D2 emanated from Fidelity Bank. He also confirmed that exhibit C4 does not state when the Claimant will get letter of confirmation and posited that exhibit C3 was not given because the Claimant was incompetent but that it is the practice of the Defendant to do stood off during rainy season. He posited that the Claimant could not be re-invited for work having sued the Defendant to court while asserting that payment to the Claimant was made when they had the money in their system.
Upon the closing of the Defendant’s case, the matter was adjourned for adoption of final addresses.
The defendant filed their final address on the 26th of August, 2019 and arising therefrom, counsel to the Defendant, O.J. Ezuma Esq. formulated a sole issue for determination to wit:
whether the claimant proved his case as required by law to be entitled to all the reliefs claimed.
In arguing the sole issue, counsel posited that the law is since settled that a Plaintiff must succeed on the strength of his case and not on the weakness of the defence if any and this presupposes that the Plaintiff or Claimant who is seeking reliefs from the court must prove with credible evidence how he is entitled to those reliefs claimed by preponderance of evidence. He cited the case of OYEDEJI v. OYEYEMI (2008) 6NWLR (PT1084) PG 484 AT 487.
Counsel posited thereon that the Claimant in this case did not prove his case as required by law to be entitled to all the reliefs sought in this case.
Counsel posited that by virtue of the appointment letter, the Claimant is entitled to a monthly salary of 450,000. (Four Hundred and Fifty Thousand Naira) which is subject to tax deduction amongst others. Counsel added that by virtue of Exhibit C3 dated 31st October, 2017, being a letter of Stood Off issued to the Claimant, the Claimant’s appointment was never terminated and in paragraph 2 of the said letter of Stood Off, it was stated that the Claimant will be recalled as soon as the situation in the Defendant’s company improves. Hence Claimant is not entitled to one month salary in lieu of notice. he added that Claimant is not entitled to the sum of N3,150,000 (Three Million, One Hundred and Fifty Thousand Naira) or the sum of N4,050,000 as claimed in this suit but that the balance of his seven months’ salary is about N1,200,000 (One Million, Two Hundred Thousand Naira) because the balance of the fifty percent which the Claimant is entitled to is still subject to tax and other deductions..
With regards to deductions for pension, counsel posited that though the defendant is mandated by virtue of section 4 (1) (a) of the Pension Reform Act of 2014, to make ten percent contribution of the employee salary to the pension Administrator while the employee contributes 8%, the ten percent contribution is not part of the claimant’s salary and is never deducted from the claimants’ salary. He added that the claimant cannot therefore claim that same be paid over to him as same was never part of his salary.
Counsel added that it is only the National Pension Commission that is empowered by law to recover any unremitted pension contribution from an employer who did not remit such contribution to the pension Administrator. He cited section 11(6) of the Pension Reform Act 2014.
Counsel also submitted that the Claimant is not entitled to interest of 30% or 40% per annum as claimed in this court or any interest at all in that salary of an employee is not subject to interest and concluded by urging the court to only grant 50% of the sum of N3,150, 000, subject to tax and other deductions being part of the claimants 7 months salary owed to him having received 50% while this suit was pending and dismiss all the other claims claimed by the claimant in this case.
The Claimant on his part filed his final written address on the 18th of September, 2019 and arising therefrom, counsel to the Claimant U.E. Uzoho Esq. formulated the following questions:
- Is the Claimant entitled to the sum of N3, 150, 000.00 (Three Million, One Hundred and Fifty Thousand Naira only) being unpaid salaries due to the Claimant from the Defendant?
- Is the Claimant entitled to the sum of N450, 000.00 (Four Hundred and Fifty Thousand Naira Only) being leave allowance?
C Is the Claimant entitled to the sum of N450, 000.00 (Four Hundred and Fifty Thousand Naira Only) being one month’s salary in lieu of notice of termination?
- Is the Claimant entitled to the sum of N540, 000.00 (Five Hundred and Forty Thousand Naira Only) being 10% of Claimant’s annual salary unlawfully retained by the Defendant?
- Is the Claimant entitled to the sum of N432, 000.00 (Four Hundred and Thirty Two Thousand Naira Only) being 8% of the Claimant’s annual salary the Claimant contributed into the Defendant and unlawfully retained by the Defendant?
- Is the Claimant entitled to interest on the above sums at the rate of 30% per annum from date hereof until final judgment and thereafter 40% per annum until judgment sum is paid in full?
In addressing question one, counsel posited that by the Claimant’s Evidence in chief, the Defendant paid the Claimant the sum of N1, 208, 250.00 now reducing the sum to N1, 941, 750.00. He added that by paying the Claimant the sum of N1, 208, 250.00 at the time it was paid, the Defendant has admitted by its conduct that it is indebted to the Claimant in the sum of N1, 941, 750.00 and the Defendant is further estopped from denying this indebtedness as facts admitted need no further proof. He referred to the cross examination of CW1.
In addressing question two, counsel posited that by Claimant’s Appointment Letter dated 31/10/2016, Paragraph 6 thereof, provides that the Claimant is entitled to 30 working days per calendar year with the leave allowance which is a month’s salary — N450, 000.00. He cited the case of EZEMBA V IBENEME & OR (2004) 10 M.J.S.C 57 RATIO 3 &1
With regards to question three, counsel posited that the purport of the Stood Off Letter is not lost as Black’s Law Dictionary, Sixth Edition describes “Stand” (the present tense of stood) as “to cease from movement or progress, to pause, remain stationary or inactive. He cited the case of JAGGERS V SOUTH EASTERY GREYHOUND LINES, DC, TENN 34F SUPP 677, 688
Counsel added that by EXC C2, the Claimant was asked to hand over the property of the Defendant in his possession to his Unit Head and by this directive, the employment of the Claimant was disengaged.
He also contended that the payment in lieu of disengagement is contained in EXH C1, the Appointment Letter dated 31/10/2016 and same makes it clear that the Claimant is entitled to one month salary in lieu of his termination of employment.
With regards to question four and five, counsel contended that by the Appointment Letter dated 31/10/2016, the Claimant is entitled to join the Company’s staff pension scheme, and he did join same.
Counsel contended that Claimant put the Defendant on notice to produce the records of Pension Contributions payment and transmissions to PENCOM and they failed to rebut the existence of these records and failed to produce same. Counsel submitted that the failure of the Defendant to produce the records of the Pension Contributions payment and transmission to PENCOM is proof that these records truly exists and production of same will not be in the interest of the Defendant. He added that it also means that these monies were deducted at source but never used for the Pension Contribution. Counsel urged the Court to apply the provisions of Sec 133 (1), (2) of the Evidence Act.
With regards to question six, counsel posited that interest can be claimed as a right where it is contemplated by the agreement between the parties or under a mercantile custom or under a principle of equity such as breach of a fiduciary relationship. He cited the case of LONDON CHATAM & DOVER RAILWAY V E.S RAILWAY. (1983) A.C 429 at 434 to posit that where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it in the writ and lead facts which show such an entitlement in the statement of claim. He also cited the case of UDECHUKWU VS OKWUKA (1956) 1 F.S.C 70.
With regards to exhibits admitted under protest, counsel argued that relevancy is the test of admissibility citing Section 4 of the Evidence Act 2011.
Counsel contended that while the Claimant states that he is indebted as per the processes before the court and exhibits, the defendant pleaded that the Claimant is owed because he is incompetent and unproductive and this led to the Defendant being in debt. Counsel referred to Paragraphs 8, 9, 10, 11, 12, 14, 18 and 20 of the Defendant’s Statement of Defense. He added that the Claimant in response deposed that he is not incompetent and further pleads that his competence in the Defendant had earlier earned him an increase in salary. He referred to Paragraphs 7, 8, 10, 11 and 13 of the Claimant’s Witness Deposition on Oath accompanying his Reply to Statement of Defense and added that it is in attempt to further prove his competence that the exhibits were sought to be tendered. He cited Sec 136 of the Evidence Act provided that he who asserts must prove.
He concluded that the exhibits admitted under protest are relevant documents to resolve the allegation of incompetence and unproductivity of the Claimant, which hindered the Defendant from paying its staff.
Counsel added that the Claimant is entitled to the reliefs sought in this suit.
In view of the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the lone issue for determination by this court is to wit:
“Whether having regards to the evidence before this court, the Claimant have proved his case and entitled to the reliefs sought”.
Before resolving the sole issue for determination, it is expedient to determine the status of exhibits C5-C9 which were admitted under protest. The ground upon which counsel to the Defendant challenged the admissibility of the documents was that the documents are not relevant to this suit since parties are in court in respect of the letter of employment of 13th October, 2016.
Counsel to the Claimant responded that the documents were pleaded in response to paragraph 7 of the statement of defence.
It is indeed trite that relevancy governs admissibility. See OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA). It is upon the basis of the position of the law that I have taken a look at the said documents to find that Exhibit C5 is a contract appointment letter issued by the Defendant to the Claimant and dated the 1st of July, 2005, while Exhibit C6 is an internal memo addressed by the Defendant to the Claimant on increment of salary dated 22/03/07. Exhibit C7 is letter of resignation addressed by the Claimant to the Defendant dated 7th August 2007 while Exhibit C8 is an offer of appointment addressed to the Claimant by the Defendant dated 26th February, 2010 and Exhibit C9 is a letter accepting the resignation of the Claimant by the Defendant dated 16th August, 2011.
I have also taken cognizance of paragraph 7 of the statement of defence where the Defendant averred that the Claimant was incompetent and paragraphs 7 and 8 of the witness statement on oath which accompanied the reply to statement of defence whereby Claimant posited that he had been earlier appointed twice by the Defendant and had delivered several sites for the Defendant before his current employment.
In view of the foregoing finding, it is the considered view of this court that the said exhibits C2-C9 are connected to the facts in issue before this court and are accordingly considered relevant. Consequently, the said exhibits are admitted in evidence as the objection of counsel to the Defendant is hereby overruled.
Turning to the sole issue which touches on the reliefs sought by the Claimant, I must start by positing that the general position of the law is that he who asserts must prove. see Ojoh v. Kamalu (2005) 18NWLR (Pt. 958) Pg. 523 at 565 Paras.F – G.
In addition, the law is settled on the point that in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See section 133(1) of Evidence Act, 2011. See also U.B.A. Plc v. BTL Industries Ltd (2006) NWLR (Pt.1013) 61.
In view of the foregoing, the claims of the Claimant before the court is in respect of monies arising from a contract of employment. The said monies are in the realm of special damages which require specific pleading and to be strictly proved. In this regard, the court in Egom v. Eno (2008) 11 NWLR (Pt.1098) held that:
“In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A).
In an attempt to meet the requirement of the law, the Claimant specifically pleaded that by the contract of employment entered with the Defendant on the 13th of October, 2016. He was owed salaries for 7 months in the sum of N3, 150, 000.00; leave allowance of N450, 000.00; salary in lieu of notice in the sum of N450, 000.00; 10% of Claimant’s annual salary unlawfully retained by the Defendant as pension contribution in the sum of N540, 000.00 and 8% of the Claimant’s annual salary the Claimant contributed for pension in the sum of N432, 000.00.
In an attempt to prove his Claims, Claimant tendered Exhibit C4 which is the Appointment Letter issued to him by the Defendant wherein the claims accrued from. The said letter is dated the 13th of October, 2016 and specifically as it relates to salary, the letter in paragraph 3 states that the monthly gross salary of the Claimant is N450,000.00.
The paragraph also stated that:
“The basic salary, allowances and overtime are subject to deduction of tax in accordance with the Nigerian Income Tax laws.”
While the foregoing establishes the fact that the Claimant is to be paid the monthly salary of N450,000.00, the Claimant did not tender any evidence in proof of such payment. That notwithstanding, the Defendant admitted that the Claimant was owed 7 month salary but that 50% of same had been paid subject to tax deduction. The Claimant admitted that N1,208,250.00 was paid while counsel to the Claimant contended that same does not amount to 50%.
In the face of the provision of the terms of the Claimant’s employment which clearly states that his salaries and allowances are subject to tax, it is incumbent on the Claimant to establish before this court how much he usually earns monthly after the deduction of such tax from source however, the Claimant failed to tender any evidence in proof of the sum he usually earns after the tax deductions.
Upon failure to do same, there is no strict proof, hence the court can only grant an order that the Claimant be paid the balance of his 7 month salary less the amount already paid by the Defendant and less the appropriate tax deduction.
With respect to the Claim for the sum of N450,000.00 as leave allowance, Claimant contended that he is entitled to the said leave having worked for the Defendant for a year stating from 1st November, 2016 to 30th October 2017 before he was issued a letter of stood off which took effect on 1st November, 2017. The Defendant on the other hand contended that the Claimant is not entitled to leave allowance having not been confirmed.
In view of the foregoing contention, I have taken a look at exhibit C4, the letter of appointment which by paragraph 6 states that:
“You are entitled to 30 working days per calendar year with leave allowance as you proceed.”
I also find it apposite to consider the provision on probation in order to ascertain if the grant of leave allowance is dependent on confirmation. For the said purpose, paragraph 10(f) provides that:
This offer is subject to a period of three months probation period, during which either party may terminate this contract of employment on giving two weeks’ notice. however, after the probation period, termination by either party shall require one month notice or payment in lieu.
The foregoing shows clearly that the probation period for the Claimant is stipulated as three months and having surpassed the three months, he is deemed confirmed notwithstanding the failure of the Defendant to issue confirmation letter.
The consequence of the foregoing finding is that, firstly, the grant of leave allowance was not made dependent on the confirmation of the Claimant. The paragraph merely states that he is entitled to leave allowance and having completed a year in the employment of the Defendant he is considered entitled. Secondly, assuming the grant of leave allowance is dependent on the confirmation of the Claimant, by the provision of paragraph 10(f) which benchmarked the period of probation as three months, the Claimant having surpassed the three months is deemed to have been confirmed and is consequently entitled to leave allowance and I so hold.
With regards to one month salary in lieu of notice of termination, Claimant contended that Exhibit C3 which is the letter of stood off issued to him and which was to take effect on 1st November, 2017 is tantamount to letter of termination and the Defendant having failed to give him notice, is liable to pay salary in lieu of notice.
The Defendant on the other hand contended that the employment of the Claimant is not terminated as the letter of stood off informed the Claimant that he will be recalled as soon as the situation improves.
In view of the foregoing, I have taken a look at the said exhibit C3 and find that same reads:
Dear Mr. Chiadikobi,
Stood Off
Refer to the on-going re-organization in the company, Management have decided to place you on stood off with effect from 1st November, 2017.
You will be recalled as soon as situation improves.
You are to hand over all the properties of the company in your possession to your unit head.
Management uses this opportunity to appreciate you for the job well done in the past years.
Hope you have been well informed.
Yours sincerely
Signed.
Arising from the content of the said letter, it is clear to all and sundry that same makes no mention of termination. However, the phrase ‘stood off’ is one that is unknown to labour practice and the letter of employment issued to the Claimant makes no reference to such term. Neither does it make any clarification as to how the term is to operate nor the effect of same. In other words, the letter of employment did not provide for an agreement between the Claimant and the Defendant that under certain circumstances, he may be ‘stood off’ and at such period he would not be paid and may be recalled. The letter of appointment and the letter of ‘stood off’ also does not state for how long the Claimant is to be ‘stood off’.
The foregoing is what calls for the determination of the effect of the letter. Though it cannot be said to be a letter of termination of employment in the usual sense of it, however, the letter has the effect of causing the Claimant temporary loss of employment in the sense that for an uncertain time, the Claimant would be out of employment. Taking such effect into cognizance, it is most ideal under fair labour practice that the Claimant be given notice.
In view of the finding that Exhibit C3 is dated the 31st of October, 2017 and the Stood off was to take effect on the 1st of November, 2017, it is crystal clear that no notice was given to the Claimant.
In the instant case wherein there is no express provision for putting an employee on ‘stood off’ and where there is no agreement on the period of notice for placing the employee on ‘stood off’, the court is empowered to imply same just as the court can imply reasonable period of notice where the period of notice for termination is not expressly stated. The court in the case of SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC)
”Where there is a contract of service which contains no provision for notice required for termination thereof, there is an implied term that the contract can only be terminated by reasonable notice. What is reasonable notice is dependent upon [a] the nature of the contract and [b] the status of the employee in the establishment. Thus, the higher the position held by the employee, the larger his salary, the longer will be the notice required to put his contract to an end. In Daniels v. Shell B. P. Development Co. Ltd (1962) All NLR 19.” Per MUHAMMAD, JSC. (P.27, Paras.C-F).
In the instant case, what is reasonable notice for putting an employee on ‘stood off’ is one month notice considering the fact that it may take a long while before the Claimant is recalled. Consequently, the Claimant is entitled to have been given a month notice that he would be placed on stood off and failure to do same warrant payment in lieu of the said notice in the sum of his monthly salary of N450,000.00
With regards to the claim for 8% deduction made from Claimant’s salary and the withholding of 10% of the Claimant’s salary which the Defendant ought to contribute as pension, Claimant also placed reliance on Exhibit C4. Claimant added that that the Defendant did not set up any Pension Fund or pension arrangement for her staff or which had the Claimant as a beneficiary.
The Defendant on the other hand contended that the Claimant was to choose a Pension Fund Administrator to whom deductions were to be made but that the Claimant never did, hence he never made any contribution.
In view of the foregoing contention, I have taken a look at paragraph 4 of Exhibit C4 which is the letter of Appointment and same reads:
You will be entitled to join the Company’s staff pension scheme. The scheme is governed by the applicable Pension Act enacted as a law of the Federal Republic of Nigeria. For MIFE Construction (Nig.) our operation of the new pension scheme forecloses the running of any other parallel pension and/or gratuity scheme.
Pension Contribution Scheme is as follows:
Company’s contribution – 10% of total salary
Employee’s contribution – 8% of total salary
Returns on the contribution are as advised by the insurance company.
While the foregoing clearly shows that the Defendant intended to operate a pension scheme which requires contribution from the Claimant, the said Exhibit C4 does not by itself prove that the deductions of 8% of his salaries were made in the 5 months for which his salaries were paid to him. Also, the Claimant cannot place the computation on annual basis since he is yet to be paid balance of his salaries for 7 months. Therefore the computation of the sum of N432,000 (Four Hundred and Thirty-Two Thousand Naira) being 8% of Annual Salary contributed cannot be granted.
In addition to the foregoing, the contribution of deductions on Claimant’s salary is regulated by the Pension Reforms Act, 2014 just as he has been informed in his letter of appointment. By section 11 (1) of the said Act, the Claimant is expected to maintain a Retirement Savings Account (RSA) in his name with any pension fund administrator of his choice. By section 11 (6), it is into such RSA that the employer shall not later than 7 working days from the day the employee is paid his salary, remit an amount comprising the employee’s contribution under paragraph (a) of this subsection and the employer’s contribution to the custodian specified by the pension fund administrator of the employee to the exclusive order of such pension fund administrator.
The Act also stipulates penalty for an employer who fails to make such remittance as section 11(7) provides thus:
“Any employer who fails to remit the contributions within the time prescribed in subsection (5) (b) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission provided that the penalty shall not be less than 2 per cent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owing to the employees retirement savings account as the case may be”
The foregoing provision is clear as to the fact that the Claimant cannot simply be paid by hand, his deductions of 8% and employer’s 10% contribution for pension. He is required to own a Retirement Savings Account wherein the said deductions and contributions are to be remitted and upon the failure of the Employer to remit same, a penalty can be prescribed by the National Pension Commission.
In view of the foregoing, the Claims made by the Claimant in respect of the sum of N972,000.00 as a combination of 8% and 10% of deductions and employer’s contribution cannot be granted and same is accordingly refused.
Consequent upon the foregoing, relief 1 is resolved to the extent at which the Claimant has been held to be entitled to the balance of his 7 months salaries, one month salary in lieu of notice and leave allowance less the appropriate tax deductions.
In other words, this court makes an order that the Defendant pays to the Claimant the balance of his 7 months salaries, one month salary in lieu of notice for being placed on ‘Stood Off’ and leave allowance less the appropriate tax deductions.
Relief 2 is for interest at the rate of 30% per annum from date thereof until judgment, and thereafter 40% per annum until judgment sum is paid in full. The said relief is dependent on the grant of relief one. However, the first limb of the relief for 30% interest per annum is a pre-judgment interest which the agreement between the parties do not contemplate and this court is not inclined to grant.
The Claimant has failed to present any evidence in support of the demand for 30% interest accruing on the sums unpaid and the relief is to this extent refused. The second limb is however a post-judgment interest which this Court is empowered to consider in view of the rules of this court which in Order 47 Rule 7 stipulates that the Court may at the time of delivering judgment or making the order, give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.
In view of the foregoing provision and in view of the extent at which relief 1 is granted, relief 2 is accordingly granted to the effect that this court makes “an order that the balance of 7 months’ salaries, one month salary in lieu of notice for being placed on ‘Stood Off’ and leave allowance less the appropriate tax deductions which are due to be paid to the Claimant by the Defendant shall be payable within 30 days of the delivery of this judgment failure of which they shall attract interest at the rate of 20% per annum”.
In the final analysis, the sole issue formulated for the resolution of this case is largely resolved in favour of the Claimant to the effect that having regards to the evidence before this court, the Claimant have proved his case to a large extent and entitled to the reliefs granted by this court.
Consequently, the Claimant’s case is considered meritorious in the extent to which reliefs 1 and 2 have been granted.
Judgment is accordingly entered.
I make no order as to cost.
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HON. JUSTICE Z. M. BASHIR
JUDGE.
