Download PDF
JUDGMENT 1. The claimant filed this action on 11th December 2015 vide a General Form of Complaint accompanied by the statement of facts, list of witness, statement on oath of the claimant, list of documents and copies of the documents (Exhibits C1 to C6). By the statement of facts, the claimant is claiming against the defendant the following reliefs – a) A declaration that the deduction of the sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira only) by the defendant from the claimant’s remuneration package for a period of four (4) years is illegal and unlawful. b) A declaration that failure of the defendant to make a mandatory contribution to the claimant’s Pension Manager (LEADWAY PENSURE PFA LIMITED) from the year 2009 to the year 2013 is a violation of the provisions of sections 11(7), 89 & 90 of the Pension Reform Act 2004. c) The sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira only) against the defendant being the claimant’s transport allowance illegally deducted by the defendant from the claimant’s remuneration package from the year 2009 to the year 2013. d) An order directing the defendant to remit all the outstanding mandatory contribution belonging to the claimant to LEADWAY PENSURE PFA LIMITED. e) The sum of N1,000,000.0 (One Million Naira only) against the defendant being the cost of legal services incurred by the claimant in litigating this suit. 2. The defendant did not enter any appearance or file any defence process; as such based on the minimal evidence rule, the claimant testified for herself as CW in order to prove his case. 3. The claimant was an employee of the defendant having been employed vide Exhibit C1 with remuneration as per Exhibit C2. Part of her remuneration was transport allowance at N600,000 per annum, which sum was deducted from her remuneration by the defendant for the years 2009 to 2013. The pay slip showing this deduction is Exhibit C3. The defendant informed the claimant that the purpose of deducting the transport allowance was to enable the defendant buy her a brand new car, which the money was meant to buy. The defendant did not buy the car, nor did it refund the money to her. In addition, the defendant did not remit the mandatory contribution to the claimant’s Pension Manager (LEADWAY PENSURE PFA LIMITED) while she was in the defendant’s employment. On 15th July 2013, the claimant resigned her appointment with the defendant but effective from 13th August 2013 having served one month’s notice (Exhibit C5). It is to recover these sums that the claimant fled this action. 4. The claimant framed two issues for the determination of the Court, namely: (i) Whether failure of the defendant to file a defense, having been given ample opportunity does not amount to admission. The argument of the claimant here is that since the defendant did not enter any defence, her evidence is unchallenged, which should accordingly be accepted by the Court and used as such, citing Mani v. Shannon [2006] 4 NWLR (Pt. 969) 132 at 1567 and Consolidated Reg. Ltd v. Abofar Ven. CN 15 Ltd [2007] 6 NWLR (Pt. 1031) 221 at 231. (ii) Whether the claimant has discharged the onus placed on her having regard to the totality of her pleading and evidence tendered. Citing section 131(1) and (2) of the Evidence Act 2011, the claimant conceded that the burden of proof lies on her; but that given her oral and documentary evidence (6 exhibits), which was not challenged, she must be held to have proved her case, citing inter alia Ajidahun v. Ajidahun [2004] 4 NWLR (Pt. 654) 605 and NIPOST v. Irbok (Nig.) Ltd [2006] 8 NWLR (Pt. 982) 232. On the claim for pension contribution, the claimant cited sections 11(5) and (7) of the Pension Reform Act 2004, which enjoins an employer to make pension deductions and remit same to the requisite Pension Fund Administrator (PFA). For the claim of cost of legal services she incurred, the claimant referred to Exhibit C6, the letter of demand she sent to the defendant. The claimant concluded by urging that all her claims be granted. 5. The issue before the Court is whether the claimant has proved her case for the grant of the reliefs she prays for. Her sworn deposition which she adopted is in terms of the statement of facts. Exhibit C1 is the letter of employment dated 16th June 2009. Her remuneration package is Exhibit C2. In it, she is entitled to N600,000 per annum as transport allowance, which as indicated, is deductible for two years and terminal thereafter. Exhibit C3 is the claimant’s pay slip for April 2010. It shows transport allowance to be N50,000 but there is a column sated as Car Loan Deduction for which N50,000 is deducted. Effectively, what this means is that the transport allowance the claimant is entitled to, was not given to her; instead it was deducted as car loan. If N50,000 is multiplied by 12 months what we have is N600,000. The point is that this N600,000 yearly transport allowance was not given to the claimant; instead it was deducted as car loan. By paragraphs 4 to 7, 10 and 11 of the claimant’s sworn deposition, the claimant deposed that the defendant deducted N600,000 per annum from her remuneration from 2009 to 2013 (when she resigned vide Exhibit C5) on the understanding that the total sum of the deduction would be used to buy her a brand new car, which car was not bought nor the money refunded to her. I believe the testimony of the claimant and it is supported as I have shown by the exhibits tendered. Reliefs a) and c) are accordingly grantable. I so find and hold. A similar claim was made in this Court in earlier cases, which succeeded. See, for instance, Mr. Iroko A. Lateef v. Global Fleet Oil & Gas Ltd [2014] 48 NLLR (Pt. 155) 111 and Mr. Olubayo Adeyemi v. Global Fleet Ltd [2013] 35 NLLR (Pt. 105) 384 NIC. 6. Additionally, Exhibit C3 shows monthly pension deduction to be N6,250. In paragraph 8 of the claimant’s sworn deposition she deposed that the defendant did not remit the mandatory contribution to her Pension Manager (LEADWAY PENSURE PFA LIMITED). Exhibit C3 shows pension deduction but there is no evidence before the Court that the said pension deduction was remitted by the defendant. Paragraph 8 of the claimant’s statement of facts is quite categorical in asserting that the defendant did not remit mandatory contribution to the claimant’s Pension Manager (LEADWAY PENSURE PFA LIMITED). There is no denial of any sort from the defendant. I accordingly believe the testimony of the claimant that the defendant did not remit the pension deductions it made from the claimant’s salary for the period 2009 to 2013 to the claimant’s PFA. I hold therefore that the claimant has proved her case in this regard. Reliefs b) and d) are accordingly grantable. See, for instance, Mr. Iroko A. Lateef v. Global Fleet Oil & Gas Ltd [2014] 48 NLLR (Pt. 155) 111 and Mr. Olubayo Adeyemi v. Global Fleet Ltd [2013] 35 NLLR (Pt. 105) 384 NIC. 7. Relief e) is a claim for N1,000,000.00 being cost of legal services incurred by the claimant in litigating this suit. The evidence the claimant relies on for this claim is Exhibit C6, the demand letter from her counsel to the defendant. This is not good enough evidence for the grant of cost of legal services, a claim that is for special damages, which must be strictly proved through compelling evidence if it is to be granted. See BB Apugo & Sons Ltd v. OHMB [2016] LPELR-40598(SC). Relief e) according fails and so is hereby dismissed. 8. As it is, therefore, and for the reasons given, the claimant’s case succeeds in part and in the following terms: 1) It is hereby declared that the deduction of the sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira only) by the defendant from the claimant’s remuneration package for a period of four (4) years is illegal and unlawful. 2) It is hereby declared that the failure of the defendant to remit the mandatory contribution to the claimant’s Pension Manager (LEADWAY PENSURE PFA LIMITED) from the year 2009 to the year 2013 is a violation of the provisions of sections 11(7), 89 & 90 of the Pension Reform Act 2004. 3) The defendant is to pay to the claimant the sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira only) being the claimant’s transport allowance illegally deducted by the defendant from the claimant’s remuneration package from the year 2009 to the year 2013. 4) The defendant shall remit all the outstanding mandatory contributions belonging to the claimant to LEADWAY PENSURE PFA LIMITED. 5) The orders just made are to be compiled with within 30 days of this judgment. 9. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD