IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY 13TH MARCH 2018
SUIT NO. NICN/OW/78/2017
BETWEEN:
- OHABUIRO ANTHONY NNAMDI
CLAIMANT
AND
UNIVERSAL INSURANCE PLC
DEFENDANT
REPRESENTATIONS:
- KELECHI OFOEGBU, HOLDING THE BRIEF OF C. ONWUCHEKWA, FOR THE CLAIMANT.
- DEFENDANT’S COUNSEL ABSENT.
JUDGMENT
This suit was begun by a complaint on 2nd December 2016. The Complaint was accompanied with a Statement of Facts. The reliefs claimed at paragraph 25 of the Statement of Facts are as stated hereunder:
- An Order of Court that having served the defendant for Ten (10) years am entitled to the mandatory 3 months Notice of Retirement or Three (3) Months Salary in lieu of Notice of retirement from August 2013 to November 2013 prior to the Claimant’s retirement on December 2013 amounting to ♯600,000.00 (Six Hundred Thousand Naira) only. [sic]
- An Order of Court mandating the Defendant to deduct 7.5% from my monthly salaries from June to 31st December, 2013 and also to deduct 12.5% of the employer’s contribution and account same for PAL PENSION from June to July 2013. [sic]
iii. An Order of Court that I am entitled to be paid my outstanding leave allowances from the months of June 2004 to December 2012 estimated at ♯1, 304, 800.00 being 10% of salary on total emolument and unspent leave days of 215 days amounting to the sum of ♯825, 944.85, unpaid leave allowance. [sic]
- An Order of Court that the Defendant should pay all deductions estimated at the sum of ♯24, 548.66 made from my monthly salaries for the periods of July 1987 – May, 2004 to National Insurance Trust Fund for onward transmission to Pal Pensions for inclusion in the computation of my retirement benefits. [sic]
- An Order of Court that the Defendant should computer [sic] and pay 81 months 20% unremitted contributory pension deducible from my salary and from the defendant’s fund. [sic]
- An Order of court directing the defendant to pay to the claimant 30% Pension arrears from January 2004 to September, 2016 amounting to ♯1, 980.000.000. [sic]
vii. The total sum of ♯6, 234, 893.51 (Six million, two hundred and thirty-four thousand, eight hundred and ninety-three fifty one kobo) only being general damages. [sic]
To the above, the defendant filed Statement of Defence on 9th January 2017, which was deemed properly filed and served on the 22/2/2017 by Hon. Justice Anuwe, my predecessor at Owerri Division. Thereafter, the case was opened on 25th April 2017 before His Lordship, Hon. Justice Anuwe, and the claimant closed his case this same day. The matter was adjourned to 1st June 2017 for the defence. But before this date, His Lordship, Hon. Justice Anuwe, was transferred from Owerri Judicial Division. The matter came up before me on the 5th December 2017. On this date, the counsel to the parties, relying on Order 62, Rule 10(5) of the NICN Rules 2017, applied to the Court to adopt their previous proceedings before Hon. Justice Anuwe as part of the proceedings before me. This application was granted, and the defence subsequently opened its defence. The defence closed its defence on this date too. The matter was thereafter adjourned to 27th February 2018 for adoption of written addresses. The matter came up as adjourned and counsel to the parties adopted their respective written addresses. The matter was thereafter adjourned to the 6th March 2018 for judgment. Judgment was not ready on this date; and as a result, the case was further adjourned to today, the 13th March 2013, for judgment.
Let me now proceed to review the addresses of counsel. I start with the address of the defendant. It was filed along with a motion on notice dated 26th February 2018 and filed the same day asking for extension of time and a deeming order. These prayers were granted on 27th February 2018. Thereafter, counsel to the defendant adopted the said Final Written Address. In this final written address titled “Defendant’s Final Written Address”, N.N. NWOKORIE, of counsel to the defendant, formulated the following issues:
3.1 Whether the Claimant worked for 10years with the Defendant. [sic]
3.2 Whether the defendant is indebted to the Claimant by virtue of the pleadings. [sic]
3.3 Whether the Claimant is entitled to deductions claimed by him against the defendant without tendering any documents to show how he arrived at the deduction claimed. [sic]
3.4 Whether the Claimant can be awarded special and general damages in the case. [sic]
3.5 Whether the defendant is entitled to three (3) salaries in lieu of retirement. [sic]
Counsel argued the issues seriatim.
ISSUES 1 & 2:
(1) Whether the Claimant worked for 10 years with the Defendant? (2) Whether the defendant is indebted to the Claimant by virtue of the pleadings?
Issues 1 and 2 are summarised together because of their interconnectedness. The learned N.N. NWOKORIE stated that claimant pleaded that he worked for 10 years from June 2004 to December 2013 and equally stated this in his Statement on Oath. Counsel submitted that a calculation of this period gives 9 years and not 10 years, and that, since claimant had admitted working from June 2004 to December 2013, he had admitted not working for 10 years by virtue of the provisions of section 123 of the Evidence Act. Counsel argued further that, the claimant was actually employed in 2007, which his letter of employment bears and not the 2004 claimed; and the fact that the claimant stated under examination in chief that the core investor did not have money to revive the company and having resigned in 2004, he could not logically have been employed in 2004. Counsel submitted that since the claimant did not file a reply to the Statement of Defence of the defendant, he is deemed to have admitted the averments contained in paragraphs 6 and 7 of the Statement of Defence. On this submission, counsel cited Adeniji v. Fetuga (1990) 5 NWLR (Pt. 375 at 391.
Counsel submitted that arising from the foregoing, it follows that the denial of the defendant in the said paragraphs that he was not owing the claimant any money and that the claimant had been paid off, being new facts are deemed admitted, since the claimant did not file a reply. Counsel submitted that this is more so because, the claimant did not plead the exact amount he is owed and how he arrived at the figure. Counsel submitted that the Court could not speculate on an issue, which is not substantiated by tendering documents to show what exactly the claimant is entitled to and how. Counsel submitted that by this, claimant has failed to prove that he is underpaid.
Counsel thereafter moved to issue 3.
ISSUE 3:
Whether the Claimant is entitled to deductions claimed by him against the defendant without tendering any documents to show how he arrived at the deductions claimed?
On this issue, the learned counsel argued that the defendant denied being indebted on any leave allowance and unspent leave allowances and that the claimant did not depose in his Statement on Oath that he was not paid leave allowance to the tune of N1, 304, 800 and unspent leave allowance, therefore, these reliefs go to no issue as facts not pleaded and on which no evidence was taken go to no issue. Counsel cited N.B.C.I. v. Alfijir Mining Nig. Ltd (1993) 4 NWLR (Pt. 287) 346 ratio 7 to buttress his submissions. Counsel submitted that on the issue of N24, 548.66 taken from the claimant’s salaries from July 1987 to May 2004, which the claimant said the Court should order the National Insurance Trust Fund to transmit to Pal Pension and also on the issue of unremitted 81 months pension fund and 30% arrears from January 2004 to September 2016, counsel submitted that these issues were not pleaded as they were merely claimed in claimant’s relief 25(iv) and that, no evidence was equally led on them, and that as such, they go to no issue. Counsel submitted that again, these issues are statute barred since it occurred since 2004: 14 years ago, disputes on contracts are supposed to be instituted within 8 years. Counsel submitted that failure of the claimant to join Pal Pension and failure to tender a letter from PAL Pension that this money was not remitted are fatal to this issue; as there is no evidence before the Court that the claimant is entitled to 20 or 30% of any amount as pension, leave allowance or unspent leave. Counsel subsequently urged the Court to discountenance the above for want of evidence. Thereafter, counsel moved to issue 4.
ISSUE 4:
Whether the Claimant can be awarded special and general damages in the case?
Citing Sommer v. FHA (1993) 1 NWLR (Pt. 219) 548 at 561 and Osuji v. Isiocha (1989) 3 NWLR (Pt. 11) 623, counsel submitted that, special damages must be specifically pleaded and supported by credible evidence: that is, it must be strictly proved. Counsel submitted that the claimant did not make any specific claim for special damages as he merely said he was underpaid. Counsel submitted that in the claimant’s evidence-in-chief, he did not give the particulars that would entitle him to special damages. Counsel submitted that by Nigeria Airway Ltd v. Abe (1988) 4 NWLR (Pt. 90) 542 ratio 13, and A.N.T.S. v. Atoloye (1993) 6 NWLR (Pt. 298) 233 ratio 28, a court is precluded from making its own assessment of special damages and must act strictly on the evidence adduced. Counsel also submitted on the authority of Allied Bank Nigeria Ltd v. Akabueze (1997) 6 NWLR (Pt. 509) 374 and Umotuk v. Union Bank Plc (2007) FWLR (Pt. 81) 1849 that it is misleading to claim general and special damages on breach of contract apart from the damages naturally resulting from the breach; and that as such, the claim for general and special damages should be dismissed. On this note, counsel ended submissions on issue 4 and moved to the last issue.
ISSUE 5:
Whether the defendant is entitled to three (3) months salaries in lieu of notice of retirement?
Counsel argued that since the claimant was 67 years old, contrary to 60 years approved by the National Insurance Commission, when he was retired; and having collected gratuities twice from the same company; he was not entitled 3 months salaries in lieu of notice. Counsel also submitted that the claimant admitted in his Statement of Claim that he was paid but underpaid, but failed to show or prove by how much he was underpaid. Hence, counsel urged that this Court to discountenance the issue of damages, and also urged that this action be dismissed.
I have carefully summarised the submissions of counsel to the defendant, I now move to that of the learned counsel to the claimant in rebuttal. The claimant filed its final written address, which is dated 20th February 2018 and titled “Final Written Address Filed on Behalf of the Claimant” on 26th February 2018. C. ONWUCHEKWA settled the address. The learned C. ONWUCHEKWA formulated a lone issue, to wit:
Whether upon a clam view of the totality of evidence, the claimant has established that he is entitled to the reliefs set out in paragraph 24(1, ii, iii, iv, v, vi and vii) in the claimant [sic] statement on oath dated 2/12/2016. [sic]
The learned counsel submitted that except in cases of allegations of crimes, it is the duty of the claimant in civil cases to prove his case on the balance of probability. On this, counsel cited Organ v. Nigeria Liquefied Natural Gas Ltd (2010) ALL FWLR (Pt. 535) at 298, and Jolayemi v. Alaoye (2004) ALL FWLR (PT. 217) 584 to buttress this point. Counsel contended that in satisfaction of this requirement, Exhibits A, B, and C were tendered; and that, these were not in any way challenged by the defendant, except the ineffectual statement in paragraph 3 of the written Statement on Oath of DW1, David Okolie, denying paragraphs 3-9 of the Statement of Claim, claiming that by the available records, the claimant was re-employed in 2007 and not 2004. Counsel submitted that this piece of evidence given by the DW1 in his evidence-in-chief amounts to mere denial and an attempt to withhold vital evidence by refusing to tender vital records covering the period of re-employment which are in the custody of the defendant. Counsel argued that arising from the above submissions, paragraphs 3-9 of the Statement of Claims were not rebutted. Counsel cited Gabriel Jim-Jaja v. C.O.P. Rivers State (2013) MRSCJ Vol. 11, p. 41 to buttress his point.
Counsel thereafter submitted that the law is that, though, a claimant must succeed on the strength of his case and not on the weakness in the defence, but the exception holds that, where the case of the defence supports that of the claimant, the claimant can take this advantage. On this, counsel cited Bunge v. Gov. Rivers State (2006) 10 MJSC 136 at 184. Counsel argued the situation here, is such that the defence did not tender any evidence and abandoned even the one pleaded: “Final Notification of Retirement”. Counsel submitted that this is more so because during cross-examination, the DW1 admitted that, “from 2004 to 2007 the defendant kept records of its dealings with the claimant and its clienteles”. Counsel submitted that the inference is that the claimant as at 2004 was having dealings with the defendant, and when the defendant who knew that this piece of evidence might be detrimental to it, decided to withhold it, there is nothing placed before the Court to show that the claimant was not a staff of the defendant from 2004 to 2014. Counsel urged the Court to so hold.
Counsel finally urged the Court to hold that the claimant has proved his case; and hence, the Court should grant the reliefs claimed.
RESOLUTION OF THE DISPUTE
Having carefully summarised the final written addresses, the next duty placed on me is to apply law to the facts and come up with the appropriate decision in accordance with the law. In doing this, I adopt the lone issue formulated by the counsel to the claimant. This issue, albeit slightly amended, is concise enough and capable, in my humble view, of resolving the dispute, to wit:
Whether upon a calm view of the totality of evidence adduced, the claimant has established that he is entitled to the reliefs claimed?
In discussing this issue, I wish to observe at the outset that, the claims of the claimant herein, seemed to me, in essence, to have been compartmentalized into three main aspects: (1) the aspect that deals with the issue of whether or not the claimant served for 10 years; (2) that dealing with whether or not the claimant is entitled to the leave allowances in issue, the three months payment in lieu of notice, and the National Housing Funds deductions from salaries; and thirdly, the aspect dealing with whether or not the claimant is entitled to the unremitted pension claims. These, to me, are the breakdown of all that the claimant claimed in this action. And it is upon this basis that I will proceed to resolve the issue formulated above. In doing this, I wish to preface my answers with the holdings of the Court of Appeal in Nzeribe v. Nzeribe & Anor. (2013) LPELR-21930 (CA) 43-44, paras. G-G:
Though, there is no general rule as to the style or approach in judgment writing, there are some minimum or recommended standard and stages to be adopted or followed in writing or reaching a fair judgment. These include: (a) the judge should first consider the evidence led by the plaintiff to see whether he has led evidence on all material issues he needs to prove. At this stage, the question of belief or disbelief of witnesses does no arise. Thus, if the Court finds that evidence led by the Plaintiff is not sufficient, as to establish his claim, then it would mean that the Plaintiff has not made out a prima facie case in which case, the trial Court does not need to consider the case of the Defendant; and invariably it would not matter that the Defendant did not call evidence. (b) the next stage would be for the Court to evaluate the evidence, and in doing so, the Court must bear in mind (i) on whom the burden of proof of particular facts in dispute lies (ii) whether there is any evidence which requires any special approach and (iii) the Court will then make its findings having regard to the onus of proof that will ultimately determine the result of the case.
The above criteria would be my sacred text in tackling the various segments of the case as detailed earlier on. With regard to the question whether or not the claimant served for 10 years, I think we need not waste much time on this. The claimant stated in his Statement of Claims at paragraph 18 that, he served from 2004-2013. When 2004 is deducted from 2013, the answer is 9. That means, by simple arithmetic, the claimant averment that he served 10 for years is not proved. There is therefore no need to even consider the defence of the defendant on this. Since a claimant is bound by his pleadings, the claimant herein is bound by the pleading that he served from 2004-2013. Even the evidence led is not at variance with the pleaded fact, meaning that, the issue of saying such goes to no issue does not arise. The claimant led evidence on serving from 2004 to 2013, proving exactly what he pleaded and by that contradicting the assertion of serving for 10 years. As it is now, it is 9 years that is in issue and not 10 years. Now, did the claimant serve for 9 years?
I observed that there is a letter dated 1st July, 2004 with the caption “To Whom It May Concern”, admitted as Exhibit A. Exhibit A, in paragraph 1, introduced Mr. A.N. Ohabuiro as the Internal Auditor of Universal Insurance Company Limited. There is the averment in paragraph 4 of the Statement of Claim that the defendant [Universal Insurance Company Ltd] was privatized in 2004. Under cross-examination, DW1, stated that he may not have the name of the internal auditor of the defendant from 2004 to 2007 and that he could not remember the defendant’s secretary between 2004 and 2007. This secretary allegedly signed exhibit A, while the internal auditor at the material time in issue, is alleged to be the present claimant. I wonder how DW1 could not remember all things that favour the claimant but remembered such little and insignificant details against the claimant. This lapse of brain with regard to anything that favours the claimant is more confounding when it is realized that the claimant studied the same records of the defendant in his possession to have the facts against the claimant. This type of jaundiced amnesia is cause for suspect; more so, when the claimant stated that the same Secretary served till he retired in 2013 and that he was the internal auditor of the company at all times relevant to this suit and the brain of DW1 suddenly lapsed in remembering who the secretary was at the relevant time. DW1, also under cross-examination, admitted that the defendant was privatized in 2004. I note that the Statement of Defence did not specifically traverse paragraph 4 of the Statement of Claim and said nothing about when the defendant was privatized but only talked about when the issue of recapitalization was settled, which is not the same thing as privatization. From Exhibit A, it is clear that the claimant was not re-employed at the date of 1st July 2004 indicated in the Exhibit A, and that, his re-employment predated the 1st of July 2004, otherwise, Exhibit A, which is not a letter of appointment, would not have introduced the claimant as the defendant’s Internal Auditor. I also note the Internal Memo [Exhibit B] directed to the claimant. It is dated 16th November, 2004. The claimant was thereby directed to relocate to the City Office as a member of the Advance Team to ensure that the Office is habitable as soon as possible.
When the above scenario is brought together with the fact that the defendant was privatized in 2004 and the nature of work, which the claimant said he did for the defendant during the period preceding and immediately after privatization, works, which were geared towards putting the defendant on a sound new footing, and the fact that the defendant avoided joining issue on when the defendant was privatized, it is thus clear that there was no break in the service of the claimant to the defendant from the old to the new defendant. His services were considered essential for the new defendant to put its acts together and find its proper feet in its new endeavour. I therefore have no hesitation in agreeing with the claimant that he was re-employed in June 2004. That the claimant was not given a letter of re-employment bearing that date does not prove that he was not employed in 2004. The claimant has provided unassailable and concrete evidence of being in the employment of the defendant since 2004, which evidence has not been dispelled by any iota of counter-evidence. More so, the claimant has stated that the defendant deliberately delayed issuance of the letter of re-employment till 2005. The fact of employment can be proved by conduct – see The Council of Federal Polytechnic, Ede & Ors. v. Olowokere (2012) LPELR-7935 (CA) 22-23, paras. B-B. The conduct of the defendant herein, has shown irrevocably that, the claimant was re-employed at the earliest time after the privatization and before recapitalization. I therefore hold that the claimant was re-employed in June 2004.
The next question is that dealing with whether or not the claimant is entitled to the leave allowances in issue, the three months salaries in lieu of notice, and the National Housing Funds deductions from salaries claimed? In dealing with these heads of claim, let us look at the evidence of the claimant on them. In line with the sacred rules quoted above on how to write good judgment, it is only after the claimant has established a prima facie case that it becomes necessary for me to consider the case in its totality, otherwise, the claims fails. The claim for outstanding housing provident fund from 1987-2003 could not be successful in view of the fact that the claimant has failed to tender his pay slip to show that these monies were deducted as claimed. It would have been a different thing if the claimant had applied for the pay slips and was not given by the defendant. No application or notice to produce the pay slips was shown to have been made. If the allegation is that certain monies were deducted from your salaries but were not paid to the rightful body to which it was supposed to be paid, the first proof to sustain the allegation is to show that the deductions were actually made, and next is to show that they did not get to the designated body. It is only after that that the defendant becomes duty-bound to bring proof in support of his own contrary assertion. A claimant or plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s case – see Ihekoronye v. Hart & Anor. (2000) LPELR-6032 (CA) 22, paras. A-C. The only exception to this rule is, if aspects of the case of the defendant support the claimant’s case. I could not find any aspect of the case of the defendant that supports the case of the claimant. It must follow that on this head of claim, the claimant fails. It must be borne in mind that this is a case in which the claimant had been paid off once at the end of its first appointment with the defendant before the resumption of the 2nd appointment. This claim ought to have been pursued then and not now. If the claim exits, it is deemed to have been abandoned, by the conduct of the claimant in not raising the issue when he collected his entitlements and for the past 10 years – Adams v. Umar & Ors. (2008) LPELR-3591 (CA) 64, paras. B-D. The defendant is entitled to assume that everything relating to payment of the erstwhile staffers’ entitlements had been settled and done away with when the erstwhile staffers, including the claimant herein, were paid off.
With regard to the three months salaries in lieu of notice claimed, let me state that entitlement to salaries in lieu of notice arise from the conditions of service or forms part of the conditions of service. I do not think it is a matter of law that, in terminating an appointment, the parties are willy-nilly enjoined by any law, at least in Nigeria, to issue three months salaries where notice is not given. It should not be forgotten that the termination herein is in form of retirement after attaining the statutory age of retirement and not premature termination of appointment. In essence, in proving entitlement to salaries in lieu of notice, the party asserting that he is entitled to salaries in lieu of notice ought to show by what authority this forms part of his contract. The normal way by which this is proved is to point to the particular provision of the Conditions of Service, usually called handbook, which grants this right. Failure to do this must be fatal to the case of the claimant. This is because the handbook is not law or statute book, but part and parcel of the contract between the parties – see Adekunle v. United Bank for Africa Plc (2016) LPELR-41124 (CA) 20-21, paras. C-A. Hence, even if pleaded, since it is not law or statute book, if the party relying on it fails to point out the provisions or particular part of it grounding his assertion, the Court could not, as it is wont to do with regard to a right conferred directly by law or statute, open the handbook and start searching for those areas that support the case of the claimant in the sanctuary of its chambers – see Peoples Democratic Party (PDP) & Anor. v. INEC & Ors. (2012) LPELR-8369 (CA) 17-18, paras. D-E. In this respect again, the claimant has failed to avail the Court of the type of evidence that can lawfully prove his assertion of entitlement to payment of three months salaries in lieu of notice. I also observed that the claimant appeared to have tied his entitlement to salaries in lieu of notice to serving for 10 years. Since the claim for service for 10 years has failed, this constitutes an additional reason why the claim for salaries in lieu of notice must fail. Hence, for the foregoing reasons, the claimant’s claim in this respect also fails.
I now come to the head of claim dealing with whether or not the claimant is entitled to unpaid leave allowances. Now, what type of proof is required in assertion that leave allowances were not paid? It should be noted that leave allowance is not the same thing as salary for which it is generally known that pay slip is mandatory. Leave allowances are paid or supposed to be paid when one goes on leave. If a worker did not go on leave and was not paid the leave allowance, s/he could not be expected to have evidence that he was not paid leave allowance. So, when a worker alleges non-payment of leave bonus, it is incumbent on the employer who denies this to tender the schedule by which such worker was paid the leave allowances in issue. In United Bank of Africa Plc v. Ogochukwu (2014) LPELR-24267 (CA) 41, paras. A-C, it was held that when a fact is especially within the knowledge of any person, the burden of proving that is upon him. The fact of payment of leave bonus where the allegation is that it was not paid is peculiarly within the possession of the defendant and the defendant is thus bound to produce evidence to prove that he does not owe the claimant as claimed. In this vein, I hold that the claimant has satisfied the proof required of him in law that he was not paid leave allowances as claimed.
However, that does not end the issue. The claimant has failed once more to show to the Court how he became entitled to the amount claimed or to point out where the mathematical formula is by which the Court would know he is entitled to the amount claimed. What I am saying, in essence, is that, he did not tell the Court where to locate the percentage by which he arrived at the calculation of the leave bonuses he said he is entitled to. This is a very important requirement of proving a liquidated demand – see The City Waiters Limited v. Adio (2014) LPELR-24329 (CA) 27-28, paras. E-D. Once again, the importance of referring the Court to the portions of the handbook or conditions of service that entitles the claimant to a particular percentage of salaries, as leave bonus, is sacrosanct; and in this, the claimant has failed again. Hence, the claim for leave allowances also fails, and I so hold.
I now come to the issue of unremitted pension claims. Now, what type of evidence is needed to prove allegations of non-remittal of pension deductions? While I agree that issue of pension is an obligation placed on the defendant by law and that the Court is at liberty to open the statute to know what pension the claimant is entitled to, it is still my candid view that this does not relieve the claimant of the need to place some form of evidence before the Court to prove his assertion of non-remittal of the appropriate pension. I think, what the fact that the pension right is a statutory obligation gives to the claimant, is the need not to prove his entitlement to pension deduction remittal and that, where he fails to plead what percentage he is entitled to, the Court, is by law, mandated to take the percentage contained in the Pension Reform Act as the percentage to calculate the pensions rights. However, where issues are joined no non-remittal, it is my candid opinion that the claimant needs to place before the Court some form of evidence to prove the non-remittal. This is so, because the claimant must have had access to some information for him to come to the conclusion that his pension deductions were not remitted as required by law.
If the foregoing is so, is the Court not entitled to be availed of this piece of information, to enable it know for sure that, the pension was not remitted as required? This situation becomes more perplexing in that the claimant did not make the PAL Pension a party to this action, so that, it could by itself furnish the Court with the records connected with the claimant’s pension remittals. In the final analysis, the pension claims, to a large extent, is on the pedestal of asking the Court to make a speculative order. In this regard, I have no hesitation in agreeing with the counsel to the defendant that the claimant has failed to prove this head of claim, but to the extent of 2007 to 2013 when the claimant retired but not with regard to the period covering 2004 to 2007. Why do I say this?
This is because the claimant is adjudged earlier on in this judgment to have begun the tenure of second employment with the defendant in 2004 instead of 2007 claimed by the defendant. It follows that the defendant based all entitlements paid to the claimant on the second employment on the basis that he worked for 7 years instead of the 9 years the Court found in the claimant’s favour. It also follows that the claimant’s pension remittal was not remitted for the period from June 2004 to 2007 and that his gratuity was based on 7 years instead of 9 years, but unfortunately, the claimant did not have any head of claim relating to incorrect gratuity.
However, the claimant is entitled to the remittal of his pensions from June 2004 to 2007, which by logic, the defendant impliedly admitted it did not pay by saying the claimant began his second coming in 2007. Logic suggests that the defendant could not have remitted pension contributions for a period it claimed the claimant was not in his employment. Since the defendant did not state the exact date of the alleged second-coming employment in 2007, it is safe to take the whole of 2007 as the spectrum covered since the claimant’s claim for pension arrears is beyond the 2007. Therefore, the defendant is hereby ordered to calculate, based on section 9-(1)(c) & (2) and section 11(5) & (7) of the Pension Reform Act, 2004, which would be 15% of the monthly salaries, as the claimant’s pension remittal for a period of 42 months: 3 years, 6 months, and an interest of 2% per month on the arrears of the unremitted pensions. These arrears should be paid over to PAL Pension within 60 days from the date of this judgment. Limitation law cannot catch up with the pension claims because they only ripen after retirement, which occurred in just 2013.
The claims for general and special damages fail. Apart from the fact that they not proved, general and special damages are not granted in breach of contracts; and more particularly in claims based on breach of contract of employment, where these are sparingly granted – see Wilbros Nig. Ltd v. Macaulay (2009) LPELR-8507 (CA) 28, paras. B-C. Save as specified and ordered above, all the reliefs claimed by the claimant fail. And flowing from this, the case of the claimant succeeds in lean part and fails in large part. I make no order as to cost.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Presiding JUDGE
Owerri Division, National Industrial Court of Nigeria
