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The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 3rd July, 2015 and dated 2nd July, 2015, against the defendant for the following reliefs: 1. An Order directing the defendant to pay into the claimant's Transit Account with First Custodian Pension Limited the sum of Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) being the unremitted Pension Contribution plus penalty of the defendant's employees by the defendant for the years 2008, 2009, 2010, 2011 and 2012 for collation and eventual remittance into the respective Retirement Savings Accounts of the defendant's employees. 2. Interest on the said sum of Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) at the rate of twenty one percent (21%) per annum from 1st January, 2013 until the date of judgment in this suit. 3. Interest at the rate of ten percent (10%) per annum on the judgment sum and interest from the date of judgment until full compliance with terms of the judgement. Claimant's Case The Claimant averred that the defendant is an employer of labour with over five persons in its employ and is required under the law to contribute to the contributory Pension Scheme under the statutory supervision of the claimant; and that the defendant's employees are required under the law to maintain a Retirement Savings Account (RSA) in their respective names with Pension Fund Administrator of their choice. The Claimant stated that the defendant's failure, refusal and or neglect to remit the Employee's Contribution and Employer's contribution into the designated Retirement Savings Accounts of the defendant's employees prompted the claimant to appoint Messrs Orok Oyo and Associates as Recovery Agent to recover the non-remitted pension contribution from the defendant. The Claimant averred that it does not require the authorization and or the endorsement of the defendant to enforce compliance with the provisions of the Pension Reform Act, 2004 by the employees of the defendant, the claimant's Recovery Agent or the claimant itself. The Defendant filed STATEMENT OF DEFENCE AND COUNTERCLAIM on 27th July, 2015 and dated 23rd July, 2015. Responding to paragraph 3 of the Statement of Facts, defendant averred that she is an employer of labour with less than 5 persons in its permanent employ and is not required under law to contribute to the Contributory Pension Scheme under the statutory supervision of the claimant. Furthermore, that its employees are not required under law to maintain a Retirement Savings Account (RSA) in their respective names with any Pension Administrator. Defendant stated that the claimant's claims/case lacks merit and substance as it is frivolous, speculative, misleading, fraudulent and mischievous and only an attempt at gold-digging and as such, should be dismissed in its entirety with substantial cost. Defendant averred that the claimant's averment that the total non-remitted pension contribution by the defendant for the period 2008 - 2012 amounts to Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) only does not hold water against the defendant since the defendant is not within the jurisdiction of the operations of the claimant. Thus, the defendant cannot pay what it does not owe the claimant. COUNTERCLAIM Whereof the defendant counterclaimant claims the total sum of One Hundred Million Naira (#100,000,000.00) only as damages in the following order: a. #5,000,000.00 only being cost of litigation from claimant frustration on defendant/counterclaimant slim resources. b. General damages assessed at #95,000,000.00 only. At the trial the claimant called one witness One Daniel Jonah a Law clerk with the Claimants Licensed recovery agents who testified as CW, adopted his written statement on oath and further statement on oath of 3rd July 2015 and 14th September 2015 which were marked Exhibits C1 and C2 respectively and proceeded to tender seven (7) other exhibits. Under cross examination CW testified that by Exhibit C3 his appointment as recovery agent and that he had not tendered in court any document to show his agency had been renewed or his company’s service contract. In response to the question that he compiled Exhibit C4 and C5 whether he was aware that the defendant had less than 4, or 3 permanent staff, CW replied that he compiled the exhibits from the salary vouchers supplied to him by the defendants. CW rejected the question that C4 contained names of Disengaged staff with the retort that “..if they were disengaged their names would not have come into the salary vouchers for those months”. Under re-examination CW testified that he had completed his assignment within the 6 month of his appointment. The defendants called one witness Asiquin Egbe the General Manager of the defendants who testified as DW adopted his written statement on oath of 27th July 2015, which was marked Exhibit D1.Under cross examination DW testified that he was employed as a Receptionist in 2008 and at that time they had about eight staff of which four were casual staff; some were on industrial attachment others were on NYSC Corpers and that as at the date of trial they had 12 employees. At the end of trial parties were directed to file their final written addresses in line with the rules of this court. The DEFENDANT'S FINAL WRITTEN ADDRESS filed on 18th July, 2016 and dated same day. Wherein the defendant raised the following issues: 1. Whether the recovery agent of the claimant had a valid authority of the claimant to act for and on behalf of the claimant after the expiration of six (6) months without renewal by the claimant in the circumstance of this case. 2. Whether the claimant is entitled to the reliefs sought before this Honorable Court as the defendant was not qualified to participate in the compulsory contribution pension scheme. ON ISSUE 1 Whether the recovery agent of the claimant had a valid authority of the claimant to act for and on behalf of the claimant after the expiration of six (6) months without renewal by the claimant in the circumstance of this case. Learned Counsel for the Defendant A. E. Ekpe Esq. submitted that parties are bound by the terms of their written agreement and the court will not allow anything to be read in such agreement, terms on which parties are not in agreement. LARMIC v. D.P.M.S. (2006) 3 MJSC 24 HELD 3 ON ISSUE 2 Whether the claimant is entitled to the reliefs sought before this Honorable Court as the defendant was not qualified to participate in the compulsory contribution pension scheme. Learned Counsel for the defendant submitted that the law is settled that an unsigned document is nothing more than a worthless piece of paper. ANYAOHA v. OBIOHA (2014) 6 NWLR (PT. 1404) RATIO 7; OJO v. ADEJOBI (1978) NSCC 161. Thus, that Exhibits C-4 and C-5 are unsigned documents by the author and maker, Orok & Associates, of which the Court cannot rely on them. Furthermore, that the said exhibits bear no date of execution or date when they came into operation and are invalid and unenforceable in law. AMIZU v. NZERIBE (1989) 4 NWLR (PT. 118) 755. The CLAIMANT'S FINAL WRITTEN ADDRESS was filed on 12th August, 2016. Wherein the claimant formulated the following three (3) issues 1. Whether the defendant is entitled to challenge the authority of the claimant's Recovery Agent to act on behalf of the claimant. 2. Whether the claimant has made out a case to be entitled to the reliefs sought in this suit. 3. Whether the defendant's Counter Claim has any merit in the circumstances of this case. ON ISSUE 1 Whether the defendant is entitled to challenge the authority of the claimant's Recovery Agent to act on behalf of the claimant. Learned Counsel for the claimant G. E. Ukaegbu Esq. submitted that the defendant is a stranger to Exhibit C3 and therefore not entitled to enquire into its deficiencies or enforceability. CRSWB v. NCE LIMITED (2007) WRN VOL. 18 132 @ 152; OGUNDARE v. OGUNLOWO (1997) 6 NWLR (PT. 509 @ 360, per Onu, JSC @ P. 371. He submitted that the defendant sought to invite the Court to interpret or enforce the contract between the claimant and its Recovery Agent but the law of privity of contract unequivocally precludes a stranger to a contract from suing or seeking to enforce the contract. F.A.T.B. LTD v. PARTNERSHIP INV. CO. LTD. (2001) 1 NWLR (PT. 695) 517. Claimant’s Counsel opined that it is obvious from Exhibits C8 and C9 and the testimony of CW1 who is a Law Clerk with the claimant's Recovery Agent, that by conduct, the parties to Exhibit C3 varied their contract with regards to the requirement for renewing the appointment of the Recovery Agent on a half year basis and the execution of a Service Level Agreement (SLA). UINON BEVERAGES LIMITED v. OWOLABI (1988) 1 NWLR (PT. 68) 128 @ 167. ON ISSUE 2 Whether the claimant has made out a case to be entitled to the reliefs sought in this suit. Claimant Counsel submitted that the case of Amizu V. Nzeribe (1989) 4 NWLR (PT. 118) 755 cited by defendant in paragraph 3.21 (i - iii) of her Written Address is inapplicable to the facts of this case as the subject matter of the said case was in respect of a Sale Agreement that was not endorsed as required by Sec. 3 of the Illiterates Protection Law. Counsel to the Claimant also submitted that this Court can depart from applying the provisions of Sec. 83 of the Evidence Act, 2011 to the facts of this case in the interest of justice. SALEH v. MUNGUNO (2006) 15 NWLR (PT. 1001) 26; OLOBA v. AKEREJA (1988) 3 NWLR (PT. 84) 508. He argued that the witness failed to inform the Honorable Court how many of the twelve employees were permanent and casual staff, therefore, that the testimony of DW1 on the defendant's number of staff is inconsistent and should be disbelieved. EZEMBA v. EGBUCHE (2013) LPELR-22512. Counsel pointing out that the defendant admitted that the names on Exhibit C4 were members of the defendant's staff who had been disengaged and no longer working for the defendant, submitted that this amounts to admission against interest and should be so treated by the Honorable Court. ODI v. IYALA & ORS. (2004) 8 NWLR (PT. 875) 283. He submitted that the claimant has proved the failure of the defendant to remit the contributory pension of its employees as contained in Exhibits C4 and C5 for the years 2008, 2009, 2010, 2011 and 2012 and is entitled to the judgement of this Honorable Court. DIBIAMAKA v. OSAKWWE (1989) 3 NWLR (PT. 107) 101; EGWA v. EGWA (2007) 1 NWLR (PT. 1014) 17. ON ISSUE 3 Whether the defendant's Counter Claim has any merit in the circumstances of this case. Counsel to the Claimant submitted that a counter-claim is a separate, independent and distinct action and the counter-claimant, like all other claimants in an action, must prove his claim against the person counter claimed against before obtaining judgement on the counter-claim. JERIC NIG. LTD. v. UNION BANK PLC (2000) 15 NWLR (PT. 691) 47. He submitted that the defendant completely failed to prove its counter claim as it failed to establish the existence of the "claimant's frustration on its slim resources". ENEMCHUKWU v. OKOYE & ANOR. (2016) LPELR 40027. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination formulated by the claimants to my mind better addresses all the questions raised in this suit and as such shall be adopted as the issues for determination in this suit . For avoidance of doubt the issues for determination in this suit, I find, are as follows 1. Whether the defendant is entitled to challenge the authority of the claimant's Recovery Agent to act on behalf of the claimant. 2. Whether the claimant has made out a case to be entitled to the reliefs sought in this suit. 3. Whether the defendant's Counter Claim has any merit in the circumstances of this case. Before I address the issues at hand it is necessary to clarify the allusions made by both parties during trial as to which of Pension Reform Acts is applicable to this suit. By His Lordship Rhodes-Vivour, JSC of the Supreme Court in OBIUWEUBI Vs. CBN [2011] 7 NWLR (PT. the position is as follows; as it relates to the determination of a cause of action, that it is the law in existence at the time the cause of action arose that will apply. But as to determining jurisdiction, it is the law that is in existence as at the time trial commenced that would apply. This means that is the Pension Reform act 2004. Would be the law that would determine this cause of Action being the Act in force when the cause of action arose and in this suit I find that the cause of action being the non-remittance of pension contribution for 2008-2012as a claim arising between 2008-2012 arose during the pendency of the Pension Reform Act 2004 and as such that law applies. Now the 2014 Act repealed and reacted parts of the 2004 Act, it is the 2014 Act by OBIUWEUBI Vs. CBN Supra that would determine to the Court which of the matter would be brought post 2014. Another subject I wish to address is the misconception of the defendant that they, the defendants are required by law to choose or authorize their staff to select a Pension Fund Administrator (PFA). By the law, Pension is a constitutional issue and that being the case the law only requires the employer to make deduction and not authorize their workers to open Retirement Saving Accounts with PFA’s. The law requires deduction from both the employee and employers See 9(1)(c) of the Pension Reform Act No. 2 of 2004.; and the act give the right to chose a Pension Fund Administrator (PFA) to the employee and not the employer see section 11 (3) PRA Act. Back to the issue for determination With regard to issue 1; whether the defendant is entitled to challenge the authority of the claimant's Recovery Agent to act on behalf of the claimant. The adversarial system of jurisprudence permits the defendant to challenge all and every aspect of the claimant’s case. But whether the defendant in this case has raised a successful challenge is what the court is required to determine. It is the duty of the defence counsel to highlight these contradictions and give the witness an opportunity to explain them See PETER Vs. THE STATE (2013) LPELR-20302(CA). The defendant contention is that CW’s contract was for six months only and that the claimant did not produce any evidence that his contract was actually renewed. To the defendants CW no longer had the valid authority of the claimant to act for and on behalf of the claimant after the expiration of six (6) months. During re-examination CW testified that he had completed his assignment within the 6 month period granted to him. Which means that CW had collated the information and data required in Exhibit C3 and 4 within the 6 months of his contract. The evidence of CW was namely with the effect that he obtained from the defendants their salary voucher from which he admitted compiling Exhibits C4 and C5. That being the case I find that the defendants challenge on this court is of moment and is hereby dismissed. I resolve this issue for the claimant With regard to issue 2; Whether the claimant has made out a case to be entitled to the reliefs sought in this suit. In the suit the claimant sought the following: 1. An Order directing the defendant to pay into the claimant's Transit Account with First Custodian Pension Limited the sum of Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) being the unremitted Pension Contribution plus penalty of the defendant's employees by the defendant for the years 2008, 2009, 2010, 2011 and 2012 for collation and eventual remittance into the respective Retirement Savings Accounts of the defendant's employees. 2. Interest on the said sum of Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) at the rate of twenty one percent (21%) per annum from 1st January, 2013 until the date of judgement in this suit. 3. Interest at the rate of ten percent (10%) per annum on the judgement sum and interest from the date of judgment until full compliance with terms of the judgement. The defendant had raised the argument that Relief 1 and 2 are for an Order directing the defendant to pay into the claimant's Transit Account with First Custodian Pension Limited the sum of Two Million, Three Hundred and Seventy Two Thousand, Seven Hundred and Seventy One Naira, and Twenty Four Kobo (#2,372,771.24) being the unremitted Pension Contribution plus penalty of the defendant's employees by the defendant for the years 2008, 2009, 2010, 2011 and 2012 for collation and eventual remittance into the respective Retirement Savings Accounts of the defendant's employees and an order for incidental interest. In support of this relief the claimant tendered Exhibit C4 and C5. C4 is a compilation of 17 of the defendants staff for the years of 2008-2012 indicating their Pension Fund Administrators due deductions on their salaries and the penalty. While Exhibit C5 is a computation of the yearly deductions and penalties. First of all the claimant is praying this Court to order that the said pension contributions due to him be paid to his Transit Account. Now where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to any other person even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004 (note that as relates to this case, the cause of action is as governed by the 2004 pension Reform Act, not the 2014 Act, because the cause of action arose prior to the coming into force of the 2014 Act ) fall under this rule. This Court cannot, therefore, accede to that aspect of the claimant’s prayer that the said pension contribution be paid to such transit account. Furthermore the claimant’s C4 listed details of the employees PFA’s. In addition CW gave evidence that he compiled these exhibits from the salary vouchers supplied to him by the defendants. The defendants have submitted that these exhibits are neither dated nor signed. The position of the law is that an undated letter by OGHAHON V. REG. TRUSTEE CCGG [2001] FWLR (PT. 80) 1496; [2002] NWLR (PT. 749) 675, an undated letter is invalid except proved by oral / parole evidence the date left out; and even though the witness CW testified that he had completed his assignment within six (6) months of his contract that is within 6 months of the issuance of CW3, the documents were also unsigned and in law by EDILCO (NIG.) LTD V. UBA PLC [2000] FWLR (PT. 21) 792, an unsigned but certified true copy of a document will not be conferred with any evidential value. See also AKINOLA AWONIYI V. HON. RAHEEM ALESHINLOYE & 5 ORS [1998] 9 NWLR (PT. 564) 71 and ISALIBAWA V. HABIBA [1991] 2 NWLR (PT. 174) 461. This means that Exhibit C4 andC5, which are not signed although duly certified, have no evidential value for purposes of this judgment. While it is true that this Court can depart from the Evidence Act when the interest of justice demands, this has never been the case where the authenticity of a document is in issue. And unsigned documents call in to question their authenticity. MRS. TITILAYO AKISANYA V. COCA-COLA NIGERIA LIMITED & 2 ORS UNREPORTED SUIT NO. NICN/LA/40/2012 the judgment of which was delivered on 7th April 2016. –Furthermore bearing in mind the evidence of the maker of these documents CW, that these exhibits were compiled from salary vouchers supplied by the defendants and considering that in this court, with regard to excerpts and annexes of documents frontloaded by the parties without showing to the Court the fuller documents from which they were extracted are perfunctorily discountenanced. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 . the judgment of which was delivered on 22nd July 2013, In like manner this Court reasoned that because the complete set of the documents wherefrom the exhibits were extracted were not shown to the Court in order to ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value, Exhibits C4 and C5 in the instant case, in being an analysis made from the salary voucher, the said salary vouchers which were no tendered before this court I find Exhibits C4 and C5 have no evidential value and are so hereby discountenanced for purposes of this judgment. See also the unreported case of SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014. The defendants also argued that only three of the listed staff were actual permanent staff apart from the pleadings that the defendant were not covered by the Pension Reform Act and then the testimony of DW to the effect that their staff list was made up of NYSC Corpers and Industrial Attachment /Interns, there is nothing before the court to establish the fact that the defendants staff were such NYSC and IT workers. Relief 3, is a contingent relief for interest at the rate of ten percent (10%) per annum on the judgement sum until full compliance with terms of the judgement. In the circumstance I find that neither the claimant not the defendant have put before the court any reliable evidence on which to resolve this suit. I will come back to this point later on in this judgement. The third issue relates to the defendants counter claim for One Hundred Million Naira (#100,000,000.00) only as damages in the following order: a. #5,000,000.00 only being cost of litigation from claimant frustration on defendant/counterclaimant slim resources. b. General damages assessed at #95,000,000.00 only. And the issue is actually; whether the defendant's Counter Claim has any merit in the circumstances of this case. I agree with the claimant that a counter-claim is a separate, independent and distinct action and like all other claimants in an action, the defendant/ counterclaimant must prove his claim against the person counter claimed. In the circumstances the counterclaimant have not led any evidence as to the damages they suffered or how they came about N100, 000,000.00 or as to their ‘frustration’ not to mention their ‘slim resources’ for whatever that is worth, neither have they shown any evidence as to their cause to litigation as required by law. See SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC). For the above lack of evidence the counter claim fails and is hereby dismissed Back to the findings of this court that neither party have adduced any reliable evidence, at this stage the court is required to enquire from the parties as to what is the proper order to make in the circumstances. Striking out or non-suiting the claimant or the court make an order that the defendant supply the claimants with a notarized nominal roll, together with the various letters of appointment of all staff to enable the claimants properly calculate their incidental commitment to the named PFA. Ukaegbu: We urge the court to non-suit the Claimant on the circumstance. Akpe: The Court should strike out the suit. If the Claimants are interested, they can refile. I have heard the learned Counsel to the Claimant and learned Counsel to the Defendant accordingly, the Claimant is hereby non-suited. This is the judgment of the Court and it is hereby entered. ……………………………………….. Hon. Justice E. N. Agbakoba Judge