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REPRESENTATION H. O. Ndubuisi, for the claimant. David Nkire, for the defendant. JUDGMENT 1. By a complaint dated and filed on 13th June 2013 (with the accompanying originating processes), the claimant prayed for: (1) The claimant is entitled to the sum of N5,000,000 (Five Million Naira), being compensation from the defendant for the permanent disability the claimant suffered in the course of his employment with the defendant. (2) The claimant is entitled to the balance of the contributory pension and the interest thereof deducted from the claimant’s salary by the defendant but not remitted to the pension fund administrator. (3) An order compelling the defendant to pay to the claimant forthwith the sum of N5,000,000.00 (Five Million Naira) being compensation for the permanent disability suffered by the claimant in the course of his employment with the defendant. (4) An order compelling the defendant to pay to the claimant forthwith the balance of the contributory pension and the interest thereof deducted from the claimant’s salary the defendant but not remitted to the pension fund administrator. (5) An order that the defendant pays to the claimant the cost of this action. 2. In response, the defendant entered formal appearance and then filed its defence processes made up of the statement of defence, list of witness, witness statement on oath, list and copies of the documents to be relied on. By order of Court made on 17th May 2017, these defence processes were amended. 3. At the trial, the claimant called two witnesses. The claimant himself testified as CW1 and Fakunle Habib Ajibola, a Legal Officer with Premium Pension Ltd, testified as a subpoenaed witness for the claimant and as CW2. The defendant called one witness, Kayode Olayiwola, Head of Health, Safety, Security and Environment of the defendant, who testified as DW. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address (unsigned) is dated 5th September 2017 but filed on 6th September; while the claimant’s is dated and filed on 25th September 2017. The defendant did not file any reply on points of law. THE CASE OF THE CLAIMANT 4. The case of the claimant is that he was employed by the defendant in January 2008 as a factory worker and that he discharged his duties diligently until that fateful Tuesday, 9th October 2010 when he accidentally sustained crush injuries to three of his right fingers in the course of his duty. He later underwent stump refashioning surgery that attempted to restore two out of the three affected fingers while the right thump was completely lost. He was subsequently discharged after weeks of hospital admission and further referred to physiotherapy treatment that lasted more than three months. Upon resumption, the claimant demanded compensation from the defendant for the partial permanent disability the accident has caused him but instead the defendant opted to retain the claimant as long as the claimant would like to stay with the defendant and only gave the claimant the sum of N61,740 as sick pay to enable the claimant take care of his out of hospital expenses (convalesce). However, that on Thursday, 2nd May 2013, the claimant came to work, as usual, only to be handed over a letter titled “Redundancy” together with a cheque of N152,460 as redundancy benefits without any mention of the claimant’s peculiar disability and in spite of the subsisting gentleman’s agreement between with defendant and the claimant. Furthermore, that the claimant went to his pension fund administrator to collect his contributory pension entitlements only to be informed that the defendant did not remit most of his monthly pensions, a discovery he promptly reported to the defendant severally and the defendant admitted the non-remittances and promised to rectify the anomaly but has not done so till date; hence this suit. THE CASE OF THE DEFENDANT 5. The case of the defendant is that it paid the claimant the sum of N61,700.40 as compensation for his disability on the basis of the workmen compensation schedule; and that the claimant submitted two Personal Identification Numbers (PIN) for his pension fund account. The defendant went on that the claimant’s employment was terminated because the claimant was surplus requirement; and the claimant has been paid all his entitlements; as such the claimant is not entitled to any sum as payment of compensation for the claimant’s disability. That it was only aware that the claimant had a minor accident of which he was immediately taken to the hospital and the expenses were paid. The defendant concluded by stating that the claimant’s action is premature, vexatious, ill-conceived and should be struck out. THE SUBMISSIONS OF THE DEFENDANT 6. The defendant submitted three issues for determination, namely: (1) Whether the defendant compensated the claimant in accordance with the requirement of the Workmen Compensation Act. (2) Whether the claimant has furnished sufficient material to show that the balance of his contributory pension has not been paid by the defendant. (3) Whether the claimant is entitled to the sum of N5,000,000.00 (Five Million Naira). 7. On issue (1), the defendant submitted that payment of the compensation for injuries suffered by an employee in the course of employment is guided and regulated by the Workmen Compensation Act LFN 2004, which Act that stipulates how and in what manner compensation for injuries sustained in the course of employment should be calculated and paid. That section 7 of the Act states that: “Any employee whether or not in a work place, who suffers any disability injury arising out of or in the course of his employment, shall be entitled to payment of compensation in accordance to Part IV of this Act”. That the Second Schedule of the Workmen Compensation Act goes further to stipulate the percentage of disability with respect to the degree of injury sustained. The defendant went on that the clamant sustained an injury on his second right finger during course of his employment; he was treated and after his recovery he was referred to a hospital for further assessment. The hospital evaluated the injury which it said was an amputated distal phalangial segment, and also stated that the percentage disability is 10% based on the Workmen Compensation Schedule, referring to the medical report, Exhibit D3. That based on the medical report, the claimant’s compensation was calculated and the sum of N61,700.40 (Sixty-One Thousand, Seven Hundred Naira, Forty Kobo) was paid to the claimant as compensation which he received and acknowledged. That the clamant did not deny receiving the sum of N61,700.40 (Sixty-One Thousand, Seven Hundred Naira, Forty Kobo); however, the claimant claims that the money was given to him for sick pay, referring to paragraph 13 of the claimant’s statement of claim. The defendant then submitted that it has discharged its obligations to the claimant with regards to compensation for injury sustained by the claimant in the course of his employment. 8. Regarding issue (2), the defendant submitted that the claimant has not furnished sufficient material facts before this Court to show that the balance of this contributory pension has not been paid. That the claimant called a witness on subpoena representing the claimant’s pension fund administrator who gave evidence in respect of documents (statement of account) tendered by the claimant for the periods which the defendant remitted the claimant’s contributory pension to the claimant’s pension account. That during cross-examination the witness on subpoena stated that based on the information before him he cannot categorically say that the defendant did not remit the claimant’s pension arrears for the periods which were not captured by the statement of account. That the witness stated that as pension administrator the defendant does (sic) remit directly to the pension fund administrator but to the pension fund custodian who then remits to the pension fund administrator and it is possible that the defendant might remit to the pension fund custodian and the custodian might fail to remit to the pension fund administrator for one reason or the other. That the witness was also asked during cross-examination if it was possible for a client to own two pension accounts and the witness answered in the affirmative but stated that it is an irregularity that might create a problem for the client during remittance. 9. The defendant continued that the claimant provided two separate pin numbers meaning that the claimant has two accounts. That the pin number signifies an account held by an employee. That the claimant in his pleadings only tendered the statement of account of one of the two accounts he maintains with the pension fund administrator and did not furnish any material facts before this Court to show whether or not the defendant made remittances to the second account. That there is nothing before this Court to show that the claimant contacted the pension fund custodian to find out whether or not the balance of contributory pension was remitted by the defendant prior to the instruction of this suit. That the Pension Reform Act 2004 imposes the duty on the pension fund custodian to receive the total contributions remitted by the employer on behalf of the pension fund administrator, referring to section 57(a) of the Pension Reform Act 2004. That section 11 of the same Act imposes a duty on any employee to maintain an account in his name with a pension administrator of his choice. That this provision connotes a single account to be held by the employee and not multiple accounts as held by the claimant. 10. To the defendant, the burden of proof in an action lies on the party who will fail if no evidence at all was given on either side, citing Kwasalaba v. Okonkwo [1992] 1 NWLR (Pt. 218) 407; as such the plaintiff has the onus of proving the case if brought before the Court. That he who alleges must prove. That the claimant in this suit tendered documentary evidence during trial which were admitted and marked Exhibits C1 - C7; as such, it remains to be seen if the evidence adduced by the claimant is of such a quality that preponderates in favour of the basic proposition which he seeks to establish, referring to Obasi Brothers Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd [2005] 4 MJSC 1 at 26. That even where evidence is uncontroverted and unchallenged, it still has to be evaluated by the Court to see if it is credible enough to sustain the claim, citing Neka B.B.B Manufacturing Co. Ltd v. ACB Ltd [2004] 15 WRN at 27 and Haruna v. Salau [1998] 7 NWLR (Pt. 559) 653 at 659. That in the instant case, from the documentary evidence tendered before the Court, especially relating to the statement of account, the claimant tendered statement of account from only one of the multiple accounts he has with the pension fund administrators. That in doing so the claimant has not discharged the burden of proof to enable that burden shift to the defendant, urging the Court to so hold. The defendant then referred to Obi v. Uzoewulu [2008] LPELR-3930(CA) and Abiodun Joseph v. Fajemile O. O. & anor [2012] LPELR-9449 (CA). The defendant concluded by submitting that the claimant has not established its case in this Court to warrant judgment in his favour. 11. For issue (3) i.e. whether the claimant is entitled to the sum of N5,000,000.00 (Five Million Naira), the defendant answered in the negative given that the claimant failed to prove how this amount arose; and did not furnish any particulars before this Court to show that he is entitled to the amount claimed. The defendant concluded by urging the Court to hold in favour of the defendant and dismiss this suit as it lacks merit. THE SUBMISSIONS OF THE CLAIMANT 12. The claimant on his part also submitted three issues for determination, namely: (a) Whether the defendant compensated the claimant in accordance with the requirement of the Workmen Compensation Act. (b) Whether the claimant has furnished sufficient material to show that the balance of his contributory pension has not been paid by the defendant. (c) Whether the claimant is entitled to the sum of N5,000,000.00 claimed. The claimant then went on to submit that for clarity of issues, he will adopt the three issues raised by the defendant in her address and show by pieces of evidence already before the Court that the claimant indeed has actionable grievances against the defendant and is, therefore, entitled to the reliefs sought in this action against the defendant. 13. On issue (a), the claimant referred to section 3 of the Workmen’s Compensation Act Cap. W6 LFN 2004 titled, “Employer’s liability for compensation for death or incapacity resulting from accident” and which provides as follows: “Subject to subsection (2) of this section, if in an employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall subject as hereinafter mentioned, be liable to pay compensation in accordance with the provisions of this Act”. Section 5 of the same Act titled, “Compensation in the case of permanent total disability” goes on to specify the amount payable in such circumstance when it provides as follows: “Where permanent total incapacity results from the injury, the amount of compensation shall be a sum equal to 54 months’ earnings”. Furthermore, section 7 of the same Act titled, “Compensation in case of permanent partial incapacity” goes on to say that “where permanent partial incapacity results from the injury, the amount of compensation shall be...such percentage of the compensation which would have been payable in the case of permanent total incapacity caused by that injury…” To the claimant, the compound reading of the relevant portions of the Workmen’s Compensation Act (reproduced above) clearly shows that an employer is liable to pay as compensation to the injured workman, a sum equal to 54 months’ earnings of such employee in case of permanent incapacity; whether partial or total. That in the instant case, it is not in doubt that the claimant suffered permanent partial disability or incapacity as a result of the accident. That what is, however, in contention is whether the N61,740.00 paid to the claimant by the defendant after the accident should qualify as compensation as contended by the defendant or simply be seen as sick pay as alleged by the claimant. 14. The claimant went on that the operative phrase relevant for this consideration is “a sum equal to 54 months’ earnings”. Now, the word “earning” used in the Act is in plural form “earnings” which connote gross monthly earnings as opposed to monthly basic salary. That this being the case, Exhibit C3, the claimant’s pay-slip for the month of April 2013 (arguably his last paid salary), clearly shows a gross monthly earnings of N47,067.66. That if this is multiplied by 54 months specified by the Act, what we will get is a figure in the neighborhood of N2,500,000 (Two Million, Five Hundred Thousand Naira). Also, that section 6 of the same Workmen’s Compensation Act further provides for additional compensation to be paid to the workman in deserving cases. Therefore, that taken together, it is not difficult to see why the claimant claimed the sum of N5,000,000 as compensation for the permanent disability he suffered as a result the accident while in the employment of the defendant. 15. On the other hand, that the defendant, which alleged that N61,740 paid to the claimant after the accident as compensation, did not show to the Court what percentage it used in arriving at the said amount. That the law is settled that what is required to establish special damages (or compensation as in the instant case) is evidence which shows the same particularity as is necessary for their pleading, that is, evidence that makes precise calculation possible, citing Obasuyi v. Business Ventures Ltd [2000] 5 NWLR (Pt. 658) 686 at 697 and Imana v. Robinson [1974] 3 - 4 SC. Therefore, that it is crystal clear that the sum of N61,740 paid to the claimant by the defendant purporting to be compensation in clear violation of the Workmen’s Compensation Act is null and void by reason of non-compliance with the Act, urging the Court to hold that the defendant has not compensated the claimant for the permanent partial incapacity he suffered in accordance with the requirement of the Workmen’s Compensation Act. 16. For issue (b) i.e. whether the claimant has furnished sufficient material to show that the balance of his contributory pension has not been paid by the defendant, the claimant submitted that in his statement of facts, he averred that upon being informed that most of his contributory pensions were not remitted to the Pension Fund Administrator (PFA) by the defendant, he promptly notified the defendant of the anomaly which the defendant admitted and promised to rectify but failed to do so till date. That evidence before the Court clearly shows that the defendant was notified of the non-remittance of the claimant’s monthly contributory pension. That even the defendant’s sole witness admitted that he first met the claimant in late 2012 when the claimant came to complain about the challenges with his pension scheme. That this piece of evidence shows that the defendant knew about the irregular remittance of the claimant’s contributory pension but chose to do nothing about it. That the Pension Reform Act 2004 imposes an obligation on the employer to deduct at source a percentage of the employee’s salary every month as contributory pension; the employer is also obligated under the Act to pay a sum equal to the amount deducted from the employee’s monthly salary as the employer’s contribution every month to be paid into the employee’s pension scheme, hence the appellation “contributory pension”. That in this arrangement, the only thing that is required of an employee under the Act is to register with any Pension Fund Administrator and furnish the employer with the details of such registration and it is the responsibility of the employer to make the monthly deductions from the employee’s salary and add its own contribution and then pay same to the relevant pension fund custodian for onward transmission to the concerned pension fund administrator. Therefore, that where there is non-remittance or irregular remittances, the onus is on the employer to show that it indeed made those remittances complained of; it is not the duty of the employee to prove that the remittances were made or not (as erroneously argued by the defendant) since in most cases, the employee is not even aware when and how the remittances are made. That once the employee can show that the monthly deductions were made from his salary, the onus will now be on the employer who made those deductions to show that she actually remitted the amount so deducted. This is particularly true because it is the employer who chooses the pension fund custodian where the contributory pension is paid to. The employee does not have any business with how the remittances are made. Once the employee registers with a pension fund administrator and furnishes the employer with the details of such registration, he has discharged his obligation under the Pension Act. In the instant case, the claimant alleged that the defendant did not remit most of the contributory pensions to his pension fund account even though the amounts were deducted from his salary for those months. In support of this assertion, the claimant tendered his pay-slip which was admitted and marked as Exhibit C3. 17. In its defence, the defendant contended that it paid all pension contributions payable on behalf of the claimant although no document was tendered in proof that assertion. The defendant further argued that the reason for the non-remittance or irregular remittances, if any, was because the claimant submitted two or more pin numbers which made it impossible for the defendant to determine whether or not the contributions were fully remitted. Again, that no document was presented by the defendant to buttress her claim. That in contrast to the defendant’s bogus claim without any shred of evidence, the claimant tendered Exhibit C3, pay-slip for April 2013, which clearly shows that the sum of N2,023.53 was deducted from the claimant’s salary that month alone as pension. Again, the same Exhibit C3 clearly shows only one pension pin number: PEN100387125111 as the claimant’s pin number as opposed to the defendant’s allegation that the claimant has two or multiple pin numbers without proof. That it is equally instructive to note that it was the defendant who gave the claimant Exhibit C3 as evidence of his salary for the month of April 2013, ditto other months; yet the same defendant who issued Exhibit C3 (showing single pension pin number) to the claimant has now turned around to allege that the claimant submitted two or multiple pin numbers without providing those other pin numbers and the amounts in those account to convince the Court that it indeed remitted the amounts it deducted from the claimant’s salary for those months let alone evidence of the defendant’s contribution to the claimant’s pension account. 18. The claimant went on that evidence of the subpoenaed witness and the document he tendered, Exhibit C7, are in tandem with the evidence of the claimant, which strengthens the case of the claimant even further. Therefore, that the argument of the defendant that the claimant has not shown that the balance of the contributory pension has not been paid by the defendant is clearly erroneous and misdirected. That it is the defendant who claims that it paid all the contributions that has the onus to prove that it indeed paid those contributions as alleged. Section 132 of the Evidence Act 2011 provides that “he who asserts must prove the truth of his assertion”. The burden of proof is on the defendant who alleged that it has paid all the contributions as required by law to prove the truth of such assertion. Similarly, that the argument that the claimant has more than one pin number cannot avail the defendant unless and until the defendant has shown by verifiable proof that it has indeed paid into more than one pension account on behalf the claimant. Furthermore, that the lame argument that the claimant did not contact the pension fund custodian to find out whether or not the balance of the contributory pension was remitted by the defendant sound hollow as the claimant is not under any obligation to contact the pension fund custodian. In fact, that by law the claimant or indeed any other employee is not even expected to know the pension fund custodian as it is the prerogative of the employer to choose a pension fund custodian through which such employer remits the pension funds of its employees and it is the business of employer to rectify any issue of non-remittance or irregular remittances with her pension fund custodian; a task the defendant woefully failed to perform. That the defendant did not deny that the claimant complained about the irregular remittances but instead chose to play the ostrich and did absolutely nothing about it. The defendant has all the time in the world to produce evidence of such remittances before the Court or at least call the concerned pension fund custodian as a witness to show that the defendant indeed paid the contributory pension as alleged just as the claimant has done with the subpoenaed witness. 19. Finally, that the subpoenaed witness statement to the effect that he cannot categorically say that the defendant did not remit the fund complained of because the defendant does not remit the fund directly to PFA but to PFC does not in any way absolve the defendant of the obligation under the Pension Act. That once it can be shown that an employee’s pension contributions did not reflect on his statement of account with the PF A, it is the duty of the employer to ensure that the remittances so made reflect on the statement of account. That where, the employer fails to do due diligence to ensure that no such remittance is omitted (as in the instant case) such employer remains liable to the employee to the full amount still outstanding in addition to the accrued interests, urging the Court to hold that the defendant is liable to the claimant the sum equal to the balance of the contributory pension and the accrued interest thereof which the defendant deducted at source from the claimant’s salary but were not remitted to the claimant’s pension fund account. 20. Issue (c) is whether the claimant is entitled to the sum of N5,000,000.00 he claims. To the claimant, based on the arguments already canvassed in answer to issues (a) and (b) above, it has been shown that the claimant is not only entitled to compensation for permanent partial incapacity he suffered as a result of the workplace accident but also to the balance of the unremitted contributory pensions and their accrued interest. Therefore, taken together, that the claimant is clearly entitled to not only the sum of Five Million Naira claimed but to any higher amount which this Court may deem fit to award to the claimant against the defendant to redress the injustice done to the claimant by the defendant. That this Court has severally held in a plethora of decided cases that the Court has inherent powers to award a higher amount than that claimed where the justice of the case demands. That this position of the Court finds statutory approval in section 6 of the Workmen’s Compensation Act which deals with additional compensation, urging the Court to hold that the instant case is of such character that demands adequate compensation that is capable of placing the claimant in a convenient place to pick up the pieces of his broken life and move on. COURT’S DECISION 21. After a careful consideration of the processes and submissions of the parties, the claimant’s claims are principally two: The claim for N5 Million as compensation for permanent disability suffered by the claimant; and the claim for payment to the claimant of the balance of the contributory pension plus interest, which the defendant failed to remit to the claimant’s Pension Fund Administrator (PFA). In considering the merit of claim for N5 Million as compensation for permanent disability, there is the issue of when the injury complained of by the claimant occurred in order to determine not just the applicable law for recovery but ultimately the competence of the claim itself. In paragraph 8 of the statement of facts, the claimant pleaded that he accidentally sustained crush injury to his index and middle fingers while working on the production line of the defendant on Tuesday, 9th October 2012. In paragraph 8 of the claimant’s statement on oath of 13th June 2013, the claimant put the date of his injury as 9th October 2012. However, in Exhibit C6, the letter of the claimant’s solicitor dated 7th May 2013 and written to the defendant, the date of the claimant’s injury was put as 9th October 2010. And in the last but one paragraph of the first page of the claimant’s final written address, the date of the claimant’s injury was put as 9th October 2010. Now in paragraph 1 of the defendant’s amended statement of defence, the defendant generally denied paragraphs 4 to 11 (including paragraph 8) of the claimant’s statement of facts and put the claimant to the strictest proof; and in paragraph 9 stated that the “Defendant was aware that the Claimant has a minor accident at which the Claimant was immediately taken to the hospital expenses treatment”. The defendant did not, however, put any date of the claimant’s injury. Now, the case of the defendant is that it paid the claimant compensation based on the workmen compensation schedule, which in terms of its issue (1), the defendant put it as under the Workmen Compensation Act. It must be noted that even in asking for N5 Million as compensation for personal disability, the claimant did not indicate under what law he is paying for this sum. It was when the defendant stated in its final address that it paid the claimant compensation fully under the Workmen Compensation Act, that the claimant reacted by saying that even under that Act, the defendant has not paid him fully his compensation. So when did the claimant’s injury occur? If it occurred on 9th October 2010, then the applicable law will be the Workmen’s Compensation Act given that the Employee’s Compensation Act (ECA) 2010, which repealed and replaced the Workmen’s Compensation Act, came into effect on 17th December 2010. The Supreme Court in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 held that the law applicable to a cause of action is the law as at the date the cause of action arose, which if the claimant’s injury occurred on 9th October 2010 will be the Workmen’s Compensation Act. But if the injury occurred on 9th October 2012, the applicable law will be the ECA 2010. Both the defendant and the claimant argued as if the applicable law to this case is the Workmen’s Compensation Act. Chaquary v. Yakubu [2006] 3 NWLR (Pt. 966) 138 decided that by section 25(1) of the Workmen’s Compensation Act, where the injury was caused by the personal negligence or willful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of the Act. The problem, however, is that in his pleadings, the claimant in claiming for compensation did not indicate whether it is under the tort of negligence or under the Workmen’s Compensation Act. All we have is that in his final written address, and as a reaction to the submissions of the defendant, the claimant submitted as per his issue (a) that the compound reading of sections 3, 5 and 7 of the Workmen’s Compensation Act clearly shows that an employer is liable to pay as compensation to the injured workman, a sum equal to 54 months’ earnings of such employee in case of permanent incapacity; whether partial or total. That in the instant case, it is not in doubt that the claimant suffered permanent partial disability or incapacity as a result of the accident. That what is, however, in contention is whether the N61,740.00 paid to the claimant by the defendant after the accident should qualify as compensation as contended by the defendant or simply be seen as sick pay as alleged by the claimant. I still have not resolved the issue of when the claimant’s injury arose in other to determine the applicable law. Exhibit C6 is a letter written by the claimant’s solicitor, which letter I presume was written based on the instruction and briefing of the claimant. Its content will be nothing more than what the solicitor perceives as that which the claimant told him. In this sense, Exhibit C6 is no more than documentary hearsay as far as the issue of the date of the claimant’s injury is concerned. As documentary hearsay, that piece of evidence would be inadmissible and have no probative value. This is because hearsay evidence, oral or documentary, is inadmissible and lacks probative value. See section 37(b) of the Evidence Act 2011 as well as Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1 at 317 and Doma v. INEC [2012] All FWLR (Pt. 628) 813 at 829. This being the case, the claimant’s direct pleadings and the supporting statement on oath are more direct and believable, coming as it were from the horse’s mouth. It is accordingly my finding and hence holding that the claimant’s injury occurred on 9th October 2012 as pleaded and deposed to by the claimant himself. This being the case, the applicable law would be the ECA 2010. This means that the arguments of both the defendant and the claimant that compensation is to be determined under the Workmen’s Compensation Act is wrong; and I find and hold. The ECA, however, allows a claimant to elect to either claim compensation under it or claim in negligence under the common law. Now, one thing certain is that the claimant in the instant suit did not claim under negligence. The pleadings of the claimant do not support any claim in negligence. Other than pleading that he was injured while working for the defendant, no particulars of the defendant’s negligence are given to ground an action in negligence. From the pleadings, the claimant is merely praying for compensation for permanent disability (he would even later state this to be permanent partial disability). In Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015, this Court held thus: …The ECA 2010 in section 12 makes a distinction between claiming compensation and filing an action. The claimant is not claiming for compensation under the ECA 2010 but in tort for negligence. Section 12(1) and (3) of the ECA 2010 provides as follows – (1) The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies. (3) Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee's dependant may claim compensation or may bring an action and if the employee or dependant elects to claim compensation, the employee or dependant shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependant to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death. A composite reading of these provisions shows that a claimant may elect to claim compensation under the ECA 2010 or bring an action. It is where the claimant elects to claim compensation under the ECA 2010 that any talk of limitation of action under the Act can be raised. In Amina Hassan v. Airtel Networks Ltd & anor unreported Suit No. NICN/LA/471/2012 the ruling of which was delivered on 11th February 2015, His Lordship Hon. Justice B. A. Adejumo, PNICN had cause to interpret section 12 of the ECA 2010. Relying on Femi Aborisade’s “Reflections on Employees’ Compensation Act, 2010” in Bimbo Atilola (ed.) – Themes on the New Employees’ Compensation Act (Hybrid Consult), 1st Edition, 2013 at page 35, His Lordship came to the same conclusion. Since in the instant case the claimant is not claiming in negligence, the claim under the ECA would mean a claim to the appropriate body, the Nigeria Social Insurance Trust Fund (NSITF) Management Board, under the ECA and not in this Court. By sections 21 and 22 of the ECA, it is the NSITF Management Board that determines what is payable for permanent total disability (section 21) or permanent partial disability (section 22). It is when the claimant is not satisfied with the outcome of his claim under the ECA that he can appeal to this Court after exhausting all the appeal processes of the ECA. All of this the claimant did not do. He instead came to this Court. To my mind, the claimant is inappropriately before this Court. He will need to exhaust the claim processes of the ECA, and their prerequisites, before he can come to this Court as far as his claim for N5 Million as compensation for permanent disability (or is it permanent partial disability?) is concerned. This being so, I hold that the claimant is prematurely before this Court as far as the claim for N5 Million is concerned. The claim for N5 Million as per reliefs (1) and (3) is accordingly incompetent and so is liable to be struck out. Reliefs (1) and (2) are hereby struck out. This leaves out reliefs (2) and (4), the claim for payment to the claimant of the balance of the contributory pension plus interest, which the defendant failed to remit to the claimant’s PFA. I must first of all point out that the Pension Reform Act, whether of 2004 or 2014, does not envisage the payment of pension directly to an employee by the employer. This means that the claim by the claimant that the pension contribution not remitted by the defendant should be paid directly to him cannot to that extent be granted. Since payment can only be made to an employee’s PFA, if the claimant proves his case, the order the Court can make must necessarily be in terms of payment to the claimant’s PFA. The defendant had contended that the claimant did not furnish sufficient material facts to show that the balance of his contributory pension has not been paid. In Honk Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA, however, it was held that as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. From this case law authority, the duty is on the defendant, not on the claimant, to prove that the balance of contributory pension of the claimant has been paid by the defendant. It is the defendant that has the duty to make the payment; as such the burden of proof that payment was made lies on the defendant. The argument of the defendant that the claimant has two PINs and hence two pension accounts for which he tendered only one goes to no issue as it is for the defendant to prove where (into what account) it paid the pension contribution of the claimant. Equally a non-issue is the argument of the defendant that the claimant did not prove that he contacted the pension fund custodian to find out whether or not the balance of contributory pension was remitted by the defendant prior to the institution of this suit. All of this does not take away the duty placed on the defendant to prove that it paid, and to who it paid, the claimant’s contributory pension. The defendant itself referred to section 57(a) of the Pension Reform Act (PRA) 2004, which imposes the duty on the pension fund custodian to receive the total contributions remitted by the employer on behalf of the pension fund administrator. By this section, remittances are by the employer, the defendant in the instant case. The further argument of the defendant that section 11 of the PRA enjoins only one pension account, not two or more, does not still take away the duty placed on the defendant to show which account it paid pension contribution of the claimant into. Since the defendant did not show to this Court that it paid all the claimant’s contributory pension to the claimant’s PFA, reliefs (2) and (4), but not as to interest, must necessarily succeed and are hereby granted. Exhibit C7 as well as the testimony of CW2 all show the gaps in the payment of contributory pension of the claimant by the defendant. Though the claimant did not give a sum for the contributory pension not paid by the defendant, this is not fatal to his claim as per reliefs (2) and (4) given that the Supreme Court has enjoined Courts to exercise their equitable jurisdiction in making appropriate consequential orders to give life and meaning to judgments. See Hon. Chigozie Eze & ors v. Governor of Abia State & ors [2014] LPELR-23276(SC) where the Supreme Court ordered the payment of 23 months’ salary to the claimants even when the quantum of the salary was not proved or shown to the Court. On the whole, the claimant’s case succeeds only in terms of reliefs (2) and (4), but not as to interest, given that reliefs (1) and (3) have been struck out for being prematurely before this Court. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD