Mr. Eshiet Ukot Esenem -VS- Nicon Insurance Ltd. - National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. (PROF) JUSTICE ELIZABETH A OJI

DATE: FRIDAY 22^ND JULY 2022 SUIT NO. NICN/LA/113/2017

BETWEEN:

MR ESHIET U. ESENEM CLAIMANT

AND

NICON INSURANCE LIMITED DEFENDANT

Representation:

Jones Semidara for the Claimant

No representation for Defendant

JUDGMENT

Introduction and Claims:

1. The Claimant commenced this action by way of a General Form of Complaint dated 13^th March 2017 and claims as follows:

i. AN ORDER that the sum of N772,884.65 (Seven Hundred and Seventy Two Thousand, Eight Hundred and Eighty Four Naira, Sixty Five Kobo) only be paid to the Claimant as outstanding balance of his pension remittance into his premium pension Limited.

ii. General Damages in the sum of N500,000 (Five Hundred Thousand Naira) for the financial hardship the Claimant was made to encounter as a result of the actions of the Defendant.

iii. Cost of this suit.

2. Despite being served with the originating processes and hearing notices; the Defendant did not enter appearance nor file any processes in defence of this suit. Trial commenced in the suit on 20^th October 2021. The Claimant gave evidence for himself and the matter was adjourned for the Defendant to cross examine. The Defendant failed to be in Court to cross examine the Claimant, whereupon the Defendant’s right to cross examine was foreclosed. The matter was adjourned for adoption of final written addresses. On the 17^th of June, 2022, the Claimant adopted his final written address, and the matter was adjourned for judgment. During the examination in chief, the Claimant tendered seven exhibits which were admitted and marked as exhibit C1 – C7 as follows:

1. Offer of Appointment letter dated 5^th of June, 2006 -C1

2. Termination of Appointment letter titled Re-organisation and Restructuring dated 29^th of January, 2016. - C2

3. Confirmation letter dated 24'h of July,2007 - C3

4. Letter of Invitation dated 1st June, 2006 from the Office of the public defender to the Defendant. - C4

5. Petition to the Office of the Public Defender dated 25^th April, 2006 - C5

6. Letter of Reminder dated 29^th of June, 2016 - C6

7. Aiico Pension Managers Statement of Account from 1^st of January 2006 to 29^th of March, 2016. - C7

CASE OF THE CLAIMANT

3. The case of the Claimant is that he was appointed as an Officer 1 with effect from the 1^st of June, 2006 via an “offer of employment dated the 5^th of June. 2006” (Exhibit C1). His appointment was confirmed on the 24^th of July, 2007 via a letter of confirmation dated 24^th July, 2007 (Exhibit C3). His appointment was terminated effectively on the 29^th of January, 2016 via a letter titled 'Reorganisation and Restructuring" (Exhibit C2). During the period of June 2006 to 31^st January, 2016 the Defendant failed to remit the total sum of N772,884.65 (Seven Hundred and Seventy Two Thousand, Eight Hundred and Eighty Four Naira, Sixty Five Kobo) into his RSA with Premium Pension Limited despite monthly deductions from his salary. The Claimant tendered his AIICO pension statement of account (Exhibit C7). He made several efforts to get the Defendant to pay his outstanding pension funds but all efforts failed. He was constrained to seek help from the office of the Public Defender (OPD) via a petition (Exhibit C5). The OPD invited the Defendant for a meeting to resolve the matter via a letter (Exhibit C4), but the Defendant did not honour the invitation. The OPD sent another letter of reminder (Exhibit C6) which was not honoured too. The OPD decided to represent him and filed the matter before this Court since he could not afford the services of a lawyer.

4. The case of the Defendant is that his total salary was N81,213.30K monthly (Eighty-One Thousand, Two Hundred and Thirteen Naira, Thirty Kobo). That the Defendant deducts on a monthly basis without remitting same to his pension fund account. The Claimant states that:

In June 2006 to February 2007--------The Defendant deducted and failed to remit the sum of N6,739.58K (Six Thousand, Seven Hundred and Thirty-Nine Naira, Fifty-Eight Kobo) into the Claimant's Pension Fund Account.

In July 2007 to October 2007 ….The Defendant deducted and failed to remit the sum of N6,739.58K (Six Thousand, Seven Hundred and Thirty-Nine Naira, Fifty-Eight Kobo) into the Claimant's Pension Fund Account.

In July 2009 to December 2009 …. The Defendant deducted and failed to remit the sum of N9,266.94K (Nine Thousand, Two Hundred And Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account.

In February 2010 to December 2010….The Defendant deducted and failed to remit the sum of N9,266.94K (Nine Thousand, Two Hundred and Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account.

In April 2011 The Defendant deducted and failed to remit the sum of N9,266.94K (Nine Thousand, Two Hundred and Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account.

In July 2011 to December, 2011, the Defendant deducted and failed to remit the sum of N9.266.94K (Nine Thousand, Two Hundred and Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account.

In April 2012 to December, 2012, the Defendant deducted and failed to remit the sum of N9,266.94K (Nine Thousand, Two Hundred and Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account.

In January 2013 to December 2014…. The Defendant deducted and failed to remit the sum of N10,151.9K (Ten Thousand, One Hundred and Fifty-One Naira, Nine Kobo) into the Claimant's Pension Fund Account.

In January 2015 to March 2015…. The Defendant deducted and failed to remit the sum of N11,420.89K (Eleven Thousand, Four Hundred And Twenty Naira, Eighty-Nine Kobo) into the Claimant's Pension Fund Account.

In July 2015 to January 2016-------The Defendant deducted and failed to remit the sum of N11,420.89K (Eleven Thousand, Four Hundred and Twenty Naira, Eighty-Nine Kobo) into the Claimant's Pension Fund Account.

That the total sum of N772,884.05K (Seven Hundred And Seventy-Two Thousand, Eight Hundred And Eighty-Four Naira, Five Kobo) was deducted.

ARGUMENTS ON BEHALF OF THE CLAIMANT

5. The Claimant, in his final written address, raised a lone issue for determination:

· Whether the Claimant is entitled to all his reliefs as contained in his pleadings.

The Claimant took his reliefs seriatim. On Relief for “an Order that the sum of N772,884.65 (Seven Hundred and Seventy Two Thousand, Eight Hundred and Eighty Four Naira, Sixty Five Kobo) only be paid to the Claimant as outstanding balance of his pension remittance into his premium pension Limited,” the Claimant noted that Section 2 of the Pension Reform Act 2014 requires that a private sector employer with fifteen or more employees must establish a contributory pension scheme for the benefit of their employees, whereupon retirement benefits would be paid to such employees. That Section 11 (3) (b) of the Pension Reform Act 2014 provides that an employer is duty bound to deduct at source, the employee's contribution and within 7 days from the date of payment of salary, remit the employee and employer's contribution to the employee's preferred Pension Fund Administrator. He argued that it has been established that the Claimant was employed by the Defendant on the 1st of June 2006 and his appointment was subsequently confirmed on the 24th of July, 2007, till his eventual termination on the 29th of January, 2016. The Claimant argued that he established in his evidence that the Defendant failed to remit the monthly deductions from his salary into his Pension Fund Account as provided for by section 11 of the Pension Reform Act 2014, and thus is entitled to judgment.

6. On Relief two for “General Damages in the sum of N500,000 (Five Hundred Thousand Naira) for the financial hardship the Claimant was made to suffer as a result of the action of the Defendant, the Claimant argues that as a result of the Defendant's actions, he was unable to provide financially for his family, he had to borrow and source for funds just to make ends meet, thus harm was done to him. He argues that he could not afford the services of a lawyer so he had to seek the services of the Office of the Public Defender (OPD) to file this case on his behalf. The Claimant noted that by Section 11(6) of the Pension Reform Act 2014, an employer who fails to deduct or remit the contributions within the time stipulated in subsection (3) (b) shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission. Applying this principle, the Claimant submits that the Defendant having failed to remit the Claimant's pension is in contravention of the Pension Reform Act. The Claimant further argues that the Defendant did not and has not paid any penalty whatsoever as stipulated by the Act; hence the Claimant should be entitled to damages for the inaction of Defendant, and paid the sum of N500,000 as general damages.

7. On Relief 3 for Cost of the action, the Claimant submits that he is entitled to the cost of the day since cost follows event and he has shown this Court why his case should succeed with a cost awarded against the Defendant in favour of the Claimant.

DECISION

8. I have carefully considered the processes filed, the evidence led, the written submission and authorities cited in Claimant’s final addresses. I also evaluated all the exhibits tendered. I hereby set a lone issue down for determination:

· Whether on a balance of probability, the Claimant has proved his case to be entitled to the reliefs claimed.

9. This case is clearly undefended as the Defendant refused and/or failed to enter any defence despite being served the processes and various hearing notices. I therefore agree with Claimant’s argument that his evidence has been uncontroverted. However, the Claimant still has the onus to prove his case by evidence. As stated in Okonkwo v. Ezeonu & Ors (2017) LPELR-42785(CA) Per BOLAJI-YUSUFF JCA Pg. 7 at Para C-F, cited by Claimant:

The Law is settled that the onus is on the plaintiff to prove his case with cogent and credible evidence. Where a defendant fails to file a defence or lead evidence to rebut or challenge the evidence led by the plaintiff, the onus on the plaintiff is discharged on a minimal proof ...”

10. Though the Defendant led no evidence in its defence in relation to this case, it is the law that judgment would only be given to the Claimant on the strength of his case, not on the absence or weakness of the defence - Balogun v. Labiran (1988) NWLR (Pt.80) 66. As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. "See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668." Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

Also in the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA), the Court of Appeal held that:

It is quite elementary that no Court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all Courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.

11. In this case, it is Claimant’s testimony that he was employed by Defendant. Claimant proved this by the tendering of exhibit C1 which shows that he was offered employment on June 5^th 2006. This evidence is uncontroverted. It is also Claimant’s evidence that he was confirmed via exhibit C3. Claimant gave evidence that he was terminated via exhibit C2. Exhibit C2 proves he was paid one month salary in lieu of notice. Exhibit C2 in paragraph 3 states that; “Your PFA account will be credited with outstanding payment due to you.” Exhibit C2 indicates that the Defendant is aware of its indebtedness to the Claimant as regards his unremitted pension. By exhibit C5, the Claimant wrote to the Office of the Public Defender for legal assistance. The Office of the Public Defender wrote to the Defendant inviting them to a meeting to discuss the Claimant’s claims. When the Defendant failed to respond to the Office of the Public Defender, they wrote exhibit C6 reminding them of their first letter, and further inviting them for an amicable settlement of the matter. The Defendant again failed to attend; whereupon the Office of the Public Defender filed this suit on behalf of the Claimant. The Defendant, despite being served the originating processes and various hearing notices, failed and or neglected to defend this suit.

12. The Claimant also tendered his AIICO pension statement of account for the period of 2006 to 2016 (exhibit C7) which clearly shows that the Defendant failed to remit the monthly deducted sums from his salary on numerous occasions, an act which is clearly frowned upon by the Pension Reform Act of 2014. The Claimant calculated the sum owed to him by the Defendant to the tune of N772,884.65(Seven Hundred and Seventy Two Thousand, Eight Hundred and Eighty Four Naira, Sixty Five Kobo). Exhibit C7 shows that there were no remittances for the following months:

In April 2011 The Defendant deducted and failed to remit the sum of N9,266.94K (Nine Thousand, Two Hundred and Sixty-Six Naira, Ninety-Four Kobo) into the Claimant's Pension Fund Account(one month).

The total came to of N772,884.05K (Seven Hundred And Seventy-Two Thousand, Eight Hundred And Eighty-Four Naira, Five Kobo).

13. This fact is seen from exhibit C7 where no entries were made to show that any remittances were made for the periods. This evidence remains uncontroverted. I therefore find that the Claimant has established his entitlement to his first relief. I so hold. The Defendant is ordered to pay to the Claimant the sum of N772,884.65 (Seven Hundred and Seventy Two Thousand, Eight Hundred and Eighty Four Naira, Sixty Five Kobo) being the outstanding balance of the Claimant’s pension remittance into his Premium Pension Limited account.

14. The Claimant in his second relief seeks for “General Damages in the sum of N500,000 (Five Hundred Thousand Naira) for the financial hardship the Claimant was made to encounter as a result of the actions of the Defendant”. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant's act. It needs not to be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. See Elf Petroleum v. Umah & Ors (2018) LPELR-43600(SC). Unlike special damages, it is generally incapable of exact calculation. See Federal Mortgage Finance Ltd v. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and Waso v. Kalla (1978) 3 SC 21." Per OGUNBIYI, J.S.C. (Pp. 27-28, Paras. C-A). In the case of Ibrahim & Ors v. Obaje (2017) LPELR-43749(SC), the Supreme Court held that, "there is no yardstick for awarding General Damages. In awarding General Damages, the trial Judge should examine the circumstances of the case and grant an award guided by what a reasonable man would expect”.

15. According to this Court in Babatunde Ajala v. Rite Pak Company Limited Suit No. NICN/LA/432/2013 judgment delivered on 28/1/2019 per BB Kanyip (PNICN):

SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 84 to 85, relying on Chaplin v. Hicks [1911] 2 KB 786, held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for its breach of duty of care and it is no ground for awarding nominal damages. The case, relying on Ehidiagbonya v. Dumez (Nig.) Ltd & anor [1986] 6 SC 149 at 164; [1986] 3 NWLR (Pt. 31) 753, went on to hold that in assessing general damages, the court has to consider what is fair and reasonable compensation for injuries sustained; and that previous awards made by judges in comparable cases can be relied on. In the area of damages for personal injury, Hamza v. Kure [2010] LPELR-1351(SC); [2010] 10 NWLR (Pt. 1203) 630 SC, and Edo State Agency for the Control of AIDS (EDOSACA) v. Osakue & ors [2018] LPELR-44157(CA), relying on Ighreriniovo v. SCC (Nig) Ltd & ors [2013] 10 NWLR (Pt. 1361) 138, held that general damages are awardable for pain and suffering, discomfort and permanent scarring, and that no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum. The Claimant was hospitalized as a result of the injury he sustained from the accident, although it was the defendant who paid the hospital bills. See paragraphs 10 and 13 of the claimant’s deposition.

16. The Claimant has given evidence on the refusal of the Defendant to meet their contractual responsibility to the Claimant. As a result, the Claimant had to go through the strain of litigation from March 2017 to July 2022, just to recover his deducted pension. I accept Claimant’s evidence that he made several visits to the Defendant and went through financial stress; just to recover his deducted but unremitted pension, duly acknowledged by the Defendant in exhibit C2. I am convinced that the Claimant is entitled to general damages for what he went through. I set the Claimant’s damages at N200,000.00 only. The Defendant is ordered to pay the sum of N200,000.00 to the Claimant for stress and financial stress he had to go through just to recover his pension.

Cost of this action is set at N100,000.00 to be paid by the Defendant to the Claimant. All sums adjudged due to the Claimant are to be paid no later than 30 days from this judgment. Failure, interest will accrue at the rate of 20% per annum.

Judgment is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD