IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (Dr) l. J. ESSIEN
DATE: 30th JANUARY, 2020
SUIT NO. NICN/LA/49/2018
BETWEEN.
- ISRAEL OLANIRAN ALOBA———————————- CLAIMANT
AND
MRS. VICTORIA OLUREMI ODUNAYO
(Trading under the name of Holy Saviour’s College) ————–DEFENDANT
REPRESENTATION.
- O Oladeji Esq. for the claimant
Qudus Mumuney Esq. for the defendant
JUDGMENT.
By a complaint dated and filed on the 5/2/2018, the claimant sought the following reliefs from this court;
- The sum of N924, 056.00 (Nine Hundred and Twenty Four Thousand Fifty Six Naira) being 10°/o of monthly pension contribution of the defendant due to the Claimant from 2002 to August 2017.
- An interest on the total sum at the rate of 10% per month from January 2002 to August 2017 and 5% from August 2017 till Judgment is delivered and 6% interest after Judgment.
- Cost of this action at N300,000.00
Filed along with the complaint is the claimant witness statement on oath and the list of front loaded documents. In response to the complaint, the defendant filed a statement of defence on the 10/4/2018, along with a witness deposition.
Hearing in this matter commenced on the 5/3/2019, with the claimant testifying as CW1. The claimant adopted his witness deposition and tendered the following documents in evidence;
- Letter of confirmation of appointment dated 29/7/2002 admitted in evidence and marked as Exhibit C1.
- Certificate of registration with AIICO Pension Managers admitted and marked as Exhibit C2.
- G-mail trail and certificate of compliance with S. 84 of Evidence Act, admitted and marked as Exhibit C3.
- Letter of demand written by the claimant counsel admitted and marked as Exhibit C4.
At the conclusion of the evidence in chief, the claimant who testified as CW1 was cross examined by the defendant counsel. On the 16/9/2019, when the defence was to open their case, the defence counsel Mr. Qudus Mumuney Esq. informed the court that the defendant will not be calling any witness in his defence to this action. The matter was adjourned to the 15th January 2020 for adoption of final written addresses of counsel.
BRIEF FACTS OF THE CASE.
The claimant was employed by the defendant sometimes on the 2/10/2001 as a class teacher. His appointment was confirmed on the 1/8/2002. The claimant allege that after his confirmation as part of his condition of service he was entitled to pension and gratuity. That his diligence saw him being promoted to the position of principal of the school. That he was directed to open a retirement savings account which he did with AIICO Pension managers. He allege that the defendant was 0blige to remit 10% of his salary into the Retirement Savings Account (RSA). He stated that the total of the 10% deduction due to the claimant is N924,056.00k That the defendant deliberately refused to pay the contribution into his RSA, with AIICO Pension Managers. He stated that he was asked to proceed on compulsory leave and while still on leave he received a letter on the 13/8/2017 notifying him that he has been relieved of his appointment. The letter also required him to hand over all the defendant properties to one Mr Atere. Upon the termination of the claimant he caused his solicitors to demand the sum of N924,056.00k As the claimant pension contribution, which he now claims in this action . This is the case of the claimant.
The defendant in their statement of defence states that she is not the employer of the claimant. The Holy Saviour College was acquired by Lagos State Government in 1976 from the family of Akindeinde who were the original owners of the school. That sometimes in 2001, the Lagos State Government returned the school back to the original owners. The Lagos State Government also promised to pay all the teachers in the school for five years. This they have not done resulting in an action now pending in the Lagos State High Court. the defendant further state that at no point did Holy Saviour College advise the claimant to open a Retirement Savings Account with AIICO Pension Managers. That he is not aware of the condition of service relied upon by the claimant.
At the resumed hearing of this suit on the 16/9/2019, the defendant’s counsel informed the court that the defence will not be leading any evidence in support of the averments in the statement of defence. The implication is that there is no evidence led by the defendant in this action. It is settled law that pleadings which no evidence is led goes to no issue. See Star Finance & Properties Ltd V. & Anor. NDIC [2012] LPELR-8394 (CA).
Bearing this in mind the settled position of the law is that the claimant must succeed on the strength of his case and not on the weakness of the defence. See the case of Dame Pauline Tallen & Ors V. David Jonah Jang & Ors. [2011]LPELR-9231 (CA). This court is therefore left to determine whether the claimant in this action has led credible evidence to proof that the sum of N924,056.00k was deducted from the claimant’s salary by the defendant for pension contribution.
The claimant tendered Exhibit C1, the letter of confirmation of appointment along with the Holy Saviour College condition of service. The letter of appointment which would have given the court a very clear picture of the terms of the employment between the claimant and the defendant was never tendered in evidence. In paragraph 10 of his witness deposition the claimant made a tabulation of the 10% of the alleged yearly pension contribution due to the claimant. Throughout the pleadings the claimant did not state what was his monthly salary to show what was deducted on monthly basis as his pension contribution. The yearly tabulation cannot be evidence of the alleged pension contribution. It is also the position of this court that the solicitors letter of demand Exhibit C4 is not also proof that the claimant salary was deducted for pension contribution by the defendant. A proper evidence in this respect would have been for the claimant to show what was his monthly salary, and also show what he contributed from the monthly salary to give a clear amount of what his take home package was after the deduction of his pension contribution. Thereafter he was to give evidence of what his employer was supposed to contribute for the purpose of remittance to the Retirement Savings Account. In other-words, the claimant did not tender any document which represents his employment contract, there is no evidence establishing the claimant’s agreed salary in the nature of a pay slip, while in the employment of the defendant, In the absence of clear evidence in proof of his pension entitlement this court cannot rely on the tabulation in paragraph 10 of his witness deposition. I have considered paragraph 5 of the condition of service attached to Exhibit C1. Which states ‘ Your appointment is pensionable (the terms attached to this would be made known when the unified condition of service of the Association of Returned Schools is finalised.’ There is no evidence before me that can be used to enforce this clause of the condition of service. Furthermore the claimant claims pension entitlement from 2002 to 2017, I have examined Exhibit C2. i.e. the certificate of registration with AIICO Pension Managers. The Retirement Savings Account was opened in 2007. There could have been no pension contribution from 2002 to 2007 before the account was opened assuming that there was deductions made by the defendant for pension benefits in favour of the claimant, This has made the sum of N 924,056.00k claimed by the claimant very doubtful. The onus is on a party who asserts the affirmative of an issue to offer proof. In the case of Okeshola V. Military Governor of Lagos State [2000]LPELR-9147 (CA) the Court of Appeal re-enforced this principle when it held.
It is trite law that he who assets must prove. See S. 135,136.and 137 of the Evidence Act Cap 112 LFN 1990. A cardinal principle of law is that in civil cases a party must prove his case on credible evidence, for such cases are determined on preponderance of evidence and balance of probabilities
Also in the case of UBN Nig. Ltd V. Henry Tivde Adom & Anor [2002] LPELR-7173(CA) the Court of Appeal also held inter alia ;
A party who claims against the other party must prove his assertion with cogent and credible evidence if he desires to succeed in his claim, it is after he has adduced such credible evidence in support of his claim that he will be said to have discharged the burden of proof placed on him by the law…
On the strength of the authorities cited above and the findings made by this court on the evidence adduced by the claimant in this suit, it is the decision of this court that the claimant has failed to lead cogent and credible evidence I prove of his claim in this action. The claim of the sum of N924,056.00k and the claim of interest thereon must fail. It is hereby accordingly dismissed.
Parties are to bear their own cost.
Judgment is hereby entered accordingly.
_________________________________
HON. JUSTICE (Dr.) I. J. ESSIEN.
(Presiding Judge)
