IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: WEDNESDAY 26TH SEPTEMBER 2018
SUIT NO. NICN/LA/135/2017
BETWEEN:
MISS OKURIBIDO OLUWAFUNKE
CLAIMANT
AND
SUSTAINABILITI LIMITED
DEFENDANT
Representation:
C M Ohamuo appears for the Claimant
No representation for the Defendant.
JUDGMENT
The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 22nd March 2017, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, List of Documents; all dated the 22nd March 2017 and copies of all the documents to be relied on at the trial of the suit. The Claimant claims the following reliefs against the Defendant:
- AN ORDER that the constructive termination of the employment of the Claimant without paying her salary is unlawful.
- AN ORDER that the Defendant pay to the Claimant his I month and 10 days salary arrears of N53,330,000.00 (Fifty Three Thousand Three Hundred and Thirty Thousand Naira Only) from April to May 2016.
iii. AN ORDER that the Defendant pay to the Claimant his one month salary of N40,000.00 (Forty Thousand Naira) in lieu of notice of termination of employment.
- An order that the Defendant remit the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) being unremitted pension contributions into Stambic IBT Retirement Savings account of the Claimant.
- An Order that the Defendant stop the use of the Claimant’s email in processing and paying its staff salaries.
- General damages in the sum of N500,000.00 (Five Hundred Thousand Naira).
vii. Costs of the action assessed at N500,000.00 (Five Hundred Thousand Naira).
The Defendant did not respond to the Complaint despite service of the processes and several hearing notices.
Trial commenced in the suit on 8th March 2018. The Claimant gave evidence for herself as CW1, by adopting her Statements on Oath deposed to on 22nd March 2017. During the examination in chief, the Claimant tendered in evidence the following documents:
- Exhibit C1 – Offer of appointment letter dated 27th May, 2011.
- Exhibit C2 – Letter of invitation from the Citizens Mediation Centre, Lagos State dated 17th August, 2016.
iii. Exhibit C3 – Letter of Invitation from the Office of the Public Defender dated 2nd September, 2016 and 26th September, 2016.
- Exhibit C4 – GT Bank statement of account.
- Exhibit C5 – Stambic IBTC Pension statement.
- Exhibit C6 – Request to discontinue use of email dated 24th January, 2017.
The matter was adjourned for the Defendant to cross-examine CW1 and hearing notice ordered to be issued on the Defendant. On the adjourned date, Defendant was absent and unrepresented. Its right to cross-examine the witness was foreclosed in accordance with the Rules. Claimant closed her case and the matter adjourned for the Defendant to open its case. Defendant again failed to be in Court. The matter was adjourned for adoption of Final Written Addresses. On 25th September 2018, Claimant adopted her Final Written Address, and the Court adjourned for judgment.
CASE OF THE CLAIMANT
The case of the Claimant is that she was an employee of the Defendant; a company formed under the Companies and Allied Matters Act 2004 and engaged in manufacturing operations. She was employed by the Defendant as a Project Supervisor on the 27th May, 2011 on a salary of N300,000.00 (Three Hundred Thousand Naira) per annum. As at the time the Claimant was asked to resign in 2016 her salary was N40,000.00 (Forty Thousand Naira) per month. The Defendant pays her salaries into her GTbank account. She worked diligently for the Defendant until 10th May, 2016 when the Managing Director of the Defendant verbally instructed the Claimant to tender her letter of termination. She had no choice than to comply and there and then wrote a letter of resignation by hand which was given to the Managing Director of the Defendant. Claimant states that in view of the circumstances under which she was compelled to write and tender the resignation letter, she does not have a copy of the resignation letter. Prior to the said constructive termination of the employment, the Defendant did not pay the Claimant’s April salary and the 10 days worked in May 2016. It is Claimant’s case that the Defendant owes her the sum of N53,330.00 (Fifty Three Thousand Three Hundred and Thirty Naira) as arrears of salary. The Claimant states that the Defendant did not pay her the one month salary in lieu of notice of termination. The one month salary in lieu of notice is the sum of N40,000.00 (Forty Thousand Naira). That, the Defendant failed and or neglected to remit her pension contributions including the counterpart contribution of the Defendant. The Defendant only remitted pension for the month of March 2012 throughout the period the Claimant worked with the Defendant. The Defendant remits the sum of N6,000.00 (Six Thousand Naira) monthly as pension. That the Defendant is owing the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) as unremitted pension excluding interest and penalties. The Claimant made several efforts to prevail on the Defendant to pay her salary and remit the pension but the Defendant ignored all her pleas. That the non-payment of the Claimant’s salaries and remittance of pension had caused financial injury to the Claimant. The Claimant is no longer able to meet her financial obligations. The Defendant has continued to use the Claimant’s email account to process the payment of staff salaries with GTBank. The Claimant approached GTBank to stop this but GTBank informed the Claimant that it is the Defendant that has access to stop the use of the email. The Claimant thereafter wrote a letter to the Defendant requesting that the Defendant desist from using her email in processing the company transactions. The Defendant Managing Director after reading the letter refused to acknowledge same. The Claimant approached the Citizens Mediation Centre of the Lagos State Ministry of Justice with a view to resolving the dispute. The Centre invited the Defendant but the Defendant refused to honour the invitation. Pursuant to the refusal of the Defendant to honour the invitation the Claimant was referred to the Office of the Public Defender (Lagos State Ministry of Justice). The Defendant was invited for mediation but the Defendant again failed to honour the invitations.
SUBMISSION ON BEHALF OF THE CLAIMANT
Claimant’s Final Written Address is dated 3rd day of August 2018. In it learned Counsel set down a lone issue for determination as follows:
- Whether the Claimant is entitled to the reliefs sought.
In arguing the sole issue, Claimant submit that the Managing Director of the defendant invited her and instructed her to resign on the spot thereby giving her no option than to write a letter of resignation on the spot which letter she handed over to the defendant’s MD without an opportunity to make a copy of the letter for herself. Claimant argues that where the determination of the employee’s appointment is due to acts of the employer, such employment will be said to have been constructively determined by the employer – Sylvester Azuka Egwuatu v. Diamond Bank Plc. 2015 59 NLLR Pt. 204 283. Claimant submits that asking/advising an employee to resign is one of such act; and that advising or pressuring an employee to take a decision capable of being detrimental to her interest is another instance – Abisola Akinsete v. Westerngeco Seismic Nig. Ltd 2015 56 NLLR Pt. 191 297 (NIC).
COURT’S DECISION
The Defendant was afforded all opportunities to defend this case. Despite service of the processes and hearing notices and evidence attesting to the same, the Defendant did not file any process nor was it represented at the trial by a Counsel.
I read carefully and considered the processes filed, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the lone witness called at the trial as well as watched her demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I adopt the lone issue set down for determination by the Claimant:
- Whether the Claimant is entitled to her Claim.
This lone issue is apt in that it is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer. The proof is expected to be by cogent, credible and admissible evidence and may either be oral or documentary; it may also be both.
Claimant’s first Relief is for AN ORDER that the constructive termination of the employment of the Claimant without paying her salary is unlawful. Claimant in her evidence stated that the Managing Director of the Defendant verbally instructed her to resign forthwith. The Claimant further tendered her letter of appointment (Exhibit C1) as evidence of the employment. The Defendant did not contradict the evidence of the Claimant. The law is trite that a Court is entitled to rely on unchallenged piece of admissible evidence. See Nze v. NPA (1997) LPELR-6254 (CA). In the case of Sylvester Azuka Egwuatu v. Diamond Bank Plc.(supra) cited by the Claimant, this Court held, in a situation where the Defendant advised the Claimant to resign, that it amounted to constructive dismissal. This was also the decision in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd[2014] 47 NLLR (Pt. 154) 531 where the Court held that “given that the resignation was not truly voluntary, it is in effect a termination”. Based on the above, I hold that having been ordered to resign; the Claimant’s employment was terminated by the employer, constructively. On the issue of non-payment of her salary upon termination, I have gone through exhibit C4 which is Claimant’s statement of account. The entries show that the last salary paid to the Claimant was for the month of March 2016 which was paid on 6th April 2016. The statement ended on 23rd May 2016 without any salary entry for April and the 10 days worked in May; being that the constructive termination took place on the 10th of May 2016. This piece of evidence has also not been contradicted. I therefore find the non-payment of Claimant’s salary to be unlawful as the law implies into every contract of employment, a duty to pay the remuneration of the employee. The law regards the wage of the employee so sacrosanct that not only are copious provisions made in the Labour Act to protect it from abuse, the Labour Act’s first 6 sections are on the protection of wages. Relief one therefore succeeds and I hold that the constructive termination of the employment of the Claimant without paying her salary is unlawful.
The second relief sought by the Claimant is payment of one month salary for April and ten days worked in May 2016. The Claimant gave evidence that her salary is N40,000.00 (Forty Thousand Naira Only) per month. She also gave evidence that she was forced to resign on the 10th of May 2016. As already stated, exhibit C4 shows that no further salary was paid after the March salary. This evidence was not challenged or contradicted by the Defendant during trial. The Court not having been afforded opportunity of receiving evidence to the contrary is bound to act on same. In Udo & Ors v. Essien & Ors (2014) LPELR 23684(CA) restated the position of the law that evidence that is relevant to the issue in controversy and is not successfully challenged, contradicted and discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Judge in the determination of the case before it. I therefore find that the Defendant did not pay Claimant’s salary for the month of April and the 10days worked in May. I find that the Claimant is entitled to be paid her salary which she had earned before her constructive termination. The Defendant is hereby ordered to pay to the Claimant her I month and 10 days salary arrears of N53,330,000.00 (Fifty Three Thousand Three Hundred and Thirty Thousand Naira Only) for April to May 10th 2016 before she was forced to resign.
Relief 3 seeks an Order that the Defendant pay to the Claimant her one month salary of N40,000.00 (Forty Thousand Naira) in lieu of notice of termination of employment. Having found under Relief one that the Defendant constructively terminated Claimant’s employment, Defendant’s action violates paragraph 3 of Exhibit C1 which provides that:
… After confirmation, either party, by giving one calendar month notice or payment in lieu of notice may terminate the appointment in writing without assigning any reason and without liability for compensation and damages.
It is obvious, by the constructive termination, that the requirement of one month notice was not complied with. By Claimant’s testimony, exhibit C1(Letter of offer of appointment) and exhibit C4(Statement of GTBank Account) which is the salary account, I find Claimant’s monthly salary to be N40, 000. 00 per month. I hold that Defendant is entitled as claimed to the sum of N40, 000.00 representing Claimant’s one month salary in lieu of notice.
Under Relief 4, Claimant seeks an order that the Defendant remit the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) being unremitted pension contributions into her Stambic IBT Retirement Savings account. The Claimant gave evidence that:
The Defendant failed and or neglected to remit my pension contributions including the counterpart contribution of the Defendant. The Defendant only remitted pension for the month of March 2012 throughout the period I worked with the Defendant. The Defendant remits the sum of N6,000.00 (Six Thousand Naira) monthly as pension. The Defendant is owing the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) as unremitted pension excluding interest and penalties. I have made several efforts to prevail on the Defendant to pay my salary and remit the pension but the Defendant has ignored all my pleas.
This evidence remains un-contradicted. Exhibit C5 which is Claimant’s pension statement shows that the Defendant made one month remittance during the period the Claimant worked in the Defendant company. The letter of invitation by the Office of the Public Defender (Exhibit C3) stated this fact to the Defendant. Under the Pension Reforms Act, pension deductions from employees’ salary must be remitted to a Retirement Savings Account for the benefit of the employee to provide him succour upon retirement from active service. In the absence of any evidence that these deductions were paid into the employees retirement savings account, the Defendant is here ordered to remit the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) being unremitted pension contributions of the Claimant into her Stambic IBT Retirement Savings account.
Relief 5 seeks an order that the Defendant stop the use of the Claimant’s email in processing and paying its staff salaries. Claimant gave evidence that the Defendant continued to use her email account to process the payment of staff salaries even after she had left the employment of the Defendant. Exhibit C6 is a letter requesting the Defendant to stop the use of the said email. In the absence of any evidence contradicting Claimant’s evidence, I here order the Defendant to stop the use of the Claimant’s email in processing and paying its staff salaries.
Claimant’s 6th Relief is for the sum of N500, 000.00 as General damages. I find from the facts of this case that Claimant is entitled to general damages. General damages flow naturally from the wrongful act of a defendant complained of – The Shell Petroleum Development Company of Nigeria Limtted v. Chief G.B.A. Tiebo VII (supra) at 466, para. C. per OGUNTADE, JSC.- Owena Mass Transportation Company Ltd. V. IMAFIDON (2011) LPELR-4810(CA) I set and award to the Claimant general damages of N200,000, 00.(Two Hundred Thousand Naira) only. As held by the Supreme Court in Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt.1098) 375 S.C
General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial.
Relief 7 seeks for N500, 000.00 cost of this action. This Relief is declined as Claimant led no evidence in proof of that Relief.
For the avoidance of doubt, this action succeeds as follows:
- I hold that the constructive termination of the employment of the Claimant without paying her salary is unlawful.
- The Defendant is ordered to pay to the Claimant her I month and 10 days salary arrears of N53, 330,000.00 (Fifty Three Thousand Three Hundred and Thirty Thousand Naira Only) for April to May 10th 2016 before she was forced to resign.
- The Defendant is ordered to pay to the Claimant, the sum of N40, 000.00 representing Claimant’s one month salary in lieu of notice.
- Defendant is ordered to remit the sum of N354,000.00 (Three Hundred and Fifty Four Thousand Naira) being unremitted pension contributions of the Claimant into her Stambic IBT Retirement Savings account.
- The Defendant is ordered to stop the use of the Claimant’s email in processing and paying its staff salaries.
- Relief 6 succeeds to the extent that Claimant is awarded N200, 000.00 as General Damages.
- Relief 7 Fails.
- All the adjudged sums are to be paid not later than one month from today. Thereafter, interest shall accrue to it at the rate of 20% per annum.
Judgment is entered accordingly.
…………………………………….
Hon. Justice Elizabeth A. Oji PhD
