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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 16th MAY, 2024                                Suit No: NICN/LA/182/2016

 

BETWEEN

 

MR RICHARD IMASUEN                                                                CLAIMANT      

                             

AND

1.    IDUNA SPECIALIST HOSPITAL

2.    STANBIC IBTC PENSION MANAGERS LTD   DEFENDANTS

 

REPRESENTATION:

Ngozi Akandu for the Claimant.

Shuaib Kadiri for the 1st Defendant

Samuel. N. Agweh SAN with Oyetola Kutemi for the 2nd defendant.

 

JUDGMENT

By a general form of complaint filed on the 15th of March, 2016 but further amended on 13th July, 2017, the claimant claimed the following reliefs against the 1st and 2nd defendants:

 

WHEREOF the Claimant claims against the 1st defendant as follows:

 

1.     The sum of Seven Hundred and Eighty-Two Thousand Naira (N782,000.00) being his outstanding salary arrears for the months of January, February, May, June, July, August, September, October and November 2015.

 

2.     The sum of Six Hundred and Forty Thousand Naira (N640,000.00) being his entitled gratuity and benefits for the period he was in the employ of the 1st Defendant from January 2007 to the 13th of November 2015.

 

3.     Interest on the sum of Seven hundred and Eighty-Two Thousand Naira (N782,000.00) being the outstanding salary arrears for the months of January, February, May, June, July, August, September, October, and November 2015 at the rate of 21% per annum from the 31st of November 2015 to the date of delivery of judgment in this suit and from the date of judgment until the total liquidation of the judgment sum in this suit.

 

4.     Cost of this suit in the sum of Five Hundred Thousand Naira only (N500,000.00).

 

The Claimant claims against the 1st and 2nd defendants jointly and severally for:

 

1.     The sum of One Million, One Hundred and One Thousand, Six Hundred Naira (N1,101,600.00) being the accrued pension contribution under the Contributory Pension Scheme for the period he was in the employ of the 1st Defendant from April 2008 to 13th of November 2015 maintained with the 2nd defendant.

 

2.     Interest on the claimant's accrued pension contribution under the Contributory Pension Scheme at the rate of 21% from April 2008 to the date of delivery of judgment in this suit and until the date of final liquidation of the judgment sum in this suit.

 

Accompanying the complaint are further amended statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed on 13th of July, 2017.

 

In reaction, the 1st defendant entered formal appearance and then filed its amended statement of defence, witness written statement on oath and documents to be relied upon at trial dated and filed 13th June, 2018 while the 2nd defendant also entered formal appearance and then filed its amended statement of defence, witness written statement on oath and documents to be relied upon at trial dated and filed on 8th August, 2017.

 

The summary of the facts pleaded by the claimant is that he was sometimes in 2007 employed as an accountant in the 1st defendant company on a monthly salary of N70, 000 (Seventy Thousand Naira only) and that over the years, he grew in the 1st defendant's employment and was consequently placed on N100, 000 (One hundred Thousand Naira monthly salary. That throughout his stint with the 1st defendant, he diligently served the 1st defendant and superintended the financial growth of the 1st defendant company for 8 (eight) years and 9 (nine) months wherein he maintained a pension contributory scheme with the 2nd defendant in line with his company’s policy and that his pension contribution under the Contributory Pension Scheme was the sum total of One Million, one hundred and one thousand, six hundred naira (N1,101,600.00) he maintained with the 2nd defendant. That for his unalloyed dedication to the growth of the 1st defendant company for the over 8 (eight) years and 9 (nine) months he was in the 1st defendant employment, he is entitled to gratuity and other accrued benefits in line with the company's policy. That the company's policy provided that where an employee of the 1st defendant spends more than five years in the employ of the 1st defendant's company. the employee is entitled to his entry salary in addition to his salary at the date of resignation divided by two and multiplied by the number of years spent in the employ of the 1st defendant and that since he has diligently worked for the 1st defendant for over 8 (eight) years, he is therefore entitled to the sum of N640,000.00 as accrued gratuity and benefits for the period of January 2007 to 12th November, 2015.

 

That notwithstanding his unalloyed dedication to the growth of the 1st defendant. the 1st defendant has refused. neglected and or failed to pay his salary for the months of January, February, May, June, July, August, September. October and November 2015 and that having written severally to the 1st defendant demanding the payment of his outstanding salaries without any positive response from it, he decided to resign from the 1st defendant as  he could no longer sustain transporting himself  to and from work, and which also affected his ability to fend for his family; that the malicious refusal of the 1st defendant to pay his outstanding salaries, pension contribution as well as his gratuity and other entitlements has left him traumatized. Consequently, he approached his solicitors to help him recover his outstanding salary arrears, pension contribution as well as his gratuity from the defendants.

 

That his solicitors wrote a letter of demand to the 1st defendant demanding the immediate payment of his outstanding salaries, pension and other entitlements and that upon receipt of his solicitor’s letter, the 1st defendant on the 4th of March 2016, mischievously paid in the sum of One Hundred and Eighty-Four Thousand Naira (N184,000.00) into his account representing his two months' salary after tax and pensions deductions. That the 1st defendant purportedly paid for his March and April 2015 outstanding salaries, thereby leaving off his January, February, May, June, July, August, September, October and November 2015 salaries and that it still baffles him as to why the defendants has maliciously refused to pay his January, February, May, June, July, August, September, October and November 2015 outstanding salaries, gratuity and pension contribution which is unlawful, capricious and unjustifiable.

 

Under cross examination by the 1st defendant’s counsel, CW stated that he has only received the sum of N552, 000 in respect of the 1st part of his claim from the 1st defendant since the matter started; that there is no provision for gratuity in his contract of employment nor did his contract of employment state that there would be interest for any money owed him by the 1st defendant.

 

Under cross examination by the 2nd defendant’s counsel, CW stated that he also made a voluntary contribution besides his pension contribution into the 2nd defendant which has since been paid to him in 2014 and that he is not aware that he can apply for his pension if he is still jobless for 4 months of losing his job.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

 

The 2nd defendant opened its defence by calling its sole witness, Miss Mopelola Ogunleye, wherein she adopted her witness statement on oath as evidence in this case. The 2nd defendant’s witness statement on oath is that the claimant opened a Retirement Savings Account (RSA) with the 2nd defendant in 2007 and that the actual credit balance in the claimant’s RSA account held with the 2nd defendant as at the 31st March 2016 was the sum of N206,379.73 (Two Hundred and Six Thousand Three Hundred and Seventy-Nine Naira Seventy-Three Kobo) only. That the claimant can only access funds in his RSA held with the 2nd defendant in accordance with the provisions of the existing law and regulations in relation to the administration of the pension industry in Nigeria i.e. Pension Reform Act 2014 and the Regulations for the Administration of Retirement and Terminal Benefits issued by the National Pension Commission.

 

That by the relevant provisions of the law, an RSA holder can only have access to the funds in his/her RSA upon retirement or when he/she attains the age of 50 years whichever is later and that where the employee or RSA holder is disengaged by his employer and is unable to secure another employment after a period of four months, he/she can access an amount representing 25% of the credit balance in his/her RSA, subject to the approval of Pencom, while the remaining credit balance in the RSA can only be accessed after the employee/RSA holder attains the age of 50 years if he/she remains unemployed at that age. That, at all times material to this suit the claimant has not submitted any application to the 2nd defendant for the purpose of accessing the funds in his RSA with the 2nd defendant save his application to access the voluntary contribution he made into the RSA which application was duly processed and paid to him by the 2nd defendant and that pursuant to the claimant's application to access his voluntary contribution, the 2nd defendant paid the claimant all his voluntary contribution in the sum of N137,522.30 via the claimant’s Sterling Bank Account number 0019987968. That the Claimant's suit discloses no reasonable cause of action against the 2nd defendant and consequently the suit should be struck out with reasonable cost against the claimant.

 

Under cross examination by the claimant’s counsel, DW2 said under the mandatory contribution, the employer pays 10% of the employee’s salary while the employee pays 8% of his salary to be remitted by the 1st defendant to the 2nd defendant as pension; that the claimant only contributed three months (November 2007, February-March 2008; that as a PFA, it does not enforce punishment or chase contributors to pay; that there is a penalty of 2% for late payment by the employer under the Pension Scheme but is not within the jurisdiction of the PFA.

Under re-examination by the 2nd defendant’s counsel, DW2 stated that the 2nd defendant is a PFA and that the defendant does not enforce laws.

 

The 2nd defendant’s witness was discharged and 2nd defendant thereafter closed its case.

 

The 1st defendant opened its defence by calling its sole witness, Babatunde Dauda, the Account Clerk of the 1st defendant and adopted his witness statement on oath as evidence in this case. The 1st defendant’s witness statement on oath is that the Claimant was not stepping up on the job, he was not diligent and that he was less than effective on the job; that the claimant's calculation on the alleged pension contribution under the contributory scheme is less than accurate and that the 1st defendant does not owe the claimant the sum of N1,101,600:00 said to be pension contribution or at all. That there is no policy in the 1st defendant company whereby an employee is entitled to his entry salary in addition to his salary at the date of his resignation divided by two and multiplied by the number of years spent with the defendant nor does such company policy exist in respect of gratuity in the 1st defendant and that the 1st defendant does not owe the claimant the sum of N640,000:00 or any other sum or at all.

 

That the 1st defendant has been paid the claimant the salary for the months of January, February, May, June, July, August, September, October and November 2015 that in fact the 1st defendant's management had orally invited the claimant to meetings to resolve any issues if at all but the claimant rebuffed the 1st defendant's invitations; that the claimant was not co-operative and resigned on  his own volition; that the 1st defendant only paid what was due to the claimant and that the alleged solicitor's letter dated 14th January, 2017 or any other letter whatsoever played no part in the payment of the money or in the occurrence of events or at all and that the 1st defendant does not owe the claimant the sum of N782,000:00, interest on the said sum of N782,000:00, N640,000:00, N500,000:00, N1,101,600:00, interest on the said sum of N1,101,600:00 or any other sums or any interest on any sum whatsoever or at all as there is no contract whatsoever between the claimant and the 1st defendant for the payment of interest on any accrued sum whatsoever or at all including arrears of salary or at all. He urged the honourable court to discountenance the claim of the claimant in its entirety for lack of merit, being frivolous and vexatious and gold-digging and the said claims be dismissed in their entirety with substantial cost.

 

Under cross examination by the claimant’s counsel, DW2 said he was not in the employ of the claimant when the claimant worked with the 1st defendant; that he is not aware if the defendant made any payment since the matter commenced.

 

There was no Re-examination by the 1st defendant’s counsel. The 1st defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The 2nd defendant’s final written address is dated 7th July, 2023 but filed 10th July, 2023; the 1st defendant final written address is dated and filed 10th July, 2023. The claimant’s final written address is dated and filed 29th February, 2024.

 

Learned counsel on behalf of the 2nd defendant raised three (3) issues for the court’s determination viz:

 

1.      Whether 2nd Defendant's Deposit Slip, Manager's Extract and Claimant's Statement of Account with Sterling Bank on saving Account Number 0004625208 admitted as Exhibits RI-iii and RI-viii respectively have any probative value upon which this Honourable Court can rely on.

 

2.      Whether the document titled Summary of my Computed Pension Arrears for the period of April 2008 to November 2015 admitted as Exhibit RI-ix have any probative value upon which this Honourable Court can rely on.

 

3.      Whether the Claimant has proved its case on preponderance of Evidence before this Honorable court such as to entitle him to the reliefs being sought.

 

It is the 2nd defendant’s counsel submission on issue one (1) that that going by Section 84 of the Evidence Act, it is discernible that the Claimant who is desirous of tendering the content of Exhibits RI-iii and RI-viii failed to lay the necessary foundation regarding the condition of the electronic gadget or computer they were generated from via a Certificate of compliance. To the extent that those conditions as spelt out in Section 84 supra were unfulfilled and that Exhibit RI-iii and Exhibit RI-viii ought not be allowed. That from the provision of Section 98 of the Evidence Act 2011, a photocopy of Exhibit RI-iii (the deposit slip) is a secondary evidence thus, unless the Claimant who is proposing to give such secondary evidence has previously given to the 2nd Defendant (the party in possession of the document) a notice to produce it as prescribed by law in addition to previous objection on the latter half, this half of the document would also not be admissible for non-compliance and contravention of the various provisions of the Evidence Act. That exhibit RI-iii within the means of Section 160 of the Evidence Act is inadmissible; that on the face of the document is an inscription kazeem.badru@stanbicIBTC.com imasuenrich@yahoo.com which was made by an unknown person after the completion and the issuance of the document without the knowledge and consent of the 2nd Defendant thus rendering the document void and inadmissible. He cited the case of Francis Okoye v. Okoye Azubuike Charles & Ors (2015) LPELR-40664(CA),

 

Continuing, counsel submitted that assuming but not conceding that Exhibit RI-iii and Exhibit RI-viii were not caught by previous enumerated provisions of the Evidence Act 2011, the Exhibit RI-iii and Exhibit RI-viii are photocopies where foundation ought to be laid as to the where about of the original in compliance with Section 89 of the Evidence Act 2011 before same is tendered and admitted in evidence. And that it is trite law that such a document in the absence of compliance with the provision of the act must be discountenanced. He urged the honourable court to so hold.

 

On issue two (2); counsel submitted that where a document like Exhibit RI-ix alleged to have emanated from the Claimant but does not name anyone as the maker nor is it signed nor dated; it would not be admitted in evidence and that even if it is admitted in evidence as in this present suit, the honourable court should not attach any probative value to it because a document which is not signed has no origin in terms of its maker as it confers no benefit on the Claimant and that it cannot be used to resolve the question in controversy between the parties. He cited the case of AIKI V. Idowu (2006) 9 NWLR (Pt. 984) 47 and urged the Honourable Court to so hold.

 

On issue three (3); the defendant’s counsel submitted that going by the provisions of the Pension Reforms Act 2014 the party who can lawfully maintain an action against the 2nd Defendant for any impropriety (if any) is the commission and which is subject to investigation and mitigate where the 2nd Defendant was found culpable; that assuming but not conceding that the sum of One Million, One Hundred and One Thousand, Six Hundred Naira (N1,101,600.00) as contained in the Claims represent 25% of the sum in the Claimant's RSA, the Claimant must first have obtained approval of the commission before he is entitled to the said sum.

 

That the claimant did not prove the averments in his pleadings that the 2nd Defendant received any sum which represent 18% of his earnings from the 1st Defendant as provided by the Act; that his averment that he received N60,000.00, N100,000 or any other sum as monthly salary for his position as Accountant in the 1st Defendant's employment for the period he held the office goes to no issue in proving his entitlement to his claim as against the 2nd Defendant and that his ancillary claim which is for interest at 21% on the sum stated in claim one must fail.

 

Learned counsel on behalf of the 1st defendant framed a sole issue for the court’s determination viz:

 

Whether the Claimant has been able to prove his claims and is consequently entitled to the reliefs claimed.

 

It is the 1st defendant’s counsel submission on the sole issue and in respect of his first claim that the claimant having confirmed and admitted under cross examination by the 1st defendant’s counsel that he received the sum of N552,000.00 (Five Hundred and Fifty-Two Thousand Naira) being the arrears of his salary from the 1st Defendant lays to rest the issues between the parties on the first claim. He cited the case of Morohunfola v. Kwara State College of Technology (1990) 4 NWLR 506 and urge the honourable court to so hold.

 

On the claimant’s 2nd relief, counsel submitted that the claimant having admitted that the provision he seeks relief for does not exist in the contract (exhibit RI 1) nor is there any evidence before the honourable court that a contract for gratuity was subsequently entered into, the instant relief must fail. That the honourable court cannot rewrite a contract for the parties. He cited the case of Peter Onyeachonarn Obanye v. Union Bank of Nig. Pic (2018) LPELR 44702 (SC).

 

Continuing, counsel submitted that exhibits R1 9 and R1 10 are mere pieces of paper not signed, endorsed nor authenticated by anyone; that it is trite that an unsigned document is inadmissible to prove a claim to proprietary legal interest based thereon. He cited the case of SPOC Nig. Ltd v. Olarewaju (2002) 16 NWLR (pt. 792) 38.

 

On the 3rd relief; counsel submitted that the claimant cannot make a claim for interest on the said sum having been paid his salary in arrears by the 2nd defendant. That the 1st Defendant is not under any obligation to pay interest to the Claimant for any arrears of salary whether N552,000.00 or for any other sums or at all. That the Claimant having admitted under cross examination that he is not entitled to interest under the contract of employment and there being no evidence before the honourable court of the claimant being entitled to interest, the Claimant is not entitled to prejudgment interest.

 

On Post interest claim; counsel submitted that there is no amount outstanding on which the interest demanded accrues from; that collection of the sum of N552,000.00 (Five Hundred and Fifty-Two Thousand Naira) by the claimant being the arrears of his salary from the 1st Defendant lays to rest the issues between the parties.

 

On the 4th relief; counsel submitted that cost has been held to be of a specie of special damages that must be proved strictly by credible and cogent evidence but that the claimant merely made a claim on the basis of exhibit R1 7. He cited the case of Dumez (Nig) Ltd v.  Ogboli (1912) 1 All NLR 241 and urged the honourable court to refuse the relief.

 

On the claim for the sum of Nl,101,600.00 {One Million One Hundred and One Thousand Six Hundred Naira} being the alleged accrued pension contribution under the Contributory Pension Scheme; counsel submitted that the claim is not supported by any credible evidence and urged the honourable court should so hold.

 

Learned counsel on behalf of the claimant framed a sole issue for the court’s determination viz:

 

Whether the claimant is entitled to the reliefs he has sought before this honourable court.

 

It is the claimant’s counsel submission on the sole issue that the claimant was not paid his salaries for the months in question by the 1st Defendant; that it is therefore the 1st Defendant’s responsibility to show that something was paid; that a worker is entitled to his wages as has been held in a plethora of cases. He cited the case of N.M.A.V. M.M.A. Inc. (2010) 4 NWLR (PT. 1185) 613 AT 618 and urged the honourable court to enter judgment in favour of the Claimant accordingly as presented in the Statement of Facts.

 

I have heard learned counsel and considered all the processes filed and authorities cited.   I will begin by addressing the preliminary points raised by the 2nd defendant on the admissibility of deposit slip of ZPC/SIBTC pension (exhibit RI 3) and claimant’s statement of account with sterling bank saving account number 0004625208 (exhibit RI 8). The 2nd defendant submitted that the deposit slip (exhibit RI 3) has no probative value. The contention of the 2nd defendant is that both exhibits fall under section 84 of the evidence Act, that the claimant failed to lay foundation regarding the condition of the electronic gadget or computer.  The claimant did not respond to these objections in his final address.

 

Let me start with exhibit RI 8 which has no bearing with the 2nd defendant as it is the claimant’s personal account from August 2015 to March 2016. It is necessary that counsel should refer to documents which relate to its case as not every document marked as exhibit must be objected to when there is no need to do so.  What is more the salary account will not reflect the contribution of the parties as what will be seen in the claimant’s statement of account is the deduction after the contribution of the claimant pension from his salary which in turn will be remitted directly to the pension fund administrator with the contribution of the Employer.

 

On the other objection to the admissibility of exhibit RI 3 a photocopy of a deposit slip which was juxtaposed on another document which is the deposit slip with some figures by the side not related to the deposit slip. The claimant refers to same as IBTC Stanbic Pension managers extract and deposit slip. While this can rightly be termed as deposit slip there is nothing to show extract of any other document here. In fact, in trying to interpose some figures without more and combined to make it look like a single document makes this exhibit not authentic. I accordingly reject and discountenance exhibit RI 3 for the purposes of this judgment.

         

Now to the merit of the case, the issue for determination before this court is

 

Whether the claimant is entitled to his salary and other allowances from December 2010 as being claimed by him

 

It is settled law that the claimant must establish his terms of employment and this he can do by the presentation of relevant documents which contains the terms of employment from which the court can garner up the terms. See Yussuf v Von ltd (1996) 7 NWLR (pt 468) 746 CA where the court held that the purpose of spelling out the terms of a contract is to enable parties to know in advance the liabilities and entitlement they are subjected there under.

 

The pleadings filed by the claimant in this case and the simple fact of the case is that the claimant was employed by the defendant as an Accountant in 2007 on a monthly salary of N60,000 and was later confirmed which also increased his salary to N100,000. He stated that the defendant did not pay his salary from January to November 2015 hence he had to resign and upon receipt of his solicitor’s letter after resignation, the defendant paid N184,000 as salary for 2 months. The claimant insists that he is entitled to the sum of 640,000 as accrued gratuity and benefits from 2007 to 2015. In addition, that he is also entitled to be paid his pension arrears by the 2nd defendant.   The 1st defendant’s position on the issues is that the claimant is not owed salaries as all outstanding salaries have been paid to the claimant during the period the matter was in court. On the issue of gratuity and benefits, that there is no provision for same in any of the documents before the court.

 

The claimant has tendered his Letter of Employment (exhibit RI 1), Confirmation of Appointment (exhibit RI 2), Outstanding salary and entitlement (exhibit RI 4), Letter of Resignation (RI 5), Letter of Demand (exhibit RI 6), Statement of account (exhibit RI 8), Schedule of Contributions (exhibit RI 9), Summary of Entitlement (exhibit RI 10), Stanbic IBTC Pension Managers (exhibit RI 11), Account opening form (RI 12), Application for payment from Retirement Savings Account (exhibit RI 13).

 

 On issue 1, the claimant stated that he has not received his salary due to inability of the defendant to pay such. In Paragraph 21 of the witness statement on oath he stated thus

 

           That it still baffles me as to why the 1st defendant maliciously refused to pay my January, February, May, June, July, August, September, October and November 2015 outstanding salaries.

 

The claimant has stated that he resigned his employment from the 1st defendant after working for over eight years and no salary for the month of January, February, May, June, July, August, September, October and November 2015.  He resigned by exhibit RI 5 and gave the mandatory 1-month notice. In exhibit RI 5, by the 2nd paragraph, the claimant stated thus

 

I will like my salary arrears from October to November 2015 to be paid including my final entitlement and my pension fund arrears from April 2008 to November 2015 to be paid also.

 

In paragraph 12 of the further amended statement of facts the claimant averred

 

That notwithstanding my unalloyed dedication to the growth of the 1st defendant. the 1st defendant has refused. neglected and or failed to pay my salary for the months of January, February, May, June, July, August, September. October and November 2015.

 

In response to the above paragraph the 1st defendant in paragraph 7 of the amended statement of defence denies same and states that it has been paying the claimant the salary for the months of January, February, May, June, July, August, September, October and November 2015.

 

Under cross examination, CW in an answer to the question,

since the matter have you received payments from the 1st defendant as an attempt to reach out to you which were in 2 parts of N276, 000 each?

 

CW answered in the positive.

 

And to another question so you can conclude that since this matter started you have received 552,000

 

CW answered Yes.

 

It can therefore be safely concluded from this that the 1st defendant has paid the sum of N552,000 which has been confirmed by the claimant under cross examination. In the 1st relief of the claimant is for the sum of 782,000 for 9 months’ salary. what the claimant has failed to do here is to tell the court the salary for each month as he has only referred to his monthly salary as N100, 000 after his confirmation. if in paragraph 20 of the further amended statement of facts he averred that the 1st defendant purportedly paid for his march and April 2015 outstanding salaries thereby leaving off the January, February, May, June, July, August, September, October and November salaries which in turn means that the monthly salaries after deduction of tax and pensions is N92, 000. If this sum of 92,000 is multiplied by 9 months will come to 828,000. But his claim for is for 782,000. In exhibit RI 4 which is a memo on his outstanding salary and entitlement, the claimant claimed for 966,000. The claimant has claimed for 9 months outstanding salaries which culminated into three different figures for the nine (9) months before the court. There is N782,000 as claimed in relief 1 of his case, N966,000 as shown in exhibit RI 4 and a third figure emanating from the earlier payment by the defendant which is N184,000 divided by 2 months = 92 x 7months = N644,000. On effect of contradiction in plaintiff’s evidence, the court in Olaloye & Ors v A.G Commissioner for Justice Osun State (2014) LPELR -23795(CA) held thus

 

Where the evidence led in attempt to prove a material are conflicting or contradictory, they will in law be considered as unreliable and no court will attach any weight to it. This has to be so. as in the circumstance of conflicting evidence, a plaintiff or claimant cannot be said to have established on the preponderance of evidence, the burden cast on him as one who asserts, to prove his case. Such a shaky piece of evidence cannot be said to have been such that has any weight. It cannot therefore preponderate in favour of the person who seeks to rely on same.

 

What the claimant wants the court to do is to guess which of the figure is applicable. If he admitted that the defendant paid salaries for some months during the pendency of the suit, he equally has a corresponding duty to tell the court the balance of his outstanding salary if any. This he failed to do woefully. He has not proved his salary and the relief is bound to fail and it fails and is dismissed. Exhibit RI 8 is the claimant’s statement of account which shows the claimant was paid salary of N92,000 and 184,000 on the 4th of November 2015 and another N184,000 on the 4th of March 2016. What the claimant has done is to dump these documents on the court. It is the duty of the party tendering the said documents to relate each document tendered to the part of the case he intends to prove. See Maku v Al-Makura & Ors 2016 LPELR -48123 (SC).

 

The claimant or I dare say his counsel did not apply the maxim of he who asserts must prove and in civil cases, the onus of proving a particular fact is fixed by the pleadings. it does not remain static but shifts from side to side. see Gbafe v Gbafe (1996) 6 NWLR (pt 455) page 417 at 432. As the burden of proof merely requires the party alleging a fact to prove the fact, it behooves on the claimant to prove that he is owed salary for 9 months, he has not done that. I also looked closely at exhibit R1 8 which is the claimants sterling bank statement of account from 31st August 2015 – 7th march 2016 which showed he was paid after resignation but has not elaborated to the court what the different payment represent.  I agree with the 1st defendant that the claimant has been paid his outstanding salary as there is no further submission and evidence from the claimant that the outstanding salaries remain unpaid.  The law is that a plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case as the burden of proof does not shift to the defendant in a civil claim if the plaintiff has not established or discharged the primary and first burden on him.  See Yesufu v Adama (2010) 5 NWLR (Pt 1188) 522.  I must emphasize, the claimant is not consistent in stating his case and consistent in proving it.   Relief 1 fails and is dismissed. 

 

Relief 2 is for the sum of Six Hundred and Forty Thousand Naira (N640,000.00) being his entitled gratuity and benefits for the period he was in the employ of the 1st Defendant from January 2007 to the 13th of November 2015.  The claimant averred in paragraph 9 and 11 of the witness deposition 

 

9.        That for my unalloyed dedication to the growth of the 1st defendant company for the over eight years and nine months I was in the 1st defendant employment, I'm entitled to gratuity and other accrued benefits in line with the company's policy.

 

11. That going by the above stated policy I diligently worked for the 1st defendant     for over eight years and I am therefore entitled to the sum of N640,000.00 as accrued gratuity and benefits for the period of January 2007 to 12th November, 2015.  

 

The 1st defendant’s response to this is a denial that there is no company policy in respect of gratuity and other accrued benefits or at all and the 1st defendant does not owe the claimant the sum of N640,000 or any other sum at all.  

 

 

The claimant’s claim is that he worked with the defendant from 2007 – 2015 when he resigned his employment by exhibit RI5.  The claimant has claimed the sum of N640,000 as his Gratuity without showing to the court the policy that entitles him to same.  The claimant tendered exhibit RI 4 which is a memo from the claimant as the accountant of the defendant to the medical Director on the 4th of October 2015, with a computation of outstanding salary and final entitlement.

 

The law is that where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admissions in the pleadings of the defendant that he is entitled. In Afribank Nigeria Ltd v Moslad Enterprises Ltd & Anor (2007) LPELR -5126 (CA) the court held that the plaintiff is entitled to judgment to the extent of what it can prove out of its claims. In Julius Berger Nigeria Plc v Nwagwu (2006) LPELR – 8223 (CA) the Court defined terminal benefit as:

 

A terminal benefit being a lump sum of money awarded in contract at the expiration of employment. The employee has earned it.  It is accruable to an employee when his services are no longer required. A terminal benefit is readily and easily assessed as it is calculable from the agreement between parties on terms and conditions of employment, based on specific statute or common law rules.  As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof, therefore in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights or obligations of the parties. Where the evidence of the claimant is supported by relevant portion of the condition of service on this issue the court will be bound to accept same. This is because where documentary evidence supports oral evidence, oral evidence becomes more credible. See Kimdey v Military Governor of Gongola State (1988) 2 NWLR (pt. 77) p 445.

 

It is manifestly clear that the claimant is unable to prove that he is entitled to the sum of N640,000. The claimant is making out his claim and computed his entitlements. This court is not told how the sums as per calculations were earned and the documents supporting them. Reliance on the calculation by the claimant (Exhibit RI 4 annexure) – Computation of outstanding salary and final entitlement for Richard Imasuen which was not even signed as the basis of his claims cannot hold here or even help the claimant’s case. He has failed to show documented evidence or justification for the figure. The claimant has not averted his mind to the well laid down principle of the law that the claimant succeeds on the strength of his case and not on the weakness of the case of the defendant is very much in focus in that where the claimant fails to prove his case he fails.  What the court is concerned with is not whether the defendant is denying him the entitlement but it is for him to show that he is entitled to same under the conditions of service between the parties. On this, the claimant’s position is that being a negative averment as the claimant has averred, he was not paid salaries and entitlement shifts the onus of proof to the defendants citing N.M.A. V M.M.A. INC (supra). The court in Afolayan v Ariyo & ANOR 2014) LPELR -22775(CA) held

 

It is the appellant who has asserted the affirmative of this fact that bears the burden of proving that assertion and not the respondents who assert the negative. See Oyovbaire v Omamurhomu (1999) 10 NWLR (pt 621) 23.

 

It is my view that without provisions in the contract of employment between the parties that entitles the claimant to gratuity and entitlement, this court cannot rely on what he tendered in exhibit RI 4 as computation of outstanding salary and final entitlement. I do not think the claimant has made out a case. The only situation where a party to a contract of employment can successfully seek remedy in a court of law is when the terms of employment are breached. Unfortunately, the claimant has failed to prove before this court how the terms of his contract of employment were breached; and I so find and hold. I find no merit in the claimant’s claim for Gratuity and benefits; the claim accordingly fails and is hereby dismissed.

 

The claim against the defendants jointly and severally is for the sum of One Million, One Hundred and One Thousand, Six Hundred Naira (N1,101,600.00) being the accrued pension contribution under the Contributory Pension Scheme for the period he was in the employ of the 1st Defendant from April 2008 to 13th of November 2015 maintained with the 2nd defendant. The claimant in his further amended statement of facts in paragraphs 7 & 8 averred that he worked for the 1st defendant and maintained a pension contributory scheme with the 2nd defendant in line with his company’s policy and relies on STANBIC IBTC mangers extract and the sum accrued totaling N1, 101, 600.  In response to this the 2nd defendant admits paragraph 7 and 8 of the statement of facts only to the extent that the claimant has a retirement savings account RSA with the 2nd defendant and that the account was opened in 2007 but that the balance held thereon is not 1, 101,600 but N206, 379.73 as at March 2016. 

 

The law on point is well settled that by virtue of the provisions of section 9 of the Pension Reform Act 2004, every employer is obligated to open a retirement savings Account (RSA) with any Pension Fund Administrator of its choice to be funded with the monthly pensions deducted from its employee’s salaries and its own contributions at the ratio of minimum of 10%  of the employee’s monthly salaries plus a minimum of  10 % of the employer’s salaries as the companies contributions which ought to be remitted within 7 working days to the Pension fund Custodian.  I believe the above provision is for the purpose of what the employer and the employee is expected to contribute for the employee’s pension.

 

On the obligations of employers under the Pension Reform Act 2014 employers are   obligated to transfer the accrued pension right of their employees to their respective retirement savings account (RSA) as each employee is entitled

 

The claimant has tendered exhibit RI 11 which is a confirmation of his RSA fund from 1st January 2005 to 31st March 2016 with a current value of N260, 379.73.  The 1st defendant in paragraph 5 of the amended statement of defense neither admits nor denies paragraph 7 of the statement of facts and submit that the calculation of the alleged pension contribution under the contributory scheme is less than accurate as it does not owe the claimant the sum of N1, 101, 600. When the claimant presented the amount owed by the 1st defendant being pension contribution as 1,101,600, the defendant denied the amount but should equally have provided the correct amount to contradict the claimant’s assertion.

 

Exhibit RI 11 is explicit that the employer and the employee contributed only in February and March 2011as the column for Nov 7th contribution showed the employee contributed 76, 1313. 82 and another one on 31st May 2011 in the sum of 116,900. The exhibit shows the employee and employer contributed 4, 500 each and same for February and March 2008 the employee and the employer contributed 4, 500 each and no more.

 

From the entire evidence before me, it is not in dispute as it is clearly shown in exhibit RI 11 that the claimant has contributed his own portion required and is entitled to pension. Regarding the issue of not remitting to the PFA, I find that the monthly deduction by the defendant was not remitted and same for the contribution of the defendant, the 1st defendant has a duty to do so within 7days which he failed to do.  Having resolved the issue of contribution from the claimant and by the Pension Reform Act, the defendant is expected to contribute its portion, the next issue is whether the claimant applied to the 2nd defendant for the purpose of accessing the funds in his RSA. The 2nd defendant in paragraph 7 averred that at all times material to this suit the claimant has not submitted any application to the 2nd defendant for the purpose of accessing the funds in his RSA with the 2nd defendant save for the application to access the voluntary contribution he made into the RSA which was paid to him. By paragraph 8, the 2nd defendant averred that it paid the claimant’s voluntary contribution in the sum of 137, 522.30 to the claimant. The 2nd defendant’s counsel in his address also submitted that the claimant is at liberty to send complaint by virtue of section 23 of the Act to the commission which complaint shall be investigated and mitigate where found culpable. The 2nd defendant seems to forget the role of a pension fund administrator that it is to manage the pension funds of employee. The issue here is that the 1st defendant has not shown payment of up-to-date contribution of the employer and the employee as this is the statutory duty. Accordingly, the 1st defendant is to calculate the contribution due to the claimant and remit same to STANBIC IBTC account no PEN 100216231062. The assertion by the 2nd defendant that the claimant did not apply for the payment cannot be true as exhibit RI 13 shows the contrary. Exhibit R1 13 is boldly written ‘’ Application for Payment from Retirement Savings Account and followed by ‘’ I hereby

apply for withdrawal from my retirement savings account (RSA) find below my application details.

 

While there is evidence before the court that by exhibit RI 11 annexure shows the employer and the employee’s contribution there is no evidence of contribution N1, 101, 600 for the claimant. The relief succeeds to the extent of the contribution of the employer and the employee from 2008 – 2015 when he was in the employ of the 1st defendant.  

 

It is accordingly, the order of this court that

 

1.     The 1st defendant shall calculate the pension due to the claimant from 2005 – 2016 and remit same to the PFA Stanbic IBTC Account No PEN 100216231062.

 

2.     Cost of N200,000 is hereby awarded against the 1st defendant to be paid to the claimant.

 

3.     All sums are to be paid within 30 days from the date of this judgment. Thereafter, the sums shall attract interest at the rate of 10% per annum until it is liquidated.

 

 

Judgment is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE