__IN THE
NATIONAL INDUSTRIAL COURT OF NIGERIA__

__IN THE
ABUJA JUDICIAL DIVISION __

__HOLDEN
AT ABUJA__

__ __

__BEFORE
HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE__

__Dated: 19 ^{th} April
2024__

__SUIT NO: NICN/ABJ/325/2020__

__ __

__Between: __

__ __

**Samuel Shika Shie - Claimant**

** **

__And__

** **

**1.
****First City Monument Bank Ltd.**

**2.
****AIICO
Pension Managers Ltd Defendants **

__ __

__Representation:__

C. S. Orpin for the Claimant

A. U. S. Oguajamma for the 1^{st} Defendant

D. W. Barminas, with him, C. I. Chiazor and P. M.
Onoja for the 2^{nd} Defendant

__ __

** JUDGMENT**

The
claimant instituted this suit vide a complaint filed on 11^{th}
November 2020. The claimant amended his statement of facts and claims a number
of times in the suit, the last one being an amended Complaint and statement of
facts filed on 21^{st} February 2022. In this amended Complaint, the
claimant claimed the following reliefs against the defendants jointly and severally:

1. The sum of ~~N~~162,144,572.00 being shortfalls in
pension remittances and general administration of the claimant’s Retirement
Savings Account with the 2^{nd} Defendant from February 2004 to June
2012 together with accrued interest at the Statutory monthly interest rate of
5% for the months of February, March and April 2004 (under the NSITF Act) and
2% (under the PRA, 2004), from June 2004 to October, 2020.

2. Interest at the
monthly statutory rate of 2% on the above sum from November, 2020 until full
liquidation of same by the Defendants.

3. Special damages computed as follows:

i. The
sum of ~~N~~13,011,334.68 being principal
sum of accumulated wrongful tax from June 2004 to June 2012 together with
accrued and accumulated interest at the Central Bank of Nigeria (CBN) interest
rates on fixed deposits and inflation from the day of infraction through the
date of judgment onto the date of final liquidation; or in the alternative,

ii. The
sum of ~~N~~4,314,580.25 being principal
sum of accumulated wrongful tax from June 2004 to June 2012 together with
depreciation in the value of the purchasing power of the money based on the CBN
rates of inflation as published on the CBN website (www.cbn.gov.ng).

4. The sum of ~~N~~50,000,000.00 (Fifty Million Naira only)
being general damages for loss of human dignity, emotional distress,
psychological torture and unimaginable pain suffered by the claimant.

5. Interest on Paragraphs
59 (iii) and 59 (iv) at the court rate of 10% from the date of judgment until
final liquidation by the defendants.

6. The costs of this action.

__THE CASE OF THE CLAIMANT__

In proving these claims, the claimant testified as the only
witness in his case. The claimant opened his case and gave evidence on 6^{th}
December 2021 by adopting the witness statement on oath he made on 14^{th}
September 2021 and 29^{th} March 2021. The witness statement on oath he
made on 14^{th} September 2021 was the one filed along with the amended
statement of facts dated 9^{th} September 2021 and filed on 14^{th}
September 2021 but deemed filed by the order of this court on 15^{th}
October 2021 while the witness statement on oath made on 29^{th} March
2021 was the one filed with the claimant’s reply to the 1^{st}
defendant’s statement of defence filed on 19^{th} March 2021. The
claimant subsequently filed an amended Complaint and other processes, including
a witness statement on oath of the claimant, on 21^{st} February 2022.
The amended processes were deemed filed on 16^{th} May 2022.
Thereafter, upon the application of the claimant’s counsel, the claimant was
recalled on 19^{th} October 2022 to give further evidence. The claimant
adopted his witness statement on oath which he made on 21^{st} February
2022 as his further evidence in addition to his earlier evidence given on 6^{th}
December 2021.

The evidence of the claimant given on 6^{th} December 2021
is as follows: He said the 1^{st}
Defendant was his former employer while the 2^{nd} Defendant is his
Pension Fund Administrator (PFA). The period of his employment relevant to his complaint in this
suit is from
February, 2004 to June, 2012. He was employed on 08/01/2004 and voluntarily
resigned his appointment with his employer by an undated letter which was
received on 29/06/2012. On 26/03/2014, he attained the statutory age of 50
years for withdrawal of lump sum from his Retirement Savings Account (RSA) and
he wrote to the 2^{nd} Defendant intimating them of this fact and
requesting for information relating to his RSA. The 2^{nd} Defendant
advised him in a mail dated 21/07/2014 that he can withdraw a lump sum of
N981,374.64 and thereafter, receive monthly pension of N23,845.12. He
considered this amount ridiculous and embarrassing because by his last salary
was N319,230.92 for June 2012 and his pension expressed as a percentage of the
amount stated above is 7.47%. The amount does not cover other heads of income
but when put together will take his monthly net salary to over N800,000. Upon
collecting the statement of account of his RSA from the 2^{nd}
defendant, he discovered that the 1^{st} defendant was guilty of
non-remittance of pension deductions for several months; insufficient
remittances leaving embarrassing shortfalls and late remittance of deducted pension
funds. In every month, the 1^{st} defendant fails to remit the correct
amount to his RSA such that every remittance was far below the statutory
minimum, with the exception of the remittance for May 2004 under the NSITF Act.

He was
initially entitled to Pension under the National Social Insurance Trust Fund
(NSITF) Act and later on under the Pension Reform Act (PRA), 2004. Under the
NSITF Act, his employer was to remit 10% of the insurable sum to the NSITF
monthly on his behalf. This translated to a flat rate of N4,400 per month. His
employer remitted only for the month of May, 2004 but failed to remit for the
months of February, March and April, 2004, amounting to N4,400 x 3 =
N13,200.00. The NSITF Act prescribes monthly penalty
of 5% for all shortfalls in pension remittance from the due date till the
breach is remedied. In his case, the penalty is payable for the months of
February, March and April, 2004, calculated up to June 24, 2004. With the
coming into effect of the Pension Reform Act on 25/06/2004, his employer was to
commence remittance of his total monthly emoluments from June 2004 to his PFA.
He opened a Retirement Savings Account (RSA) with the 2^{nd} Defendant
on 20/06/2006 through his employer. The PIN Number of the account is PEN
100080679333 and he forwarded his RSA details to his employer in line with the
provisions of the Pension Reform Act. Having opened the RSA account with the
assistance of his employer, his employer should have remitted every backlog of
pension deductions by the end of June 2004. However, his employer did not make
any remittance to his RSA until 28/12/2006. The amount
remitted by his employer as accumulated Pension was the sum of N237,726.59,
which was far less than the statutory minimum under the Pension Reform Act
which is 15% of his total monthly emolument.

The
claimant said the Pension Reform Act, 2004 defines total monthly emoluments as
"a total sum of Basic salary, housing allowance and Transport
allowance". According to him, by the terms of his employment, his transport
allowance was made up of a company car (insured value ~~N~~1,890,000), cash allowance for repairs and maintenance at ~~N~~393,750.00 per annum, fuel allowance at ~~N~~90,000 per annum and Driver's allowance
at ~~N~~112,500 per annum totaling the sum
of ~~N~~2,486,250.00. Thus, for pension
purposes, this translates to the sum of ~~N~~207,187.50
per month, under the Transport component of monthly emolument. The housing
component of his monthly emolument for pension purposes comprises of Housing
allowance, furniture allowance, domestic allowance, utility allowance and
security allowance.

His emoluments from the very beginning of his employment
were as detailed in the letter of 10/03/2004 from his employer. By the pay
advice of August 2004 and the letter of
10/03/2004, his monthly pension remittance was the sum of ~~N~~48,600 (15% of monthly emolument of ~~N~~324,000). This was to be remitted within seven working days from
the date his salary was paid. His employer was to remit this amount monthly
from June 2004 to August 2004 which is a total of ~~N~~145,800.

That by letter dated 10/09/2004, his salary was reviewed
upward and this raised his pension base to ~~N~~372,262.50
(15% of his is N55,839.38). His employer was to remit this amount monthly
for the months of September 2004 to October 2005. The total amount is ~~N~~781,751.32 (14 months). By a letter dated
23/12/2005, he was promoted and this enhanced his pension base to ~~N~~392,962.50. 15% of the sum is the sum of ~~N~~58,944.38 which was to be remitted
monthly by his employer into his RSA from November 2005 to April 2006. The
total pension for the six months is the sum of ~~N~~353,666.28. The remittance for November and December, 2005 alone
is the sum of ~~N~~117,888.76. The total
remittance from June, 2004 to December, 2005 is the total sum of ~~N~~1,045,440.08 but this is far from the sum
of ~~N~~237,726.59 his employer remitted
into his RSA.

His employer entered into a merger with three other Banks in
2006. His services were retained and he was given a letter to that effect dated
01/08/2006. As a result, the components of his monthly
emoluments were enhanced. In his new status, the sum remittable to his RSA was
the sum of ~~N~~78,015.40, which is 15% of
N520,102.67. His employer was to remit this sum monthly for the months of May,
2006 to December, 2006, a period of 8 months and the total remittance was to be
the sum of ~~N~~624,123.20. However, his
employer did not remit any sum for the months of January, 2006 to September,
2006. The amount not remitted is the sum of ~~N~~625,854.50.

From October 2006 to December 2006, his employer was
remitting ~~N~~23,733.86 per month instead
of ~~N~~78,015.40 resulting to a shortfall
of ~~N~~54,281.54, excluding penal
interest. What his employer took into account in computing his pension are his
basic salary, housing allowance, transport allowance, which are under part A of
the remuneration schedule attached to his employment letter dated 1/8/2006, but
his employer ignored other components of his remuneration in part B of the
letter which include housing allowance, travel expenses, utility allowance, domestic
allowance and his official status car. This continued up to January 2007 even
though by email dated 02/08/2007, it is clear that his salary was increased
again with effect from January 2007. For the months of January 2007 to July
2008, his monthly emoluments were enhanced but for the months of February, 2007
to December, 2007, his employer remitted the sum of ~~N~~26,346.26 monthly instead of ~~N~~78.015.40
based on the December 2006 rate. Also, his
employer failed to make the remittances within the statutory time of 7 working
days from the date of payment of his salaries. His salary was usually paid to
him by his employer not later than the 25^{th} day of every month.

By the terms of his employment, he was given a status car
valued at ~~N~~4,142,479.92, which enhanced
the transport component of his monthly emolument with effect from February,
2008. This figure can be arrived at by considering “Computation of Terminal
Benefits/Indebtedness" issued to him by his employer at the time of his
resignation which established the unamortized value of the car after three
years and ten months to be ~~N~~172,603.33.
By a letter dated 01/08/2008, his salary was again reviewed upward. The monthly
pension remittance rose to ~~N~~130,178.55
for the months of August, 2008 to June 2009 but his employer remitted only ~~N~~35,082.96 per month for the said months
resulting to a monthly shortfall of ~~N~~95,059.59
excluding accrued penal interest. Again, this was based on the subheads of
Basic salary, Housing allowance and Transport allowance under the first part of
the salary review letter of 01/08/2008. His employer ignored other relevant
components of monthly emoluments of Utilities allowance, Domestic allowance
under the first part of the letter as well as Travel expense limit and Housing
allowance under the latter part of the letter as well as the claimant's
official status car.

By a letter dated 06/07/2009, he was promoted to Senior
Manager I with effect from 1^{st} July, 2009. This increased his
pension base. The employer was to remit the sum of ~~N~~134,639.21 monthly (15% of ~~N~~897,594.72)
from July, 2009 to December, 2009 but only ~~N~~37,748.56
was remitted monthly, leaving a shortfall of ~~N~~96,890,.65,
excluding accrued penal interest. A new salary structure was introduced by his
employer with effect from 01/01/2010 which increased his overall salary as
communicated to him in a letter dated 11/01/2010. The sum of his monthly
pension which his employer ought to be remitting per month from January 2010 to
June 2012 when he resigned is the sum of N128,341.94 but his employer was
remitting only ~~N~~39,131.26 monthly
leaving a monthly shortfall of ~~N~~89,210.68.
What his employer did was to split Housing allowance and Transport allowance
using only the first components together with Basic salary to compute his
pension entitlements and ignoring all other relevant components.

On 08/09/2015, more than 3 years after his resignation, the
1^{st} defendant remitted the sum of N5,927.54 as unremitted employee
contribution for December 2008 and on the same 08/09/2015, remitted ~~N~~2,489.61 for December 2010. His last
monthly salary was ~~N~~1,291,666.67 gross.
After deduction of tax and pension, his net monthly salary was more than ~~N~~800,000.00. The monthly pension he now
receives from the 2^{nd} defendant is a paltry sum of ~~N~~47,541.52. From 2014 when he became
entitled to withdrawals from his RSA, and till now, he has continued to suffer
untold hardship due to the actions of the 1^{st} defendant leading to
this present action. He can no longer meet his financial obligations and he has
continued to suffer loss of face and dignity both before his family and close
friends and associates. He has continued to suffer and endure psychological and
emotional torture. He suffered special and general damages on account of the
actions of the 1^{st} defendant. The claimant concluded that he has
calculated the principal pension sum held back by the Defendants together with
the interest accruing on the shortfalls and late remittances whereby he arrived
at the total sum of ~~N~~142,572,232.94 as
at October 2020.

The evidence adduced by the claimant
on 19^{th} October 2022 is closely similar to the evidence he gave on 6^{th}
December 2021 except some differences in certain facts. The facts stated in the
evidence of 19^{th} October 2022 which are different from the evidence
of 6^{th} December 2021 are these: His monthly pension remittance by
virtue of the pay advice and the letter of 10/03/2004 was the sum of ~~N~~60,075.00 (15% of monthly emoluments of ~~N~~400,500.00) and his employer was to remit
this amount monthly from June, 2004 to August, 2004 which amounts to a total of
~~N~~180,225.00. By a letter dated
10/09/2004, his salary was reviewed upward and it raised his pension base to
the sum of ~~N~~436,950.00 and 15% of this sum is the sum of ~~N~~65,542.50
which his employer was to remit monthly for September 2004 to October 2005. The
total amount to be remitted for the period is ~~N~~917,595.00.
He was promoted by a letter dated 23/12/2005 and his pension base was enhanced
to ~~N~~466,706.25. 15% of the sum is the
sum of N81,673.59 which was to be remitted monthly into his RSA from November
2005 to April 2006 in the total sum of ~~N~~490,041.56.
The remittance for November and December, 2005 alone is the sum of ~~N~~163,347.19. The total remittance for June, 2004 to December, 2005, is the total
sum of ~~N~~1,261,167.19.

When his employer entered into a merger with other Banks in
2006 and his services were retained, the components
of his monthly emoluments were enhanced and the sum remittable to hi RSA under
his new status was the sum of ~~N~~82,241.34,
which is 15% of ~~N~~548,275.58, and his
employer was to remit this sum monthly for the months of May, 2006 to December,
2006. The total remittance for the period ought to be the sum of ~~N~~657,930.70 but his employer remitted
nothing at all for the months of January, 2006 to September, 2006. The amount
not remitted for the period is the sum of ~~N~~737,901.07.
From October 2006 to December 2006, his employer was
remitting the sum of ~~N~~23,733.86
per month instead of ~~N~~82,241.34 per
month resulting to a monthly shortfall of ~~N~~58,507.48.
For the months of February, 2007 to December, 2007, his employer remitted the
sum of ~~N~~26,346.26 monthly instead of ~~N~~82,241.34 based on the December 2006
rate. By a letter dated 01/08/2008, his salary was reviewed upward and his
monthly pension remittance rose to ~~N~~137,373.50
for the months of August, 2008 to June 2009. But his employer remitted only ~~N~~35,082.96 per month for the said months
resulting to a monthly shortfall of ~~N~~102,290.54.
By a letter dated 06/07/2009, he was promoted to Senior Manager I and this increased
his pension base. His employer was to remit the sum of ~~N~~140,596.16 monthly, which is 15% of ~~N~~937,307.74, from July, 2009 to December, 2009 but only ~~N~~37,748.56 was remitted monthly, leaving a
shortfall of ~~N~~102,847.60. Upon the
introduction of new salary structure with effect from 01/01/2010, the amount of
his pension remittance became ~~N~~137,021.94
per month from January 2010 but his employer still remitted only ~~N~~39,131.26 monthly leaving a monthly
shortfall of N97,890.68. He said he calculated the principal sum of pension
held back by the Defendants and also calculated interest which accrued on the
shortfalls and late remittances. The total amount as at October 2020 is the sum
of ~~N~~162,144,572.00.

In further proof of his averments,
the claimant tendered several documents in evidence. The documents are the ones
admitted in evidence and marked Exhibits C1, C2, C3, C4, C5, C6, C7, C8, C9,
C10, C11, C12, C13, C14, C15, C16, C17 and C18. The claimant was cross examined
by the respective counsels for the 1^{st} and 2^{nd} defendants
and he gave further evidence on cross examination.

__ __

__1 ^{ST}
DEFENDANT’S CASE __

The 1^{st} defendant filed a statement of defence on 27^{th}
January 2021 which was later amended. The subsisting statement of defence of
the 1^{st} defendant was the further amended statement of defence filed
on 1^{st} June 2022. The 1^{st} defendant also called one
witness in defence of the suit. The witness is one Ayodele Ete, a Staff of the 1^{st}
defendant. The case of the 1^{st} defendant, as narrated in the
evidence of the witness, is that the Claimant was never employed by the 1^{st}
Defendant. Rather, the Claimant was an employee of NUB International Bank Ltd
and later First Inland Bank Plc where he retired.

The claimant was employed as a as Senior Manager by NUB
International Bank Ltd on 8^{th} January, 2004 and upon the
recommendation of his employer, the claimant chose the 2^{nd} Defendant
as his Pension Fund Administrator with whom he opened a Retirement Savings
Account. The 1^{st} defendant did not at any time choose the 2^{nd}
Defendant or any other Pension Fund Administrator for the Claimant. Under the
applicable Pension Laws, the Claimant was obligated to notify his employer the
identity of his Retirement Savings Account where his pension funds should be
remitted. The witness stated further that to the best of his knowledge, the
Claimant never notified NUB International Bank Ltd about his Retirement Savings
Account Number for remittance of his pension funds until sometimes in December
2006. Because of this, payments due to be remitted into the Claimant's
Retirement Savings Account before December 2006, were deducted from source and
placed in a dedicated suspense account. When the Claimant eventually provided
his Retirement Savings Account Number to NUB International Bank Ltd, the bulk
sum of his pension in the suspense account was remitted into his RSA.

While the Claimant was in the services of NUB International
Bank Ltd and later First Inland Bank Plc where he retired, his employers were
obligated to contribute to his Retirement Savings Account (RSA) by paying a sum
not less than 7.5% of the Claimant's monthly emolument into his RSA, as
employer’s contribution, per month, and by deducting 7.5% of the Claimant's
monthly emolument from source and remitting same into his RSA, as the employer’s
contribution per month. The computation of the Claimant's monthly emolument for
the purpose of the remittance into his Retirement Savings Account, is the total
summation of his monthly Basic Salary, Housing Allowance and Transport
Allowance. NUB International Bank Ltd/First Inland Bank duly remitted all funds
due to be paid into the Claimant's Retirement Savings Account.

The Claimant's allegations of insufficient remittance into
his Retirement Saving Account, is predicated on his unilateral addition of
humongous sums as his Transport Allowance while calculating his monthly
emolument but such allowance is nonexistent in his letter of employment,
letters of promotion and salary review documents. In the Claimant's letter of
employment dated 8^{th }January 2004, NUB International Bank Ltd broke
down the Claimant's remuneration package by listing all the allowances payable
to the Claimant. Contrary to the Claimant's allegations, there is no transport
allowance in the Claimant's remuneration package breakdown in his letter of
employment with NUB International Bank Ltd but the Claimant lumped the
insurance value of the company car given to him, maintenance allowance, fuel
allowance and driver's allowance and termed them "transport
allowance".

On the 10^{th} September 2004, the Management of NUB
International Bank Ltd approved an upward review of the Claimant's salary from the
initial sum of ~~N~~4,182,345 per annum to
the sum of ~~N~~5,528,832.50 per annum but
provided no transport allowance for the Claimant. Again, vide a letter dated 23^{rd}
December 2005, NUB International Bank Ltd, further promoted the Claimant from
"Senior Manager" to "Principal Manager", with remuneration
package of ~~N~~6,095,725 per annum. In the
promotion letter, no transport allowance was provided for the Claimant whilst
the total agreed pension contribution was stated in the Schedule of the letter
as ~~N~~22,867.04 which is 17.5% (7.5%
employee and 10% employers contribution) of ~~N~~130,668.75,
being the sum total of the Claimant's monthly Basic Salary (N558,900 per annum :-
2 = ~~N~~46,575) and Housing Allowance (~~N~~1,009,125 per annum :- 12 = ~~N~~84,093.75). Despite non provision for
transport allowance in the review of the claimant’s remuneration and in the
notification of promotion, the Claimant allotted sundry figures to himself as
"transport allowance" and used same to compute remittances payable
into his Retirement Saving Account for the period.

On 1^{st} August 2006, the Claimant accepted an
offer of employment with First Inland Bank Plc in which he agreed that his
previous employment with NUB International Bank Ltd was terminated and that he
has "NIL" terminal benefits with his former employer. Upon his
employment by First Inland Bank, his new employer reviewed the Claimant's
emolument in a Letter dated 11/1/2010 and therein stated the claimant’s
"Transport Allowance" to be the sum of ~~N~~325,500. The various sums
which the Claimant referred to in paragraphs 26, 28 and 29 of the Amended
Statement of Facts, as his monthly emoluments/pension base are unfounded and
products of non-existent transport allowance. The various amounts remitted into
the Claimant's Retirement Savings Account by the Claimant's former employers
are the correct amounts which the Claimant was entitled at the material times.
Again, the various sums stated as the total monthly emolument pension base of
the Claimant, in paragraphs 35 and 47 of the Amended Statement of Facts, are
incorrect. The figures represent a summation of the Claimant's monthly basic
salary and erroneous or non-existent housing and transport allowances.

In a letter dated 06/07/2009, the Claimant was promoted by
First Inland Bank and his salary was reviewed upward by the bank. The
claimant’s annual basic salary, housing allowance and transport allowance as
stated in the letter are ~~N~~1,339,200, ~~N~~1,253,272 and ~~N~~443,413, respectively. The annual sum total of the Claimant's
basic salary, housing allowance and transport allowance was the sum ~~N~~3,035,885, while the monthly sum total
(annual sum of ~~N~~3,035,885 divided by
12) is the sum of ~~N~~252, 990.04. This
amount of the claimant’s monthly salary based on the promotion letter dated
06/07/2009 is different from the monthly sum stated in paragraph 47 of the
Amended Statement of Facts, on which the Claimant based his computation of
amount First Inland Bank was required to remit into the Claimant's Retirement
Savings Account for the period in view.

The claimant used over bloated transport allowance sums in
calculating remittances to be paid into his Retirement Savings Account by his
employers. Before the claimant instituted this Suit, and he was duly informed
that his employers, NUB International Bank Ltd and First Inland Bank, had
remitted all funds due to be paid into his Pension Account. Following an engagement between the claimant and the 1^{st}
defendant on the complaint of the claimant, the 1^{st} Defendant
recomputed the monthly emolument pension base of the Claimant by adding Fuel
Allowance to the statutorily components of Basic Salary, Housing Allowance and
Transport Allowance. In the re-computation Fuel Allowance was used in lieu of
Transport Allowance for those periods where the Claimant's Contract of
Employment does not provide for Transport Allowance and also for the period
where the Contract of Employment provided for Transport Allowance. By the said
re-computation, the Claimant would be entitled to additional ~~N~~620,810 made up of ~~N~~476,701 unremitted funds and ~~N~~144,109.90
penal sum due to alleged late remittance. But the Claimant rejected the 1^{st}
Defendant's re-computation.

All remittances due to be made into the Claimant's Retirement
Savings Account were duly made by NUB International Bank Ltd and First Inland
Bank. The 1^{st} Defendant is not liable for the
non-remittance of pension deductions (if any), accruable to the Claimant or for
any insufficient remittances (if any), or for late remittance (if any) of
deducted pension funds to the Claimant. The Claimant is not entitled to either ~~N~~142, 572,232.94 or ~~N~~162,144,572 claimed in this Suit or any other amount whatsoever
from the 1st Defendant. The witness urged this court to dismiss the claimant’s
suit. The witness was cross examined by the respective counsels for the
claimant and the 2^{nd} defendant.

__2 ^{ND} DEFENDANT'S CASE__

The 2^{nd} defendant filed its first statement of defence
on 26^{th} July 2021 which was later amended. The subsisting statement
of defence of the 2^{nd} defendant was the amended statement of defence
filed on 22^{nd} September 2022. The 2^{nd} defendant also called
one witness in defence of the suit. The witness is one Omolara Oyekanmi, Head,
Reconciliation, of the 2^{nd} Defendant. The evidence of the witness is
that the Claimant is a customer of the 2^{nd} Defendant, as it is the
Pension Fund Administrator of the Claimant. Retirement Savings Accounts do not
indicate the percentage of an account holder's monthly emolument that is
represented by the remittance(s) made into such account as pension
contribution. It is the sole responsibility of the employer to credit its'
employees Retirement Savings Account and the 2^{nd} Defendant has no
control over when the 1^{st} Defendant credits the Claimant's
Retirement Savings Account. All the remittances made into the Claimant's
Retirement Savings Account are reflected in the Claimant's Retirement Savings
Account Statement.

First Pension Custodian Ltd is the pension fund custodian of 1^{st}
Defendant and it receives the total contributions remitted by the 1^{st}
Defendant and thereafter credit the account of the 2^{nd} Defendant.
The Claimant's Retirement Savings Account was credited within a reasonable time
by the 2^{nd} Defendant the moment the 2^{nd} Defendant receives
remittances from First Pension Custodian Ltd. The 2^{nd} Defendant at
all material time, exercised due diligence and high sense of professionalism in
managing the retirement savings account of the Claimant and the Claimant has
never reported to the 2^{nd} Defendant of any delay by his employers to
make any remittance into his retirement saving account or any shortfall in the
remittances. The witness concluded his evidence by saying that the Claimant is
not entitled to any relief against the 2^{nd} Defendant and urged this
Court to dismiss all the claims of the Claimant against the 2^{nd}
Defendant.

The witness for the 2^{nd} defendant tendered 1 document
in evidence marked exhibit D1. The witness was cross examined by the respective
counsels for the claimant and 1^{st} defendant.

**I have
read the various final written addresses of counsels as well as the 1 ^{st}
defendants’ reply on points of law. I do not see any reason to rehash their
contents here. However, arguments proffered by counsels in their respective
written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course
of this judgment.**

** DECISION**:

The
claimant has brought two defendants to court in respect of his claims. In paragraph
2 of his amended statement of facts, the claimant said the 1^{st}
defendant was his employer for the purpose of this suit while in paragraph 3 he
said the 2^{nd} defendant is his Pension Fund Administrator. The
claimant pleaded that he was employed on 08/01/2004 and he voluntarily
resigned his appointment with his employer in June 2012. In his evidence, the
claimant said upon his resignation, he collected the statement of account of
his Retirement Savings Account (RSA) from the 2^{nd} defendant wherein
he discovered non-remittance of his pension deductions for several months,
insufficient remittances which left shortfalls and late remittance of deducted
pension funds. From the averments and claims of the claimant in
the amended Complaint and statement of facts, his case is basically a claim for
unremitted pension during the period he was in employment. His complaints in
the case on the basis of which he sought the reliefs in the amended Complaint
are adequately captured in paragraph 7 of the amended statement of facts where
he pleaded that his former employer was guilty of non-remittance
of pension deductions for several months; insufficient remittances leaving
shortfalls and late remittance of deducted pension funds. He also alleged that in every
month, his former employer fails to remit the correct amount of pension into
his RSA such that every remittance was far below the statutory minimum.

The 1^{st}
and 2^{nd} defendants denied the claims of the claimant. The 1^{st}
defendant averred that the Claimant was in the services of NUB International
Bank Ltd and later First Inland Bank Plc where he retired and said NUB
International Bank Ltd and First Inland Bank duly remitted all funds due to be
paid into the Claimant's Retirement Savings Account. The 1^{st}
Defendant further averred that it is not liable for the non-remittance of
pension deductions (if any), accruable to the Claimant or for any insufficient
remittances (if any), or for late remittance (if any) of deducted pension funds
to the Claimant. The Claimant is not entitled to either ~~N~~142,572,232.94 or ~~N~~162,144,572
claimed in this suit or any other amount whatsoever from the 1st Defendant. On
its part, the 2^{nd} defendant denied liability for the claims of the
claimant and averred that all the remittances made into the
Claimant's Retirement Savings Account are reflected in the Claimant's
Retirement Savings Account Statement.

Accordingly, the burden of proof of the claims in the amended
Complaint rests on the claimant. This burden of proof is placed on the claimant
in Sections 131 and 132 of the Evidence Act 2011. See also **UMEOJIAKO vs. EZENAMUO [1990] 1 S.C. 239; PHILLIPS vs. EBA ODAN
COMMERCIAL & INDUSTRIAL COMPANY LIMITED (2012) All FWLR (Pt. 650) 1254 at
1272**. Thus, since the claim of the claimant is for recovery of sums of
money, the burden of proof of the sum claimed rests squarely on the claimant
and he has the onus to prove how the defendants came to owe such amount of
money. See **N.B.N. LTD vs. S.C.D.C. CO.
LTD [1998] 5 NWLR [Pt. 548] 144 at 153**.

In
cross examination by counsel for the 1^{st} defendant, the claimant
told the court that he was first employed by NUB International Bank and then
First Inland Bank Plc where he retired in 2012. He also said he was not at any
time employed by the 1^{st} defendant. The claimant further said his
complaint in this case is about non-remittance of his pension and under
remittance of pension into his RSA. These acts were done by NUB and First Inland
Bank and not by the 1^{st} defendant. From the evidence of the
claimant, both in chief and in cross examination, it needs to be stated here
that the claimant has not shown that the 1^{st} defendant is liable for
his claims for under-remittance or non-remittance of his pension during the
period of his employment, that is from 2004 to 2012. The 1^{st}
defendant was not his employer in these periods and the claimant has not
pleaded any fact or given any evidence to link the 1^{st} defendant to
his former employers or his claim for payment of pension under his former
employers. His mere averment in paragraph 2 of his amended statement of facts
that the 1^{st} defendant be considered his employer for the purpose of
this suit is not sufficient to link the 1^{st} defendant with his
former employers. I agree with the arguments of the learned counsel for the 1^{st}
defendant that the claimant has not shown how the 1^{st} defendant is
connected to his claims in this suit. I have heard the arguments of the learned
counsel for the claimant in the final written address where he wants this court
to consider extraneous facts not placed before the court to hold that the 1^{st}
defendant acquired the claimant’s former employer. Those facts the claimant’s
counsel want me to look into are not matters which this court can take judicial
notice of. Again, it will amount to
speculations for this court to tow the line of the arguments of learned counsel
for the claimant.

Without
any doubt, the claimant has not shown the link between his complaints in this
case, which is the non-remittance of his pension or under-remittance of pension
into his RSA, to the 1^{st} defendant. These acts were done by NUB and
First Inland Bank and by his evidence, the 1^{st} defendant was at no
time his employer. It is clear to me that the claimant has not disclosed any
cause of action against the 1^{st} defendant with respect to his claim
for his unremitted pension. For the 2^{nd} defendant, it is only a PFA.
The claimant did not disclose any wrongdoing against the 2^{nd}
defendant with respect to his complaint of non-remittance of his pension or
under-remittance of pension into his RSA.

In
relief 1 sought by the claimant in the amended Complaint filed on 21^{st}
February 2022, the claimant claims the sum of ~~N~~162,144,572
from the defendants. The content of the relief reveals that the sum includes shortfalls
of pension remittances from February 2004 to June 2012 and accrued interest at
monthly rate of 5% for the months of February, March and April 2004 under NSITF
Act and 2% from June 2004 to October 2020 under the Pension Reform Act. In
paragraph 58 of the amended statement of facts, the claimant pleaded thus: *“The claimant **calculated the principal sum held back by the Defendants. He
has calculated interest accrued on the shortfalls and late remittances. The
total figure as at October 2020 is N162,144,572.00.*” From
the claim in relief 1 and the averment in paragraph 58, it is clear that the
sum claimed by the claimant in relief 1 is the total sum of his unremitted
pension and interest accruing on the unremitted pension up to October 2020.

The
case of the claimant with respect to shortfalls or unremitted part of his
monthly pension is basically that his former employer was not remitting what
ought to be remitted as his monthly pension into his RSA. In his amended
statement of facts, the claimant pleaded the sums which ought to be remitted
monthly as his pension into his RSA from June 2004 to June 2012 in paragraphs
26, 27, 28, 29, 30, 31, 35, 37, 42, 45, 47, 48 and 49 of the amended statement
of facts. The pleadings in these paragraphs of the amended statement of facts
are the averments of the claimant with respect to his claim for shortfalls
in pension remittances. The evidence adduced by the claimant to
establish the facts in the above paragraphs of the amended statement of facts is
the evidence he adduced on 6^{th} December 2021 and on 19^{th}
October 2022. On 6^{th} December 2021 the claimant adopted the witness
statement on oath which he made on 14^{th} September 2021 as his
evidence and on 19^{th} October 2022, he adopted another witness
statement on oath which he made on 21^{st} February 2022 and told the court to adopt it as his further evidence in addition to
the earlier evidence which he gave on 6^{th} December 2021.

I have
examined the evidence adduced by the claimant on 6^{th} December 2021
and on 19^{th} October 2022 as contained in the witness statements on
oath made on 14^{th} September 2021 and 21^{st} February 2022
and I find them to be contradictory in material respects particularly with
regard to the amounts of the claimant’s salaries and amounts of monthly pension
which the claimant claims ought to be remitted into his RSA but were not remitted,
or incomplete remittances.

The observed contradictions in the evidence of the claimant
are as follows:

i.
In the witness statement on oath of 14^{th} September 2021, the claimant said by the pay advice
of August 2004 and the letter of 10/03/2004, his monthly
pension remittance was the sum of ~~N~~48,600
(15% of monthly emolument of ~~N~~324,000).
His employer was to remit this amount monthly from June 2004 to August 2004 amounting
to ~~N~~145,800. But in the witness statement on oath of 21^{st}
February 2022, he said his monthly
pension remittance by virtue of the pay advice and the letter of 10/03/2004 was
the sum of ~~N~~60,075.00 (15% of monthly
emoluments of ~~N~~400,500.00) and his
employer was to remit this amount monthly from June, 2004 to August, 2004 which
amounts to a total of ~~N~~180,225.00

ii.
Again, contrary to what he said in his witness statement on
oath of 14^{th} September 2021 that by letter dated 10/09/2004, his
salary was reviewed upward and this raised his pension base to N372,262.50 (15%
of his is ~~N~~55,839.38) and his
employer was to remit this amount monthly for the months of September 2004 to
October 2005 amounting to the sum of ~~N~~781,751.32,
he said in his witness statement on oath of 21^{st} February 2022 that a
letter dated 10/09/2004, his salary was reviewed upward and it raised his
pension base to the sum of ~~N~~436,950.00
and 15% of this sum is the sum of ~~N~~65,542.50 which his employer was to remit
monthly for September 2004 to October 2005 and the total amount to be remitted
for the period is ~~N~~917,595.00.

__ __

iii.
Again, in his witness statement on oath of 14^{th} September 2021, the claimant said he was
promoted vide a letter dated 23/12/2005 and this
enhanced his pension base to ~~N~~392,962.50
and the sum of ~~N~~58,944.38 was to be
remitted monthly by his employer into his RSA from November 2005 to April 2006
in the total sum of ~~N~~353,666.28. The
remittance for November and December, 2005 alone is the sum of ~~N~~117,888.76. The total remittance from
June, 2004 to December, 2005 is the total sum of ~~N~~1,045,440.08. In contradiction, he said in his witness statement
on oath of 21^{st} February 2022 that when he was promoted by a
letter dated 23/12/2005, his pension base was enhanced to ~~N~~466,706.25 and the sum of ~~N~~81,673.59
which was to be remitted monthly into his RSA from November 2005 to April 2006
in the total sum of ~~N~~490,041.56. The
remittance for November and December, 2005 alone is the sum of ~~N~~163,347.19 and the total remittance for
June, 2004 to December, 2005, is the sum of ~~N~~1,261,167.19.

iv.
Again, in his witness statement on oath
of 14^{th} September 2021, the claimant said in 2006, the components of his monthly emoluments were enhanced and the
sum remittable to his RSA was the sum of ~~N~~78,015.40,
which is 15% of ~~N~~520,102.67. His
employer was to remit this sum monthly for the months of May, 2006 to December,
2006 and the total remittance was to be the sum of ~~N~~624,123.20. However, his employer did not remit any sum for the
months of January, 2006 to September, 2006 and the amount not remitted is the
sum of ~~N~~625,854.50. But in his witness
statement of 21^{st} February 2022, he said in 2006 his monthly
emoluments were enhanced and the sum remittable to his RSA under his new status
was the sum of ~~N~~82,241.34, which is 15%
of ~~N~~548,275.58, and his employer was to
remit this sum monthly for the months of May, 2006 to December, 2006. The total
remittance for the period ought to be the sum of ~~N~~657,930.70 but his employer remitted nothing at all for the months
of January, 2006 to September, 2006. The amount not remitted for the period is
the sum of ~~N~~737,901.07.

v.
The claimant also said in his evidence of 14^{th}
September 2021 that from October 2006 to December 2006, his employer was
remitting ~~N~~23,733.86 per month instead
of ~~N~~78,015.40 resulting to a shortfall
of ~~N~~54,281.54. Meanwhile, in his
evidence of 21^{st} February 2022, he said from October 2006 to
December 2006, his employer was remitting the sum of ~~N~~23,733.86 per month instead of ~~N~~82,241.34 per month resulting to a monthly shortfall of ~~N~~58,507.48.

vi.
Again, in his witness statement on oath of 14^{th}
September 2021, the claimant told the court that for the months of February
2007 to December 2007, his employer remitted the sum of ~~N~~26,346.26 monthly instead of ~~N~~78.015.40.
But in his witness statement on oath of 21^{st} February 2022, the
claimant said for the months of February, 2007 to December, 2007, his employer
remitted the sum of ~~N~~26,346.26 monthly
instead of ~~N~~82,241.34.

vii.
He also said in his witness statement on oath of 14^{th}
September 2021 that his monthly pension for the months of August, 2008 to June
2009 was the sum of ~~N~~130,178.55 but his
employer remitted only ~~N~~35,082.96 per
month for the said months resulting to a monthly shortfall of ~~N~~95,059.59. Contrary to this evidence, he
told the court in his witness statement on oath of 21^{st}
February 2022 that his monthly pension remittance rose to ~~N~~137,373.50 for the months of August, 2008 to June 2009 but his
employer remitted only ~~N~~35,082.96 per
month for the said months resulting to a monthly shortfall of ~~N~~102,290.54.

viii.
Again, the claimant told the court in his witness statement
on oath of 14^{th} September 2021 that when he was promoted to Senior Manager
I in a letter dated 06/07/2009, his employer was to remit the sum of ~~N~~134,639.21 monthly as his pension but
from July, 2009 to December, 2009 only the sum of ~~N~~37,748.56 was being remitted monthly, leaving a shortfall of ~~N~~96,890.65. But in his witness statement
on oath of 21^{st} February 2022, the claimant told the court
that when he was promoted to Senior Manager I in a letter dated 06/07/2009, his
employer was to remit the sum of ~~N~~140,596.16
as monthly pension but from July, 2009 to December, 2009, only ~~N~~37,748.56 was being remitted monthly,
leaving a shortfall of ~~N~~102,847.60.

ix.
In his witness statement on oath of 14^{th}
September 2021, the claimant said that upon the introduction of new salary
structure with effect from 01/01/2010, the amount of his monthly pension which
his employer ought to be remitting per month from January 2010 to June 2012
when he resigned is the sum of ~~N~~128,341.94
but his employer was remitting only ~~N~~39,131.26
monthly leaving a monthly shortfall of ~~N~~89,210.68.
Contrary to this evidence, the claimant said in his witness statement on oath
of 21^{st}
February 2022 that upon the introduction of new salary structure with effect
from 01/01/2010, the amount of his pension remittance became ~~N~~137,021.94 per month from January 2010 to
June 2012 but his employer was remitting only ~~N~~39,131.26
monthly leaving a monthly shortfall of ~~N~~97,890.68.

x.
Now, as to the
total sum he computed to be unremitted pension and interest thereon from 2004
to October 2020, the claimant said in his witness statement on oath of 14^{th}
September 2021 that he arrived at the total sum of ~~N~~142,572,232.94 as his calculation. In contradiction, he said in
his witness statement on oath of 21^{st} February 2022 that it is the sum of ~~N~~162,144,572.00 that he arrived at in his calculation.

The above represent the two versions of oral evidence
placed before the court by the claimant to prove his claim for payment of his
outstanding or unremitted monthly pension. Since both versions of the evidence
are what the claimant has placed before the court to establish his claims, this
court does not have any discretion to chose one and discard the other. In as
much as the claimant decided to rely on both evidences, the court is bound to
consider both evidences. Now, in considering the evidence of the claimant, I
find the evidence inconsistent, conflicting and contradictory. Contradiction or
inconsistency in evidence connotes the act of reversing oneself or stating the
opposite of what one had said in his evidence. It is a deviation or retraction
of what one had earlier said. Two pieces of evidence contradict one another
when they are by themselves inconsistent. See **DAWAKI GEN. ENT. LTD. vs. AMAFCO ENT. LTD. [1999] 3 NWLR [Pt. 594] 222 at
233; MATTHEW vs. ATABOR [2015] 14 NWLR [Pt. 1479] 360 at 387**.

It is
the law that where the evidence of one witness is contradictory, such
contradiction weakens or discredits the evidence of the witness and the court
can disregard the evidence especially where there is no other witness who
testified in support of either of the two versions. See **A.C.B. LTD vs. NWADIOGBU [1994] 7 NWLR [Pt. 356] 330 at 343**. Where
the evidence of a witness is contradictory, the effect is that the court cannot
pick and choose which of the two versions of the evidence to believe. The court
is bound to reject both versions. See **SYLVA
vs. INEC [2018] 18 NWLR [Pt. 1651] 310 at 358; EDOSA vs. OGIEMWANRE [2019] 8
NWLR [Pt. 1673] 1 at 20; KAYILI vs. YILBUK [2015] 7 NWLR [Pt. 1457] 26**.

However, for a contradiction or conflict or inconsistency
in the evidence of a witness to be fatal to the extent of being rejected, such
conflict, or contradiction or inconsistency must be material, substantial and
fundamental to the main issue in controversy before the court as would create
some doubts in the mind of the court. See **MTN
COMM. vs. HANSON [2017] 18 NWLR [Pt. 1598] 394 at 420; LAWSON vs. AFANI CONSTRUCTION.
CO. LTD [2002] 2 NWLR [Pt. 752] 585 at 625**. In other words, before a piece
of evidence is discountenanced for contradiction, the contradiction must be
material to the determination of the issue in dispute.

Although the claimant claims the sum of ~~N~~162,144,572.00 as the shortfalls in his
pension remittances from February 2004 to June 2012 and accrued interest on the
shortfalls, he gave two different versions of evidence on how the sum he
claims accrued. In view of the two versions of the evidence of the claimant, I
find the contradictions in his evidence to be material and fundamental and
accordingly thrown serious doubt on relief 1 sought by the claimant. In the
circumstance, I am constrained to reject the contradictory versions of the
evidence adduced by the claimant.

I have
also seen Exhibit C10 [30 to 34] tendered in evidence by the claimant where he
made a computation of the sums making up his claim. The claimant arrived at a
total of ~~N~~142,572,232.94
as
at 31^{st} October 2020 in computations in this Exhibit C10 [30 to 34].
Then, he also tendered Exhibit C16 in evidence. This exhibit is titled “Revised
Calculation of Claims. In this exhibit, the claimant made a computation of the
sums making up his claim but using different figures and amounts in most of the
calculations different from those in Exhibit C10 [30 to 34] and at the end of
the computation, the claimant arrived at a total of ~~N~~162,144,572.00
as
his claims as at 31^{st} October 2020. These documents are meant as the
computation of the sum the claimant claims in relief 1 but, besides the
manifest contradictions and inconsistencies in Exhibits C10 [30 to 34] and C16,
the documents were not dated and signed. The documents are therefore unreliable
and are discountenanced. The result is that there is no credible evidence,
either oral or documentary, left to prove the claim in relief 1.

Let me
add that the sum sought by the claimant in relief 1 include accrued
interest at the rate of 5% for the months of February, March and April 2004
under the NSITF Act and 2% under the Pension Reform Act from June 2004 to
October, 2020. In his evidence, the claimant said the NSITF Act prescribes
monthly penalty of 5% for all shortfalls in pension remittance from the due
date till the breach is remedied, and in his case, the penalty payable is for
the months of February, March and April, 2004 and calculated up to 24^{th}
June 2004. Although the claimant mentioned the Pension Reform Act, he never
said, either in his pleading or evidence, that he was entitled to 2% interest
under the Pension Reform Act from June 2004 to October, 2020.

From
the claim in relief 1, the interest claimed by the claimant covers the period
June 2004 to October 2020. However, the claimant failed to mention the exact
amount of accrued interest for the period he claims interest. He also failed to
compute the amount of interest or to show to the court what the amount of
interest component in the sum claimed in relief 1 is. Although he stated that
by the NSITF Act, he was entitled to interest on late remittances, that alone
will not entitle him to the sum he claims to include as interest. The claimant
must clearly plead and prove the computed interest for the period in issue separately
from the amount he claims as unremitted or shortfall of pension and show to the
court how the amount of interest he claims accrued. The claimant failed to do
this. There is nowhere in his pleadings or evidence where he computed accrued
interest from 2004 to 2020. He simply claimed a lump sum and said it includes
accrued interest from 2004 to 2020.

In the
sum claimed by the claimant in relief 1, he failed to prove both the pension
part of it and the interest component of it. In view of the foregoing,
I find that the claimant failed to prove the claim in relief 1.

Relief
1 is the main claim of the claimant. Reliefs 2, 3, 4, 5 and 6 sought by the
claimant are dependent on the success of relief 1. Since the claimant’s relief
1 has not been proved, it implies that reliefs 2, 3, 4, 5 and 6 are bound to
fail. In any event, I still examined the other claims and I find that they have
not been proved. As for relief 3 where the claimant claimed for special damages
accruing from wrongful tax, he did not plead special damages or wrongful tax
and did not adduce any evidence to prove the claim. As for reliefs 2, 4 and 5,
the evidence for their determination is the same contradictory evidence adduced
by the claimant. The claimant is also not entitled to relief 6 having failed to
prove his case.

In the
result, I find that the claimant has failed to prove the claims he sought in
this suit. This is in addition to my finding that the claimant did not disclose
a reasonable cause of action against the defendants. The suit is accordingly
dismissed.

Parties
shall bear their costs.

Judgment
is entered accordingly.

**Hon.
Justice O. Y. Anuwe**

Judge