IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                            HON. JUSTICE M. N. ESOWE

 

DATE: AUGUST 25, 2023                              SUIT NO: NICN/LA/56/2018

 

BETWEEN    

MR KALU SYLVESTER ADEME                                            CLAIMANT

 

AND

1.      ARIK AIR LIMITED

2.      ASSET MANAGEMENT CORPORATION                   DEFENDANTS

OF NIGERIA                            

 

REPRESENTATION

Dr Iwowo Anthony, Esq. with Iwowo Mercy, Esq. for the Claimant

Dr. C. O. Ukattah, Esq. with J. Ayanda, Esq., A. Ubale, Esq. for the Defendants.

 

JUDGMENT

1.      INTRODUCTION

2.      This suit was instituted by the Claimant vide a Complaint dated and filed 9th February 2018. However, arising from an order of this Honourable Court joining the 2nd Defendant in this suit, and a subsequent order to enable the Claimant amend his process before this Honourable Court, the Claimant amended his processes before this Honourable Court.

 

3.      In an Amended Statement of Facts dated 24th June 2022, the Claimant seeks the following reliefs:

 

a.      A DECLARATION that the 1st Defendant’s failure to immediately transfer/remit total/complete/absolute monthly pension contributions of the Claimant for the entire period of his employment with the 1st Defendant into his Retirement Saving Account with his Pension Fund Administrators being Stanbic Pension Managers to the tune of N3,451,888.00 is unlawful, illegal, and same is in clear breach of his contract of employment.

 

b.      AN ORDER directing and mandating the Defendants to immediately transfer/remit total/complete/absolute monthly pension contributions of the Claimant for the entire period of his employment with the 1st Defendant into his Retirement Saving Account with his Pension Fund Administrators being Stanbic Pension Managers to the tune of N3,541,888.00 is unlawful, illegal, and same is in clear breach of his contract of employment.

 

c.      A DECLARATION that the Claimant is entitled to 2% being penalty due to non-remittance of the Claimant’s contribution by the 1st Defendant.

 

d.      AN ORDER of this Honourable Court directing the Defendants to pay the Claimant the sum of N70,837.76 being 2% of N3,541,888.00 paid as penalty for non-remittance of the Claimant’s pension contribution to the pension managers.

 

e.      N155,000.00 being unpaid salary for the month for the month of November 2015.

 

f.        N580,820 being total allowance package for the month of November 2015

 

g.      N155,000.00 being one month’s salary in lieu of notice.

 

h.      N685,000.00 as unpaid leave allowance from 2010 to 2015 from 2015 to 2013 (sic) = N125,000 x 3 = N375,000 and from 2014 to 2015 = N155,000 x 2 = N310,000. Therefore, N375,000 + N310,000 = N685,000.00.

 

i.        N775,000.00 as payment for gratuity to the Claimant same having worked with the 1st Defendant for 5 years.

 

j.        Interest at the CBN prevailing rate on the unremitted pension contributions, unpaid salary for the month of November 2015, salary in lieu of resignation, total allowance package for the month of November 2015 and total allowance package in lieu of resignation until judgment, and 20% after judgment until the sums are wholly liquidated.

 

k.      N1,000,000 being general damages for the undue hardship and psychological trauma of which the Claimant has been through as a result of non-remittance of his already deducted pension contributions and non-payment of his two outstanding salaries by the Defendants as stated herein.

 

l.        Cost of action as may be assessed by this Court.

        i.            The particulars of the claim were stated as follows:

     ii.            Unpaid salary for the month of November 2015 = N155,000.00

   iii.            Claimant’s one month unpaid salary in lieu of resignation = N155,000.00

   iv.            Unpaid total allowance package for the month of November 2015 = N580,820.00

      v.            Unpaid leave allowance package from 2010 to 2015. i.e basic salary minus other allowances from 2010 to 2013 = N125,000 x 3 = N375,000, and from 2014 to 2015 = N155,000 x 2 = N310,000. Therefore, N375,000 + N310,000 = N685,000.00.

   vi.            Unremitted pension contribution fund from 2010 to 2015 calculated by deducting 7.5% from the summation of basic salary housing allowance and transport allowance of the employee and equivalent contribution from the employer making it 15% monthly.

 vii.            October to December 2010 at N28,125 x 2 = N56,250 x 3 months = N168,750.

viii.            January to December 2011 at N28,125x2x12 months = N675,000.

    ix.            January to December 2012 at N28,125x2x12 months= N675,000.

      x.            January to June 2013 at N28,125x2x6 months = N337,500.

    xi.            July to December 2013 at N34,875x2x6 months = N418,500.

 xii.            January to December 2014 at N34,875 x 2 x 6 months (sic) = N837,000.

xiii.            January to November 2015 at N34,875 x 2 x 11 months = N767,250.

 

4.     SUMMARY OF FACTS

5.     According to the Claimant, from his Amended Statement of Facts dated 27th February 2022 stated that he was an employee of the 1st Defendant as evidenced by the letter dated 14th September 2010, and his employment was confirmed after completing a mandatory 6 months’ probation period – his employment was confirmed on by the letter of confirmation dated 19th September 2012.  After working from 2010 to 2015, Claimant informed the 1st Defendant of his intention to resign vide a correspondence dated 5th November 2015 to which he gave the 1st Defendant 1 month’s notice of his intention to resign. After his resignation, Claimant alleges that the sum of N155,000 representing his one-month salary in lieu of resignation was not paid; his allowance package of N580,000 was not paid; that he also got to discover after his resignation that the 1st Defendant only remitted his pension contribution for the month of October 2011, February 2012, January and February 2013, and no more, even though the 1st Defendant kept deducting money for this purpose throughout the 5 years of his job with 1st Defendant.

 

6.     These and more have led to the nature of reliefs sought by the Claimant in this suit.

 

7.     It must be noted that the 2nd Defendant was joined in this suit arising from the discovery that the 1st Defendant is in receivership at the hands of the 2nd Defendant.

 

8.     On the part of the Defendants, from their Statement of Defence dated 11th July 2022 and filed 20th July 2022, the 1st Defendant, while not denying the Claimant used to be in her employment, stated, however, that he breached the terms of his employment because while he was in the employment of the 1st Defendant, he undertook ground school training exercise with Dana Airlines Ltd in furtherance of his employment with Dana. Consequent on this, he was issued a query dated 5/11/2015 by the 1st Defendant to which in his response, Claimant admitted to having undergone the ground school training with Dana whilst still in 1st Defendant’s employment. That arising from this breach, the Claimant is not entitled to his salary in the month of November 2015; he is not entitled to salary in lieu of notice because it wasn’t the 1st Defendant that terminated his employment. Also, the Claimant is not entitled to leave allowance under the terms and conditions of his employment.

 

9.     While contending that the Claimant has no cause of action against the Defendants, they pray the Court to dismiss the case and award cost against the Claimant.

 

10.It must be noted that on receipt of the Defendants’ Statement of Defence, the Claimant filed a Reply to the Defendants’ Statement of Defence.

 

11. COMMENCEMENT OF HEARING

12. Hearing in this suit commenced before me on 15th of November 2022 to which the Claimant was called to testify as CW1. He adopted his witness statement on oath dated 27/07/2022 and his further witness statement on oath dated 03/08/2022. He also relied on all the documents attached, and tendered same in evidence in chief. He was subsequently cross-examined by the Counsel to Defendants.  Thereafter, Claimant closed his case.

 

13. On the part of the 1st Defendant, on the close of the case of the Claimant, Learned Counsel to the Defendants informed the Court that they would not fielding any witness.

 

14. That said, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

 

15. FINAL WRITTEN ADDRESSES

16. In Claimant’s final written address dated 2nd December 2022 and filed 5th December 2022, Learned Counsel on behalf of Claimant formulated 2 issues for determination:

a.      Whether the Claimant is entitled to his claims, having regard to his pleading, the evidence led in support and documents tendered in proof of his case.

 

b.      Whether the Defendants’ failure to lead evidence on pleaded facts in their joint statement of defence is tantamount to abandoning same and therefore fatal to their case.

 

17. On issue 1, that is, whether the Claimant is entitled to his claims, having regard to his pleading, the evidence led in support and documents tendered in proof of his case, Learned Counsel to Claimant submitted that for starters, it is expedient to deal with Defendants’ objection to the tendering and admission of the Statement of Account Summary from Stanbic IBTC Pension Managers which was admitted and marked as Exhibit C8.

 

18. Claimant’s Counsel submitted that by reason of Order 15 Rules 3 & 4 of the National Industrial Court Civil Procedure Rules 2017, a Defendant who intends to object to the admissibility of a document shall so indicate in his Statement of Defence or he shall be deemed to have admitted them and shall not be allowed to raise any objection to the admissibility of those documents as pleaded in the Statement of Facts. That in the case herein, since the Defendant did not indicate opposition to any of the documents pleaded and frontloaded by the Claimant, the same should be deemed to have been admitted except the Court directs otherwise.

 

19. Claimant’s Counsel also submitted that in the event that the Court finds that anything was wrong with the admission of Exhibit C8 in relation to the Evidence Act, the Court should invoke Section 12(2)(b) of the National Industrial Court Act 2006 to depart from the Evidence Act and admit the said document in the interest of justice. He referred the Court to Mr Victor Adegboye v. United Bank for Africa (2012) unreported. It must be noted that Claimant’s did not supply the suit number or the division of this Court that sat on the cited suit above, nor was the date of the decision supplied by the Claimant’s Counsel.

 

20. Moving on to the burden of proof, Claimant’s Counsel submitted that the onus is on the employee to prove that he was employed on a salary and the period he worked with the employer. On the other hand, it is for the employer to prove that he paid the employee salary for work done and for the period that the Claimant worked. He submitted that in the case herein, the Claimant tendered Exhibit C1 dated 14/09/2010 which is his letter of appointment. In the said appointment letter, Claimant’s gross salary was put at N6,000,000, and by Exhibit C3 – letter of promotion – annual gross salary of the Claimant was put at N7,440,000. While referring to other documents tendered in evidence by the Claimant, Claimant’s Counsel has been able to prove and establish his case. That done, the onus shifted to the Defendants to disprove or dislodge what the Claimant has established.

 

21.  On whether the burden of proof can shift in civil cases, Claimant’s Counsel submitted that the reasonable conclusion in this case is that the Defendants could not controvert the claims of the Claimant. As such, the Defendants have admitted the totality of the Claimant’s claim since they were able to lead, through cogent and credible to contradict the claims of the Claimant. That in civil cases the burden of proof keeps shifting among the parties. Claimant’s counsel referred Court to Section 131 – 134 of the Evidence Act 2011.

 

22. Claimant’s Counsel submitted that the burden of proof is not static in civil proceedings, rather, it behooves the vulnerable party to lead evidence to contradict the other party. He referred Court to Adegoke v Adibi 5 NWLR (Pt 242) 410; Onobruchere v Esegine (1986) 1 NWLR (Pt 19) 799.

 

23. It is the submission of Claimant’s Counsel that the Claimant has discharged the onus of proof placed on him but regrettably, the Defendants did nothing to controvert and discharge the burden when it shifted to them. He therefore urged the Court to so hold.

 

24. On unchallenged and uncontroverted evidence being deemed admitted, Claimant’s Counsel submitted that the Claimant furnished the Court with overwhelming evidence and Defendants, not having denied same specifically, called in witness to give oral testimony nor tender any document to show the Court that they paid the Claimant the money claimed by the Claimant, should be deemed to have admitted the facts pleaded by the Claimant. In this vein, facts admitted need no further proof. He referred the Court to Odebunmi v. Abdullahi (1997) 2 NWLR (Pt 489) 529; Oseni v. Bajulu (2009) 12 MJSC (Pt 1) 30; Atuchukwu v. Adindu (2012) 6 NWLR (Pt 1297).

 

25. On failure of an employer to remit deducted pension, Claimant’s Counsel submitted that Section 11(6) of the Pension Act 2014 provides that any employer who fails to remit the pension contributions of its employee within the time prescribed, which is 7 working days, shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission. The penalty, according to the Pension Act, shall not be less than 2 percent of the total contribution that remains unpaid for each month. He referred Court to Section 11(6) of the Pension Act.

 

26. Claimant’s Counsel submitted further that the law is settled that an employer who deducts funds from an employee’s monthly salary for the purposes of contributory pension is duty bound to remit the fund to the pension managers of the employee. He referred Court to Section 5(3) of the Labour Act Cap L1 LFN 2004. In the instant case, the 1st Defendant made the deduction but failed to remit the same. Defendant did this for the 62 months that Claimant was in her employment but failed to remit same in contravention of the relevant provisions of the Pension Act.

 

27. It is the submission of Claimant’s Counsel that entitlement for an employee is a basic right and unpalatable circumstances like non-payment or failure to pay salary, pension and allowances as in the case herein, is unlawful and actionable. He therefore urged the Court to so hold.

 

28. Claimant’s Counsel also posited that the Claimant is entitled to interest as of right on the prevailing Central Bank of Nigeria interest rate over his unpaid entitlements. He relied on the case of Afribank Nig. Plc v Aminu Ishola Investment Ltd (2001) LPELR-10929. He also referred the Court to Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017.

 

29. On whether the 2nd Defendant is a necessary party in this suit, Claimant’s Counsel submitted that from Exhibit C tendered and admitted by this Honourable Court, it shows that facts exist that show that the 2nd Defendant is in receivership of the assets of the 1st Defendant. In this vein, whatever judgment is entered against the 1st Defendant binds the 2nd Defendant as the receiver of the assets of the 1st Defendant.

 

30. It is the submission of Claimant’s Counsel that the law is trite that a person or entity in whose absence the proceedings cannot be fairly dealt with is a necessary party and should be made a party. He referred the Court to Green v. Green (1987) 3 NWLR (Pt 61) P. 480; Babyeju v Ashamu (1998) 9 NWLR (Pt 567) P. 546.

 

31. On general damages, Claimant’s Counsel submitted that the Claimant is entitled to general damages in that there cannot be a wrong without a remedy; also damages flow naturally from the wrong or action complained of. He referred Court to Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370.

 

32. Claimant’s Counsel posited that in the case herein, the Claimant earned his unpaid salaries, pensions, allowances, and deserves to be paid. Therefore, the Defendant’s failure to pay him, despite repeated demands, makes him liable to pay damages to the Claimant. It is the submission of Claimant’s Counsel that Claimant has satisfactorily established his case to be entitled to the reliefs sought.

 

33. On issue 2, that is, whether the Defendants’ failure to lead evidence on pleaded facts in their joint Statement of Defence is tantamount to abandoning same and therefore fatal to their case, Claimant’s Counsel submitted that the Defendants did not lead oral evidence in support of their pleadings nor did they tender any documentary evidence to substantiate their pleadings. By implication, the Defendants have abandoned their case, and same should be deemed as a tacit admission of the Claimant’s case. He relied on Ukaegbu v. Ugoji (1991) 7 SCNJ 224; Nika Fishing Co Ltd v. Lavina Corp (2008) 6-7 SC (Pt 11) 200; Bello v. Iweka (1981)1 SC 101; Mogaji v. Cadbury Nig Ltd (1981) 2 NWLR (Pt 7) 393.

 

34. It is the submission of Claimant’s Counsel that the Defendants’ failure to lead or adduce any evidence in proof of their case should be deemed that they have abandoned their case. He also urged the Court to grant all the reliefs sought by the Claimant in the interest of justice.

 

35. On receipt of the Claimant’s final written address, the Defendants filed theirs dated 5th January 2023 submitting 3 issues for determination:

a.  Whether the Claimant is entitled to his claims, having regards to his pleadings, the evidence led in support and the documents tendered in proof of same.

b. Whether the Defendants’ failure to lead evidence on pleaded facts in their joint Statement of Defence is tantamount to abandoning same and therefore fatal to Defendants’ case.

c. Whether the 2nd Defendant is liable for the employment claims of the Claimant.

 

36. Before addressing the issues formulated above, the Defendants first addressed their objections to the admissibility of IBTC’s statement of account which was tendered and admitted as Exhibit C8. Defendants’ Counsel submitted that Sections 89(f) & 90(1) (e) of the Evidence Act 2011 provide for the test of admissibility for entry in a banker’s book. That these sections provide that secondary evidence of the original entry in a banker’s book is admissible insofar as it is proven that (a) the book was in the control and custody of the bank which proof is given by an officer of the bank, (b) the book in which the entries were made was at the time of making one of the ordinary books of the bank, (c) the entry was made in the usual and ordinary course of business and the copy was examined with the original copy and (d) the person who examined the copy with the original copy certifies that the copy is correct.

 

37. It is the submission of Defendants’ Counsel that the test of admissibility of banker’s book has received judicial credence in a plethora of decisions. He referred the Court to Unity Life & Fire Insurance Company Ltd v. Int’l Bank of West Africa Ltd (2001) LPELR – 3412 (SC) Pp 16 – 18, paras G – C; Yemole (Nig) Ltd & Anor v. Access Bank (2017) LPELR – 42607 (CA) Pp 9 – 17; UBA v. Carlink Ltd (2019) LPELR -49917 (CA) pp. 33 – 39 paras D – B.

 

38. The position of the Defendants’ Counsel is that in the instant case, the Claimant tendered a bank statement without satisfying the requirement of Section 90 of the Evidence Act. In this vein, Exhibit C8 is a worthless document, inadmissible, and should be expunged from the Court’s records.

 

39. On the position of the Claimant’s Counsel that this Court can and should depart from the Evidence Act in the interest of justice as touching on the admissibility of Exhibit C8, Defendant’s Counsel submitted that by virtue of Section 12(2) of the NIC Act 2006 it is provided that the Court shall be bound by the Evidence Act but may depart from it in the interest of justice. Defendants’ Counsel opined that the use of the word shall connotes mandatory compliance. He relied on Tabik Investment Ltd v. GTB (2011) LPELR –3131 (SC) Pp 11 – 12 Paras F – B. He argued further that, in any event, it is only when the Claimant has demonstrated that the interest of justice will be served by non-conformity with the Evidence Act that the Court can depart from the evidence Act. In this instance, the Claimant failed to demonstrate that the interest of justice will best be served in departing from the Evidence Act.

 

40. On the position of the Claimant and his reliance on Order 15 Rules 3 & 4 of the National Industrial Court (Civil Procedure) Rules to which Claimant’s Counsel posited that Defendants, from the outset, did not indicate they would object to any document in their Statement of Defence, Defendants’ Counsel submitted that the directive in the said order leaves the admission of documents by the Defendants or otherwise to the judge. Furthermore, on 15/11/2022, the Defendants reserved their right to object to the admissibility of the documents to the final address stage, and the Claimant did not object to this even as the Court granted same. In this vein, Claimant is estopped, at this stage, to argue that the Defendants cannot raise objections at the final address stage. He urged the Court to so hold. Flowing from the foregoing, Defendants’ Counsel urged the Court to expunge Exhibit C3 & C8 from its records as they fail to satisfy the requirements of the law on admissibility.

 

41. Having ventilated on their objection, Defendants’ Counsel proceeded to address issues 1 & 2 of their formulated issues together.

 

42.  Defendants’ Counsel submitted that the law is settled that a general traverse in a Statement of Defence cast the burden of proving the averments in the Statement of Claim on the Claimant. Furthermore, the Defendant need not deny every averment in a Statement of Claim seriatim. Rather, a Defendant will be deemed to have joined issues if he denies the Claimant’s averments. He relied on the Supreme Court’s decision in Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR – 42573 (SC) Pp 14 –17 Paras C – F.

 

43.   It is the submission of Defendants’ Counsel that in this case, the Defendants joined issues with the Claimant through their Statement of Defence as such the Claimant is required to strictly prove his claim.

 

44.  Defendants’ Counsel submitted further that the claims of the Claimant are on special damages. Therefore, the claims must be specifically pleaded and strictly proved. He relied on Onyiorah v. Onyiora & Anor (2019) LPELR – 49096 (SC) P. 9 Paras E – F. Defendants’ Counsel, while highlighting each head of the claims of the Claimant concluded that Claimant has not strictly proved his case to be entitled to the reliefs sought.

 

45.  On issue 3, that is, whether the 2nd Defendant is liable for the employment claims of the Claimant, the Defendants’ Counsel submitted that Exhibit C12 speaks for itself, and in it, there is nowhere the 2nd Defendant indicated that it was taking over the liabilities of the 1st Defendant. Furthermore, the Claimant failed to adduce any document to show the nature of interest the 2nd Defendant has in the 1st Defendant. The Claimant did not show any agreement or order of Court transferring the liabilities of the 1st Defendant to the 2nd Defendant. Rather, the Claimant left the Court with dwelling on speculation when the trite law is that the Court does not act on speculation, and no cause of action can be premised on speculation. He relied on Mohammed v. Wammako (2018) 7 NWLR (Pt 1619) 573 at 590 paras F – G.

 

46.  Defendants’ Counsel also submitted that the trite law is that a receiver of the assets of a company is a creditor of a company and does not acquire the liabilities of the company. He relied on KPMG Marwick Ani Ogunde & Co & Anor v. Visana (Nig) Ltd & Ors (2021) LPELR – 54935 (CA) pp 33 Paras B – F where the Court stated that a legal consequence of the appointment of a receiver/manager is that the receiver/manager can deal with the assets in receivership, and he cannot be held liable for debts incurred by the company in receivership.

 

47.  It is the submission of Defendants’ Counsel that the Claimant also failed to disclose any cause of action against the 2nd Defendant. That it is trite that to disclose a cause of action in an employment, the Claimant must show that there was a contract of employment between him and the Defendant, and he must also spell out the terms of the contract. He referred Court to B.A Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 at 519.

 

48.  Defendants’ Counsel therefore urged the Court to resolve all issues in their favour and dismiss the Claimant’s case.

 

49.  On the receipt of the Defendants’ final written address, the Claimant responded through a Reply on points of law dated and filed 30th January 2023 to which Claimant’s Counsel replied on points of law and adumbrated further on issues raised in their earlier final written address.

 

50. COURT

51. Having gone through the Claimant’s claim, evidence led in support, the Defendants’ defence, and the final written submissions of Counsel on both sides, this Court, while adopting all the issues formulated by Counsel, has distilled 2 issues for determination, to wit:

 

a.      Whether given the circumstances, the document tendered and admitted in evidence as Exhibit C8 is inadmissible at law.

b.      Whether the Claimant has proved his case to be entitled to the reliefs sought.

 

52.  On issue 1: whether given the circumstances, the document tendered and admitted in evidence as Exhibit C8 is inadmissible at law.

 

53.  The document marked as Exhibit C8 formed part of the introductory part of the Defendants’ final written address to which the Defendants’ Counsel ventilated their objection to the admissibility of the said document which is titled Account Statement Summary from Stanbic IBTC. To Defendants, the document ought not to be admitted as it violates the provision of Sections 89 & 90 of the Evidence Act.

 

54.  On the part of the Claimant, Counsel to Claimant argued amongst other arguments that the objection of the Defendants to the admissibility of Exhibit C8 is coming at the inappropriate time. That such objection ought to have come at the outset to which the Defendants was to object when he had the chance to so do as provided in Order 15 Rules 3 & 4 of the National Industrial Court Civil Procedure Rules 2017. I will like to reproduce the provision hereinunder. It provides:

 

55.  Where a defendant/respondent is served with a schedule of documents or any recording by an electronic device to be relied on at the trial by the claimant, in compliance with Order 3 rules 9 and 10 of these Rules, the defendant(s) shall file and serve along with the defence a schedule that indicates:

    i.      the document(s) or any recording by an electronic device the admissibility of which the defendant shall not be objecting to at the trial; and

  ii.      the document(s) or any recording by an electronic device which the defendant shall be objecting to at the trial.

 

b.      4.—(1) Any document or recording by an electronic device contained in the schedule which is not objected to by the Defendant shall be deemed admitted except the Court otherwise directs.

 

c.       Provided at all times that a party that has signified an intention to object to the admissibility of a document or documents or any recording by an electronic device sought to be tendered by the other party shall file separately a short but succinct Written Address stating the ground(s) of objection and legal argument
and authority for same. Provided also that a party to whose document and or any recording by an electronic device an objection has been raised, upon being served with the
notice of objection together with the written argument in support of same, shall accompany such party’s reply process(es) which shall be on point of law with a written address in response to the objector’s argument, within fourteen(14) days of service of the objector’s process(es).

 

d.      Provided further that at the commencement of trial, the Court may take and dispose of all arguments on the admissibility and non-admissibility of the documents or any recording by electronic device off all parties.

e.       Nothing in the foregoing shall preclude the Court from taking the arguments on admissibility and evidential value of documents and exhibits alongside arguments as to the substantive suit at the close of evidence at the stage of final addresses.

(Underlining mine for emphasis)

 

56. From the foregoing, and from the underlined, it is glaring that even though the beginning of the rules laid emphasis on objection to the admissibility of documents to be brought at the early stage of the suit, the end part of those same rules provided that nothing in the aforementioned rules shall preclude the Court from taking arguments on admissibility and evidential value of documents alongside arguments taken in the substantive suit at the close of evidence at the stage of final written addresses. In this vein, it is not out of place for this Honourable Court to entertain the objection of the Defendants herein which was brought at the final address stage of this suit, and I so hold.

 

57. I would like to add that the Rules of Court are a helpful guide to the Court and the Court cannot be seen as being slavish to its own rules which are her helpmate. See Anyaso v Anyaso (1998) 9 NWLR (Pt. 564) 150, the Court held:  A rule of Court should be a helpful handmaid and not a tyrannical and uncompromising master. It is undesirable to give effect to rules which permit one party to score cheap technical victory at the expense of a hearing on the merit.

 

58. See also Atiku Abubarka v Umaru Musa Yaradua (2008) 4 NWLR (Pt.1078) 465 at 511 where the Court held: Rules of Court are meant to be obeyed… Their obedience shall not be slavish to the point that justice in the case is destroyed or thrown overboard.

 

59. In this light, the position of the Claimant would have been more appropriate if there was a pre-trial conference to which consideration was given for documents that will be tendered and admitted without objection as well as documents that will be tendered and admitted with objection before the beginning of the proper trial. Furthermore, whenever a Defendant joins issues with the Claimant through his Statement of Defence to which he vehemently denies the claim of the Claimant and put the Claimant to strictest proof of his claim, there is always the presumption that such a Defendant will extend his vehement denial to the objection of the documents that the Claimant will seek to tender in support of his claim. So, in all, nothing estops the Defendants from bringing their objection at this stage of final written addresses.

 

60. The objection of the Defendants to Exhibit C8 is predicated on Section 89(f) & 90(1)(e) of the Evidence Act 2011.For the purpose of clarity, I will like to produce Sections 89(f) -  (h) & 90(1)(e) of the Evidence Act 2011 below: 89. secondary evidence may be given for the existence, condition or contents of a document when: (f). The original is a document of which a certified copy is permitted by the Act or any other law in force in Nigeria to be given in evidence. (g). The original consists of numerous accounts and other documents which cannot conveniently be examined in Court, and the fact to be proved is a general result of the whole collection; or (h) The document is an entry in a banker’s book.

 

61. 90(1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs in section 89 are as follows: (e) In paragraph (h), the copies cannot be received as evidence unless it is first proved that: The book in which the entry copies were made was at the time of making one of the ordinary books of the bank, (ii) The entry was made in the usual and ordinary course of business, (iii) The book is in the control and custody of the bank which proof may be given orally or by affidavit by an officer of the bank, and (iv) The copy has been examined with the original and it is correct which proof must be given by some person who has examined the copy with the original copy and may be given orally or by affidavit.

 

62. On the part of the Claimant, Claimant’s Counsel argued that Sections 89 & 90 of the Evidence Act do not apply in this circumstance. Rather, it is Section 84 of the Evidence Act which touches on computer-generated document that applies.

 

63. I quite agree with the Claimant that in this circumstance, it is Section 84 of the Evidence Act 2011 on computer-generated document that applies. This is so because on a careful look at Exhibit C8, it is obvious that it is more of a document generated from a computer than a document copied from a book or banker’s book. The question, therefore, is - Do banks still keep information in banker’s books? We live in an era where data is kept in a data base or server and with the snap of the fingers sending a query to the data base or server, information is pulled out on the computer screen and printed out using a printing device. In all fairness to the Defendants, there is nothing like book(s) this day in the operation of a bank – from opening your account to withdrawing money or printing a bank statement –the information is fed into a computer and pulled out of a computer. In this light, the Claimant is not wrong to, while seeking protection of the Court in Section 12 of NICA to depart from Section 89 & 90 of the Evidence Act 2011 to do justice in this case, he is also relying on the provision of Section 84 of the Evidence Act 2011 as the proper section to govern this kind of transaction.

 

64. In the light of what has been said above, this Court will not discountenance a bank statement which has the imprimatur stamp and signature of the issuing bank officer, and it was issued for the benefit of the person who seeks to tender it, after complying with Section 84 of the Evidence Act 2011 on computer generated document. For what it is worth, the provision of the Evidence Act on banker’s book no longer aligns with the reality of our times. As such, it is becoming quite archaic because the reality of our times is that banks now deploy the use of technology in rendering their services, not books or banker’s books. Enforcing this law is like taking us back to the era where everything – from opening a bank account to withdrawal, etc. - were recorded in a book. I would rather a bank statement is now treated as a computer-generated document than a document sourced from bank books that do not exist, and I strongly believe that just as legal advocacy caused an amendment of the Evidence Act to accommodate computer generated document, one day, legal advocacy will also cause an amendment in Section 89 & 90 of the Evidence Act to meet the reality of our times as far as bank statement is concerned.

 

65. Even though I quite agree with the Claimant’s Counsel’s submission that it is the provision of the Evidence Act on computer-generated document that applies in this case, there is a little thing about Exhibit C8 that makes me uncomfortable, and whenever I look at it, it reminds me of the Holy Book when it says beware of the little foxes that spoil the vine. Could it be that there is a little fox that spoils the vine of this computer-generated document?

 

66. In paragraph 15 of the Claimant’s amended statement of facts, the Claimant avers thus: 15. The Claimant states that he was surprised to know at the time he voluntarily resigned from the employment of the 1st Defendant that the 1st Defendant only remitted his pension contributions for the month of October in 2011, for the month of February respectively in 2013 out of five (5) solid years of his employment with the 1st Defendant despite that the 1st Defendant had deducted the said pension contributions accordingly from his salary for each month for the five years but did not remit them. The Claimant shall found and rely on account statement summary from his Pension Fund Administrators at the trial of this suit.

 

67. Now, to go back to the little fox thing, the document which the Claimant averred to found and rely on is what is admitted before this Honourable Court as Exhibit C8. Supposedly, that same document is from a financial institution. Surprisingly, the same document lacks authenticity, and it makes no pretense about it. As stated earlier, the Court will not discountenance a bank statement which has the imprimatur and signature of the issuing bank officer, and it was issued for the benefit of the person who seeks to tender it, after complying with Section 84 of the Evidence Act 2011. However, what will become of the Court if it doesn’t discountenance a document supposedly issued by a financial institution, yet the document does not have the heading of the financial institution, no stamp or signature of the issuing officer of the financial institution? These are the little foxes that spoil the vine of Exhibit C8, and in the face of all these anomalies which underscore lack of authenticity, there are plethora of judicial authorities on the point that an unsigned document is a worthless document. Consequently, this Court is constrained to hold that Exhibit C8 is a worthless document. Accordingly, it shall be expunged from the records of the Court, and I so hold.

 

68. That said, the Court shall proceed to determine issue 2 distilled by this Honourable Court. The Court will address other objections while determining issue 2.

 

69. Issue 2: Whether the Claimant has proved his case to be entitled to the reliefs sought.

 

70. Generally, civil cases are decided on the preponderance of evidence. The Court puts the evidence of both parties in an imaginary scale, and judgment is entered in favour of the party whose evidence preponderates. His Lordship Fatayi Williams, JSC (as he then was) put it succinctly in the case of Mogaji v. Odofin (1978) 4 SC 91 at Pages 94 to 95 as follows: The Judge should, first of all, put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but the quality or probative value of the testimony of those witnesses. In determining which is heavier, the Judge will naturally have regard to whether the evidence is admissible, relevant, credible, conclusive and more probable than that given by the other party.

 

71. In the case herein, the Defendants filed a statement of defence but did not tender any document or called any witness to give oral evidence. By the way, it was the Defendants who elected not to call witnesses or tender any document in this case. According to the Claimant, failure to defend the case by oral and documentary evidence is tantamount to abandonment of the defence of the Claimant, and an admittance, without more, of the case of the Claimant by the Defendant. Be that as it may, the trite law is that pleadings cannot constitute evidence. Therefore, a party who pleads should lead evidence in support of his pleadings. See IBWA Ltd v Imano Nig Ltd (2001) FWLR (Pt.44) @444 Para A – B where the Supreme Court held: It is the law that pleadings cannot constitute and do not tantamount to evidence and a Defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff ….is deemed to have accepted the facts in dispute as adduced in the evidence by the Plaintiff, notwithstanding the general traverse in his pleading.

 

72. Does it mean that a Claimant will be automatically entitled to judgment when the Defendant fails to lead evidence in support of his case? In Mr Lawrence Azenabor v. Bayero University Kano (2011) NLLR (Pt 70) 45 at 69, the position of the Court was that such a Claimant is not entitled to automatic judgment but is required to prove his case on a minimal standard. This was also the decision of the Supreme Court in Ogunyade v. Oshunkeye (2007) 4 NWLR (Pt. 834) 218 at 247.Also, the trite law is that the Claimant succeeds on the strength of his case and not on the weakness of the Defendant’s defence. In this vein, as well as in the case herein, it is immaterial if the Defendants failed to call evidence in proof of their case or have a weak case. What is material is that the Claimant has sued the Defendants and, by dint of fate, the Defendant did not call evidence in support of their case, and this has given the luck to Claimant to prove their case on the basis of minimal proof, and no more.

 

73. In the light of the above, the Court will proceed to look at the claims of the Claimant and to see how he has proved his case minimally.

 

74. In reliefs 1 – 4 of the Claimant, the Claimant is asking for money claimed to be his pension remittance and money that constitutes 2% interest as penalty against the 1st Defendant for non-remittance of the pension funds to Claimant’s Pension Administrators as at when due. I notice that there is error in the amount claimed as pension funds. In relief 1, the amount is stated as N3,451,888.00 while in reliefs 2 and 4, the amount was stated as N3,541,888.00. Whether it is a slip or deliberate, it would have been better if the Claimant acknowledges or prays the Court to adopt one and leave out the other. In the interim, the Court, in the interest of justice, will take it as a slip except it finds reasons to believe it was deliberate.

 

75. In paragraphs 16, 17 & 18 of the Claimant’s amended statement of facts, the Claimant averred thus:

a.      16. The Claimant states that the 1st Defendant had, after deductions as shown in his various payslips, only remitted only a disappointing total of N337,112.12 out of his total pension contribution of N3,541,888.00 due to the Claimant while in the employment of the 1st Defendant………

 

b.      17. The Claimant states that the Defendant owes him the sum of N3,541,888.00 which is derived from subtracting N337,112.12 (the actual remitted amount/sum) from N3,879,000.00 being the total pension contributions deducted from the Claimant but were never remitted by the 1st Defendant.

 

c.       18. The Claimant states that his particulars of pension contributions for the five years of his employment with the Defendant which have been deducted but were not remitted by the 1st Defendant are as follows:

d.      October to December 2010 at N28,125 x 2 = N56,250 x 3 months = N168,750.

e.       January to December 2011 at N28,125x2x12 months = N675,000.

f.        January to December 2012 at N28,125x2x12 months = N675,000.

g.      January to June 2013 at N28,125x2x6 months = N337,500.

h.      July to December 2013 at N34,875x2x6 months = N418,500.

i.        January to December 2014 at N34,875x2x6 months (sic) = N837,000.

j.        January to November 2015 at N34,875x2x11 months = N767,250.

 

76. At page 13 of the Claimant’s final written address, Claimant’s counsel submitted that Section 11(3)(a) of the Pension Reform Act provides that the employer shall deduct the monthly contribution of the employee at source not later than 7 days from the day the employee is paid his salary and remit the amount comprising the employee’s and employer’s contribution to the pension fund custodian. That failure to so do attracts a penalty.

 

77. On the part of the Defendants, in pages 12, 13, 14, 15 & 16 of the Defendants’ final written address, Defendants’ counsel submitted that the Claimant was unable to prove his entitlement to money claimed as pension contribution. He went on to highlight the inconsistencies in the amount stated as N3,451,888.00 and as N3,541,888.00; the inaccurate calculations done by the Claimant and the not so clear percentage the Claimant used in arriving at the amount claimed. That under cross-examination, the Claimant claimed he used 10% in the contribution quota of the 1st Defendant and 7% in the contribution quota of the Claimant as an employee.

 

78. This, according to the Defendants’ Counsel contradicts the employment letter of the Claimant (Exhibit C1) which states that the pension contribution will be 7.5% of the Claimant’s basic salary, housing and transport allowance, and in addition 7.5% from the 1st Defendant based on the aforementioned. That for the Pension Reform Act, it came into being in 2014 with effective date of 01/07/2014. Section 4(1) of the Pension Reform Act 2014 provides that the pension contribution shall be 10% from the employer and 8% from the employee. The act also provides that the rates might be reviewed upwards by the agreement of parties, and the Pension Commission will be notified of the upward review. In all of these, the Defendants’ Counsel position is that the claim of the Claimant on this head must fail since he was unable to demonstrate how he arrived at his figures or the premise of his calculation on the contract of employment and applicable statutes.

 

79. I must say that the Claimant did a poor job on his figures and numbers. I have earlier noted the slip or error in the stated amount of N3,451,888.00 as against N3,541,888.00. I also noticed that in Claimant reliefs, in the body of his statement of facts, particularly, at paragraph e(f) of his particulars of claim, his calculation was January to December 2014 at N34,875x2x6 months = N837,000. Now, I don’t know where January – December ended up being 6 months rather than 12 months; also, where does N34,875x2x6 equal N837,000 rather than N418,500? And just when I thought we were done with these inconsistencies, the Defendants are here inundating us with the inconsistencies from their own discovery. What is more, perhaps the Claimant has a phobia for math or number, and this may have led to the inconsistencies we have seen here in numbers and percentage. Be that as it may, the Court will, while acting within documents tendered before it and the provision of the law, do justice to these inconsistencies in numbers and percentage. Acting on evidence/document before the Court and acting within the ambit of the law is not cloistered justice; it is acting outside documents/evidence before the Court that is cloistered justice. The only inconvenience the Court will have to grapple with is that the Claimant has succeeded in making the Court a mathematician in the game of numbers just as the Supreme Court was saddled with the game of numbers in Hope Uzodinma & Anor v. Ihedioha & Ors (2020) LCN/4905 (SC) delivered on 14th January 2020 with Suit No: SC/1462/2019.

 

80. Before the emergence of the extant Pension Reform Act 2014 which was signed into law by the President Ebele Jonathan led administration, there was a Pension Act that made provision for the equal contribution of 7.5% from both employer and employee. In this light, it is not out of place for the Claimant’s letter of employment to read–Pension: The pension provision will be in line with statutory requirements. Your contribution will be 7.5% of your basic, housing and transport. In addition, Arik Air Ltd shall also contribute 7.5% based on the above salary. Now, with the above, the 1st Defendant was not acting as a Father Christmas but was merely obeying the extinct Act on pension contributions.

 

81. From Exhibit C1 – Claimant’s letter of employment – the Claimant’s employment took effect from 27th September 2010. By this, Claimant became due for his first salary and first pension contribution by the end of October 2010. Therefore, Claimant’s pension contribution can be calculated using dual contributions of 7.5%of Claimant’s basic salary, transport and housing allowances from October 2010 to June 2010 based on the extinct pension Act. Thereafter, from July 2014 to November 2015 when the Claimant seized to be an employee of the 1st Defendant, his pension contribution shall be calculated based on 10% contribution from his employer (1st Defendant) and 8% from the employee (Claimant) in line with the extant Act – Pension Reform Act 2014.

 

82. From Exhibit C6 which contains Claimant’s salary from October 2010 to January 2011, and April 2011, the Claimant’s basic salary remained stable at N125,000; his housing allowance at N175,000 and his transport allowance at N75,000. Therefore, N125,000 + N175,00 + N75,000 = N375,000. The 7.5% of N375,000 is N28,125. Note, this calculation is based on the facts before me and the application of the law on pension contribution. Moving further, N28,125 x 2 (i.e employer 7.5% and employee’s 7.5%) = N56,250. What this means is that the Claimant was entitled to the sum of N56,250 (Fifty-Six Thousand Two Hundred and Fifty Naira) every month from October 2010 to October 22nd 2013 when he had a promotion which was commensurate with increment in salary, housing and transport allowances. What this means is that for the period of October 2010 to October 2013, which is a period of 48 months, the Claimant’s pension contribution is N56,250 x 48 = N2,700,000 (Two Million Seven Hundred Thousand). Given that in paragraph 17 of Claimant’s amended statement of claim, the Claimant averred that pension contribution was remitted in October 2011, February 2012, January 2013 and February 2013 which amount to the total sum of N225,000, it means that the Court will have to deduct this sum from N2,700,000. That is N2,700,000 – N225,000 = N2,475,000. What this means is that between October 2010 to October 2013, the 1st Defendant still owes the Claimant the sum of N2,475,000 (Two Million Four Hundred and Seventy-Five Thousand) representing unremitted pension funds for the period in question.

 

83. It is in evidence that in October 2013, the Claimant was promoted via the promotion letter dated 22 October 2013 and admitted in evidence as Exhibit C3. By the said letter, the financial fortune of the Claimant changed as follows: basic annual salary – N1,860,000; Annual Housing allowance – N2,604,000; Annual Transport Allowance – N1,116,000.00. From the foregoing, the monthly equivalent can be broken down as: basic monthly salary – N155,000; monthly Housing allowance – N217,000; monthly Transport allowance – N93,000. Therefore, N155,000 + N217,000 + N93,000 = N465,000. Now, the 7.5% of N465,000 is N34,875. Moving further, N34,875 x 2 (i.e employer’s 7.5% and employee’s 7.5%) = N69,750. What this means is that the Claimant was entitled to the sum of N69,750 (Sixty-Nine Thousand Seven Hundred and Fifty Naira) every month from November 2013 to June 2014 before July 2014 when the extant Pension Reform Act 2014 took effect. What this means is that for the period of November 2013 to June 2014, which is a period of 7 months, the Claimant’s pension contribution is N69,750 x 7 = N488,250 (Four Hundred and Eighty-Eight Thousand Two Hundred and Fifty Naira). In the light of the above, what the 1st Defendant owes the Claimant for the period of November 2013 to June 2014 is N488,250 (Four Hundred and Eighty-Eight Thousand Two Hundred and Fifty Naira).

 

84. Furthermore, arising from the fact that the extant Pension Reform Act took effect from 1st of July 2014, it means that starting from July 2014, the pension contribution of the employer becomes 10% while that of the employee became 8%. So, moving on, 10% of N465,000 (which represents Claimant’s monthly basic salary, monthly housing allowance and monthly transport allowance) is N46,500. On the other hand, 8% of N465,000 is N37,200. Moving further, N46,500 + N37,200 (i.e employer’s 10% and employee’s 8%) = N83,700. Therefore, between the period of July 2014 to November 2015, which is a period of 16 months, the Claimant’s pension contribution is N83,700 x 16 = N1,339,200 (One Million Three Hundred and Thirty-Nine Thousand Two Hundred Naira). In the light of the above, what the 1st Defendant owes the Claimant for the period of July 2014 to November 2015 is N1,339,200 (One Million Three Hundred and Thirty-Nine Thousand Two Hundred Naira).

 

85. From all the total sums arrived at above, the total sum owed the Claimant by the Defendant as unremitted pension contribution is N2,475,00 + N488,250 + N1,339,200 = N4,302,450. In this vein, the total sum yet to be remitted by the 1st Defendant to Claimant’s Pension administrator from the period of 5 years that the Claimant worked with them is N4,302,450 (Four Million Three Hundred and Two Thousand Four Hundred and Fifty Naira), and I so hold.

 

86. For the avoidance of doubt, this Court as a Court of first instance is invested with the power to scrutinize and evaluate the evidence before it. In this vein, it must be noted that the figure the Court arrived at above is based on a careful scrutiny and evaluation of the evidence before it, and on the application of the Pension Act which is the law that governs the nature of the transaction in question.

 

87. On the issue of receivership by the 2nd Defendant on the assets of the 1st Defendants, parties before me went to town arguing about the proprietary of the 2nd Defendant being joined as a party in this suit and whose responsibility is it to pay the Claimant arising from the fact that the Claimant was not employed by the 2nd Defendant. On this, I must say that if the 2nd Defendant is in receivership of the assets of the 1st Defendant or if the assets of the 1st Defendant is being liquidated, the duties owed creditors and shareholders of the 1st Defendant and the way and manner creditors or shareholders are paid are well spent out in the relevant provisions of the Company and Allied Matters Act. In this vein, it is of no moment whether or not the 2nd Defendant is the employer of the Claimant or it is not the one who owes the Claimant.

 

88. Furthermore, as to whether the 2nd Defendant is a proper party in this suit, this Court wishes to state that for all intents and purposes, the 2nd Defendant is a proper party in this suit for, if not for anything, it is a party by implication, and also a party for the purpose of enforcing the judgment of this Court given the facts of this case. The law is trite that a proper party is a person made a party to the action because of his involvement leading to the cause of action. In this sense, a proper party, even though the Court can decide the issues in his absence, becomes a party not because he is a necessary party but because of the role he played in the action giving rise to the suit. The 2nd Defendant, from the role it played in the facts already before this Court, is a proper party, and I so hold.

 

89. On reliefs 3 and 4, this Court wishes to state that these reliefs are bound to fail because from the provision of the penalty expected to be paid for failure to remit the pension contribution within the specified period is money paid to the commission and not an individual. Also, the penalty of 2% in PenCom Act criminalizes non-remittance. As such, such money cannot be paid to the Claimant but the State, i.e government.

 

90. On relief 5 & 6, there is no evidence before me that the Claimant was paid his salary and other ancillary allowances for the month of November 2015 even though he worked for this period. In this vein, this relief is bound to succeed.

 

91. On relief 7 which is termed 1 month’s salary in lieu of notice is bound to fail because the contract of employment provides that either of the party can bring the employment to an end by giving notice or forfeiting one month’s salary in lieu of notice. In this case, it was the Claimant that brought the employment to an end by giving 1 month’s notice to the 1st Defendant. He cannot, therefore, turn around and ask for 1 month’s salary in lieu of notice. Doing this is tantamount to beating somebody and yet crying the tears that are meant for the person beaten. This is alien to our labour law jurisprudence.

 

92. Relief 8 which is on unpaid leave allowances from 2010 – 2015 is bound to fail because from the evidence before the Court, the employment contract specifically states that during leave, the Claimant shall only be entitled to his basic salary. No leave allowance was mentioned. The trite law is that parties are bound by the contract freely entered by then. In this light, the Claimant cannot seek a remedy or right outside the terms of his contract, and I so hold.

 

93. Relief 9 is bound to fail because the Claimant has not shown any scintilla of evidence to substantiate how he is entitled to gratuity.

 

94. From all that have been said above, the case of the Claimant succeeds as follows:

a.      Claim 1 succeeds

b.     Claim 2 succeeds

c.      Claim 3 fails for given the circumstances of this case, the penalty of 2% does not avail the Claimant but the authorities, that is, PENCOM.

d.      Claim 4 fails arising from the failure of Claim 3 above.

e.      Claim 5 succeeds to the extent that there is no evidence before me to show that Claimant was paid his November 2015 salary even though he worked for that period.

f.        Claim 6 succeeds to the extent that there is no evidence before me to show that Claimant was paid his allowances for November 2015 even though he worked for that period.

 

g.      Claim 7 fails because it is alien and unknown to law. The employer does not pay the employee salary in lieu of notice when it was the employee that brought the employment to an end.

 

h.      Claim 8 fails to the extent that it is stated in black and white in Claimant’s employment letter that during leave, Claimant will only be entitled to his basic salary. No provision for leave allowance.

 

i.        Claim 9 fails to the extent that Claimant did not tender any document on his contract that makes provision for gratuity. In this light, pension is the only settlement not gratuity and pension.

 

j.        Claim 10 fails because given the circumstances of this case, the Court is not moved to grant any sum as pre or post judgment interest.

 

k.      Claim 11 fails to the extent that the Claimant cannot derive any benefit as general damages for given his conduct, he secured a job with the 1st Defendant’s competitor, and he didn’t disclose this until the 1st Defendant found out and queried him on this. He who comes to equity should come with clean hands.

 

l.        Claim 12 fails for given the circumstances, the Court is not moved to grant any sum as cost.

 

95. For the avoidance of doubt, the declarations and orders of the Court are as follows:

1.      THE COURT HERE DECLARES that the 1st Defendant’s failure to immediately transfer/remit total/complete/absolute monthly pension contributions of the Claimant for the entire period of his employment with the 1st Defendant into his Retirement Saving Account with his Pension Fund Administrators being Stanbic Pension Managers to the tune of N4,302,450.00 is unlawful, illegal, and same is in clear breach of his contract of employment.

2.     THE COURT HEREBY MAKES AN ORDER directing and mandating the Defendants to immediately transfer/remit total/complete/absolute monthly pension contributions of the Claimant for the entire period of his employment with the 1st Defendant into his Retirement Saving Account with his Pension Fund Administrators being Stanbic Pension Managers to the tune of N4,302,450.00.

3.      THE COURT HEREBY ORDERS the Defendants to pay the Claimant the sum of N155,000.00 being unpaid salary for the month for the month of November 2015.

4.      THE COURT HEREBY ORDERS the Defendants to pay the Claimant the sum of N580,820.00 being unpaid total allowance for the month of November 2015.

 

96. Judgment is entered accordingly.

 

 

Hon Justice M. N. Esowe, FCIArb

Presiding Judge