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JUDGMENT 1. The claimant commenced this action by a complaint filed on 22nd August 2016 and accompanied with the statement of facts, list of witnesses, witness statement, list of documents to be relied upon at trial and copies of the documents. By the complaint and statement of facts, the claimant is claiming against the defendant the following reliefs: (i) A declaration that the defendant had by its failure, neglect and refusal to remit its employees' and its own counterpart portion of the monthly pension contributions to the respective employees’ Retirement Savings Accounts with their Pension Fund Administrators is in a flagrant breach and in violation of both the Pension Reform Act, 2014 and the 1999 Constitution of the Federal Republic of Nigeria (as amended). (ii) A mandatory Injunction restraining the defendant from sanctioning or taking any action, measure and/or directive of any nature that would culminate in or is likely to result in further non-remittance and/or non-payment of pension obligations to any of its employees, including those that had complained to the claimant. (iii) An order directing the defendant to furnish to the claimant complete evidence of remittance and to always remit the employer and employee portion of the contributory pension in line with the provisions of the Pension Reform Act, 2014 with the attendant schedules. (iv) An order directing the defendant to pay all outstanding monthly employer & employee pension contributions of its former and current employees at the rate of 75% respectively up till June, 2014 and from hence at the rate of 10% and 8% respectively plus 2% interest penalty on the sums due to each employee in line with the Pension Reform Act, 2014. (v) General, exemplary and/or aggravated damages in the sum of Five Million Naira (N5,000,000.00) only for the Defendant's willful failure, neglect and/or refusal to remit the appropriate employer and employee portions of the contributory pension into the respective Retirement Savings Accounts of its employees. 2. A counsel appeared for the defendant on the first day this suit came up in Court. Thereafter, no counsel came to Court for the defendant. No formal appearance was entered for the defendant; and no defence processes were filed for the defendant. The suit is essentially undefended although Loius Henshaw, a Manager with the claimant, testified as CW for the claimant and tendered Exhibits C1 to C5. Since the defendant did not put in any defence, the claimant was allowed to file its final written address, which it did on 13th September 2018. THE CASE BEFORE THE COURT 3. The claimant brought the action pursuant to its powers under the Pension Reform Act 2004 (as amended) and following several complaints of non-remittance of pension contributions made by present and former employees of the defendant into their Retirement Savings Account. Specifically, the claimant received a written complaint from one Mr Ayinde Oladimeji, a former employee of the defendant, who was employed with the defendant from October 2007 to January 2010 when he resigned his employment with the defendant. Mr Ayinde had alleged that his pension contributions were remitted into his Retirement Savings Account only once during his employment with the defendant despite making deductions from his monthly salary. Following the complaints made by Mr Ayinde, the claimant, in line with its mandate under the Pension Reform Act 2004 (as amended), engaged the defendant on the issue of non-remittance of the outstanding pension contributions due to its employees under the Contributory Pension Scheme. The engagement of the defendant by the claimant included the issuance of several letters to the defendant drawing its attention to the complaint made by Mr Ayinde. The claimant demanded that the defendant remits all outstanding contributions due to its employees/ex-employees from January 2005 till date along with remittance of interest penalty for late remittance of the principal contributions in accordance with the Pension Reform Act 2004. The engagement also included the issuance of letters of caution, sanction and a pre-action notice to the defendant. Despite these administrative steps taken by the claimant to ensure the compliance of the defendant, the defendant remained recalcitrant and failed to respond to any of the letters issued by the claimant prior to the institution of this suit. THE SUBMISSIONS OF THE CLAIMANT 4. The claimant submitted a sole issue for determination i.e. whether the claimant has proven or established a case or any entitlement to the claims sought against the defendant to enable this Honourable Court grant the reliefs stated. To the claimant, the law is trite that where a party seeks to persuade the Court to accept a certain state of affairs, it must prove same, referring to Abdullahi v. Hashidu [1994] 4 NWLR (Pt. 600) 638 at 646. That to be entitled to the claims, the claimant needs to prove the following facts in evidence: the specific particulars, without doubt, of his entitlement; evidence linking his entitlements to the claims he seek; and evidence linking his claims against the targeted parties. It is the claimant’s contention that it established the specific facts that ground the claim for the reliefs contained in the suit; that it also established that it was entitled to the claims sought and that the defendant is responsible for the default that occasioned the institution of the action. That the claimant was established under the Pension Reform Act 2004 (as amended) to regulate, supervise and ensure the effective administration of pension matters in Nigeria. The claimant, by virtue of section 23(a) of the Pension Reform Act 2014, supervises the Contributory Pension Scheme which was established by the Act for payment of retirement benefits due to employees in the Public Service of the Federation, the Federal Capital Territory and the Private Sector including the defendant. The duty imposed on the defendant and other employers of labour under the Contributory Pension Scheme is to remit its pension contribution and those of its employees to their Retirement Savings Accounts managed by Pension Fund Administrators of the individual employee’s choice. This remittance is expected to be made within 7 working days from the date the employees are paid their salaries in line with the Pension Reform Act 2014. 5. The claimant continued that it also has the mandate to stipulate uniform rules, regulations and standards for the management and administration of pension and retirement benefits including the imposition of administrative sanctions on erring employers. Furthermore, that sections 20(i) and 21(j) empower the claimant to do such other things as are necessary for the discharge of its functions under the Act. This power includes the right to institute legal action against erring employers for failure to remit the pension contributions of its employees. 6. Specifically, that this suit arose as a result of complaints received by the claimant from some former employees of the defendant who lodged oral and written complaints regarding the non-remittance of their pension contributions while they were in the defendant’s employment. More specifically, the claimant received a written complaint dated 17th February 2014 (Exhibit C1) from one Mr Ayinde Oladimeji who alleged that while he was in employment of the defendant between 3rd October 2007 and 15th January 2010, his pension contribution was remitted into his Retirement Savings Account on only one occasion. This was despite the fact that his pension contributions were regularly deducted from his monthly salary by the defendant. Following the complaints of the former employees of the defendant including Mr Ayinde Oladimeji, the claimant, in line with its responsibility as regulator and supervisor of the Contributory Pension Scheme, engaged the defendant on the allegations of non-remittance of its employees’ pension contributions. The claimant vide a letter dated 13th March 2014 (Exhibit C2) drew the attention of the defendant to the complaint made by Mr Ayinde Oladimeji and directed that the defendant should remit all outstanding pension contributions due to its former and present employees from January 2005 till date with the attendant interest for late remittance of the principal contributions, and forward evidence of compliance to the claimant. However, the defendant failed and/or neglected to respond to the letter, and failed to comply with the directive issued by the claimant. 7. The claimant, therefore, issued a letter of caution dated 23rd June 2014 (Exhibit C3) and reminded the defendant of its responsibilities to its employees under the Pension Reform Act. Following the continuous non-response of the defendant, the claimant issued a letter of sanction dated 16th September 2014 (Exhibit C4) to the defendant pursuant to the Framework for Sanctions and Penalties under the Pension Reform Act. Nevertheless, the defendant failed to comply with the directive of the claimant and have since remained recalcitrant. Having exhausted the administrative regime for recovery of pension contributions from employers, the claimant was constrained to resort to legal action in order to recover the pension contributions due to the employees of the defendant. Accordingly, the Legal Department of the claimant served the defendant with a pre-action notice dated 15th February 2016 (Exhibit C5) which conveyed the intention of the claimant to proceed with the legal action against the defendant. That the defendant was duly served with the originating processes in the\is suit but failed and/or neglected to enter appearance or file a statement of defence or any process in response as required under Order 15 Rule 1(1) of the Rules of this Court; and despite the fact of service of hearing notices on the defendant by the bailiff of this Court. 8. Citing Chevron (Nig) Ltd v. Imo State House of Assembly [2016] LPELR-41563(CA), the claimant submitted that where the defendant fails or declines to enter appearance in Court and also defaults in pleading by not filing a statement of defence, the plaintiff has the option to apply for judgment, which judgment shall be given upon the statement of claim as the Court may determine in favour of the plaintiff, referring to Paul Nwadike & ors v. Cletus Ibekwe & ors [1987] LPELR-2087(SC) and Shettima & ors v. Shettima [2016] LPELR-40178(CA). That without prejudice to the defendant's default in filing the requisite pleadings as enumerated above, the claimant, in line with the burden of proof placed on it by sections 131-134 of the Evidence Act 2011, being the party who would fail if no evidence was adduced, led evidence in support of its claims against the defendant to enable the Court give judgment on its merit and based on an application of the legal principle: “he who asserts must prove”, citing Union Bank of Nigeria Ltd v. Prof A. O. Ozigi [1994] 3 NWLR (Pt. 333) 385. 9. It is the contention of the claimant that it discharged the burden placed on it by establishing the complaint against the defendant and making a demand for evidence of remittance of pension contributions due to its past and present employees. That the formal complaint made by Mr Ayinde Oladimeji is clear evidence that the defendant is bound by the provisions of the Pension Reform Act 2014 and falls within the contemplation of sections 2 and 120 of the Pension Reform Act 2014 that defines the concept of the term ‘employer’ under the Pension Reform Act 2014. In addition, Mr Ayinde had alluded that his pension contribution was deducted by his employer but not remitted to his Retirement Savings Account, and Mr Ayinde took the right step by approaching the claimant to complain of the non-remittance. This fact lends credence to the suit and the right of the claimant to institute same. 10. Furthermore, that the demand made by the claimant to the defendant was simply to provide evidence to show that it was in compliance with the Pension Reform Act or take steps to effect the due remittances not just for Mr Ayinde but for all its past and present employees. In other words, the reliefs sought by the claimant in this suit is essentially for a declaration that the defendant, by failing to remit the pension contributions of its employees, is in breach of the Pension Reform Act 2014 and the 1999 Constitution, and an order directing that the defendant should effect the outstanding pension contributions due to its employees and furnish evidence to the claimant for verification. It is the considered view of the claimant that it has established its case and led credible legal evidence to be afforded a grant of the reliefs sought in the suit. This is more so as the demand made was not controverted by the defendant, even prior to the institution of this suit, citing Isaac Ogualaji v. AG, Rivers State [1997] 6 NWLR (Pt. 508) 209 SC at 222 Sunmonu Olohunde & anor v. Prof S. K. Adeyoju [2000] 10 NWLR (Pt. 616) 562 at 589. That there is nothing put on the other side of that proverbial or imaginary scale or balance to contradict or challenge the evidence given on behalf of the claimant in proof of the complaint made against the defendant and the demand to show evidence of compliance, without more. That the onus of proof on the claimant has been discharged, urging the Court to so hold. 11. Furthermore, that it is worthy to note that the actions of the claimant in instituting this suit was in furtherance of the provisions of the Pension Reform Act. Specifically, section 23(h) of the Pension Reform Act 2014 provides as follows that the Commission shall receive, investigate and mitigate complaints of impropriety made against any...employer, staff or agent. That the steps taken by the claimant in relation to the complaint against the defendant was in accord with the above sequence or conduct as enshrined and/or enumerated in section 23(h) of the Pension Reform Act 2014. In addition, sections 97 and 104 of the Pension Reform Act 2014 mandates employers including the defendant to provide any information or explanation as required by the claimant. To the claimant, the defendant is bound to comply with the Pension Reform Act by remitting the due pension contributions to its employees’ Retirement Savings Account, and submitting evidence of such remittance to the claimant, urging the Court to so hold. In conclusion, the claimant urged the Court to grant judgment in its favour, and resolve the sole issue raised in its favour. COURT’S DECISION 12. I earlier listed out at the five reliefs the claimant is claiming from the defendant. However, when the claimant filed its final written address, it indicated as eight the reliefs it is claiming against the defendant. By law it is the claims as per the statement of facts (or of claim) that are the claims before the Court. Aside form making its reliefs claimed to be eight in the final written address, the claimant went on to change the content of the individual reliefs even for reliefs that coincide. For instance, in the claim for general and exemplary damages, the claimant claims as per the statement of facts for N5 Million. In its final written address, the claimant claims for N10 Million. Other forms of differences in the reliefs claimed exist as between the statement of facts and the final written address. Since, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed and only the reliefs as per the statement of facts are considered by the Court in determining the claimant’s case, I shall accordingly discountenance the reliefs listed in the claimant’s final written address. I so hold. 13. The claimant seeks a declaratory relief, a mandatory injunction and three orders. Relief (i) is for a declaratory relief i.e. the defendant is in breach of the Pension Reform Act 2014 and the 1999 Constitution in refusing or failing to remit the monthly pension contributions to the respective employees’ Retirement Savings Accounts with their Pension Fund Administrators. Exhibit C1 dated 17th February 2014 is a letter of complaint from one Ayinde Oladimeji to the claimant that he was an employee of the defendant from 3rd October 2007 to 15th January 2010 and the defendant; and that during the period his pension contribution was only remitted once by the defendant. The claimant in turn wrote to the defendant vide Exhibit C2 dated 13th March 2014 requesting the defendant to make the necessary remittances. Nothing was heard from the defendant, and so the claimant wrote the letter of caution dated 23rd June 2014 (Exhibit C3). As nothing was heard from the defendant, the claimant wrote the letter of sanction dated 16th September 2014 (Exhibit C4). The sanction was put at N100,000 for failure to provide evidences of compliance with the Pension Reform Act (PRA). Still there was no reaction whatsoever from the defendant. The claimant accordingly wrote to the defendant the letter dated 15th February 2016 wherein the claimant made it clear to the defendant that it is in breach of section 11(3) of the PRA 2014, which breach was an offence under section 104(a) and (c) of the PRA 2014; and notice was then given the defendant of an impending legal action against it. I must state that the instant suit is a civil, not criminal, suit against the defendant. 14. Section 11(3) of the PRA 2014 places a duty on an employer to deduct at source the monthly contribution of the employee and within 7 days of such deduction remit the amount to the Pension Fund Custodian mentioned by the Pension Fund Administrator (PFA). Where an employee fails to open the Retirement Savings Account within a period of six months of assumption of office, the employer is duty bound to open a nominal retirement savings account. See section 11(4). By section 11(6), an employer who fails to make this deduction will be subject to a penalty to be stipulated by the Commission; which penalty shall not by section 11(7) be less than 2% of the total contribution that remains unpaid for each month or part of each month the default continues. 15. Section 120 of the PRA 2014 defines an employer as any organization or business that employs three persons or more. This means that the minimum threshold needed by law before an employer can be bound by the provisions of the PRA 2014 is the employment of at least three employees. Paragraph 2 of the statement of facts pleaded that the defendant is a company incorporated in Nigeria and engaged in the business of providing ICT products and solutions to its customers and that it has more than the minimum statutory number of employees. This pleading is supported by paragraph 3 of the claimant’s written statement where the claimant indicated that the defendant has more than the minimum statutory number of employees. The exact number of the employees of the defendant was not disclosed by the claimant. Relief (i) as claimed is a claim for a declaratory relief. A claimant succeeds for a declaratory relief on the strength of his own case. By law, a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See Okereke v. Umahi & ors [2016] LPELR-40035(SC) and Nyesom v. Peterside & ors [2016] LPELR-40036(SC); and a declaratory relief is never granted on the basis of admission or default of pleading. See Bulet International Nig Ltd v. Dr Omonike Olaniyi & anor [2017] Vol 6 - 12 MJSC (Pt. III) 6. The claimant’s pleadings did not state the exact number of the employees of the defendant in order to know if the defendant comes within the purview of the PRA. The claimant did not even deem it fit to call Mr Ayinde Oladimeji, the writer of Exhibit C1, whose complaint led to the filing of this suit, to come to Court and testify as to the number of employees that the defendant has in its employ. The claimant left this vital fact to conjecture and speculation; and courts do not decide cases on the basis of speculation or conjecture. See Obasi v. M. Bank [2005] 124 LRCN 357 and Buhari v. Obasanjo [2005] 130 LRCN 1925. 16. Moreover, in National Pension Commission v. Tradeways Express International Limited unreported Suit No. NICN/LA/424/2014, the judgment of which was delivered on 4th July 2017, a claim for a declaration that the defendant being bound by the Contributory Pension Scheme statutorily provided in section 1 of the PRA 2004 is in breach of section 11(5) - (7) of the said Act by its failure, neglect and refusal to remit its employees including its own counterpart monthly pension contributions as at when due, to the respective Employees’ Retirement Savings Account with their Pension Fund Administrators already furnished the defendant by its employees failed because “it is not even known if the defendant comes within the purview of the Act in terms of the exact number of its employees”. See paragraph 11 of the judgment. As it is, therefore, and on the authority of National Pension Commission v. Tradeways Express International Limited (supra), relief (i) cannot be granted since it was not disclosed the number of employees in the employ of the defendant in order to ascertain if it is bound by the PRA 2014. 17. Once it is not known if the defendant comes within the purview of the PRA 2014, then all the other reliefs, reliefs (ii) to (v) cannot be considered and granted. The claim for general, exemplary and/or aggravated damages is also baseless on another ground. The power to levy penalty if granted by section 11(6) of the PRA 2014, but by section 11(7), the penalty shall not be less than 2% of the total contribution that remains unpaid for each month or part of each month the default continues. Section 11(7) talks of the penalty not being less than 2%. It has to be that the Commission, the claimant, must first have stipulated the exact percentage as penalty vide an instrument of some sort. There is no such instrument before the Court. A penalty of not less than 2% is not a penalty of 2%. So in asking for N5 Million as general, exemplary and/or aggravated damages, how did the claimant come by the said sum? The Court does not know and was not told. 18. As it is, the claimant did not prove its case. It fails and so is dismissed. 19. Judgement is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD