IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 19th 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 1st Defendant

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

 

      JUDGMENT

The claimant instituted this suit vide a complaint filed on 11th 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 21st February 2022. In this amended Complaint, the claimant claimed the following reliefs against the defendants jointly and severally:

1.         The sum of N162,144,572.00 being shortfalls in pension remittances and general administration of the claimant’s Retirement Savings Account with the 2nd 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 N13,011,334.68 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 N4,314,580.25 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 N50,000,000.00 (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 6th December 2021 by adopting the witness statement on oath he made on 14th September 2021 and 29th March 2021. The witness statement on oath he made on 14th September 2021 was the one filed along with the amended statement of facts dated 9th September 2021 and filed on 14th September 2021 but deemed filed by the order of this court on 15th October 2021 while the witness statement on oath made on 29th March 2021 was the one filed with the claimant’s reply to the 1st defendant’s statement of defence filed on 19th March 2021. The claimant subsequently filed an amended Complaint and other processes, including a witness statement on oath of the claimant, on 21st February 2022. The amended processes were deemed filed on 16th May 2022. Thereafter, upon the application of the claimant’s counsel, the claimant was recalled on 19th October 2022 to give further evidence. The claimant adopted his witness statement on oath which he made on 21st February 2022 as his further evidence in addition to his earlier evidence given on 6th December 2021. 

 

The evidence of the claimant given on 6th December 2021 is as follows: He said the 1st Defendant was his former employer while the 2nd 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 2nd Defendant intimating them of this fact and requesting for information relating to his RSA. The 2nd 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 2nd defendant, he discovered that the 1st 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 1st 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 2nd 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 N1,890,000), cash allowance for repairs and maintenance at N393,750.00 per annum, fuel allowance at N90,000 per annum and Driver's allowance at N112,500 per annum totaling the sum of N2,486,250.00. Thus, for pension purposes, this translates to the sum of N207,187.50 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 N48,600 (15% of monthly emolument of N324,000). 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 N145,800.

 

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 N55,839.38). His employer was to remit this amount monthly for the months of September 2004 to October 2005. The total amount is N781,751.32 (14 months). By a letter dated 23/12/2005, he was promoted and this enhanced his pension base to N392,962.50. 15% of the sum is the sum of N58,944.38 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 N353,666.28. The remittance for November and December, 2005 alone is the sum of N117,888.76. The total remittance from June, 2004 to December, 2005 is the total sum of N1,045,440.08 but this is far from the sum of N237,726.59 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 N78,015.40, 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 N624,123.20. 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 N625,854.50.

 

From October 2006 to December 2006, his employer was remitting N23,733.86 per month instead of N78,015.40 resulting to a shortfall of N54,281.54, 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 N26,346.26 monthly instead of N78.015.40 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 25th day of every month.

 

By the terms of his employment, he was given a status car valued at N4,142,479.92, 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 N172,603.33. By a letter dated 01/08/2008, his salary was again reviewed upward. The monthly pension remittance rose to N130,178.55 for the months of August, 2008 to June 2009 but his employer remitted only N35,082.96 per month for the said months resulting to a monthly shortfall of N95,059.59 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 1st July, 2009. This increased his pension base. The employer was to remit the sum of N134,639.21 monthly (15% of N897,594.72) from July, 2009 to December, 2009 but only N37,748.56 was remitted monthly, leaving a shortfall of N96,890,.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 N39,131.26 monthly leaving a monthly shortfall of N89,210.68. 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 1st defendant remitted the sum of N5,927.54 as unremitted employee contribution for December 2008 and on the same 08/09/2015, remitted N2,489.61 for December 2010. His last monthly salary was N1,291,666.67 gross. After deduction of tax and pension, his net monthly salary was more than N800,000.00. The monthly pension he now receives from the 2nd defendant is a paltry sum of N47,541.52. 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 1st 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 1st 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 N142,572,232.94 as at October 2020.

 

The evidence adduced by the claimant on 19th October 2022 is closely similar to the evidence he gave on 6th December 2021 except some differences in certain facts. The facts stated in the evidence of 19th October 2022 which are different from the evidence of 6th 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 N60,075.00 (15% of monthly emoluments of N400,500.00) and his employer was to remit this amount monthly from June, 2004 to August, 2004 which amounts to a total of N180,225.00. By a letter dated 10/09/2004, his salary was reviewed upward and it raised his pension base to the sum of N436,950.00 and 15% of this sum is the sum of N65,542.50 which his employer was to remit monthly for September 2004 to October 2005. The total amount to be remitted for the period is N917,595.00. He was promoted by a letter dated 23/12/2005 and his pension base was enhanced to N466,706.25. 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 N490,041.56. The remittance for November and December, 2005 alone is the sum of N163,347.19. The total remittance for June, 2004 to December, 2005, is the total sum of N1,261,167.19.

 

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 N82,241.34, which is 15% of N548,275.58, 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 N657,930.70 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 N737,901.07. From October 2006 to December 2006, his employer was remitting the sum of N23,733.86 per month instead of N82,241.34 per month resulting to a monthly shortfall of N58,507.48. For the months of February, 2007 to December, 2007, his employer remitted the sum of N26,346.26 monthly instead of N82,241.34 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 N137,373.50 for the months of August, 2008 to June 2009. But his employer remitted only N35,082.96 per month for the said months resulting to a monthly shortfall of N102,290.54. 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 N140,596.16 monthly, which is 15% of N937,307.74, from July, 2009 to December, 2009 but only N37,748.56 was remitted monthly, leaving a shortfall of N102,847.60. Upon the introduction of new salary structure with effect from 01/01/2010, the amount of his pension remittance became N137,021.94 per month from January 2010 but his employer still remitted only N39,131.26 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 N162,144,572.00.

 

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 1st and 2nd defendants and he gave further evidence on cross examination.

 

1ST DEFENDANT’S CASE

The 1st defendant filed a statement of defence on 27th January 2021 which was later amended. The subsisting statement of defence of the 1st defendant was the further amended statement of defence filed on 1st June 2022. The 1st defendant also called one witness in defence of the suit. The witness is one Ayodele Ete, a Staff of the 1st defendant. The case of the 1st defendant, as narrated in the evidence of the witness, is that the Claimant was never employed by the 1st 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 8th January, 2004 and upon the recommendation of his employer, the claimant chose the 2nd Defendant as his Pension Fund Administrator with whom he opened a Retirement Savings Account. The 1st defendant did not at any time choose the 2nd 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 8th 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 10th September 2004, the Management of NUB International Bank Ltd approved an upward review of the Claimant's salary from the initial sum of N4,182,345 per annum to the sum of N5,528,832.50 per annum but provided no transport allowance for the Claimant. Again, vide a letter dated 23rd December 2005, NUB International Bank Ltd, further promoted the Claimant from "Senior Manager" to "Principal Manager", with remuneration package of N6,095,725 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 N22,867.04 which is 17.5% (7.5% employee and 10% employers contribution) of N130,668.75, being the sum total of the Claimant's monthly Basic Salary (N558,900 per annum ­­­­­­:- 2 = N46,575) and Housing Allowance (N1,009,125 per annum :- 12 = N84,093.75). 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 1st 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 N325,500.  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 N1,339,200, N1,253,272 and N443,413, respectively. The annual sum total of the Claimant's basic salary, housing allowance and transport allowance was the sum N3,035,885, while the monthly sum total (annual sum of N3,035,885 divided by 12) is the sum of N252, 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 1st defendant on the complaint of the claimant, the 1st 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 N620,810 made up of N476,701 unremitted funds and N144,109.90 penal sum due to alleged late remittance. But the Claimant rejected the 1st 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 1st 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 N142, 572,232.94 or N162,144,572 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 2nd defendant.

 

2ND DEFENDANT'S CASE

The 2nd defendant filed its first statement of defence on 26th July 2021 which was later amended. The subsisting statement of defence of the 2nd defendant was the amended statement of defence filed on 22nd September 2022. The 2nd defendant also called one witness in defence of the suit. The witness is one Omolara Oyekanmi, Head, Reconciliation, of the 2nd Defendant. The evidence of the witness is that the Claimant is a customer of the 2nd 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 2nd Defendant has no control over when the 1st 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 1st Defendant and it receives the total contributions remitted by the 1st Defendant and thereafter credit the account of the 2nd Defendant. The Claimant's Retirement Savings Account was credited within a reasonable time by the 2nd Defendant the moment the 2nd Defendant receives remittances from First Pension Custodian Ltd. The 2nd 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 2nd 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 2nd Defendant and urged this Court to dismiss all the claims of the Claimant against the 2nd Defendant.

 

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

 

I have read the various final written addresses of counsels as well as the 1st 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 1st defendant was his employer for the purpose of this suit while in paragraph 3 he said the 2nd 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 2nd 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 1st and 2nd defendants denied the claims of the claimant. The 1st 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 1st 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 N142,572,232.94 or N162,144,572 claimed in this suit or any other amount whatsoever from the 1st Defendant. On its part, the 2nd 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 1st 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 1st 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 1st 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 1st 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 1st defendant was not his employer in these periods and the claimant has not pleaded any fact or given any evidence to link the 1st 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 1st defendant be considered his employer for the purpose of this suit is not sufficient to link the 1st defendant with his former employers. I agree with the arguments of the learned counsel for the 1st defendant that the claimant has not shown how the 1st 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 1st 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 1st defendant. These acts were done by NUB and First Inland Bank and by his evidence, the 1st defendant was at no time his employer. It is clear to me that the claimant has not disclosed any cause of action against the 1st defendant with respect to his claim for his unremitted pension. For the 2nd defendant, it is only a PFA. The claimant did not disclose any wrongdoing against the 2nd 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 21st February 2022, the claimant claims the sum of N162,144,572 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 6th December 2021 and on 19th October 2022. On 6th December 2021 the claimant adopted the witness statement on oath which he made on 14th September 2021 as his evidence and on 19th October 2022, he adopted another witness statement on oath which he made on 21st February 2022 and told the court to adopt it as his further evidence in addition to the earlier evidence which he gave on 6th December 2021.

 

I have examined the evidence adduced by the claimant on 6th December 2021 and on 19th October 2022 as contained in the witness statements on oath made on 14th September 2021 and 21st 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 14th 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 N48,600 (15% of monthly emolument of N324,000). His employer was to remit this amount monthly from June 2004 to August 2004 amounting to N145,800. But in the witness statement on oath of 21st 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 N60,075.00 (15% of monthly emoluments of N400,500.00) and his employer was to remit this amount monthly from June, 2004 to August, 2004 which amounts to a total of N180,225.00

 

ii.                 Again, contrary to what he said in his witness statement on oath of 14th 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 N55,839.38) and his employer was to remit this amount monthly for the months of September 2004 to October 2005 amounting to the sum of N781,751.32, he said in his witness statement on oath of 21st February 2022 that a letter dated 10/09/2004, his salary was reviewed upward and it raised his pension base to the sum of N436,950.00 and 15% of this sum is the sum of N65,542.50 which his employer was to remit monthly for September 2004 to October 2005 and the total amount to be remitted for the period is N917,595.00.

 

iii.               Again, in his witness statement on oath of 14th September 2021, the claimant said he was promoted vide a letter dated 23/12/2005 and this enhanced his pension base to N392,962.50 and the sum of N58,944.38 was to be remitted monthly by his employer into his RSA from November 2005 to April 2006 in the total sum of N353,666.28. The remittance for November and December, 2005 alone is the sum of N117,888.76. The total remittance from June, 2004 to December, 2005 is the total sum of N1,045,440.08. In contradiction, he said in his witness statement on oath of 21st February 2022 that when he was promoted by a letter dated 23/12/2005, his pension base was enhanced to N466,706.25 and 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 N490,041.56. The remittance for November and December, 2005 alone is the sum of N163,347.19 and the total remittance for June, 2004 to December, 2005, is the sum of N1,261,167.19.

 

iv.               Again, in his witness statement on oath of 14th 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 N78,015.40, which is 15% of N520,102.67. His employer was to remit this sum monthly for the months of May, 2006 to December, 2006 and the total remittance was to be the sum of N624,123.20. 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 N625,854.50. But in his witness statement of 21st 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 N82,241.34, which is 15% of N548,275.58, 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 N657,930.70 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 N737,901.07.

 

v.                  The claimant also said in his evidence of 14th September 2021 that from October 2006 to December 2006, his employer was remitting N23,733.86 per month instead of N78,015.40 resulting to a shortfall of N54,281.54. Meanwhile, in his evidence of 21st February 2022, he said from October 2006 to December 2006, his employer was remitting the sum of N23,733.86 per month instead of N82,241.34 per month resulting to a monthly shortfall of N58,507.48.

 

vi.               Again, in his witness statement on oath of 14th September 2021, the claimant told the court that for the months of February 2007 to December 2007, his employer remitted the sum of N26,346.26 monthly instead of N78.015.40. But in his witness statement on oath of 21st February 2022, the claimant said for the months of February, 2007 to December, 2007, his employer remitted the sum of N26,346.26 monthly instead of N82,241.34.

 

vii.             He also said in his witness statement on oath of 14th September 2021 that his monthly pension for the months of August, 2008 to June 2009 was the sum of N130,178.55 but his employer remitted only N35,082.96 per month for the said months resulting to a monthly shortfall of N95,059.59. Contrary to this evidence, he told the court in his witness statement on oath of 21st February 2022 that his monthly pension remittance rose to N137,373.50 for the months of August, 2008 to June 2009 but his employer remitted only N35,082.96 per month for the said months resulting to a monthly shortfall of N102,290.54.

 

viii.          Again, the claimant told the court in his witness statement on oath of 14th 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 N134,639.21 monthly as his pension but from July, 2009 to December, 2009 only the sum of N37,748.56 was being remitted monthly, leaving a shortfall of N96,890.65. But in his witness statement on oath of 21st 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 N140,596.16 as monthly pension but from July, 2009 to December, 2009, only N37,748.56 was being remitted monthly, leaving a shortfall of N102,847.60.

 

ix.                In his witness statement on oath of 14th 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 N128,341.94 but his employer was remitting only N39,131.26 monthly leaving a monthly shortfall of N89,210.68. Contrary to this evidence, the claimant said in his witness statement on oath of 21st February 2022 that upon the introduction of new salary structure with effect from 01/01/2010, the amount of his pension remittance became N137,021.94 per month from January 2010 to June 2012 but his employer was remitting only N39,131.26 monthly leaving a monthly shortfall of N97,890.68.

 

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 14th September 2021 that he arrived at the total sum of N142,572,232.94 as his calculation. In contradiction, he said in his witness statement on oath of 21st February 2022 that it is the sum of N162,144,572.00 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 N162,144,572.00 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 N142,572,232.94 as at 31st 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 N162,144,572.00 as his claims as at 31st 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 24th 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