Download PDF
JUDGMENT 1. Introduction & Claims By his General Form of Complaint, statement of facts and accompanying frontloaded processes dated 3/6/16, the Claimant approached this Court and sought the following reliefs - 1. The sum of =N=1,200,000.00 (One Million, Two Hundred Thousand Naira Only) against the Defendant being salary arrears owed the Claimant by the Defendant for six (6) months, from December 2012 to May, 2013. 2. The sum of =N=970,000.00 (Nine Hundred and Seventy Thousand Naira Only) against the Defendant being sum owed the Claimant by the Defendant as Claimant’s gratuity in consequence of his employment with the Defendant between 4th December, 2007 – 12th January, 2015. 3. The sum of =N=2,565,612.86 (Two Million, Five Hundred and Sixty-Five Thousand, Six Hundred and Twelve Naira, Eighty-Six Kobo Only) against the Defendant being sum due to the Claimant under the Contributory Pension Scheme for Remittance to Sigma Pensions, the Claimant’s Pension Fund Administrator which the Defendant failed or refused or neglected to remit. 4. The sum of =N=256,087.80 (Two Hundred and Fifty-Six Thousand, Eighty- Seven Naira, Eighty Kobo Only) being one month’s salary in lieu of notice of the disengagement of the Claimant by the Defendant. 5. The sum of =N=1Million Naira Only being Claimant’s Solicitors’ fees in this action. 6. Interest at the rate of 21% per annum from 31st May, 2013 until judgment and thereafter at the rate of 6% until payment. 7. Costs of this action. The Defendant filed a Statement of Defence dated 10th October, 2016. 2. Case of the Claimant The Claimant opened his case on 20/6/17, adopted his witness deposition dated 3/6/16 as his evidence in chief and tendered 6 documents as exhibits. The documents were admitted without objection and marked as Exh. C1-Exh. C6 respectively. The case of the Claimant as contained in his Statement of Facts and Witness Statement on Oath sworn on the 3/6/16 and adopted on the 20/6/17, is that the Claimant was an employee of the Defendant from 4/12/07 until 12/1/15 when he was disengaged by the Defendant pursuant to a letter dated 12/1/15; that at the time of his disengagement on 12/1/15 the Defendant owed him six (6) months arrears of salary for the months of December, 2012 - May, 2013 amounting to =N=1,200,000.00 (One Million, Two Hundred Thousand Naira Only); that at the time of his disengagement by the Defendant, he was entitled to a gratuity in the sum of =N=970,000.00 (Nine Hundred and Seventy Thousand Naira Only) for his services with the Defendant between December, 2007 and 12/1/15; that the Defendant has failed or refused or neglected to pay the sum due as gratuity; that at the time of his disengagement the total sum that ought to have stood to his credit under the Contributory Pension Scheme is =N=2,565,612.86 (Two Million, Five Hundred and Sixty-Five Thousand, Six Hundred and Twelve Naira, Eighty-Six Kobo Only); that the Defendant however failed to remit this sum to Sigma Pensions, the Pension Fund Administrator, contrary to the provisions of the Pension Act, 2014; that he was also entitled to be paid a month’s salary in lieu of notice of disengagement in the sum of =N=256,087.80 (Two Hundred and Fifty-Six Thousand, Eighty-Seven Naira, Eighty Kobo Only) but the Defendant also failed to pay the said sum; that after several fruitless visits to the Defendant to collect the entitlements due to him he caused his Solicitors to write a letter of demand to the Defendant dated 11/4/16; the Defendant remained silent and did nothing; that the actions, costs and omissions of the Defendant and its failure or neglect to pay the sums due to him led him to engage a Solicitor to institute an action in Court and that he paid his solicitors the sum of =N=1,000,000.00 (One Million Naira Only) for the institution and prosecution of this action. Under cross examination, the Claimant testified that he was at a time Head of Account Department of the Defendant; that during the period Defendant did not receive any subvention from Federal Government; that Defendant’s only way of generating money was through members subscriptions and programmes organized; that there was leadership crisis with Defendant between 2009 and part of 2015; that all this led to depletion of finances of the Defendant; that none of the Documents he tendered mentioned payment of gratuity to him; that the Defendant guaranteed the loan I took from Diamond Bank Plc that his salary would be paid every month to his Account with the Bank; that while with Defendant no money was remitted to his Pension Fund Administrator; that the money he paid to his Solicitor was cash; that he collected same from a friend – Eyitayo Adewumi and that he went to his office at Dopemu. 3. Case of the Defendant The Defendant opened its case on 23/10/17. Its lone witness, Sidney Ogodo, testified in chief and adopted his witness deposition dated 20/10/16 as his evidence in chief. Witness did not tender any document for admission as exhibit. Under cross examination, a document was tendered and admitted as exhibit and marked as Exh. D1. The case of the Defendant as revealed from the pleadings filed, in brief, is that it employed the Claimant as an Accountant; that Claimant could not work effectively and the Defendant had to terminate his employment; that it does not operate a gratuity scheme and hence not indebted to the Claimant in the sum of =N=970, 000.00; that the Claimant being the Accountant did not leave the details of how much was deducted from his salary under the contributory pension scheme and that the Defendant was not a party to the loan agreement between the Claimant and his Banker. While testifying under cross examination, DW1 stated that he joined Defendant in 2006; that he is aware that Claimant was in the employ of Defendant between 2007 and 2015; that Defendant has 3 staff as at today; that in 2015 Defendant had 31 Staff; that between 2009 and 2015 Defendant regularly deducted 8% of Claimant’s salary for remittance to Pension Administrator; that the Defendant has an Employee Handbook as shown to him. Witness added that the Defendant was bound to on its own remit 10% of Claimant salary to Claimant’s Pension Fund Administrator aside from the 8% deducted from Claimant salary making 18%; that while Claimant was with Defendant, Defendant did not remit any such deductions to Claimant’s Pension Funds Administrator but curiously Claimant was the Defendant's Chief Accountant; that Claimant as Chief Accountant ought to make request from Council of the Defendant to make the remittances; that sometime in August this year some staff of Defendant protested to TVC against Defendant on the issue of non-remittance of statutory deductions from Staff and that he was influenced by Reporter of TVC on the issue where he (the witness) stated that Defendant would meet all demands on or before October on gratuity not pension. 4. Final Written Addresses of Counsel The final written address of the Claimant was dated and filed on 11/4/18. In it learned Counsel set down 2 main issues for determination as follows - 1. Whether facts admitted in evidence need further proof. 2. Whether the Claimant is entitled to the reliefs claimed by him in paragraphs 2, 6 & 7 of the Complaint. Arguing these issues, learned Counsel submitted, citing Nwankwo v. Nwankwo (1995)5 NWLR (Pt. 394) 153 at 171 & Section 123, Evidence Act, 2011, that facts admitted need no further proof; that Claimant is entitled to his outstanding salaries for 6 months salary being reward for work done, citing Flour Mill of Nigeria limited v. Tajudeen Ogunbayo (2016)All FWLR (Pt. 816) 522; that the Claimant is entitled to his Solicitor's fees citing Naude v Simon (2014)All FWLR (Pt. 753) 1878. On the claim for interest, learned Counsel submitted that the basis for the award of an interest could be the fact that the Claimant has been kept out of his money for a period and the Defendant who has refused to release the money ought to compensate the Claimant for depriving the Claimant the benefit of putting the money in good use at the time. Citing International Offshore Construction v. V.I.N Limited (2003)16 NWLR (Pt. 845) 157 & Kano Textile Printing Plc v. Tukur (1999)2 NWLR (Pt. 589) 78 Counsel urged the Court to grant all the reliefs sought by the Claimant. The final written address of the Defendant was dated and filed on 21/5/18. Counsel set down the following issues for determination - 1. Whether the Claimant is entitled to be awarded the sum of =N=2,565,612.86 by the Honourable Court as pension remittances when there is no evidence that such amount was deducted from his salary by the Defendant. 2. Whether the Claimant is entitled to the payment of gratuity from the Defendant (having left the employment of the Defendant before the commencement of the gratuity scheme) or when there is no evidence that the institute started the gratuity scheme before he was retired in January, 2015. 3. Whether the Honourable Court can award the sum of =N=1,000,000.00 to the Claimant being solicitors fee. 4. Whether the Honourable Court could award interest to the Claimant on the reliefs claimed considering the evidence of the facts that the Defendant has not made any profit since year 2010. Counsel contended that the Claimant will only succeed on the strength of his case and not on the weakness of the defence citing Orlu v. Gogo-Abite (2010)8 NWLR (Pt. 1196) 307; that Claimant did not tender his Pay slip to indicate that his salary was deducted monthly by the Defendant for pension and that Claimant did not plead the percentage of his salary deducted and that it is not for the Court to assume citing Audu v. INEC 'No.2' (2010)13 NWLR (Pt. 1212) 431 at 520 and that there was no nexus between exhibit 3 and relief 3 sought. Counsel urged the Court to discountenance exhibit 3 not being credible. On claim for gratuity, learned Counsel submitted that the Court cannot make any pronouncement in favor of the Claimant as the gratuity scheme of the Defendant was not in existence when the Claimant left the Defendant. Counsel prayed the Court to refuse a claim for Solicitor's fees as sought by the Claimant arguing that it is inappropriate for the Court to award damages in the form of professional fees against the Defendant citing Guinness Plc v. Nwoke (2000)15 NWLR (Pt. 689) 135 at 150. On issue 4 Counsel submitted that the Claimant is not entitled to any interest as the Defendant never entered into any agreement with him for same; that the Defendant is a Federal Government body without subvention but only survives on subscriptions of members; that the Defendant has not made any profit since 2009. Counsel cited Diamond Bank Limited v. P.I.C. Limited (2009)18 NWLR (Pt. 1172) 67 at 96-97. Finally, learned Counsel urged the Court to dismiss the case of the Claimant with substantial cost. 5. Decision I have read and clearly understood all the processes filed by learned Counsel on either side. I listened patiently to the testimonies of the witness called at trial as well as watched their demeanor. I carefully evaluated all the exhibits tendered and admitted and also heard the submissions of learned Counsel during the adoption of final written addresses of parties. Having done all this, I set down the following lone issue for the just determination of this case - Whether the Claimant has adduced sufficiently cogent and credible evidence to be entitled to his claims or some of them. The Claimant having approached the Court is under an obligation to adduce credible, cogent and admissible evidence in support of his claims. The required evidence may be either oral or written or even both. The need for proof is however dispensed with in the face of clear and unambiguous admission of material facts. For, it is trite that facts admitted need no further proof. In its statement of defence dated 10/10/16 and filed on 20/10/16, the Defendant admitted paragraphs 1, 2, 4,5 and 8 of the statement of facts. Specifically, the Claimant had averred in paragraphs 4, 5 and 8 thus - ''4. The Claimant states that at the time of his disengagement on the 12th day of January, 2015, the Defendant owed him six (6) months arrears of salary for the months of December, 2012-May, 2013. amounting to N1,200,000.00 (One Million Naira only). ''5. The Claimant states that the said arrears of salary remain unpaid''. ... ... ... ... ''8. The Claimant also avers that he was entitled to be paid a month's salary in lieu of notice in the sum of N256,087.80 (two Hundred and Fifty-Six Thousand, Eighty-Seven Naira, Eighty Kobo only) but the Defendant also failed to pay the said sum or any sum at all to the Claimant. The Defendant's letter to the Claimant dated 19th December, 2013, detailing the Claimant's salary emoluments is hereby pleaded''. These paragraphs deal mainly with reliefs 1 and 4 of the Claimant's claims. Having therefore been admitted there is no need for proof respecting them. Reliefs 1 & 4 are here granted. The Defendant is ordered to pay to the Claimant the sum of =N=1,200,000.00 (One Million, Two Hundred Thousand Naira Only) being salary arrears owed the Claimant by the Defendant for six (6) months, from December 2012 to May, 2013 and admitted by the Defendant. The Defendant is also ordered to pay to the Claimant the sum of =N=256,087.80 (Two Hundred and Fifty-Six Thousand, Eighty- Seven Naira, Eighty Kobo Only) being one month’s salary in lieu of notice of the disengagement of the Claimant by the Defendant as admitted. The second relief sought by the Claimant is for payment of the sum of =N=970,000.00 (Nine Hundred and Seventy Thousand Naira Only) by the Defendant being sum owed the Claimant by the Defendant as Claimant’s gratuity in consequence of his employment with the Defendant between 4th December, 2007 – 12th January, 2015. In proof of his case, Claimant tendered 6 exhibits in all. Out of the 6, only Exh. C4 has some semblance of link with this head of relief. That exhibit was a letter dated 11/4/16 written by Claimant Counsel to the Defendant making demand for unpaid salaries, gratuities and other terminal entitlements of the Claimant. Aside from this exhibit there is nothing else in evidence by the Claimant in proof of his claim. The claim of the Claimant is for the sum of =N=970,000.00. It is not clear how the Claimant arrived at this figure. This claim is akin to a claim in special damages. It is for a sum certain. The law is clear that for the Court to find for a party in a situation as this the party must not only strict plead but prove same to the satisfaction of the Court. See Okunzua v. Amosu & Anor (1992) LPELR - 2531 SC, Oshinjinrin & Ors v. Alhaji Elias & Ors (1970) LPELR 2799 SC & Yenkarti & Anor. Abbah & Ors (2017) LPELR (CA). I find no evidence in proof of this relief. None was tendered before me. I have no hesitation in refusing same. I thus refuse and dismiss this head of claim for lack of proof. The third relief is for the sum of =N=2,565,612.86 (Two Million, Five Hundred and Sixty-Five Thousand, Six Hundred and Twelve Naira, Eighty-Six Kobo Only) against the Defendant being sum due to the Claimant under the Contributory Pension Scheme for remittance to Sigma Pensions, the Claimant’s Pension Fund Administrator which the Defendant failed or refused or neglected to remit. The philosophy behind the current pension regime in Nigeria under the Pension Reform Act, 2014 is for each employee to have a an account with a Pension Fund Administrator. The employer is expected to make deductions for pension from the salary of its employee on a monthly basis and remit same to the Pension Funds Administrator of the employee. The employer is also mandated to make certain percentage of contribution to the account of the employee with the Pension Fund Administrator as its own contribution. From the evidence adduced thus far by the Claimant his Pension Administrator is Sigma Pension. Claimant has alleged that the Defendant did not make remittances of pension deduction to his Pension Fund Administrator. Yet, Claimant did not exhibit his statement of pension account from Sigma Pension his Pension Fund Administrator in proof of his allegations. The fact remains that it is not sufficient to make averments or make allegations or claims. The averments, allegations or claims must be backed up by credible evidence. There is no proof of this head of claim. I dismiss same without more for lack of proof. Claimant sought payment to him of the sum of =N=1,000,000.00 as his Solicitor's fees. Exh. C5 was tendered as evidence of the payment made to Claimant's ''Solicitor''. That exhibit is the receipt of ''Mainland Law Practice''. Mainland law Practice is certainly not a Solicitor, a Barrister or Legal Practitioner or a person so qualified to practice as any of these descriptions. See Section 24, Legal Practitioners' Act & Iwunze & Ors. v. Okenwa & Anor. (2015) LPELR-24905(CA). I refuse and dismiss this head of claim accordingly. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant succeeds in part as follows - 1. The Defendant is ordered to pay to the Claimant the sum of =N=1,200,000.00 (One Million, Two Hundred Thousand Naira Only) against the Defendant being salary arrears owed the Claimant by the Defendant for six (6) months, from December 2012 to May, 2013 and admitted by the Defendant. 2. The Defendant is also ordered to pay to the Claimant the sum of =N=256,087.80 (Two Hundred and Fifty-Six Thousand, Eighty- Seven Naira, Eighty Kobo Only) being one month’s salary in lieu of notice of the disengagement of the Claimant by the Defendant as admitted. 3. The Defendant is ordered to pay to the Claimant the cost of this proceedings assessed at =N=100,000.00 only. 4. All the terms of this Judgment are to be complied with within 30 days from today. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge