IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: NOVEMBER 30, 2017
SUIT NO: NICN/LA/522/2015
BETWEEN
Frank Humwapwa Muyong –
Claimant
AND
Discovery Airways Limited –
Defendant
REPRESENTATION
O. Y. Akindele Mrs. for the Claimant.
JUDGMENT
1. Introduction & Claims
The Claimant filed his General Form of Complaint in this case on 23/10/15 and sought the following reliefs –
1. A declaration that the Claimant is entitled to his six months ‘salary worked for and unpaid by the Defendant.
2. An order compelling the defendant to pay to the claimant 15 months Tax Deductions from the claimant’s salaries that was unremitted to the Tax Authorities by the Defendant.
3. An order compelling the defendant to pay to the claimant 15 months National Housing Fund deducted from the Claimant’s salaries at the rate of =N=19,399.85 per month without remittance to the appropriate administrator.
4. An order compelling the defendant to pay to the claimant 15 months Pension statutory contribution of the defendant by law at the rate of 7.5% of Basic salary, Housing and Transport at =N=59,262.04 per month and never remitted to the Pension Fund Administrator.
5. 15 months pension at =N=59,262.04 per month deducted from the Claimant’s salary.
6. 3 months pension balance at the rate of 10% effective from 1st July, 2014 via a Federal Government’s enactment.
The Complaint was accompanied by a statement of facts, list of Claimant’s witness, written statement on oath of the Claimant, Verifying Affidavit as well as list and copies of documents to be relied on at trial. The Defendant, though served as appropriate, neither entered an appearance nor file any defence process.
2. Case of the Claimant
This case commenced on 23/1/17 when the Claimant opened his case, testified as CW1, adopted his written statement on oath dated 23/10/15 as his evidence in chief and tendered 4 documents as exhibits. The documents were admitted in evidence and marked as Exh. FM1-Exh. FM4. The case of the Claimant is that was at all material times to this suit an employee of the Discovery Airways Ltd; that he joined the Defendant’s employment, as a Chief Inspector, vide his letter of employment dated 15/5/13 and as confirmed by the Nigerian Civil Aviation Authority vide letter dated 17/6/13 and 31/10/13; that he faithfully carried out his duties applying his professional competence in accordance with the dictates of his job; that despite his commitment to work payment of salaries was not regular; that yet he applied his professional competence, to the cause of his employers; that unable to meet up with his financial obligations and to keep body and soul intact, he consequently had to withdraw his services from the Defendant via his letter dated 26/9/14; that the Defendant acknowledged its indebtedness to the Claimant by his letter of 29/9/14; that the terms and conditions of the Claimant’s employment are as contained in the contract of employment dated 15/5/13 annexed to the said employment letter; that in line with the Defendant’s policy as stipulated in the contract of employment, he is entitled to be paid his monthly salary which the Defendant did not pay for six months and 15 working days; that at the rate of =N=600,000.00 monthly, the Defendant is owing him the sum of =N=3,600,000.
The Claimant added that the Defendant admitted this much by their letter of 29th September, 2014; that the Defendant on a monthly basis made Tax deductions of =N=111,498.65 from the Claimant’s salary for 15 months totaling =N=1,672,479.75 but were never remitted to the Tax authorities as he has no tax clearance to show for the 15 months period.
It is also the case of the Claimant that the Defendant on a monthly basis made Pensions deduction of =N=59,262.04 being 7.5% of Basic salary, Housing and Transport allowances from the Claimant’s salary for 15 months; that the deductions totaling =N=888,930.60 which was made from the Claimant’s Salary was never remitted to the Pensions Providers; that the Defendant’s statutory contribution to the Pension of the Claimant which it ought to pay but failed monthly was =N=59,262.04 being 7.5% of Basic salary, Housing and Transport allowances from the Claimant’s salary for 15 months totaling =N=888,930.60; that the Federal Government by Law effective 1st July, 2014 increased the employers’ statutory contributions to the employees’ Pension to 10% of Basic salary, Housing and Transport allowances; that the sum of =N=19,399.85 being monthly National Housing Fund contribution deducted from his 15 months salaries totaling =N=232,798.16 was also never remitted; that the total of the defendant’s indebtedness to me now is now =N-6,452,408. 00 and that the Defendant has refused to pay him despite repeated promises to pay the Claimant.
The Defendant though served with hearing notice as required did not cross examine the CW1.
3. Submissions on Behalf of the Claimant
At the close of the trial in which the defence failed and/or refused to open its case, the Court directed parties to file their final written addresses in accordance with the Rules of Court.
The Defendant did not file any written address. Claimant’s 6-page final written address was dated and filed on 12/6/17. In it, learned Counsel set down a lone issue for determination as follows –
Whether the Claimant is entitled to the relief sought before this Court.
Arguing this lone issue, learned Counsel submitted that pursuant to the resignation of employment by the Claimant, the Defendant issued him with Exh. C4 which advised the Claimant of his terminal entitlement in the sum of =N=3,600,000.00; that if Claimant had been so paid there would have been no need for this suit and that facts admitted need no further proof citing S. 75, Evidence Act, 2011 & Ogunnaike v. Ojayemi (1987)3 S.C 13 at 247.
Counsel urged the Court to so hold. On the claims of the Claimant for unremitted tax deduction and unremitted pension contribution deductions Counsel submitted that the Defendant deducted the sum of =N=67,500.00 monthly from the salary of the Claimant for 20 months; which comes to =N=1.350,000.00; that the evidence led by the Claimant remained unchallenged and that the Defendant is statutorily mandated to contribute equal sum to the Pension Fund Administrator of the Claimant.
Counsel referred to Ss. 9 & 11 (3), Pensions Reform Act, 2014. Counsel submitted that it is clear that the Defendant did not make returns as envisaged by the Pensions Reform Act. On the issue of unremitted tax deductions, Counsel submitted that the Claimant gave unchallenged evidence on the deductions made by the Defendant but not remitted as tax Clearance was not issued to the Claimant.
Learned Counsel prayed the Court to enter judgment in favor of the Claimant on all the reliefs sought.
4. Decision
The Defendant was afforded all opportunities to defend this case. Despite service of hearing notices and evidence attesting to same, the Defendant did not file any process or represented at trial by a Counsel.
I read and understood all the processes filed by learned Counsel to the Claimant. I heard the testimony of the lone witness for the Claimant and watched his demeanor.
I also evaluated all the exhibits tendered and admitted in this case.
I propose to adopt the lone issue of the Claimant in the just determination of this case.
Before then however, I need to comment, albeit, briefly on the final written address of the Claimant. The purpose of final written address, among others, is essentially to assist the Court in its duty of adjudication.
See Onyeakarusi v. Nwadiogo (2016) LPELR (CA). In order therefore for a written address to serve that purpose, it must be a reflection of the proceedings of Court including the numbering of evidence. Otherwise, rather than assist, a final written address may end up adding to the burden of a trial Court in particular. In her final written address dated and filed 12/6/17, learned Counsel referred to ”Exhibit C1-3, Exhibit C1-4, Exhibit C2 and Exhibit C4. Unfortunately, no exhibit tendered and admitted in this Court in this case is so marked. The 4 exhibits admitted in this case were marked Exh. FM1, Exh. FM2, Exh. FM3 & Exh. FM4 respectively. A bit of more diligence would have made greater impact. I say no more.
For the just determination of this case I adopt this lone issue –
Whether the Claimant is entitled to the relief sought before this Court.
This lone issue is apt in that it is trite that whoever approaches the Court for judicial intervention must prove his case to the satisfaction of the Court. The proof which is expected to be by cogent, credible and admissible evidence may either be oral or documentary. it may also be both. What are the claims of the Claimant in this case and what evidence has he put forward?
The first relief sought by the Claimant is for a declaration that the he is entitled to his six months ‘salary worked for and unpaid by the Defendant. In paragraph 6 of his written statement on oath, the Claimant testified to the effect that he was being owed salary for 6 months at the rate of =N=600,000.00 per month and that the Defendant admitted to same in a letter dated 29/9/14. That letter was tendered and marked as Exh. FM3. It was signed by one Abimbola Awudu, Human resources Business Partner of the Defendant. Defendant did not canvass any argument against its admission. The law is trite a Court is entitled to rely on unchallenged piece of admissible evidence. See Nze v. NPA (1997) LPELR-6254 (CA). Therefore, having been admitted, the Defendant is ordered to pay to the Claimant the sum of =N=3,600,000.00 being the Claimant’s 6 months unpaid salary as admitted by the Defendant.
The second relief sought is for an order compelling the defendant to pay to the Claimant 15 months Tax Deductions from the Claimant’s salaries that was unremitted to the Tax Authorities by the Defendant. Averments to support this relief are contained in paragraph 7 of both the statement of facts and written statement on oath. Claimant alleged that the sum of =N=1,672,479.75 was deducted from his salary in 15 months but not remitted to tax authorities. Payment of Tax especially on incomes by all and sundry is a statutory and civic responsibility. See Personal Income Tax Act, Cap. P8, Laws of the Federation of Nigeria, 2004. To therefore order the Defendant to refund same to the Claimant will not support the spirit and necessary intendment of Tax Law.
I thus refuse and dismiss this head of relief. However, the Defendant is here ordered and directed to pay the sum of =N=1,672,479.75 to the appropriate tax authorities and oblige the Claimant a Tax Clearance Certificate.
I also direct the learned Counsel to the Claimant to bring to the attention of the Lagos State Inland Revenue Service the order of this Court as relates to this relief.
The Claimant also sought an order compelling the defendant to pay to the claimant 15 months National Housing Fund deducted from the Claimant’s salaries at the rate of =N=19,399.85 per month without remittance to the appropriate administrator. Deduction for National Housing Fund is for the benefit of employee. The deduction under this head ultimately belongs to the employee concerned. In paragraph 11 of his written statement on oath, the Claimant testified that the sum of =N=19,399.85 was deducted from his salary monthly and for 15 months as National Housing Fund contribution; that the total sum deducted is =N=232,798.16 and that the said sum was never remitted.
Contribution to this Fund is for the benefit of the employee. Page 4 of Exh. FM1 is evidence of the sum to be deducted as National Housing Fund contribution.
In the absence of any evidence to the contrary, the Defendant is ordered to pay to the Claimant the sum of =N=232,798.16 being the sum deducted from the Claimant salary for 15 months as National Housing Fund contribution but not remitted as appropriate.
The Claimant also sought an order compelling the defendant to pay to him 15 months Pension Statutory contribution at the rate of 7.5% of Basic salary, Housing and Transport at =N=59,262.04 per month (totaling =N=888,930.60) as well as the equal sum statutorily mandated for the Defendant to contribute as an employer (totaling =N=888,930.60) and never remitted to the Pension Fund Administrator. In paragraph 8 & 9 of his statement of facts Claimant averred that the sum of =N=59,262.04 was deducted monthly from his salary for a period of 15 months but not remitted as pension deductions; that this figure represented 7.5% of his salary; that the total deduction for pension was =N=888,930.60 and that the Defendant was obliged under the law to make statutory contribution of equal amount to his Pension Fund Administrator.
Page 4 of Exh. FM1 is evidence of the deduction of pension contribution from the salary of the Claimant. These facts were repeated by the Claimant in his evidence in chief. This evidence was not challenged or contradicted by the Defendant during trial.
The Court not having been afforded opportunity of receiving evidence to the contrary is bound to act on same.
In Udo & Ors. v. Essien & Ors. (2014) LPELR-22684 (CA) restated the position of the law that evidence that is relevant to the issue in controversy and is not successfully challenged, contradicted and discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Judge in the determination of the case before it.
Under the Pension Reforms Act, pension deductions from employees’ salary must be remitted to a Retirement Savings Account of an employee opened with a Pension Fund Administrator chosen by the employee. The statutory contribution of the employer is also expected to be deposited into the Retirement Savings Account.
The Retirement Savings Account of an employee is for the benefit of that employee to provide him succor upon retirement from active service. Unfortunately, there is no evidence before the Court respecting the Pension Fund Administrator of the Claimant nor of his Retirement Savings Account, if he has one.
Having stated in this Judgment that pension deductions saved into a Retirement Savings Account is for the benefit of the account owner, it is safe to order the Defendant to pay the sums deducted but not remitted as appropriate back to the Claimant.
The Defendant is here ordered to pay to the Claimant the sum of =N=888,930.60 being the sum deducted from the salary of the Claimant as pension but not remitted as appropriate.
The Defendant is further ordered to pay to the Claimant the sum of =N=888,930.60 being the mandatory statutory pension contribution by the Defendant as an employer to the pension of the Claimant and which contribution was not made.
Finally, for the avoidance of doubt and all the reasons as stated in this Judgment,
1. I declare that the Claimant is entitled to his six months’ salary worked for and unpaid by the Defendant.
2. The Defendant is ordered to pay to the Claimant the sum of =N=3,600,000.00 being the Claimant’s 6 months unpaid salary as admitted by the Defendant
3. The Defendant is here ordered and directed to pay the sum of =N=1,672,479.75 to the appropriate tax authorities and oblige the Claimant a Tax Clearance. I direct the learned Counsel to the Claimant to bring to the attention of the Lagos State Inland Revenue Service the order of this Court as relates to this relief.
4. The Defendant is ordered to pay to the Claimant the sum of =N=232,798.16 being the sum deducted from the Claimant salary as National Housing Fund contribution but not remitted as appropriate.
5. The Defendant is here ordered to pay to the Claimant the sum of =N=888,930.60 being the sum deducted from the salary of the Claimant as pension but not remitted as appropriate.
6. The Defendant is further ordered to pay to the Claimant the sum of =N=888,930.60 being the mandatory statutory pension contribution by the Defendant as an employer to the pension of the Claimant and which contribution was not made.
7. The Defendant is ordered to pay to the Claimant the sum of =N=100,000.00 as cost of this action.
All the terms of this Judgment are to be complied with within 30 days from today.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
