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National Industrial Court

Tamunoboma Igah -VS-Payporte Global Systems Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: WEDNESDAY 4TH DECEMBER 2019

 SUIT NO: NICN/LA/139/2018

BETWEEN

TAMUNOBOMA IGAH                                                       –           CLAIMANT

AND

PAYPORTE GLOBAL SYSTEMS LIMITED                     –           DEFENDANT

Representation:

Abimbola Ojenike with Ayobami Omisaki appear for Claimant

F A Itefue appears for the Defendant

JUDGMENT

Introduction:

The Claimant filed this suit against the Defendant/Counterclaimant on the 6th day of March, 2018 seeking for the following reliefs:

  1. A Declaration that the Defendant’s non-payment of the Claimant’s salary for the months of November and December 2017 is unlawful and amounts to a breach of the contract of employment between the parties,

  1. A Declaration of this Honourable Court that the Defendant’s non-remittance and/or conversion of the Claimant’s contributory pension funds and personal income tax is unlawful.

 

  1. An Order of this Honourable Court directing the Defendant to pay to the Claimant the sum of N503,891.64 (Five Hundred and Three Thousand, Eight Hundred and Ninety One Naira, Sixty Four Kobo) being the earned and outstanding salary for the months of November and December, 2017,

  1. An Order of this Honourable Court directing the Defendant to pay the sum of N1,250,017.46 (One Million, Two Hundred and Fifty Thousand, Seventeen Naira, Forty Six Kobo) being the unremitted contributory pension funds into the Claimant’s RSA Account Number: PEN200731327413 (Igah Tamunoboma Abosede) maintained with Stanbic IBTC Pension Limited; and to pay in addition, accumulated interest from the time the funds ought to have been remitted,

  1. An Order of this Honourable Court directing the Defendant to remit the sum of N605,150.14  (Six Hundred and Five Thousand, One Hundred and Fifty Naira, Fourteen Kobo) being the withheld personal income tax of the Claimant to the Lagos State Inland Revenue Service (LIRS),

  1. Exemplary Damages in the sum of N2,000,000 (Two Million Naira) against the Defendant for its deliberate, arbitrary, outrageous, oppressive and unlawful conduct in withholding and/or converting Claimant’s contributory pension funds and earned salary with the consequence of causing undue economic hardship to the Claimant,

  1. An Order of Injunction perpetually restraining the Defendant, its officers, directors, representatives, agents, or other persons acting under the instruction or instigation of the Defendant from embarrassing, harassing, intimidating, threatening and/or resorting to the unlawful use of any law enforcement agency or officers to intimidate, oppress, torture, harass, or threaten the Claimant on account of matters arising in the course of the employment relationship,

  1. An Order of Injunction restraining the Defendant , its officers, directors, representatives, agents, or other persons acting under the instructions or instigation of the Defendant from disturbing the Claimant’s exercise of lien over any assets in her possession until the full satisfaction of the judgment sum in this action,

  1. Pre-Judgment Interest on the sums of money in relief (C) and (D) above from the date the payments were due until the date of judgment in this matter,

  1. Post-Judgment Interest on the sums of money in relief (C), (D) and (F) above from the date of judgment until the satisfaction of the judgment debt by the Defendant,

  1. Cost of this action.
  2. Upon service of the above claim on the Defendant, the Defendant entered appearance and filed its Statement of Defence and Counter-claim on the 6th day of April, 2018. In its Counter-claim against the Claimant, the Defendant claimed as follows:

  1. A DECLARATION that the Claimant conflict of interest amount to a breach of her fiduciary duty to the Defendant/Counter-claimant.
  2. A DECLARATION that the non-disclosure of the business relationship owned and operated with Irene Kayoma even when same was carried out in breach of her fiduciary duty to the company amounts to a breach of her contract of employment with the Defendant.
  3. A DECLARATION that the Claimant/Defendant to counter-claim seizure and consequent use of the Defendant’s vehicle, two laptops computer system, to wit: 1 HP Intel Computer laptop and I HP Pavilion 15 Notebook, mobile phone and other properties of the Defendant/Counter-claimant without authorization and approval is unlawful and amounts to conversion and detinue.
  4. AN ORDER of this Honourable Court directing the Claimant/Defendant to Counter-claim to pay to the Defendant/Counter-claimant the sum of N20,000. 00 (Twenty Thousand Naira only) per day being the market rental value for a car hire from the 8th day of January, 2018 till possession of same is given to the Defendant/Counter-claimant.
  5. AN ORDER of this Honourable Court mandating the Claimant/Defendant to Counter-claim to deliver up possession of the said property which includes a black KIA CERATO with Chasis Number: KNAFX41BE 5224680, Engine No. G4FGEH 700088 WITH REGISTRATION NUMBER : AKD 966 DJ, two laptops computer system, to wit:  1 HP Intel Computer laptop and I HP Pavilion 15 Notebook, mobile phone, company’s identity card, keys to the official staff apartment to the Defendant/Counter-claimant.
  6. AN ORDER of this Honourable Court directing the Claimant/Defendant to Counter-claim to pay to the Defendant/Counter-claimant the sum of N385, 000.00 (Three Hundred and Eight Five Thousand Naira, only) being monies borrowed and also the value of goods purchased by the Claimant/Defendant to Counter-claim from the Defendant/Counter-claim.
  7. A SPECIAL DAMAGES in the sum of N1,290, 061.92 (One Million. Two Hundred and Ninety Thousand, Sixty-one Naira, Ninety Two kobo) being the cost of training of the Claimant/Defendant to Counter claim to Capetown, South Africa or in the alternative an order of the Honourable Court mandating the Claimant/Defendant to Counter-claim to deliver the Defendant/Counter-claimant the certificate of participation and other material given to the Claimant/Defendant to Counter-claim which are the lawful property of the Defendant/Counter-claimant.
  8. INTEREST of 21% on the sum of N385,000.00 (Three Hundred and Eight Five Thousand Naira, only) and the sum of N1,290,061.92 (One Million, Two Hundred and Ninety Thousand, Sixty-one Naira, Ninety Two Kobo only) from the 8th day of January, 2018 to when the said monies are fully liquidated by the Claimant/Defendant to counterclaim.
  9. The sum of N5,000,000.00 (Five Million Naira only) as damages for breach of the contract of employment entered with the Defendant/Counter-claimant by the Claimant/Defendant to Counter-claim.
  10. Cost of this suit in the sum of N3,000,000.00 (Three Million Naira only).
  11. Trial commenced in this suit on the 11th day of June, 2018. The Claimant/Defendant to Counter-claim opened her case on that day and testified in person. She tendered exhibits C1-C12 and was duly cross-examined on the 11th day of June, 2018 and 25th day of September, 2018 respectively. Claimant closed her case on the 25th day of September, 2018. The Defendant/Counter-claimant opened its defence and counterclaim on the 31st day of October, 2018. The Defendant/Counter-claimant called a lone witness, who testified on its behalf and tendered exhibits D1-D15 in support of its case. The Defendant/Counter-claimant’s witness was duly cross-examined on the 31st day of October and 11th day of December, 2018.  In the course of the cross-examination, the Claimant’s Counsel tendered Exhibits D16 and D17.  Trial ended on the 11th day of December, 2018.  Parties adopted their final written addresses on 24th October 2019 and the matter was adjourned for judgment.

  1. Facts of the Case:

The Claimant was engaged as an Operations Supervisor in the Defendant.  Six months later, and upon satisfactory job performance, the Defendant confirmed the Claimant’s employment by a Letter of Confirmation of Employment dated 19th July, 2015. The employment contract was later amended by a letter dated 11th January, 2016 in which the Claimant was re-designated as Acting Head of Operations effective from 12th January, 2016. The Claimant was subsequently made the substantive Head of Operations with an upward salary review by a letter dated 5th May, 2016. The Claimant was further assigned as Head, Order-Processing Service Group under a new Contract of Employment dated 28th December 2016 which was stated to be effective from 3rd January 2017. This contract regulated the relationship between parties till the time of separation.  On January 8, 2018, the Defendant’s Managing Director, Mr. Bassey Eyo, alleged that the Claimant was withholding information regarding a colleague, a certain Irene Kayoma. The said Managing Director directed the Claimant to tender her resignation letter immediately as a punitive measure.  The Claimant sent in her Notice of Resignation by an email dated January 8, 2018. The Claimant’s earned monthly salary for the months of November and December 2017 in the sum of N503,891.64 (Five Hundred and Three Thousand, Eight Hundred and Ninety One Naira, Sixty Four Kobo) remained unpaid. The Defendant has continued to withhold the Claimant’s contributory pension funds totaling the sum of N1,250,017.46 (One Million, Two Hundred and Fifty Thousand, Seventeen Naira, Forty Six Kobo). The Defendant neither made requisite statutory contribution as an employer nor remitted the Claimant’s own contribution. The Defendant also failed to remit the personal income tax withheld from Claimant’s salary to appropriate tax authorities as required by law. The Claimant, in view of the Defendant’s deliberate withholding of her earned salary and contributory pension funds, withheld the Defendants properties in her possession pending the time the Defendant remits all of the entitlements

  1. The Defendant, on the other hand, states that the Claimant acted in breach of her employment contract and, the confidentiality and non-disclosure agreement dated the 15th day of January, 2017 executed between them by conniving to carry on an e-commerce business known as Zambadi Fashion in conjunction with Mrs. Irene Kayoma, the Head of Corporate, Strategy and Planning in the Value Added Service Group; to the detriment and in conflict with the Defendant’s business.  That upon discovery and thorough investigation, the Claimant was given an opportunity by Management to respond to the allegations but was unable to provide a satisfactory answer to the allegations; hence, she was requested to tender her resignation.  The Defendant states that the reason why there was delay in payment of salary arose from a long over-due payment from a contract executed by the Defendant for the Akwa-Ibom State Government wherein the Defendant fund, running into billions, was deployed. Upon the claimant’s request for outstanding owed to her, Defendant required her to comply with and complete all employment resignation modalities and clearance process with designated departments, including to render and deliver all the Defendant’s property in her possession.  The Claimant did not make herself available for the clearance and withheld the company’s property.  Defendant contends that the delay in payment of salary in the months of November and December, 2017 was not deliberate.  The Defendant further states that there is nothing in the contract of employment that entitles the Claimant to exercise a right of lien over any of its property.  The Defendant states that the matter is not ripe for hearing since the Claimant not exhausted all the internal remedies available to her and also, having not complied with the necessary resignation modalities she was expected to carry out before approaching the court. The Defendant counterclaims for debts and loans owed to it by the Claimant which has not been paid.

  1. In her Reply, the Claimant states that she was compulsorily required to resign with immediate effect; and that this was immediately followed by a trend of hostile behavior against her.  Claimant states that she expressed an intention to amicably resolve all matters arising from her employment separation with the Defendant in a safe and neutral venue. Furthermore, the Claimant denies any indebtedness to the Defendant whether in the sum of N385,000 or any sum whatsoever and whether or not representing money allegedly borrowed or the value of goods purchased.

Submissions of Counsel:

  1. Defendant, in its final written address, raised the following issues for determination:
  2. Whether the Court has the jurisdiction to determine the case of the Claimant/Defendant to Counter-claim on its merit in the face of the evidence before the Court that the Claimant/Defendant to Counter-claim failed to comply with the condition precedent that would have entitled her to the reliefs sought against the Defendant/Counter-claimant?
  3. And if issue one is determined in the negative, can the Court proceed to grant the Claimant the reliefs sought in her claim against the Defendant/Counter-claimant?
  4. Whether the Claimants conflicts of interest in carrying out a trade with Irene Kayoma amounts to breach of her contract of employment and non disclosure and competitive or confidentiality agreement?
  5. Whether the unlawful detention of the Defendant/Counterclaimant’s property even when demand has been made for their return amounts to detitnue in law?
  6. Whether the Defendant/Counter claimant is entitled to the remittance of monies borrowed and goods purchased without payment by the Claimant and interest on same?
  7. Whether the Defendant/Counter claimant is entitled to special damages as contained in its counterclaim?
  8. In arguing issue (a), defendant submits that claimant failed to submit herself for clearance and to return all the Defendant’s property in her custody upon issuing exhibit C5 to the defendant to enable defendant compute her outstanding entitlements, if any.  The defendant argued that for this court to assume jurisdiction in this matter, the claimant must comply with the internal procedure laid down by the defendant which others had observed under her supervision before proceeding to this court to seek redress.  The defendant referred to section 4 of the Trade Dispute Act, Cap. T8 LFN, 2004 that where there exists agreed means for settlement of the dispute apart from the Act, whether by virtue of the provisions of any agreement between organisations representing the interests of employers and organisation of workers or any other agreement, parties to the dispute shall first attempt to settle it by that means. The Defendant then submits that this case falls within the ambit of a trade dispute and as such this court cannot assume jurisdiction in the absence of compliance with the clearance modalities and completion of exhibit D14.

  1. On issue two, the Defendant submit that Claimant is not entitled to the reliefs sought in the face of issue one above; and that it is only when issue one is complied with that the Court can assume jurisdiction to determine the case of the claimant either way.

  1. On issue three, the Defendant submits that the Claimant’s connivance to run a private business with Irene Kayoma under Zambadi Concept carrying on the same business objects with that of the defendant/counterclaimant amounts to breach of Exhibits D1 and D2.

  1. The Defendant submits, with respect to issue four that the contents of exhibits D16-D18 tendered from the bar by the claimant’s counsel is a clear indication that at all material times title and ownership inure in the defendant/counter-claimant.   The defendant argues that claimant’s evidence that she has a lien in the property in lieu of her unpaid entitlements is not tenable; as it is trite that it is the contract of employment that governs the relationship between an employer and its employees.

  1. The Defendant submits with respect to issue five that the Defendant/Counterclaimant is entitled to remittance and interest on sum. It referred to the case of Metaz Products Union of Nigeria v. Alzico Limited (1979) Digest of Judgment of National Industrial Court (1978-2006) that when employees leave the service of their employers, the latter is entitled to make deductions on account of outstanding balances on loans from the payments to be made to the employees, by reference to the outstanding book balances of the loans.

  1. On issue six, the defendant submits that  by virtue of exhibits D5-D9, it established the fact that the claimant was a mere agent of the defendant in the training and was incumbent upon her to utilise the knowledge and skills acquired to grow the defendant’s establishment which she failed to do; but rather it was deployed in connivance with one Mrs. Irene Kayoma to run a private outfit with conflicting interest to that of the defendant. The defendant thus submits that it is entitled to the relief sought for special damages against the claimant.

  1. The Claimant on her part, set the following issues down for determination:

  1.             Considering the totality of facts and evidence presented at trial, has the defendant paid the claimant’s outstanding salary, pension contribution and tax deducted during the period of employment?

     (and if the answer to Issue I is negative;)

  1.             Is the Claimant entitled to the reliefs requested in this suit?

             III.            Is the Defendant entitled to purported claims made in its Counter-claim?

  1.             Is the procedure of mediation, conciliation and arbitration of trade disputes under Sections 4-9 of the Trade Dispute Act a condition precedent to assumption of jurisdiction by the National Industrial Court in this matter?
  2. The claimant argued issues I and II together and submits that it is a clear and undeniable fact before this Court that the defendant, as an employer, failed to pay claimant’s outstanding salary, pension contribution and tax deduction during the period of employment. The Claimant argues that having shown that salary is owed and that pension and tax deductions were unremitted, there is now a shift of evidential burden to the defendant to provide proof that the deductions were appropriately remitted and salary was paid.
  3. On whether the defendant is entitled to its counter-claim; the claimant states that the counter-claim is unsupportable by evidence and the defendant is not entitled to any of the reliefs requested.  The Claimant submits that there is no evidence of breach of the Confidentiality and Non-Compete Clauses; and that the claimant was never given the opportunity to defend this allegation before she was forced to resign. The Claimant further submits that the entirety of DW’s testimony on this allegation is hearsay and therefore wholly unreliable.   The claimant states further that the alleged indebtedness to the defendant is false and unsupportable by evidence.  The claimant also submits that she has an equitable right of lien on the KIA Cerato Car with registration number AKD 966 DJ, the HP Pavilion Laptop and Huawei Phone in her custody and that the defendant’s allegation of conversion, detinue and/or stealing of the KIA Cerato Car, the HP Pavilion Laptop and Huawei Phone in her custody is misconceived. The claimant referrd to the case of Agal Pharma Limited v. Alh. Salisu Hussaini & Anor (2013) LPELR-21871(CA).

 

  1. The Claimant argues that Defendant’s evidence and pleadings on the ownership and/or hire of the KIA Cerato Car with registration number AKD 966 DJ is inconsistent and the counter-claim for daily hire should fail.  On  the counter-claim for the daily hire of the official vehicle, claimant submits that DW1 admitted that the defendant is the owner of the car; and that this defeats the defendant’s counter-claim as the car is not on hire.

  1. On the 4th issue, claimant argues that the defendant misapplied the Trade Dispute Act, Cap. T8 LFN 2004 and submits that this action is properly constituted and there is no feature whatsoever precluding the Court from jurisdiction.

Decision:

  1. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel.  I adopt the following issues for determination, to wit:
  2. Whether this suit is premature by virtue of non-compliance with the provisions of the Trade Disputes Act;
  3. Whether the claimant is entitled to her claims; and
  4. Whether the defendant is entitled to its counter-claim.

  1. On the first issue set out above, it is defendant’s contention that claimant needed to follow the alternative dispute resolution mechanisms set out under the Trade Disputes Act before commencing this action.  By that, defendant classifies the present dispute as a trade dispute.  I do not agree with claimant that this is a trade dispute.  A trade dispute is defined under section 48 of the Trade Disputes Act as:

Any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person

From the above definition, this case is clearly not between employers and workers or between workers and workers.  A trade dispute envisages a collective action involving combination of workers and employers or workers and workers.  I do not find that this suit involves a trade dispute requiring the condition precedent to a cause of action set out in the Trade Disputes Act.  This suit is between an individual employee and her employer over the enforcement of their employment relationship and cannot be  a trade dispute; more so, no trade union is involved.  See Oloruntoba-Oju v. Dopamu (2008) Vol 4 M.J.S.C 1 at 22-24 paras.C-C Eze & Ors v. Udeh & Ors (2017) LPELR-42716(CA)

The Defendant also contends that its “sign-out modalities or clearance process” is also a condition precedent to the commencement of this suit.  I do not see any proof of this provision in the contract between the parties.  It may be a condition to the enforcement of rights that may accrue after cessation of the employment (where established), but certainly, it is not stated anywhere in the contract that it shall be a pre-condition for the commencement of an action in Court.  I therefore find and hold that this suit is properly before this Court, and this Court has jurisdiction to hear it.

  1. On issue two, whether the Claimant is entitled to her claim; I will consider the establishment or otherwise of each of the reliefs seriatim.
  2. The first relief is for A DECLARATION that the Defendant’s non-payment of the Claimant’s salary for the months of November and December 2017 is unlawful and amount to a breach of the contract of employment between the parties.

The defendant has not denied that it is owing the claimant salary for the months of November and December 2017.  Rather, it proffers explanations why it had not paid the salaries.  It stated in its defence that:

The Defendant state that the reason why there was delay in payment of salary arose from a long overdue payment from a contract executed by the Defendant for the Akwa-Ibom State Government wherein the Defendant fund was deployed which said fund spanned into billions of naira which has affected the position of the company and this is known to the Claimant as one of the management staff.

This clear admission shows that defendant has indeed not paid the claimant’s salary as alleged.  Apart from the express provision in the contract of employment for the payment of salary(exhibit C4/D1); it is an implied term into every contract of employment that the employee is entitled to his salary after he has performed his duties.  By the provisions of section 15 of the Labour Act,

Wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon: Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month.

Evidence shows that the claimant is paid monthly.  There is no evidence to suggest that claimant’s salary was dependent on the success of the defendant’s other ventures.  I do not accept defendant’s argument that the payment of the salary should be dependent on the claimant fulfilling the “sign-out modalities or clearance process”.  The defendant had argued that:

A consideration of exhibits D3 and D4 would reveal that the Defendant/Counter-claimant has at all material times before the matter was initiated in Court, requested the Claimant to make herself available for clearance/ reconciliation of accounts so as to determine the extent of the Defendant’s liability to her. Be that as it may, it is only after such reconciliation and if the Defendant fails to discharge its obligation that the Claimant can as of right approach the court to seek redress.

I am of the view that the salaries, having already been earned were due to be paid, even before claimant’s resignation.  The salary, having thus already accrued to the Claimant, is not subject to the sign-out or clearance process.  If the Defendant had paid the Claimant promptly as at when due, it would not have been outstanding and available to be negotiated as part of the ‘sign-out procedure, at the date of resignation.  I therefore find and hold that failure of the defendant to pay the claimant for the afore-stated months constitute a breach of the employment contract between the parties.

  1.  Claimant’s second relief is for a DECLARATION of this Honourable Court that the Defendant’s non-remittance and/or conversion of the Claimant’s contributory pension funds and personal income tax is unlawful.

The defendant proffered no defence to this allegation except to again rely on the claimant’s failure to comply with the sign-out or clearance process.  The defence witness testified that the defendant made pension deductions from the claimant’s salary as shown in her pay slip (exhibit D12).  There is no evidence to show that the deductions were remitted to the claimant’s pension managers as required by law.  As held by the Court of Appeal in the case of Martins and Others v. Kolawole (2011) LPELR-4475(CA):

Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree’s past meritorious service to the employer.

Pension is not merely a statutory right of the claimant but is also a fulfillment of a constitutional promise.  Section 201 of the Constitution of the Federal Republic of Nigeria guarantees to every worker in the public service, the right to receive pension or gratuity as shall be regulated by law. Though referring to workers in the public service, it shows a recognition of the importance of the right to pension which should accrue to every worker; subject of course to the instruments regulating that employment.  The Courts have also recognized and declared the importance of pension.  Thus inMomodu v. National Union of Local Government Employees 1994 8 NWLR (PART 362) 336 , the Supreme Court, per UBAEZONU JCA stated that

A pension in the context of this case is an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer.

In this case, evidence shows that pension was deducted from the claimant’s salary and was not transmitted to the appropriate authority.  The Pension Reform Act, Cap P4 LFRN states what is to be done to deducted pensions.  It provides at section 11 (5) as follows:

(5)  The employer shall—

(a) deduct at source, the monthly contribution of the employee in his employment; and

(b) not later than seven working days from the day the employee is paid his salary, remit an amount comprising the employee’s contribution under paragraph (a) of this subsection and the employer’s contribution to the custodian specified by the pension fund administrator of the employee to the exclusive order of such pension fund administrator.

(6)  Upon receipt of the contributions remitted under subsection (5) (b) of this section, the custodian shall notify the pension fund administrator who shall cause to be credited the retirement savings account of the employee for whom the employer had made the payment.

(7) Any employer who fails to remit the contributions within the time prescribed in subsection (5) (b) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission provided that the penalty shall not be less than two percent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owing to the employees retirement savings account as the case may be.

The above provision of the Pension Reform Act provides that pension deducted from employees’ salaries shall be remitted not later than seven days after the employee received his salary.  By this provision therefore, the pension deductions which the claimant in this case seeks to be remitted, were supposed to have been so done before the resignation of the claimant.  It is not subject to any sign-out procedure of the defendant before it can be so remitted.

In the same manner, the defendant has not denied the non-remission of the deducted taxes to the appropriate authority.  The remission of taxes to the appropriate authority is also not subject to the defendant’s in-house sign-out or clearance formalities.  It is rather a statutory obligation on the defendant.  I have considered the provision of Section 7 (1) of the Operation of Pay-As-You-Earn (PAYE) Regulation of the Personal Income Tax Cap P8 LFN 2004.  It provides that:

  1. Remittance of tax deducted

(1)  Within ten days of the end of every month, an employer shall pay to the nearest tax office or to any bank (as may be prescribed or designated by the relevant tax authority) all taxes deducted under these Regulations.

(2)  The tax officer shall give the employer a receipt on the prescribed form for the total amount paid.

  1. Demand for remittance of taxes

If after ten days of the end of any month an employer fails to remit tax to the tax officer or to any bank designated for such payments, the collector of taxes shall demand for the immediate remittance of the tax due.

The above provisions clearly show when tax deductions are to be remitted.  Since the defendant has not denied its non-remission of the deducted and now accrued pension and taxes, I find that claimant is entitled to the declaration sought.  I therefore declare that the defendant’s non-remittance and/or conversion of the claimant’s contributory pension funds and personal income tax is unlawful.

  1. Claimant’s third relief is for AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the sum of N503,891.64 (Five Hundred and Three Thousand, Eight Hundred and Ninety One Naira, Sixty Four Kobo) being the earned and outstanding salary for the months of November and December, 2017.

Based on my finding on relief A above, and the fact of the non-denial of this relief, I find that the claimant is entitled to this relief.  I therefore hereby order the defendant to pay to the claimant the sum of N503,891.64 (Five Hundred and Three Thousand, Eight Hundred and Ninety One Naira, Sixty Four Kobo) being the earned and outstanding salary for the months of November and December, 2017.

  1. Also, based on the finding in relief B, I hereby order and direct the defendant to pay the sum of N1,250,017.46 (One Million, Two Hundred and Fifty Thousand, Seventeen Naira, Forty Six Kobo) being the unremitted contributory pension funds into the claimant’s RSA Account Number: PEN200731327413 (Igah Tamunaboma Abosede) maintained with Stanbic IBTC Pension Limited; and to pay in addition, accumulated interest from the time the fund ought to have been remitted.

  1. Also based on the finding in relief B, the defendant is hereby ordered to remit the sum of N605. 150.14(Six Hundred and Five Thousand, One Hundred and Fifty Naira, Fourteen Kobo) being the withheld personal income tax of the claimant to the Lagos State Inland Revenue Service (LIRS).
  2. The claimant has asked for exemplary damages in the sum of N2,000,000 (Two Million Naira) against the defendant for its deliberate, arbitrary, outrageous, oppressive and unlawful conduct in withholding and/or converting the claimant’s contributory pension funds and earned salary with the consequences of causing undue economic hardship to the claimant.  The law is settled that, exemplary damages are awarded where the defendant has committed wrong with reckless impunity, high handedness, exhibiting outright insolence and vindictiveness – Per ABUBAKAR, J.C.A. (P 32,Paras A-B)in University of Ilorin v. Dunmade (2013) LPELR-21383(CA).  See also Allied Bank of Nig. Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Ezeani & Ors v. Ejidike (1964) LPELR-25144 (SC). In G.K.F. Investment Nig. Ltd vs. Nigeria Telecommunication Plc. NSCQR Vol. 39 2009 page 426 @ 459, I.F. Ogbuagu JSC held:

Exemplary, punitive, vindictive or aggravated damages where claimed, are usually awarded, whenever the defendant or defendants’ conduct, is sufficiently, outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law and the like.

In this case, I find that the Defendant conducted itself in flagrant disregard to the law.  However, in consideration of the continued retention of defendant’s properties by the claimant, I do not award the N2,000,000.00 sought.  I find and hold that in the circumstance, N500,000.00 is a reasonable amount to award against the defendant,  in form of exemplary damage

  1. Relief G is for an order of injunction perpetually restraining the defendant, its officers, directors, representatives, agents, or other persons acting under the instruction or instigation of the defendant from embarrassing, harassing, intimidation, threatening and/or resorting to the unlawful use of any law enforcement agency or officers to intimidate, oppress, torture, harass, or threaten the claimant on account of matters arising in the course of the employment relationship.  I find this prayer too wide and that no foundation has been laid or any evidence led to justify its grant.  I therefore decline to make the said order.

  1. Claimant’s eight relief is for an order of injunction restraining the defendant, its officers, directors, representatives, agents, or other persons acting under the instruction or instigation of the defendant from disturbing the claimant’s exercise of lien over any assets in her possession until the full satisfaction of the judgment sum in this action.

According to Black’s Law Dictionary,a lien is a claim or charge on property for payment of some debt. It is a right or claim against some interest in property created by law as an incident of contract. It is a right to enforce charge upon property of another for payment or satisfaction of debt – Per Ogunbiyi J.C.A – in F.B.N. Plc v Songonuga (2007) 3 NWLR (Pt. 1021) 230 at 266-267 Paras. G – A (CA).

Lien has further been defined by the Supreme Court in the case of Afrotec Technical Services (Nigeria) Ltd v. Mia & Sons Ltd &….. (2000) ALL NWLR 533 thus:

A lien, broadly speaking is a right to retain that which is in ones possession belonging to another till certain demands of the person in possession are satisfied. The unpaid seller’s lien however is his entitlement to retain the goods in his possession until the buyer has paid or tendered the whole of their price”. Per NIMPAR, J.C.A (P. 19, paras. C-F) in Adepoju v. State (2014) LPELR-23312(CA)

From the facts of this case, I find that this is an appropriate situation where the right of lien can be exercised by the Claimant.  It does not appear reasonable to expect the Claimant, who is being owed accrued salary and whose pension is withheld by defendant, to hand over the only properties of the defendant in her possession.  I state this only with respect to the interests which had already accrued to the defendant before her resignation.  The situation may be different if the interests were such as accrued upon the determination of the contract of employment.  If such was the situation, the Defendant’s argument that the Claimant should comply with the internal “sign-out modalities or clearance process”, as a pre-condition to be entitled to her entitlements, may become acceptable.

I therefore order, and restrain the defendants, its officers, directors, representatives, agents, or other persons acting under the instruction or instigation of the defendant from disturbing the claimant’s exercise of lien over any assets in her possession until the full satisfaction of the judgment sum in this action

  1. The Claimant also seeks for PRE- JUDGMENT INTEREST on the sums of money in relief (c ) and (d) above from the date the payments were due until the date of judgment in this matter.  The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448(CA). It is for the Claimant to prove his entitlement to the stated pre judgment interest. This accords with the age old principle that he who asserts must prove same. The claimant has failed and/or neglected to prove how he becomes entitled to the rate of interest claimed. Not having proved same, this head of relief is refused and dismissed.  See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC; and Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc SUIT NO. NICN/LA/122/2014 judgment delivered on 12th July 2016.

  1. Relief J is for post-judgment interest on the sums of money in relief (c ) (d) and (f) above from the date of judgment until the date of satisfaction of the judgment debt  by the defendant.  The Rules of this Court provides direction and guidance with respect to post judgment interest. In this respect, Order 47 Rule 7 of the Rules of this Court states inter alia that the Court at the time of delivering judgment may order interest at a rate not less than 10% per annum to be paid upon any judgment. Therefore, pursuant to Order 47 R 7 of the Rules of this Court all the sums due under and by virtue of this Judgment shall attract 20% interest per annum from today until final liquidation.

On the whole, Claimant’s case succeeds, but without reliefs G, and I.  Relief K fails as I make no order as to cost.  The adjudged sums are to be paid within 30 days from this judgment, failing which it shall attract interest at the rate of 20% per annum.

  1. On issue three, whether the defendant is entitled to its counter-claim, I have considered relief A of the counter-claim which has to do with claimant’s conflict of interest amounting to a breach of claimant’s fiduciary duty to the defendant/counter-claimant.  I have considered exhibit D2 which is the Confidentiality and Non-Disclosure Agreement between the parties.  It is a valid document binding the parties for which its breach is actionable.  The defendant argued that the resignation of the claimant was made following findings that she had been carrying on a conflicting business with Irene Kayoma, the Head of Product Management as at the time to the detriment of the defendant’s business; and that it was after due investigation that she was asked to resign. The Claimant denies this allegation or that there was any such finding.  Though exhibit C5 (Claimant’s resignation letter) referred to being asked to resign, there is no evidence establishing the alleged act of conflict of interest; such that would propel this Court to make the declaration sought.

It is settled law that, where a petitioner seeks declaratory reliefs, he has the burden to prove his case through cogent and compelling evidence and not to rely on the weakness of the defence – Ogboru vs. Okowa (2016) 11 NWLR (Pt. 1522) 84 @ 147 F; CPC vs. INEC (2011) 18 NWLR (Pt. 1279) 493; Gundiri vs. Nyako (2014) 2NWLR (Pt. 1391) @ 252 C-D and Nyesom vs. Peterside (2016) All FWLR (Pt. 842) page 1537 @ 1649 H.  The issue of conflict of interest can only be determined by leading evidence to show the actions constituting the conflict of interest.  Thus, in the absence of direct convincing evidence of the alleged conflict of interest, this relief fails.

The second relief for A DECLARATION that the non-disclosure of the business relationship owned and operated with Irene Kayoma even when same was carried out in breach of her fiduciary duty to the company amounts to a breach of her contract of employment with the Defendant.  This relief is refused on the same grounds stated above with respect to relief A of the counter-claim.

The defendant/counter-claimant’s third relief for A DECLARATION that the claimant/defendant to counter-claim seizure and consequent use of the listed properties of the defendant/counter-claimant without authorization and approval is unlawful and amounts to conversion and detinue is overtaken by the declaration made in respect of relief H on claimant’s right to lien.  This relief is therefore not grantable under the circumstance.

Relief D of the counter-claim for an order directing the claimant/defendant to counter-claim to pay to the defendant/counter-claimant the sum of N20,000. 00 (Twenty Thousand Naira only) per day being the market rental value for a car hire from the 8th day of January, 2018 till possession of same is given to the Defendant/Counter-claimant cannot be granted in the circumstance stated above.  This relief is founded on a finding that the act of the Claimant amounted to conversion and detinue. That declaration having been refused, this relief also fails, since ownership of the car is not in dispute.  Relief E of the counter-claim cannot stand after the failure of reliefs A – D.

However, Claimant is to deliver up properties of the defendant in her possession not later than seven days after defendant has complied with this judgment.

The Defendant/Counter-claimant also seeks (Relief F) AN ORDER of this Court directing the Claimant/defendant to counter-claim to pay to the defendant/counter-claimant the sum of N385, 000.00 (Three Hundred and Eight Five Thousand Naira, only) being monies borrowed and also the value of goods purchased by the Claimant from the Defendant.  The Defendant tendered exhibits D10 and D11 as proof that the claimant borrowed some money and purchased some items from the defendant which had not been remitted to the defendant.  Exhibit D10 shows that the claimant at a time applied for a salary advance of N50, 000.00 and a loan of N300,000.00 for medical treatment.  There is no further evidence of the conditions or anything as the aftermath of the mails. I do not find any further proof of the existence of a loan nor the conditions for their repayment.  There is no evidence of any form of deductions made with respect to any loan or evidence of what is outstanding.  Further, exhibit D11 tendered by the defendant to prove that claimant made purchases which have not been paid for actually disproves defendant’s claim. This is because the receipts tendered by the defendant(exhibit D11) have the word PAID stamped on all of them.  I do not accept defendant’s explanation that they were stamped to enable the claimant leave with the goods.  This practice should have been established by evidence to be able to counter a signed and stamped receipt proving payment, for all intents and purposes.  I however note that on two of the receipts with numbers 004943 and 002712, it is indicated: “Accounts deduct from November salary”.  Both receipts are dated 9th December 2017.  I find that since November and December salaries have not been paid, the conclusion is that the sums reflected in the receipts have not been paid.  The receipts are for N35, 000,00 and N3,000.00 naira respectively.  The total of N38,000.00 is therefore found to be outstanding against the claimant.  This is to be deducted by the defendant and the balance of the sums adjudged in favour of the claimant in this judgment paid to her.  For avoidance of doubt, this relief only succeeds in the sum of N38,000.00.

Relief G for SPECIAL DAMAGES in the sum of N1,290, 061.92 (One Million. Two Hundred and Ninety Thousand, Sixty-one Naira, Ninety Two kobo) being the cost of training of the claimant in Capetown, South Africa or in the alternative an order of the Court mandating the claimant to deliver to the defendant the certificate of participation and other material given to the Claimant which are the lawful property of the Defendant.  The Claimant has not denied that the defendant sent her on the said training.  Exhibits D5 – D9 are all evidence of documents leading to Claimant’s attendance at a training in South Africa.  However, in all of these, I do not find evidence of any form of bond taken out by the Claimant and requiring refund of the money spent for the training in any circumstance.  The Defendant also alleges that it had expended a lot of money on the last training of the Claimant for which no benefit has been derived nor even a copy of the certificate of participation delivered up to the Defendant.  The Defendant also argued that rather than use the knowledge and skills acquired in this training to grow its outfit, they were deployed in connivance with Mrs. Irene Kayoma to run a private outfit with conflicting interest to that of the Defendant. I have already held that the issue of conflict of interest is not proved.  I do not find evidence of the practice requiring an employee to submit certificates issued pursuance to a sponsored training, to the sponsoring employer, either in the contract or as a practice in the industry.  Furthermore, it is the Defendant who asked the Claimant to resign when it had not yet taken the benefit of Claimant’s training, as it would wish.  As a result of all these, I decline to make this order.

Reliefs H – J naturally fail in the light of the failure of reliefs A – G.  The counter-claim is therefore dismissed.

Judgment is entered accordingly.

…………………………………………………

Hon. Justice Elizabeth A. OJI, PhD

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