IN THE NATIONAL INDUSTRIAL COURT OF NIGER\A
INTHE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 30th January, 2020
SUIT NO. NICN/LA/612/2017
BETWEEN:
LEGACY PENSION MANAGERS LTD.—————————CLAIMANT
- EBHODAGHE CLEMENT AIGBONOHAN—————DEFENDANT
REPRESENTATION:
A.O. Imoisili Esq. with A. Okoh Esq. For the claimant
- Okeke Esq. with P.C. Eboh Esq. for the defendant
JUDGMENT
By a general form of complaint filed on the 8/12/2017, the claimant sought the following reliefs from the court;
(1) An order of the honourable court directing the defendant to pay to the claimant the sum of N7,819,779,50 with interest at the rate of 30% from the date of judgement in the suit herein to the date of the actual payment of the judgement sum.
(2) Cost of the action.
Filed along with the complaint, is a statement of facts and a witness deposition of the sole witness for the claimant. In response to the complaint served on the defendant, the defendant filed a statement of defence on the 20/4/2018. Along with a witness deposition of the defendant who testified as the sole witness. The claimant with the leave of court filed an amended statement of facts on the 30/11/2018. In response, the defendant filed an amended statement of defence on the 18/12/2018, wherein he counter-claimed the sum of N1,213,545.64k as accrued rights under his pension contribution.
Hearing in this matter commenced on the 5/2/2019. Mr Musa Joda testified as the sole witness for the claimant and tendered the following exhibits;
- Legacy Pension retirement savings account statement marked as Exhibit C1.
- Letter of demand by Legacy Pension Limited dated 13/10/15 marked as Exhibit C2
- Legacy Pension letter of demand dated 18/11/2015, marked as Exhibit C3.
- Claimant’s solicitor’s letter of demand dated 10/11/2017, marked as Exhibit C4.
- Legacy Pension letter addressed to the DG. NPC marked as Exhibit C5.
The claimant witness was cross examined and there after the claimant closed their case.
The defendant opened their case on the 19/3/2019, with the defendant testifying as DW 1 and the sole witness. The defendant adopted his witness deposition and tendered the following documents in evidence;
- Letter of retirement dated 21/9/2011, marked as Exhibit D1.
- Retirement savings account statement for 31/12/2010 to 28/11/2011, marked as Exhibit D2
- Legacy Pension letter of demand for the refund from the defendant dated 13/10/2015, marked as Exhibit D3.
- Solicitor’s reply to Legacy Pension letter dated 3/11/15, marked as Exhibit D4.
- Retirement savings account statement for 1/1/2011 to 17/7/2015, marked as Exhibit D5.
The defendant was cross examined and he closed his case on that date. The matter was adjourned for the adoption of final written addresses on the 16/11/2019.
BRIEF FACTS OF THE CASE.
The case of the claimant is that sometimes in 2011 when the defendant retired from the service of NDIC, the claimant computed the defendant pension contribution as remitted to the claimant and submitted same for approval by the National Pension Commission on the 19/12/2011. Based on the computation, the N.P.C. approved the payment of N9,398,363.93 to be paid into the defendant personal account and a further sum of N9,368,093.29 to be paid to Leadway Assurance Limited for the benefit of the defendant for a monthly annuity of N84,810.47. This made a total of N18,766,457.22. The claimant went ahead to effect the payment as approved only to realise that the computation was done in error which arose from software error in the claimant computer system which was discovered after a routine auditing. The claimant allege that there was no way the defendant contributed pension could have been the sum of N18,691,035.35k considering the fact that as at September, 2011 when the defendant retired, the gross monthly salary of the defendant was N70,955.30. The claimant allege that the total sum contributed and remitted un-behalf of the defendant was N 6,519,976.32k while the return on investment was N 2,878,387.61k, bringing the defendant total entitlement to be N9,398,363.93.That upon noticing the excess payment into his account, the defendant quickly withdraw all the monies in the account. While this was going on the defendant former employer N.D.I.C. paid a further N 1,004,768.16k into the defendant retirement savings account. Which the claimant refused to release on the request of the defendant on the grounds that the defendant has already been overpaid with an excess sum of N9,058,899.11. The claimant allege that when the last payment is deducted from the excess sum paid to the defendant, the defendant is liable to refund the sum of N7,819,779.50k which is the sum the claimant is claiming against the defendant in this action. The claimant has written to the defendant demanding the refund of the said over payment and the defendant has refused to comply with the demands of the claimant.
On the other hand, the defendant’s case is that by a letter dated 21/9/2011, the defendant former employer informed him that his retirement benefit would be computed and communicated to him. That the claimant computed his retirement benefit for the period of 31/12/2010 to 28/11/2011 and the Retirement Savings Account statement was authorised and sent to the defendant as representing an authentic computation because the claimant acted in a professional capacity with professional competence. The defendant allege that he had no reason not to belief that the sum of N18,691,035.35 computed and paid to him in 2012 was his accrued pension benefit. The defendant position is that he had no knowledge whatsoever of the amount of his pension contribution and his retirement entitlement nor the computation formula used in the computation paid to him. He further contends that there is no privity of contract between him and the contractual relationship between the claimant and his former employer over his pension contribution. The defendant admits that the claimant transferred N9,368,093.29 as premium to Leadway Assurance Company for his benefit and a further N9,398,363.93k to the defendant personal account. The defendant allege that the claimant did not commit any blunder of any sort in paying the defendant his pension benefits. That the claimant wrongly withheld his retirement benefit of N1,213,545.64 paid into his Retirement Savings Account. The defendant states that in response to the claimant letter demanding the refund of the over payment of N7,819,779,50, he replied through his solicitors letter of 3/11/2015, he demanded for the release to him of the above sum retained by the claimant. The defendant now counterclaims the sum of N1,213,545.64 and interest at the rate of 30% on the above stated sum. This is the position of the parties in this action.
ISSUES FOR DETERMINATION.
From the facts and circumstances of this case it is the opinion of this court that the issue for which arise for determination in this action is
Whether considering the totality of the evidence adduced in this matter, the claimant has been able to proof that the defendant was overpaid the sum of N9,058,899.11K for which defendant is liable to refund the sum of N7,819,779.50K after deducting the sum of N1,004,768.16 which is counter-claimed by the defendant in this action.
The above formulated issue would effectively address the claim and counter claim of the defendant and there will be no need to decide the counter claim separately as the counter claim spring from live issued in the claim.
The claimant position in this action is that the defendant opened a retirement savings account no PEN100153801111with Legacy Pension Limited, which was used by the defendant employer NDIC to remit his pension contribution as required by law. At the retirement of the defendant sometimes on the 1/10/2011, as evidenced by Exhibit D1, the claimant computed the retirement benefit of the defendant which was approved on the 19/12/2011 to be in the sum of N18,766,457.22K which was paid in two tranches of N 9,398,363.93k into the account No 0001508043 in Citibank operated by the defendant. The other sum of N9,368,093.29, on the request of the defendant was paid to Leadway Assurance Company Limited in return for a monthly Annuity of N84,810.47 effected on 19/1/2012. It is the testimony of CW1 that the total sum transferred to the defendant was in excess of his pension benefits. CW1 testified that sometimes in 2015 while examining the defendant record in the course of a reconciliation exercise carried out on the defendant account, it was discovered that the amount paid out to the defendant was in excess of what was supposed to be the balance in defendant retirement savings account. He testified further that reconciliation showed that for the period from July 2006 to September, 2011, when the defendant retired his total contribution was N7,199,097.92k and that when the investment income of N2,508,460.19 is added to the above stated remittance to the retirement saving account of the defendant, the total pension benefit of the defendant would have been N9,707,558.11k as at 25/11/2011, when the computation was made. During cross examination CW1 stated that prior to the movement of the defendant total benefit from the active RSA to retirement fund the claimant had carried out a system upgrade by changing the software used by the claimant. In the process the amount doubled to become N18,691,035.35k. CW1 testified that immediately the defendant noticed the increased he immediately asked for 50% of the amount to be paid into his personal account with Citibank and the other to be paid to Leadway Assurance Limited to be used to service his annuity. He testified that this error was discovered in July, 2015.The witness tendered Exhibit C1 the RSA of the defendant detailing the figures before the inflated amount and what was the proper figure in the defendant RSA at the relevant time in issue. He also tendered Exhibit C2 ,(which is the same as Exhibit D3 tendered by the defendant), Exhibit C3 and Exhibit C4 are the various letters of demand addressed to the defendant demanding the refund of the over payment. The claimant testified that while efforts were still intensified to recover the over payment, the defendant’s former employer remitted a further sum of N1,213,545.64 which the claimant appropriated to reduce the overpayment.
I have carefully evaluated the evidence given by the claimant witness in this action. The defence put forward by the defendant is that he had no knowledge of the amount contributed and remitted as his contributory pension (see paragraphs 7 to 9 of the additional witness deposition of the defendant). During cross examination he was asked whether he was aware of the percentage of deduction made by him and also by his employer to the RSA, his answer was ‘yes’ in response to the question put to him by the court thus ‘ During the period you operated the Retirement Savings Account with the claimant, did you receive information regarding the remittance to your account?’ his answer was Yes, we usually receive statement of account every 3 months from the claimant.’ These pieces of evidence are clear and unequivocal admissions by the defendant that he had full knowledge of what was remitted as his pension contribution.
The defendant also on one breath allege that the computation made by the claimant and approved which was paid to him, is the correct computation of his pension entitlement and that the claimant/defendant to the counter claim did not commit any blunder of any sort in paying the monies to the defendant (see paragraph 13, 18 and 19 of the DW1 witness deposition). However in his written submission counsel for the defendant argued in almost all the entire gamut of the final written address that the claimant was negligent in making the payment to the defendant. That the defendant not being responsible for the error, should not be held responsible for it. I understand the argument of the defendant counsel to mean that the defendant should be allowed to take benefit of the error made by the claimant in the computation and payment made to the defendant. This is the most appalling argument I have ever heard. I agree with the learned counsel for the defendant in paragraph 4.20 of his written submission that the court cannot be used as an engine for fraud and subversion of the law under whatever guise. Assuming that the claimant was negligent, can the negligent conduct of the claimant constitute and raise a defence in favour of the defendant so as to enable him take fraudulent benefit of the inadvertence negligence of the claimant in this action?, the answer is certainly ‘No’. It is the strong opinion of this court that except in situation of contributory negligence, negligence has never been used as a defence to an action in tort. This action in any case is not founded on a tortious claim. In other words, negligence is only recognised in our law as a cause of action and not a defence see Nwangwu V. FBN PLC. [2008]LPELR-4478 (CA). The defendant counsel argument is without any legal basis and is discountenanced. I must also state clearly that since the defendant concedes that that the claimant committed plunders and was negligent in the computation and subsequent payment to the defendant which he claims he should not be liable, the defendant has invariably admitted that there was overpayment made which, the claimant is seeking a refund.
The defendant contention that there is no privity of contract between the claimant and the defendant over the opening and operation of the RSA as it was the NDIC that nominated the claimant as the pension managers is an argument that has no basis in law and runs contrary to the provisions of S. 11 of the Pension Reform Act 2004, which require the defendant to open a RSA with a pension manager of his choice and supply the details to his employer to effect the appropriate remittals to the account.
I must note here that the evidence led by the claimant in proof of the over payment to the defendant was never controverted. It is trite law that evidence led by a party in a proceedings which is not contradicted must be accepted as establishing the facts they relate. See the case of Ansa & Ors V. Addax Petroleum Nig. Ltd. [2013]LPELR-21128(CA) where the court of Appeal held that where evidence led by the plaintiff in a civil case is neither challenged nor controverted, his onus of proof is discharged on a minimal proof because there is nothing on the other side of the scale. This court is under a duty to act on such un-contradicted and unchallenged evidence. See the case of Irawo-Osan & Anor. V. Folarin [2007] LPELR-9040 (CA). The claimant in this action led evidence in proof of the over payment of the sum of N9,058,899.11. The burden of proof had shifted to the defendant to proof his assertion that the computation and payments made to him was correct. This, the defendant failed to do. Rather defendant is alleging negligence on the part of the claimant and wants the court to excuse him from it and allow him to take benefit of the over payment made in his favour by the claimant. This court cannot be used by the defendant to encourage fraud and unlawful enrichment. It is on the above stated premise that this court accepts the evidence of the claimant in this suit and holds that the defendant was overpaid the sum of N9,058,899.11.when his pension benefit was paid to him. To allow the defendant to retain that sum no matter the length of time it took to discover the over payment would amount to the court encouraging dishonesty and conferring unjust enrichment on the defendant. The defendant is under a legal as well as a moral duty to refund the overpaid sum back to the claimant.
The next issue is the amount that is refundable under the circumstances. It is in evidence that despite the several demands made as shown by Exhibits C2 C3 and C4 sent to the defendant to refund the said overpayment, the defendant in its Exhibit D4 kept justifying the payment. It is also in evidence that sometimes in 2015, the defendant RSA was credited with the sum of N1,004,768.16k as his accrued rights. The claimant testified that this sum was appropriated to reduce overpayment. The letters of demand Exhibits C2, C3 and C4 clearly stated the sum of N7,819,779.50k as balance remaining to be repaid by the defendant. Having held in this judgment that the defendant was overpaid and is liable to refund the over payment, the counter claim of the defendant for the sum of 1,004,768.16k becomes otios and cannot be considered by the court, the counter-claimed sum having been used to reduce the liability of the defendant for the over payment. The counter claim fails and is hereby dismissed along with the interest claimed on the counter-claimed by defendant. The defendant is liable to refund the sum of N7,819,779.50k being the balance of the sum overpaid to the defendant. The defendant is hereby ordered to pay the sum N7,819,779.50k to the claimant.
The defendant shall pay the said sum to the claimant within the next 7 days from the date of this judgement failure of which the judgment sum shall attract interest at the rate of 10% until the liquidation of the judgment sum.
Cost is assessed at N100,000.
On the whole this suit succeeds. Judgment is entered accordingly.
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Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
