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TITUS POOLSON & 4 ors -VS- PREMIER TIMBER INDUSTRIES

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

                   HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE:  14TH JUNE, 2019                                     

SUIT NO: NICN/AK/31/2014

BETWEEN

  1. TITUS POOLSON
  2. MONDAY OLALEYE
  3. OLOTU MOSES                                                CLAIMANTS
  4. OLUROPO AJAYI
  5. MOMOH IREYI

      (For themselves and on behalf of 150 workers

        of Premier Timber Industries Nigeria Limited)

 

AND

  1. PREMIER TIMBER INDUSTRIES NIGERIA LTD
  2. NLPC PENSION FUND ADMINISTRATOR LTD            DEFENDANTS

      (Joined on the Order of Court made on 24-11-14)

  1. ASSETS MANAGEMENT CORPORATION OF NIG.

      (AMCON)

      (Joined on the Order of Court made on 22-2-17)          

 

REPRESENTATION:

Atima K.A with him High Chief T.M Koiki, S.P Ashidi, S.A Egbuwadi, E.E. Fiwabi for the Claimants.

O.F Umar with him Oluwole Kehinde, I.J Ifedayo (Miss). F.A Ifedayo for the 2nd defendant.

Temitope Adedipe with him O.A. Agunbiade for the 3rd defendant.

                                                 

JUDGMENT

By a General form of Complaint filed on the 9th July 2014 which was later amended on the 1st March 2017, the claimants claim against the defendants jointly and severally the following reliefs:

  1. The payments of the claimants’ outstanding 18 months salaries owed between 2005 and 2007.

 

  1. The payment of the gratuities and pension and all other terminal benefits of the claimants as may be determined or calculated by the defendants taking cognizance of the terms of the employment of the claimants.

 

  1. The sum of Ten Million Naira only (N10,000,000.00) to be paid to the claimants as cost incurred for this litigation.

 

  1. The sum of Fifty Million Naira only (N50,000,000.00) as damages for the emotional stress psychological pains, inconveniences and mental agony.

It is the case of the Claimants by their pleadings that they were all employed, appointed, promoted and their appointments confirmed at different times after an initial three (3) months’ probation period by the 1st defendant and that their appointments enjoy statutory flavour. Also, that their appointments was regulated by a document titled: National Joint Industrial Council Agreement on Terms and Conditions of Service for All Junior Employees in the Furniture & Wood Working Industry in Nigeria which is periodically reviewed by both parties. It is the averment of the claimants that some of them were paid previously by the 1st defendant through accounts while some were paid by cash. That at different months between 2005 and 2007, the 1st defendant was unable to pay the claimants’ salaries for about 18 months until it stopped work in 2009. In 2008, one Company named KDS Nig. Ltd which partnered with the 1st defendant paid the claimants’ salaries from January 2008 till June 2009 but refused to pay the outstanding salaries for 18 months, this the 1st defendant promised to pay after its Court case with the United Bank of Africa (UBA) but since October 2011 when the judgment had been delivered on the said case, no payment was made by the 1st defendant despite several demands. That the 3rd defendant took over the loan indebted by the 1st defendant to UBA and in its effort to recover the money, it appointed a Receiver/Manager for the 1st defendant which offered the physical assets of the 1st defendant for sale vide the Punch Newspaper of August 11, 2014. The claimants stated that workers entitlements should be primary and take priority to be settled before the settlement of other liabilities in the recovery of the assets.

The 2nd defendant in this filed its statement of defence on the 29th of January, 2015. By its consequential amended statement of defence filed on 14th March, 2017 stated that it was appointed by the 1st defendant as its Pension Fund Administrator, that the 1st defendant’s member of staff were registered as contributors into the Contributory Pension Scheme on 17th January, 2008, that the first payment made by the 1st defendant on 19th June, 2008 is in the sum of N650,096.40 (Six Hundred and Fifty Thousand, Ninety Six Naira, Forty Kobo) meant for January 2008 and second payment of N646,215.90 (Six Hundred and Forty Six Thousand, Two Hundred and Fifteen Naira, Ninety kobo) for February, 2008 was made on 27th July, 2009 which brings the total contribution to N1,296,312.30 (One Million, Two Hundred and Ninety-six Thousand, Three Hundred and Twelve Naira, Thirty kobo). That several visits as well as several letters of reminder to the 1st defendant to remit its employees’ outstanding contributions, which constituted their pension proved abortive as the 1st defendant did not hearken to the request. It pleaded that apart from the contributions referred to above, no other contributions were remitted by the 1st defendant until it subsequently went into liquidation in 2010 and that the remitted amount has since been in the custody of First Pension Custodian Nigeria Limited. It stated that it (2nd defendant) is ready to release the remittances whenever called upon to do so. Whereof it averred that the claimants’ claim is misconceived and should be dismissed with substantial costs to it.

The 3rd defendant on the 22nd June, 2017 filed its statement of defence. It averred that it has never been responsible for the administration and management of the 1st defendant at anytime material, that it is not privy to any terms and conditions of the employment of the claimants and any agreement the claimants might have had with the 1st defendant, that it was not at any time responsible for the payment of salaries and wages of the 1st defendant’s employees and that it was not a party to the suit between UBA Plc and the 1st defendant at the Federal High Court. It pleading that it only purchased the non-performing loan of the 1st defendant from UBA with an outstanding balance of Seven Hundred and Twenty-Seven Million, Two Hundred and Twenty-Two Thousand, Four Hundred and Thirty-Nine Naira, Fifty-Four Kobo(N727,222,439.54) in line with the provisions of the Assets Management Corporation of Nigeria Act, that it is not liable for the liquidation of any indebtedness of the 1st defendant. It further stated that this suit is speculative and discloses no reasonable cause of action.

At trial, the claimants testified through one subpoenaed witness in person of Sunday O. Akingbohungbe, who had worked for the 1st defendant  before and rose to the position of Executive Director of the Company, he tendered some documents which were admitted by the Court and marked Exhibits SO-SO1, the 1st claimant, Titus Poolson also testified as CW2, he adopted his depositions on oath dated the 25th May, 2018 and 14th November, 2018 respectively as his evidence in the case, he tendered some documents which were admitted into evidence and marked Exhibits T1-T7.The 2nd defendant also testified through one Lanre Adejumola, he adopted his written statement on oath dated 14th March 2017 as his evidence in the case; he tendered some documents which were also admitted in evidence and marked Exhibit L.

At the close of trial in compliance with the rules of this Court, parties caused their final written addresses to be filed; the 2nd defendant filed on the 16th January, 2019 and formulated a sole issue for determination of the Court viz:

Whether the 2nd defendant is in any way liable to the claimants as claimed or at all?

Counsel submitted that the law is settled that he who asserts must prove, he cited the provisions of  the Evidence Act 2011, precisely section 131 and 132, and the cases of Nduul v. Wayo [2018] 16 NWLR (Pt.1646) 548 at 586, pars C-D and 587, para G, Buhari v. INEC [2008] 19 NWLR (Pt.1120) 246. Counsel argued that the claimants have failed woefully to establish that the 1st defendant paid to the 2nd defendant pension and contribution more than the sum of N1,296,312.30 expressly admitted  by the 2nd defendant. Counsel contended that moreover the said sum is in the custody of First Pension Custodian Nigerian Limited who had not been joined as a party to this suit and that the admitted sum of N1,296,312.30 could only be paid out to the claimants at the directions and instruction of the National Pension Commission (PENCOM) which is also not a party before the Court. Counsel argued further that by the provision of Section11 (8) of the Pension Reform  Act, 2014 and a combined  reading of Section 7(1-3), Section 16(1-5) thereof, an employee shall not have access to his/her retirement savings account or have any dealings with the Pension Fund Custodian with respect to the Retirement Savings Account except through the Pension Fund Administrator and that the claimants can only access their Retirement Savings Accounts upon furnishing satisfactory evidence of their attaining the age of 50 years, disengagement from employment and the approval of the Pension Commission, that even in that case, the claimants can only  individually get a fraction of their total contribution at any point in time and not the total contribution. Counsel submitted that the claimants have failed to prove their case against the 2nd defendant, he cited the case of Andrew v. INEC [2018] 9 NWLR (Pt.1625) 507 at 559.

The 3rd defendant on the other hand filed his written address on the 8th January, 2019 and distilled two (2) issues for determination to wit:

  1.  Whether the Claimants have established that the 3rddefendant appointed a Receiver/Manager for the 1st Defendant
  2. Whether the 3rddefendant is liable for the payment of arrears of salaries of the Claimants from 2005 to 2007, gratuities and other entitlement.

On issue one, counsel submitted that the burden of proof in this case rest squarely on the shoulders of the claimant, he cited Section 132 of the Evidence Act and the case of Oyewole v. Oyekola [1999]  7 NWLR (Pt.612)560 at 565, E-.F, Odom v. P.D.P [2013] ALL FWLR (Pt.698) at 984 D-G. He argued that the claimants must satisfactorily prove that the 3rd defendant had taken over and appointed a Receiver Manager for the 1st defendant; he contended that Exhibit SO1 is not sufficient to speak for itself to the extent that it is to notify the 1st defendant that the 3rd defendant in discharge of its statutory duty has bought over the indebtedness of the 1st defendant from UBA. Furthermore, it is the contention of learned defence counsel that Exhibit T4 falls short of any proof of appointment or exercise of Receivership over the 1st defendant by the 3rd defendant and there is also nothing in the said Exhibit indicating that the act of the Receivership was exercised by the firm of Afe Babalola & Co. at the instance of the 3rd defendant that the testimony of the claimant’s witness that the 1st defendant is the only timber processing factory having such facilities as described in the publication is not a  sufficient prove of receivership of the 1st defendant  and who appointed the Receiver. Counsel also argued by Exhibit T6, the claimant is clearly oblivious of whether a receiver/manager had been appointed for the 1st defendant and who appointed the Receiver. He argued that this Court cannot act on speculation of the claimants, reliance was placed on the case of Rivers Vegetable Oil Company v. Egukole [2010] All FWLR (Pt.544) 11 at 130 E-F and there is no credible evidence linking the 1st defendant to the advertisement in Exhibit T4, he then submitted that the absence of the instrument of appointment of the Receiver/Manager or any other cogent and credible evidence of appointment of Receiver/Manager, that the claimant has failed to discharge the burden placed on their shoulders.

On issue two, on the claimant’s claim for sums of money, counsel argued that there is no evidence adduced before this Court particularly by the claimant under cross examination to show that the 3rd defendant was involved in the management and administration of the 1st defendant and that it was an employer of the claimant between 2005 and 2007. Also, that there is no credible evidence that the 3rd defendant is currently involved in the management of the 1st defendant. He added that the claimant also failed woefully to give any iota of evidence regarding the actual amount of their individual salary between 2005 and 2007. He also argued that the claimant failed to specify the actual months that constitute the 18 months for which their salaries were unpaid and that the 3rd defendant is not in any way liable for the payment of the claimants ‘solicitors fee or any cost incurred in prosecution of their case.

The Claimants filed their final written address on the 20th February 2019, counsel on their behalf addressed the issues raised by the 2nd and 3rd defendants. On the issue presented by the 2nd defendant, he submitted that by the evidence before this Court, the claimants have shown that they paid to the 1st defendant about eighteen (18) months and that based on this, the onus is not on the claimant to prove how many months  were remitted to the  2nd defendant or how many pension contribution the 2nd defendant received, that the burden is on the clamant to show what months they paid thus the argument of the counsel to the 2nd defendant holds no weight and therefore should be discountenanced.

On the argument of the 3rd defendant, counsel contended that the 1st issue presented for consideration by 3rd defendant is borne out of a misconception of the pleadings of the claimants, that the question to be asked is whether the 3rd defendant had dealings with the assets of the 1st defendant, and that in answering the question, recourse may have to be made to the pleadings of the 3rd defendant. Counsel contended that in paragraph 4 of the 3rd defendant’s statement of defence, it admitted to have purchased the non-performing loan of the 1st defendant and that the 3rd defendant will definitely make effort to recover the indebtedness which cannot be done without touching the assets of the 1st defendant and meanwhile the loan to be recovered is also a liability taken over, to be liquidated upon the asset as it is trite that when there are competing liabilities, liabilities such as salaries and wages take precedence. Counsel concluded by urging the Court to grant the reliefs of the claimants.

Upon an in-depth examination of the processes filed by the parties, their supporting documents and testimonies of witnesses, documents tendered in buttressing their case and written submissions of counsel, I find the issues distilled by counsel as apt and rephrase the issues framed for the consideration of this suit thus:

Whether or not the Claimants have proven their case on the preponderance of evidence to be entitled to the reliefs sought?

Before delving into the substantive suit, it is necessary to lay to rest some preliminary issues raised by parties in their pleadings and written submissions. The Claimants vide paragraph 9 of their averment stated that “…their appointments are saturated with statutory flavour and are pensionable…”I am of the view that the assertion of the claimants in paragraph 9 of their averment is misconceived. It is therefore imperative to underscore the employment relationship existent between the claimant and the 1st defendant, this can only be achieved by drawing a dichotomy between a statutory and master-servant relationship. An employment is said to be one with statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms which parties agreed to be master and servant, see the cases of Audu v. Petroleum Equalisation Fund (Management) Board &Anor [2010] LPELR-3824 (CA), CBN v. Igwillo [2007] 14 NWLR (Pt1054)393 at 420.

In the instant case, the claimants in paragraph 10 of their pleading stated that the relationship between them and the 1st defendant was regulated by a document titled National Joint Industrial Council Agreement on Terms and Conditions of Service for all Junior Employee in the Furniture and Wood Working industry in Nigeria (NJIC) dated 1st February, 2002 (Exhibit T3), the said document (Exhibit T3) is simply a piece of agreement stipulating the terms and conditions of service between the claimants and the 1st defendant, it does not find root in any statute to be accorded a statutory flavour. There is no gainsaying that a master/servant relationship was existent between the claimants and the 1st defendant.

 

 

It is germane to state that since the commencement of this suit the 1st defendant has failed/refused to file a defence in this case. It is trite that in a circumstance of this nature, the 1st defendant will be deemed to have admitted the claimant’s claim in the statement of claim or has no defence against the claims, see the case Ben. C. Emodi v. Mrs. Patricia C. Emodi & Ors [2013] LPELR-21221 (CA). The Apex Court in Chami v. UBA Plc [2010]  6 NWLR (Pt.1191) 4& SC; held that where a party offers no evidence as in this instance against the claimant’s case, the  burden placed on the claimant is minimal since there is no evidence challenging his/her case. The Claimants in this case are however, not absolved from the burden placed on them by law in proving the merit of their case as it is trite that he who asserts must prove the existence of his assertion with credible evidence but the standard of proof on the claimant is minimal, see the cases of Unity Bank v. Olatunji [2013] 15 NWLR (Pt 1378) 503 P. 531. In sum, the 1st defendant will be bound by the decision reached by the Court. I so find and hold.

It is the claimants contention at paragraph 24 of the amended statement of fact, that the assets of the 1st defendant has been taken over by the 3rd defendant by reason of the judgment obtained by the United Bank of Africa against the 1st defendant and that particularly the 1st defendant had ceased operations. This position was affirmed by the 2nd defendant in paragraph 12 of its pleadings where it stated that the 1st defendant went into liquidation in 2010.  However, the 3rd defendant denies this assertion when it averred that it was never a party to the suit between UBA PLC and the 1st defendant; that it only purchased the non-performing loans of the 1st defendant from United Bank for Africa Plc (UBA); that it is not responsible to liquidate the indebtedness of 1st defendant. It is on record that the 1st defendant in 2009 stopped its operations and the claimants now claims that the 1st defendant is indebted to them in various ways that is unpaid salaries; pensions and gratuity.

It is the argument of Learned 3rd defendant counsel that the Claimant must satisfactorily prove that it (the 3rd defendant) had taken over or appointed a receiver/manager for  the 1st defendant, it contended that Exhibits SO1 and T4 is not sufficient prove as there is nothing before the Court showing that the act of receivership was exercised  by it through Afe Babalola & Co, the claimant on the other hand argued that the 3rd defendant admitted vide paragraph 4(a) of the statement of defence that it had purchased the non-performing loan of the 1st defendant and that it will make  efforts to recover the indebtedness which cannot be done without looking at the assets of the 1st defendant. It is the evidence of the Claimant’s witness that  he was invited to a meeting of the Board and shareholders of the 1st defendant vide a letter dated 9th January, 2013 (Exhibit SO), that it was at the meeting that he got wind of a letter dated 8th March 2012, Ref: AOB/LAG/C/248/12 written by the 3rd defendant to the Managing Director of the 1st defendant titled “RE-OUTSTANDING INDEBTEDNESS OF PREMIER TIMBER INDUSTRIES NIGERIA LIMITED-DEMAND  NOTICE” wherein the 3rd defendant took over the Non-performing  loans of the 1st  defendant thus:

“…In line with the AMCON Act of 2010, the Non-Performing loan of Premier Timber Industries Nigeria Limited taken over by the Corporation is as follows:

Name of Bank Phase Outstanding Balance
UBA 3rd phase N727,222,439.54

 

The outstanding obligation of N727,222,439.54 transferred to AMCON still attracts interest at the rate of 15% per annum with effect from January 1st 2012.

We hereby demand for the immediate payment of all sums due. Kindly be advised that if payment is not made within 21days of receipt of this letter, we shall take appropriate recovery measures…”

The pertinent question now is, is the 3rd defendant in any way liable to the claims of the claimant? It is imperative to state the trite position of law that for a party to succeed in a civil matter, he must prove his case on balance of probability or on the preponderance of the evidence adduced, see the cases of Akeju &Ors v. Kayode [2014] LPELR-22095 (CA), Agala & Ors v. Egwere &Ors [2010] 5 S.C.M P. 22 particularly at page 37 paras H, Obiaziakwor v. Obiaziakwor [2007] All FWLR (Pt. 271) 1602 at pages 1618, pars 606. It is the duty of the claimants in this suit to prove their case and adduce credible evidence before the Court for the Court to reach a just conclusion, this is to be done on the balance of probability and they cannot rely on the weakness of the defendants’ case. See the cases of A.T.C Ltd v. NNPC [2005] All FWLR (Pt 270) 845 2 SCNJ 316, Agienoji v. C.O.P Edo state [2007] All FWLR (Pt.367) 906, paras B-D (CA.). The Claimants have the duty to prove the nexus of the reliefs sought against each of the defendants in this suit.

The 3rd defendant is a body corporate established under the Asset Management Corporation of Nigeria (AMCON) Act 2010, see the case of CBN v. Amao [2010] 16 NWLR (Pt 1219) 271. It is notorious that the 3rd defendant was created as an urgent interjection into the financial industry in Nigeria for the purchase and resolution of non-performing loans, when banks were failing, the public was losing confidence in the system, and the public and economy had to be insulated and that the objects provided for in Section 4 of the Act therein includes:

“(a) assist eligible financial institutions to efficiently dispose of eligible bank assets in accordance with the provisions of this act;

(b) efficiently manage and dispose of the eligible bank assets acquired by the corporation in accordance with the provisions of his act;

(c) obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the provisions of this Act having regard to…”

In the case of Efe Finance Holdings Ltd v. Osagies, Otegbola & CO [2000] FWLR (PT 6)952, the Court held that: “AMCON is a purpose made legislation designed to assist the corporation in its aggressive pursuit of debt recovery…” see also Van Vilet Trucks (Nig) Ltd v AMCON & Anor [2018] LPELR 46789 CA.

From the facts as presented by the parties, the claimants in this suit have not by cogent and credible evidence shown to the Court that the 1st defendant has in anyway wound up or is in liquidation to warrant the intervention of the 3rd defendant, they have only shown to this Court that the 1st defendant is in distress, comatose and spent. I am equally inclined to agree with the 3rd defendant that it is not in any way indebted to the claimants because there is no document before the Court evincing that the 3rd defendant took over the assets and liabilities of the 1st defendant. I say so on the sound reasoning that the said exhibits which the claimants placed heavy reliance on that is Exhibits SO, SO1 and T4 does not in any way relate to the claimants nor link the 3rd defendant to the indebtedness of the claimants rather what the documents disclose is that the 1st defendant by the judgment against it with the United Bank for Africa (UBA) is indebted to UBA in the sum of N727,222,439.54 and the 3rd defendant which is the statutory body on the recovery of debts wrote to it by a  letter dated 8th of March, 2012 (Exhibit SO1) concerning its outstanding obligation in the said sum and the interest the sum attracts stressing the fact that if the sum is not paid within 21days, it will exercise its right to recovery. This is the basis upon which the members of the Board of Directors of the 1st defendant scheduled a meeting on the 9th of January; 2013 amongst other agenda to wit; “Update and progress with Asset Management Corporation of Nigeria (AMCON)”. This reasoning is also corroborated by the claimants’ pleading at paragraph 21 of the claimants’ statement of facts where they averred that “…. The 1st defendant told the claimants it was unable to pay the claimants salaries as a result of the litigation it had with UBA Plc and kept on promising that it would make good the demands of the claimants for the payment of the salaries after its Court case with the United Bank of Africa.” The claimants in all, have not in any way disclosed to this Court that the 3rd defendant eventually took over the assets of the 1st defendant in other to be held liable to offset their indebtedness. There is also no Court decision for the winding up or liquidation of the Company. There is equally no receivership appointed for the same purpose. It is consequent upon this, that I find the 3rd defendant has not acquired the 1st defendant indebtedness to the claimants in this suit. I so hold

It is the claimants’ claims that they are entitled to the payment of their outstanding 18 months salaries owed by the 1st defendant between the year 2005 and 2007? It is the law of long standing that for a party to succeed in his claim of this nature he has to specifically and strictly prove same. See the cases of Agunwa v. Onukwe [1962] 1 All NLR 537, Shell B.P v. Cole [1978] 3 SC 183, W.A.E.C v. Koroye [1978] 2 SC 45, Renolds v. Rokonoh [2005] 10 M.J.S.C 159. By the National Joint Industrial Council Agreement on Terms and Conditions of service for All Junior Employees in the Furniture and Wood Working Industry in Nigeria dated 1st February 2002 (Exhibit T3) which is the regulation governing the claimants appointment with the 1st defendant, Article 20(a-e)  thereof provides for salaries and fringe benefits of the claimants, also Article 17 a & b provides for the method of payment of salaries/wages structure which is to be paid in Cash/Cheque, and must be contained in a packet with the employees name written on it, any deduction must be shown on the packet and any payment of salary/wage shall not exceed the last day of the month. It is the case of the Claimants vide paragraph 18 of their statement of fact that at different months between the year 2005 and 2007, the 1st defendant has been unable to pay the claimant’s salaries for about 18 months, the 1st claimant in Paragraph 19 of his further witness statement on oath filed on the 14th November 2018 admitted that the 1st defendant paid the salaries of some through cash and others through pay-slip,. Their position is in alignment with Article 17 a & b of Exhibit T3. They stated further that despite several demands for same, their request yielded no positive result until the 1st defendant ceased to exist in 2009. From Exhibit T6, it is evident that the 1st claimant was paid his salaries from September 2007 to July 2009, there is however no evidence on record to prove/show that they were being owed salaries for the period they claimed. The claimants have failed to substantiate their claim for salaries owed by either tendering their statement of account or pay-slip for the period they are claiming, moreso there is nothing on the record of this Court to show that they worked for the period they so claimed. The CW1 under cross-examination merely stated that “I am aware that the 1st defendant is owing salaries of its workers but I cannot be definite of the amount”. This assertion by CW1 is clearly a proper case of inappropriate appraisal of evidence, gotten from substitution of evidence by inference; speculation which is not acceptable in our Courts, because neither the parties nor the Court is permitted or entitled to speculate anything. Where a decision is based on speculation it is liable to be set aside, for good reason. See the cases of FCDA & Anor v MTN & Anor [2016] LPELR 41248 CA; I.B.N. Ltd v. Att.-Gen., Rivers State [2008] All FWLR (Pt. 417) 1. Likewise it is trite that the principal rule of evidence law is that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the Evidence Act, 2011 and the cases of Jovinco Nigeria Ltd & Anor v Ibeozimako [2014] LPELR 23599 CA; PDP v. INEC [2012] 7 NWLR (Pt.1300) 538 at 561, Sankey v. Onayifeke [2013] LPELR-21997 (CA). The claimants in this suit have failed to satisfy this Court that they are entitled to the outstanding 18 months salaries owed by the 1st defendant between 2005 and 2007. It is in view of this that I find that the Claimants are not entitled to the outstanding 18 months salaries owned by the 1st defendant between 2005 and 2007. I so hold.

On claims b, the claimants are also claiming for the payment of their gratuities and pension and all other terminal benefits as may be determined or calculated by the defendants. The Claimants by paragraph 9 of their statement of fact stated that the 1st defendant appointed the 2nd defendant to administer a contributory pension scheme wherein monies were deducted monthly from their salaries which the 1st defendant paid into the 2nd defendant (Pension Administrator) Account number: 4682030001878 with the First Bank of Nigeria Plc. The 2nd defendant on the other hand stated that the 1st defendant started funding the contributory pension scheme in January 2008 and made the first payment in the sum of Six Hundred and Fifty Thousand, Ninety Six Naira, Forty Kobo(N650,096.40) on the 9th June 2008 meant for January 2008 and the second payment of the sum of Six Hundred and Forty Six Thousand, Two Hundred and Fifteen Naira, Ninety Kobo (N646,215.90) for February 2008 was made on the 27th July 2009 which sums up to a total contribution of One Million, Two Hundred and Ninety-Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1,296,312.30).

It is the position of the law that entitlement to pension and gratuity is a vested right which can only be taken away upon the dismissal of an employee from his employment, see the case of NEPA v. Adeyemi [2007] 3 NWLR (Pt1021) 315 at 337 Pars F-G (CA), Once an employee has spent the requisite number of years as stipulated in the terms of condition of employment of the employer, he is entitled to draw his pension and be paid his gratuity, see the case of  Igwillo v. CBN [2009] 9 NWLR (Pt 672) 302. Pension 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 the payment of the said pension. It is a right which cannot be unilaterally taken away by the employer, see the case of, NUCCEW v. Costain (West Africa) Ltd [2008] 17 NLLR (Pt.47) 269 NIC. P,296, Para F,  Momodu v. National Union of Local Government Employees [1994] 8 NWLR (Pt 362) 336  The right to pension is a Constitutional right as provided for in Section 210 of the 1999 Constitution as amended. It is ipso facto a fulfillment of a Constitutional promise and the payments of same is governed by the terms and condition of employment, see the case of Ajao v. Permanent Secretary Ministry of Economic Planning Budget Civil Service Pension Office &Anor [2016] LPELR-41407 (CA). It is computed as a percentage of terminal salary and paid periodically, usually monthly for the rest of the life of the retired employee, Adamu Kasim v. Nigerian National Petreleum Corporation [2013] 10 NWLR (Pt. 1361) 46 Sc P.69, Paras C-D. Pension is designed to cushion the retiree from the hardship of life in retirement and to, also serve as a reward for the retirees past meritorious service to the employer, See the case of Martins &Ors v. Kolawole [2011] LPELR-4475 (CA). It is deducible from all these, that pension is usually paid upon retirement of an employee from his employment, and the payment is spread over a period of time.

As seen from the record of the Court, the CW1 stated under cross-examination that the Accountant was deducting money and remitting it to the pension Administrators. It is evident from Exhibit T2 that 1st claimant (who is representing the interest of other 150 staffs who were in the employment of the 1st defendant) had Retirement Savings Account with the 2nd defendant. CW2 stated further that all he knows was that 15 months salary was deducted by the 1st defendant to the 2nd defendant. He noted that Exhibit T2 was for the period of 1st October 2008 to 31st December, 2008, and that no amount was remitted for November 2008. The 2nd Defendant on the other hand admitted the sum of One Million, Two Hundred and Ninety Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1,296,312.30) to be the sum  paid by the 1st defendant as the Claimants pension contribution which is summation of payment meant for January and February 2008. It is also the testimony of DW1 under cross-examination that at a point, the 1st defendant failed to remit the claimants salaries/ outstanding contribution due as and such he wrote series of letters and reminders to it to that effect (Exhibit L). The 2nd defendant stated vide paragraphs 12 and 15 of their consequential statement of defence that when the 1st defendant went into liquidation in 2010, the amount remitted remained intact and in the custody of First Bank Custodian Nigeria Limited and stated further that it is ready to release the remittance through its pension custodian when the need arises. The 2nd defendant continued that the 1st defendant did not remit any other sum to it after that of February 2008 and that despite several request and visit to the 1st defendant (Exhibit L), the 1st defendant still failed to remit the outstanding sum. The 2nd defendant has admitted the sum of One Million, Two Hundred and Ninety-Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1, 296,312.30) which is the remittance made for the period of January and February 2008. It is an established principle of law that facts admitted need no proof, see the cases of Chukwu & Ors v. Akpelu [2013] LPELR-218645 (SC), Narinder Trust Ltd v. N.I.C.M.B [2001] FWLR 1546 at 1558. It is consequent upon this that I find that the Claimants are entitled to the sum of One Million, Two Hundred and Ninety-Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1,296,312.30) being their pension for the period of January-February 2008. The 2nd defendant is hereby ordered to release and effect the payment of same to the claimants Pension Fund Administrators. I so hold.

With regards to the remainder of the sum deducted by the 1st defendant as pension from the claimant. I noted that there is nothing on record to show that the 1st defendant remitted any outstanding deductions made from the claimants salaries after the two payments earlier made for the period of January-February 2008, I say so in view of Exhibit T2, the letter dated 20th October, 2008 written by the 2nd defendant to the Managing Director of the 1st defendant wherein the statement of account for the third quarter for 294 members of staff was attached, it is clear from the transaction details on the account statement that the 1st defendant merely remitted for the period of January and February 2008 and nothing more. However from Exhibit T6, it is clear that pension deductions were made from the 1st claimant from September 2007 to July 2009. It is in view of this impeachable evidence on record that I find that the claimants are entitled to their pension for the period of September 2007 to July 2009 from the 1st defendant save for the period of January-February 2008 and this should be remitted to their Pension Fund Administrator. I so hold.

On the claim for gratuity and other terminal benefits, it is trite law that gratuity is in the nature of fringe benefit given to an employee for a deserving meritorious service, see the case of Intel (Nig) Ltd &Ors v. Williams E. Bassey [2013] All FWLR (Pt 675) 376 P.384. By Article 21 (d) of The National Joint industrial Council Agreement on Terms and Conditions of Service for All Junior employees in the Furniture & Wood working industries of Nigeria (Exhibit T3), provides for gratuity benefits thus:

“to qualify for this, an employee is required to have put in up to 10years continuous service. Calculations shall be as follows:

10 years-14years = 7weeks pay for each completed years of service.

15years-19 years =8weeks pay for each completed years of service.

20 years-above=12 weeks pay for each completed years of service.

ALL BASED ON TOTAL EMOLUTIONS

N.B The Components of total emoluments shall be:

  1.                         Basic salary
  2.                          Housing Allowance

  iii.                        Transport  Allowance

  1.                         Meal subsidy
  2.                         Leave Allowance

Based on current basic pay of the individual at the time of departure

It must be noted that an employee is entitled to only terminal benefit as (b-d) above as appropriate”

 

I find no evidence on record to prove that the claimants’ employment were terminated by the 1st defendants rather they left their employment after they realized that the 1st defendant could not pay their alleged salaries and came to Court to seek redress. This to me looks more like the claimants were made redundant by virtue of the fact that the 1st defendant ceased operation and not that the employment of the claimants were terminated to entitle them to the gratuity benefits and Exhibit T3 is clear on the fact that an employee is entitled to only one terminal benefit as in b-d (which are either Termination/resignation benefits, Redundancy benefits and Gratuity benefits) as appropriate. The claimants with regards to the circumstances as presented in this suit are more or less entitled to the redundancy benefits as provided by Exhibit T3 as follows;

“Redundancy Benefits

Redundancy occurs when the services of a worker is no longer required by an employer due to no fault of the worker arising from excess manpower or lack of job. The calculation shall be as follows

 

1year- 2 years           4weeks pay for each completed year of service.

3 years – 5years         5 weeks pay for each completed year of service.

6 years – 9 years         6 weeks pay for each completed year of service.

ALL BASED ON TOTAL EMOLUMENTS”

 

From the documents on record, it is obvious that the claimants in this suit were at various times employed between the years of 1983, 1987, 1988, 1993, 1994 and 1997 by the 1st defendant to entitle them to the redundancy benefits. An important question to ask is who will now pay the entitlements of the claimants. Is it the 1st or 3rd defendants? I have earlier held that the 3rd defendant is not in any way indebted to the claimants on the reasoning above. I have equally held that there is nothing on record evincing that the 1st defendant is in liquidation or wound-up, what is before the Court is that it stopped operations and nothing more. Exhibit T4 dated 11th of August, 2014 which although made no specific mention of the 1st defendant’s name only reveals an advertisement for sale of a timber processing factory along Akure-owo Road which upon inference refers to the 1st defendant has not in any way disclosed that it has been sold and to what Company to aid the Court. By Section 409(c) of the Company and Allied Matters Act, Cap C20 LFN 2007, this Court with respect to the circumstances of this suit has noted and/or is satisfied that the 1st defendant is unable to pay its debts to the 3rd defendant and which is a viable ground to wound up under Section 408(d) of the Act. However, this Court is not the appropriate Court under Section 254C of the 1999 Constitution to make an order for wound up. The claimants in this suit did not do their due diligence on this matter to ascertain the appropriate quarters to channel their rights of claim and to aid the Court in the dispense of Justice. However, and as earlier reiterated since there is no evidence on record to credibly prove that the 1st defendant has gone into liquidation or wound-up as the case may be, the only inference to draw is that the 1st defendant still exists and based on that the claimants are entitled to their redundancy benefits and this should be computed by the 1st defendant with due regards to the years each of the claimant put in, in the employment of the 1st defendant. I so hold.

 

The claimants are claiming the sum of Ten Million Naira (N10,000,000.00)  as cost incurred in the cost of this litigation, the claimants in paragraph 26 of their amended statement of fact pleaded a part-payment receipt evidencing the payment of Five Hundred Thousand Naira (Exhibit T7). Authorities abound that the award of cost is entirely at the discretion of the Court that costs follows the event of the litigation, See the cases of NNPC v. CLIFCO (Nig) Ltd [2011] 4 SCNJ 107 10; HACO Ltd v. Brown [1973] 4 SC (REPRIINT) 103, Saeby v. Olaogun [1991] 10-12 SC pg 45, Woruo v. UAC Ltd [1956] 1 FSC pg 133, Biode Pharmaceutical Ltd v. Adsell Ltd [1986] 5 NWLR (Pt.10) 70.     The essence of cost is to compensate the successful party for part of loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation, it is not also meant to be a bonus to the successful party, it is not also awarded on sentiments, see the cases of Master Holding (Nig) Ltd v. Emeka Okefiena [2010] LPELR 8637, UBN Ltd v. Nwaokolo [1995] 4 Kings Law Report Pg 919. In the case of NBCI v. Alfijir (Mining) Nig. Ltd [1999] 14 NWLR (Pt. 638) 179, Per Achike JSC at pages 42043 emphasized as follows:     

“The award of costs or refusal to award costs is a matter in the discretion of the Court, subject to the only qualification that the Court’s discretion must be seen to have been judicially and judiciously exercised in this regard. It is a popular saying that costs follows the events in the sense that although every litigant has a right to obtain an order as to costs, nevertheless he may waive it. Assessment of the amount allowed in terms of an award of costs is the responsibility of the Court who determines what         reasonable costs in the circumstances are      . And when the Court in exercise of its discretion orders the costs payable and does so without being capricious i.e. in the sense that it is ordered to honest exercise of his discretion…”     

It is lucid from Exhibit T7 that the Cost of this suit was assessed in the sum of Three Million and Five Hundred Naira by the Claimants’ counsel, the sum of Five Hundred Thousand Naira as already been paid as part –payment professional fees. I have considered the antecedent of this case coupled with the number of appearance made by the claimants’ counsel in this case and hereby award cost in the sum of five hundred thousand Naira (N500,000.00) in favour of the claimants. I so hold.

On the claim for the sum of Fifty Million Naira (N50,000,000.00) as damages for the emotional stress, psychological pains, inconveniences and mental agony.  This kind of damage which the claimants are claiming is general damage. It is that which the law presumes to be the consequence of the act complained of, see the case of EFCC v. Inuwa & Anor [2014] LPELR-23597 (CA). The law in its wisdom presumes damages to flow automatically from the wrong inflicted on a claimant by the defendant from whom they are claimed and they do not have to be specifically pleaded, see the cases of Arab Construction Ltd & Anor v. Isaac [2012] LPELR-9787 CA, Xtudos Serv. NIG. Ltd v. Taisei (W.A) ltd [2006] All FWLR (333) 1640. Generally, general damages are compensatory damages for harm that so frequently result from the tort which a party has sued; that the harm is reasonably expected and need not be alleged or proved, see the case UBN Plc v. Ajbule &Anor [2011] LPELR-8239 (SC). Damages can only be given in respect of pecuniary loss that has been sustained, the claimants in this suit have failed to establish vide credible evidence the emotional stress, psychological pains or even the purported inconveniences and trauma they went through, they owe this temple of justice the duty  to prove same else their claim fails. It is not the duty of the court to fish out, scuttle around and search for evidence in order to aid the case of a party who  cannot produce such evidence for himself, see the cases of Umeh v. Ejike [2013] LPELR-23506 CA , Ohwororiole, SAN v. FRN & Ors [2003} 2 NWLR (Pt. 803) 176 at 194. It is consequent upon this that I find no merit in this claim and thus dismiss same.

In sum, I find that the claimants’ case succeeds in part, thus I make these declarations and orders-

  1.  That the 3rd defendant is not indebted to the claimants.
  2. That the Claimants Claim for 18months outstanding salaries fail.
  3. That the Claimants are entitled to the sum of One Million, Two Hundred and Ninety -Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1,296,312.30) being their pension for the period of January-February 2008.
  4.  The 2nd defendant is hereby ordered to release and effect the payment of the sum of One Million, Two Hundred and Ninety-Six Thousand, Three Hundred and Twelve Naira, Thirty Kobo (N1,296,312.30) to the claimants Pension Fund Administrators forthwith.
  5. That the claimants are entitled to be paid their pension for the period of September 2007 to July 2009 from the 1st defendant.
  6. That the 1st defendant is to pay the Claimants’ redundancy benefits.
  7. The Claimants claim for damages fails.
  8. I award cost in the sum of five hundred thousand Naira (N500,000.00) in favour of the claimants.
  9. All the judgment sums are to be paid within 30 days failing which it is to attract 10% interest per annum.

 

Judgment is accordingly entered.

 

Hon. Justice Oyewumi Oyebiola O.

                                                Presiding Judge                                                                                

 

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