IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: NOVEMBER 16, 2017
SUIT NO: NICN/LA/485/2015
BETWEEN
Mr. Wisdom Okehionam –
Claimant
AND
Dansa Food Limited –
Defendant
REPRESENTATION
O.Y. Akindele with T. D. Ajao & kayode Babs for the Claimant.
S.B. Okoromi, Arowolo Marian & Victor Amachree for the Defendant.
JUDGMENT
- Introduction & Claims
On 6/10/15, the Claimant approached this Court via his General Form of Complaint ans statement of facts and sought the following reliefs –
- A declaration that the Claimant is entitled to his accrued terminal benefits in the sum of =N=1,794,978.15 (One Million Seven Hundred and Ninety Four Thousand Nine Hundred and Seventy Eight Naira Fifteen Kobo.
- The sum of =N=863,338.36 (Eight Hundred and Sixty Three Thousand Three Hundred and Thirty Eight Naira Thirty six kobo as unremitted pension deductions from the claimant’s salary and another sum in the same figure as the statutory contributions to the Claimant’s pension that was not remitted between 2005 – 2015, to the Pension Fund Administrator with interest on both sums at the rate of 21% per annum till judgment debt is totally liquidated.
- An Order compelling the Defendant to show evidence of remittance of the claimant’s pay as you earn deductions from 2001 till date and in the absence of any, to pay same with 21% interest to the Claimant all unremitted tax deductions from the claimant’s salaries to enable the Claimant fulfill his tax obligations.
- Cost of this action and Solicitors fees of =N=500,000 (Five Hundred Thousand Naira).
The Claimant accompanied his Form 1 with statement of facts, witness statement on oath, list of witnesses, list and copies of documents to be tendered at trial.
- Case of the Claimant
The trial of this case commenced on 11/4/16 when the Claimant gave evidence in support of his case. Claimant adopted his written witness statement on oath dated 5/10/15 as his evidence in chief and tendered 7 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C7.
The case of the Claimant is that he was employed by Continental Cement Limited on the 13/11/2001 and was thereafter posted to work with the defendant in November 2001, he remained in the defendant’s employment until 10/2/15, when he resigned as a Network Engineer; that the Defendant is a member of the Dangote Group of Companies; that prior to the resignation, he is being owed certain entitlements which had become overdue which include leave allowances, leave encashment and accrued gratuity as at the time when the Defendant unilaterally stopped the payment of gratuity; that by the contract between the parties, the Defendant is entitled to deduct the sum of =N=41,236.40 being the one month salary in lieu of notice that the Claimant is contractually obligated to pay to the Defendant, thereby leaving a balance of =N=1,794,978.15 (One Million Seven Hundred and Ninety Four Thousand Nine Hundred and Seventy eight Naira, Fifteen Kobo); that between 2005 and 2015, the pension payment of the claimant to the administrator was irregular and or totally unremitted, during this period; that the Claimant is owed the sum of =N=863,338.36 (Eight Hundred and Sixty Three Thousand Three Hundred and Thirty Eight Naira Thirty six kobo) as unremitted pension deductions from the Claimant’s salary and another sum in the same figure as the statutory contributions to the Claimant’s pension that was not remitted to the Pension Fund Administrator and that he had needed to do sundry things with his Tax clearance certificate, he could not stand surety for anyone in Court or perfect his land papers because his employers continue to deduct Taxes without showing evidence of remittance.
Under cross examination, the Claimant stated on oath that the name of his Counsel is Mrs. O. Y. Akindele; that he personally consulted her; that he gave his Counsel information that he was employed in 2001 by Continental Cement Ltd; that after 4 years he was moved to Dansa Foods Ltd; that he did not go on leave and the period was calculated for purpose of encashment; that he ask for 21% interest on the money due to me; that IBTC is his Pension Fund Managers; that Defendants deducted his pensions for 14 years and did not remit same as appropriate; that Defendant started paying in 2005 to IBTC; that his claim for pension is from 2005; that he did not go on leave in 2013 to 2014 and he was not paid leave allowance and the encashment; that the Defendant is aware that he did not go because of the nature of his work; that Defendant does not have enough manpower for his office and he did not bring the issue of leave to the attention of the Defendant.
- Submissions on Behalf of the Claimant
At the close of the case for the Claimant, learned Counsel for the Defendant S.B. Okoromi applied and was granted a date to open the case of the defence. However, for reason best known to Counsel, Counsel refused and/or neglected to open his case leading the Court to direct parties to file their final written addresses for adoption.
On 20/9/17 Counsel to the Claimant adopted Claimant’s final written address. The address was dated and filed on 28/3/17. In it, learned Counsel set down the following issues for determination –
- Whether from the totality of oral and documentary evidence available to this court, judgment should not be entered in favour of the Claimant.
- Whether the Claimant is not entitled to costs as claimed.
Arguing issue 1, Counsel submitted that the Claimant had no interest in litigation but only came to Court as a last resort; that by Exh. C6, the Defendant informed the Claimant that his entitlement is =N=1,627,214.40 and that facts admitted need no further proof citing S. 75, Evidence Act, 2011 & Odumegwu Ojukwu v. Dr. Edwin Onwudiwe & Ors. (1984)2 S.C 15 at 38. Counsel urged the Court to enter Judgment for the Claimant on the admitted sum. On claim 2, Counsel submitted that the evidence led by the Claimant on pension deduction from his salary remained unchallenged; that Defendant deducted the sum of =N=863,338. 36 and is statutorily mandated to contribute the same amount as employer totaling =N=1,726,676.72. Counsel urged the Court to grant this head of claim citing Kopex Construction Limited v. Ekisola (2010)1 S.C (Pt. 1) 1.Respecting claim 3, learned Counsel submitted that the Defendant deducts tax from the remuneration payable to the Claimant every month. Counsel referred to Exh. C4 to show that deductions were made as tax but not remitted. Counsel urged the Court to accept the Claimant’s evidence as the truth and enter Judgment accordingly.
On issue 2, learned Counsel submitted that cost follows event; that 3 years down the line the Defendant is being compelled to pay the Claimant what ought to have been paid as far back as 2014 and that the Court should award the sum of =N=500,000.00 as cost against the Defendant.
- Decision
This is a case for the payment of accrued terminal benefits, refund of pension deductions; evidence of payment of tax to the tax authority and cost of this action. There is evidence of service of process filed in this case on the Defendant. The Defendant only caused a Conditional Appearance to be entered on its behalf on 27/8/15. No other process was filed by the Defendant. The Defendant was represented by Counsel at the trial of this case. Indeed, the sole witness of the Claimant was dully cross examined on 28/6/16 by the learned Counsel to the Defendant on record S. B. Okoromi of Counsel. I have read all the process filed by the Claimant. I carefully and attentively listened to the testimony of the lone witness for the Claimant and watched his demeanor. I also reviewed very carefully all the exhibits tendered and admitted in this case as well as heard the oral argument of Counsel to the Claimant. Having done all this, I set the following issue down for determination –
Whether the Claimant is entitled to all or some of the reliefs sought.
The state of the law remains trite that he who approaches the Court judicial redress has the duty to prove same on the preponderance of evidence. See Oilserv Limited v. Ibeanu & Company Nigeria Limited & Anor. (2007) LPELR-5149 (CA).The evidence may be oral or documentary or even both though documentary evidence is accorded more credence by the Court. See Unity Life & Fire Insurance Co. Limited v. IBWA Limited (2001)7 NWLR (Pt. 713) 626.
The first relief sought is for a declaration that the Claimant is entitled to his accrued terminal benefits in the sum of =N=1,794,978.15 (One Million Seven Hundred and Ninety Four Thousand Nine Hundred and Seventy Eight Naira Fifteen Kobo. In his evidence in chief, the Claimant while adopting his written statement on oath of 5/10/15 stated in paragraphs 5 and 6 of same and gave a detailed information on how he came to be entitled to the amount claimed. Claimant also tendered Exh. C6 the Certificate of Accrued Service Gratuity of the Claimant as calculated by the Defendant. There is no evidence challenging the truth of this piece of evidence adduced by the Claimant. The Defendant had the opportunity to file defence process to controvert same. It failed and/or refused to do so. The law is trite that a Court of law is bound to act on unchallenged and uncontroverted piece of relevant evidence. See Mabamije v. Otto (2016) LPELR (SC). In the absence of anything to the contrary, I declare that the Claimant is entitled to his accrued terminal benefits in the sum of =N=1,794,978.15 (One Million Seven Hundred and Ninety Four Thousand Nine Hundred and Seventy Eight Naira Fifteen Kobo. The Defendant is ordered to pay to the Claimant forthwith the sum of =N=1,794,978.15 being the accrued terminal benefits of the Claimant.
The second relief is for payment to the Claimant of the sum of =N=863,338.36 (Eight Hundred and Sixty Three Thousand Three Hundred and Thirty Eight Naira Thirty six kobo as unremitted pension deductions from the claimant’s salary and another sum in the same figure as the statutory contributions to the Claimant’s pension that was not remitted between 2005 – 2015, to the Pension Fund Administrator with interest on both sums at the rate of 21% per annum till judgment debt is totally liquidated. In his evidence in chief, the Claimant testified that between 2005 and 2015 the Defendant effected deductions for pension from his salaries and allowances but that same were not remitted to his Pension Fund Administrator as required. It was also the evidence led by the Claimant that the Defendant as employer did not remit its statutory contribution on pension to his pension managers. Claimant tendered Ex. C2 being his pension statement of account from Stanbic IBTC Pension Managers. I perused Exh. C2 and found that pension remittances as recorded were staggered. For instance, there were no remittances for the whole of 2010, 2011, 2012 & 2015. There is no explanation offered by the Defendant against the evidence put forward by the Claimant. In all, the sum of =N=1,726,676.72. Now, can this Court order that the amount involved be paid over to the Claimant as sought by the Claimant? I have evidence before me to the effect that the Claimant has a pension account with a Pension Fund Administrator. The legislative intention and government policy is for an employee to open and maintain a Retirement Savings Account, for the employer to make deduction as statutorily mandated from the salary of the employee together with its own contribution and pay same to the Retirement Savings Account of the employee. See Sections 9 & 11, Pensions Reform Act, Cap. P4, Laws of the Federation of Nigeria, 2004. Although the money concerned here belongs to the Claimant, to however order that it be paid over to the Claimant as sought will not meet the policy of the Federal Government on pensions as well as the spirit of the Pensions Reforms Act. I refuse to grant this head of claim. I thus dismiss same accordingly. However, this is one case of many of its type that call for the intervention of the pension authority in this country. This conduct of the Defendant is both a violation statutory provisions and government policy. I therefore direct the learned Counsel to the Claimant to draw the attention of the National Pension Commission to the conduct of the Defendant for appropriate action.
The third relief sought is for an Order compelling the Defendant to show evidence of remittance of the Claimant’s pay as you earn deductions from 2001till date and in the absence of any, to pay same with 21% interest to the Claimant all unremitted tax deductions from the Claimant’s salaries to enable the Claimant fulfill his tax obligations. Exh. C4 is evidence of deductions for tax purposes from the salary of the Claimant. The Defendant did not file any defence process. Thus there is no evidence before the Court to the effect that the Defendant paid the tax deductions from the Claimant to the appropriate tax authority. I order the Defendant to provide to the Claimant evidence of payment of his tax deductions to the tax authority. The need to pay tax by all and sundry is imperative. Tax revenues are among others used for developmental purpose. It is the civil duty of every citizen to pay tax on their incomes. To order the Defendant to pay the amount deducted as tax from the salary of the Claimant back to the Claimant may amount to the Court encouraging illegality. I thus refuse to do so. Again, the learned Counsel to the Claimant is directed to bring the conduct of the Defendant respecting issues of tax to the appropriate tax authority for investigation as may be necessary.
The Claimant sought cost in the sum of =N=500,000.00. The award of cost is at the discretion of the Court. It is a discretion which must be exercised both judiciously and judicially. Learned Counsel had applied for =N=500,000.00 as cost. I have not been confronted with the basis for the figure. I however take cognisance of the fact that this case was filed in October 2015. I take cognizance of filing fees paid to Court. I in addition take note of the fact of appearance of Counsel in this case on about 8 times. Time, it is said, is money. Considering all these factors, I award the sum of =N=200,000.00 as cost of this action payable by the Defendant to the Claimant.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment –
- I declare that the Claimant is entitled to his accrued terminal benefits in the sum of =N=1,794,978.15 (One Million Seven Hundred and Ninety Four Thousand Nine Hundred and Seventy Eight Naira Fifteen Kobo with 20% interest per annum from February 2015 until final liquidation.
- The Defendant is ordered to pay to the Claimant forthwith the sum of =N=1,794,978.15 being the accrued terminal benefits of the Claimant.
- I refuse and dismiss Relief No. 2 as sought and direct the learned Counsel to the Claimant draw the attention of the National Pension Commission to the conduct of the Defendant for appropriate action.
- I refuse and dismiss Relief No. 3 as sought and direct the learned Counsel to the Claimant to bring the conduct of the Defendant respecting issues of tax to the appropriate tax authority for investigation as may be necessary.
- I award the sum of =N=200,000.00 as cost of this action payable by the Defendant to the Claimant.
All the terms of this Judgment are to be complied with within 30 days from today.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
