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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 13th October, 2014 SUIT NO: NICN/ABJ/36/2013 Between: Mr. Momoh Faruk Ikhuemeso Claimant AND Daar Communication Plc. Defendant REPRESENTATION Claimant present. Defendant represented by Theresa Popoola, Legal officer for the defendant; J.O. Elisha Esq. for the claimant; Okechukwu Opara Esq. for the defendant; JUDGMENT By a complaint dated the 22nd of February 2013, the claimant claimed as follows; i. An order that the defendant should pay to the claimant the sum of N166,510.83 being the three (3) months arrears of salary owed the claimant by Defendant before the claimant’s employment was terminated with immediate effect. ii. An order that the defendant should pay the claimant one month net salary of N55,503.61 (Fifty- five thousand, Five hundred and three naira Sixty-one kobo only) in lieu of notice of termination. iii. An order that the defendant should pay the claimant the sum of N592,058.53 (Five hundred and Ninety Two thousand, Fifty Eight naira Fifty Three Kobo) only as his severance/ disengagement benefit. iv. An order that the statutory pension remittance since 2005 be made to reflect the monthly deduction from the claimant salary thus crediting the claimant’s account with claimant’s pension fund administration (Stanbic IBTC Manager) with the sum of N299,353.88 (Two hundred and Ninety Nine thousand, Three hundred and Fifty Three naira, Eighty Eight Kobo) only. v. Cost of N300,000 (Three hundred thousand naira) only for this action. vi. The total claim of the claimant against the Defendant excluding cost is the sum of N1,113,426.85 (One Million One hundred and Thirteen thousand Four hundred and Twenty six Naira Eighty five kobo). vii. Any other orders as this Honourable Court may deem fit to make in the circumstances. The defendant entered appearance on the 9th of December 2013 and both the memorandum of appearance and the defence were regularized on the 10th of March 2014. The claimant testified on the 3rd of December 2013 as claimant witness one and adopted his written statement on oath as his oral testimony in this suit in support of his claims. The witness statement on oath was admitted as exhibit MFI 01 the employment offer letter as exhibit MFI 02, Review of rank/ Grade level as exhibit MFI 03, termination of employment letter as exhibit MFI 04, retirement savings account print out is exhibit MFI 05, defendants staff hand book is exhibit MFI 06, the claimants solicitors letter written to the defendant is exhibit MFI 07. On the 10th March 2014, defendant counsel, upon regularization of his processes before the court cross examined the claimant after recalling him; The claimant who was employed in September 2005 did not enter into management agreement with the defendant in line with the employment letter exhibit 02 and was not offered any supplementary contract. He also stated that his monthly net salary which was N55,000 plus used to be paid through a bank account and also by hand. The hand book was said to be given to him by one Mr. Obinna of the defendants admin department who was in charge of distribution of hand book and he did not sign for the hand book as there was no provision for such; the letter of employment Exhibit 02 did not also state that he should be issued a hand book. On the 11th of April 2014, the defendant opened it defence by adopting its written witness statement on oath which was admitted as exhibit MFI 08. During Cross Examination, the defence witness who is a confirmed staff of the defendant admitted that she had a retirement savings account number. She stated that she was in possession of the claimant staff file and as such she was fully aware of the details of the claimants records who had worked with the defendant from 2005 to 2011. She stated further that the claimant was paid some amount of money as she was in possession of the record but not the exact amount. The witness testified further that the claimant was paid salary as entitled but insisted that the defendant do not have a handbook as the only one issued and produced was withdrawn as it content was unfavourable to the interest of the defendant as the handbook was not issued to anyone. The witness who was not there when the handbook was produced and withdrawn was not yet a staff when the claimant employment was terminated but depended on what she was told by the defendant. She stated further that confirmed or staff on probation are entitled to one month salary in lieu of notice of termination as stated in exhibit MFI 02. The executive Director of the defendant according to the witness is not aware that the claimant is entitled to further benefits at the time of termination and as a staff is entitled to other benefits apart from salaries. She however stated that despite the provision of exhibit 4, the claimant is not entitled to any benefit apart from His salaries, and not entitled to any retirement benefits. The witness admitted signing the witness statement on oath adopted in this case in the defendants office. At the close of the cases for the parties, counsel filed their respective written addresses. The defendant counsel Mr. Opara Okechukwu formulated three issues for determination mainly (1) Whether the claimant by virtue of his employment status and the termination of his employment is entitled to pension. (2) Whether the claimant has the locus standing to sue the defendant concerning his pension remittance (3) Whether the claimant by preponderance of evidence has proved his case against the defendant. On issue one counsel, submitted that the claimant whose employment was terminated is not entitled to pension as pension according to Pension Reform Act of 2004 section 2 and Black Law Dictionary definition of pension, only those who retire are entitled to it; Counsel says further that by section 3 (1) of the Pension Reform Act of 2004 retirement savings account can only be operated and money withdrawn therein if a person has attained the age of fifty years. Counsel stated further that issue of pension can only be handled by the pension fund administrator by virtue of the Pension Reform Act 2004 as the issue of remittance is the business of the ex-employer who is only entitled to remit 7 ½ of claimants salary and not 15% as claimed. Counsel submitted that the remedy for the claimants lies in making a report to the National Pension Commission. On issue 2 counsel contended that the claimant who was not a pensionable staff before his termination or disengagement cannot claim any deduction from salary for the purpose of remittance to retirement savings account; thus the defendant had no responsibility to make any deduction and remittance in respect of non pensionable staff like the claimant, counsel submitted; counsel urged the court to discountenance Exhibit MFI 05, a document purportedly emanating from the pension fund administrator IBTC which did not comply with section 84 (4) of 2011 Evidence Act as amended; counsel submitted further that by section 11 (5), (6) and (7) of the Pension Reform Act of 2004, only the National Pension Commission has power to sue the defendant for non-remittance of employees deducted sum and as such the claimant has no locus to sue the defendant for non-remittance. Counsel referred the court to the Court of Appeal decision in Kraft Food Holdings Incorporated Vs. Allied Biscuit Company Limited 2011 All FWLR (Pt. 562) 1721 on the definition of locus standi. Counsel relied on the case of Beauty Igah and Another Vs. Godlovers Okpueje 2011 All FWLR (PT 589) 1186 and urged the court to hold that the claimant has no standing to sue the defendant on pension remittance. Counsel contended further that the issue of jurisdiction over pension matter is vested in Federal High Court by virtue of sections 19 and 102 of the Pension Reforms Act 2004 and as such the National Industrial Court has no Jurisdiction over Pension matters in view of section 254 (c) (i) (k). The National Industrial Court Jurisdiction is confined to payment and nonpayment of pension and non-remittance of pension. On issue 3, counsel to the defendant argued that Exhibit MFI 02 which is the letter of offer of employment is not automatic for the claimant to be confirmed. After 2 years probation period, the claimant, counsel submitted is supposed to enter into a management agreement as a condition precedent to the regularization of his employment. The management agreement is the only proof of claimant permanent appointment counsel contented. Counsel argued also that since the appointment letter which exhibits 02, 03 did not contain any reference to disengagement benefits or severance benefits, the claimant is not entitled to it; counsel urged the court to place reliance only on Exhibits 02 and 03 which contains no provision on severance benefits. Counsel cited the cases of College of Education Vs. Osayande 2011 All FWLR Pt 566 at P. 504; Osibowale Vs. Carribean Finance Ltd 2012 All FWLR Pt. 627. Counsel urged the court also to discountenance Exhibits 06, the staff hand book which was not officially issued to him nor the document part of the claimants terms of contract; this, according to counsel means, the claimant contract can only be varied by management agreement which he did not sign with the defendant; counsel cited the cases of AG. Rivers State Vs. AG. Akwa Ibom State 2011 All FWLR (Pt.579) P 1023 at 1033. Counsel urged also the court to believe the evidence of the defence witness as to the production and withdrawal of Exhibit MFI 06 as the claimant has not debunked the fact that it was fraudulently obtained by the claimant as it was not issued to him neither did he sign for it. Counsel further submitted that since the claimant did not voluntarily retire or fulfilled the terms of engagement and was retired by the defendant, he does not qualify for any gratuity or retirement benefit even if Exhibit 06 (handbook) was considered by the court as the claimant has failed to prove that he was entitled to the benefits stated in Exhibit 06. Counsel relied heavily on sections 135-137 131, 132 of the Evidence Act as amended. On the claim of cost counsel cited the cases of Divine Ideas Ltd Vs. Umoru 2007 All FWLR (Pt. 380) 1468 UTB Vs. Ozoemena 2007 All FWLR Pt. 358 P. 1014 and submitted that since the cost has not been proved by tendering of receipts on special damages, It should be refused. Counsel urged the court to dismiss the claimant case in its entirety. In His written submission, the claimant counsel Adams Imuekemhe Esq. formulated two issues for determination namely:- (1) Whether the witness statement on oath of the defendant constitute a valid document to be relied upon in the determination of this suit as it was not sworn before a commissioner for Oath; (2) Whether the claimant has proved his case upon the preponderance of evidence. On issue one, counsel contended that since the witness statement on Oath of the defence witness was not signed before a commissioner for Oath in the court premises or anywhere as provided by law but signed in the defendants office as admitted by the defence witness, such Oath/document do not qualify under section 112 of the 2011 Evidence Act as amended as an affidavit or oath for the purposes of admissibility as oral testimony of the defendant. Counsel call in aid the case of Buhari Vs. INEC 2009 ALL FWLR (Pt. 459) 419 at 484; Chiduben Vs. Ekenna 2009 All FWLR Pt. 455 1692 at 1695 ratio 3; On the basis of the Inadmissibility of the defendant witness statement on Oath, counsel submitted that the defence therefore is absent and has nothing before the court except the pleading which has no evidence in support. Counsel urged the court to regard the pleading as abandoned in view of the decision in Olaniyan Vs. Oyewole 2011 All FWLR Pt. 589 1076 at 1081 ratio 6. Attamah Vs. Ebosele 2009 All FWLR Pt. 473 1385 at 1387 ratio 2; Balogun Vs. E.DC B Nig Ltd 2007 All FWLR Pt 382 1952 at 1962 ratio 14. On issue two, Mr. Imuekemhe argued that the claimant evidence which is unchallenged should be believed and acted upon by the court. The counsel submitted that once the claimant has proved that he was not paid for three months and the one month salary in lieu of notice was not given to him, the burden of proof shifts automatically to the defendant to debunk or proof otherwise which in this case they have failed. Counsel cited the case of Omojuyigbe Vs. Nipost 2010 All FWLR Pt. 543 1907; Bassey Vs. PAMOI Nig Ltd 2010 All FWLR Pt. 509 443 at 446 ratio 3. It is the further argument of Mr. Imuekemhe that having failed to reply the letter of demand written by the claimant to the defendant which is exhibit MFI 07, the defendant has unequivocally admitted the content therein since there is no denial. He cited the case of RMAFC Vs. Onmuekweikpe 2010 All FWLR (Pt. 528) 947 counsel submitted that since the claimant has proved that he was not paid his dues, it is the responsibility of the defendant to prove otherwise if he had paid the claimant. On Exhibit MFI 06 counsel contended that since Mr. Obinna who issued the Exhibit to the claimant was an agent of the defendant, the defendant is bound by the Actions of the agent as a principal. He cited the case of Ukpanah Vs. Ayaya 2011 All FWLR Pt. 589. Counsel submitted again that since civil cases are determined on the balance of probabilities and preponderance of evidence and since the defendant has no evidence before the court, the court should regard all the clams of the claimant as proved as the court has jurisdiction over pension matters as stated in the Nigerian Constitution as amended by virtue of section 254( c) (1)(k) of the 1999 constitution of Nigeria as amended. Counsel finally urged the court to grant all the prayers of the claimant. I have carefully read and considered all the pleadings, the evidences in this suit including all the exhibits tendered during trial and the written submission of counsel for the parties. The claims before the court are very clear. The duty of a trial court is to assess the evidence before it to see whether or not the claimant has discharged the burden of proof in a case before the court. It should be remembered that the standard of proof in a civil case is proof on balance of probabilities based on the standard of preponderance of evidence. See the case of FBN Plc Vs. Onukwugha 2005 16 NWLR (Pt. 950) 120 at 153. See also Ibadan L.G.P.C. Ltd Vs. Okunade 2005 2 NWLR (Pt. 911) 45 at 65. The question for determination therefore is this; In view of the state of evidence and pleadings before this court, has the claimant proved his case to entitled him to the reliefs sought in this suit? Before I proceed to consider the various issues relating to the claim before the court, let me first consider the defence of the defendant particularly the validity of the defence witness statement on Oath which was admitted in court as duly adopted but not signed before the commissioner for Oath. The objection was not responded to by the defence. It is trite law that a document of this nature not signed before the commissioner for Oath will not quality as a valid and duely sworn affidavit. The witness for the defence admitted that she signed the document at his office at the defendant premises. She offers no further explanation or evidence on it; section 117 (4) of the 2011 Evidence Act as amended says:- “An affidavit when sworn shall be signed by the deponent…………….. in the presence of the person before whom it is taken” Certainly the witness statement of Oath of the defendant witness which in any case is an affidavit is in complete breach of this rule or provision of the evidence law. An invocation of this provision means the defendant has no evidence or defence before this court. In my view, this will not meet the justice of this case. It is in this light that I invoke the provisions of the relevant applicable laws in labour jurisprudence in the interest of justice. Section 37 (3) of the Trade Dispute Act Cap T 8 LFN 2004 says; “Subject to the provision of this Act and of any rules or regulations made under this section, a body to which this section applies (a) May regulate its procedure and proceedings as it think fit and shall not be bound to act in any formal manner (b) Shall not be bound by any rules of evidence, but may inform itself on any matter in such manner as it think just” Section 12 (1) (2) (b) of the National Industrial Court Act 2006 also says: “………the court shall be bound by the Evidence Act but may depart from it in the interest of justice.” The rules of this court which provides for the filing of witness statement on oath may be departed from in the interest of justice; order 5 (3) of the National Industrial Court Rules 2007 says: “the court may direct a departure from these rules where the interest of justice so requires.” Given the specialized nature of this court and its jurisdictional mandate, the informality and flexibility of our rules and procedure dictates that in the interest of justice, I depart from the application of the Evidence Act in respect of Exhibit MFI 08 and Exhibit MFI 05, I so hold. The fact of this case is very straight forward. The claimant was employed by the defendant from September 2005 to November 2011 spanning about 6 years through a letter of employment. His employment was terminated through a letter dated November 25th, 2011 without any reason at all. I must state that the law has gone beyond termination without reason under the common law concept of hire and fire without reason as it is no longer fashionable. Protections are now available to workers under International best practices and unfair labour practice principles as provided for under section 25 4 (c) (I) (f) of the 1999 Constitution as amended. I will not say much in that regard since the claim of the claimant do not border on wrongful termination On the claims before the court, Exhibits MFI O1 talks about giving the claimant one month salary in lieu of notice. The defendant did not give any such notice in accordance with the exhibit which forms part of the contract of employment; I hold that since I am satisfied with the documentary evidences before me, the claimant is entitled to his one month salary in lieu of notice. The defendant has not offered any credible evidence to the court to show that the claimant was paid any three months salary arrears or any one month notice in lieu as claimed. All what the defendant has said in its testimony is that they are not owing the claimant any salary or benefits. If the defendant has any contrary evidence of payment of salaries in form of pay slips or where he signs, where he collects salaries by hand, I expect them to afford the court with such evidence. In my view, the claimant has discharged the minimum burden placed on him. In the case of Broadline Ent. Ltd Vs. Monetary Corp 1995 9 NWLR (Pt. 417) 11 it was held that : “where the defendant offered no evidence, the plaintiff’s evidence flows one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharge on minimal proof” It is not right and proper for a claimant who says in his pleadings and evidence that he has not been paid salaries to go ahead and prove that he has not been paid. This is what the defence in this case wants the claimant to do. To me this is very strange to our justice delivery principles and practices. All what a claimant needs to do in that case is to raise a prima facie case that he has not been paid salaries; then the burden shift and moves to the defendant to prove that in fact he was paid. This is so because in civil matters, the fate of every case depends on the pleadings and the evidence in support. See the case of Eseigbe Vs. Agholor 1993 9 NWLR Pt. 316 at 150. On the issue of non confirmation, it was the contention of the defendant that since the claimant has no confirmation letter, he cannot claim under the letter of employment as his employment was not permanent, having not fulfilled the condition precedent of entering into management agreement. The critical question to be determine here is; what is the effect of a contract of employment due for confirmation on completion of two years and is not confirmed and the employee worked and served continuously for 6 years? In my considered view, the purpose of a probation period is normally to enable the parties to make an assessment of the advantages resulting from the conclusion of an employment contract. Consequently, in line with International best practice and labour standard in our present globalise world, the continuation of services after the expiry of the probation period without a new contract being drawn up is equivalent to the conclusion of a contract of indeterminate duration which takes effect on the date on which the probation period began. In other words, where the worker continues to work after the probation period, the contract is deemed to have been concluded on the date on which the probation period began. Since the claimant in this case cannot and should not force a management agreement on the defendant, it is deemed that his contract which is a permanent one commenced on the 15th of September 2005, being the date he accepted the offer in Exhibit MFI 01 and I so hold. In fact, for a worker to remain unconfirmed for 6 years when he is supposed to be confirm after two years and then for his appointment to be terminated after six years without notice or payment in lieu of notice amounts to unfair labour practice which is contrary to section 254 C (I) (f) of the 1999 Constitution of the Federal Republic of Nigeria (FRN) as amended. The defendant has contended strenuously that this court has no jurisdiction on remittance of pension fund. The jurisdictional mandate of this court is limited to the payment and non-payment of pension which includes who is entitle to it and what is the amount of pension. By the value of Exhibit MFI 06, which is the staff hand book, couple with the evidence before the court, there is no doubt that the exhibit was issued by the defendant. It was also purportedly withdrawn by the defendant on the ground that its content was not favourable to it. This was the testimony of the defence witness. There is no evidence or letter before the court to show how and when the handbook was withdrawn. Moreover, the only defence witness was not there when the publication of Exhibit MFI 06 was made neither was she in the employment of the defendant when the withdrawal was done. In fact she testified that all what she was telling the court was what she was told. Base on this hearsay evidence I hold that the evidence of the claimant to the effect that exhibit MFI 06 was given to him by the defendant admin officer is credible. He also named the admin officer to be one Mr. Obinna. This piece of evidence remain unchallenged and uncontradicted. In the case of Iriri Vs. Erhurhobara 1991 2 NWLR Pt. 173 252 at 255, it was held that:- “Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seek to support”. In the same vein, it was also decided that:- “Whenever any evidence, affidavit, or oral evidence stands uncontradicted unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adverse party” Paragraph 15.2 of Exhibit MFI 05 reads “The Company shall pay retirement gratuity as follows: (1) for each completed year of service up to 5 years, 80% gross annual salary This is the relevant part in connection with this case. The said exhibit also graduated the years of retirement gratuity payment at internals of 5 years. Since the claimant has served for five years, I hold that he is entitled to this bracket of 80% of his gross annual salary. I have taken this position because failure on the part of the defendant to confirm or disengage the claimant after two years is taken and deem to be a contract of indeterminate duration in line with International best standard and fair labour practices. On issue of cost, there is no evidence before me to show that the claimant has incurred any special damages and since it is trite law that special damages can only be proved strictly, I hold that the claimant prayer in that regard fails. See the case of UTB Vs Ozoemena 2007 All FWLR (Pt. 358) at 1014. If a trial court finds the evidence led by a claimant believable, reliable and it accept it, and the evidence supports the case of the claimant, then he will be entitled to judgment in that regard. See the case of FCDA Vs Nzelu 2014 5 NWLR Pt 1401 565. From the totality of what I have said so far in this judgment and for the avoidance of doubt, judgment is hereby entered as follows: (1) The defendant should pay to the claimant the salaries for the months of September 2011, October 2011 and November 2011 at the rate of N55,503.61 (Fifty- five thousand, Five hundred and three Naira Sixty –one Kobo ) for each month being the arrears of salary unpaid before his termination. (2) The one month salary in lieu of notice of termination should be paid to the claimant forthwith. (3) The defendant should pay to the claimant 80% of the gross pay of N740.048.16 (Seven hundred and forty thousand, forty-eight naira sixteen Kobo) being the gratuity for each completed year of service up to 5 years as stated in the staff handbook Exhibit MFI 06. (4) All the statutory pension contribution of the claimant should be remitted to the IBTC pension managers account provided by the claimant in accordance with the pension reform Act within 7 days of the date of this judgment. The claimant in this instant case is asking that the amount ought to be remitted as employees contribution which was suppose to be deducted from his salary by the employer be remitted to his pension fund administrator the IBTC Pension Managers. The employee is not asking for the payment of the contribution directly to him. This is not envisaged by the Pension Reform Act. In the evidence before this court, the claimant has a pension account which is known to the employer, the defendant. The claimant have been in the employment for six years. Consequently and based on the decision of this court in the case of Sunny I Okwudiashi Vs. Costain West Africa PLC 2011 23 NLLR Pt. 65 299 National Industrial Court, I hold that the defendant failure to remit the claimants pension contributions is wrong and it is hereby ordered to remit all the pension contributions of claimant from all of his salary up to the date of his termination to his pension fund administrator IBTC Pension Managers within seven days of the date of this judgment. The judgment is to be satisfied within 30days from today. Failure shall attract 21% interest per annum. ----------------------------- Hon. Justice P.O Lifu JP. Judge