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Hon. President of the National Industrial Court, Hon. Justice Benedict Kanyip, PhD, OFR has dismissed Mr John Ogwuche's allegation of failure and negligence claim against Bemil Nigeria Limited and 2 others over non-remittance of his pension fund to Trust Pensions Limited for lack of proof and statute-barred.
The Court faulted the action of Mr. John for waiting for 14 years before coming to the Court to ventilate his grievance against the period allowed by the Public Officer Protection Act and Limitation Law of Federal Capital Territory.
From facts, the claimant- Mr John Ogwuche had submitted that upon his retirement by Bemil Nigeria Limited on 30 June 2009, he attempted to access his pension benefit at the Trust Pensions Limited but was informed that the firm did not remit any contributory pension to it in respect of his name.
Mr John argued that failure and the negligence of Bemil Nigeria Limited to pay contributions to the board as at when due despite deducting the sum due as contribution from his salary is in flagrant contravention of the Nigeria Social Insurance Trust Fund Act, (General) Regulations.
Mr John claimed entitlement to a lump sum payment as retirement grant equivalent to his final monthly total contribution at retirement age multiplied by the number of months of paid contributions subject to a modification of his pension scheme contribution.
In defense, the 1st Defendant- Bemil Nigeria Limited challenged the jurisdiction of the Court to entertain the case on the ground that the case commenced outside the time frame envisaged by the Public Officers Protection Act and the Limitation Act of the FCT, and the period within which Mr John can commence the suit against the 3rd defendant- NSITF Management Board have since elapsed amongst others.
To the Bemil Limited, the claim of Mr John falls on special damages which must be strictly proved and the Court is not to act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of the alleged loss.
The NSITF Management Board also asked the Court to strike out their name that Mr. John has not established any cause of action against the board and is not a necessary party to the case.
The NSITF Management Board concluded by submitting that it is not vested with the power to prosecute on pension matters as prayed by Mr. John, that the National Pension Commission is the Agency with such responsibility, urged the Court to so hold.
In opposition, learned Counsel to Mr. John urged the Court to strike out the objections that his claims are about failure, negligence and refusal of Bemil Ltd to remit to pension contributions which were duly deducted from his client's salary.
Delivering judgement, the Presiding Judge, Justice Benedict Kanyip, PhD queried Mr. John’s claim of how non-compliance with the Nigeria Social Insurance Trust Fund (General) Regulations yields to a criminal offence for which Bemil Limited can be prosecuted has not been told to the Court by the claimant.
The Court declared Mr. John's case as incompetent and held that Mr. John’s choice of originating summons as the way to litigate the case bordering on negligence was wrong.
On the issue of limitation, the Court held that Mr. John waited for 14 years before coming to Court to ventilate his grievance against the period allowed by the Public Officers Protection Act or both, even though Bemil Nigeria Limited and Trust Pensions Limited are not public officers under the Public Officers Protection Act.
However, the Court held that Bemil Nigeria Limited and Trust Pensions Limited (1st and 2nd defendants), not being public officers, can take benefit of the Public Officers Protection Act since the 3rd defendant-Nigeria Social Insurance Trust Funds Management Board was made a party to the suit.
“Case law authorities are clear that once an action is brought outside the time limited by statute, even if it is late by only one day, it is incompetent and so is statute-barred, for which the court has no jurisdiction over it.” The Court ruled.
On the merit of the case, Justice Kanyip dismissed Mr. John’s claims for lack of proof and ruled that Mr. John’s claims as special damages must not only be specifically pleaded, they must be strictly proved by credible evidence.
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