MR.AMOS CHIBANI TUKURA VS SHORELINE DREDGING AND OIL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

SUIT NO: NICN/YEN/51/2017

BEFORE HIS LORDSHIP HON.JUSTICE SALISU H. DANJIDDA

DATE: 12TH OCTOBER, 2018

BETWEEN
MR.AMOS CHIBANI TUKURA…………..CLAIMANT

AND

SHORELINE DREDGING AND OIL SERVICES LIMITED…………………………………….. DEFENDANT

REPRESENTATION:
Ofekeze Darlynton Okiemute for the Claimant

Chime, S Chime for the Defendant

JUDGEMENT

The Claimant instituted this suit by way of complaint on 31/3/3017. The complaint was accompanied by statement of material facts, witness statement on oath and other originating processes. The Claimant filed a motion for summary judgment along side the originating processes and the defendant filed a counter affidavit to the said motion. However, the said motion dated 31/3/2107 was struck out at the instance of the Claimant. The Claimant claimed for the following reliefs:-

“a. The sum of N4,323,375 (four Million, Three Hundred and Twenty Three Thousand, Three Hundred and Seventy Five Kobo) being salary arrears for march 2014 -July, 2014, September 2014, unpaid half of a month’s salary for October 2014 and salaries for November, 2014 – February 2015 at N411,750 monthly and 205,875 for half of a month’s salary.

The sum of N157, 293.73 ( One Hundred and fifty seven Thousand, Two Hundred and Ninety Three Thousand, Seventy Three Naira) being 13th month salary for 2014.
c. The sum of N172,935 (One Hundred and Seventy Two Thousand, Nine Hundred and Thirty Five Naira) being leave bonus for 2014 assessed at 3.5% of the annual gross salary of N4,914,000.
The sum of N300,000 (Three Hundred Thousand Naira) being fuel allowance for March 2014- February 2015 at N25,000 per month.
The sum of N802, 912.5 (Eight Hundred and Two Thousand, Nine Hundred and Twelve Thousand, Five kobo) being the sum of N30, 881, 25 (Thirty Thousand, Eight Hundred and Eighty one Naira, Twenty Five Kobo) ie 7.5% of gross salary deducted monthly from the Claimant’s salary between January 2012 and February 2014 but not remitted to the designated pension fund Administrator.

f. The sum of N802, 912.5 (Eight Hundred and Two Thousand, Nine Hundred and Twelve Thousand, Five kobo) being the sum of N30, 881, 25 (Thirty Thousand, Eight Hundred and Eighty one Naira, Twenty Five Kobo) ie 7.5% of gross salary the defendant was obligated to contribute to the Claimant’s pension account with the designated pension fund administrator from January 2012 – February 2014.

g. The sum of N11, 117, 800 (Eleven Million, One Hundred and Seventeen Thousand, Eight Hundred Naira ( being one and half monthly gross salary for 18 years as stipulated by the defendant’s employee’s handbook as redundancy benefits.

h. The sum of N894, 188.53 as special damages being interest incurred by the claimant as a result of his inability to defray the facility due to the defendant’s failure to pay his salary.
The sum of N10,000,000 as damages for wrongful termination.
j. 10% interest on judgement sum till same is liquidated.”

The defendants on the other hand filed a memorandum of appearance and statement of defence on 2/5/2017.

The Claimant in proof of his case testified as CW1 and tendererd 9 Exhibits while the Defendant also called a lone witness and tendered two Exhibits.

CASE OF THE CLAIMANT’

Claimant as CW1 adopted his statement on oath dated 31/3/2017 as his evidence in chief, wherein he testified that the defendants employed him on 28/8/1997 by Exhibit CW1. He was later confirmed by Exhibit CW2. That he dutifully served the defendant and was promoted severally till he rose to the position of purchasing/Logistics Manager and issued with Exhibit CW3 which is certificate of 10 years meritorious service. Claimant further testified that his employment was terminated by the defendant on the ground of redundancy through Exhibit CW4. That Exhibits CW5 and CW6 show that prior to the termination of the Claimant, his monthly salary was N411, 750.00. According to the Claimant, the defendant is indebted to him for ten and half months salary arrears which have not been paid and this is indicated in the Claimant’s statement of account which was admitted as Exhibit CW7. Claimant stated that by Exhibit CW5, he was entitled to the sum of N25,000 monthly as fuel allowance which the defendant is indebted to him from march 2014 to February, 2015 and sums up to 300,000. He is also entitled to a yearly 13 month salary for the year 2014 which was not paid to him. That by Exhibits CW1 and CW8, Claimant is entitled to a yearly leave allowance which was assessed at 3.5% of his gross annual salary.

That by Exhibit CW8, Claimant is also entitled to redundancy benefits assessed at the value of one and half of his gross monthly salary multiplied by 18 years which was the number of years he was in the defendant’s employment. He stated that the value of one and a half months of his gross monthly salary was N617,625. According to the Claimant, the defendant made deductions from his salary which was to be remitted to the designated pension fund Administrator and between 2012 to 2014, the defendant deducted 7.5% from the Claimant’s gross salary for pension but failed to remit same to the Pension fund Administrator. That the sum of 30,881,25 was deducted from his gross salary monthly from January 2012 to February 2014 and the defendant was also obligated to contribute the like sum to the pension fund Administrator but failed to do so. Claimant testified that the principle of last in, first out was not followed in terminating his employment on the ground of redundancy. That in March , 2013, the Claimant took a facility of 3,000,000.00 from Skye Bank PLC which was guaranteed by the defendant on the condition that it will be liquidated by direct deductions from his monthly salary domiciled in the Bank. That due to the failure of the defendant to fulfil its obligation to pay his salary between march 2014 to February, 2015, he defaulted to the Bank and had huge interest on the facility. The Claimant stated that as at 1/1/2017, he was indebted to the Bank in the sum of N2,694,188.53 therefore putting the accrued interest at N894,188.53.That he made several demands to the defendant for his monies but they have refused to pay him.

Under cross examination, Claimant stated that he has degree in political Science from University of Ilorin and Masters Degree in Industrial Sociology and Personnel management from Imo State University. That he was employed on the 28/8/1997 and worked with the defendant for 18 years. That he was given a handbook containing the terms and conditions of service. That he was a purchasing /logistic manager before his disengagement. That he was not given a handbook at the time of his employment and he was not given any letter that the handbook was suspended nor was he informed orally about the suspension of the handbook. CW1 further testified under cross examination that Exhibit CW8 ie the handbook was given to him by the defendant in the course of his work and he signed on his letter of employment ie Exhibit CW1 before he collected it and that was an indication that it was given to him by the defendant. He maintained that Exhibit CW8 was distributed to them by the Human Resources Manager that is why his signature was not shown on it, but it was the same Human Resources Manager who gave him Exhibit CW1 and he did not ask them to sign Exhibit CW8. CW1 stated that it is not true that it was because Exhibit CW8 was suspended that is why he was not paid his benefits by the defendant. He said that Annual leave allowance, sick leave and 13 months salary were paid to him in the course of his employment as contained in Exhibit CW8 but it was only his final entitlement that was not paid to him. He maintained that there was nothing like fuel allowance contained in Exhibit CW8 and the 13 months salary is a privilege even though it is contained in Exhibit CW8 and since it is contained in Exhibit CW8, the 13 months salary is his right. CW1 stated that he does not know whether the other staff in the defendant’s company are using Exhibit CW8 or not. He also stated that the defendant has business with his relationship with Skye Bank PLC as per the loan granted to him. He said it is not true that he did not serve the defendant meritoriously or dutifully. He also said that he can identify a document emanating from the defendant as it’s former staff by the name of the company and signature of any of the management staff. That it is not true that it was as a result of his negligence that the defendant’s welding machine was impounded but the defendant queried him in respect of the impoundment of the welding machine. That it is not also true that the defendant has an internal dispute mechanism or policy which has to be exhausted before taking it to court. That he wrote a letter to the defendant through his lawyer about his entitlement but the defendant denied liability though he does not have that letter and it’s reply in court but it can be produced. He said that it is not true that the defendant never deducted any money from his salary.

CASE OF THE DEFENDANT

Bob Chukwuemeka who was the Admin. Manager of the defendant testified as DW1. Exhibits DW1 and DW2 were tendered and admitted through this witness. He said that the defendant employed the Claimant on the 28/8/1997 and confirmed his employment on the 11/6/1998. That the employment was terminated on the 27/2/2015 as a result of redundancy. That the defendant’s welding machine which was under the care of the Claimant was impounded on 15/8/2002 as a result of his negligence where he was issued a query which was Exhibit DW1. That the Claimant was also fond of fighting other managers of the defendant thereby soiling the image of the defendant. That the defendant is not owing the Claimant any salary and Exhibit CW8 ie the handbook which the Claimant is relying on for his claims has never been in use since the employment of the Claimant. That the Claimant’s claims based on Exhibit CW8 or any purported benefits or entitlements are false, unrealistic and baseless. That CW8 was never in use and has not been in use since the employment of the Claimant therefore nothing in Exhibit CW8 can be claimed by any worker. That the defendant made deductions on the Claimant’s salary based on the soft loan it usually gives to its workers to encourage them. That the defendant has a policy that any aggrieved worker or ex-worker must resort to internal dispute settlement first before going to court but the Claimant did not resort to that.

Under cross examination, DW1 stated that he has been working with the defendant for 12 years and he worked with the Claimant as Purchasing and logistics Manager. That one of the persons in the logistics Department was sacked alongside the Claimant. That the defendant staff’s salary was at Skye Bank Plc but he would not know whether the Claimant was paid into his Skye Bank salary account from March 2014 to February, 2015. That it is true that salaries of the Claimant were not paid from march 2014 to 2015. That paragraph 6 line 1 of his witness statement on oath is not true and that Claimant’s employment was terminated based on redundancy not based Exhibits DW1 and DW2 .That there is nothing before the court showing that Exhibit CW8 was suspended. That CPF in Exhibit CW6 means Contributory Pension fund and that the deductions in it were made and the deductions ought to be remitted to the Pension Administrators. That the defendant is also obligated to make contribution to the pension Administrator apart from the one deducted. That there is nothing before the court showing that monies deducted from the Claimant’s salary by the defendant were remitted to the Pension fund Administrator nor was it before the court that it remitted it’s own contribution to the Pension Fund Administrator. That the defendant usually pays leave allowance which is 3.5 of annual gross salary. That the signature of the defendant Managing Director is on Exhibit CW2 and it was issued by the defendant and paragraph 4 of his statement on oath is not true. That the Claimant worked meritoriously and dutifully. That the record referred to in paragraph 6 of his statement on oath was in the custody of the defendant rather than the Claimant. That he knows one Mr Precious Iyala who worked with the defendant and whose entitlement was paid in accordance with Exhibit CW8. That there were meetings between the Claimant and the defendant before the institution of this suit and he was aware that Claimant’s lawyer wrote to the defendant about the Claimant’s claim. DW1 also stated that he is aware of a loan granted to the Claimant by Skye Bank Plc which was guaranteed by the defendant and serviced from the Claimant’s salary account.

SUBMISSION OF THE DEFENDANT

Defendant filed its final written address on the 25/4/2018 wherein it raised two issues for determination. The issues are as follows;

” i- Whether the Claimant has proved his case to be entitled to all his claims or the reliefs sought for?

ii- Whether the Claimant can rely on the defendant nonfunctional handbook to be making claims of entitlements, benefits and allowances?”

In arguing its issue No.1, defendant submitted that from the evidence of the Claimant and that of the defendant, Claimant only proved that he is being owed certain salaries which can only be determined and calculated by the defendant’s account department. That the defendant is not owing the Claimant any other money. It is the contention of the defendant that Exhibit CW1 shows that the Claimant is only entitled to salaries. Defendant urged the court to allow the account department of the defendant to determine and calculate the Claimant’s unpaid salaries and pay him accordingly.

On issue No.2, it is the submission of the defendant that the Claimant is not and can never be entitled to bogus entitlements contained in the suspended handbook which was never in use at and during the pendency of the employment of the Claimant.
Defendant submitted that since there is no evidence available before the court that the defendant gave the Claimant and other staff CW8, then it follows that the Claimant is not entitled to any benefits in Exhibit CW8.
Defendant contended that it did not instruct the Human Resources Manager to give Exhibit CW8 to the Claimant that was the reason the Claimant was not asked to sign for the said Exhibit as evidence to show that the defendant authorized giving CW8 to the Claimant. Defendant in support of that cited the cases of Samchase (Nig) Ltd V Gidado (2014) ALL FWLR Pt. 760, 1302,
Ifeanyi Chukwu (Osundu) Ltd V Soleh Boneh Ltd (2000) NWLR Pt.656, 322
It is the further contention of the defendant that the Claimant did not lead any evidence to show that the defendant issued any Memo that CW8 be given to the Claimant or any staff. Defendant cited the case of Akintola V Balagun (2000) NWLR (Pt. 642), 532.

Defendant also submitted that the fact that it paid one Mr. Precious Iyala, its former staff his entitlement based on Exhibit CW8 does not mean that it had elected to pay every staff based on Exhibit CW8. Defendant argued that it paid Mr. Precious as an ex-gratia and because the said staff contributed immensely to the development of the company.

Defendant also contended that the Claimant did not lead evidence to show that the defendant guaranteed the loan facility granted to it by Skye Bank Plc or that the defendant will be liable for any obligation if it fails to pay the salary of the Claimant in his salary account.

On the issue of damages for wrongful termination claimed, the defendant argued that the Claimant is not entitled to any damages and cited the case of Daodu V U.B.A. Plc (2004) NWLR (Pt.878) 276.

In conclusion, defendant argued that the Claimant is being owed salary which should be calculated by the defendant’s account department. That the amount presented by the Claimant cannot represent his salary because he is not in a position to calculate same.That the Claimant is not entitled to any of the entitlements in Exhibit CW8 or any damages at all.

SUBMISSION OF THE CLAIMANT

Claimant filed his final written address on 18/5/2018 and raised 2 issues for determination. The issues are;

“i- Whether or nor the defendant is bound by its Employee’s Staff Handbook (Exhibit CW8)?

ii- Whether or not the Claimant is entitled to the reliefs as contained in the statement of claim?”

Claimant submitted that the contention of the defendant that Exhibit CW8 was suspended and that the Human Resources Manager gave the document without authority is not supported by any evidence. That the testimony of DW1 under cross examination that one Mr.Precious was paid his entitlement based on Exhibit CW8 contradicts his statement that Exhibit 8 was suspended. Claimant further submitted that once a claimant proves the existence of a particular fact, the burden of disproving that fact shifts to the defendant. He cited the cases of Coker V Adetayo (1992) LPELR-1539(CA) and Akinbade V Babatunde (2017) LPELR-43463 (S).
It is the further submission of the Claimant that DW1 under cross examination admitted the indebtedness of the defendant to the Claimant and facts admitted need no further proof. Claimant cited the case of Sanusi V Obafunwa (2006) LPELR-11863 (CA).

Claimant submitted that the defendant admitted under cross examination that it owed the Claimant salaries in arrears and its later assertion in its final address that the amount shall be determined by its account department is an afterthought and since the defendant did not lead evidence to show the amount owed, then it cannot be left at the discretion of its account department.

Claimant contended that his 13 month salary is premised on Exhibit CW1 and assessed as one month basic salary and it is a contractual agreement and not a privilege by virtue of Exhibit CW1 and CW6. That the veracity of the said Exhibits was never impugned or contradicted by pleadings or cross examination.

For the Claimant’s leave bonus, fuel allowance, pension deductions, pension contributions and redundancy benefits, he referred the court to Exhibits CW8, CW5, CW6, CW7,CW4 ,CW1 and section 9 of the pension Reform Act 2004.

For the redundancy benefits, Claimant referred the court to Exhibit CW8 which he said, spells out the benefits that shall accrue to the person whose employment was terminated on the ground of redundancy and submitted also that section 20 of the Labour Act makes provisions for termination during redundancy where the defendant is obligated first to inform the employee’s trade Union and follow the principle of last in first out. And according to the Claimant, failure of the defendant therefore to comply with section 20 of the labor Act entitles him to damages of 10,000,000.

Claimant finally contended that he explored all the internal avenues available before taking the defendant to court.

COURT’S DECISION

Having gone through the pleadings, the evidence led by the parties and the submissions made by counsel for the parties, Iam of the opinion that the issue for determination is whether the Claimant is entitled to the reliefs sought?

The Claimant’s claim in this case is for arrears of his salaries for 10 and a half months, his 13th month salary, leave bonus, fuel allowance, pension deductions and pension contribution and redundancy benefits. Claimant is also claiming for interest incurred by him as a result of his inability to defray a facility due to the defendant’s failure to pay his salary and damages for wrongful termination.

The Claimant in trying to establish his employment relationship with the defendant tendered Exhibits CW1, CW2 and CW3. Exhibit CW1 is an offer of employment dated 28/8/1997 and contains terms and conditions, salary and some allowances of the Claimant while Exhibit CW2 is a confirmation of appointment letter dated 11.6/1998. Exhibit CW4 is a termination of appointment of the Claimant dated 27/2/2015.
By Exhibits CW1, CW2 and CW3, it is proved that the Claimant was employed, confirmed and terminated by the defendant. Parties in their pleadings are in agreement in respect of the above facts. They are facts that need not be proved. It is trite that parties are bound by their pleadings and what is admitted need not be proved. See Agbanelo V U.B.N. (2000) NWLR (Pt.666) 534. Section 23 of the Evidence Act says that no fact need be proved in any civil proceedings which the parties or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hand.

The Claimant in trying to establish that his monthly salary and fuel allowance were increased tendered Exhibit CW5, however the defendant in its pleadings denied Exhibit CW5. The general rule is that document shall be proved by primary evidence and primary evidence in the case of document is the document it self. See sections 86, 88, 125, 127 and 128 of the Evidence Act, 2011. It was held by the Court of appeal in Bamgbose V Jiaza (1991) NWLR (Pt. 177), 64 that where a party leads evidence as to a document on a particular issue before the court, the best evidence is the production of the document. Although the defendant denied Exhibit CW5, but Its denial is not supported by any evidence.
It is common ground that a mere denial without more cannot create a defence to an action. See SGB (Nig) Ltd V Panatrade Ltd V 1994) NWLR (Pt. 352) 720. It is also trite that oral evidence will not be allowed to contradict, alter, add to or vary the contents of a document. See Olaloye V Balogun (1990) NWLR (Pt. 148) 24. See also section 128 of the Evidence Act, 2011

In the light of this I have therefore no doubt that Exhibit CW5 emanates from the defendant and it is an evidence that the salary and fuel allowance of the Claimant were increased. A rider to this, is Exhibit CW6 which is the pay slip of the Claimant from July, 2013 to August, 2015 which clearly shows that the amount given to the Claimant as his salary is the one contained in Exhibit CW5. Paragraph 3 of Exhibit 5 says that the breakdown of the Claimant’s new salary package shall be stated in his pay slip.

Added to this, is the admission of DW1 under cross examination that his statement on oath denying Exhibit 5 is not true. This clearly also shows that DW1 admitted Exhibit CW5. It is trite that a trial judge can consider evidence adduced by the defence which helps to strengthen and support the plaintiff’s case, it is permitted to add weight to the case of the plaintiff. See Ekeretsu V Oyebenere (1992) NWLR (Pt. 266), 438

Claimant also tendered Exhibit CW7 to prove the fact he was not paid his salaries for 10 and a half months. Exhibit CW7 is the Claimant’s statement of account with Skye Bank PLC from 1/1/2013 to 12/5/2015 and it speaks for itself. I observe from Exhibit CW7 that the Claimant was not paid his salary by the defendant for 10 and a half months as well as fuel allowance for 12months as pleaded and testified by the Claimant. Exhibit CW7 is full and frank, it contains a complete and accurate account and description of all the Claimant’s income and interests and I believe that is the best way that this court can best be satisfied that the Claimant was not paid his salaries. DW1 also under cross examination admitted that the defendant is indebted to the Claimant and said that his statement on Oath denying defendant’s indebtedness to the Claimant is not true.

I wish to state that the most significant consideration which an employer may give an employee in return for work performed or services rendered to the employer is the employee’s monetary renumeration in terms of salary or wages in legal tender such as cheque, cash or postal orders. Employment is not to be gratuitous. See section 1 of the labour Act. Based on the above, the Claimant is entitled to his arrears of salary and fuel allowance as compensation for the services rendered.

Claimant also claimed for his 13th month salary for 2014, he tendered Exhibit CW1 which shows the 13th month pay as a bonus and one of the terms of the parties’ contract of employment. it is one month basic salary which Exhibit CW6 puts at N157,293.73 and I agree with the submission of the Claimant that he is entitled to it. Under section 3 at page 8 in Exhibit CW8, it was provided as follows;

“13TH MONTH SALARY

13th Month salary shall be paid to confirmed employees of the Company with their December salary. The 13th month salary shall be the employee’s one month’s basic salary”

For leave bonus and redundancy benefits, Exhibit CW8 which is the staff handbook of the defendant also provides at pages 11 and 14 to 15 as follows;

“LEAVE ALLOWANCE

Employee shall be paid an Annual Leave Allowance of 3.5% of Gross Annual Salary, payable on commencement of Annual Leave. Shoreline shall not make any deductions from staff salaries on account of the annual leave allowance”

REDUNDANCY BENEFITS

Redundancy benefits shall be given as compensation for loss of future prospect with the company. An employee who has been in services are no longer required by the company due to no fault of the employee.
Contract staff employees employed on contract for a specific job and /or for a specific period of time will not qualify for any redundancy benefits.
The following redundancy benefits will be paid to employees where they qualify with two years continuous service or more, as follows:

REDUNDANCY BENEFITS

2-6 yrs service         1/2 Month current gross salary                                                                                                                                                                                               for every year of service
7-12 yes service.       1 Month current gross salary for every year of service
13-18 yrs.                     1/1/2 Months current gross salary for every year of service
19-24 yrs.                       2 Month current gross salary for every year of service
25 and above.                2/1/2 Months current gross salary for every year of service.

The defendant in trying to refute the redundancy benefits denied Exhibit CW8 and contended that it was suspended and the defendant has a record from its account department which is the document that it works with in respect of its financial matters. However the defendant did not produce the said document It is talking about. The defendant mentioned a fact which is especially within its knowledge and I believe the burden of proving that fact is upon it. See section 140 of the Evidence Act, 2011.
Defendant contended that Exhibit CW8 was not part of its contract agreement with the Claimant and thereby not binding on it. However in Ajayi V Texaco Nigeria Ltd (1987) NWLR (Pt.577), (1987) 910, SCNJ 1, the parties entered into a contract of employment in December 1969, over four years after, on 30/9/1975, the employer was issued an Employee’s Handbook which the employee signed for and received and the Supreme Court held that the handbook was binding on him when he tried to argue the contrary one and a half years later.
It is clear that under the general principles of contract law a party cannot unilaterally vary the terms of the contract. In Baba V Nigerian Civil Aviation Training Centre (1986) NWLR (Pt.514), the plaintiff was employed by a letter and after assuming work he was given a copy of the staff Regulations. The court of appeal held that the staff Regulations were binding on the plaintiff.
Further to this, DW1 said under cross examination that there was nothing before the court to show that Exhibit CW8(handbook) was suspended and he maintained that one Precious Iyala was paid his benefits in accordance with the handbook. From this piece of evidence, the defendant violates his duty owed to the Claimant to treat him fairly and without discrimination. In Mbilitem V Unity Kapital Assurance PLC unreported judgement in Suit No.NICN/ABJ/108/2011, delivered on 28/2/2013, the Hon. President of this court had this to say

” given that the Claimant along with the others were former employees who served the defendant for years, a duty is imposed on the defendant to treat all of them fairly and without discrimination when it comes to the payment of terminal benefits. I therefore hold that the defendant owes a duty to treat the Claimant fairly with dignity and without discrimination “

Based on the foregoing, I find that Exhibit CW8 is part of the contract of employment of the parties in this case and the Claimant is entitled to the benefits contained therein.

The Claimant also claims for pension deductions and pension contributions which amount to N802, 912,05 each. Claimant referred the court to section 9 of the Pension Reform Act, 2004.

Sections 9(1) and 11(5) of the Pension Reform Act, 2004 provide as follows:

“Subject to the approval of the commission established under section 14 of this Act, the contribution for any employee to which this Act applies shall be made in the following circumstances relating to his monthly emoluments

(a) in the case of the Public Service of the Federation and Federal Capital Territory;

(I) a minimum of seven and half percent of the employer;

(ii) a minimum of seven and half percent by the employee; or

(b) in the case of the Military

(I) a minimum of twelve and a half percent by the employer;

(ii) a minimum of two and half percent by the employee;

(I) a minimum of seven and a half percent by the employer, and

(ii) a minimum of seven and a half percent by the employee.

Section 11(5)

The employer shall

(a) deduct as source, the monthly contribution of the employee in his employment; and

(b) 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.”

By the provisions of the above sections, the defendant is obligated to deduct seven and half percent of the Claimant’s monthly emoluments and contribute as well like sum and remit same to a specified pension fund administrator.

Exhibit CW6 shows that N18,117.00 was being deducted as “PAYE” and 12,859.53 as “CPF”.

Claimant in paragraph 14 of his statement on oath states that from January, 2012 to February, 2014, the sum of 7.5 % of his gross monthly salary which is N30,881,25 was deducted from his monthly salary and the defendant was also obligated to contribute like sum but it failed to do so.

I wish to observe that this piece of evidence was not controverted nor challenged under cross examination and it is trite that evidence not challenged or controverted is deemed admitted.

I observe also that DW1 under cross examination admitted this fact. He said that there is nothing before the court to show that the money deducted from the Claimant’s salary was remitted to the pension administrator nor was it before the court anything showing that the defendant remitted its own contribution to the pension fund administrator. It is clear from the above that the only conclusion the court will make is to hold that the Claimant is entitled to his pension deductions and contributions that were not remitted by the defendant to a designated pension fund administrator as provided by sections 9 and 11 of the Pension Reform Act, 2004.

The evidence of the Claimant in the foregoing instances is unchallenged, his evidence giving the terms of the transaction between him and the defendant was in terms with his statement of fact and in the absence of any evidence in rebuttal, he is entitled to judgement. See Nwabuoku V Ottih (1961) 2 N.S.C.C. 234.

Claimant claims the sums of N894,188.53 as special damages being interest incurred as a result of his inability to defray the facility due to the defendant’s failure to pay his 10 and a half months salary. Claimant maintained that the loan was confirmed by DW1 under cross examination and the accumulated interest being the direct effect of the failure of the defendant to fulfill its obligations to the Claimant, the defendant ought to take responsibility for the accrued interest.
I think I should observe that the relationship and transaction between the Claimant and the Bank in respect of the facility must have been in writing, which must contain terms and conditions of the loan facility that will include the percentage of the interest to be charged and the time when the loan will be liquidated which will determine the amount to be deducted every month from the Claimant’s salary. Although Exhibit CW7 shows on 2/4/2013 that N3,000,000.00 was credited to the account of the Claimant but the court will be left to go on the voyage of discovery in speculating about the percentage of the interest to be charged either in the ordinary course of paying the loan or when there is default. On this note, lam of the opinion that the Claimant did not present sufficient materials before the court to be entitled to the amount claimed in his paragraph “h” of his claim. That claim fails and is hereby refused. In N.B.B.B. CO. LTD VS. ACB LTD (2004) 1 SC (PT. 1) 32 @ 37, the Court held that a damage is special in the sense that it is easily discernible and quantified. It should not rest on puerile conception or notion which would give rise to speculation, approximation or estimate or such like fractions.

On the Whole, I grant some of the Claimant’s reliefs against the defendant who shall pay the Claimant as follows;

The sum of N4,323,375 (four Million, Three Hundred and Twenty Three Thousand, Three Hundred and Seventy Five Kobo) being salary arrears for 10 and a half months owed the Claimant.
The sum of N157, 293.73 ( One Hundred and fifty seven Thousand, Two Hundred and Ninety Three Thousand, Seventy Three Naira) being 13th month salary for 2014.

3. The sum of N172,935 (One Hundred and Seventy Two Thousand, Nine Hundred and Thirty Five Naira) being leave bonus for 2014 assessed at 3.5% of the annual gross salary.
The sum of N300,000 (Three Hundred Thousand Naira) being fuel allowance for March 2014- February 2015 at N25,000 per month.
The sum of N802, 912.5 (Eight Hundred and Two Thousand, Nine Hundred and Twelve Thousand, Five kobo) being 7.5% of gross salary deducted monthly from the Claimant’s salary between January 2012 and February 2014.
Another sum of N802, 912.5 (Eight Hundred and Two Thousand, Nine Hundred and Twelve Thousand, Five kobo) being 7.5% of gross salary the defendant was obligated to contribute to the Claimant’s pension account with the designated pension fund administrator from January 2012 – February 2014.
The sum of N11, 117, 800 (Eleven Million, One Hundred and Seventeen Thousand, Eight Hundred Naira) being one and half monthly gross salary for 18 years as redundancy benefits.
Cost of N50, 000 is awarded in favour of the Claimant.
That Judgement sums shall be paid within 30 days from the day of the judgement.
Judgement is entered accordingly