Mr. Godwin Akomaye Uting -VS- The Managing Director, Discovery Cycle

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. D. DAMULAK

ON THE 17^TH DAY OF SEPTEMBER, 2019

SUIT.NO. NICN/ABJ/316/2018

BETWEEN:

GODWIN AKOMAYE UTING ……………………………. CLAIMANT

AND

1.THE MANAGING DIRECTOR, DISCOVERY

CYCLE PROFESSIONALS (DCP)

2.MACHINE AND EQUIPTMENT COLALITION

OF AFRICA (MECA) ……………….. DEFENDANTS

REPRESENTATIONS:

Martin Odey Esq. Damian Anyam Esq. and Nelly Ezeiruaku, Esq For the claimant

Olatunji Salawu, Esq., andKayode Sunday, Esq. For the defendants

JUDGMENT

1.0 INTRODUCTION:

This case borders on an alleged breach of contract of employment and non-payment of salary thereunder between the claimant and the 2^nd defendant; as well as remittance of pension contribution by the 1^st defendant. The action was commenced via a complaint filed on the 16^th of November, 2018, together with a statement of claim, list of witnesses, witness statement on oath, list of documents and copies thereof.

In response, the defendant filed a notice of preliminary objection alongside a joint statement of defence and other accompanying documents as required by the rules of this Honorable Court on the 16^th of January, 2019.

2.0 FACTS OF THE CASE

The claimant was employed by DCP on the 29^th of June, 2016 as an Automobile Assistant (Driver). As the company found its footing, the 2^nd defendant was established. The MD of the 1^st defendant was the Country Director of the 2^nd defendant. The claimant employment came to an end in 2018.

3.0 CASE OF THE CLAIMANT

Testifying in line with his statement of facts, the claimant

, as CW1, testified as follows;

I was employed first by (DCP) as an automobile assistant and driver on 20^th June, 2016. DCP was a growing company struggling to find its feet. While working for DCP there were occasions and instances I was owed salaries at times for as long as 7 months, yet I continued to discharge my duties diligently and faithfully. I often lost track of what was paid to me and what part wasn’t paid.

When the DCP as a company started to make progress financially, another company known as MECA was also introduced which is a company also registered under the Company and Allied Mattes Act (CAMA) for mechanized farming.

In 2017, DCP went into an agreement with NIRSAL, which agreement with NI RSAL commenced at the third quarter of 2017.

That the Managing Director of DCP personally engrafted me into MECA, first as an Automobile assistant (Driver) then later on as an organizational support staff therefore making me a staff of both DCP and MECA. For these two positions, I was given two different ID cards because though these two Companies were working together, they were two very separate entities.

That the MD personally assured me severally that it was due to my diligence in working with DCP that I have been given this new position with MECA. The MD also assured me that my salary will be raised to cover the new employment being that I was now working and receiving instructions for two companies and my job schedule drastically changed and that I will get all Compensations and pensions due to my positions. That due to my faith in the Managing Directors promises, I started working for MECA even with more zeal and dedication than I had put in before despite the fact that the job description and requirement for MECA far outweighed that of DCP.

That while carrying out both jobs, I had to travel back to back for 48 hours straight, sleep in the vehicle when I travel with my superiors, and all these without any raise in my pay or due compensations as promised by the MD. I was also a personal Assistant to the MD.

I was suddenly stopped from attending company meetings and a request that my DCP appointment letter be retracted was made to me with a condition that I either accept a new offer to be given me or I resign. I quickly expressed my fears and worries to the MD challenging my exclusion from meetings, yet nothing was done to change the state of affairs.

I was also distressed when I discovered that all PAYE and Pensions that are being deducted overtime were not remitted to any organization registered for such purpose at all, for me.

I approached a law firm to help me recover my benefits and entitlements from the Defendants. The lawyer wrote to the Defendants.

I want all salaries owed me as staff of MECA due and payab1e to be calculated and fully paid commencing from March 2017 when I began working the double jobs, and that all PAYE and Pension deductions made on my salaries are remitted accordingly also.

The claimant tendered five documents in evidence which were admitted and marked as follows;

Claimants letter of appointment with DCP -Exhibit GAU 1.
Claimants ID card from DCP – Exhibit GAU 2.
Claimants ID card from MECA -Exhibit GAU 3.
Claimants ID card from MECA -Exhibit GAU4.
Solicitors letter dated 5/11/2018 -Exhibit GAU 5.

CW 1 under cross examination stated that he was with the defendant from 2016 to 2018 and during that period, the nature of his work changed. He has a document to that effect, they are his appointment letter and I.D. cards to that effect.

4.0 CASE OF THE DEFENDANTS.

Testifying in line with the statement of defence, one Iliya Buba Gashinbaki , as DW1, testified as follows;

The claimant was appointed by the 1^st defendant as Automobile Assistant (Driver) on the 29^th of June 2016. The appointment was probationary for six (6) months and on a net salary of N40, 000.

The role and responsibility contained in the appointment letter was a general role and does not apply to the claimant’s specific job as a driver. The claimant’s appointment was never terminated. On the contrary, it was he that absconded from duty since October, 2018.

The claimant willingly volunteered to be the personal assistant of the MD, without any formal agreement, for which he was duly paid. This was equally not covered by his contract with the 1^st defendant.

The claimant was not owed salary or pension by the 1^st defendant.

Tax and pension contributions were duly deducted from the claimant’s salary for remittance to the relevant tax authority and the Pension Fund Administrator (PFA) to be nominated by the claimant.

It was the responsibility of the claimant to nominate his PFA and submit his pension registration number for the remittance of his pension contributions and to demand for payment from the PFA upon formal disengagement from his employer.

Being that the 1^st and 2^nd defendants are two distinct entities with different staff structure, the claimant was rightly denied staff privileges, including attending meetings, since he was not at any time employed by the 2^nd defendant.

DW1 under cross examination stated that he has been the MD of the 1^st defendant since 2011. He stated that he was familiar with the claimant as he was assigned to him as a driver. He further acknowledged that ID cards were given to their staff for identification and same was done for the claimant. That he was the Country Director of the 2^nd defendant. That the 2^nd defendant issued Exhibit GAU 3 to the claimant because it was needed to grant the claimant access to the premises as the 1^st defendant moved into the same premises with the 2^nd defendant. He further stated that the claimant did not serve as his driver when he was on duty for the 2^nd defendant.

5.0 NOTICE OF PRELIMINARY OBJECTION

The defendants filed a preliminary objection on the 16^th of January, 2019 challenging the jurisdiction of the Court on the ground that the 1^st and 2^nd defendants were not juristic persons, thus lacking the legal capacity to sue or be sued.

The learned counsel to the defendants argued that for a Court to have jurisdiction, the proper parties must be before it. ACCESS BANK V. AGEGE L. G. (2016) 21 WRN, 134 at 149 .C.B.N. v. S.A.P. (NIG.) LTD. (2005) 3 NWLR (Pt. 911) 152

The defendants’ counsel went further to assert that the 1^st and 2^nd defendant are neither natural persons nor are they juristic persons.

The 1^st defendant is the Managing Director, Discovery Cycle Professionals (DCP). This is neither a natural nor artificial person, but rather a position subject to succession. Reliance was placed on the case of AGBONMAGBE BANK LTD. V. GENERAL MANAGER, G.B. OLLIVANT LTD. & ANOR (1961) ALL NLR 125 at 127. where it was held that:

“To my mind it is patent that the General Manager of G.B. Ollivant Limited is not a legal person. The post is subject to succession- it is not a partnership nor a corporate body nor is it a creation of statute.”

It was further argued that the 2^nd defendant, Machine and Equipment Coalition of Africa is also not a juristic person. Generally the onus of proof is on him who asserts (section 135 of the Evidence Act) and as for an artificial person, the burden of proof is discharged by producing the certificate of incorporation if it is a company or an incorporated body in the name with which it sued or was sued. This was the holding in the case of JUKOK INT’L LTD V. DIAMOND BANK PLC (2015) 7 WRN, 1 AT 58 and G & T INVESTMENT LTD. V. WITT AND BUSCH LTD. (2011) 8 NWLR (PT. 1250), 500 AT 540,

The parties having joined issue on the legal personality of the defendants, the claimant bears the burden of proving it. The learned counsel urged the Honorable Court to apply the above stated principles and hold that the defendants are non-juristic personalities.

6.0 CLAIMANT’S RESPONSE TO PRELIMINARY OBJECTION:

In response to the defendants’ preliminary objection, the claimant deposed as follows;

The 1^st defendant is a duly registered company by the name of Discovery Cycles Professionals (DCP) with the RC No. of 1089577. Its registered address is A4 plot 756 Jabi Terraces Abubakar Isman Crescent off IT Ogbani Street Jabi District, Abuja FCT (as is on the ID card and employment letter). The registration date is 1^st August, 2013.

The 2^nd defendant is equally a duly registered company with the name Machines and Equipment Coalition African Limited, with the RC No. 1343895. It was registered on 22^nd June 2016 and has its address as plot 756 Jabi Terraces Abubakar Isman Crescent off IT Igbani Street Jabi district, Abuja FCT.

Counsel argued that, the defendants are duly registered companies and can therefore sue and be sued hence giving this Honorable Court the jurisdiction to entertain the suit.

The defendants have been operating as Discovery Cycles Professionals (DCP) and Machine and Equipment’s Consortium for Africa (MECA) and thus cannot deny themselves.

That the names on their letter-head papers cannot change what is with the Corporate Affairs Commission.

The 2^nd defendant being referred to as ‘Coalition’ in the writ is a typographical error and should not affect the substance of the case.

Arguing in his written address supporting affidavit, learned claimant/respondents counsel submitted that the exhibits attached by the claimant show that the defendants are juristic persons thus capable of being sued. Hence this Honorable Court has jurisdiction to entertain the suit. ATAGUBA AND COMPANY V. GURA NIGERIA LIMITED SC 295/2000.

Furthermore, the letter of employment and the identity cards of the claimant have the names of the defendants. Moreover, paragraphs 2, 5, 6 and 7 of the defendants’ statement of defence give credence to the claimant’s position.

The counsel to the claimant gave notice to the defendant’s to produce the certificate of incorporation and Form CAC 7 at the hearing of the suit.

Finally, the claimant’s counsel argued that all the preconditions to confer the Court with jurisdiction are herein present in the case and urges the Court to dismiss the objection.

7.0 DEFENDANTS’ REPLY ON POINTS OF LAW:

The learned defendants’ counsel merely repeated his submissions that the burden of proof of incorporation of the defendants lies on the claimant and the only way to do so is by the production of the certificate of incorporation. This is not the purpose of a reply on point of law.

8.0 DEFENDANTS’ FINAL WRITTEN ADDRESS

In his final written address on behalf of the defendants, learned counsel proffered that the only agreement existing is the letter of employment (Exhibit GAU 1) is between the 1^st defendant and the claimant which was actually on its letter head. No mention was made of the 2^nd defendant in the agreement; as such the terms of the contract cannot be extended to it. RESOURCES INT’L LTD V. ORANUSI (2011) 2 NWLR (PT. 1230) PG 102

BABA V. NIGERIAN CIVIL AVIATION TRAINING CENTRE ZARIA & ANOR (1991) 5 NWLR (PT. 192) PG 388 AT 436

In the same vein, it was submitted that he who assert must prove- see the cases of OSUJI V. EKEOCHA (2009) 16 NWLR (PT. 1166) 81 AT 138 AND IYERE V. B.F.F.M. LTD. Since the existence of a contract between the 2^nd defendant and the claimant is an assertion of the claimant, the burden is on him so do so by the preponderance of evidence. This has not been done as the only evidence tendered linking the two is Exhibit GAU 3, which has been explained why it was issued.

In arguing the declarations sought by the claimant, the learned counsel submitted that the claimant is not entitled to declaration as to salaries, travel benefits, bonuses, entitlements and emoluments from the 2^nd defendant. This is because the claimant has failed to provide any documentary evidence to substantiate the claim and there is no parameter to determine the salary and other benefits claimed.

Also, the counsel submitted that the claimant has the responsibility to nominate a PFA, supply his pension registration number for remittance of the deductions and to demand for payment of pension from the PFA upon disengagement from his employer. Having failed to adduce any evidence of compliance with the above requirements, the claimant is not entitled to the declaration claimed.

Lastly, the counsel put forth that while remittance of PAYE and pension contributions are statutory duties of an employer, they are not directly claimable by the employee.

On the claim for N3,000,000 for severe hardship and psychological trauma, the counsel submitted that the claimant is not entitled to any general damages as he was in to time employed by the 2^nd defendant, hence no salary or benefit was owed to him by the latter.

As for the cost of the suit, the learned counsel submitted that no invoice was presented as evidence for payment made to solicitors. This is special damages that must be specifically proved. Reliance was placed on the case of GUINNESS (NIG) PLC V. NWOKE (2000) 15 NWLR (PT. 689) PG. 135.

9.0 CLAIMANT’S FINAL WRITTEN ADDRESS:

Counsel submitted that it is not the claim of the claimant that he was issued with an employment letter by the 2^nd defendant. The contention of the claimant is that what links him to the 2^nd defendant is the two separate identity cards issued to him. As such, argument of the defendants that failure of the claimant to tender any evidence to show that he was an employee of the 2^nd defendant exonerates the latter.

Counsel submitted that a contract of employment need not be in writing only to be enforceable. CBN V. IGWILLO (2007) 4-5 SC 154 AT 172.

Also that a contract of employment means any agreement whether oral or written, express or implied. SHENA SECURITY COMPANY LTD V. AFROPAK NIGERIA LTD & ORS. (2008) LPELR 3052(52).

The submission of the DW1 that the I.D. cards (exhibits 3 and 4) were given for the purpose of access holds no water. This is because the two exhibits carry two different designations for the claimant, one as an organizational staff and the other as an automobile assistant. This suggests that the claimant had worked for the 2^nd defendant in two different capacities. Moreover, staff ID card was written on the face of the exhibits which was meant to portray the claimant as a staff of the 2^nd defendant.

Counsel submitted that while the claimant had submitted evidence of his claim as a staff of the 2^nd defendant, a contract concluded by parole and conduct of the parties, the defendants did not tender any evidence before the court showing otherwise.

Also, it was submitted that where there is conflicting evidence, the more cogent one is the one in documentary form. See B. O. LEWIS V. UNITED BANK FOR AFRICA (2016) ALL FWLR (PT. 833) PG. 1862.

Counsel argued further that the argument of the defendants that the claimant had the responsibility of providing a PFA does not stand as there is no evidence adduced to back it. Contrary to this assertion, the defendants are obligated to act even if the clamant failed to do so. See section 11(1)(5) of the Pension Reform Act, part IV, 2014.

On cost of the suit claimant’s counsel relied on the Supreme Court case of MEKWUNYE V. EMIRATES AIRLINES (2019) LPELR-46553 (SC) and NICN Rules 2017, Order 55 Rule 1, 4, 5.

10.ISSUES FOR DETERMINATION:

The claimant distilled the following issues for determination:

Whether the claimant had proved his case by preponderance of evidence to be entitled to judgment in this suit?
Whether if the court’s finding on issue one above is in the affirmative the reliefs sought for by the claimant in his claim are grantable by the court?
Whether from the circumstances of the case and the evidence led, the claimant is not entitled to the reliefs sought against the defendants?
Whether the assertion of the defendants that its failure to remit the deductions of pension funds from the salaries of the claimant to the appropriate pension scheme as it purportedly claimed justifying its deductions is not a wrong in law and fact entitling the claimant to any remedy?

The defendants distilled a lone issue for determination:

Whether the claimant has proved his case by preponderance of evidence to be entitled to judgment in this suit?

The issues by both counsels can be properly disposed of by the issue formulated by the defendant which is hereby adopted as the issue for determination.

COURT’S DECISION:

A.PRELIMINARY OBJECTION:

The defendants argued in the preliminary objection that the suit should be struck out for want of jurisdiction as the two defendants are non-juristic persons, thus, no action can be maintained against them and vice versa.

The claimant did not produce the certificate of incorporation, but rather gave the registration number and the place of business of DCP and the 2^nd defendant and put the defendants on notice to produce their certificates of incorporation.

It is to be noted that the claimant did not sue DCP but the Managing Director of DCP. The defendants rightfully argued that the Managing Director of a company is a position subject to succession and cannot be sued in that capacity and vice versa. The cases of AGBONMAGBE BANK LTD V. GENERAL MANAGER G.B. OLLIVANT LTD. & ANOR (1961) ALL NLR 125 AT 127 cited by the defendants objectors is very much on the point.

As for the second defendant, the burden of proof is on the claimant to establish the incorporation of the 2^nd defendant. This can be done only by producing the certificate of incorporation of the company in question and not by providing the RC number of the company and address of business. See APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) LPELR-23572 (CA), P. 44, where Bolaji-Yusuff, J.C.A. held that;

“the law is settled that the only way to prove the identity or juristic personality of a company or a registered association is by tendering the original or certified true copy of the certificate of incorporation, See REPTICO S. A. GEREVA VS. FOIBANLR NIGERIA PLC (2013) LPELR 2066 (SC) where the Supreme Court held as follows:- “On this land, Nigeria, the only acceptable and legally recognized way of establishing that a company is an incorporated limited liability company entitled to sue and be sued in particular when parties join issue on the matter, is by producing in evidence the certificate of incorporation. No other document will suffice.”

This goes to show that the claimant fell short in discharging the burden of proof on him. The notice to produce given to the defendants in no way shifts that burden to them neither does it obligate them to produce the document. More so, it is their contention that they are not registered as a company in Nigeria, they cannot reasonably be expected to produce what they say does not exist..

The claimant has a duty to tender the secondary evidence (CTC) of the defendants certificate of incorporation.

It is pertinent to note that a certificate of incorporation is a public document. As such, the claimant could obtain the certified true copy from the appropriate authority and tender it in evidence in a bid to establishing his case. See HOUSE OF REPRESENTATIVE & ORS V. SPDC NIGERIA &ANOR (2010) LPELR-(CA) P. 36. Where the court per Aboki, J.C.A. held;

“a Certificate of Incorporation of a company is a public document within the provisions of section 109(b) of the Evidence Act. A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for the good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768.”

See also EMENIKE MBANUGO & CO V. FBN PLC (2014) LPELR-22856 (CA).

Equally, the claimant argued that the defendants are juristic persons by citing the case of ATAGUBA AND COMPANY V. GURA NIGERIA LIMITED SC.

The above case is on partnerships and business names, whereas the claimant in their statement of claim and reply to preliminary objection refer to the defendants as companies. Companies are not the same as partnerships and business names and a Court cannot confer legal status on a purported company based on the above provisions.

I find and hold that having failed to take the steps mentioned above, the claimant has not discharged the burden of proving the incorporation of the 2^nd defendant and the 1^st defendant is a position lacking any juristic personality.

The objection succeeds and the suit is hereby struck out for want of competence.

MERIT OF THE CASE

In the event that I am wrong, having heard arguments and submissions on this case, I shall now proceed to determine the merit of the case.

The issue for determination will be considered by answering the following questions for an effective disposition of the issue

Whether there is an employment contract between the claimant and 2nd defendant?
Whether the claimant is entitled to salaries, travel benefits, bonuses and gratuity from the 2nd defendant?
Whether the claimant is entitled to his pension deductions from the 1st defendant.
Whether the claimant is entitled to damages and cost in the circumstance of this case.

This will best be done while considering the prayers of the claimant.

Prayers 1, 4 and 6 are claims specifically made against the 2^nd defendant.

Prayers 2, 3 and 5 are claims specifically made against the 1^st defendant while prayer 7 is presumably against both defendants.

Whether there is an employment contract between the claimant and 2nd defendant?

For ease of reference, I find it helpful to be reproducing the relevant prayers. The relevant prayer to this question is Prayer 1 which reads as follows;

A declaration that the salaries, travel benefits, bonuses, entitlements of the claimant having worked for (MEKA)(sic MECA) the 2^nd defendant, owed by the 2^nd defendant, be computed and paid in full.

The learned counsel of the claimant contended that there is an employment relationship between the claimant and the 2^nd defendant which is evidenced by the two I.D. cards issued to the claimant. The counsel sought to rely on the terms of the contract of employment between the claimant and the 1^st defendant. On the other hand, the defendants averred that there was never any contractual relationship between the 2^nd defendant and the claimant. The I.D. card relied upon by the claimant was simply given for access into the new premises of the 1^st defendant which it shares with the 2^nd defendant.

It is the case of the claimant that he worked for the 1^st defendant, DCP, as a driver to the MD and he also worked for the 2^nd defendant, MECA, first as an Automobile assistant (Driver) then later on as an organizational support staff. However, the evidence before the court only discloses the function of driving the 1^st defendant as well as serving as his personal assistant and no more.

A contract of employment is sine qua non to any employment relationship. It is only when such contract is in existence and it is breached that an action can be brought for enforcing it or for damages. See R. O. IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) LPELR-1578 (SC) P. 21,

A contract of employment means “a contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.” See SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS (2008) LPELR-3052 (SC), PG. 13, per Muhammad, JSC.

From this, a contract of employment can be concluded in four different ways: oral, written, express or implied. The claimant has not furnished any categorical terms agreed upon between him and the second defendant. It is trite in law that for there to be a valid contract (any form of contract including that of employment) some conditions must be in existence. In BILANTE INTERNATIONAL LTD. V. NDIC (2011) LPELR-781 (SC) pg. 28, per Adekeye, J.S.C. held;

“It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself to enforceability.”

See also OBASI V. EBENUGWU (2014) LPELR-22533 (CA), P. 35.

The claimant in his statement on oath averred that the MD of the 1^st defendant made several ‘assurances’ to him. The question is, can such assurances be regarded as the terms of the employment contract? This must be answered in the negative. For this reason, those assurances are too vague and cannot be ascertained with any reasonable degree of certainty. For this fundamental lacuna, a valid contract cannot be said to have existed between the claimant and the 2^nd defendant. See also AMARAN V. ETF (2014) LPELR-22859 (CA) PP. 34-35.

What the claimant seeks to use as the terms of the alleged contract is the terms of the contract with the 1^st defendant. This goes against the law by virtue of the principle of privity of contract. See REBOLD INDUSTRIES V. MAGREOLA & ORS (2015) LPELR-24612 (SC) PG. 32-35,

A fundamental question again is, does the possession of two different I.D. cards issued by the 2^nd defendant raise the presumption of a contract? This undoubtedly raises a flick of doubt against the 2^nd defendant. At the same time it raises more questions than it answers them.

While it is true that employment can be by oral agreement, the allegation of its existence alone does not suffice in the absence of an agreed salary or payment thereof and the performance of assigned duties. An ID card may suggest existence of employment but not without more as in this case. Without evidence of performance of duties and payment of salaries as in this case, the Court cannot imply the existence of an employment contract based on the issuance of a staff ID card in the circumstance of this case.

It is to be noted that the 1^st defendant is the Managing Director of DCP and he is also the Country Director of MECA and the schedule of claimant’s duty with DCP is to drive the said Managing Director. There is no evidence of any separate duties performed for MECA in the capacity of organizational staff apart from driving the MD of DCP. In the circumstance, the burden of proving an employment with MECA is not discharged.

For all that have been said, I hold that no valid contract exists between the claimant and the 2^nd defendant for lack of clear terms which the parties intended to be bound by.

2.Whether the claimant is entitled to salaries, travel benefits, bonuses and gratuity from the 2nd defendant?

The prayers relevant for consideration of this issue are prayers 1, 4 and 6. Prayer 1 has already been reproduced above, prayers 4 and 6 are as follows;

4.An order of this Honorable Court compelling the defendant to pay the claimant his salary of thirteen (13) months having worked for the 2^nd defendant and also his allowances assessed at the rate of 15% of the claimant’s net salary of N480, 000 which is the amount stated in the employment letter from the 1^st defendant due from October 2017 till November 2018 before the conduct of the defendant became unbearable to the claimant.

6.An order of this Court directing the defendants to pay to the claimant all his entitlements, gratuity and benefits flowing from his work and duties with MECA which the MD assured him everything will be paid to him as having worked for two distinct companies.

Without hesitation, the court has found that there was no employment contract between the claimant and the 2^nd defendant, The claimant has not shown any terms agreed upon between him and the 2^nd defendant or what were theduties he performed for the 2^nd defendant besides driving the 1^st defendant. The claimants have not proved what was the agreed amount of his salary with the 2^nd defendant, or what were the agreed terms of the said employment. He has not shown that the 2^nd defendant was a privy to his employment contract with the 1^st defendant. Claimant has also not shown how he is entitled to how much as gratuity from the 2^nd defendant, having worked only from 2017 to 2018 as alleged.

I find and hold that the claimant is not entitled to salaries, travel benefits, bonuses and gratuity from the 2nd defendant.

3.Whether the claimant is entitled to his pension deductions from the 1st defendant.

The prayers relevant for consideration of this issue are prayers 2,3 and 5 and they are as follows;

2.A declaration that the deductions of the PAYEE and PENCOM entitlements by the defendants and failure to remit same into the account of the claimant standing in the credit of various organizations empowered to hold such, causing him emotional stress, psychological and mental hard strain by the defendant, is in bad faith, wrongful at law contrary to the extant laws and conditions of service of the defendant.

3.A declaration that the failure of the defendants to remit as at when due what is due to the claimants credit in these authorities resulting to the stress and hardship of the claimant is a breach of contract and negates all agreement reached between claimant and defendants both on the employment letter and orally agreed and therefore wrongful, illegal and in bad faith.

5.An order of this Court directing the defendants to pay the claimant his pension funds at the rate of 8% of his basic salary from 2016 to November 2018 and 12% of the defendant’s mandatory pension contribution.

The issue of pension is regulated by the Pension Reform Act, 2014 and its application extends to employment in the private sector, as in this case. See section 2(1) of the Act.

It is the duty of every employee to open a retirement savings account in his name with any Pension Fund Administrator of his choice. See section 11(1) and (2) of the Pensions Reform Act.

From these provisions, it is the duty of the claimant in the instant case to open such account with a PFA of his choice. However, where an employee fails to do so, the employer is under a duty to make such provisions. See section 11(5) of the Act.

The claimant did not prove the amount of deduction made. It is to be noted that the claimants’ net salary and the percentage thereof deducted as pension contribution appear only in his prayer.

However, the fact of deduction was admitted by the 1^st defendant as follows;

“Tax and pension contributions were duly deducted from the claimant’s salary for remittance to the relevant tax authority and the Pension Fund Administrator (PFA) to be nominated by the claimant”.

In the circumstance, the claimant is entitled to his pensions deductions made by the 1^st defendant. The claimant has a right to have his pension contribution remitted to a pension administrator of his choice.

4.Whether the claimant is entitled to damages and cost in the circumstance of this case.

The prayer relevant for consideration of this issue is prayer 7 and it is as follows;

7.An order of the Court for the payment of N3, 000,000 (three million naira) to the claimant for the hardship and psychological trauma suffered as a result of the defendants’ actions and the cost of this action.

Damages flow naturally from a wrong done to a claimant by a defendant. From the facts and evince in this case, it is evident that the claimant was neither dismissed nor terminated. The claimant left his job of his own volition. I accordingly hold that no wrong was done to the claimant to warrant an award of damages against the the defendants.

COURT ORDER

On the merit of the case, the 1^st defendant is hereby ordered to remit the claimants pension contribution to a pension administrator of claimant’s choice.

However, having found that the defendants are not juristic persons, the case is hereby struck out for want of competence.

I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

………………………………

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA.