Mr. Emmanuel George -VS- Lambert International Limited & ORS

IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDUCIAL DIVISION

HOLDEN AT LAGOS

BEFORE HON. JUSTICE K.I.AMADI

DATED, AUGUST 8, 2018 SUIT NO: NIC/LA/211/2011

BETWEEN:

EMMANUEL GEORGE CLAIMANT

AND

LAMBERT INTERNATIONAL LIMITED
MR. LAMBERT SALVATORE DEFENDANTS

REPRESENTATIONS:

Temidayo Adeyemi with Femi Abimbola and Mnena Kakwagh for the Claimants

Adeniyi Quadri with Oluwafemi Anjorin for the Defendant.

JUDGMENT

INTRODUCTION

The Claimant commenced the suit by a writ of general form of complaint dated and filed on the 14^th day of December 2011. And by an Amended Statement of Facts dated and filed on May 23, 2012, the Claimant claimed against Defendants as follows:

An Order directing the 1^st Defendant and the 2^nd Defendant jointly and severally, to pay to the Claimant the sum of N26, 241, 590.00 being the aggregation of the wages, allowances and perquisites unlawfully withheld from the Claimant on the contract of employment created in June, 2011.

An Order directing the 1^st Defendant and the 2^nd Defendant jointly and severally to pay to the Claimant the sum of N129, 306, 197.68 being the aggregation of the commissions unlawfully withheld from the Claimant and interest thereon calculated at the modest flat rate of 20% per annum from each due date.

iii. An Order directing the 1^st Defendant and the 2^nd Defendant jointly and severally to pay to the Claimant the sum of N1, 350, 000.00 being gratuity due to the Claimant from his service in the Defendants’ employment.

An Order directing the 1^st Defendant and 2^nd Defendant jointly and severally to pay to the Claimant the sum of N100, 000.00.00 being exemplary and/or punitive damages for breach of contract and for the unquantifiable damages done to the Claimant by the several actions or omissions of the 1^st Defendant and 2^nd Defendant.

An Order directing that the accrued interest component of the above sums be computed up to and including the final determination of this suit by the Honourable Court and the final payment by the Respondents (sic).

By a Further Amended Statement of Defence dated and filed on February 13, 2014, the Defendants joined issues with Claimant. The Defendants also filed a Counter Claim along with the Further Amended Statement of Defence.

TRIAL

Trial commenced with the Claimant testifying for himself as the sole witness for his case (CW1). He adopted his written deposition on oath made by him and same was admitted and marked CWE1. He tendered documents that were admitted and marked accordingly.

The Defendants on the other hand, called four witnesses. Three witnesses DW1-3 testified on their own, while the fourth witness DW4 appeared after a subpoena issued by this Honourable Court upon the Defendants’ application. They tendered some documents and were cross examined.

SUMMARY OF THE CASE OF THE PARTIES

The Claimant, claims to be a highly skilled and experienced marketing professional who was employed by 1^st Defendant on 4 June, 2001. That the agreement between him and Defendants was that his remuneration would be monthly wages, commissions on businesses sourced by him, and be entitled to perquisites such as company rented apartment, medical allowances as in Exhibit B-B1. That by his singular efforts he sourced for and/or generated various businesses between 2001 and 2011 worth billions of Naira for the 1^stDefendant.

That the Defendants breached the contract with him having refused, failed and/or neglected to pay the agreed commission due to him on the aforesaid sourced businesses. That the Defendants failed to provide accommodation at Apapa GRA, for him as agreed. The Claimant stated that he was paid monthly living wages and allowances (N800, 000.00 annually as at year 2006 but gradually, some perquisites and allowances that he had been enjoying were withheld by Defendants. That he resigned his employment with Defendants on September 26, 2011 by a letter (Exhibit R) sent to the 2^nd Defendant’s email and that after resignation aforesaid, 1^st Defendant did not pay him any terminal entitlements or gratuity.

On the other hand, the Defendants aver that the Claimant was employed sometime in 2001 as an inexperienced sale executive assigned to work under the tutelage of the then head of sales – one Mr. P.S Krishnan an expatriate. That at the time of his engagement, the Claimant had no additional work experience after leaving Anambra Motor Manufacturing Company Ltd (Anammco) 15 years previously in 1986.

That there was no reason for an agreement to pay allowances or any perquisites or commission as alleged by Claimant neither was there any formal contract of employment between the 1^st Defendant and the Claimant as alleged by the Claimant. That the Claimant was employed on an ad hoc arrangement/basis as he was not a skilled professional in the 1^st Defendant’s business terrain combined with the fact that he did not have any additional work experience after leaving Anammco 15 years before his engagement by 1^st Defendant. That the ad hoc agreement was renewed verbally from time to time over the years and by the fact of payment of Claimant’s salary in the course of his employment of the Defendants. That the Defendants did not issue the letter of employment exhibit B – B1 to the Claimant.

That the employment agreement with the Claimant was on the basis of monthly wages/salary with deserved bonuses and no more. That the Claimant’s salary was paid as they fell due throughout his employment.

That the 1^st Defendant does not provide residential accommodation for non-management staff which cadre the Claimant fell; that employees of Claimant’s cadre were only entitled to and provided housing loans. That contrary to the Claimant’s claim, a Nissan Pathfinder Jeep was allocated to the Claimant immediately it was procured and the Claimant was the first and only person that used the vehicle after purchase. That the 1^st Defendant was absolutely responsible for the vehicle’s maintenance including servicing/fueling and such other facilities like telephone and internet.

That the Claimant was relieved of his employment on August 1, 2011 having become unproductive in addition to diverting business away from the company to rival companies. That at the time of his sack his terminal benefit stood at N990, 000.00. However between August and December 2011, the Claimant seized the opportunity of access to the Company premises and:

Obtained N 300, 000.00 from Defendants under false pretense;

Made away with vital documents of 1^st Defendant including his personal file and some documents front loaded and later tendered at trial i.e. Exhibits E, F, G, H-H1, P – P9, DW2K – DW2K1, DW2L – DW2L1, DW2M – DW2M2, DW2N – 1, DW2O & DW2P – 1; and

iii. Nissan Pathfinder Jeep earlier mentioned and a Honda CRV with Registration number CV 23 GGE.

That in the course of his employment, the Claimant applied for and was granted loan facilities in the total sum of N2, 000,000.00 which he failed, reneged and/or refused to pay back.

At the close of trial the parties filed their final written addresses. In his final written address the Learned Counsel for the Defendant raised four issues for determination as follows:

i, Whether the contract of employment between parties was express or implied;

ii, Whether the 2^nd Defendant executed the document marked Exhibit B –B1;

iii, Whether the Claimant is entitled to the reliefs sought in this claim; and

iv, Whether Defendants are entitled to the reliefs as prayed in their Counter Claim.

The Learned Counsel for the Claimant in his own final written address raised two issues for determination thus:

I Whether the Claimant has established his case beyond the preponderance of evidence to justify the reliefs sought.

ii Whether the Defendants can unlawfully withhold the commission, gratuity and other entitlements of the Claimant after the determination of the employment.

COURT’S DECISION

I have read all the processes filed by the parties in this suit. The final written addresses of the parties are hereby incorporated into this judgment and specific reference shall be made to them where necessary. In my view, the case of the of the Claimant is primarily hinged on Exhibit B-B1., therefore the resolution of the second issue as raised by the Learned Counsel for the Defendant that is;Whether the 2^nd Defendant executed the document marked Exhibit B –B1;is very important. Secondly, the determination of the mode of exit of the Claimant from the Defendant and thirdly whether the parties have proved their cases.All the other issues raised by the parties are subsumed by these three issues. I shall therefore treat this case based on the foregoing three issues.

In respect of the first issue, that is; whether the 2^nd Defendant executed the document marked Exhibit B –B1. The Learned Counsel for the Defendant argued thatthere is no doubt that the Claimant was employed as a worker by the 1^st Defendant. That theClaimant testified to this effect in paragraph 2 of his witness statement on oath(CW1E).That the Defendants’ second witnesses DW2 also confirmed that much in his deposition on oath. That the Defendants’ third witness (DW3) also confirmed Claimant’s employment in paragraphs 2 and 3 of DW3E. That the point of divergence however is whether the contract of employment was formal (express) or implied (oral). That whereas that the Claimant claims it was express relying onExhibit B – B1. The Defendants however maintained that the Claimant’s employment was on an ad hoc arrangement/basis as he was not a skilled professional in the 1^st Defendant’s business terrain. Counsel referred to the case ofJohnson v Mobil Producing (Nig.) Unlimited (2010) 7 NWLR (Pt. 1194) 462, where it was held that contract of employment may be in any form, and it may be inferred from the conduct of the parties, if it can be shown that such a contract was intended although not expressed.

Continuing further Counsel, submitted that that the Claimant’s claim based on Exhibit B – B1 cannot stand because of the following facts;

That assuming without conceding that Exhibit B – B1 is genuine, there is no evidence that the Claimant accepted the offer contained therein. That there is no evidence of execution of offer acceptance form in line with the term and/or condition of the offer as required by paragraph 13 of Exhibit B – B1. Therefore the alleged offer of employment was not accepted by the Claimant.

That paragraph 13 set out the manner in which the offer in Exhibit B – B1 could be accepted in order to become a binding contract and it is expected that a written offer is to be accepted accordingly as it is expressly stipulated. That the position in law is stated in Halisbury’s Law of England (3^rd edition) Volume 8 page 72 as follows:

“An offer cannot be accepted by anyone except the person to whom it is made, and acceptance means the assent of that person signified in the mode required by the terms of the offer.”

Counsel submitted that in the absence of a signed copy of offer of acceptance form, Exhibit B – B1 cannot stand as evidence of contract of employment between the Claimant and the 1^st Defendant.

On whether the 2^nd Defendant executed the document marked Exhibit B – B1.

Counsel argued that a careful consideration of the Claimant’s case will thrust out the fact that there was no mention or reference to Exhibit B – B1 until the amendment of the Statement of Facts on September 5, 2012. That the Claimant brought forth a plethora of documents either issued or obtained before, during and even after termination of his employment, specificallyExhibits M – M4, N – N7, O – O2, R and S – S2 and nowhere was the said Exhibit B-B1 mentioned.

Counsel submitted that the facts averred in paragraphs 8 and 10 of Claimant’s original Statement of Facts is the correct state of the facts. That Exhibit B – B1 was forged. That the document was an afterthought deliberately procured to mislead this Honourable Court. That this explains why the Claimant could and did not produce any signed copy of offer of acceptance in Court, because the document does not exist.

Continuing further Counsel argued that,in the light of the foregoing, the Defendants caused to be subpoenaed, a hand writing expert in the person of Mr. Reginald Udunze (now retired Deputy Superintendent of Police). This was sequel to Exhibit DW4C written by Defendants’ counsel.

That Mr. Udunze tendered two cogent documentsExhibits DW4A and DW4B. That the averments in paragraphs 16, 17 and 18 of DW4E is to the effect that 2^nd Defendant did not sign Exhibit B – B1. That the document is not genuine/it is a forgery. That the evidence of the hand writing expert drives a nail into the coffin of the Claimant’s claim.

That besides his failure to prove the genuineness of Exhibit B – B1 in the course of trial,the Claimant did not call another expert who may possibly give an alternative opinion in the circumstance. That where there is nothing to contradict or controvert an evidence, the Court will be on a firm ground to admit and rely on same.

Continuing further, Counsel submitted that in Oluwu v Building Stock Ltd (2011) ALL FWLR (Pt. 560) 1336, the Court of Appeal held that a Court is entitled to, on its own, compare signatures in different documents to determine their due execution but that where an expert has expressed his opinion about a signature, the Court cannot ignore it with a wave of the hand but must give sound reason why it is rejecting such expert opinion. In fact, where the expert gives a highly technical analysis and opinion, the only answer that may avail the opposing party would be to call another expert to give an alternative opinion. Counsel referred to the case ofAugustine Obineche v Humphrey Akusobi (2010) 12 NWLR (Pt. 1208) p. 383 @ 393, where it was stated that:

“Where there is no contrary evidence which discredits the evidence of an expert witness, the evidence must be relied upon…”

Counsel urged the Court to find and hold that the said Exhibit B-B1 was not executed by the Defendant. That it is a forged document.

The Learned Counsel for the Claimant in his own final written address argued that the DW4; DSP Reginald Iwunze is a paid witness purposely procured to tell this Court his paid story on the following facts:-

The witness who presented himself as a serving Police Officer, has indeed retired, and he still went ahead to adopt his Written Statement on Oath dated 1^st day of December 2017, including paragraphs 1 to 12 of his Written Statement on Oath, wherein he stated unequivocally that he is a serving Police Officer.

That the witness posited in paragraph 14 that by a letter of referrer, the Commissioner of Police referred the letter of Adeniyi Quadri of Counsel, dated 28^th day of June, 2017 to him to treat.

That by the report dated 8^th day of August, 2017 (Exhibit D4A), it is visible on the fact of the document, that the witness, who had claimed that the Commissioner of Police instructed him to treat Exhibit DW4C, thereafter, directly communicated the said Report of his investigation to Mr. Adeniyi Quadir of Counsel, without reporting first or even at all, to the commissioner who allegedly assigned him to do the investigation, or gave him the instruction to work on same.

That the DW4 testified on Oath that he has nothing before the Court to show what qualifies him to be an expert in the area of forensic analysis.

That the DW4 examined four documents wit; Exhibit DW4E1, DW4F, DW4G but drew a comparative client analysis for only one of the four documents (DW4D), deliberately leaving the other three behind.

The Witness (DW4), did not by any stretch, testify on Oath as to whether he has come into contact with the alleged owner of the signature for the purpose of indentifying which of the signatures belongs to him, neither did he testify before your lordship that the 2^ndDefendant is not the one who signed the Exhibit B-B1

Counsel referred to the case of A. G. Of Oyo State v Fair lakes Hotels (No.2) (1989) 5 NWLR (pt.121) 255 and submitted that the moment any doubt is cited on the report of a supposed expert, the Court is at liberty to totally disregard the said expert opinion.

Continuing Counsel submitted that since the 2^nd Defendant is denying the execution of B-B1 that the law expects him to present himself in Court for the purpose of ascertaining and confirming which of the signatures is his own. Counsel referred to Section 101 (1) of the Evidence Act 2011 and the case of Amadi v Osakwe & 2 Ors (2005) LPELR 443.

On the issue that Exhibit B-B1 was not mentioned until the originating processes were amended; Counsel submitted that the position of the law is that once pleadings are duly amended by the order of Court, what stood before the Court is no longer material before the Court. Counsel urged the Court to hold that Exhibit B-B1 is genuine and the binding contract of Employment between the parties.

In resolving this issue; I have to note that the DW4 (Reginald Iwunze) was called as a subpoenaed witness after the Claimant hasclosed his case. He was certainly subpoenaed, as initiated by the Defendants to destroy the case of the Claimant which is overreaching and contrary to Section 83 of the Evidence Act 2011.

Again, by his depositions, his analysis was in performance of a duty assigned to him by the Commissionerof Police of Imo State, therefore his report ought to have been addressed directly to the Commissioner who instructed him to carry out the analysis, but it was rather addressed directly to the Counsel for the Defendants.

Not only that, the witness failed to led enough evidence to show that he is indeed an expert in forensic signature analysis, in view of the foregoing , I am inclined to discountenance the evidence of the DW4 and I hereby discountenance it.

However,a Court is entitled to look at all the documents in its file and form an opinion of the case, see the case of Ogbunyiya v Okudo (1979) 6-9 S.C 24. I have looked at the processes filed by the Claimant in this case. Originally his case was that the Defendants did not issue to him any contract of employment. That the Defendants kept giving him excuses upon excuses on the ground that the 2^nd Defendant was travelling. Even when the 2^nd Defendant returned from his journey, that the Claimant specifically requested for it but he was told to be patient. Nowhere was the said letter of employment mentioned in the original processes filed that 14^th day of December 2011 before the amendment of the statement of facts.

There after upon amendment, Exhibit B-B1 surfaced and the case was now built upon it. I have formed an opinion that Exhibit B-B1 was procured for the purpose of this case. I find that it was not issued to the Claimant at the commencement of his employment with the Defendant. I hereby discountenance it and resolve this issue against the Claimant and in favour of the Defendants.

The 2^nd issue deals with the mode of exit of the Claimant from the Defendant. The Claimant claimed that he resigned his appointment via Exhibit R, while the Defendant claimed that the Claimant’s employment was terminated when he became “Unemployable” via Exhibit DW2F.

It is important to state at this point that the Evidence before the Court by both parties is clear on the fact that the Claimant was employed by the 1^st Defendant on June 4, 2001 in the Marketing Unit of the 1^st Defendant. He worked with the 1^st Defendant up to August 1, 2011 when the 1^st Defendant relieved him of his appointment via Exhibit DW2F dated August 1, 2011 with a retrospective effect from July 31. 2011.

On the other had Exhibit R is dated September26, 2011, since his appointment was terminated via Exhibit DW2F on August 1, 2011 there was no employment left for him to have resigned from on that September 26, 2011,.

Worse still the said Exhibit R was not signed by the Claimant which means that it is a worthless piece of paper,see the cases of Amaizu v Nzerube (1989) 4 NWLR (Pt. 118) 755 and Salibawa v Habilat (1991) 7 NWLR (PTt.174) 461

I have found and held that the Claimant’s employment was terminated by Exhibit DW2F the contents of which are hereunder reproduced:

Dear Sir,

RELIEF OFF DUTY

As a result of non-availability of jobs in the company, you are hereby informed that your services are no longer required by the company with effect from 31^st July 2011.

You are expected to submit all company’s properties in your possession to the Administrative Officer before you leave the premises today.

You can call at the Account Department for information about your entitlement.

Wishing you success in your future endeavours.

Two things stand out clearly from this Exhibit DW2F.

The first thing is that the Claimant was not given any notice of termination of his employment. There is no evidence of any agreement on the length of notice for termination of employment between the parties, where the contract of service is silent on the requisite notice of termination, the law is settled that a reasonable notice will be implied, seeMaiduguri Flour Mills Ltd v Abba, (1996) 9 NWLR Part 473 page 506 @ 511, andAlraine (Nig) Ltd. v M. A. Eshiet (1977)1 S.C. in such a situation the law expects reasonable notice or payment in lieu of notice to be made. In this case, no such notice was given and no payment made in lieu of notice; that makes the termination of the employment of the Claimant wrongful.

Again, the letter has a retrospective effect. It is settle law that termination of employment which has a retrospective effect is wrongful seeTamti v. NCSB (2009) 7 NWLR (Pt. 1141)631 @ 656.

There is evidence that the Claimant worked for the Defendants for ten years. That he was earning N900, 000 per annum when he was terminated. In his evidence, theClaimant claimed that he sourced contracts worth billions of Naira for the Defendants.He was relieved of his job when theDefendants claimed that he became unproductive without any notice and failed to pay him any money in lieu of notice. They also failed to pay him anything in form of terminal benefits or gratuity. From the foregoing, I find that the Claimant was used and exploited in his youthful and energetic years by the Defendants and dumped as he aged ignominiously. That is inequitable and unfair labour practice.

Section14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

Also Section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including- an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.

In view of the foregoing, I hold that a lump sum in damages in favour of the Claimant, will meet the justice of this case, consequently, I award the sum of N5, 400,000(Five Million Four Hundred Thousand) being six times his annual salary in damages for wrongful termination of hisemployment and unfair labour practices against him; claims iii and iv succeeded to that extent.

Consequently, claims i, ii, and v of the Claimant based on Exhibit B-B1 which I have discountenanced collapsed and therefore dismissed.

I now turn to the Counter claim:

Claim one is for the sum of N2, 000,000 being money lent to the Defendant by the Counter Claimant.

Granted that the Claimant/ Defendant to the Counter claim did not file any Defence to the Counter claim, the onus is still on the Defendants/Counter Claimant to prove that the Claimant/Defendant to the Counter claim took any such money. It is trite, and effectively established that, the effect of the failure of a party to call evidence in Defence of a claim against him is that, he is presumed to have admitted the claim made against him by the other party, and a trial Court has little or no choice than to accept and act on the unchallenged and uncontroverted evidence placed before it by the Claimant. See American Cyanamid v. Vitality Pharm. Ltd [1991] 2 NWLR (Pt. 171) 15, Nanna v. Nanna [2006] 3 NWLR (Pt. 966) 1, USN v. Fajebe Foods Ltd [1998] 6 NWLR (Pt. 554) 380, Morah v. Okwuayanga [1990] 1 NWLR (Pt. 125) 225 and USA v. Achoru [1990] 6 NWLR (Pt. 156) 254.

That however, that does not mean that the Claimant is entitled to an automatic judgment. The Claimant is not accordingly absolved from the minimal evidential rule, to the effect that, a Claimant is not entitled to automatic judgment just because the other party did not adduce evidence see Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 at 247.

Apart from that, evidence does not become credible simply because it is unchallenged. See Akalonu v Omokaro (2003) 8NWLR (Pt.821) 19. In this case,there is no such evidence before me which shows that the Claimant/ Defendant to the Counter claim ever took such loan, when he took it and the agreed mode of repayment. This Counter claim has failed and is hereby dismissed.

Counter claim 2 is for the sum of N300, 000 mobilization fee obtained under false pretences. Apart from assertions there is no evidence before the Court to support this claim. For the same reason and authorities cited above I equally dismiss this claim.

Claim 3 is for an order compelling theClaimant/ Defendant to the Counter claim to return the Nissan Pathfinder Reg. No. No. 248 KJA in the “State that it was as at the 1^st of August 2011”, the operating phase here is;“in the State that it was as at the 1^st of August 2011”. Again no evidence was laid as to the state of the car on that 1st August 2011. But there is no dispute that the car was purchased by the 1^st Defendant consequently this claim is refused.

In sum I make the following orders:-

The Defendants shall pay the Claimant the sum of N5.4 million being compensation for wrongful termination of his employment and unfair law practices against him.