IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABEL JUSTICE E. N. AGBAKOBA
DATED: 20TH MAY 2019
SUIT NO: NICN/ABJ/141/2016
BETWEEN
MR. TANKO GARBA ………………………………………………….. CLAIMANT
AND
1. HERITAGE PRESS LIMITED
2. ISMAILAIBRAHIM ……………………………………… DEEFENDANTS
REPRESENTATION
MUSA YAHAYA for the Claimant
HAMZA GUDAYI for the 1st Defendant
ADEOLA SALAKO for the 2nd Defendant
JUDGEMENT
This judgement ought to have been delivered before today………The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 22nd April, 2016, against the defendants for the following reliefs:
i. A declaration that the Claimant is entitle to gratuity, retirement benefit and contributory pension funds.
ii. An order directing the Defendants to pay the Claimant his gratuity, retirement benefit and contributory pension fund, housing allowance, medical allowance and annual leave/grant allowance and other outstanding entitlements.
iii. N5, 000, 000. 00 special and general damages against the Defendants in favour of the Claimant.
iv. The cost of this action.
Claimant’s Case
The Claimant’s case is that he was a former employee and staff of the Heritage Press Limited, a limited Liability Company registered in Nigeria with it registered office at Heritage House, 636A, Sultan Abubakar Way, Wuse A2, Abuja and the employer of the Claimant vide a letter of appointment as Press Attendant dated the 9th (lay of August, 1993. And that on the 1st day of June, 1994, his appointment as Press Attendant dated the 19th day of August, 1993 was confirmed vide a letter of Confirmation of Appointment with effect from 28th day of February, 1994 and the Claimant accepted based on the reward and conditions stated in the appointment letter.
The Claimant stated that while in the service of the Defendant, he sustained injury while within the bounds of his employment, that he was abandoned and not compensated as required by law. Subsequent upon, the Claimant informed the Defendant of his intention to resign from the Defendant service and same was approved by the Defendant vide a letter dated 29th day of December, 2006.
The Claimant averred that while in the service of the Defendant, he filled contributory pension form and contributed to the contributory pension fund in accordance and as admitted by the Defendant was assigned pension manager, but was neither given his gratuity nor contributory pension. And that since 2006, a period of more than (twelve) 12 years, he was not paid his gratuity and contributory pension, and upon a demand vide a demand letter date 8th February, 2016, for his gratuity and pension, he was threatened by the Defendant through Profile Group Ltd vide a letter dated 16th day of February, 2016. That the Defendant has refused, neglected refused to give the Claimant his due payable.
The Defendants filed their STATEMENT OF DEFENCE on 8th May, 2017.
The 2nd Defendant denying paragraph 1 of the Statement of Claim averred as follows:
There is no job description or career in the 1st Defendant’s company or anywhere in the world known as “a of press printer”.
The Claimant was never an employee of the Defendant.
Just as the Claimant was an employee of the 1st Defendant, the 2nd Defendant also was a former employee of the 1st Defendant.
2nd Defendant denying paragraph 4 of the Statement of Claim stated as follows:
The 2nd Defendant was not aware of the appointment of the Claimant as he was not a party to the contractual relationship of master-servant between the Claimant and the 1st Defendant.
The letter of appointment to be relied upon by the Claimant is suspicious as it has no origin as to the authorship.
Responding to paragraph 5 of the Statement of Claim, the 2nd Defendant stated that he was not a party to the contractual relationship between the Claimant and 1st Defendant and thus cannot be in position to admit his confirmation as a staff. Furthermore, that the 2nd Defendant was not the author of the said letter of confirmation.
2nd Defendant denying paragraph 6 of the Statement of Claim averred that he was not aware of any incidence of injury to the Claimant within the bound of his employment while he was the Managing Director of the 1st Defendant.
2nd Defendant stated that Paragraph 7 of the Statement of Claim is untrue as there was never any occasion when the Claimant told the 2nd Defendant of his intention to resign as the Claimant did not serve on the 2 Defendant any letter of resignation. And that no approval was given to the resignation of the Claimant.
Reacting to the reliefs claimed by the Claimant in his Statement of Claim, the 2nd Defen cxcxdant stated that the claim of the Claimant is unmeritorious, lacking in merit and gold digging and ought to be dismissed by this Honourable Court.
The 2nd Defendant at the hearing of this suit shall be challenging the joinder of the 2nd Defendant as a party in this suit on the following grounds:
The Claimant’s claim discloses no cause of action against the 2nd Defendant.
There is no Privity of contract between the Claimant and the 2nd Defendant.
Joining the 2nd Defendant in this suit is a misjoinder.
The 2nd Defendant is not a proper or competent defendant in this suit.
The action is not maintainable against the 2nd Defendant in its present constitution.
The defendants field their STATEMENT OF DEFENCE on 13th September, 2018.
Maintaining that contrary to paragraphs 3, 4 and 5 of the Statement of Claim, the 1st Defendant stated as follows:
The Claimant known to the Defendant as Tanko Sa’eed Garba, was initially employed as Press Attendant by the Defendant vide a Letter of Appointment dated August 19, 1993 based on the terms and conditions contained therein.
In 1997 due to operational challenges, the Claimant voluntarily left the Defendant to further his education.
Sometime in 2003, the Claimant again applied to the Defendant for employment as Printer, following which he was offered Temporary Appointment vide a Letter dated July 01, 2003 in accordance with the terms and conditions contained therein.
The Temporary Employment of the Claimant was never confirmed by the Defendant until when the Claimant voluntarily resigned on the 29th of December 2006.
In reply to paragraph 6 of the Statement of Claim, the 1st Defendant stated that despite paying medical allowances to its staff (the Claimant inclusive), the Defendant voluntarily provided free medical support for all its employees at the Julius Berger Clinic, Abuja, and that Claimant was also entitled to same. That the records of the Defendant however do not disclose any incident of injury to the Claimant.
Responding to paragraphs 8, 9, 10 & 11 of the Statement of Claim, the Defendant averred thus:
The pension contributions deducted from the salary of the Claimant were; N1, 288.78 (July 2006), N1, 4i7 (August 2006); N1, 417 (September 2006); N798 (October 2006); N1, 417.58 (November 2006), and Ni, 417.58 (December 2006).
The contributions of the Defendant as an employer were equal to that of the Claimant.
For purposes of remittance of these contributions the Claimant was assigned to Penman Pensions Limited. This is because the entire work force of the Defendant was then divided into two. The first group of staff was allocated to Penman Pensions Limited, and the second to Legacy Pensions Limited and the Claimant was part of the first group.
The Claimant was obliged to open a Retirement Savings Account with Penman Pensions Limited and thereafter the details of that account will be furnished to the Defendant to enable remittances to be effected but the Claimant failed to do so.
The Defendant states that the act of opening a Retirement Saving Account is the sole responsibility of the Claimant with his Pension Fund Administrator i.e. Penman Pensions Limited.
All deductions however could not be remitted by the Defendant due to the failure of the Claimant to open a Retirement Savings Account, up till when the Defendant folded operations and shut down about 5 years ago. The Defendant is willing and ready to pay same once the Claimant provides the details of his Retirement Savings account or by any other means directed by this Honourable court.
On the issue of gratuity or retirement benefit, the Defendant states that the Claimant is not entitled to same based on the contract of his employment or under any law.
The Defendant states that the Claimant’s transportation, meal and medical allowances have always been consistently paid to him as part of his gross salary on a monthly basis in line with his contract of employment. The Defendant shall rely on its payrolls and bank listings as well as pay slips of the Claimant and same are hereby pleaded. The Defendant on his part is hereby given notice to produce the Statement of his Fidelity Bank Account No. 3124630915 from July 2003 till December 2006.
The Claimant is not entitled to housing allowance under his contract of employment. In spite of that however, the Defendant gave free accommodation to the Claimant in its staff quarters.
Defendant stated that during the trial of this suit, the 1st Defendant will raise an objection to the effect that the cause of action of the Claimant is statute barred.
Whereof the Defendant prays this court to dismiss the claims of the Claimant.
At the trial, the claimant testified on his own behalf as CW, adopted his written statement on oath of 2nd April 2016 which was marked as C1, and proceeded to tender four other documents which were marked Exhibits C2-C5. Exhibit C5 was admitted under protest. and thereafter the Mallam Mohamed Bature Abdullahi a Printer testified as CW2, adopted his written statement on oath of 8th January 2018 which was marked C6, Both CW1 and CW2 were duly cross examined by the Defendants counsel. The Defendants called Baba Ali Kellu a Financial Controller of the defendants who testified as DW1 adopted his written statement on oath which was marked D1 and proceeded to tender 48 other documents marked as D2-D49, these exhibtis were admitted under protest;- the claimant reserving the right to raise the question of certification in their final address. He was cross examined by the Claimant Counsel. Thereafter parties were asked to file and serve their respective written addresses starting with the defendants as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007; and the matter was adjourned for adoption of written addresses;- parties filed their respective written addresses. The defendant’s final written address is dated and filed on 28th May 2018, while the claimant’s is dated and filed on 17th July 2018. The defendant’s reply on points of law was filed on 19th July 2018.
FINAL WRITTEN ADDRESS OF THE DEFENDNT filed on 28th May, 2018.
ISSUE
Whether the claimant has established his case to entitle him to any of the reliefs sought from this Honourable court.
Learned Counsel to the Defendant submitted that it is trite law that it is the claims/reliefs of the plaintiff that determines the jurisdiction of a court. Babale v. Abduljadir (1993) 3 NWLR (Pt. 281) 253; O.H.M.B v. Garba (2002) 14 NWLR (Pt. 788) 538; Trade Bank Plc. v. Bemilux Nig. Ltd (2003) 9 NWLR (Pt. 825) 416; A.P.C. Ltd v. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) 404; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 and that any evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a Judge. Amayo v. Erinmwingbovo (2006) 11 NWLR (Pt.992) 699; A.-G., Abia State v. A.-G., Fed. (2005) 12 NWLR (Pt.940) 452. Defendant’s Counsel conceded that as a former employer of the defendant, the defendant owed a duty to take reasonable care to provide safe equipment and a safe system of work, however, that the burden of proving that this duty of care has been breached as a result of which injury was suffered by the claimant, is however on the claimant. OKEJIMINOR VS. GBAKEJI (2008) 5 NWLR (pt. 1079) 172- 177 and Abubakar v Joseph (2008) 13 NWLR (Pt.1 104) 307. He further submitted that for a Claimant to succeed where his case is founded on negligence, same must be pleaded and particularized, as a blanket allegation of negligence in the pleading is not sufficient. And that quite apart from giving explicit evidence of negligence, the plaintiff must also show the duty of care owed to him and its breach by the defendant. Flash Fixed Odds Ltd. v. Akatugba (2001) 9 NWLR (Pt. 717) 46 and P.I.P.C.S. Ltd v. Vlachos (2008) 4 NWLR (Pt. 1076) 1 at Pp. 16-17, paras. H-B (CA).
To the defendant where the claimant who gave evidence by himself failed to show this court the purported injury the court should invoke Section 167 (d) of the Evidence Act, 2011 against the claimant to the effect that the refusal of the claimant to show the purported injury to his finger to this court was because if he did, it would have been unfavourable to him or in order words no such injury exists. PDP & ANOR v. INEC & ORS (2008) LPELR-8597(CA) at Pp. 41-42, paras. G-A; PURIFICATION TECHNIQUE NIG. LTD. & ORS. V. JUBRIL & ORS. (2012) LPELR-9727(SC); Nwankpu v. Ewulu (1995) 7 NWLR (pt. 407) 269. It is also Defence Counsel’s submission that the Workmen’s Compensation Act, Cap W6 LFN. 2004 ought to be the applicable law to the claim of personal injury being alleged by the claimant, as this was the applicable substantive law on personal injury and compensation between 1993 and 2006. That this is because the claimant alleges that he suffered the injury in question in the service of the defendant which purportedly lasted from 1993 to 2006. Paragraphs 4, 6 & 7 of the statement of claim. Furthermore, that the law is trite that a cause of action must be determined by the applicable substantive law existing at the time the cause of action arose. Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) 382 at 472; Attorney General of LagosState V. Dosunmu (1989) 2 NWLR (Pt.111) 522; Alao V. Akano (1988) NWLR (Pt. 71) 431; Uwaifo V. Attorney General of Bendel State (1982) 7 SC 124.
To the defendant the evidential burden of proving these assertions ; that the claimant contributed to a pension scheme of the defendant company but despite retiring from the company since the year 2006, he is yet to be paid his pension, gratuity and retirement benefit, lie on the claimant and will remain so without shifting until he establishes these claims with credible evidence upon a balance of probability. EDEANI NWAVU & ORS. V. CHIEF PATRICK OKOYE & ORS. (2008) 18 NWLR (Pt. 1118) 29 S.C; ELEMA V. AKENZUA (2000) 13 NWLR (Pt.683)92. And to the Defendant the only reliable evidence before this court of any pension contribution made by the claimant is that given by the defendant which ought to be taken as conclusive proof of the pension contributions of the claimant. OGUANUHU & ORS V. CHIEGBOKA CITATION: (2013) LPELR-19980(SC); Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394)153.
Arguing further that the documentary evidence tendered by the defendant in proving its own admission by way of exhibits of payrolls and figures was never challenged or disputed by the claimant either by any averment in pleading (because the claimant did not file any reply) or by any evidence, and that this court is therefore in a position to act on them as unchallenged evidence. Asafa Foods Factory v. Alraine (Nig.) Ltd. (2002) NWLR 12 (Pt.781)353. Furthermore, that the law as regards unchallenged evidence is that any evidence that is neither attacked nor discredited, and is relevant to the issues joined ought to be relied upon by a judge. Amayo v. Erinmwingbovo (2006) 11 NWLR (Pt.992) 699.
On the issue of gratuity and retirement benefit, counsel argued that the law has been well laid down to the effect that in determining whether a claimant is entitled to gratuity or retirement benefit, recourse or reference is made strictly to his conditions of service. Igwillo v. C.B.N. (2000) 9 NWLR (Pt. 672) 302; N.E.P.A. v. Adeyemi (2007) 3 NWLR (Pt. 1021) 315 at 337 Para. F – G (CA). On the third broad head of claims for housing, medical and annual leave allowances/grant, counsel submitted that the claimant is only trying to mislead this court by relying on the letter of employment of 1993 instead of that of 2003, that the claimant is not entitled to housing allowance. He placed on the letter of employment of July 2003, where no provision is made for rent allowance. Igwillo v. C.B.N. supra and N.E.P.A. v. Adeyemi (supra).
Defendant’s Counsel submitted that the claimant has not discharged the burden of proof that is on him to show that his medical and annual leave allowances were never paid to him. That this is because the burden of proof is always on that party whose case will be adversely affected if the particular facts in issue are not proved. ESI V. CNPC/BGP INTERNATIONAL & ANOR (2014) LPELR 22807 (CA), page 14 paras E-G. He argued that mere averments in the statement of claim to the effect that the claimant has not been paid his medical and leave allowances are useless unless proven by evidence. Idesoh v. Ordia (1997) 3 NWLR (pt. 491) 17; Adegbite v. Ogunfaolu (1990) 4 NWLR (pt. 146) 578; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Balogun Amubikanhun (1985) 3 NWLR (pt. 11) 27. And such evidence must still be tested as to its probative value. Aregbesola Vs. Oyinlola (No. 2) (2011) All FWLR (570) 1292 @ 1413 F – H. Defence Counsel further submitted that their denial in the statement of defence and vital pieces of documentary evidence in support thereof tendered during trial showing that the claimant was paid medical and leave allowances were never challenged by the claimant either by reply pleading or counter pieces of evidence, and they should therefore also be acted upon as undisputed facts and unchallenged evidence by this Honourable court. A.-G., Abia State v. A.-G., Fed. (Supra); Asafa Foods Factory v. Alraine (Nig.) Ltd. (Supra); and Amayo v. Erinmwingbovo (supra).
The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 17th July, 2018. Wherein Learned Counsel to the claimant citing Section 131 (1) of the Evidence Act, 2011, submitted that whoever desires any court to give judgment as to any legal right, or liability dependent on the existence of facts which he asserts must prove that those facts exist. Olaniyan v. Oyewole (2011) 14 NWLR (Pt. 1268) 445 CA, at PP. 473 -474, Paras. EA, ratio 3. And that it is trite that facts admitted need not be proved by evidence. Section 123, Evidence Act, 2011; Wema Bank Plc. V. L.I.T. (Nig.) Ltd. (2011) 6 NWLR (Pt. 1244) 479 CA, at P. 498, paras. G-H, ratio 2. Furthermore, that once evidence is properly admitted, any party to proceedings can utilize same to advance his caus. Okoreaffia V. Agwu (2012) 1 NWLR (Pt. 1282) 425 CA, at P. 453, Paras. G-H ratio 16.
SPECIFIC RESPONSES TO THE DEFENDANT’S ADDRESS; – By way of responding to the submissions of the Defendant in his Final address counsel submitted thus:
That the submission on pages 2-4 of the Defendant’s address on Personal Details Form and the application letter is misconceived as the said Personal Details Forms and the application letter tendered were not valid documents as they have no origin since they were not signed by either the Claimant or the Defendant, and as such have no evidential value in law and the court should not attach any probative value to it. That unsigned and undated document is a worthless paper that has no evidential value in law. G.S & D Ind. Ltd v. N.A.F.D.A.C (2012) 5 NWLR (Pt. 1294) 511 @ 514 ratio 1. Condending further that the courts attitude to an unsigned document is that not a single w eight should be attached to it, as such document could easily have been prepared by a person other than the one who is alleged to have made the same or could have emerged from other source. ‘Where a document is not signed, it may not be admitted in evidence, the court should not attach any probative value to it because, a document which is not signed has no origin in terms of its maker. See Bello v. Sanda (2012) 1 NWLR (Pt. 1281) 219 @ 229 ratio 11.
To the Claimant the Defendant’s submission on paragraphs 2, 3, and 4 of page 4 of the Defendant’s final address is bourne out of improper appraisal and appreciation of the corpus of evidence addressed by the Claimant’s witnesses in consonant with the pleadings of the Claimant and in fact that the case of the Defendant supports that of the Claimant for which the Claimant is entitled to utilize in strengthening his case. Agaguana v. Amusana (2003) FWLR (Pt. 161) 1854 ratio 7. In the case of Adeshinaa v. BAC Electrical Co. Ltd (2007) All FWLR (Pt. 369) 1286 at 1287 Ratio 7. Claimant Counsel submitted that it is trite that the court is not permitted in any event to admit and act on legally inadmissible evidence, and that if such evidence has been admitted, even by over ruling an objection to its admission, the court must reject it in its final judgment even if it amounts to overruling itself to do so. Abolarin V Ogundele (2012) 10 NWLR (Pt. 1308)253 CA@ 276 (Para- F) ratio 8. He submitted that any, peace of which is unchallenged, uncontradicted and in respect of which there is nothing showing that it is incredible, should be admitted. Ogualaji v. A.G Rivers State (1997) 6 NWLR (Pt. 508) 209. It is also Claimant’s Counsel’s submission that in the absence of the maker of document, there cannot be cross- examination of the content of the document and that by Section 76 of the Evidence Act, such a document cannot be relied upon so as to supersede the unchallenged credible oral evidence led by the parties at the trial. Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26 @ 40 ratio 17 SC. Claimant’s Counsel contended that in the instant suit, the Defendant did not challenge either the pleadings and facts of the central issue of Contributory Pension Fund and that the law enjoins the court to act on unchallenged evidence. Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26 @ 38 ratio 12 SC.
To the Claimant documents are to be tested in open court before the court can evaluate them. And that an Exhibit tendered from the bar without calling the maker thereof attracts no probative value because there is no opportunity given to the other party to cross-examine for the purpose of testing its veracity. Omisore v. Aregbesola (2015) 15 NWLR (PL 1482) 205 @ 225 ratio 20 SC.
On the claim of the Claimant, counsel submitted that payment of gratuity and/or pension to an employee forms part of security for the future traditionally attached to both public and private, that it is unethical and an affront to public policy to deny the Claimant of his inherent right. Intels Nig. Ltd. & 2Ors v. William Bassey (20 15) 5 ACELR 88 at 99 (Lines 5-7) CA.
The Defendant’s REPLY ON POINTS OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 19th July, 2018.
Defendant’s Counsel argued that the submission or arguments contained in paragraphs 5.02 to 5.05 with respect to the Personal Details Form of the Claimant are misconceived and of no relevance. That this is because the Claimant was shown the Personal Details Form under cross examination and he admitted to being the author. Similarly, that the Claimant did not deny or challenge the said Personal Details Form by any reply pleading or further witness statement on oath when the Defendant raised same in its Statement of Defence. That failure to do all these means that the Personal Detail Form stood as an unchallenged piece of evidence which this court can safely act upon. Awolaja vs. Seatrade GBV (2002) 4 NWLR part 758 Page 520 atp.532. Per DANIELKALIO, J.C.A. (Pp. 23, paras. B-F). It is counsel’s contention that Paragraphs 5.07 and 5.08 of the Claimant’s Written Address is also misleading because the Factories Act 2007 is inapplicable to this case. That the claims of the Claimant and reliefs thereto being that of compensation arising out of purported injury cannot be sustained under the Factories Act supra because throughout the Claimant’s claim (Complaint, statement of claim and witnesses’ statement on oath), the Claimant never raised the issue of registration of the Defendant under the Factories Act supra, or his occupational safety and working conditions or the nature of type of machineries he worked with. And that it is trite law that it is the reliefs and claims in a suit which determines jurisdiction of a court. Babale v. Abduljadir (1993) 3 NWLR (Pt. 281) 253; O.H.M.B v. Garba (2002) 14 NWLR (Pt. 788) 538; Trade Bank Plc. v. Bemilux Nig. Ltd (2003) 9 NWLR (Pt. 825) 416; A.P.C. Ltd v. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) 404; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382.
To the Defence Counsel pointed Paragraphs 5.08 of the Claimant’s Written Address is untrue as the Claimant never showed or demonstrated the purported injury to this court, urging the Court to peruse its record and take judicial notice of the fact that the Claimant never did so. Osafile v. Odi (1990) 2 NWLR (Pt.137) 130. Moreover, that the submissions and arguments in a written address of counsel do not constitute pleadings or evidence upon which a court can act. Nigeria Arab Bank Ltd v. Felly Keme Nigeria Limited & Anor (1995) 4 NWLR (pt.387) 100 at 111; Vinz Intl. (Nig) Ltd v. Morohundiya (2009) 11 NWLR (Pt.1153) 562 at 583. Defence Counsel submitted that Paragraph 5.14 of the Claimant’s Written Address consists an erroneous position of the law because since a company is a juristic person, evidence can be given on its behalf by its official and such evidence is admissible. S.T.B. Ltd. v. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt. 366) 757 at 772 Paras. B – D, 771 – 772 Paras. F – G, 774 – 775 Paras. G – B (CA); Saleh v. Banks of the North Ltd. (2006) 6 NWLR (Pt. 976) 316; Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 21 NWLR (Pt. 5) 116; (1985) 7 SC 1 and Comet S.A. (Nig.) Ltd. v. Babbit Ltd. (2001) 7 NWLR (Pt. 712) 442. Learned Counsel submitted that the case of Intels Nig. Ltd & 2 Ors vs. Williams Bassey cited by the Claimant in paragraph 5.19 of his Written Address is inapposite and applicable to this case because in the said case the court only enforced the provisions of a contract of employment which contained gratuity, whereas as has already been submitted by the Defendant, the Claimant’s employment contract in this case did not make provision for gratuity.
The court further asked the parties to address it ass to the applicability or otherwise of the Pension Reform Act 2004 or 2014 to this suit.
The SUPREMENTARY FINAL WRITTEN ADDRESS OF THE DEFENDANT filed on 22nd October, 2018.
ISSUES
Whether the Pension Reform Act 2014 is applicable to this suit.
Whether the Pension Reform Act 2004 is applicable to this suit.
ON ISSUE 1
Whether the Pension Reform Act 2014 is applicable to this suit.
Learned Counsel for the Defendant submitted that the law is trite that a cause of action must the determined by the applicable substantive law existing at the time the cause of action arose. Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.: 12) 382 at 472; Attorney General of Lagos State V. Dosunmu (1989) 2 NWLR (Pt.111) 522; Alao V. Akano (1988’) NWLR (Pt.: 71) 431; Uwaifo V. Attorney General of Bendel State (1982) 7’SC 124. He argued that the Pension Reform Act 2014 is not an amendment to a pre-exiting Act but rather is a repeal of a pre-existing Act (i.e. Pension Reforms Act 2004) and that there is nowhere in the Pension Reform Act 2014 showing that the Act has a retroactive effect.
ON ISSUE 2
Whether the Pension Reform Act 2004 is applicable to this suit.
Counsel submitted that it is trite law that it is the reliefs and claims in a suit which determines jurisdiction of a court. Babale v. Abduljadir (1993) 3 NWLR (Pt. 281) 253; O.H.M.B v. Garba (2002) 14 NWLR (Pt. 788) 538; Trade Bank Plc. v. Bemilux Nig. Ltd (2003) 9 NWLR (Pt. 825) 416; A.P.C, Ltd v. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) 404; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; PDP & ANOR v. SYLVA & ORS. (2012) LPELR-7814(SC) (Consolidated). Counsel noted that a mere examination of the Statement of Claim in the suit does not show that the claimant is alleging breach of the Pension Reform Act 2004 by the defendant. That the claim pertaining to the pension is that the claimant contributed pension to a Scheme but that till date he has not been paid his pension and other benefit. And that the jurisdiction of this court therefore ought to be confined to determining whether or not the claimed deductions/contributions are true or false. Dankula v. Shagamu (2008) ALL FWLR (Pt. 413) 1280 at P. 1309, paras C-D (CA). He contended that the court cannot make out a case for the claimant where the claimant himself failed to do so, as it is not part of the duty of court to speculate on the relevant required information which are not adduced or tendered in evidence. That the court does not make out a case for party which he has not made for himself. Adetoro v. Ogo-Oluwa Kitan Trading Co. Ltd (2002) 9 Wobo (2004) 17 NWLR (pt. 903) 465; NE.P.A. v. Ugbaja (1998) 5 NWLR (pt. 548) 106; IBENYE & ORS V. AGWU & ANOR (1998) LPFLR-1393(SC); Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599.
The PLAINTIFF’S FURTHER WRITTEN ADDRESS ON THE APPLICATION OF THE PENSION REFORMS ACT filed on 2nd November, 2018.
ISSUE
Whether the Provisions of the Pension Reforms Act 2004 is applicable to the suit to warrant the Claimant’s claim.
Counsel citing Per AKA’AHS, JSC at page 165-166, paras. C-G in S.P.D.C.N Ltd v. Anaro (2015) 12 NWLR (1472) 122 at 144 ratio 9, SC, submitted thus: “One of the issues considered by this court in Orthopaedic Hospital Management v. Mallam Umar Garba Galadima andher and 2 Ors (2002) 14 NWLR (PT. 788) was whether the High Court of Kano) State truly lacked jurisdiction to try the case and give judgment thereon, having regard to the provisions of Decree No. 60 of 1991 vis—a—vis the subject mailer of the suit; and having regard also that the action was commenced in November 1992 before the promulgation and commencement of Decree No). 107 of 1993. It was held that a right in existence at the time a new law is passed transferring jurisdiction of one court to another will not be lost. Claimant Counsel argued that the facts contained in the paragraphs of the Claimant’s Statement of Claim, the Defendant’s admission and its totality of evidence are to be taken as established, therefore, they do not have to be proved. Furthermore, that once evidence is properly admitted, any party to proceedings can utilize same to advance his cause. Okoreaffia V. Agwu (2012) 1 NWLR (Pt. 1282) 425 CA at P. 453, Paras. G-H ratio 16.
The parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.
Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herein incorporated in this Judgement and specific mention would be made to them where the need arises. The issue formulate by the parties in this suit are practically the same. The defendants’ issue is Whether the claimant has established his case to entitle him to any of the reliefs sought from this Honourable court.
And the claimant issue was formulated thus; – Whether in the circumstances of this case the Claimant is entitled to the reliefs sought.
I am inclined to adopt the issues for determination formulated by the defendants, being a core generic formulation. This way all the areas raised by the defendant shall be resolved in answer to all the issues raised in this compliant
The claimant’s reliefs are as follows; –
i. A declaration that the Claimant is entitle to gratuity, retirement benefit and contributory pension funds.
ii. An order directing the Defendants to pay the Claimant his gratuity, retirement benefit and contributory pension fund, housing allowance, medical allowance and annual leave/grant allowance and other outstanding entitlements.
iii. N5, 000, 000. 00 special and general damages against the Defendants in favour of the Claimant.
iv. The cost of this action.
In support of their reliefs the claimant tendered his Letter of appointment Exhibit C2, Letter of Confirmation Exhibit C3, Letter of Resignation Exhibit C4 and his Letter of Demand while indicating that he would be relying on the said Pension form in the defendants custody (does this amount to putting the defendants on notice to produce his Pension Form. I will come back to this point).
In labour law “The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred.” ORGAN & ORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942(SC) per Aka’as, J.S.C (P. 57, paras. E-F). Furthermore; the law is that “It is the letter of appointment that provides the terms and conditions of the appointment which were averred to in the amended statement of claim. Generally, the letter of employment must be resorted to in considering and determining the rights and obligations of the parties” N.I.I.A. V. AYANFALU (2007) (VOL. 28) WRN 34 AT 63-64 LINES 40-20 (CA)
The claimants letter of appointment indicate that the claimant is entitled to housing allowance, medical allowance and annual leave/grant allowance as stated in relief ii, but contrary to the defendants contention that the claimant is required to prove that he was not paid these allowances, the law is that having proved entitlement and as the claimant is maintaining that the defendants had not paid him his due allowances the onus then shift to the defendant to prove either that the claimant is not entitled to these allowances or that he had in fact been paid.
Now the defendant had tendered 48 documents in support of their position without any clear explanation as to how the court is expected to use these documents. “It is trite law that document tendered in Court must demonstrate their purport and worth through a witness. On no account must counsel dump document or any evidence on the trial Court”. See UCHA v. ELECHI (2012) ALL FWLR (Pt. 686) PG. 237.” Per ABOKI, J.C.A. furthermore the law is that “when a party decides to rely on documents to prove his case, there must be a link between the document and the specific area(s) of the petition. He must relate each document to specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of the party’s case. See LADOJA v. AJIMOBI & ORS (2016) LPELR-40658(SC) and ANPP V. INEC (2010) 113 NWLR (Pt.1212) 549.
Having said that the Claimant had contested the claimants documents on bases of lack of certification in open court but in their final address restricted their non certification claim to the Exhibits D2-D4 which the claimant described as profile documents. These documents I find include the claimants application for employment together with copies of his credentials which in line with the pronouncement in GOV. EKITI STATE V OJO [2006] 17 NWLR PG 127, PARAS C-D amount to private communication between the employer and the employee which does not qualify as a public documents. And in this context, I find do not require certification, With respect to the payroll and Bank transfer documents, the claimant urge the court to discountenance as not been signed. that There is no gainsaying that an unsigned document is worthless and has no evidential value. This rule, however, applies only where the document in issue ought to be signed. In NWANCHO V. ELEM [2004] ALL FWLR (PT. 225) 107, AIKI V. IDOWU [2006] ALL FWLR (PT. 293) 361; [2006] 9 NWLR (PT. 984) 47 and SARAI V. HARUNA [2008] 23 WRN 130, it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. And by MADAM JARATU ABEJE & ANOR V. MADAM SARATU APEKE [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. Are the documents in question documents that ought to be signed? Alternatively put, is the requirement of signing one that extends to the said documents so much so that the fact that they are not signed automatically makes them evidentially worthless? I find that for the purposes of this trial, these documents where prepared by someone and hence for this court to rely on them require signature in addition of the requirement of a computer generated document. In the circumstances I find the documents in question D5-D49 are of no evidential value and this court cannot rely on them. I so find and hold.
Relief 1 is for a declaratory order that the Claimant is entitle to gratuity, retirement benefit and contributory pension funds. The position of the law as regards declaratory order is as was stated in the case of S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 Where it was held that “a party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. Also in DAVID OGUNLADE Vs.EZIEKIEL ADELEYE (2006) LPELR-7722(CA) The court of Appeal held that the differences between declaratory and executory judgments; – Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be en forced against the defendant vide Okoya v. Santilli (1990) 2 NWR (Pt. 131) 172 and Government of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 592.
In Exhibit C2 the claimant has established the entitlement to housing allowance, transport allowance, medical allowance and annual leave/grant but has not shown the court that these allowances were not paid to him in the course of his employment. I find and hold.
Gratuity and retirement benefits are termed Terminal Benefits and in law; – Terminal benefits are sums of money which a party entitled to it has earned. They are sums accruable to an employee when his services are no longer required. They are easily assessed from the Agreement on Terms and conditions of employment, the Agreement that governs the contract of employment, Statute or Common Law rules. See JULIUS BERGER NIGERIA PLC. V. NWAGWU (2006) LPELR-8223(CA).
The Claimant had pleaded that he made contributions under the Contributory Pension scheme and in Exhibit C5 that the scheme was Legacy Pension Scheme. Now the defendant had during trial objected to this document but had failed to raise the basis of his objection in their final address as required. This I consider to mean that the defendant has abandoned the objection.
From the foregoing and considering the contents of C2 I find that Relief 1 can only be granted.
Relief 2 is for an order directing the Defendants to pay the Claimant his gratuity, retirement benefit and contributory pension fund, housing allowance, medical allowance and annual leave/grant allowance and other outstanding entitlements. The defendants have argued that the claimant is not entitled to retirement benefits having not worked for 12 continuous years as he claimed and the claimant has not put forward any evidence to counter this contention, I find that the claimant has not established an entitlement for gratuity.
With regdars to housing allowance, medical allowance and annual leave/grant allowance and other outstanding entitlements, the Claimant has not shown the court any evidence to the effect that these allowances were not paid. The claimant is required to present to this Court correspondence between himself and the defendants wherein he demanded payment of these allowances during the pendency of his employment. In Labour law, periodical payments such as the allowance under review. Inure when the entitlement becomes due and is not paid, such payments create an entitlement to such and the denial of same when it fell due creates a cause of action. See Preliminary Objections to Jurisdiction ©2013 2nd Edition Published by Law Digest Publishing Co. Lagos at page 586 by the learned author Ikechukwu D. Uko Esq, and claims that have been due over a period of time the entire claim inures from the date the 1st periodical payment fell due and was not paid. This court has not been shown the period for which the claimant had been owed these allowances for a proper determination thereof. This flank of claim fails and cannot be granted.
With regard to the flank of claim that relates to Contributory Pension, considering that the Pension Reform Act 2004 came into effect on 25th June 2004 and in the instant suit, the claimant is praying this Court to order that the said pension contributions due to him be paid to him. The law is that where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004 (note that as relates to this case, the cause of action is as governed by the 2004 pension Reform Act, not the 2014 Act, because the cause of action arose upon the claimant’s resignation on 20th July 2006) fall under this rule. It is pertinent to point out that the submission of the defendant that for purposes of remittance of pension contributions the Claimant was assigned to Penman Pensions Limited is at complete variance with the Pensions Reform Act Cap. P4 LFN 2004;- section 11 of which enjoined employees to maintain retirement savings accounts into which would be paid both the employee’s and employer’s monthly contribution. Section 102 of this law defines “employee” to mean “any person employed in the Public Service of the Federation and Federal Capital Territory or private company or organization or firm”. The contribution into the retirement savings account is as per the monthly salary. And section 9(1)(c) of the Pension Reform Act No. 2 of 2004 mandates the employee and the employer to each contribute for the employee’s pension a minimum of seven and half percent of the employee’s monthly emoluments. The phrase “monthly emoluments” is defined in section 102 of the Pension Act to mean ‘a total sum of basic salary, housing allowance and transport allowance’ and Section 11(1) of the PRA provides that “Every employee shall maintain an account (in this Act referred to as a Retirement Savings Account) in his name with any pension fund administrator of his choice.” And Sub (3) continues that “An Employee shall notify his employer of the Pension Fund Administrator chosen and the identity of the retirement savings account opened under sub section (1).
Therefore, in the circumstances of this case, and in light of both law and evidence this Court cannot, accede to the claimant’s prayer that the said pension contribution be paid to him. Neither can the Court order that the said pension contribution be paid to the claimant’s PFA since there is no evidence before the Court as to who is the Claimants PFA.
Now, the position of the law is that Pension is a constitutional entitlement which can be attained by the beneficiary as long as the necessary steps are taken. Furthermore Section 11(4) of the Pension Reform Act 2004 provides that an employee can only have access to his retirement savings account through his Pension Fund Administrator. The only order the Court can make in the circumstances is that the Claimant supply the defendants with the name and details of this PTA and RSA and the Defendants are to remit all the outstanding contributions to this RSA accordingly.
Relief iii is for special and general damages of N5, 000, 000. 00 against the Defendants. The position of the Law with regards to special and general damages is as was stated in the cases of OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224 ; -Where it was held that “to be entitled to an award of special damages, the claimant must prove his entitlement to it by pleading same in his pleadings and particularizing the special damages as required by law… see also MARINE MANAGEMENT ASSOCIATE INC. & BADMUS v. KAMINE MARINE CONSULTANCY LTD. This court held in ADEBAYO v. ANL & ANOR. (2015) 52 NLLR (PT. 175) 374 NIC @ 377 that General damages are such as the law presume to be the direct, natural or probable consequences of the act complained of. See also UTC NIGERIA LTD. v. SAMUEL PETERS (2009) LPELR – 8426. I am also aware that General damages in personal injury cases are sums of money paid as compensation for the loss suffered by the injured person.” JULIUS BERGER NIGERIA PLC. V. NWAGWU (2006) Per RHODES-VIVOUR, J.C.A. (P.26, Paras. B-E)
In this instant case the claimant has not put forward any particularization of damages to satisfy the condition for consideration of special damages and hence none can be granted. The claimant pleaded injury to his finger but failed to present any cogent evidence of the injury, when and how did it occurred, the medical prognosis and degree of disability, and how long the claimant would require treatment if any or medication as well as the incidental cost to enable the court properly evaluate his injury for possible damages. See SUIT NO. NICN/347/2013 SHUAIBU IDRIS Vs. ASSOCIATED NIG. LIMITED delivered 5th October 2017. General damages require that an act or injury be established for which the court is to consider the natural and probable consequence thereof. This claimant’s claim for General and Special damages has not been substantiated to the satisfaction of this Court Relief iii therefore fails.
For avoidance of doubt, the Claimants case succeeds but only thus far; –
i. It is hereby declared that the Claimant is entitle to contributory pension funds according to the PRA 2004.
ii. The Defendants are hereby ordered to pay the Claimant’s contributory pension deductions to the Claimants RSA within 14 days of the claimants providing details of same.
iii. The cost of this action is put at N200, 000.00
This is the Court’s Judgement and it is hereby entered.
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HON. JUSTICE E. N. Agbakoba
Judge
