IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 8th OCTOBER, 2018 SUIT NO. NICN/BEN/11/2016
BETWEEN
OAIHIMIRE IDEMUDIA EDETALEHIN…………………… CLAIMANT
AND
1. EDI INTERNATIONAL HOSPITAL LTD
2. MRS. PATRICIA ADESUA OJORA ……………..DEFENDANTS
3. DR. OSAGIE ITOHAN EBONWONYIN
4. DR. EKUNDAYO OTUYELU
REPRESENTATION:
B.O Ainabebholo for the Claimant
Gabriel O. Ibiwoye Esq. for the Defendants
JUDGMENT
The Claimant approached this Court by a General Form of Complaint filed on 9th June, 2016, claiming against the Defendants the following reliefs:
SPECIAL DAMAGES
i. The unpaid monthly salary of N172, 500.00 (One Hundred Seventy-Two Thousand, Five Hundred Naira) only from January – May, 2016 and until judgment is delivered.
ii. 22% interest rate per annum on the aforesaid salary until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated.
iii. The unpaid salary of N7, 125,000 (Seven Million, One Hundred and Twenty Five Thousand Naira) only due to the Claimant as the Company Secretary/Legal Adviser from July 2011 – May 2016 and until judgment is delivered at the rate of N125,000.00 (One Hundred and Twenty Five Thousand Naira) only monthly.
iv. 22% interest rate per annum on the aforesaid salary until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated.
v. The sum of N431,250.00 (Four Hundred and Thirty One, Two Hundred and Fifty Thousand Naira) only being the amount due to the Claimant as long service reward (for 10 years of meritorious service to the 1st defendant Company as at 31st October, 2015).
vi. 22% interest rate per annum on the aforesaid sum from the date of filing this suit until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated.
vii. The sum of N24,840,000.00) Twenty Four Million, Eight Hundred and Forty Thousand Naira) only being loss of income for 17 years, if Claimant had remained in the employment of the Defendant on a monthly salary of N172,500.00 (One Hundred and Seventy Two Thousand, Five Hundred Naira) only.
viii. The sum of N5,175,000.00 (Five Million, One Hundred and Seventy Five Thousand Naira) being the amount due to the Claimant as severance/gratuity pay after ten (10) years plus (+) of meritorious service to the 1st Defendant.
ix. 22% interest rate per annum on the aforesaid sum from the date of filing this suit until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated.
x. The unpaid balance sum of N150,000.00 (One Hundred and Fifty Thousand Naira) only for housing allowance from 2013 – 2015.
xi. 22% interest rate per annum on the aforesaid sum from the date of filing this suit until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated.
GENERAL DAMAGES
i. The Claimant’s claim is for the sum of N25,000,000 (Twenty Million Naira) only being damages for the unlawful termination of his employment and compensation for his dented image and reputation as a legal practitioner.
ii. A letter of unreserved apology written to and addressed to the Claimant in person and published on the 1st Defendant’s notice board and at least in a National Newspaper to correct his dented image and reputation which has caused him unquantifiable damage(s) among the staff of the 1st defendant, family members, friends, associates, colleagues and even customers of the defendant whom claimant introduced to the 1st defendant and most importantly claimant’s potential clients.
It is the case of the claimant that he joined the services of the 1st defendant on the 1st November, 2005 as the Hospital Administrator after series of appeal from the 2nd defendant. That he was promised to be paid the equivalent of what he would have earned as a lecturer in the Faculty of Law, Edo State University and also would be paid bonuses on profit made quarterly and bi-annually. He averred that he offered full support to the 2nd defendant to position the 1st defendant until the 2nd defendant started introducing self-seeking financial adviser to the 1st defendant. He continued that the terms of his employment and the accruing benefits were guided by the parole agreement between him, the 2nd defendant and the other two directors of the Company, a written contract and the policy of the Company. He averred further that by his letter of employment he was responsible for the preparation of contract bid, defending the bids, signing in of new contract and other related matters all to the exclusion of the 2nd defendant and/or any of the Directors. Furthermore, that due to the pressure and volume of his work he did not embark on any annual leave in ten (10) years he spent in the service of the 1st defendant. That his condition of service were renewed in writing from 2006, 2007, 2009, 2010, 2012 and signed by the 2nd defendant in person. That in January 2013 due to his satisfactory performance, his condition of service was further enhanced after re-negotiation with the 2nd Defendant on behalf of the 1st defendant and a formal letter was promised to be issued him on a later date reflecting the new condition of service. He stated that the new benefit took effect immediately save for the housing benefit.
That in January 2015, the salaries of the staff of the 1st defendant was increased across board by 15% and being a Management staff, he was a beneficiary, that his last Monthly salary was N172,500.00 (One Hundred and Seventy Two Thousand Naira Only i.e. N2,070.000.00 (Two Million and Seventy Thousand Naira)Only annually. Also, that he helped to increase the Client base of the 1st defendant until his responsibilities were unlawfully re-assigned to the 4th defendant by the 2nd defendant. He pleaded that prior to 10th January 2016 and all through his employment, he was never issued any query and had no personal issue or confrontation with the 2nd defendant. According to him, the Board of Directors of the 1st defendant appointed him as the Company Secretary/Legal Adviser on the 30th June 2011 and his particulars were forwarded to the Corporate Affairs Commission vide Form CAC 2.1 on the 18th November, 2011 and that the 1st defendant informed him that the additional responsibility as the Company Secretary/Legal Adviser will tie him to the employment with a N250,000.00 monthly. He was later invited to a meeting by the 2nd defendant to either resign his appointment or retirement from the services of the 1st defendant and that all his entitled benefits and more would be paid, he agreed to accept a formal letter of disengagement provided that all his accruing salaries, short falls and severance/disengagement benefits were paid in line with the company’s policy. He also stated further that the 2nd defendant did not comply with the procedure for terminating his employment as laid down in the terms of employment and that the procedure for employment of the 4th Defendant was not in compliance with the Company Policy.
The defendants on the other hand filed their Statement of Defence on the 17th November, 2017, they traversed that the claimant was not begged to take the job with the 1st defendant but joined after he was offered the job and has paid the agreed salary, it also stated that the claimant’s employment was not guided by any parole agreement but by the contract of employment and that for a fact it was the claimant’s choice not to proceed on leave and being a Management staff, he is not entitled to any extra benefit, package or remuneration more than ordinary employee of the 1st defendant. That as a result of the general review of the salaries of the employees of the defendant in 2015, the monthly salary of the claimant stands at N172, 500.00 and that the 1st defendant being an employer of the claimant has the right to assign or re-assign responsibilities and duties to its employees with or without prior notice and it does not lie in the mouth of the claimant being an employee to say his responsibilities were unlawfully re-assigned to the 4th defendant or any person whatsoever. That the claimant was appointed as Company Secretary/legal Adviser when the Corporate Affairs Commission made it mandatory that all companies must have a Company Secretary before filing any post incorporation document with the Corporate Affairs Commission in line with the Companies and Allied Matters Act. And that there was never a time the issue of paying the Claimant for being appointed as a Company secretary or legal adviser to the 1st defendant arose. In addition that the claimant have never raised this issue and that as a matter of fact he had by emails on 17th September 2012 and 31st October, 2012 stated categorically that he will not be asking for remuneration as Company Secretary and any additional fee. They stated further that he was invited by the 2nd Defendant in the bid to amicably resolve whatever grievance that might have ensued between them. They stated further that he was never issued or served any letter of disengagement from the employment of the 1st defendant and he was not compelled to resign his employment or treated in any inhumane way, thus he is not entitled to salary from 11th January 2016 when he decided on his own volition to stop work. Furthermore, the defendants averred that in order to ease the claimant’s work and boost his status, a car loan was granted to him in the sum of One Million, Five Hundred Thousand Naira (N1,500,000.00) together with the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) being his housing allowance for 2015. The defendants stated that the claimant only paid the sum of One Hundred and Fifty Thousand Naira (N150,000.00) as part of the car loan repayment and left with the sum of One Million, three hundred and Fifty Thousand Naira (N1,350,000) as unpaid and willfully refused to pay. It is the contention of the defendants that the claimant is not entitled to any of claims as sought in his complaint.
The defendants by way of counter-claim, claims the sum of N1, 350,000.00 being the unpaid balance of the car loan granted to the claimant on the 10th of August, 2015.
The claimant during trial testified for himself as CW, he adopted his statement on oath dated and filed 9th June 2016 and his further witness statement on oath filed 30th January 2018 as his evidence in the case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibit O-O9. The defendants during trial testified through the 2nd defendant, Mrs. Patricia Adesua Ojora, she adopted her sworn deposition dated 17th November, 2017 as her evidence in the case, she also tendered documents dated 31st October, 2012 and 31st May 2015 as evidence which were admitted and marked Exhibit PA
In compliance with the rules of the Court, Parties caused their final written addresses to be filed; the defendants filed theirs on the 26th June 2018 and canvassed two (2) issues for the determination of the Court viz:
1. Whether the claimant’s employment was unlawfully terminated?
2. Whether the claimant is entitled to the reliefs sought?
On Issue one, Counsel argued that a claimant seeking a declaration that his employment was wrongfully or unlawfully terminated must prove some material facts; that he is an employee of the defendant, the terms and condition of his employment, the way and matter and by whom he can be removed, the way and manner the terms and condition of his employment were breached by his employer. He argued that the claimant in this case through his evidence has woefully failed to prove the way and manner he was removed and the person who removed him from office, also that he failed to prove the way and manner the terms and conditions of his employment were breached by the 1st defendant, he noted further that by the pleadings and evidence of the claimant, he was not removed by his employer from his employment but rather removed himself when he stopped working for the 1st Defendant since 10th January 2016, Counsel placed reliance on the case of Rajco Int’l Ltd v. Le Cavalier Motels & Restaurant Ltd &Ors [2016] LPELR 40082 (CA.), Section 131 of the Evidence Act 2011. He argued that it is clear that the claimant never came back to the 1st defendant after the 10th January 2016 nor did any work for the 1st defendant since the said date. Also that he cannot prove in any way that his employment was wrongfully terminated nor was he able to prove that he worked for the 1st defendant beyond 10th January 2016. Counsel concluded by urging the Court to hold that the claimant’s employment was not wrongfully terminated by the 1st defendant but that it was the claimant himself that determined his employment without recourse to the policy of the 1st defendant
On Issue two, it is the contention of the Counsel that the claimant has failed to prove his entitlement to the relief sought, he reiterated the position of the law that he who asserts must prove, he further submitted that the claimant is not entitled to the sum of One Hundred and Seventy Two Thousand and Five Hundred Only (N172,500.00) or any other sum as salary per month from 1st defendant from January-May 2016 or any other date whatsoever because he stopped working for the 1st defendant from 10th January 2016, Counsel stated further that the claimant ought to pay the 1st defendant One month salary in lieu of Notice but it decided not to counter-claim and that with regards to the interest upon the said sum claim, it automatically fails. Counsel further placed reliance on the following cases, A.G Ferroro &Co Ltd v. Henkel Chemicals (Nig.) Ltd [2011] 13 NWLR (Pt. 1265) 592; Ajagbe v. Idowu [2011] 17 NWLR (Pt. 1276) 422, Teju Investment &Property Co. Ltd v. Subair [2016] LPELR 40087 CA. Counsel stated further that the only agreement between the claimant and the 1st defendant in respect of the claimant’s appointment as Company Secretary/Legal Adviser is Exhibit 04 and the remuneration and other condition of service were said to be communicated to the claimant, that for a fact, no amount was agreed upon to be paid to the claimant nor the time it would be paid stated. Counsel argued further that the claimant has failed to plead any other conditions, terms or basis that support his claim as the Company Secretary/Legal Adviser of the 1st defendant, thus he has only subjected this Court to an instrument of speculation, he cited A.G Ferroro &Co. Ltd V. Henkel Chemicals (Nig) Ltd supra, Sogbamu v. Odunaita [2013] All FWLR (Pt, 700) 1274. Counsel stated that assuming without conceding that any sum was agreed to be paid, there is even no evidence that the claimant ever demanded the said sum until he filed this action, he noted that it is a well settled principle of law that a party cannot approbate and reprobate at the same time, thus once a party takes a position which affects the legal position of another in respect of a subject matter, such party is estopped by conduct and cannot turn around to take a different position that will affect the other party’s position in respect to that subject matter, he relied on Otunba Fatai Sowemimi v. Otunba Dayo Awobajo [1999] LPELR CCN/1/26/99; Omoniyi Ajayi v. Total Nig. Ltd [2013] 15 NWLR (Pt. 1378) 423 SC. Furthermore, that on the claimant’s claim of the sum of Four Hundred and Thirty-One Thousand, Two Hundred and Fifty Thousand Naira Only (N431,250.00) as amount due to him as long service reward for meritorious service to the 1st defendant, counsel noted that he has failed woefully to prove same by virtue of spending 10years in the 1st defendant’s employment,, he relied on Ike v. Ugboaja [1993] 6 NWLR (Pt, 301) 539; Alhaji Otarun & Sons Ltd v. Idris [1996] 6 NWLR (pt, 606) 330. Counsel stated on the claimant’s claim for damages that the Court is not a father Christmas who grants reliefs without evidence, that the 1st defendant does not envisage that the claimant would be in its employment for 27years as the Contract of employment of the claimant with the 1st defendant was usually for a given period after which the Contract was renewed. Counsel submitted that parties are bound by the terms and Conditions of Contract between them see Union Bank of Nigeria v. Six (Nig.) Ltd [1994] 8 NWLR (pt. 361) 150. Counsel concluded that the claimant’s claim for apology in the newspaper together with the sum of Twenty-Five Million Naira is gold-digging, presumptuous and preposterous and urged the dismiss same.
He continued arguing that the defendant/counter claimant claimed the sum of One Million, Three Hundred and Fifty Thousand Naira (N1, 350,000.00) as unpaid balance of the loan granted to the claimant. The defendant/counter claimant claimed in his reply admitted that he collected the said loan of One Million, Five Hundred Thousand Naira Only (N1,500,000.00) but only paid One Hundred and Fifty Thousand Naira (N150,000.00) and yet to pay the sum of One Million, Three Hundred and Fifty Thousand Naira (N1,350,000.00). The defendant/counter claimant though not required to further prove the sum claimed, proved in evidence by the tendering of Exhibit to show how the claimant/defendant to counter claim was credited with the said loan but failed to repay same. Counsel argued that the burden of proof on the counter claimant for the Claim of One Million, Three Hundred and Fifty Thousand Naira (N1,350,000.00) is discharged and therefore urged the Court to hold and grant the 1st defendant/Counter claimant’s claim.
The claimant on the other hand filed his final written address on the 2nd July 2018 and distilled four (4) issues for the Determination of the Court viz:
1. Whether the Claimant’s appointment as the Hospital Administrator was terminated in line with his terms of employment and/or the policy of the Company.
2. Whether the Claimant is entitled to unpaid salaries, severance/gratuity where the Court finds the Claimant to have been constructively dismissed or his employment wrongfully/illegally terminated
3. Whether the 2nd Defendant can unilaterally disengage the services of the Claimant as the Company Secretary without recourse to the 1st Defendant’s Board of Directors.
4. Whether the Claimant is entitled to his unpaid salaries as the Company Secretary of the 1st Defendant from July 2011- January 2016 and until Judgment is delivered
Claimant’s counsel on issue one argued that there is nothing before the Court to show that the claimant was ever in breach of his terms of employment and/or the Company Policy all through his employment and up to the time of the action to warrant the unlawful termination of his employment and/or constructive dismissal. He argued that from the totality of the evidence adduced before the Court, it is without doubt that the employment of the claimant was constructively dismissed/terminated, he noted further that the evidence of the claimant on oath in paragraphs 20-25 and 39-48 was not impeached or disputed but was in fact admitted in paragraphs 19, 20, 21, 22, 28, 39,40,14,42 and 49 of the 2nd defendant’s oral evidence before the Court. He continued that the Labour Act does not provide for constructive dismissal, he cited Section7 (6) of the National Industrial Court Act 2006 which enjoins the Court to have due regards to good or international best practice in labour and industrial relations. He further relied on the case of Ebere Ukoji V. Standard Alliance Life Assurance Co. Ltd unreported (Suit No: NICN/LA/48/2012 and reiterated the position of the law that facts admitted are deemed established without further proof, Aromakaran V. Oladele [1990] 7 NWLR (pt.162) 262 T 368; Biezan Exclusive Guest House Ltd V. Union Homes savings &Loans Ltd [2011] 7 NWLR (Pt. 1246) 246 at 285, paras C-D. It is further the submission of counsel that the procedure of and subsequent employment of the 4th defendant by the 2nd defendant is clear breach of the Personnel Recruitment & Sourcing Strategy Policy (Exhibit O1) of the 1st defendant and that the 1st defendant had not paid the claimant his salaries and other entitlement since the claimant’s duties were unilaterally assigned to the 4th Defendant by the 2nd defendant since January 2016. Counsel further submitted that the manner in which the claimant was constructively dismissed by the 2nd defendant without the consent of the 1st defendant either by way of resolution of the Board of Directors is a naked exhibition of power devoid of any human milk and unwarranted humiliation of the Claimant without reasonable cause.
On Issue two, claimant’s counsel reiterated the position of the law that a claimant whose employment is unlawfully dismissed/terminated and had put in the number of years stipulated in the conditions of service is entitled to draw his pension and be paid his gratuity, he cited the case of Ibrahim Saka & 5 Ors V. Global Soap and Detergent Industry [2017] LPELR 42009 CA. He submitted that the terms of employment and conditions of service of the claimant is subject to the Policy of the 1st defendant as clearly spelt out in Exhibit O2, he contended that the staff benefit Policy of the Company stipulates that staff who have spent a minimum of five(5) years in the services of the 1st defendant qualify for gratuity payment that it is undisputable that the last salary of the claimant was the sum of One Hundred and Seventy-Two Thousand and Five Hundred Naira (N172,500.00) monthly and that the claimant has only served for 10years plus, and he is qualified for 25% of the Total Annual Package salary multiplied by the number of years spent in the service of the Hospital as his severance and another 25% of the Annual Basic Salary as his long service award. He urged the Court to hold that the claimant is entitled to his severance and long service award. On whether the claimant is entitled to his unpaid salaries from January 2016 till date, he submitted that it is not in doubt that the claimant is a management staff and that he did not resign his appointment neither did he retire voluntarily or was he compulsorily retired, Counsel was of the view that the claimant’s employment was “illegally” terminated in the face of Edi International Hospital Ltd Employee Information Handbook 2011 (Exhibit O) and the Staff Discipline Policy (Exhibit O1), he argued that the approval of the Chief Medical Director or Board of Directors of the Company was not sought before the claimant’s Constructive Dismissal or termination. And being a Management Staff is entitled to voluntarily retire or compulsorily retire from the service of the 1st Defendant, on the attainment of the mandatory 60years of age as provided for in the Staff benefit Policy. He concluded on this issue by submitting that the claimant is entitled to Claim his unpaid salaries and voluntarily retire at his pleasure. He relied on the decisions of the Supreme Court in Insurance Brokers of Nigeria v. ATMN (1996) 8NWLR (Pt.466) pg. 316 @ 327 Para. G and Musa v. Yerimah (1997) 7 NWLR (Pt. 511) Pg.27 @ pp41 – 42, paras. H – A.
On issue three, the claimant’s counsel submitted the Company and Allied Matters Act is silent on how a Company Secretary in a private Company can be removed, it follows unequivocally that if the appointment is by the resolution of the Board of Directors (as the case is with the claimant) which must be filed with the Corporate Affairs Commission, the removal of the Company Secretary should be in like manner especially against the background that a Company Secretary is not an ordinary staff, but a principal staff of a Company whose removal cannot be at the whims and caprices of a single director. He cited Section 297 of the Companies and Allied Matters Act, L.F.N, 2004. He observed further that there is nothing before this Court to show that there is/was a resolution of the Board of Directors of the 1stDefendant either instructing the 2nd Defendant to remove the claimant who is a principal staff of the Company or to appoint the claimant’s law firm as the Company Secretary of the 1st defendant and urged that the Court should hold that the actions of the 2nd defendant is illegal.
On Issue four, it is the submission of counsel that the direct implication of the last paragraph of the letter dated 30th June 2011 which is the letter of appointment of the claimant as Company Secretary/legal Adviser (Exhibit O4) is that there was a commitment to pay for the additional responsibility bestowed on the claimant by the Board of Directors of the 1st defendant and thus necessitated several discussions via e mail and also that Exhibits O8 and O9 are pointers to the fact that both the claimant and the 2nd defendant at a material point negotiated the remuneration and other conditions of service of the Claimant as a Company Secretary as such the 2nd defendant cannot approbate and reprobate in the same breathe. He argued further that from a cursory look at Exhibit PA, it is apparent that it was prepared during the pendency of this case which contravenes the provision of Section 83(3) of the Evidence Act. He observed further that this Court cannot rely on Exhibit P for any purpose that is advantageous to the defendants being an ‘Extract’ that if the full text of the e-mail messages exchanged between the 2nd defendant and the claimant was tendered, it will not favour the 2nd defendant. Counsel placed reliance on Section 167(d) of the Evidence Act and the case of Emeka v. Ikepazu & Anor –LOR (10/3/2017) G; [2017] LPELR-41920 SC @pp27-28 paras E-B. He continued that the 1st defendant did not contradict or challenge the in evidence of the claimant in paragraphs 24 &25 of his statement on oath, he then reiterated the position of the law that that where an adversary fails to cross-examine on a particular fact or a witness is unchallenged under cross-examination, the Court is not only entitled to act or accept such evidence but it is bound to do so provided that such evidence either under cross-examination or by its nature is not incredible, he relied on the Case of Oforlete v. State [2000] 12 NWLR (Pt.681) 145 at 436; Gaji V. Paye [2003] 8 NWLR (pt.823) 583 at 605. Counsel submitted that the deposition by the 2nd defendant to a Witness Statement on Oath for herself only and made copious references to the 1st, 3rd and 4th defendants without stating that she had their express consent to depose to it on their behalf, is a clear violation of the provisions Section 115 (4) of the Evidence Act, L.F.N 2011 and that the evidence which touches on the 1st, 3rd and 4th defendants, amounts to hearsay, which he urged this Honourable to discountenance as he relied on the decision of the Supreme Court in Barclays Bank v. Central Bank of Nigeria(1976) 1ANLR (Pt.1) Pg 409 @ 420 Paras. 5 & 10.Counsel also submitted that the Counter Claim filed by the defendant is of no moment because he (claimant) had copiously pleaded the loan, the agreed amount to be deducted and his willingness to repay the balance from his entitlements in paragraph 48 of the statement of claim and it is trite that facts admitted need no further proof and respectfully prayed this Court to grant all his reliefs as per his claim.
The Defendants filed a Reply on Point of Law to the claimant’s Final Written Address on the11th of July, 2018, Counsel argued that assuming without conceding that the claimant’s employment was terminated by the 1st defendant, the law is clear that the defendant can terminate the claimant’s employment for good or bad or even no reasons at all, reliance was placed on the following case, Anaja V United Bank of Africa Plc [2014] 4 ANCELR 78; Donier Aviation Nig. Ltd V. Oluwadare [2007] 7 NWLR(Pt.1033) 336 and Idufueko V. Pfizer [2014] 12 NWLR (Pt.1420) 96 SC. The defendants’ Counsel stated further that the claimant was not constructively dismissed nor terminated by the 1st defendant. Counsel argued that the law is that for constructive evidence or dismissal to be implied, it must be established in evidence, he relied on Ebere Ukoji V. Standard Alliance Life Assurance Co. Ltd supra. Furthermore, that failure on the part of the claimant to prove how the 1st defendant made life extremely difficult for him and to also prove how he resigned from the 1st defendant is fatal to his case. Thus, he is estopped from approbating and reprobating, also that he cannot turn the Court to an instrument of conjecture of picking and choosing, he cited N.Y.A.M Co. PLC V. All Motors (Nig.) PLC [2011] 15 NWLR (Pt. 1269) 108 CA. It is further the contention of counsel that there is nowhere in the claimant’s evidence and exhibits tendered that states that his employment can only be terminated by the 1st defendant’s Board’s resolution and also that the approval of the board is required for the termination of the claimant’s employment. In addition, that the claimant never proved before this Court any provision of Exhibit O1 that guaranteed him engagement in the 1st defendant until he attains the age of 60 years, he cited Hope Democratic Party V. INEC [2009] 8 NWLR (Pt. 1143) 297 SC. Counsel continued that the appointment of the 4th defendant as well as the procedure thereto is not the issues before this Court. He continued that the issues bothering on the propriety legality or otherwise of the engagement or the disengagement of the claimant as Company Secretary and appointing his firm in his stead with or without the Board’s resolution was and is not a claim which the claimant made out in his Writ and Statement of Claim. Counsel submitted further that Exhibit O4 is clear and unambiguous in terms and extraneous facts cannot be allowed into it, thus the Court cannot be invited to add or read anything into it, See the case of Agbareh V. Mimra [2008] 2 NWLR (Pt. 1071) page 412-413. Also, that Exhibits 08 and 09 were not inadvertently admitted but the Court as argument were taken on the admissibility or otherwise and the Court ruled on the same and admitted them in evidence. Thus the claimant’s attitude in deliberately twisting the truth is uncharitable. On Exhibit P, Counsel noted that it emanated from the claimant as far back as 2012 and the case was filed in 2016, he argued that Exhibit P was frontloaded and never challenged nor contradicted, as such, he submitted that unchallenged evidence is sufficient to sustain the claim. He concluded that the said Exhibit P fulfilled the requisite requirement conditions by filing a Certification in accordance with Section 84 of the Evidence Act and in addition, by virtue of the provisions of Section 115(4) of the Evidence Act, the 2nd defendant was sued in her official capacity as a director of the 1st defendant as such his evidence cannot be considered as hearsay, he relied on the position of the law in Ajuwa V. Odili [1985] 2 NWLR (Pt.9) 710 SC.
Having carefully gone through the processes filed by parties in this suit, the written submissions and arguments canvassed by both learned counsel in support of their respective cases; it is my respectful view that the sole issue that would best determine this suit is:
Whether or not the claimant has proven his case to be entitled to the reliefs sought?
I will like to address an issue raised by the claimant via his written submission before going on with the sole issues framed by the Court. It is claimant’s grouse that the deposition made by the 2nd defendant in her sworn statement wherein, she made copious references to the 1st, 3rd and 4th defendants, was made without stating that she had their express consent to depose to it on their behalf, which according to him is a clear violation of the provisions of Section 115 (4) of the Evidence Act, 2011 and that the evidence which touches on the 1st, 3rd and 4th defendants, amounts to hearsay. The defendants vide their reply on point of law reacted that by virtue of the provisions of Section 115(4) of the Evidence Act, the 2nd defendant was sued in her official capacity as a Director of the 1st defendant as such her evidence cannot be considered as hearsay. Now, Section 115(1) of the Evidence Act, 2011 provides that “Every affidavit used in the Court shall contain only a statement of facts and circumstance to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.” It is not in contention that the 2nd defendant is one of the Directors of the 1st defendant and thus an alter ego who is conversant with the facts of the case at hand as rightly stated by the defendants. The 2nd defendant was sued in her official capacity as a Director of the 1st defendant hence whatever she deposed to is within her personal knowledge as an alter-ego and that cannot be hearsay evidence. It is in this regard that I find the deposition of the 2nd defendant regarding the 1st, 3rd and 4th defendants do not offend the provisions of Section 115(4) of the Evidence Act. Consequently, I hold that the argument of the claimant in that vein is unmeritorious and thus discountenanced.
Next, is the main issue before the Court, it is the claimant’s case that he joined the services of the 1st defendant on the 1st of November, 2005, in support of which he tendered his Offer of Employment, dated 30th October, 2005 marked Exhibit O2. He stated that the terms of his employment and his accruing benefit were guided by a parole agreement between himself and the 2nd defendant as well as two (2) other Directors in the Company. The defendants on the other hand did not contend that the claimant was an employee of the 1st defendant, they however submitted that the claimant’s terms of employment was reduced into writing and not parole as he pleads. They averred that the claimant on his own preference left the employment of the defendant on the 11th of January, 2016. The Black’s Law Dictionary 9th Edition, page 371 defines a parole contract as a contract or modification of a contract that is not in writing or is only partially written down. It is apparent from the evidence before this Court that upon the assumption of duty of the claimant in the 1st defendant Company, an offer letter was issued him vide Exhibit O2 detailing the terms of employment relationship between him and the 1st defendant/employer and also subsequent variation of the contractual relationship and terms of condition of service were also reduced into writing as disclosed by Exhibit O3. I find no evidence on record to convince me that what existed between the claimant and the defendants was just a parole agreement. The position of the law is clear, id est that a contract which has been reduced into writing can only be varied by an agreement in writing, in other words, where a contract is in writing any agreement which seeks to vary the original agreement must also be in writing, See the locus classicus English cases of John Holt Ltd v. Stephen Lafe [1938] 15 NLR 14; Morris v. Baron & Co. [1918] AC 1 at 39, also see; Eze V State [2018] LPELR43715 SC; Interdrill (Nig) ltd & Anor v. UBA Plc [2017] LPELR 41907 SC; Teju Investment & Property Co. Ltd v. Subair [2016] LPELR- 40087 CA. Claimant had also averred in another breath that his contract was in writing. The import of which is that the claimant’s employment as at when he resumed with the 1st defendant was in writing therefore, any other agreement seeking to vary his employment with the 1st defendant should also be in writing, thus claimant’s contention vide paragraph 10 of his statement of claim that his relationship with the 1st defendant is guided by a parole agreement is unfounded and thus discountenanced.
It is the claimant’s contention in his written submission that his employment was illegally terminated and or constructively dismissed or terminated by the defendants. He stated that at a meeting on the 18th of January, 2016, the 2nd defendant based on the unsubstantiated information she got from one Mr. Bola Fowosere and Mrs Rose Ehijimetor that he intends to resign his appointment as the Hospital Administrator because he has built his own hospital and was on the verge of luring some of the 1st defendants employees, advised him to either resign his appointment or write to the Board of Directors his letter of retirement, but declined to do so. That on the 10th of January, 2016 his responsibilities as the Hospital Administrator were unlawfully re-assigned to the 4th defendant. The defendants in their defence vide paragraphs 40 and 41 of their statement of defence pleaded that the decision to re-assign the claimant’s responsibilities was for the growth of the 1st defendant and defendants admitted that when it realised that the claimant was un-cooperating with the issue of re-assignment then it advised the claimant to resign or retire but the claimant left his employment on his own volition. Before going on, I need to state here that the learned claimant’s counsel with respect, interchangeably used the words illegal, wrongful and or constructive dismissal in his final written address. This is possibly, because he does not know the connotation of each. Illegal termination is usually the case when the terms of employment with statutory flavour is found to have been breached. While wrongful termination is akin to a breach of a simple contract as in this case. Constructive Dismissal connotes the change in an employee’s job or working condition by an employer with the aim of forcing a resignation. It is imperative to give an academic background to what the principle of constructive dismissal connotes, Learned authors, Simon Deakin and Gillian S. Morris in the Seminal book, Labour law, 5th Edition at page 409 explained the term as a “dismissal that occurs where the employee terminates the contract either with or without notice”. This principle is also referred to as forced resignation in the Recent Development in Nigerian Labour Law, Hybrid Consult 2017, pages 53-54 as a specie of termination of employment relationship where an employee terminates the contract of the employment with or without notice usually induced by the conduct of the employer, see the locus classicus decision of Lord Denning (The Master of the Rolls) in the case of Western Excavations v. Collins John Sharp [1977] ECWA Civ 165.
Also, in the words of my learned brother, Hon. Justice B.B Kanyip, Ph.D in the case of Joseph Okafor v. Nigerian Aviation Handling Company, NICN/LA/291/ 2016 delivered on the 25th of April 2018, where he stated that thus:
“This Court has now acknowledged and applied the concept of constructive dismissal in the corpus of labour jurisprudence in Nigeria. Accordingly, Miss Ebere Ukoji V. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (pt. 154) 51 NIC and Mr. Partick Obiora Modilum V. United Bank of Africa Plc unreported suit no. NICN/ LA/353/2012 the judgment of which was delivered on the 19th June 2014, for instance held that to attempt to have the employee resign, (underline mine for emphasis) rather than outright firing the employee means that the employer is trying to create a constructive discharge. In constructive dismissal, the exact legal consequences differ from country to country, but generally it leads to the employee’s obligation ending and the employee acquiring the right to seek legal compensation against the employer…”
The English Court in Western Excavations v. Collins John Sharp supra have thus set out four classic elements of constructive dismissal which are now regarded as formulations of constructive dismissal tests:
i. There must be a breach of contract by the employer; this can be an actual or an anticipatory breach
ii. The breach must be sufficiently serious, namely, a repudiatory or a fundamental breach, or the last of a series of breaches which taken together form sufficiently serious conduct by the employer( known as the “ last straw” concept, See the case of Lewis V. Motor World Garage Ltd [1985] IRLR 465 CA
iii. The employee must leave as a result of the breach
iv. There must be no waiver of the breach, for example through the employee’s delay of leave.
In the case of Dryden v. Greater Glasgow Health Board [1992] IRLR 496, EAT, the Court held that it is the primary duty of the claimant who alleges constructive dismissal as in this instance, to show that his dismissal was an immediate breach of the Contract of employment by the 1st defendant entitling him to repudiate the employment contract, that is for the claimant to be successful in this action, he has to establish a breach of his contract of employment as a result of which he left the employment. Next, was there an actual breach in the contract of employment of the claimant or was there an anticipatory breach thereof. Now there is an admission by the defendants that they asked the claimant to resign or retire but on the ground that the claimant became uncooperative and uncomfortable with the appointment of the 4th defendant. It is clear that the claimant by Exhibit O2 was employed by the 1st defendant as the Hospital Administrator. The grouse of the claimant vide paragraph 19 of his pleadings is that on the 10th of January, 2016 his responsibilities as the Hospital Administrator were unlawfully re-assigned to the 4th defendant. The defendants on the other hand averred via paragraph 29 of their statement of defence that the 4th defendant was not employed to replace the claimant but was employed as a medical doctor with Administrative function as General Manager. This assertion was corroborated by the claimant in paragraph 5 of his pleadings when he averred that the 4th defendant is presently the General Manager of the 1st defendant and his paragraph 20 stated thus;
“20 …
Idemudia, thanks again for your birthday wishes. I just sent you an email detailing our forward at edi and discussing the hiring of a new GM at edi…..”
Now can we say the portfolio of the claimant as the hospital administrator and that of the 4th defendant as the General Manager is one and the same? There is nothing on record itemizing the schedule of duties of the claimant vis a vis the General Manager’s. Howbeit, I believe in view of the facts on record that they both differ in duties and nomenclature and as rightly stated by the defendants, the office of the 4th defendant as the General Manager will not replace or take away the duties of the claimant. Now assuming without conceding that the claimant’s responsibilities as the Hospital Administrator were unlawfully re-assigned to the 4th defendant, it is noteworthy that by a letter dated 30th of June, 2011 Exhibit O4, the claimant was appointed by the 1st defendant as its Company Secretary/Legal Adviser, which invariably means he had two positions in the office of the 1st defendant and if he is purportedly aggrieved that the 4th defendant has taken over his erstwhile position as the Head of Administration, he could as well carry on with the later position of a Legal Adviser/Company Secretary, but he decided to throw in the towel, by leaving the 1st defendant’s employ on his own volition without any breach or anticipatory breach from the defendants. It is deducible from all these that the claimant was just uncomfortable with the appointment of the 4th defendant as there is no shred of evidence that there was any breach of the employment relationship between the 1st defendant and the Claimant. It is trite law that a party must lead credible and concrete evidence to prove his arguments as it is not enough to make assertion before the Court, the Claimant has the onerous duty to prove his case and establish same on the balance of probability/on its merit and not rely on the weakness of the Defendants case. See Ajose – Adeogun & Anor v. Olojede & Ors [2018]LPELR-43683CA. It is in view of all the reasoning above that I find and hold that the claimant has failed to prove that his employment was constructively dismissed/terminated by the 2nd Defendant. I so hold.
On the reliefs sought by the claimant, the claimant in this case categorized his reliefs under two headings as special damages and general damages. The position of the law is that before a consideration of whether special or general damages have been proven, the claimant’s entitlement to such damages must be considered first. See the case of Okoko Etim V. Clasen Ventures &Ors [2011] LPELR- 3827 CA, P.25, paras E-F. It is the claimant’s claim that he is entitled to the unpaid monthly salary of N172, 500.00 (One Hundred Seventy-Two Thousand, Five Hundred Naira) only from January – May, 2016 and until judgment is delivered, It is the contention of the defendants that the claimant left the employment of the 1st defendant on the 10th January, 2016 on his own volition without recourse to the employment policy that he is not entitled to the sum claimed and that as a matter of fact it is the claimant that ought to pay to the 1st Defendant One- month salary in lieu of notice save that the 1st defendant decided not to counterclaim. Specifically on special damages, the law is that claims for salaries, allowances, bonuses and emoluments are special damages as there is the need to plead with particulars and evidence led thereon before they can be granted, See the case of I.H.A.B.U.H.B V. Anyip [2011] 12 NWLR (Pt. 1260) at PP.20. The burden to specifically plead and strictly prove special damages is on a party who claims it, although the tendering of documentary evidence in the forms of receipts in proof of special damages could be a good mode of discharging the burden on the claimant, it is however not an indispensable or exclusive means of proof of special damages, see the case of FCDA & Anor V. MTN V. Anor [2016] LPELR- 41248 (CA).
The position of the law is that mere assertion of a fact without substantiating same with credible evidence goes to no issue, Sections 131-133 of the Evidence Act, thus, the assertion of the claimant of his entitlement to the unpaid salary of the sum of One hundred and Seventy-Two Thousand, Five Hundred Naira has not been substantiated with credible evidence. There is nothing on record of the Court and no evidence adduced before this Court evincing the claimant’s entitlement to the sum of N172, 500.00 (One Hundred Seventy-Two Thousand, Five Hundred Naira) only. The claimant failed to tender his pay-slip or account statement in evidence; moreover, it is glaring from the facts of this case that the claimant left the employment of the 1st defendant on the 10th of January, 2016 and the claimant is claiming from the month of January to May 2016. There is no iota of evidence placed before the Court by the claimant that he actually worked for the period he is claiming. It is therefore trite that the claimant cannot be entitled to salary or wages for the period he did not render any services to the 1st defendant see the cases of Cooperative Bank Nig. Ltd v. Nwankwo [1993] 4 NWLR (Pt.286) 170, cited with approval the decision of the Apex Court in Olatunbosun v. NISER Council [1988] 3 NWLR (Pt.80) 25. Thus, I find that the claimant is not entitled to the unpaid monthly salary of the sum of One Hundred and Seventy-Two Thousand, Five Hundred Naira Only from January-May 2016 and until delivery of judgment and as such I hold that his claim of 10% post judgment interest rate until the sum is fully liquidated equally fails. On relief ii, the claimant is claiming 22% interest per annum on the aforesaid salary until judgment is delivered. This Court by its rules does not grant prejudgment interest. What the Court can grant is the award of interest on judgment sum if any as from the date of judgment. See Order 47 Rule 7 of the National Industrial Court Rules, 2017. To that extent relief ii praying for pre-judgment interest also fails.
It is the contention of the claimant that he is entitled to the sum of the unpaid salary of N7, 125,000 (Seven Million, One Hundred and Twenty Five Thousand Naira) only due to the claimant as the Company Secretary/Legal Adviser from July 2011 – May 2016 and until judgment is delivered at the rate of N125, 000.00 (One Hundred and Twenty Five Thousand Naira) only monthly. It is the argument of the claimant vide paragraphs 33-34 of the Statement of Claim that he became a Management staff of the 1st defendant vide a letter marked Exhibit 05 dated 21st May 2008 signed by 2nd defendant on behalf of the Board of Directors of the 1st defendant and that he was appointed as the Company Secretary/Legal Adviser by the Board of Directors of the 1st defendant on the 30th of June 2011 and his particulars were forwarded to the Corporate Affairs Commission via Form CAC2.1 on the 18th November 2011 vide Exhibit 04. The defendants admitted that the claimant was appointed as the Company Secretary/Legal Adviser in line with the post incorporation filings with the Cooperate Affairs Commission and the claimant in his capacity as the Head of administrative/Legal matters drafted the letter of which the 2nd defendant signed. It is undoubtedly the fact that there is no denial on the part of the defendants that the claimant was appointed as the Company Secretary/ legal Adviser of the 1st Defendant, however, there was never a time that the issue of paying him for being appointed as Company Secretary/legal Adviser was discussed. The position of the law in evidence is that mere denial of a fact does not exclude the existence of same, i.e. the mere fact that the defendants are denying that they were not aware of the existence of the fact that the claimant ought to have been remunerated for the position occupied in the 1st defendant company as the Company Secretary/Legal Adviser does not negate the existence of same. On the face/content of Exhibit O4, it was stated in the last paragraph that: “Your remuneration and condition of service will be communicated to you in a separate letter in due cause. Please accept our hearty congratulations.” Suffice that, there was a remuneration package prepared specially for the claimant for the new position he occupied as the Company Secretary/legal Adviser of the 1st Defendant.
However, a cursory look at Exhibit O9 discloses that the claimant on the 17th of September, 2012 vide an email intimated the 2nd defendant on the following terms that; “My resumption on the 1st of November, 2012 for a new contract year as the Hospital Administrator/company Secretary of Edi International Hospital limited will be on the following terms and conditions to wit;
Remuneration N3,000,000.00 (Three Million Naira per annum) i.e. N250,000.00 per month tax free;
Severance/ Retirement Benefits: 25% of annual salary multiplied by the number of years in service with effect from November, 2012
Medical Benefit: Medical benefit of no limit for self and four dependants.
Housing Allowance N300,000.00 (Three Hundred Thousand Naira) only
Per annum.
Annual leave; Twenty (20) working days per annum
Leave bonus: 50% of monthly salary
As the Company Secretary I will not be asking for any remuneration. (Underline mine for emphasis)
Edi International Hospital ltd shall however be responsible for the following, to wit;
The payment of my Annual practicing/licence fees (both local and National),
The Annual Nigeria Bar Association (NBA) conference fees, (both local and National) and any other fee(s) that may be imposed by the NBA from time to time.”
Exhibit O8 dated 31st of October, 2012 a reply by the 2nd defendant to the terms of the claimant reveals that the 2nd defendant on behalf of the 1st defendant agreed to medical benefit of no limit for the Claimant, spouse and two children and an annual housing allowance of Three Hundred Thousand Naira Only (N300,000), annual leave of 20 working days and leave bonus of 50% of Monthly Salary. The Claimant again vividly reiterated that “… Permit me to establish these facts to wit:
1. I have not asked for any additional fee for being the Company Secretary. I agreed to help out on your request.
2. Secondly every profession has its own rules and regulation. Doctor who pays their practicing fees is not restricted to one employment. As it stands restricted to only Edi. (underlining mine for emphasis)
Having stated that, it is evident from the electronic mail conversation in Exhibits O8 and O9 between the Claimant and the 2nd defendant on behalf of the 1st defendant, that the claimant agreed to the fact that he was not expected to be paid remuneration for the position occupied as the Company Secretary/legal Adviser and thus he cannot be allowed to approbate and reprobate. See the case of Alaribe v Okwuonu [2016] 1 NWLR (Pt. 1492) 41 CA. I find no other document on record to corroborate his claim for remuneration as Company Secretary/Legal Adviser. It is the law that reliefs claimed by a party are not granted as a matter of course, they must be proved by facts and evidence. I find that claimant has fallen short of this, it is in view of the claimant’s failure to prove his entitlement to unpaid salary of N7, 125,000 (Seven Million, One Hundred and Twenty Five Thousand Naira) only due to him as the Company Secretary/Legal Adviser from July 2011 – May 2016 at the rate of N125,000.00 (One Hundred and Twenty Five Thousand Naira) only monthly that his reliefs iii and iv fail. I so hold.
The claimant is claiming the sum of N431,250.00 (Four Hundred and Thirty One, Two Hundred and Fifty Thousand Naira) only being the amount due to him as long service reward (for 10 years of meritorious service to the 1st defendant Company as at 31st October, 2015), it is the argument of the defendants that the claimant is not entitled to the sum claimed in view of the unceremonious and unmeritorious way and manner he left the employment of the 1st defendant, DW1 also gave evidence vide paragraphs 13, 20-26 of her Sworn evidence on Oath on how the claimant refused to accept the new phase of Management and abandoned his employment.
A keen perusal into Exhibit O1 which is the Staff Benefit Policy Manual Clause 2.0 provides for long service award:
“2.0 LONG SERVICE AWARD
| Duration | Reward |
| 10years | 25% of Annual Basic Salary and a Long Service Award Plaque |
| 15years | 37.5% of Annual Basic Salary and a Long Service Award Plaque |
| 20years | 50% of Annual Basic Salary and a Long Service Award Plaque |
| 25years | 62.5% of Annual Basic Salary and a Long Service Award Plaque |
| 30years | 75% of Annual Basic Salary and a Long Service Award Plaque |
It is the evidence of the Claimant vide paragraph 19 of his sworn deposition that he held the position of the Hospital Administrator for ten (10) years plus (+) meaning he has served the 1st defendant to merit the long service award of the 1st defendant. The defendants on the other hand did not specifically challenge the assertion of the Claimant that he had served the 1st defendant for over ten (10) years. The law is long settled that uncontroverted evidence is deemed admitted. See Section 123 of the Evidence Act, and the cases of FUTMINA & Ors v. Olutayo [2017] LPELR-43827 SC; Peter Oviri v. The Nigeria Police & 2ors [2016] 67 NLLR (Pt. 240) 413. Thus the defendants have admitted the existence of the fact that the Claimant has served the 1st defendant for ten (10) years and above. It is in view of this, that I find as stated in Clause 2.0 of Exhibit O1 which is the Staff Benefit Policy Manual that the Claimant is entitled to 25% of Annual Basic Salary. It is also not in contention that the claimant’s salary per month is in the sum of One Hundred and Seventy-Two Thousand and Five Hundred Naira (N172, 500.00) and that his annual salary is also in the sum of Two Million and Seventy Thousand Naira (N2,070,000.00). Thus 25% of the sum of Two Million and Seventy Thousand Naira (N2,070,000.00) amounts to Five Hundred and Seventeen Thousand Five Hundred Naira Only (N517,500). It is in this light that I hold that the claimant is entitled to the sum of Five Hundred and Seventeen Thousand Five Hundred Naira Only (N517,500)only being the amount due to the claimant as long service award (for 10 years of meritorious service to the 1st defendant Company as at 31st October, 2015.
As regards the claimant’s claim for the sum of Twenty Four Million, Eight Hundred and Forty Thousand Naira( N24,840,000.00) only being loss of income for 17 years, if claimant had remained in the employment of the Defendant on a monthly salary of N172,500.00 (One Hundred and Seventy Two Thousand, Five Hundred Naira) only. I must state that there is nothing in evidence before the Court that the claimant has to work with the 1st Defendant for the remaining period of 17years he is claiming, and moreover, it is clear from the fact of the case that he willfully and voluntary left the employment of the 1st defendant on the 10th day of January, 2016. There is no documentary evidence upon which his oral evidence can hang on to assess this claim. So it will be beyond any legal or human reasoning to pay him for a futuristic unknown 17 years outside of the 1st defendant’s employ. It is trite that an employee is not entitled to payment for work not done as he cannot reap from where he has not sown and the Court is precluded from granting futuristic claims. It is upon this basis that I find no merit in claimant’s claims vii, it is thus dismissed.
The claimant is also claiming the sum of Five Million, One Hundred and Seventy Five Thousand Naira(N5,175,000.00) being the amount due to him as severance/gratuity pay after ten (10) years plus (+) of meritorious service to the 1st Defendant. The defendants are not denying the fact that claimant is entitle to gratuity/severance allowance, their position however, is that the claimant is entitled to the sum of Eight Hundred and Sixty-Two Thousand and Five Hundred Naira (N862, 500.00) only as severance/gratuity from the 1st defendant. A terminal benefit is readily and easily assessed as it is calculable from the agreement between parties on Terms and conditions of employment. Defendants have canvassed that the 1st defendant’s relationship with the claimant is regulated by its policy guidelines, meaning that exhibit O1 is the contract binding on both parties. Now, an indepth examination of Exhibit O1, i.e. the policy guidelines, Clause 1.5 thereof states thus:
The following is the summary of the payment of Gratuity/severance to qualified staff:
| No. of years | Gratuity of payment |
| 0-5years | 100% of total Monthly package (salary) multiplied by number of years spent in the service of the Hospital |
| 5-10years | 25% of total Annual package (salary) multiplied by number of years spent in the service of the Hospital |
| 10+++years | 25% of total Annual package (salary) multiplied by number of years spent in the service of the Hospital |
Flowing from the above table, it is obvious therefrom that the claimant having spent over 10 years from 1st of November, 2005 to 10th of January, 2016, entitles him to 25% of the total Monthly package (salary) multiplied by number of years spent in the service of the Hospital. They are earned entitlement of the claimant. Claimant’s monthly salary as stated earlier in this judgment is the sum of One Hundred and Seventy-Two Thousand and Five Hundred Naira (N172, 500.00) multiplied by 12 months equals Two Million and Seventy Thousand Naira (N2,070,000.00), 25% of which is N517,500.00 then multiplied by 10 years (that is from 1st November 2005 when he was employed till 10th January 2016 when he stopped coming to work making 10 years and 2 months) amounting to the sum of Five Million, One Hundred and Seventy Five Thousand Naira(N5,175,000.00). I therefore find and hold that the claimant is entitled to the sum of N5,175,000.00 (Five Million, One Hundred and Seventy Five Thousand Naira) being the amount due to him as severance/gratuity pay after ten (10) years plus (+) of service to the 1st Defendant. I so hold.
Regarding the claimant’s claim for the unpaid balance sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) only for housing allowance from 2013 – 2015. It is the argument of the Defendant that the Claimant is not entitled to the sum of One Hundred and Fifty Thousand Naira (N150,000.00) or any other sum as unpaid balance of housing allowance from 2013-2015, Defence Counsel argued that the claimant is not entitled to the sum he claimed as he was paid in full in the sum of N250,000 for the year 2015. The law is that he who asserts must prove the existence of such fact. See the case of Maihaja v Gaida [2017] LPELR 42474 SC. There is no credible evidence before the Court substantiating the claim of the claimant that the 1st defendant is owing the sum of One Hundred and Fifty Thousand Naira (N150, 000.00). Claimant has not discharged the burden placed on him to same to prove. It is in view of this that I resolve this issue in favour of the defendant and discountenanced claimant’s claim for unpaid balance of N150,000.00 (One Hundred and Fifty Thousand Naira) only for housing allowance from 2013 – 2015, hence his claim fails.
On his claims of 22% interest rate per annum on the aforesaid sums from the date of filing this suit until judgment is delivered and 10% post judgment interest rate until the sum is fully liquidated, with regards to the claimant claim on prejudgment interest, the rules of the Court as stated supra is that at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at the rate not less than 10% per annum to be paid upon any judgment. The import of this is that a claimant cannot ask for prejudgment interest. This Court can only award on judgment as from the date of judgment, see Order 47 Rule 7 of the National Industrial Court Rules, Supra. It is in this vein I discountenance with Claimant’s claim on prejudgment interests. I so find and hold.
On general damages, there are plethora of case law authorities where the Court have held that general damages are such that the law presumes to be direct natural or probable consequences to the act complained of. Likewise, the position of the law is clear that a party is entitled to general damages if it is established that he has suffered an injury or wrong has been committed against him, and ordinarily, general damages would only be awarded against an adverse party if the liability had been established, See the cases of PHCN & Anor v Atlas Projects ltd [2017] LPELR 43622; Eze V. Union Bank of Nigeria Plc [2015] 61 N.L.L.R (part 212) 135, Durowaiye V. U.B.N[2015] 16 NWLR (pt1481) 172 CA. The Claimant in this case is claiming the sum of N25, 000,000 (Twenty Million Naira) only being damages for the unlawful termination of his employment and compensation for his dented image and reputation as a legal practitioner. I have held supra in this judgment that claimant on voluntarily walked out of the contract of employment, meaning the issue of unlawful termination of his employment does not arise here. Having worked for the 1st defendant for 10 years and above entitles him to some terminal benefits in accordance with the terms of their contract, which I already awarded earlier in favour of the claimant as his entitlements as claimed. That is the monetary claim for his long service award and his gratuity, therefore it will amount to double compensation against the defendants if I resolve this claim in favour of the claimant. It is consequent upon this that I find and hold that claimant’s claim for damages fails.
Claimant also claims that the defendants tender a letter of unreserved apology written to and addressed to his person and published on the 1st Defendant’s notice board and at least in a National Newspaper to correct his dented image and reputation which has caused him unquantifiable damage(s) among the staff of the 1st defendant, family members, friends, associates, colleagues and even customers of the defendants whom claimant introduced to the 1st defendant and most importantly claimant’s potential clients. It is evident that this Claim is tortuous in nature; it is an allegation of defamation and malicious in nature. An in-depth look into Section 7 of the National Industrial Court Act 2006 and Section 254C of the 1999 Constitution as amended, disclose that defamation of character is not within the ambit of the jurisdiction of this Court, thus I desist from embarking on an academic evaluation of whether or not the Claimant is entitled to damages and compensation for his dented image and reputation as a legal practitioner. The Claimant may ventilate his grouse at the High Court being a tortuous act of defamation; consequently, this claim is struck out for lack of jurisdiction. I so hold.
The defendants by way of counter claim claims the sum of N1,350,000 as the unpaid balance of the car loan given to the claimant. It is their argument that the claimant on the 10th of August, 2015 was issued the sum of N1,500,000.00 as a loan for the purchase of a car. The claimant/Defendant to Counter Claim admitted vide paragraph 22 of his reply to the defendants statement of defence that he collected the said loan of One Million, Five Hundred Thousand Naira Only (N1,500,000.00) but only paid One Hundred and Fifty Thousand Naira (N150,000.00) and yet to pay the sum of One Million, Three Hundred and Fifty Thousand Naira (N1,350,000.00). Also, Exhibit PA discloses that the claimant on the 15th of May, 2015 requested for a loan in the sum of N1,500,000 from the defendant in purchase of personal car. It is the law that admitted facts needs no further prove. Therefore in the absence of any evidence to the contrary, I find and hold that the defendants/counterclaimants is entitled to the sum of N1, 350,000 (One Million, Three Hundred and Fifty Thousand) as the unpaid balance of the car loan obtained by the claimant.
In summary and for avoidance of doubt, the Claimant claims succeed in only two part and the defendant counter claim succeeds:
1. That the Claimant’s employment was not constructively dismissed, rather he determined his relationship with the 1st defendant on his own volition.
2. That Claimant claims i, ii, iii, iv, vi, vii, ix, x, and xi fail.
3. That the Claimant is entitled to the sum of Five Hundred and Seventeen Thousand Five Hundred Naira Only (N517,500) only being the amount due to him as long service award (for 10 years of meritorious service to the 1st defendant Company as at 31st October, 2015).
4. That the Claimant is entitled to the sum of N5, 175,000.00 (Five Million, One Hundred and Seventy Five Thousand Naira) being the amount due to him as severance/gratuity pay after ten (10) years and above of service to the 1st Defendant.
5. I award no sum as general damages.
6. That the Defendant/Counterclaimant is entitled to the sum of N1, 350,000 (One Million, Three Hundred and Fifty Thousand) as the unpaid balance of the car loan. This is to be set off from the sum of N5,692,500 awarded the claimant and the balance is to be paid to the claimant.
7. The judgment sum of N4, 342,500.00 should be paid by the 1st defendant to the claimant within the period of 30days of this judgment, failing which it shall attract an annual interest of 10%.
No order as to costs.
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
