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His Lordship, Hon. Justice B. B. Kanyip of the National Industrial Court of Nigeria, Lagos Judicial division on Wednesday 21th day of March 2018 delivered judgment in favour of claimant Mrs Bessie Udhedhe Ozughalu & Anor (Suing as the Administratrix and Administrator of the Estate of Late Engr. Jonathan Kenechuku Ozughalu )ordered Bureau Veritas Nigeria Limited to pay sum of USD142,380 (One Hundred and Forty-Two Thousand, Three Hundred and Eighty United States Dollar) being the outstanding death benefit on the Group Personal Accident Insurance Policy in respect of the United States Dollar component of the deceased gross salary.
The claimant is claiming against the defendant for the following reliefs inter alia; A declaration that both the Naira and the United States Dollar components constituted the gross salary of Engineer Jonathan Kenechukwu Ozughalu (the deceased). A declaration that the deceased is entitled to 5 (five) times of the United States Dollar component of his annual gross salary as benefit on the Group Personal Accident Insurance Policy.
A declaration that the claimants, being the personal representatives and next of kin of the deceased, are entitled to receive the benefits of both the Group Life Assurance Scheme and Group Personal Accident Insurance Policy.
And An order of this Court directing the defendant to pay the claimants the sum of USD203,400 (Two Hundred and Three Thousand, Four Hundred United States Dollar) being the outstanding death benefit on the Group Life Assurance in respect of the United States Dollar component of the deceased gross salary.
The deceased was an employee of the defendant immediately before his death. That this case arose from the claimants’ grievance with the manner in which the defendant computed the death benefits of the deceased, who died whilst in the active employment of the defendant. That the base used by the defendant in the computation of the death benefits was unfair and unjust having been done contrary to the conditions of service which regulates the relationship between the deceased and the defendant. That the defendant employed the deceased by an ‘Offer of Employment’ letter dated 3rd July 1996 as a Marine Engineer/Surveyor and he remained in the defendant’s employment until his death on 16th of May 2010. That under the deceased’s employment contract, his salary was initially paid in Naira until later on when the United States Dollars (USD) component was introduced to the package; his salary was thus comprised of both Naira and USD components until his death in 2010.
The claimants went on that in fulfillment of its obligations under the conditions of service, which is an agreement between the defendant and Petroleum and Natural Gas Association of Nigeria (PENGASSAN), which the deceased was a member of, the defendant took out a Group Life Assurance Scheme (the ‘Life Assurance Policy’) and a Combined Workmen’s Compensation/Group Personal Accident Policy (the ‘Accident Insurance Policy’) which applied to some of the employees, including the deceased. That the benefits under these insurance policies were supposed to be computed on the basis of the deceased’s gross salary. That rather than considering the payment in USD as part of the gross salary, the defendant used only the Naira component of the deceased’s salary in the computation of the death benefits.
To the defendant, by virtue of an employment contract dated 3rd July 1996, the deceased was employed by the defendant as a marine engineer until his death on 16th May 2010. That under the deceased’s employment contract, his salary was denominated in Naira. However, he was also paid several allowances (including a special allowance in USD), which were introduced by the defendant at the defendant’s discretion; and was increased, reduced, and even discontinued at the defendant’s pleasure during the period of the deceased’s employment. That the defendant paid all of the deceased’s salaries up to the time of his death. That in fulfillment of its obligations under the Pension Reform Act, the defendant took out the Group Life Assurance Scheme (the ‘Assurance Policy’) with Leadway Assurance Company Plc (‘Leadway’), which applied to specific employees, including the deceased.
Furthermore, the defendant submitted that at the time of the deceased’s death, his salary was solely denominated in Naira and did not have a USD component. That the USD payments which were made to the deceased at various times during his employment with the defendant constituted special allowances, and were made at the defendant’s discretion; as such, the USD payments did not form part of his employment contract with the defendant. To the defendant, its contention on this issue is premised that It is illegal for the deceased and defendant to have denominated any part of the deceased’s compensation, including allowances, in USD, citing section 15 of the Central Bank of Nigeria (Establishment) Act Cap C4 LFN 2004, which provides that the unit of currency in Nigeria shall be the Naira. Since, the legal tender in Nigeria is the Naira (see section 20(1) of the CBN Act), it will, therefore, be illegal for the defendant and the deceased to contract in any currency other than the Naira. Further, section 20(5) of the CBN Act makes it illegal for any person to insist on receiving payment in Nigeria in any currency other than Naira.
After reviewing the argument of the parties, the Court Presided by Hon. Justice B. B. Kanyip, expressed thus:
The actual basis upon which the defendant brands as illegal the denomination of part of the deceased’s salary in USD are two CBN circulars, namely: “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 17th April 2015 with reference No BSD/DIR/GENILAB/08/013) and “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 21st May 2015 with reference No BSD/DIR/GEN/LAB/08/024).
Unfortunately, these two circulars were not frontloaded by the defendant. A Court can only take judicial notice of facts that are notorious, but more importantly that are known to the Court itself.
Accordingly, I cannot take judicial notice of the CBN circulars referred to by the defendant since I do not know their contents; neither can I hold that the facts contained therein require no proof.
On the contrary, I hold that having not frontloaded the said circulars, the facts contained in them not being before the Court means that the argument of the defendant in their regard goes to no issue; and I so find and hold.
However, this being the case, it cannot be that denominating part of the salary of the deceased in USD by then defendant has been proved by the same defendant to be illegal. The argument of the defendant in that regard is accordingly rejected and dismissed.
On the whole, and for the avoidance of doubt, the claimants’ case succeeds in terms of the following declarations and orders:
- It is hereby declared that both the Naira and the United States Dollar components constituted the gross salary of Engineer Jonathan Kenechukwu Ozughalu (the deceased).
- It is hereby declared that the deceased is entitled to 5 (five) times of the United States Dollar component of his annual gross salary as benefit on the Group Personal Accident Insurance Policy.
- It is hereby declared that the deceased is entitled to 42 months of the United States Dollar component of his gross salary as benefit on the Group Personal Accident Insurance Policy.
- It is hereby ordered that the defendant shall pay to the claimants the sum of USD142,380 (One Hundred and Forty-Two Thousand, Three Hundred and Eighty United States Dollar) being the outstanding death benefit on the Group Personal Accident Insurance Policy in respect of the United States Dollar component of the deceased gross salary.
All sums payable under this judgment are to be paid within 30 days of this judgment, failing which they shall attract 10% interest per annum until fully paid.
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