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National Industrial Court

ENGR. TONY OLUMIDE JOHNSON -VS- COSTAIN (WEST AFRICA) PLC & 2

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURAABLE JUSTICE E. N. AGBAKOBA

 

DATED 10TH MAY, 2018                                                   

SUIT NO: NICN/ABJ/128/2016

 

BETWEEN

ENGR. TONY OLUMIDE JOHNSON ………………………………    CLAIMANT

 

AND

  1. COSTAIN (WEST AFRICA) PLC
  2. ARMS PENSION MANAGEMENT (PFA) LTD             ………      DEFENDANTS
  3. NATIONAL PENSION COMMISSION (PENCOM)

REPRESENTATION

  1. A. NWOSU for the Claimant
  2. ABDULRAHEEM for the 2ndDefendant
  3. O. AWA for the 3rdDefendant

JUDGMENT

 

  1. The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 14th April, 2016 against the defendants for the following reliefs:

  1. a)AN ORDER directing the Defendants to pay the Claimant his entire due pension funds at the current prevailing rate, starting from the period of default which is 1st May 2008 to the 31st May 2012 [49 months] when the Claimants employment was terminated at the rate of Sixty Eight thousand Nine hundred and Sixty Nine Naira, Fifty Four Kobo (N68,969.54) [Fifteen per cent (15%) rate of minimum pension contribution rate] adding up to be the sum of Three Million, Three Hundred and Seventy-Nine Thousand, Five Hundred and Seven Naira, Five Kobo (N3, 379,507.05).

  1. b)AN ORDER directing the Defendants to pay Twenty percent (20%) interest rate starting from the first day of default of payment of the Claimant’s Pension till judgment is liquidated.

  1. c)AN ORDER directing the Defendants to pay jointly and severally General Damages in the sum of N25, 000,000.00 (Twenty Five Million Naira) against the Defendant for the hardships and inconveniences the Claimant was put through due to the defendants’ deliberate misrepresentations with regards to the pension deductions during and after the Claimant’s service years and nonpayment of already ripe entitlements.

  1. d)AN ORDER against the 2nd and 3rd Defendants Jointly and Severally for Exemplary and Pecuniary damages in the Sum of (One Hundred and Fifty Million Naira), N150, 000,000.00 for their failure to carry out their statutory duties in conducting the necessary investigation and imposing the necessary penalties and sanctions on the 1st Defendant, allowing them the avenue till date to withhold the pension funds of the Claimant.

  1. e)The cost of this suit at One Million Naira (N1, 000,000.00)

  1. Claimant’s Case

The Claimant by profession is a Civil Engineer who was formerly employed with Jardin Development & Ass Nig. Ltd. The Claimant left the employment of Jardin Dev. & Ass. Nig Ltd in the months of July/August 2007 and took up employment with the 1st Defendant, also a reputable engineering firm at the time. He was offered employment on the starting salary of One Hundred and Thirty Eight Thousand and Five Naira, Thirty Three Kobo (N138, 500.33k) of which Net Salary certain deductions were made. One of those deductions was for seven and a half percent (7.5%) contribution to the National Contributory Pension Scheme promulgated by law. As at the time of employment the rate was (7.5%) each, of both Employee’s salary and the employer’s Contribution.

  1. These deductions were made certainly, starting from the preceding salaries following the Claimant’s first pay cheque by the 1st Defendant. Alongside these deductions, the Claimant had been asked by the Human Resources Manager to provide his Retirement Savings Account (RSA) which had been credited by Jardin and now, the 1st Defendant for which the Claimant graciously complied.

  1. However, at the time, the Claimant lived in Lagos and worked continuously from Lagos until he was asked to move to the Federal Capital Territory, Abuja (F.C.T) by the 1st Defendant to oversee works in the Capital being carried out by the 1st Defendant. Since the Claimant had nowhere to stay at the time and so one of the few known places one could abode at, was the now prestigious Transcorp Hilton Hotel, Maitama, the Claimant then updated his address with the 2nd Defendant as No. 1 Nicon Hilton Hotel, Maitama, FCT Abuja Mb219.

  1. For a few months that became the address of the Claimant, while he paid rent for his property and catered to his family of four (4) in Lagos. The 1st Defendant took care of the Hotel Bills at the time before finding the Claimant accommodation in its Life Camp address, popularly known as (Costain Yard) off J.T. Useni Way, Life Camp.

  1. Sometime during the month of April, 2009, the Claimant amongst other employees of the 1st Defendant realized that their contributions were not being remitted to their RSAs. The Claimant then complained to the Human Resource Manager in the person of Mr. E.A.C. Atagbuzia then, a friend of the Claimant as well. Mr. Atagbuzia requested personally for the Claimant’s pay slip and checked that the employee pension contributions were being deducted, and then asked the Claimant to furnish his details once again.

  1. However, after the Claimant’s encounter with Mr. Atagbuzia on remittance of his pension, it was the claimant’s view that the issue had been settled then in early 2009. but 2012, it was apparent to the Claimant that the 1st Defendant was letting go of some of its staff, amongst which the Claimant was part of. The Claimant’s Letter of Termination was dated the 30th day of May, 2012 and was signed by the same Mr. E.A.C. Atagbuzia.

  1. The 1st defendant was not represented throughout the trial neither did they file any processes.
  2. The 3RD DEFENDANT’S STATEMENT OF DEFENCE was filed on 29th April, 2016.

  1. The 3rd Defendant reacting to paragraphs 15, 16 and 17 of the Statement of Facts averred that in response to the Claimant’s written letter dated 9th July, 2014 on the non- remittance of his pension contributions by the 1st Defendant despite deducting same from his Retirement Savings Account managed by the 2nd Defendant, that they commenced investigation into the allegation and issued a holding response to the Claimant’s Counsel dated 18th July, 2014. The 3rd Defendant also issued a Letter of Warning dated 5th June, 2015 advising that the 1st Defendant desist from the continued violation of the Pension Reform Act 2014 and directing that it remits the outstanding sum of N480, 204,422.16 into the Retirement Savings Accounts of its employees including the Claimant.

  1. The 3rd defendant stated that the Claimant had issued another letter of 12th January, 2016 to the 3rd Defendant threatening court action against the 1st Defendant and joining the 2nd and 3rd Defendants to the suit for an alleged failure to investigate the matter and sanction the 1st Defendant appropriately. And that in response to the letter of 12th January, 2016, the 3rd Defendant issued a letter of 28th January, 2016 informing the Claimant that the 3rd Defendant had conducted investigation into the complaint and had undertaken administrative steps against Costain (WA) Plc.

  1. The 3rd Defendant avers that the Claimant was hasty in joining the 3rd Defendant to this suit and shall at trial contend that the suit as constituted does not disclose a cause of action against it.

  1. The 2ND DEFENDANT’S STATEMENT OF DEFENCE was filed and dated 10th August, 2016.

  1. The 2nd Defendant averred that the Claimant had written a letter dated 10th July, 2014 through his Solicitor E. A. Ojo (SAN) & Co requesting for the claimants retirement savings account records from 2008 to date and that they intend to institute a legal action against Costain (West Africa) Plc. who was the Claimant’s former employer only and not the 2nd defendant.

  1. The 2nd Defendant further avers that it responded to the Claimant’s letter on the 11th day of July, 2014 and a copy of the Claimant’s Retirement Savings Account Statement was attached and the employer was JARDIN Development and ASS Nig. Ltd.

  1. The 2nd defendant submitted that under the Pension Reform Act that it is not the duty of the 2nd Defendant to investigate but to manage funds remitted to it, in this case, the 1st Defendant (Costain West Africa) did not remit and the 2nd Defendant’s regulator (the 3rd defendant (National Pension Commission) has done their part by appointing a recovery agent as stipulated under the Pension Reform Act 2014.

  1. The 2nd Defendant avers that the claimant was hasty in joining the 2nd Defendant to this suit and shall at trial contend that the suit as constituted does not disclose a cause of action against it.

  1. The Claimant’s REPLY TO THE 2ND DEFENDANT’S STATEMENT OF DEFENCE filed on 24th February, 2017.

  1. The Claimant in reply to the 2nd Defendant’s statement of defence stated that:The 2nd Defendant operates as a regular bank and has a “know your customer policy” (KYC) which it never applied to the claimant. And that the 2nd Defendant has all the details of the Claimant to determine that he is not of retirement age. To the claimant, the 2nd Defendant, never bothered to check what happened to, or why remittances on the claimants account had stopped after 2007 and that he the Claimant is not aware of any appointment of a recovery agent and has not been contacted by any defendant since institution of this action. The claimant relies on all claims in its statement of claim and witness statement on oath and denies vehemently the 2nd defendants statement of defence.

 

  1. The Claimant’s REPLY TO THE 3RD DEFENDANT’S STATEMENT OF DEFENCE filed on 13th March, 2017.

  1. The Claimant in reply to the 3rd Defendant’s statement of defence stated that: he is only in receipt of the 3rd defendant’s letter Dated 18th July 2014. The  claimant maintains that not being part of the 3rd Defendant’s organization, it is only the 3rd Defendant that could have updated and alerted it, to the steps it has taken and went on to deny and stated he has been oblivious to the 3rd Defendant’s letter dated 28th January 2016.

  1. To the Claimant, it is the duty of the 3rd Defendant to investigate, and/or sanction the 1st Defendant and the 3rd Defendant failed in that duty after being informed since July 2014.

  1. Maintaining that although the 3rd Defendant has started its internal machinery to the recovery against the 1st Defendant, it merely began so allegedly in February 2016 and even at that the activities of the 1st and 2nd Defendant remained unchecked through the bulk of 2005 through to 2016, and therefore are liable to the Claimant in damages thereon.

  1. That the Claimant is claiming Negligence against the 2nd and 3rd Defendant. Assuming the 3rd Defendant had been vigilant to the activities of the 1st Defendant who had been enjoying the status of a Public Limited Liability company, since inception, it may have caught up to the activities of the 1st defendant.

  1. At the trial which commenced on the 8th April 2017, the claimant testified on his own behalf as CW; while Olusola Akinola, a Pension Fund Administrator, testified as DW1 for the 2nd Defendant and Miss Obioma Okpalla, a Deputy Manager in the Compliance and Enforcement Department of the 3rd Defendant testified for the 3rd Defendant. Thereafter, parties filed their respective Final Written Addresses. The 2nd defendant’s final written address is dated and filed on 18th January 2018, the final address of the 3rd Defendant was dated 15th January 2018, while the Claimant’s Final Written Address is dated 21st February 2018 and filed on 22nd February 2018. The Defendant’s reply on points of law was filed on 8th March 2017.

  1. On the             20th March 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

  1. The 2ND DEFENDANT’S FINAL WRITTEN ADDRESS filed on 23rd January, 2018.

  1. ISSUES
  2. Whether the 2nd defendant has been negligent to warrant the Claims as sought by the Claimant.
  3. Whether the Claimant has proved the facts in issue established in his case against the 2nd defendant.

  1. ON ISSUE 1

Whether the 2nd defendant has been negligent to warrant the Claims as sought by the Claimant.

 

  1. Learned Counsel to the 2nd defendant pointed out that Mr. Olushola Akinola testified on behalf of the 2nd defendant and was duly cross examined in his evidence testified that the Claimant had written a letter dated 10th July, 2014 requesting through his solicitor F.A. Aremu Oso SAN & Co his retirement Saving Account records from 2008 to date & also to institute legal action against his employer (1st defendant) only and not the 2nd defendant. The 2nd defendant replied to the Claimant letter in the 11th July 2014 & attaching his retirement saving account records reflecting the employer Jardin Development and Ass Nigeria Limited.

 

  1. He submitted that the above evidence were neither denied nor challenged, as it is trite law that the Court should believe the unchallenged or uncontroverted evidence of a witness. OKIKE VS LPDC (2005) 15 NWLR (PT 949)7; NZERIBE VS DAVE ENGINEERING CO. LTD (1994) 6 NWLR PT 351) 124 at 137.

  1. ON ISSUE 2

Whether the Claimant has proved the facts in issue established in his case against the 2nd defendant.

  1. 2nd Defendant Counsel submitted that where a party seeks to persuade the Court to accept must prove all the facts in issue for his case to succeed. Section 131 — 134 Evidence Act, 2011. He submitted that in civil proceedings, the standard of proof is on the balance of probabilities and that evidence called by both parties must be weighed together and whichever over weigh the others in terms of probative value should be accepted. Bismillahi v Yagba East LG (2003) 4 NWLR PT 810 at 329. Learned Counsel argued further that the Claimant believes that he is entitled to an order directing the 2nd defendants to pay his entire due pensions funds and for payment of damages of Twenty Five Million and One Hundred and Fifty Million respectively, submitting that the request would be contrary to S.7 (2) of the Pension Reforms Act 2014 which provided as thus. “The employee may with the approval of the Commission withdraws an amount of money not exceeding 25 percent of the recent amount deducted to his Retirement Saving Account……………”

  1. It is counsel’s submission that it would be outside the purview of the enabling law or statute to pay all the Claimant’s entire funds as requested by the Claimants. OJU LG VS INEC 2007 14 NWLR PT 1054 242 at 263 (CA).

  1. FINAL WRITTEN ADDRESS OF THE 3RD DEFENDANT filed on 17th January, 2018.

  1. ISSUES
  2.       Whether the Claimant has proven or established a case or any entitlement to the claims sought against the Defendants on record in order to warrant the reliefs stated.

 

  1.       Whether the 3rd Defendant has been complicit to warrant the claims as sought by the Claimant in view of the surrounding facts and circumstances.

  1. ON ISSUE 1

Whether the Claimant has proven or established a case or any entitlement to the claims sought against the Defendants on record in order to warrant the reliefs stated.

 

  1. Learned Counsel to the 3rd defendant submitted that the law is trite that where a party seeks to persuade the Court to accept a certain state of affairs, it must prove same. Abdullahi vs. Hashidu (1994) 4 NWLR (Pt.600) P.638 @ 646; that to be entitled to the claims, the Claimant need to prove the following facts in evidence:

  1. a)The specific particulars, without doubt, of his entitlement.
  2. b)Evidence linking his entitlements to the claims he seek.
  3. c)Evidence linking his claims against the targeted parties.

  1. He submitted that in civil proceedings, the standard of proof is on the balance of probabilities and that the corollary to that principle is that in the assessment of evidence on any particular issue, evidence called by either side on the issue ought to be put on either side of an imaginary scale and weighed together. Whichever out-weighs the other in terms of probative value should be accepted. BISIMILLAHI vs. YAGBA EAST L.G. (2003) 4 NWLR (Pt. 810) 329 Ratio 8 — Refers to MOGAJI vs. 000FIN (1978)4 S.C. 91. It is counsel’s contention that the Claimant simply dumped his pay advice on the Court without any link or nexus to the establishment of his case and that even where the court is magnanimous to assist the Claimant, it would arrive at the irresistible conclusion that the evidence does not even aid the Claimant in proof of his case. He submitted that the law is trite that a party cannot dump a bundle of documentary evidence on a Court or Tribunal and expect the Court to conduct an independent enquiry to provide the link in the recess of its Chambers. UCHA vs. ELECHI (2012) 13 NWLR (Pt. 1317) 230; INIAMA vs. AKPABIO (2012) 17 NWLR (Pt.1116) 255 @ 299; AWUSE vs. ODILI (2005) 16 NWLR (Pt.952) 416; A.N.PP. vs. INEC (2010) 13 NWLR (Pt.1212) 549.

  1. Counsel argued that it would be totally outside the purview of the enabling law or statute to order a pay-out of the entire funds as requested by the Claimant as the law is trite that where the statute regulating a subject matter directs on a given cause, it would amount to illegality to order otherwise. C.C.C.T & C.S. Ltd v. EKPO (2008) All FWLR (Pt. 418) 198 at 206 (SC). See also, OJU L.G. v. INEC (2007) 14 NWLR (Pt. 1054) 242 at 263(CA). He submitted that in NICN/CA/37/20I5- NATIONAL PENSION COMMISSION VS FRANSPHINAS NIGERIA LIMITED (3rd March, 2017) relying on AKINSANYA VS COCA-COLA NIGERIA LIMITED & 2 ORS (Unreported) Suit No. NICN/LA/40/2012 delivered on 7th April, 2016, My Lord, Justice E.N. Agbakoba held that ”While it is true that this court can depart from the Evidence Act when the interest of justice demands, this has never been the case where the authenticity of a document is in issue. An unsigned document calls in to question their authenticity”.

40.

  1. 3rd Defendant’s Counsel further submitted that where a statute orders that remittances are to be made to a named body, it is not open to the court to rule that such remittances should be made to any other person even if the employee is the ultimate beneficiary of the remittances in issue. And that remittances under the Pension Reform Act 2004 (now 2014) fall under this rule. Therefore, the Court cannot accede to that aspect of the Claimants prayer that the said entire contribution and/or pension fund be paid to the Claimant. E.N. Agbakoba J in NICN/CA/37/2015- NATIONAL PENSION COMMISSION VS FRANSPHINAS NIGERIA LIMITED (Supra).

  1. Learned Counsel also submitted that the general principle of law on the claims and award of pre-judgment interests in civil matters is that prejudgment interest can only be awarded where there is sufficient evidence of an agreement between the parties that such interest is payable or would be paid. ISHOLA v. S.G.P. NIG. LTD. (1997) 2 NWLR (Pt.488) 405 at page 433. He noted that it is further deserving to note that the interest sought is pre-judgment interest which are guided by principles enunciated in the case of EKWUNIFE v. WAYNE (WEST AFRICA) LTD: (1989) 5 NWLR (Pt.22). It is Counsel’s contention that an award of damages would depend on the circumstances of each case. It will flow from the loss suffered (if any) and that where the measure of damage is not nominal, as in this case, it can only be awarded with proof of loss suffered. SPDC Ltd v. NWABUEZE (2013) LPELR-21178-CA; EZEANI v. EGIDIKE (1964) 1 All NLR 402 at 405.

 

  1. Counsel submitted that the Supreme Court has held that a Judge in awarding any category of damages; whether contemptuous, nominal, general, special, punitive or exemplary damages should be convinced that the claim has been carefully scrutinized in order to see whether the Claimant is in fact seeking compensation more than for the same cause of action. IBEANU & ANOR v. OGBEIDE & ANOR (1994) LPELR-14508 CA.

 

  1. ON ISSUE 2

Whether the 3rd Defendant has been complicit to warrant the claims as sought by the Claimant in view of the surrounding facts and circumstances.

 

  1. Learned Counsel submitted that the Court should believe the uncontroverted evidence of a witness. OMOREGBE v LAWANI (1980) 3 – 4 SC 108 at 117; NZERIBE v DAVE ENGINEERING co. LTD (1994) 6 NWLR (Pt.351) 124 at 137.Counsel noted that the duties of the 3rd Defendant are as enumerated under the Pension Reform Act. Section 23(h) of the Pension Reform Act, 2014 provides as follows:

  1. 23. The Commission shall
  2. a)(h) receive, investigate and mitigate complaints of impropriety made against any.. employer, staff or agent;’

  1. Counsel assuming, but without conceding that the 3rd Defendant wasted time to take action against the 1st Defendant as canvassed by the Claimant, it is apposite to note that such supposed anomaly had been addressed by the provisions of Sections 11(6)&(7) and 107(4) of the Pension Reform Act, 2014.

  1. a)Section 11 (6) & (7) provides thus;
  2. b)(6) An employer who fails to deduct or remit the contributions within the time stipulated…shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission.
  3. c)(7) The penalty….shall not be less than 2 per cent of the total contribution that remains unpaid for each month the default continues and the amount of the penalty shall be recoverable as a debt to the employee’s retirement savings account…

  1. d)Section 107(4) provides that:
  2. e)107 (4) Notwithstanding the provision of any law, no limitation of time shall apply to actions for the recovery of contributions, penalties and other benefits under this Act.

  1. FINAL WRITTEN ADDRESS OF THE CLAIMANT filed on 22nd February, 2018.

  1. ISSUES
  2. Whether this Honourable Court can enter final Judgment against the 1st Defendant on the merits in accordance with relevant provisions of the National Industrial Court (Civil Procedure) Rules 2017.

 

  1. Whether given the circumstances of the case, the claimant is not entitled to the remittance of his pension benefits and entitlements as a consequence of his employment with the 1st Defendant from May, 2008 to May 2012

 

III.                                     Whether non-remittance of the Claimant’s Pension Benefits and entitlements to his RSA is not a breach of the mandatory statutory provisions of the Pension Reform Act 2014 (as Amended) and if so whether the 2nd & 3rd Defendant were not negligent by their actions, in-actions and/or omissions, via their conduct to the Claimant.

 

  1. Whether from the totality of the evidence adduced, the claimant has not proved his case as required by law against defendants.

  1. ON ISSUE 1

Whether this Honourable Court can enter final Judgment against the 1st Defendant on the merits in accordance with relevant provisions of the National Industrial Court (Civil Procedure) Rules 2017.

 

  1. Learned Counsel to the Claimant argued that based on the un-contradicted testimonies of the Claimant and originating processes filed before this Honourable Court, claimant wished to apply that judgment be entered against the 1st Defendant on the merits. For at this stage of proceedings, no pleadings have been filed by the 1st Defendant and have rightfully closed in accordance with Order 30 Rule 9(1) of the National Industrial Court (Civil Procedure) Rule 2017.He argued that trial has been concluded and the 1st Defendant has been foreclosed from adducing evidence, as the 1st Defendant neither adduced facts to contradict the claims of the Claimant. Order 35 Rules 1, 3, 4 and 5 of the National Industrial Court (Civil Procedure) Rule 2017.

 

  1. Claimant Counsel contended that the Claimant has gone a step further in testifying and his veracity has been tested by trial, for which there was no defence proffered by the 1st Defendant and that the 1st Defendant is deemed to have admitted all claims made by the Claimant. Febson Fitness Centre Vs. Cappa H. Ltd (2015) 6 NWLR (Part 1455) page 263, particularly at pages 280 Para F, per Hassan (J.C.A); Central Bank of Nigeria Vs. Okojie (2015) 14 NWLR part 1479 Page 231 particularly at pages 258 Paras C-E, and 267 Paras C-E, per Rhodes – Vivour J.S.C.; per Ngwuta J.S.C. at Page 267 Para D-H.

  1. ON ISSUE 2

Whether given the circumstances of the case, the claimant is not entitled to the remittance of his pension benefits and entitlements as a consequence of his employment with the 1st Defendant from May, 2008 to May 2012.

 

  1. Relying on Section 11(1) and (2) of the PRA 2014 (as amended), counsel submitted that the Claimant is only obliged to open and provide his RSA and Pin to his employer. He argued that the ‘Act’ envisages a scenario where the said funds have already been credited into an RSA held with a PFA or PFC.

  1. ON ISSUE 3

Whether non-remittance of the Claimant’s Pension Benefits and entitlements to his RSA is not a breach of the mandatory statutory provisions of the Pension Reform Act 2014 (as Amended), and if so whether the 2nd & 3rd Defendant were not negligent by their actions/inactions and/or omissions, via their conduct to the Claimant.

 

  1. Claimant’s Counsel noted that the pay slips of the Claimant shows comprehensively the deductions made from the Claimant’s salary by the 1st Defendant towards ‘a Pension Contributory Scheme and yet the 1st Defendant failed to remit same into the Claimant’s RSA. More so, without a valid reason or cause and yet failed to proffer a defence. This act, he argued may be seen as “insolence and flagrant disregard” for the Law and may be met with exemplary damages as seen in the case of University of Calabar .v. Oji [201213 NWLR Part 1288 page 418 particularly at pg. 431 — 432 para. G – A, per Akaahs J.C.A.
  2. He maintained that it is note-worthy to add that the Payment Slips of the Claimant were specifically pleaded and relied upon, and therefore may be treated as special damages, as seen in West Africa Shipping Agency (Nig) Limited .v. Kalla (1978) 3 S.C. 21 at 32.
  3. Counsel pointed out that from the sole testimony of DW1 and DW2 Mr. Olusola and ‘Mrs. Okpala’ respectively, that although the 3rd Defendant is said to be recovering the Pension fund of the claimant amongst others, that no suit has been filed till date. And that no Suit Number was proffered to this Honourable Court to take judicial notice of, in accordance with Section 122(e) of the Evidence Act 2011 LFN Cap E14 (As Amended). In essence, that it could be said there is no recovery at all. Counsel argued that it is a well-known fact that interest rates fluctuated throughout 2005 -2018 and that interest rates was a part and parcel of the transaction between the claimant and the defendants. And that interest applied to pension funds is implied by Section 55 (a) & (d) of the PRA 2014 (as amended). Adeyemi .v. Lan & Baker (Nig) Ltd. [2000] 7 NWLR Part 663 Pg. 33 pp. at pg. 48 – 49 para. D-A, per Nzeako J.C.A.; per Adeyemi J.C.A in Adeyemi .v. Lan & Baker (Nig) Ltd supra at pg. 51-52 paras H – B

 

  1. ON ISSUE 4

Whether from the totality of the evidence adduced, the claimant has not proved its case as required by law against defendants.

 

  1. Counsel to the Claimant argued that it is paramount to note that Exhibits D5, D6, D9 D12 – D15 offend provisions of the Evidence Act LIN 2014 (as Amended) CAP E14 particularly S.104 (2) which states thus:

(a)                                       “Such certificate as is mentioned in subsection (1) of this section shall be dated…”

  1. And therefore they may not be relied upon as proof of contents of public documents, for which they were tendered. Tabik Investment Ltd. Vs. GTB (2011) 17 NWLR Pt. 1276 pg240 pp. 259 F – H.

 

  1. Alternative Argument

  1. In the alternative, counsel argued that if the 2nd & 3rd Defendant say, as they have pleaded in para. 4 and 10 respectively of their pleadings; that the 3rd defendant is in the process of recovering the Claimant’s pension alongside other employees of the 1st Defendant.’ Will the 3rd Defendant pay the claimant when it has completed its purported recovery? And will “the said payment” include the damages the defendants have caused the claimant jointly or interest thereon? This he responded to in the negative, as only a Court of competent jurisdiction can award such.
  2. Furthermore, that it is pertinent to note that negligence may also be founded on res ipsa loquitor, wherein the facts of the case speak for themselves. S.P.D.C.N .v. Anaro [2015] 12 NWLR PART 1472 SC. at Pg.122 pp. at 183 paras A – E Ratio l6 & 17.

  1. Claimant’s Counsel pointed out that the cases relied upon by the 3rd defendant are mostly election petition cases, such as Ucha v Elechi (2012) NWLR Pt. 1317; LG v INEC (2008) FWLR Pt. 418 and that these cases, the Courts have held, are Sui Generis ‘in a class of their own’, and may not be applied to this case for the purposes for which they are cited.

  1. On the             20th March, 2018, parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

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. I am inclined to adopt the issues for determination formulated by the defendants. This way all the arears raised by the claimant shall also be resolved in answer to all the issues raised in this compliant. The defendant’s issues are:

1)      Whether the Claimant has proven or established a case or any entitlement to the claims sought against the Defendants on record in order to warrant the reliefs stated.

2)      Whether the 3rd Defendant has been complicit to warrant the claims as sought by the Claimant in view of the surrounding facts and circumstances.

 

  1. Before I address the merits of this case it is necessary to clarify some salient points, considering, as stated earlier that the 1st Defendants did not defend this action or call any evidence. Technically, therefore, their 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 MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. (unreported) NICN/LA/25/201 1 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.

  1. 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 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 A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS (unreported) NICN/LA/275/2012 delivered 19th December 2012 this court held as follows;-
  2. 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.
  3. 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).

  1. While the claimant’s reliefs are:
  2. a)AN ORDER directing the Defendants to pay the Claimant his entire due pension funds at the current prevailing rate, starting from the period of default which is 1st May 2008 to the 31st May 2012 [49 months] when the Claimants employment was terminated at the rate of Sixty Eight thousand Nine hundred and Sixty Nine Naira, Fifty Four Kobo (N68,969.54) [Fifteen per cent (15%) rate of minimum pension contribution rate] adding up to be the sum of Three Million, Three Hundred and Seventy-Nine Thousand, Five Hundred and Seven Naira, Five Kobo (N3, 379,507.05).
  3. b)AN ORDER directing the Defendants to pay Twenty percent (20%) interest rate starting from the first day of default of payment of the Claimant’s Pension till judgment is liquidated.
  4. c)AN ORDER directing the Defendants to pay jointly and severally General Damages in the sum of N25, 000,000.00 (Twenty Five Million Naira) against the Defendant for the hardships and inconveniences the Claimant was put through due to the defendants’ deliberate misrepresentations with regards to the pension deductions during and after the Claimant’s service years and nonpayment of already ripe entitlements.

  1. d)AN ORDER against the 2nd and 3rd Defendants Jointly and Severally for Exemplary and Pecuniary damages in the Sum of (One Hundred and Fifty Million Naira), N150, 000,000.00 for their failure to carry out their statutory duties in conducting the necessary investigation and imposing the necessary penalties and sanctions on the 1st Defendant, allowing them the avenue till date to withhold the pension funds of the Claimant.

  1. e)The cost of this suit at One Million Naira (N1, 000,000.00)

  1. The claimant is in fact seeking that entire due pension funds at the current prevailing rate, starting from the period of default which is 1st May 2008 to the 31st May 2012 [49 months] adding up to be the sum of Three Million, Three Hundred and Seventy-Nine Thousand, Five Hundred and Seven Naira, Five Kobo (N3, 379,507.05) be paid to him by order of court. Relief a. in relief (b) the claimant is seeking Twenty percent (20%) interest rate starting from the first day of default of payment till judgment is liquidated. Relief C) and (D are for damages jointly and severally to wit; General Damages in the sum of N25, 000,000.00 (Twenty Five Million Naira) against the Defendant for the hardships and inconveniences and Exemplary and Pecuniary damages in the Sum of (One Hundred and Fifty Million Naira), N150, 000,000.00 for failure to carry out their statutory duties.
  2. With respect to relief a, the claimant case is that the defendants made deductions from his monthly salaries and failed to remit same to the 2nd defendant the claimants, PFA. The relationship between the parties is one created by operation of law in fact law of contract and codified in the Pension Reform Act 2004 and amended in 2014. And the court is enjoined to determine the contractual relations. Obligations and rights according to that contract and in this case I find that the law binding the relationship in this suit is the Pension Reform Act 2004.

  1. I agree with the Claimants that Exhibits D5, D6, D9, D12 – D15 being undated offend provisions of the Evidence Act LIN 2014 (as Amended) CAP E14 particularly S.104 (2)  and shall be discountenanced for the purpose this suit.
  2. Furthermore the defendants have raised the question of unsigned documents now, in law this rule, however, applies only where the document in issue ought to be signed. In NWANCHO V. ELEM [2004] ALL FWLR (PT. 225) 107, AIKI V. IDOWU [2006] ALL FWLR (PT. 293) 361; [2006] 9 NWLR (PT. 984) 47 AND SARAI V. HARUNA [2008] 23 WRN 130, it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. And by MADAM JARATU ABEJE & ANOR V. MADAM SARATU APEKE [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. Is Exhibit   the payslip a document that ought to be signed? I do not think so, See the case of SUIT NO: NICN/ABJ/11/2015TANKO DAUDA Vs. KOTCO ENERGY LIMITED delivered on the 8th October 2017, where this court found a pay slip not a document requiring signature in law. I resolve these questions for the claimant.

  1. The suit was filed on 14th April, 2016 after the PRA 2014 came into effect on 1st July 2014. By reliefs (a), (c) and (d), the claimant is praying from this Court the aggregate outstanding pension contributions the defendant between 2008 and 2012 but which the defendant refused to remit to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators; The cause of action regarding this case accordingly arose when the PRA 2004 was the enabling law; but given that 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. And 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. Given these provisions, however considering the claimants employment was determined in May 2012.

Furthermore I am mindful 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 the unreported case of CBN v OBUIWEBI 2000 SC (226) 2004 It is however noted that Section 117(4) creates an exception to that rule.

  1. In the case of SUIT NO. NICN/LA/424/2014 NATIONAL PENSION COMMISSION VS.TRADEWAYS EXPRESS INTERNATIONAL LIMITED delivered on the 4th July 2017  this court held that in a case of this nature where a claimant is required to satisfy the court that his employer or the defendant in this case “fails to satisfy the court that his employer comes within the minimum threshold laid down by the law itself. For instance, 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.” Is there anything before the court to indicate that the claimant has established this fact.

  1. As rightly noted by the defendant; “Where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004 (note that as relates to this case, the cause of action is as governed by the 2004 pension Reform Act, not the 2014 Act, because the cause of action arose upon the claimant’s resignation on 20th July 2012) fall under this rule. This Court cannot, therefore, accede to the claimant’s prayer that the said pension contribution be paid to him.” See also the case of SUIT NO: NICN/UY/27/2015 MR. UBOH SUNDAY UBOH Vs .GRAFEN INTERGRATED OILFEILDS LIMITED delivered on the 23rd January 2017.

  1. Now, Section 9(1) of the Pension Reform Act 2004, mandates the employer make its own contribution and deduct according to the law from monthly emolument and this deduction is to be paid to PFA within 7 days Section 11(5).  This means there is an obligation on the part of the employer to deduct and remit the deduction according to the law from the employee’s monthly emolument and failure to do so under would attract a penalty which under the 2014 Act.  See  BELOVED P. ANOWU Vs. OMATECK & ANOR a case of the Lagos division delivered on the 17th March 2016, the 2014 Act went on to prescribe a penalty for late remittance that be that as it may there is nothing before the court to justify the application of this law in that the claimant have not presented to the court any law or circumstance that enable his to attach a penalty to be paid by this court to himself, as from the wording of even to Pension Reform Act 2014 the claimant cannot compel a court to award the penalty for deduction to him, furthermore the applicability of the 2014 Act to the claimant has not been established either. See the case of MR. UBOH SUNDAY UBOH Vs GRAFEN INTERGRATED OILFEILDS LIMITED SUPRA.

  1. The position of the law is that Pension is a constitutional entitlement which can be attained by the beneficiary as long as the necessary steps are taken. Furthermore Section 11(4) of the Pension Reform Act 2004 provides that an employee can only have access to his retirement savings account through his Pension Fund Administrator. Relief a) therefore fails and cannot be granted.
  2. Relief b) amounts to pre judgement interest and this court does not grant pre judgment interest. See the case of KURT SEVERINSEN V. EMERGING MARKETS LIMITED [2012] 27 NLLR (PT. 78) 374 NIC. This relief also fails.

 

  1. Reliefs c) and d) are for General and Exemplary damages. Now the claimant had not shown the court how he arrived at the sums of N25, 000,000.00 (Twenty Five Million Naira and One Hundred and Fifty Million Naira), N150, 000,000.00 against the Defendants; In making these claims the claimant bandied arounds terms such as negligence, hardships, inconveniences, failure to carry statutory duties: conducting the necessary investigation and imposing necessary penalties and sanctions.

  1. In the case of RAB CONSTRUCTION LTD. & ANOR V. ISAAC  (2012) LPELR-9787(CA) damages were described thus In addition; damages are classified generally into general and special damages. General damages are damages which the law in its wisdom, presumes to flow automatically from the wrong inflicted on a claimant by a defendant from whom they are claimed and do not need or have to be specifically, pleaded.
  2. Special damages on the other hand are specific and peculiar losses suffered as a result of the wrongful act or contract of a defendant. The damages are special in the sense that they are easily discernible and quantifiable and which does not rest on a puerile conception or notion, which give rise to speculation or assumption. See XTOUDOS SERV. NIG. LTD. v. TAISEI (W.A.) LTD. (2006) ALL FWLR (333) 1640; IVERE v. B.F. & F. M. LTD. (2008) 12 MJSC, 102; UBN v AJABULE (2011) 12 MJSC (II) 155; N.B.B. CO. LTD. v ACB LTD (2004) 1 SC 32.” Per Garba, J.C.A. (P. 17, Paras. C-G).

  1. And in OBINWA V. C.O.P. (2007) 11 N.W.L.R. (PT. 1045) 411 AT 426-427, PARAS. G-C (CA) Exemplary damages were held to mean “Exemplary damages will be awarded against a defendant in three instances. These are:

(a)                                        Where there is an express authorization by statute.

(b)                                       In the case of oppressive, arbitrary or unconstitutional action by the servants of the government.

(c)                                        Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff.

  1. Whereas Negligence according to case law has been defined thus IN SPDC (NIG) LTD V. NWAGBARA 2018 LPELR “Negligence is a question of fact, not law, and each case must be decided in the light of its own particular facts (See KALLA VS JARMAKANI TRANSPORT LTD (1961) ALL NLR 747). However, the burden of proving contributory negligence in the plaintiff lies on the Defendant. And this may be inferred from the plaintiff’s own evidence, or on a balance of probabilities, from the facts… As for the measure of damages, the principle is that the measure of damages is to be apportioned according to the proportions in which parties are responsible for the damage, taking into account both causation and blame worthiness, and the amount recoverable must be reduced to such extent as the Court thinks just and equitable, having regard to the plaintiff’s share in the responsibility for the damage. See STAPLEY VS GYPSUM MINES LTD (1953) AC 663; DAVIS VS SWAN MOTOR CO. (SWANSEA) LTD (1947)2 KB 291).” In the case of OMOTOYE VS ABC (TRANSPORT CO.) LTD (2009) LPELR – 8269 (CA), my Lord Kekere-Ekun JCA (now JSC) restated the principle/basis of liability in tort of negligence, thus: “In order to establish a claim for damages for negligence, the Claimant must plead and prove: (a) That the defendant owed him a duty of care; (b) That the defendant failed to exercise due care; and (c) That the damages was as a result of the negligence of the defendant. See NGILARI VS MOTHERCAT (1999)13 NWLR (PT.636) 628; OSIGWE VS UNIPETROL (2005)5 NWLR (PT.918) 261… The particulars of the breach of duty must be set out in the pleading and decision would turn not only on causation, but also on responsibility. See UNIPETROL NIG. PLC VS ADIREJE (W.A.) LTD VS ALE (1985)3 NWLR (PT.11)43; UMUDJE VS SHELL PETROLEUM CO. NIG. LTD (1975)11 SC 155.” Per MBABA, J.C.A. (Pp. 47-50, Paras. D-F).

  1. In order to establish a case of negligence it is important that the claimant proves to the court that the party to be held in negligence particularly the 2nd and 3rd defendant the court must be satisfied that there exists the necessary nexus or relationship that creates a duty of care between the parties. Having noted that the relationship between the parties are founded in contract, employment contract between the claimant and the 1st defendant and then the Pension Reform Act is the unifying contract between the four parties simpliteur The claimant has not shown the court the law that has created aa duty of care between himself or the 2nd or 3rd defendant so as to found a claim in negligence. The contractual role of all the parties has been well defined. The 1st defendant as employer is enjoined by Section 9(1) of the Pension Reform Act 2004, mandates the employer make its own contribution and deduct according to the law from monthly emolument and this deduction is to be paid to PFA within 7 days Section 11(5).  This means there is an obligation on the part of the employer to deduct and remit the deduction according to the law from the employee’s monthly emolument and failure to do so under would attract a penalty which under the 2014 Act.

  1. Now the law governing the relationship has provided to penalties for the non- remittance of pension deductions, the claimant has not presented the court with an evidence of any actual hardship or inconvenience suffered by him.

  1. The Act makes an employee who fails to remit his contribution to the employees Retirement savings Account RSA within 7 days after paying the employees salary liable to a penalty to be stipulated by PENCOM. the penalty shall not be less than 2% of total contribution that remains unpaid each month the default continues and the amount of penalty shall be recoverable as a debt owed to the employee’s RSA.

  1. The 2014 Act has created offences, sanctions and penalties, in fact almost all parts of the act provide penalties for non-compliance; i.e Section 99(1) make it an offence to contravene any provision of the Act, and the Act contains specific offences and sanctions such as are found in Section 35 failure to comply with an Auditor’s instruction, Operating a PFA without a license, Section 23©, Section 59, Failure by external auditors to report material issues to PENCOM Section 68, Use of pension funds by PGC Section 101, failure of a PFA or PFC to provide information Section 104, Misappropriation of Pension finds Section 100 etc, but these section as others of their like provided various fines and terms imprisonment but they all require liability upon conviction.

  1. Also the recent unreported Court of APPEAL NATIONAL OIL SPILL DETECTION & RESPONSE AGENCY (NOSDRA) VS. EXXONMOBIL delivered on the 20th April 2018 the Court of Appeal case of struck down the powers of regulatory agencies to impose fines without recourse to the courts. The Court went on that section 6(3) of the NOSDRA Act empowering it to impose fines on organizations it regulates, was in clear violation of the 1999 Constitution. In that the imposition of penalty on Mobil, without due recourse to the courts, the respondent had “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 in fact 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. Referring 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.
  3. The Court of Appeal continued that in “fact that awarding a fine is a judicial act and it is the sole prerogative of a court of law under Section 6 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). No other organizations or bodies can usurp that power. Any law that would consign to anybody other than the courts the power to award fine is unconstitutional.”
  4. The claimant in the instant case is asking for damages from the defendants for failure to carry out their statutory duties in conducting the necessary investigation and imposing the necessary penalties and sanctions. The PRA creating these sanction and penalties as well as case law require that the defendants be found liable by a court of law before the question of sanction or penalties can be considered. Even if the claimant could find in law a recourse to damages considering that the present legal system still operates the rule of SMITH Vs. SELWYN with regard to criminal offences, the pre requisites to consider a claim in damages I find have not been met. Especially as the claimant has supplied no evidence of any of such of these concerns;- no such proof of hardship or inconvenience has been put before the Court and the statue creating the statutory duties provided sanctions for their nonperformance together with penalties recoverable as a debt owed the claimant’s RSA. This point I find resolves the alternative argument. For all the above reasons reliefs c) and d) also fail and cannot be granted; In addition to the fact that the Claimant had not satisfied the Court as to S 19 PRA 2014.

  1. In this case the claimant was seeking payment of the outstanding pension deduction to himself, which the court cannot grant, pre action notice also not grantable as well as damages which were not established or proved.

  1. Having said that it is not in doubt that the claimant is not ordinarily entitled to be paid via his PFA into his RSA his contributions as well as the 1st defendants contributions under the Pension Reform Act, and the only reason the court is unable to grant the reliefs sought in this case is the way and manner in which the claimant couched the said reliefs. I have elucidated this earlier. Now section 14 of the National Industrial Court Act 2006 provides that “the court shall in the exercise of the jurisdiction vested in it by or under this Act, in every cause or matter have power to grant either absolutely or on such terms and conditions as the court thinks just, remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and a multiplicity of legal proceedings concerning any of those matter be avoided”.

  1. By this token this Court is empowered by law to grant to a claimant, and in this instant this claimant such remedies as the party before the court is entitled to in order to avoid multiplicity of suits.

  1. By virtue of the provisions of Section 14 NICA 2008;
  1.  The 1st defendants are hereby mandated to pay to the 2nd defendants within 30 days all the claimants due entitlement.
  2. The 2nd defendants are hereby directed to collate and collect all the contributions and deductions due to the claimant together with any incidental penalty properly assessed obtained under the supervision of the 3rd defendants.
  3. The 2nd and 3rd defendant to inform the Chief Registrar of this court within 60 days on the execution of these orders.

  1. This is the court’s judgment and it is hereby entered.

……………………………………….

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE, ABUJA DIVISION

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