IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 14TH OCTOBER, 2022 SUIT NO: NICN/ABJ/220/2021
MATHIAS TERHEMBA SENDAVE -CLAIMANT
NIGERIAN EXPORT-IMPORT (NEXIM) BANK -DEFENDANT
M.T. Ageba Esq. with M.L. Hon Esq and D.T. Agashuwa Esq for the Claimant.
A.O. Ojeh Esq. with Francisca Odina Esq and Sule Asemokhai Esq for the Defendant.
1. It is Claimant’s case vide his statement of material facts that after his unlawful termination from the employment of the defendant and the ensuing Court case between parties, he was reinstated back into the service of the defendant pursuant to an order of Court. However, he exercised his right to terminate the employment and subsequently resigned from the services of the defendant. The defendant while complying with the order of the Court for the payment of the arrears of salaries and entitlements short-paid him and made several deductions which should not have been made when computing his final entitlements. The defendant also defaulted for 30 months in remitting both the employer and employee contributions on his housing allowance and monthly salary to his Pension Fund Administrator. In the same vein, the defendant also willfully refused to remit the deductions of his National Housing Funds to the Federal Mortgage Bank. As a result of the infractions, he caused his lawyer to write the defendant but same yielded no results. Hence this action to seek redress.
2. It is against this backdrop that Claimant took out a General Form of Complaint on the 25th day of August, 2021 wherein he claims against the defendant as follows;
1. AN ORDER directing the Defendant to pay the Claimant the sum of Four Million, Forty Seven Thousand, Five Hundred and Forty Seven Naira, Seventy Eight Kobo (N4, 047,547.78) which sum represents the benefits the Defendant is still owing the Claimant as a result of omissions or wrong computation of the Claimant’s benefits upon his voluntary retirement from the services of the Defendant in December, 2020.
2. AN ORDER compelling the Defendant to pay the Claimant the sum of Six Million, Five Hundred and Eighty One Thousand, Sixty Six Naira, Eighty Nine Kobo (6,581,066.89) as arrears of the Claimant’s pension for 30 Months over the period from 2018-2020.
3. AN ORDER compelling the Defendant to pay the Claimant the sum of Eight Hundred and Six Thousand, Seven Hundred and Sixty Eight Naira, Eleven kobo (N806,768.11) as his National Housing Fund Contribution which the Defendant deducted but willfully refused to remit to Federal Mortgage Bank of Nigeria.
4. AN ORDER of court directing the Defendant to pay the Claimant the sum of Five Million Naira Only (N5,000,000.00) as the cost of this suit.
5. AN ORDER of Court directing the Defendant to pay the Claimant aggravated/exemplary damages in the sum of Five Million Naira Only (N5,000,000.00) for the psychological and economic hardship caused the Claimant by the Defendant via the latter’s deliberate refusal to pay Claimant his benefits.
3. The defendant in response filed its statement of defence on the 17th day of December, 2021 and a subsequent amended statement of defence and counterclaim filed on the 5th day of April, 2022 wherein the defendant joined issues with the Claimant. The defendant averred that Claimant’s salary was calculated in the computation without the lunch allowance as same is only to be paid to a staff who is physically present. That it has an outstanding balance representing January 2018 deduction from Claimant’s housing allowance and that its indebtedness as regards the employer contributions on the monthly salary is only for 27 months which would be remitted when Claimant refunds the employee’s contribution that was paid to him in error. It equally maintained that Claimant’s National Housing Fund deductions has been remitted with only the month of August 2016 and May 2018 remaining as outstanding. Claimant had been told that certain payments which include the pension and National Housing Fund contributions and tax deductions were paid to him in error due to the fact that the defendant computed Claimant’s terminal benefits pursuant to the order of Court without recourse to the usual mode of payment. That the defendant will not bear the liability incurred by Claimant for hiring a counsel of his choice. That the defendant is not liable to the Claimant in any way and he is not entitled to any of the reliefs sought.
4. By way of a Counterclaim, the defendant maintained that Claimant is indebted to it in the sum of N11,668,780.46 representing the accumulation of the statutory tax deductions, pension and National Housing Fund contributions for 27 months. The said sum was inadvertently included in the sum paid to Claimant as terminal benefits. Claimant needs to refund the said sum forthwith to enable the defendant fulfil its statutory duties in respect of the said deduction and contributions.
5. WHEREOF the Counterclaimant claims against the Claimant as follows;
a. The refund of the sum of N11, 668,780.46 by the Claimant/Defendant being the money paid to him by the Counter-Claimant by mistake.
b. Cost of this action.
6. Parties in this case on the 16th day of February, 2022, parties in this case consented to adopt the Argument on Record Procedure contained in Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules, 2017 to argue this case on record and dispensing with the need for oral evidence. As it is customary to do in line with the procedure adopted by parties, this Court ordered parties to file their final written addresses. Claimant in this case filed his final written address on the 8th day of April, 2022 and same was adopted on the 7th day of July, 2022 wherein learned counsel on behalf of the Claimant formulated the following issues for determination;
1. Whether the Claimant has proved his case as to entitle him to the Reliefs sought in this suit or not
2. Whether the Defendant’s Counterclaim has merit or not.
7. On issue one, learned counsel submitted that the defence of the defendant to the wrong calculation of Claimant’s entitlements stating that Claimant’s salary was calculated without lunch allowance as same is to be paid to an employee who was physically present is in no way a challenge or joinder of issues with the Claimant on the said wrong calculations. He submitted that same is not sufficient to contradict the evidence of the Claimant on the said wrong calculations. He relied on the case of Boye Industries Ltd v. Sowemimo 3NWLR (Pt 1817)195@225H-226A. He submitted that the Claimant has successfully proven that the defendant made wrong calculations thereby short-changing Claimant in the sum of N4,047,547.78. He urged the Court to uphold Claimant’s claim to the said N4,047, 547.78 owed him by the defendant.
8. Learned counsel submitted also that the defendant has not successfully challenged the averments and evidence of Claimant on the non-remittance of the pension contributions for 30 months because its defence that it is only indebted for 27 months employer’s contribution which contributions would be remitted only when employee’s contribution for the said months paid to Claimant in error is refunded by him is an evasive denial which amounts to nothing but an admission. He submitted that in view of this open admission by the defendant, it is no longer open to it to justify its refusal to remit the said contributions. He submitted that the defendant at no time paid any money to Claimant in error because it has already in a letter dated December 21, 2020 stated that it has already paid Claimant’s pension contributions to his chosen Pension Fund Administrator while his net entitlement would be paid into his account. He submitted that the defendant cannot be allowed to approbate and reprobate at the same time. He cited in support the case of Balogun v. FRN 11NWLR (Pt 1787)353@377, Paras G-H, SC. He urged the Court to grant Claimant’s relief 2 having been proven.
9. Learned counsel submitted that the Claimant has shown enough particulars and has relied on sufficient evidence like the passbook and the letter by the defendant releasing the passbook to show sufficient evidence of his contribution to the National Housing Fund. He submitted that the defendant contradicted itself when it stated that it had remitted Claimant’s contribution to the Federal Mortgage Bank as shown by bundle of documents and thereafter stated that the National Housing Fund was paid to Claimant in error. It is his submission that even at that there was nothing in the said document to show the defendant ever remitted any amount to the Claimant’s account with the Federal Mortgage Bank as there is nothing to show in the documents what payments were made and to who. He submitted further that the Claimant’s account statement has shown that Claimant’s account with the Federal Mortgage Bank is empty. He urged the Court to grant Claimant’s relief 3.
10. Learned Claimant’s counsel also submitted that Claimant has shown by paragraph of his statement of material facts and statement on oath the cost to be incurred in respect of this action out of which he had paid N3,000,000 and still left with a balance of N2,000,000 to be paid after the delivery of judgment as shown by the document relied on by Claimant. He submitted that Claimant in this case is entitled to cost of action which is at the discretion of the Court because of the attitude of the defendant in this case which should not go unpunished. He urged the Court to grant reliefs 4 for cost and 5 for damages because of the attitude of the defendant.
11. On issue two, learned counsel submitted that defendant having realized that it has no defence to the case of the Claimant and that its counterclaim went ahead to present forged documents to the Court. He submitted that the defendant vide paragraphs of its amended statement of defence averred that it paid Claimant his gross salary of N940,969.92 for 27 months which amount should have been N25,406,187.84 in contrast with the sum of N24,385,587.84 calculated for Claimant. He submitted that the differential is enormous and such cannot be regarded as a mistake as it shows the untruthfulness of the defendant. He submitted also that the defendant’s averment in paragraphs 8-10 of the amended statement of defence and counterclaim that it paid Claimant his gross salary per month in the sum of N940,969.92 for the months of September 2018 to October 2020 which makes 26 months in the sum of N67,548,385.78 also shows wrong calculation. He equally submitted that one of the documents relied upon by the defendant marked page 150 shows record of payment made to claimant for the year 2021 when Claimant has left employment since 2020 and which is an attempt to mislead the Court. He contended that the bundle of documents relied on by the defendant has been shown to be grossly unreliable because of its contradictions. He submitted that evidence at variance with pleadings goes to no issue. He relied on the following cases; Auta v. Ibe 13 NWLR (Pt 837)246@265H-266A; B.A.L Co. Ltd v. Landmark University 15 NWLR (Pt 1748)465@497, Paras A-B; Fatubi v. Olanloye  All FWLR (Pt 225)150 and; Jolayemi v. Olaoye 12 NWLR (Pt 887)322 SC. He urged the Court to grant all claimant’s claims.
12. The defendant filed its final written address on the 28th day of April and adopted same on the 7th day of July, 2022 wherein learned counsel for the defendant formulated the following issues for determination of this case to wit;
a. Whether the CLAIMANT has proved his case in order to be entitled to judgment?
b. Whether the Defendant has established that it overpaid the CLAIMANT, in order to be entitled to judgment in the Counterclaim?
13. On issue one learned defence counsel submitted that Claimant in trying to establish the sum due to him as N939,169,92 did not adduce any evidence to show whether the sum is his net or gross monthly salary. He submitted that the defendant admitted owing Claimant 27 months unremitted pension contribution and not 30 months as claimed and the defendant admitted it is yet to remit the total sum of N4,334,146.98 accruing to Claimant and not the sum of N4,047,54.78 claimed. According to learned counsel, the defendant had explained that the sum of N1,450,717.02 which Claimant should have contributed towards his pension was not deducted from his entitlement and that until Claimant refunds the said sum the defendant cannot contribute or remit its own portion. He submitted that the defendant having admitted that it is has not remitted the sum of N4,334,148.98, the sum needs no further proof. He submitted further that the sum due to Claimant should be set-off against the sum of N11,668,780.446 claimed against Claimant.
14. In respect of issue two, learned counsel submitted that defendant/ counterclaimant has by its pleadings explained that in paying the terminal benefits due to the Claimant, it failed to compute Claimant’s monthly salary but instead paid the gross monthly salary for 27 months. He submitted that to drive home the point made by the defendant in its counterclaim, it pleaded and relied on Claimant’s last pay slip for the month of July, 2018 which shows Claimant’s monthly net salary as N712,952.57 while Claimant in his pleadings admitted that his terminal benefits were calculated based on N939,169.92 which obviously is his gross monthly salary. It was argued that Claimant has not been able to rebut counterclaimant’s assertion as regard his monthly salary being N712,952.57. He submitted that Claimant on the strength of this failure has failed to discharge the burden placed on him to establish what his net monthly salary is in order to show that he was not overpaid. He relied on the case of Ibezim v. Elebeke 4NWLR (Pt 1819)1@41, Para E. He urged the Court to hold that going by the content of the payslip, paying the Claimant the sum of N939,169.92 as admitted by Claimant is an overpayment. He submitted that it is inequitable for the Court to allow the Claimant to retain the tax, National Housing Fund and Pension contributions. He relied on the case of NBN Ltd v. SAVOL W.A. Ltd 3NWLR (Pt 333)435@457.
15. Learned counsel submitted that the defendant/counterclaimant has a duty to provide evidence to convince the Court that the Claimant/defendant counterclaim received more than he should have been paid. He relied on the case of Access Bank Plc v. Ogboja 1NWLR (Pt 1812)547. He submitted that a counterclaimant ought to succeed on the strength of its own case. He cited in support the case of Orianwo v. Okene 14 NWLR (Pt 786)156. To learned counsel, the defendant/counterclaimant has discharged the burden placed on it and it has established that the money paid to Claimant as his terminal benefits was paid in error.
16. Learned counsel submitted that Claimant in evaluating evidence has argued that there are discrepancies and contradictions in the evidence adduced by the defendant by referring to Claimant’s payroll and other benefits for 2021. He submitted that the document was dated 2021 in error and ought to be dated 2020. He stated that the contradiction if any is not material, he relied on the case of Alao v. State 17 NWLR (Pt 1488)245@268, Paras E-G. He urged the Court to find that the defendant has not denied that Claimant has an outstanding payment of N4,334,148.98 but that the defendant over paid the Claimant in the sum of N11,668,780.46 being monies the defendant was statutorily required to deduct and pay to the Government and accordingly hold that the defendant counterclaimant has proven its counterclaim.
17. Upon a careful perusal of the originating process together with all its accompanying processes, the amended statement of defence and counterclaim along with its accompanying processes and the final written addresses of parties in this case, this Court is of the humble view that the issues that best determine this case are as follows;
1. Whether the Claimant has proven his case on the preponderance of evidence to be entitled to the reliefs sought.
2. Whether the Defendant has proven its counter-claim as to entitle it to the reliefs sought.
18. On issue one, Claimant contended vide paragraphs 5, 6, 7, 8, 9 and 10 of the Statement of material facts that the defendant after the Court’s judgment and his subsequent resignation had paid him the sum of N92,376,425.22(ninety-two million, three hundred and seventy-six thousand, four hundred and twenty-five Naira, twenty-two kobo) and $9,040.00 (nine thousand and forty dollars) as the sum due to him but he was short-paid as his total entitlement is N99,696,715.87 (Ninety-nine million, six hundred and ninety six thousand, seven hundred and fifteen Naira, eighty-seven kobo). Claimant in support of his claim placed reliance on a document titled BENEFITS AND LIABILITIES –MATHIAS T. SENDAVE dated 19th February, 2021. He averred further vide paragraphs 11 and 12 of the statement of material facts that the only sum which the defendant ought to have deducted from the sum of N99,696,715.87 is the sum of N3,272,715.87 which represents his three months’ salary in lieu of notice and the 13th month allowance which sum had already been paid to him as part of his terminal benefits. Notwithstanding, the said deduction, the defendant is still indebted to him in the sum of N4,047,547.78 (Four million, forty-seven thousand, five hundred and forty-seven Naira, seventy-eight kobo) which represents the remaining balance after the deduction of the above sum of N3,272,715.87 and the sum of N92,376,452.22 already paid to him from his total entitlement in the sum of N99,696,715.87. The defendant in response vide paragraph 3 of the amended statement of defence filed on the 5th day of April, 2022 on page 280 of the records averred that Claimant’s monthly salary was calculated for 27 months without lunch allowance because lunch allowance is only paid to staff who are physically present at work and that it is not true that Claimant’s salary was wrongly calculated. Claimant in his amended reply on page 301 of the record did not specifically traverse the averment of the defendant contained in paragraph 3 of the amended statement of defence. Claimant vide his amended reply to amended statement of defence on page 301 of the record averred vide paragraph 1 of the process that it shall join issues with the defendant on all the allegation of facts contained in the amended statement of defence and counter Claim and put the defendant to the strictest proof of all the assertion. Apart from the said paragraph 1 of the amended reply there was nowhere in the Claimant’s amended reply and defence to counterclaim that the said assertion in paragraph 3 of the amended statement of defence was specifically denied by the Claimant.
19. The law and the rules of pleadings allow a general traverse/denial, the effect of which is to cast on the other party the burden of proving the allegations generally denied. In principle, a general traverse/denial is not enough to controvert material and essentially important averments in the pleadings of the other party. Courts before now have held that it is by a proper traverse that an issue is joined, and it is by the failure to deny specifically and effectively in a specific material averment that admission may arise. See the following cases: UBN Plc v. Chimaeze  LPELR-22699(SC)1@48, Para A; Adike v. Obiareri  4 NWLR (Pt.758) 537; OMPADEC v. Dalek (Nig.) Ltd.  12 NWLR (Pt.78I) 384; Egbunike v. A.C.B. Ltd.  2 NWLR (Pt.375) 34 and; Elukpo & Sons v. F.H.A. (1991) 3 NWLR (Pt.179) 322. However, the apex Court per Nweze, JSC in Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos  LPELR-42573(SC)1@14-17, Para C while considering whether a general traverse is sufficient held thus: “It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied. Umesie v. Onuaguluchi (1995) 12 SCNJ 120. As shown above, in the opening paragraph of the Statement of Defence, the first defendant employed the mode of pleading known as general traverse. In the words of Mohammed JSC in Ugochukwu v. Unipetrol (Nig) Plc (2002) LPELR-3321 (SC) 7, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied. According to the eminent jurist, it is not correct that, in Lewis and Peat (NRL) Ltd v. Akhimien (1976) 6 SC 159, the Apex Court held that a mere traverse of material facts is not enough to deny such facts...” [Emphasis mine] See also the case of Iya & Ors v. Shinckepe & Anor  LPELR-49945(CA)1@25-28, Para D. This seems to represent the current position on the issue of the sufficiency of a general traverse. It is thus clear that a general traverse has the effect of casting back on the other party the burden of proving the averment generally denied notwithstanding that general traverse does not amount to specific denial. In this light therefore, notwithstanding the general traverse of the Claimant in his amended reply, the defendant retained the burden of proving the averments.
20. It is now well settled that monetary claims are in the realm of special damages that must be specifically pleaded and strictly proved. See the cases of; Ajigbotosho v. RCC  LPELR-44774(SC)1@16, Para E; Eneh v. Ozor & Anor  LPELR-40830(SC)1@14-16, Para E and; NNPC v. Clifco Nig. Ltd 4 SCM, pg 194@217-218. This means full particulars of the items have to be given in the pleadings and evidence led in proof of each item or each of the particulars of the item(s) given. In other words, a claim for special damages by way of monetary claim succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Claimant specifically vide paragraph 9(a)-(d) gave particulars of the said short-pay and stated that there was a shortage of the sum of N972,000 which if added to the sum of N98,724,517.22 contained in the new calculation will give the sum of N99,696, 715.87. Claimant vide paragraph 9(a) of the statement of material facts stated that as shown in document titled BENEFITS/LAIBILITIES COMPUTATION SHEET- MATHIAS T. SENDAVE which the Defendant attached to the defendant’s statement of defence in the previous suit between parties in Suit No NICN/ABJ/336/2018 in item F and G thereof, his leave allowance is N1,945,241.23 while his leave days Entitlement is N959,710.14 making a total sum of N2,904,951.37; in item I thereof transport expenses is
N310,000 and; Item E thereof Reserved medical allowance is N291,674.10 which allowances were not included in the new computation attached to the letter from Admin. He continued that paragraph 1.9 thereof has only to do with only 2019 and 2020 leave allowances yet the said sum of N2,904,951.37 was still deducted from the sum of N98,724,517.22 in the new calculation and which sum did not form part of the new calculations but part of the terminal benefits already paid to Claimant. Claimant in this case has relied on a process filed in the previous proceeding between parties that is the amended statement of defence filed by the defendant herein in a previous proceeding between parties which is marked Exhibit M. In the case of Ikpeogu v. Ikpeogu & Ors  LPELR-41057(CA)1@20, Para A, Ogunwumiju JCA now JSC when considering whether documents used by a party in previous proceedings can be used against him held thus; “It is clear that the learned trial judge considered the averments in the counter affidavit which were part of the process in a previous litigation. As said earlier, the documents were admitted without objection of counsel. Ex facie these exhibits if pleaded are relevant and thus admissible. Okonkwo Okonji v. George Njokanma (1999) 12 SCNJ 295. Generall, though documents used by a party in previous proceedings can be used against him Eyifomi v. Ismail (1987) 2 NWLR Pt. 57 Pg. 458.” [Emphasis mine]. It is thus clear that a process or document used by a party in a previous proceeding if pleaded and relevant can be used against the party who used it in a subsequent proceedings. Parties in this case adopted the argument on record procedure wherein Court dispenses with the need for oral evidence and relies on the documents pleaded and frontloaded by parties. It then means that Exhibit M which has been pleaded and is relevant can be used by the Claimant against the defendant who filed same in the previous proceedings. I so find and hold.
21. I have perused the said Exhibit M which is the process filed by the defendant in a previous proceeding and I find categorically that the Claimant’s terminal benefits which was already paid was calculated to be
N6,348,092.00 gotten from the summation of the sum of N2,817,509.75 as three months’ salary in lieu of notice; the sum of N291,674.10 as the reserved medical allowance; the sum of N1, 945,241.23 as 2018 leave allowance; the sum of N959,710.14; N455,206.77 as the pro-rated 13th month allowance and; the sum of N310,000 as transport allowance as stated severally in the amended statement of defence and appendix therein less his liabilities in the sum of N431,250. The breakdown of the said sum is as contained in Exhibit M (particularly the appendix I). The bone of contention is that according to Claimant since the said sums were not calculated as part of his entitlement in the new calculations after his resignation as contained Exhibit M4 (particularly the attached new calculations) the defendant ought not deduct them again from the new sum calculated as his entitlement. I have perused Exhibit M4 with particular attention on the calculation contained in document titled BENEFITS AND LIABILITIES-MATHIAS SENDAVE which is the much talked about new calculation. It is clear from the breakdown in Exhibit M4 that the 2018 leave allowances of Claimant and 2018 earned leave days entitlements, the Transport allowance and Reserved medical Allowance were not part of the breakdown as against that of Exhibit M. The obvious reason is that same has been paid to Claimant as part of his terminal benefit as seen in Exhibit M4. Claimant was reinstated by the Court decision after the said payment of terminal benefits as seen in Exhibit M1. The effect of this is that Claimant is to be paid all his other earnings less anyone which has already been paid to him. The defendant obviously calculated all other earnings without the sum making up Claimant’s leave allowance for 2018; 2018 leave days entitlements; reserved medical allowance and; transport allowance but went ahead to deduct the whole of Claimant’s terminal benefits which include the said leave allowances which was not calculated as part of his new entitlement for the obvious reason that he has been paid. Deducting the said allowances from the new calculation which does not even capture the allowances would mean that the defendant is saying Claimant was not entitled to be paid those allowances at all.
22. The law is long settled that an employee can claim for sum including salaries, leave allowances and other entitlements earned by employee which has accrued at the date of termination of employment but which was not paid at the date of termination. See the case of Udegbunam v. F.C.D.A 10 NWLR (Pt 829)487@500, Paras F-H. It then means that an employee even upon termination is entitled to be paid any sum that has accrued to him at the time of termination. It is therefore, in my humble view that since Claimant worked till 2019 before his employment was unlawfully terminated, he is entitled to the said allowances which was why the defendant obviously calculated it as part of his terminal benefits and paid to him. In fact, the defendant in this case has not said that Claimant is not entitled to be paid the said allowances and entitlements. It merely pleaded vide paragraph 3 of the amended statement of defence in the instant case that Claimant’s entitlement does not include his lunch allowance because he was not present at work. Claimant’s contention is not against the lunch allowance as wrongly perceived by the defendant in its amended statement of defence rather against the deductions of his 2018 leave allowance; leave days entitlements; transport allowance and reserved medical allowance. In this case the said allowances were paid to Claimant at the point of termination, the said sum of N1,945,241.23 and N959,710.14 which are his 2018 leave allowance and 2018 leave days entitlements respectively had already accrued at the point his employment was unlawfully terminated although it was paid together with his salary in lieu of notice as part of his terminal benefits. The said sums are claimant’s earned pay different from the salary in lieu of notice that was paid to him together with the said sum by virtue of termination. Deducting Claimant’s earned entitlements again from the total sum in Exhibit M4 which did not even capture these said earned entitlement as part of the new entitlement is a jeopardy and is like taking away what Claimant is ordinarily entitled to. The defendant is entitled to deduct the sum paid to Claimant as terminal benefit less Claimant’s earned pays that is the 2018 leave allowance, leave days entitlements which are Claimant’s earned allowances, reserved medical allowance and transport allowance. In essence the only sum the defendant can deduct being part of the terminal benefit is the three months’ salary in lieu of notice and the 13th month which was not earned and which payments were again captured in Exhibit M4. See Items 1.2 and 1.11 on the table of calculation in Exhibit M4. The only ground wherein the defendant can deduct those allowances which had already been paid to Claimant as part of his terminal benefits is if they are captured or calculated as part of Claimant’s new total entitlements in Exhibit M4 for the obvious reason that Claimant cannot be paid the same allowances twice. However, in the instant case these allowances/entitlements which were earned by Claimant were not even calculated or captured in the new entitlements pursuant to reinstatement and resignation. The defendant ought not to deduct these allowances again. All the defendant should have deducted is the three months’ salary in lieu of notice which is
N2,817,509 since Claimant’s salary in Exhibit M4 is calculated from September 2018 when his employment was unlawfully terminated and he cannot be paid salaries twice. It was only the three months’ salary in lieu of notice which Claimant has already been paid that should be deducted since those months are again captured in Exhibit M4 (that is September-November, 2018). The defendant cannot deduct the allowances which has already been earned and is not reflected in the new calculations. It is oppressive for the defendant to deduct the whole of the sum paid as terminal benefits not taking cognizance of the fact that Claimant has earned the allowances paid and same have not been captured in the new calculations.
23. Claimant equally averred vide paragraph 9(d) of the statement of material fact that his monthly salary is N939,169.92 to be paid for 27 months which equals
N25,357,587.84 as against the sum of N24,385,587.84 calculated for him in Exhibit M4 and as such he was paid short of the sum of N972,000. The defendant specifically in response to this paragraph averred vide paragraph 3 of its amended statement of defence that Claimant’s salary was calculated for 27 months without lunch allowance because lunch allowance is only paid to staff who are physically present at work. I bear in mind the submission of learned counsel on behalf of the defendant in his final written address that Claimant has admitted in his pleadings that the above sum of N939,169.92 was what was used in calculating his salary for 27 months which is the sum of N24,385,587.84. I must say that this is a clear misrepresentation of the facts contained in Claimant’s pleadings by learned defence counsel. At no time did claimant make any such admissions in his pleadings whether in the statement of material facts or the amended Reply and defence to counterclaim. Claimant paragraph 9(d) of the statement of material facts is instructive and it is to the effect that Claimant challenges the sum of N24,385,587.84 calculated as his monthly salary for 27 months and Claimant with respect maintained that his monthly salary is NN939,169.92 and as such his 27 months’ salary should be N25,357,587.84 and not N24,385,587.84 calculated as his monthly salary for 27 months. If anything, claimant is clearly disputing that his monthly salary of N939,169.92 ought to be used to calculate the salary for 27 months.
24. I am also mindful of the submission of learned counsel for the defendant in this suit in the final written address that Claimant did not adduce sufficient evidence to show that the monthly salary of N939,169,92 claimed is his net or gross salary. In the case of Intels Nig Ltd & Ors v. Bassey LPELR-4326(CA)1@13-14, Para D, the Court held inter alia thus as regards gross and net salary; On the other hand, basic salary and all entitled allowances payable to an employee constitute gross salary, while net salary is gross salary less all deductions, Put differently; gross salary is the total amount of income from all sources before any deductions are made.”[Emphasis mine]. It is thus clear that gross salary is the total basic salary plus all allowances while net salary is gross salary less deductions. It is on record that Claimant severally in this case in support of his relief 1, has placed reliance on Exhibit M which is a process filed by the defendant in the previous suit and equally relied on Exhibit M1 the judgment of this Court in the previous suit between parties. A perusal of both Exhibits show that while Claimant claimed the sum of N1,371,696.92 as his gross salary as seen in Exhibit M1, the defendant on its own part by Exhibit M maintained that Claimant’s monthly salary is N939,169.92. In fact, defendant in Exhibit M had averred that Claimant was entitled to three months’ salary in lieu of notice in the sum of N2,817,509.75 and which breakdown also contained in Exhibit M shows what was used in calculating the said salary in lieu of notice is N939,169.92. The said Exhibit is thus in support of Claimant’s claim to the sum of N939,169.92 as his monthly salary.
25. The defendant is the one raising the issue of the gross and net monthly salary in support of its calculation of Claimant’s entitlements. Thus, it is the defendant that bears the burden to prove its assertion of the gross salary different from the net salary. The defendant had relied on an alleged pay slip of the Claimant which is part of the bundle of documents marked Exhibit N2 that Claimant’s Gross pay for July 2018 is N940,969.92 while his net pay is N712,952.57. The defendant who would want the Court to rely on this said payslip is the same person who tendered at page 149 of the record document which is equally part of the bundle of document marked N2 which shows that Claimant’s two month’s salary in lieu of notice is the sum of N2,836,498.44. Going by this document if Claimant’s two month’s salary in lieu of notice is N2,836,498.44 then it means Claimant’s one month’s salary would be N1,418,249.22 which sum is in sharp contrast with either the sum of N712,952.57 stated as Claimant’s monthly net pay or the sum of N940,969.92 stated as Claimant’s gross salary in the pay slip. Both documents emanated from the defendant in this case and were both tendered in proof of the entitlements of Claimant. If the Court chooses to believe the payslip, then it means the contents of the said document at page 149 which is part of the bundle of document marked as N2 is incorrect. These contradictions as to how much Claimant earns in the documents relied on by the defendant is material but their inconsistency remains unexplained and this Court would regard the contents of the two documents as evidence that is far from being reliable. It is in view of this that I will discountenance with the two documents which form part of the bundle of documents marked Exhibit N2 that is the payslip and document at page 149 of the record. This is in line with well positioned principle stated in the case of Kayili v. Yilbuk & Ors  LPELR-24323(SC)1@68, Para A that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must therefore, be rejected. In view of the fact that I have discountenanced the said payslip, I cannot find any evidence in support of the fact averred by the defendant as per Claimant’s net salary. I so find and hold
26. A perusal of Exhibit M4 specifically the calculation annexed thereto containing Claimant’s benefits, Claimant’s monthly salary from September 2018 to November 2020 was calculated as
N24,385,587.84 as stated by Claimant. The defendant in its averment has stated that the difference is as a result of the non-inclusion of Claimant’s lunch allowance. If Claimant’s salary was really calculated without the lunch allowance, it then means that what was paid to Claimant as monthly salary from September, 2018 to November, 2020 does not include Claimant’s lunch allowance. The question that agitates the mind of the Court at this stage is Claimant entitled to the said sum upon reinstatement by the Court. In the case of Ekeagwu v. The Nigerian Army & Anor LPELR-1076(SC)1@8-9, Para E, the apex Court per Onnoghen JSC held inter alia that upon reinstatement the plaintiff/claimant is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable. This means that such an employee upon reinstatement is entitled to all his salaries and all other accompanying benefits as if he never left office. The judgment of this Court which ordered for the reinstatement of the Claimant that is Exhibit M1 was not appealed and it stated specifically in paragraph 35 particularly item 5 that Claimant is entitled to be reinstated back to employment and be paid all his salaries and allowances from when his employment was terminated on 5th September, 2018 till the date of judgment. The defendant in obeying that judgment in their own miserly wisdom decided to deduct Claimant’s lunch allowance when the Court held that Claimant should be paid all his salaries and allowances. It cannot choose which part of the judgment to obey and which part not to obey as a judgment of Court is to be obeyed. The defendant having decided to reinstate Claimant in line with the judgment of Court in Exhibit M1 should accordingly obey all the orders which include that Claimant should be paid all his salaries and allowances. The implication of the judgment is that Claimant never left employment and is deemed by the Court to be physically present, the defendant cannot deny him his lunch allowance on the ground that he was not physically present.
27. As a corollary to the above, the Court of appeal per Ogunwumiju JCA (now JSC); in the case of Omidiora & Anor v. FCSC & Ors LPELR-8883(CA)1@ 10-14, Para E held inter alia that there was no need for the appellants whose termination of their employment has been declared unlawful in that case to prove any special circumstances to entitle them to the consequential relief of reinstatement and payment of their salaries during the period they were deemed to have been employed in the Federal Civil Service. The Court added that it is not part of the burden of proof required to be discharged by a Plaintiff who was an employee in statutory employment. The great jurist went ahead to add that the Court should not unilaterally add what is not legally required to the evidential burden of a litigant. It is thus clear that an employee need not prove any special circumstance to show that he is entitled to his salary upon reinstatement and the burden is not on such an employee to prove that he is entitled to any portion of his salary during the period he has been deemed to be in employment by the Court. The law ordinarily presumes it. As such, the Claimant herein does not bear any special burden to prove his entitlement to the said lunch allowance or any other allowance which is part of his gross salary as seen in Exhibit N2. Besides, from the state of pleadings, it is the defendant who is asserting that Claimant is not entitled to be paid the said lunch allowance because lunch allowance is only to be paid to a staff who is physically present which was why it was deducted from Claimant’s salary that needs to prove Claimant’s non-entitlement as the Court ordinarily presumes, he is entitled upon reinstatement. This is in line with the cardinal principle that he who asserts must prove. See Jimoh v. Hon. Minister of Federal Capital Territory & Ors  LPELR-46329(SC)1@13-14, Para A and Anikwe & Ors v. Offoelo & Ors  LPELR-41526(CA)1@13, Paras E-E. The defendant has not been able to prove its averment or place any evidence before this Court in proof of its averment that lunch allowance is only to be paid to a staff who is physically present. In the absence of any such compelling evidence. This Court in view of all reasoned earlier find that Claimant is entitled to the said lunch allowance which is ordinarily part of his salary for those 27 months as the law presumes his entitlement upon reinstatement. The defendant should have paid Claimant his full salary, the lunch allowance inclusive. Claimant has proven his entitlement to the sum of
N972,000 claimed as the short pay. Accordingly, I find that the sum should have been added to Claimant’s entitlement in Exhibit M4 that is N98,724,517.22. In essence Claimant’s final entitlement should have been N99,696,517.22 as against the sum of N98,724,517.22 calculated for him in Exhibit M4. Although, Claimant in paragraph 9(d) had wrongly calculated the summation of the sum of N972,000 differential and the entitlement in Exhibit M4 N98,724,517.22 to be N99,696,715.87 instead of N99,696,517.22 which is the correct summation.
28. Section 254 C (1) (f) and (h) of the Constitution of the Federal Republic of Nigeria ,1999 (as amended) hereafter referred to as “the Constitution” empowers this Court to apply international best practices in labour, Conventions, Treaties, Recommendations and Protocols ratified by Nigeria. By ILO Convention No 95 (the Protection of Wages Convention, 1949) which has already been ratified by Nigeria, the practice of unwarranted deductions/withholding of employee’s salaries and entitlements after severance of employment relationship is forbidden. Specifically, Article 8 provides thus;
1. Deduction from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
2. Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions shall be made.
Article 12 (2) of the same Convention provides thus;
Upon termination of a contract of employment, a final settlement of all wages due shall be effected in accordance with national laws or regulations, collective agreement or arbitration award or, in the absence of any applicable law, regulation, agreement or award, within a reasonable time having regard to the terms of the contract.
29. It is without doubt from the above provision of Convention 95 that an employer has no right to deduct arbitrarily from the entitlement or wages of an employee. It is equally clear by that convention that upon the severance of the employment relationship the employer must pay to the employee all that is due to him. The defendant in this case after the Claimant exercised his right to leave the employment after the Court’s judgment reinstating him went ahead and made several deductions from Claimant’s final entitlements as seen above with respect to the leave allowance, leave days entitlement, reserved medical allowance, transport allowance and the lunch allowance in the most arbitrary manner. It has failed to pay Claimant all that is due to him. I therefore find that the defendant acted in an oppressive manner by deducting these allowances from Claimant’s final entitlement. Claimant is entitled to be paid the sum of
N2,904,951.37 being his 2018 leave allowance and leave days earnings already earned and paid wrongly deducted from the new calculation in Exhibit M4 as part of his terminal benefits already paid before reinstatement. He is equally entitled to be paid the sum of N310, 000 which was his transport allowance already earned and paid wrongly deducted as part of his terminal benefits from the new calculation in Exhibit M4. In the same vein, Claimant is entitled to his reserved medical allowance already earned and paid in the sum of N291,674.10 which was also wrongly deducted as part of his terminal benefits from his final entitlements in Exhibit M4.
30. Claimant’s final entitlements as reasoned supra should have been
N99, 696, 517.22 as against the sum of N 98,724,517.22 calculated for him in Exhibit M4 as claimed and averred by him in several paragraphs of his statement of material facts. Claimant has averred that the only sum which the defendant should have deducted from the final entitlement in Exhibit M4 is the three months’ salary in lieu of notice and 13th month allowance which this Court has equally reasoned earlier for the obvious reasons that those payment had already been received by the claimant. That is to say that his three-month salary for September, October and November 2018 in lieu of notice and 13th month allowance for 2018 are also captured in the calculation contained in Exhibit M4 particularly in items 1.2 and 1.11 on the table of calculation in Exhibit M and Claimant cannot be paid twice. The three months’ salary in lieu of notice is N2, 817, 509.76 while the 13th month Pro-rated allowance is N455, 206.77. The summation of these two sums gives N3, 272,716.53. However, Claimant averred by paragraphs 11 and 12 of the statement of material facts that the summation of this sum is N3, 272,716. 87. This is a wrong calculation on the part of Claimant. The deduction of the sum of N3,272,716.53 from the total sum of N99, 696,517.22 will give the sum of N96,423,800.69 and not the sum of N96,424,000 which was averred by Claimant in paragraph 12 of the statement of material facts which the Court believes was an innocent mistake borne out of the previous wrong calculations stated supra.
31. Parties in this case are ad idem that Claimant has been paid the sum of
N 92, 376,425.22. As reasoned supra the Claimant’s final entitlements should have been N99, 696,517.22. Also, as reasoned supra the defendant should have deducted only the sum of N3, 272, 716.69 from the said sum of N 96, 696, 517.22 which will give N96,423,800.69 which is Claimant’s final entitlements less the two months’ salary in lieu of notice and 13th month pro-rated allowance already paid. Claimant has averred that the defendant is still indebted to him in the sum of N4, 047, 547.78 which is the remainder of the sum after the deduction of the N92, 376, 425.22 already paid. This Court finds that the indebtedness of the defendant to the Claimant is in the sum of N4, 047, 375.47 as against N4, 047, 547.78 claimed as indebtedness by Claimant because that is what one will get when the sum of N92, 376,425.22 which has already been paid to Claimant as admitted by parties is deducted from the sum of N96,423,800.69 which Claimant should have gotten as his final entitlements.
32. It is a trite principle of our law that while a Court cannot award more than what a plaintiff claims, it can award less. See the following cases; Okafor & Anor v. Ejiogu  LPELR-3923(SC)1@47, Para C; Jeric Nigeria Ltd v. UBN Plc 15NWLR (Pt 691)447@464, Para F and; Felix Okoli Ezeonwu v. Charles Onyechi  3 NWLR (Pt.438) 499. Although, Claimant claimed
N4, 047, 547.78, the Court has found that what he is entitled to base on his claims and proof is the sum of N4, 047, 375.47 for reasons earlier given. In essence, Claimant is entitled to the sum of N4, 047, 375.47 as against the sum of N4, 047, 547.78 claimed in relief 1. Thus, I find that relief 1 succeeds to the extent that Claimant is entitled to be paid the sum of N4, 047, 375.47 (Four million, forty-seven thousand, three hundred and seventy-five Naira, forty-seven Kobo).
33. Claimant in his relief 2, Claims for the sum of N6,581,066.89 which represents his arrears of pension for 30 months over the period of 2018-2020. Claimant averred facts relating to this in paragraphs 13-20 of the statement of material facts. Claimant relied on Exhibits M3, M5 and M6 in proof of his averments. The defendants in response vide paragraphs 4 and 5 of the amended statement of defence averred that it is not true as averred by Claimant that the pension contributions to his PFA for the months of January, March and April, 2018 and September 2018 to November, 2020 have not been remitted by the defendant however the defendant has an unpaid outstanding balance of N232,875 representing January deduction from employee’s housing allowance as pension contribution. It continued that defendant only defaulted in remitting for 27 months as against the 30 months Claim by Claimant and which total amount is N4,334.148.98 as against the sum of N6,581,066.89 averred by Claimant and that the defendant will remit the said sum once Claimant refunds the sum N1,450,717.02 representing his own employee contribution which was paid to him in error. Claimant did not make a specific traverse of the said averments of defendant contained in paragraphs 4 and 5 of the amended statement of defence. However, Claimant made a form of a general traverse in paragraph 1 of the said amended reply and defence to counterclaim on page 301 of the record. As reasoned supra in this judgment notwithstanding that Claimant did not specifically traverse some allegations made in the amended statement of defence, the defendant, the general traverse is sufficient to cast back on the defendant, the burden of proving its assertions in paragraphs 4 and 5 of the amended statement of defence generally denied by Claimant by its general traverse.
34. It is not in doubt from the state of pleadings that Claimant is entitled to have pension contributions remitted to his pension account in respect of the annual housing allowance and monthly pension contribution from his salary. The dispute between parties lies in how much has been remitted in respect of these pension contributions. Claimant on his own part relied on Exhibit M5 which is a print out of his statement of account from his Pension Fund Administrator in proof of his own claim that his pension contributions is the sum of N53,730.26 as employee’s 8% monthly contribution and N129,840.14 as 10% employer’s monthly contributions for 30 months and the pension contribution on his annual housing allowance which is pensionable both to the tune of N6,581,066.89 has not been remitted to his Pension account contrary to the assertions of the defendant in Exhibit M3. Claimant specifically averred by giving particulars of the sum of
N6,581,066.89 claimed. Claimant in this case is Claiming for the unremitted pensions for 2018, 2019 and 2020 housing allowance, monthly pension contribution for March, April, September, October, November, December 2018, January-December, 2019 and January-November, 2020 to the tune of N6,581,066.89. The defendant who would want this Court to believe that it is only defaulting in respect of 27 months and not 30 months as claimed by Claimant which according to it is to the tune of N 4,334,148.98 and that it only has an outstanding balance of N232,875.00 as claimant’s pension contribution on his housing allowance representing January 2018 deduction from Claimant’s housing allowance failed to show any cogent or credible evidence that it has paid the pension contribution in respect of Claimant’s housing allowance for the year 2018, 2019 and 2020 which Claimant is claiming for. It equally did not also lead any evidence showing remittance of the disputed 3 months to the Claimant’s PFA.
35. The defendant had admitted vide paragraph 5 of the amended statement of defence that it is defaulting in remitting its own employer’s contribution for 27 months but its only grouse is that Claimant must return its own employee’s contribution which was paid to him in error before it remits its own default for those 27 months. The question whether or not Claimant’s employee contribution was paid to him in error is part of the subject of the counterclaim. So, I will decide that part of the Claimant’s Claim as regards the employee pension contribution together with the counterclaim. I will thus only consider employer’s contribution here. The question that agitates my mind is can the defendant hold on to Claimant’s employer’s pension contribution even if the employee’s contribution was paid to him in error? The answer is undoubtedly in the negative. I will proceed to explain why. Shorn of any embellishment, Section 173 (1) and (2) of the Constitution provides thus as regard the right of a public servant like Claimant to pension: 173 (1) "Subject to the provisions of this Constitution, the right of a person in the Public Service of the Federation to receive pension or gratuity shall be regulated by law.
(2) "Any benefit to which a person is entitled in accordance with or under such law as is referred to in Sub-section (1) of this Section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct. The above provision is very clear and unambiguous. It provides simply that pension or gratuity shall not be withheld under any circumstance or condition that is not clearly stipulated. As shown earlier in this judgment even before Claimant’s employment was unlawfully terminated in September, 2018, the defendant was still defaulting in remitting Claimant’s pension for some months in 2018. The above provision is sacrosanct and should not be flouted by anyone.
36. Besides the defendant is the author of Exhibit M3 and has not denied making the said Exhibit M3. Exhibit M3 clearly stated that the defendant has remitted Claimant’s pension contributions to his chosen PFA. The effect of Exhibit M3 is that at the date of that letter which is 21st December, 2020, Claimant’s pension contributions have been remitted to his PFA already. Exhibit M3 as rightly submitted by learned counsel for Claimant in his final written address predates the payment made to Claimant in this case. The defendant who stated categorically in Exhibit M3 that it has remitted Claimant’s pension contributions to his PFA is the same person now confronted with the issue of non-remittance of Claimant’s pension contrary to its claim in Exhibit M3 that is now saying that it failed to remit the 27 months for which it feels indebted to Claimant because the employee’s contribution was paid to Claimant in error and until he refunds it, the employer’s contributions would not be paid. The same pension contributions it claimed to have remitted in Exhibit M3. This Court believes that the defendant is only grandstanding by coming up with the excuse that its failure to remit the said contributions is due to an alleged payment of employee’s contribution to Claimant. The Court does not believe the defendant ever had any intention of remitting the said contributions to Claimant’s PFA. Even if Claimant’s employee’s contribution was paid to him in error as alleged by the defendant that should not in any way stop the defendant from remitting its own 10% employer contribution in respect of Claimant’s monthly salary. The defendant as such is bound to remit the admitted 27 months employer pension contributions as demanded by law. The monthly 10% employer contribution per month is N129,840 as shown in Exhibit M5. The 10% employer contribution for 27 months which is admitted by the defendant would be N3,505,684.05. I therefore find that the defendant is bound to remit the sum of N3,505,684.05 which is the employer contribution for 27 months as admitted by defendant in paragraph 5 of its amended statement of defence.
37. Now let me address the disputed three months (that is January, March, and April 2018 pension contribution) employer’s, the employee’s contribution and National Housing allowance pension contribution. A perusal of paragraph 19 of Claimant’s statement of material facts shows the break down and from there, it is clear that the pension contribution for January, 2018 which Claimant referred to is for the pension contribution for the National housing allowance for the year 2018. It is equally clear from the break down that the said March and April 2018 unremitted pension is in respect of his monthly salary different from the housing allowance. Claimant in this case has reiterated in his written testimony the facts averred as regard his unremitted pension contributions claimed and as reasoned supra relied on Exhibit M5 in proof of his claim. It is trite that where there is both oral and documentary evidence, documentary evidence should be used as a hanger on which to assess oral evidence. See the cases of Egharevba v. Osagie  LPELR - 1044 (SC)1@34-35 paras E-A and; Ezemba v. Ibeneme & Anor.  14 NWLR (Pt. 894) 617. I have perused Exhibit M5 relied on by Claimant and I find that it contains statement of Claimant’s pension account from 2018 up to February 2021 which is even after Claimant’s resignation. There is nothing in the said Exhibit M5 to show that the defendant remitted any amount to the PFA in respect of the pension contribution on the annual housing allowance during those periods from 2018 -2020. There is therefore no doubt that Claimant’s pension contributions for both employer and employee’s contributions in respect of his annual housing allowance was not remitted at all by the defendant as claimed by the Claimant. It is thus clear that the assertion of the defendant in Exhibit M3, a letter written by defendant to Claimant that it has remitted Claimant’s pension contributions to his PFA is far from the truth. There is therefore no doubt that Claimant’s pension contributions in respect of his National Housing allowance has not been remitted at all by the defendant since 2018 till when Claimant resigned contrary to the assertion of the defendant in paragraph 4 of its amended statement of defence and counterclaim that its indebtedness in respect of Claimant’s housing allowance pension contribution is only in the sum of N232,875. In fact, the defendant who would want this Court to believe that its indebtedness in respect of the pension contribution on the annual housing allowance is only to the tune of N232,875 failed to lead any evidence in support of this assertion as reasoned supra. The said pension contribution on the housing allowance as shown in Exhibit M5 was never remitted to Claimant’s PFA. The pension contribution to be remitted on the said housing allowance per year is N419,175 as seen in paragraph 19 of the statement of material facts and which figure the defendant did not dispute. The total contributions for the 3 years will be
N1, 257,525. Consequently, I find that Claimant is entitled to the sum of N1, 257,525 as contribution in respect of the National housing allowance.
38. A further perusal of the said Exhibit M5 equally shows the defendant has defaulted remitting employee’s contribution on the monthly salary to Claimant’s PFA for the March, April, 2018 and for the 27 months covering the period of Claimant’s unlawful termination to resignation. The employee’s contribution on the monthly salary is N53,730.26. The employee’s contribution for those months will then be N1,558,177.54. Although the defendant has maintained vide paragraph 5 of its amended statement of defence that it had paid the sum of N1,450,717.02 which is claimant’s employee contribution to Claimant in error, I will nonetheless not consider whether it was truly paid to Claimant in error as alleged at this stage as that is part of the subject matter of the counterclaim set up by the defendant. Be that as it may, the Court finds that Claimant’s employee’s contributions has not been remitted to his PFA which is the person permitted by law to receive the said pension contributions.
39. A perusal of the said Exhibit M5 shows that the Claimant is equally entitled to his employer’s pension contribution on his monthly salary for the months of March and April 2018 which was not remitted which is to the sum of N259,680.03. In view of all reasoned supra, Claimant is entitled to the remittance of the sum of N3,505,684.05 being employer’s pension contributions for 27 months, the sum of N1,257,525 as the pension contributions in respect of his national housing allowance; the sum of N1,558,177.54 which represents employee’s contribution on monthly salary for the months of March and April 2018 and the 27 months of claimant’s unlawful termination to resignation and; the sum of N 259,680.3 being the 10% employer’s contribution for March and April 2018 which were shown not to have been remitted. The summation of this sum gives the sum of N6,581,066.89 which is the same amount the Claimant in this case is claiming as the unremitted pension contribution. Claimant in this case has sought the order of this Court to compel the defendant to pay this sum to him. Although I find that the defendant has not remitted the sum of N6,581,066.89 as pension contributions as alleged by Claimant, I cannot find why the said sum should be ordered to be paid to Claimant directly. This is because by the combined effect of the provisions of Sections 3, 4 and 11(3) (a) and (b) of the Pension Reform Act, 2014, pension contributions are not meant to be remitted to employees directly but mandatorily to be remitted to employee’s Retirement Savings Account maintained with a chosen PFA which in this case is ARM Pensions as shown in Exhibit M5. It is in the light of this that I will not order that the said sum representing the unremitted pension contributions over Claimant’s housing allowance and monthly salary be paid to Claimant as sought in relief 2. Accordingly, I find that relief 2 succeeds to the extent that the defendant remits the sum of N6,581,066.89 which is the unremitted pension contributions for Claimant in respect of his monthly salary and the national housing allowance to Claimant’s RSA account with his PFA ARM Pensions.
40. Claimant in his relief 3 claims for the sum of N806,768.11 which represents his National Housing Fund Contribution (NHF) which the defendant deducted but willfully refused to remit to the Federal Mortgage Bank of Nigeria (FMBN). Claimant averred facts in support of this vide paragraphs 22-25 of the statement of material facts. In proof of the above he relied on Exhibits M7(defendant’s letter forwarding Claimant’s NHF passbook, M8 (a printout of Claimant’s NHF account statement and M9 (Claimant’s solicitor’s lawyer. The defendant in response vide paragraph 6 of its amended statement of defence and counterclaim maintained that contrary to claimant’s averments in paragraphs 22, 24 and 25 of his statement of material facts, it is not true that the defendant deducted the sum of N806,768.11 from claimant’s salary as NHF contributions and refused to remit to FMBN. That it is only the contribution for the Month of August 2016 and May 2018 that are still outstanding. The defendant relied on documents marked as Exhibits N and N1.
41. I have perused Exhibit M7 relied on by claimant which document the defendant did not deny authorship and I find that just as averred, the defendant had written Claimant on March, 22, 2021 (which is no doubt after his resignation and after the payment of his entitlements as seen in Exhibit M4) that his NHF Passbook which is forwarded has a total credit sum of N806,768.11 which is the same sum being claimed by Claimant in this case. I have also perused the said passbook which was forwarded with the letter and it is clear that the total contribution recorded in it is the same sum of N806,768.11 the claimant is claiming. The said sum by the contents of the passbook were allegedly lodged in different months by way of cheques. The said passbook specifically on page 102 of the record clearly shows same stamped with the seal of the defendant to authenticate the said total contribution of N806,768.11. The effect of the letter and the passbook is that the account of claimant with the FMBN has a total credit of N806,768.11. A perusal of Exhibit M8 which is Claimant’s NHF account however shows that contrary to the assertion of the defendant in the letter and the effect of the said letter and passbook, Claimant’s account with the FMBN as at the 11th day of May, 2021 is penniless.
42. I do not lose sight of the fact averred by Claimant in paragraph 6 of the amended reply and defence to counterclaim in further reaction to the claims of the defendant that it has paid Claimant’s NHF contribution wherein Claimant alleged forgery of the documents referred to as annexure 2 relied on by defendant in this case that is Exhibits N2 and N3 and in respect of which claimant gave particulars of the forgery. In the case of Isah & Anor v. Kaduna State Ministry of Lands, Survey and Country Planning & AnorLPELR-48091(CA)1@23, Para C the Court held that allegations of "forgery" or "fraud" or making of "false documents" are offences. Hence by reason of Section 135(1) of the Evidence Act 2011 Cap. 14, such allegations must be proved beyond reasonable doubt by the person asserting same. In essence the claimant is alleging forgery/fraud. See also the case of Okafor v. Okafor & Ors  LPELR-23561(CA)1@44, Para E. The Claimant in order to succeed in proving allegation of fraud or forgery against the defendant must be able to go beyond proving that the documents are not correct or true to prove that it was a calculated attempt to mislead or misrepresent facts. See Ojibah v.Ojibah  5 NWLR (Pt 191) 296@309, Para H-310, Paras A-E. In the case of Adedeji & Anor v. CFAO (Nig) Plc  LPELR-2309(CA)1@34-35, Para F the Court held that “An allegation of forgery or fraud for that matter must be specifically pleaded and particularized. In actualizing this, the party must state who committed the offence of forgery, and the document forged. Facts must be pleaded to show that he had the necessary intention. Failure to specifically plead the commission of a crime is failure to prove beyond reasonable doubt as required by law that a crime has been committed.” Although Claimant in this case gave particulars of the alleged forgery which to me is merely showing that the documents are not authentic, he did not state who committed the offence, failed to equally state how that it is not the original or authentic document, did not produce any other document to impeach the alleged forged ones and was not also able to show that the necessary intention to mislead was present. In view of all these, I am of the respectful view that the Claimant has not proven the allegation of forgery beyond reasonable doubt.
43. Nonetheless, I have perused Exhibit N and N1 relied on by the defendant. Let me say that there is nothing in Exhibits N and N1 that shows the said deductions were remitted to Claimant’s NHF account with the FMBN as the defendant would want this Court to believe Exhibit N speaks for itself and shows that same was merely a breakdown of Claimant’s NHF deductions and nothing more. Exhibit N1 is a payment mandate dated 21/08/2015 to Fidelity Bank to credit certain listed accounts with the FMBN with NHF contributions. It is noteworthy that from Exhibit M8 claimant’s NHF account no with FMBN is 133103475 which is equally reflected in the letter and passbook. The account number captured in the payment mandate that is Exhibit N1 relied on by the defendant is not the account number of Claimant. There is nothing in the said Exhibit N1 to show that the said mandate was issued in respect of Claimant’s NHF contribution. In fact, the payment mandate merely shows the name of the beneficiary as the FMBN while the bank is GT Bank. The defendant has not shown that Claimant’s NHF contribution is part of the sums to be credited to the FMBN account with the said GT Bank. It is the law that a Court of law cannot speculate on anything and cannot be asked to speculate on possibilities which are wholly unsupported by evidence. See the following cases; Sule & Ors v. Sule & Ors  LPELR-47178(CA)1@13, Para E; Agip (Nig) Ltd v. Agip Petroli International 5 NWLR (Pt. 1187)348@413, Paras B-D (SC); Ikenta Best (Nig) Ltd v. A.G. Rivers State  LPELR-1476(SC)1@51, Paras D-D and; ACB Plc & Anor v. Emostrade Ltd  LPELR-207(SC)1@13, Para C. This Court being a Court of law and facts cannot speculate that Claimant’s NHF contributions is covered by the said Exhibit N1 in the absence of a supportive evidence. Let me even assume that the said Exhibit N1 covers claimant’s NHF contributions, Exhibit N1 is clearly in respect of NHF contributions for May, June and July 2015, it does not cover other months up till when Claimant left the employment of the defendant? As such, there is nothing in Exhibits N or N1 to support the assertion of the defendant in paragraph 6 of the amended statement of defence and counterclaim that it is only the NHF contribution for the month of August 2016 and May, 2018 that are still outstanding. Thus, exhibits N and N1 are not helpful to the case of the defendant. In view of all reasoned supra, I find that Claimant on the preponderance of evidence has been able to prove his assertion that the defendant has failed to remit his NHF contributions into his FMBN account.
44. Claimant in his relief 3 sought that the defendant be compelled to pay the said sum of N806,768.11 to him. Section 9 of the National Housing Fund Act, 1992 (hereafter referred to as the NHF Act) provides thus;(1) An employer who has in its employment an employee earning a basic salary of N3,000 and above per annum shall deduct 2.5 per cent of the monthly salary of that employee as the employees’ contribution to the Fund. (2)The amount deducted pursuant to subsection (1) of this section shall be remitted to the bank within one month of the making of the deduction. The above provision of the National Housing Fund Act is clear and requires no special aid to understand. It is to the effect that an employer shall make deduction monthly from the salary of its employee who earns above 3000 monthly at the rate of 2.5 percent and which deduction shall be remitted to the bank. By the provisions of Section 26 of the NHF Act, the bank means the FMBN. It is thus clear by the combined effect of Sections 9 and 26 that deductions made by employers from employee’s salaries should be remitted to the FMBN. In view of this, I order that the unremitted sum of N806,768.11 be remitted to claimant’s account No 133103475 with the FMBN.
45. Claimant in his relief 4 claims for cost of litigation. It is trite that cost follows event and a successful party is entitled to cost which he should not be denied except for good reasons. See the cases of Cappa and Dalberto (Nig) Plc v. NDIC 9 NWLR (Pt. 1780)1@ 14, Paras G-H; First Bank v. Orosanye  LPELR-47205(CA)1@22-29, Para F. Claimant in this case has undoubtedly successfully proven his case. Claimant in this case averred vide paragraph 28 of the statement of material facts that he incurred litigation cost in the sum of N5,000,000 but has paid N3,000,000 out of the said sum leaving a balance of N2,000,000. In support of this he tendered Exhibit M10 which is a receipt of payment issued in the name of Claimant by the law firm of his counsel in this case. The Rules of this Court, 2017 particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. Considering the number of processes filed and the number of appearances had, I award the sum of
N250,000 to claimant as cost of litigation. Relief 4 succeeds to the extent that Claimant is entitled to the sum of N250,000 as cost of litigation.
46. Claimant in his relief 5 claims for exemplary damages against the defendant. The Apex Court in the case of GKF Investment (Nig) Ltd v. NITEL PLC  LPELR-1294 (SC)31-32, Para F had this to say concerning punitive damages; “Exemplary, Punitive, vindictive or Aggravated damages where claimed, are usually awarded, whenever the defendant or defendants' conduct, is sufficiently, outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence, or flagrant disregard of the law and the like…” [Emphasis mine]. See also the case of WAEC v. Henry  LPELR- 40995(CA)1@19-21, Para E. As reasoned supra, the provision of Convention 95 that an employer has no right to deduct arbitrarily from the entitlement or wages of an employee and that upon the severance of the employment relationship the employer must pay to the employee all that is due to him was breached by the defendant in this case. In the same vein, the defendant has failed to remit Claimant’s pension contributions to his PFA as mandated by law as reasoned above. The provision of Section 173 of the Constitution considered earlier in this judgment is mandatory. If flouted it is a denial of the inalienable right of Claimant to pension which should not go unpunished. There is no reason why the defendant should not remit the above contributions even after the judgment of the Court. The defendant till the date of this judgment has not shown that they have remitted any of those sums whether before unlawful termination or after reinstatement of Claimant to the period of his resignation has not taken any steps towards the remittance of Claimant’s pension contribution during the relevant periods to his RSA account with his PFA. It did not even remit the pension contributions for the 27 months it claimed to be owing. The above act of the defendant is oppressive, unconscionable and should not be encouraged. It is in the light of all reasoned supra that I exercise my discretion under Section 19(d) of the National Industrial Court Act, 2006 to award compensatory damages in deserving cases within my jurisdiction, that I award the sum of
N1,000,000 as exemplary damages in favour of Claimant.
47. Now to issue two, the law has become ensconced that a counter-claim though filed in the same suit and probably from the same transaction as that of the main suit is a separate and independent action from the main claim and as such must be proved by the counterclaimant. See the following cases; Kolade & Ors v. Ogundokun  LPELR-48001(SC)1@,24-25, Para F; Oroha & Ors v. Adeniyi & Ors  LPELR-41985(SC)1@11-13, Para E; Idurobo v. Ehiorobo  LPELR-43594(CA)1@35-37, Para E and; Ogli Oko Memorial Farms Ltd & Anor v. NACB Ltd & Anor  LPELR-2306(SC)1@16, Para B. It is a weapon of defence which enables a defendant in the main claim to maintain a claim against a claimant. Thus, same is governed by the same rule of pleadings as the main action. Just as it is with the main action, it is the duty of he who asserts to prove.
48. I do not lose sight of the submission of learned counsel on behalf of the defendant/counterclaimant in respect of his formulated issue two on the counterclaim particularly at paragraph 4.5 that Claimant has failed to discharge the burden placed on him to establish his net month salary in order to prove that he was not over-paid. Let me state that the defendant/counterclaimant is the one who is bringing up the issue that Claimant was over paid and thus claiming the excess, which is the subject matter of the counterclaim. Where the defendant/counterclaimant has not discharged the burden placed on it, the scale does not shift to the Claimant/defendant to counterclaim. In fact, the defendant is the one setting up the counterclaim based on its assertion that Claimant was overpaid. It is a fundamental principle of our corpus juris which has not changed till date that in civil actions whoever desires any Court to give him judgment as to any legal right or liability dependent on the existence of facts which he asserts, has the onus of proving that those facts exist. See Sections 131(1) and 132 of the Evidence Act, 2011 and the case of Agbabiaka v. First Bank  LPELR-48125(SC)1@8, Para D. Thus, the defendant/counterclaimant in this counterclaim bears the burden to prove the facts averred in its counterclaim that claimant/defendant to counterclaim was overpaid in the sum claimed and it is when he has discharged the onus placed on him that the scale shifts to the Claimant/defendant to counterclaim lead evidence to disprove same. Besides going by the state of pleadings in the counterclaim, it is the defendant/counterclaimant that is asserting the positive that Claimant was overpaid. Thus, it is the duty of the defendant/counterclaimant who is asserting the positive that Claimant was over paid to prove and not that of the Claimant who is asserting the negative that he was not overpaid. This is because the burden rests on the party asserting the positive and not on the party affirming the negative as stated supra. See the following cases; Action Alliance & Ors v. INEC  LPELR-49364(CA)1@27-30, Paras E-E and Nsefik & Ors v. Muna & Ors  LPELR-3934(CA)1@13, Para B. This follows the latin maxim “Eiineumbit probatio qui licit non qui negat; cum per naturam factum negants probitio nulla sit” which means “the proof lies upon him who affirms, not upon him who denies since, by the nature of things he who denies a fact cannot produce any proof.” The defendant/counterclaimant no doubt bears the burden of proving this assertion.
49. The defendant/counterclaimant in this case has maintained that upon the receipt of Claimant’s solicitor’s letter it invited Claimant and his lawyer and explained to them that certain payments were made to Claimant in error as the deductions of his PAYE tax and NHF contributions to the tune of N11,668,780 were part of payments made to him in error. It relied on Exhibit N1 and N2. The defendant is now counterclaiming the said sum of N11,668,780 from Claimant being the sum which according to it represents Claimant’s tax deductions and NHF fund which were paid to him in error. Claimant in response vide paragraph 3 of his amended reply and defence to counter claim averred that tax deductions are made at source before payment of salary and allowances to employees and that what the defendant paid Claimant was his net salary. He continued that the defendant in its letter dated December 21, 2021 stated that his pension contributions have been paid to Claimant and his net entitlements will be paid to his bank account, that is Exhibit M3. Claimant also contended vide paragraph 5 of his amended reply that the defendant never paid the Claimant his NHF Contribution either in his personal account or anywhere and the defendant is put to the strictest proof thereof. Claimant vide paragraph 6 of the amended reply and defence to counterclaim alleged that the defendant has manipulated the figures in the documents relied on and forged the bundle of document in Exhibit N2. Claimant went further to give the particulars of the forgery as stated earlier in this judgment.
50. As reasoned supra monetary Claims are in the realm of special damages and must be specifically pleaded and strictly proved. The defendant/counterclaimant counterclaims for the sum of N11,668,780 which according to it represents the Claimant/defendant to counterclaim 27 months tax deduction, PAYE, NHF and Pensions Contributions paid to Claimant in error and it relied on Exhibit N, N1, N2 and N3 which were the same documents relied on in its defence to the main suit. I have earlier in this judgment discountenanced the payslip and document at page 149 of the record which are part of the bundle of documents marked N2 for obvious reasons and that will also apply here for the reasons that the documents are still the same documents relied on in proof of the counterclaim. Assuming the said documents particularly the pay slip was not even discountenanced can it sustain the claim of the defendant/counterclaimant to the sum of N11,668,78 claimed as excess payment representing tax, NHF and pension contributions? The defendant /counterclaimant who is claiming the sum of N11,668,780 as the accumulation of Claimant/defendant to counterclaim’s pension contribution, tax and NHF contribution for 27 months did not plead how much each of these contributions is. The said payslip relied on by the defendant/counterclaimant shows a purported breakdown of these contributions. If the content of payslip is anything to go by, the sum of N157,538.04 is claimant’s monthly tax deduction while the sums of N16,749.04 and N53,730.26 are Claimant’s NHF and Pension monthly contributions respectively. The addition of these sum gives the sum of N228,017.34 as claimant’s liabilities per month. The said payslip in Exhibit N2(a) relied on by the defendant/counterclaimant, show these contributions put together in a month is N228,017. The said sum of N228,017 in 27 months will give the sum of N6,156,459 as against the sum of N11,668,780 claimed by the Counterclaimant as the accumulation of these contributions for 27 months. Thus, there is no evidence in support of the defendant/counterclaimant’s claim for the sum of N11,668,780 claimed as accumulation of pension contributions, tax and NHF deductions for 27 months.
51. The documents Titled Mathias Sendave which is part of Exhibit N2b at pages 288 of the record showing a breakdown of the amount paid to Claimant which the defendant/counterclaimant referred to in paragraph 8 of the amended statement of defence and counterclaim shows that what was calculated for Claimant as his monthly pay to get the sum of N24,385,587.84 for the 27 months in question. It is worthy of note that the said sum of N24,385,587.84 is equally reflected in item 1.2 of Exhibit M4. The said document that is Exhibit N2b at page 288 of the record as stated supra shows what was calculated as Claimant’s net salary per month indicated by [N] for those 27 months is N903,169.92. Besides, just as averred by the Claimant in his amended reply and defence to counterclaim, the defendant stated clearly in Exhibit M3 that Claimant’s Pension contributions have already been paid to his RSA with his PFA while his net entitlement will be paid into his bank account. It therefore means that whatever was paid to Claimant’s account after the said letter in Exhibit M3 is his net entitlement as evinced by Exhibit M3 which Claimant/defendant to counterclaim is also relying on in defence of the counterclaim. Net payment or entitlement is a payment made after the deduction of all allowable deductions or expenses. It is thus clear beyond doubt that the said N903,169.92 contained in Exhibit N2 is not the gross salary. Thus, this Court finds that the entitlements paid to claimant being net entitlement contrary to the averments of the defendant/counterclaimant cannot be said to include Claimant’s tax deductions, pension and NHF contributions. In view of all reasoned supra, the defendant who bears the burden has not been able to prove that sum paid to Claimant has as part of claimant’s tax deductions, pension and NHF contributions. Thus relief 1 in the counterclaim fails.
52. The main claim of the defendant/counterclaimant in the counter claim having failed, the claims for cost of action is entitled to fail as it is an ancillary relief dependent on the success of the main reliefs. See Fafunwa v. Bellview Travels Ltd  LPELR-20800 (CA)1@18-19, Para F and; Nsugbe v. Nkobi  LPELR-24481(CA)1@30-31, Para E. Thus Relief 2 in the counterclaim also fails.
53. On the whole, the claimant’s claims succeed while the counterclaim fails. For the avoidance of doubt, I declare and order as follows;
1. That the claimant is entitled to be paid the sum of N4,047,375.47 (Four million, forty-seven thousand, three hundred and seventy-five Naira, forty-seven Kobo) being the indebtedness of the defendant to the Claimant for the wrong computation of his benefits.
2. That the claimant is entitled to his pension deductions in the sum of N6, 581,066.89 (Six million, five hundred and eighty-one thousand, sixty-six-naira, eighty-nine kobo) being arrears of Claimant’s pension contributions for 30 months and the defendant should remit the said sum to the RSA of the claimant with ARM Pension, his PFA within 14 days from the delivery of this judgment
3. That the claimant is entitled to his National Housing Fund deductions in the sum of N806,768.11 (Eight hundred- and sixty-eight-naira, eleven kobo) and the defendant should remit the said sum to the account of the claimant with the Federal Mortgage Bank within 14 days from the delivery of this judgment.
4. Claimant is entitled to the sum of N250,000(two hundred and fifty thousand naira) as cost of litigation.
5. Claimant is entitled to the sum of N1,000,00 (One million naira) as exemplary damages.
Judgment is accordingly entered.
Hon Justice O.O. Oyewumi