IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JUNE 4, 2018
SUIT NO. NICN/LA/550/2016
BETWEEN
Kefre Ekpo Inyang– Claimant
AND
Alphabeta Consulting LLP – Defendant
REPRESENTATION
Adekunle Akinpelu, for the claimant.
A. O. Ariola, with A. O. Laseinde, for the defendants.
JUDGMENT
1. This case started off as one filed on 22nd August 2016 vide an originating summons. However, at the Court’s sitting of 11th January 2017, given the nature of the applicant’s claims, the Court ordered that parties exchange pleadings, which parties did. On 28th February 2017, the claimant accordingly filed his complaint, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the documents. To this, the defendant filed on 10th March 2017 its statement of defence and counterclaim, list of witnesses, witness statement on oath, list of documents and copies of the documents. In reply, the claimant filed a reply and defence to the counterclaim, claimant’s additional witness statement on oath, claimant’s additional list of documents and copies of the additional documents.
2. By the statement of facts, the claimant is claiming against the defendant the following reliefs:
(i) A declaration that the defendant is under an existing and subsisting contractual obligation under the contract of employment executed with the claimant to issue the claimant’s Certificate of 15 years’ service as part of his severance entitlement on cessation of the claimant’s service of employment, the defendant having accepted his resignation and in compliance with the express provision of clause 40.1 of the defendant’s Employee Handbook dated January 2002.
(ii) A declaration that the defendant’s failure, decision and refusal to discharge the existing and subsisting contractual obligation under the contract of employment executed with the claimant to issue claimant’s Certificate of 15 years’ service as part of his severance entitlement on cessation of the claimant’s service of employment, the defendant having accepted claimant’s resignation and despite several demands by the claimant is a willful breach and gross violation of the contract of employment as provided under clause 40.1 of the defendant’s Employee Handbook dated January 2002, and oppressive wrongful and unlawful.
(iii) A declaration that the claimant is entitled to claim compensation for loss of secured 10 years’ income and earnings from his new contract of employment with Maroct Consulting Ltd, whose loss directly resulted from the defendant’s willful refusal to discharge its subsisting obligation under clause 40.1 of the defendant’s Employee Handbook of January 2002 by its refusal to issue the claimant’s Certificate of 15 years’ service as part of his severance entitlement on cessation of the claimant’s service of employment, the defendant having accepted the claimant’s resignation and despite several demands and notice of the requirement of the Certificate of Service by the claimant’s to save his new employment and income.
(iv) An Order of this Honourable Court directing the respondent to immediately issue the claimant’s Certificate of 15 years’ service in the defendant in compliance with the contract of employment as contained under clause 40.1 of the respondent’s Employee Handbook dated January, 2002.
(v) An order of this Honourable Court directing the respondent to pay the defendant compensation in the sum of N72,000,000.00 (Seventy-Two Million Naira) as damages for the loss of the claimant’s secured basic income and earnings being the basic salary of N600,000.00 (Six Hundred Thousand Naira) per month for the secured initial 10 years term in the claimant’s new contract of employment as Regional Head, Electronic Revenue/ICT Projects with Maroct Consultants Limited, which termination directly resulted from the defendant’s willful refusal to discharge its subsisting obligation under clause 40.1 of the defendant’s Employee Handbook dated January2002 by its refusal to issue the claimant’s Certificate of 15 years’ service as part of his severance entitlement on cessation of the claimant’s service of employment, the respondent having accepted his resignation and despite several demands and notice of the requirement of the Certificate of Service by the claimant’s new employer.
(vi) An order of this Honourable Court directing the defendant to pay the sum of N2,000,000.00 (Two Million Naira) to the claimant as general damages for the emotional, mental depression and deteriorating medical health condition suffered by the claimant from shock and trauma upon the loss of secured income and earnings of N1,500,000 (One Million Five Hundred Thousand Naira) per month for 10 years in the claimant’s new contract of employment as Regional Head, Electronic Revenue/ICT projects with Maroct Consultants Limited which termination directly resulted from the respondent’s willful breach and deliberate refusal to discharge its obligation under clause 40.1 of the respondent’s Handbook dated January 2002.
3. The defendant on its part is counterclaiming the following relief against the claimant: “An order of this Honorable Court directing the Claimant to return the official car a Toyota Corolla Saloon Car with Registration Number JJJ 43 CQ.
4. At the trial, the claimant testified on his own behalf as CW, while Olufemi Adewunmi, a Consultant in the rank of Head Human Resources and Manpower Development at the defendant, testified as DW for the defendant. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 27th July 2017, while the claimant’s was filed on 21st August 2017. The defendant’s reply on points of law was filed on 20th April 2018.
THE CASE OF THE CLAIMANT
4. The claimant’s case is that by Exhibits C1, C2, C3, C4, C5 (claimant’s letters of employment, confirmation of employment, notification of salary review, employee handbook and letter of redeployment by the defendant as Alpha Beta Consulting Limited) and paragraphs 2, 3, 4, 5 and 6 of the claimant’s witness statement on oath dated 28th February 2017 he was a bona fide employee of the defendant for 15 years and so is entitled to all the employee’s benefits therein contained in his contract of employment with the defendant. That by Exhibits C9, C10, C10A, (claimant’s letter of resignation, defendant’s e-mail of acceptance of claimant’s resignation and letter of acceptance of resignation by the defendant as Alpha Beta Consulting Limited Liability Partnership) and paragraphs 9,10 and 12 of the claimant’s witness statement on oath dated 28th February 2017,he validly resigned from the employment of the defendant, which resignation thedefendant duly accepted.That by Exhibits C11, C11A, C11 B, C16, C17 (claimant’s reminder emails of demand for certificate of service from the defendant as Alpha Beta Consulting Limited Liability Partnership and paragraphs 13, 14, 15 of the claimant’s witness statement on oath dated 28th February 2017, claimant’s solicitor’s letter of demand for Certificate of Service and defendant’s solicitor’s reply)and paragraphs 5,6 and 7 of the claimant’s additional witness statement on oath dated 20th March 2017, he indeed demanded repeatedly till 29th June 2016 for the Certificate of Service as his employment entitlement from the defendant without any response whatsoever in respect of the issuance of the Certificate of Service, not even in the defendant’s solicitor’s letter Exhibit D4 dated 15th July 2016.
5. Continuing, the claimant relied on Exhibits C6, C8 (Internal Memo for handling over of Toyota Corolla Car Reg. Number JJJ 43 CQ to the claimant for official use by the defendant as Alpha-Beta Consulting Limited dated 31st March 2010 and the defendants letter of transfer of ownership in 2016 as Alpha Beta Consulting Limited Liability Partnership dated 14th March 2016), paragraphs 7 and 8 of the claimant’s witness statement on oath dated 28th February 2017 and paragraphs 3(1) – (vi) of the claimant’s additional witness statement on oath dated 20th March 2017 as proving that the Toyota Corolla Car Reg. Number JJJ 43 CO was handed over to him first for official use by the defendant as Alpha-Beta Consulting Limited in 2010 and later transferred to him as the owner in 2016 by the defendant as Alpha Beta Consulting Limited Liability Partnership.That theclamant established vide Exhibits C7, C19A to C19N(sale receipt and vehicle particulars) that the Toyota Corolla Car Reg. Number JJJ 43 CQ formally CB 411 KSF was purchased by Alpha-Beta Consulting Limited, registered in the name of Alpha-Beta Consulting Limited and all the car particulars of ownership till 2014 was obtained by AlphaBeta Consulting Limited.
6. Furthermore, that by Exhibits C12,C13, C14, C14A, C15 (claimant’s letter of appointment as Regional Head, Electronic Revenue ICT project and the employment benefits by Maroct Consultants Limited, Letter of contract award to Maroct Consultants Limited by Kano State, Internal Memo of Maroct Consultants Limited for Certificate of Service in the defendant from the claimant and letter of termination of the claimant’s employment by Maroct Consultants Limited for failure to submit certificate of service from the defendant), paragraphs 14 to 23 of the claimant’s witness statement on oath dated 28th February 2017 and paragraphs 7(iii), (iv), (vi) of the claimant’s additional witness statement on oath dated 20th March 2017, he was able to prove his employment contract with Maroct Consultants Limited, the terms and benefits of the employment and the basis of the termination of theemployment.That relying on the uncontroverted facts in paragraphs 23 and 24 of the claimant’s witness statement on oath dated 28th February 2017 and paragraphs 7(vi), (vii) of the claimant’s additional witness statement on oath dated 20th March 2017 and Exhibit C20, he was able to prove that he has suffered financial, emotional and health losses due to the defendant’s denial of his entitlement under his contract of employment with the defendant. The claimant accordingly wants judgment for all his claims and a dismissal of the defendant’s counterclaim for the Toyota Corolla Car with Registration No. JJJ 43 CQ (old number CB 411 KSF).
THE CASE OF THE DEFENDANT
7. The defendant’s case is that the claimant resigned his employment and stated in his letter of resignation that he did so due to the health challenges he was experiencing because of the working conditions and work environment in his job posting, which posting was Sokoto.The defendant denied ever transferring the ownership of the official car Toyota Corolla with Registration Number JJJ 43 CQ as the letter dated 14th March 2016 transferring ownership of the car to the claimant (Exhibit C8) was not issued by the defendant nor authorized by defendant’s Managing Director. That there is also no provision in the Employee Handbook for any employee to go away with the official car when disengaging from the employment of the company. The car remains at all times the property of the defendant and the claimant is unlawfully holding on to the defendant’s property.
8. To the defendant, after conducting the exit interview with the claimant on 17th May 2016, the defendant through its Head Human Resources and Manpower Development, Mr. Olufemi Onashile, issued to the claimant among other documents the required Certificate of Service which he duly signed, for and on behalf of the Managing Director of the defendant, but the claimant rejected it and insisted that not only must the Certificate be signed by the Managing Director personally, it must also be certified even though there is no such provision in the Employee Handbook. Original of the Certificate of Service dated 17th May 2016 was then tendered as Exhibit D1.Again, that on 17th May 2016 during the exit interview, the defendant also demanded from the claimant the return of all the defendant’s company’s properties in his possession as it is customary. That the claimant only returned the identity card, the official laptop and e-Service Card but failed to return the official car a Toyota Corolla Saloon Car with Registration Number JJJ 43 CQ (old Registration Number CB 411 KSF). That the claimant is still unlawfully holding on to the defendant’s car since his resignation and contrary to the defendant’s instruction in its letter dated 10th February 2016 accepting the claimant’s letter of resignation and requesting the claimant to hand over all company properties in his possession before his exit (Exhibit Cl0A).
9. To the defendant, it complied with the terms of the employment at the time of the resignation of the claimant and issued the following documents to him:
(i) Acceptance of his resignation letter vide e-mail dated 1st February 2016 and hard copy dated 10th February 2016.
(ii) Accrued pension rights letter dated 10th February 2016 and addressed to the Pension Fund Administrator Trust Fund Pensions Plc in favour of the claimant (Exhibit D2).
(iii) Three (3) months’ pay slips to assist the claimant to access his pension scheme contribution remittances.
(iv) The Certificate of Service dated 17th May 2016 (Exhibit D1).
That the claimant refused to collect the Certificate of Service dated 17th May 2016 issued in his favour because of his insistence that the Managing Director must sign the same personally and that a certified true copy of it must also be issued by the defendant. That all these demands are contrary to the Employee Handbook and not the policy of the company.
10. The defendant denied any award of any internally generated revenue project to Maroct Consultants Limited or any firm whatsoever by the Kano State Government (Exhibit C12) nor the purported appointment of the claimant as an employee of the said firm (Exhibit CI3). That since the claimant left the defendant’s employment, there has been no official request or enquiry from his purported employer for any reference about him at any time whatsoever. That there was nothing “certain” or “guaranteed” about the claimant’s purported employment with Maroct Consultants Limited for 10 years as is being claimed by the claimant. That clause 1.12 of the letter of appointment (Exhibit C13), which governs how the appointment may be terminated, provides that the appointment may be terminated by either party without notice during the period of probation and by giving 3 months’ notice in writing or the payment of3 months’ salary in lieu of notice. To the defendant, it is not responsible for any loss of any employment opportunity by neither the claimant, nor the purported hardship suffered or any health deterioration whatsoever. That the defendant is neither liable nor responsible for any purported ailment being suffered by the claimant as indicated in the medical report purportedly issued by the Lagos State General Hospital (Exhibit C18).That the defendant is not responsible or liable for any purported financial hardship, emotional and mental depression being purportedly suffered by the claimant. Accordingly, that the claimant is not entitled to any declaration, costs and any order or sums whatsoever against the defendant as claimed in paragraphs 26(i) to (vi) of the statement of facts. That the claimant’s claims should be dismissed in its entirety; while the defendant is entitled to an order of this Court directing the claimant to return to the defendant the official car a Toyota Corolla Saloon Car with Registration Number JJJ 43 CQ.
THE SUBMISSIONS OF THE DEFENDANT
11. The defendant submitted three issues for determination, namely:
(a) Whether pursuant to the terms of contract between the parties, the defendant has discharged its contractual obligation to the claimant, particularly as contained in the staff handbook, by issuing to the claimant Certificate of Service which was rejected by the claimant.
(b) Whether the claimant is entitled to the reliefs being claimed by him against the defendant in paragraph 26(i) to (vi) in the statement of facts when the demand that the Certificate of Service must be certified as contained in Exhibit C14 and C14A is not in the Staff handbook (Exhibit C4).
(c) Whether an employee can lawfully claim ownership of an official car that was purportedly transferred without lawful authority to him by an unauthorized person in the company and contrary to his employment contract.
12. On issue (a), the defendant submitted that it complied with the terms of its contract with the claimant by issuing the Certificate of Service to the claimant pursuant to clause 40.1 of the Employee Handbook (Exhibit C4) and is, therefore, not liable for any purported damages resulting from the loss of the Maroct Consultant Limited employment. That DW gave evidence that Exhibit D1, the Certificate of Service, was issued by him on behalf of the defendant to the claimant on 17th May 2016 during the exit interview but the claimant rejected same due to two reasons, viz: that it was not signed by the Managing Director and that the defendant did not certify it.That this demand by the claimant emanated from the contents of Exhibit C13, the letter of employment dated 15th April 2016 from Maroct Consultants Limited paragraph 1.7 page 2. Also referred to is Exhibit C14A, the reminder Memo from the said company dated 30th May 2016. That by virtue of the aforementioned exhibit the new employer of the claimant in paragraph 1.7 of Exhibit C13 is demanding for the “submission of a certified true copy of Certificate of Service from your last employer to back up your 15 years work experience claim”.Based on this, that the claimant refused to accept Exhibit D1 from the defendant, which was issued to him pursuant to clause 40.1 of the Employee Handbook (Exhibit C4) but not certified as required by Maroct Consultants Limited in Exhibits C13 and C14A.Clause 40.1 of the Handbook provides as follows:
The Company will issue a Certificate of Service to any employee on cessation of service. The Certificate will state only the name of the employee, his length of service and nature of his duties. In the event of a prospective employer requiring additional information, the Company may provide a report, which may be sent to the enquirer under confidential cover.
13. To the defendant, the claimant agreed under cross-examination that there is no such provision for certification of the Certificate of Service by the defendant in the Employee Handbook and stated further that he intended to go and certify the certificate if it was issued to him, but none was issued to him. The defendant then urged the Court to discountenance this evidence of the claimant as same is preposterous and an afterthought for him to contend that a Certificate of Service issued by the defendant will be certified by another person, firm, body, or agency that is not the author. That this is not plausible and if done at all, will amount to forgery and illegality.It is thusthe defendant’s submission that parties to a contract of employment are bound by the terms of the contract until they mutually agree to vary the terms and conditions, citing Idoniboye-Obu v. NNPC[2003] 2NWLR (Pt. 805) 589 at 652. That it is trite that the express terms of an employment contract may be in one or several documents; andwhere several documents form the conditions of employment, they must be read together, referring toUdeagu v. BCC Plc[2008] 2 NWLR (Pt. 1071) 378. That in this case, the terms of the employment contract are contained in Exhibits C1, the letter of employment dated 2nd January 2001, C2, letter of continuation of appointment dated 2nd January 2002, C3, letter of notification of salary increase, and C4, the Employee Handbook acknowledged by the claimant on 30th January 2002, citingEvans Brothers (Nigeria) Limited v. A.S. Falaiye[2002] 47 WRN 74, where the Court held that the terms and conditions of employment contained in a booklet termed Conditions of Service and delivered to an employee with the letter of employment form an integral part of the terms of the contract of employment. The defendant accordingly urged the Court to believe the evidence of DW to the effect that a Certificate of Service (Exhibit D1)was issued to the claimant in compliance with Exhibit C4 but which he rejected due to the demand of his new employer. That the evidence of DW in this wise is unassailable.
14. Regarding issue (b), the defendant contended that the reliefs claimed by the claimant in this suit are predicated on the postulation and assumption that the defendant did not issue a Certificate of Service to the claimant pursuant to clause 40.1 of Exhibit C4, the Employee Handbook. That this is the foundation upon which the claimant has built his case.To the defendant, the claimant rejected the Certificate of Service issued to him because it did not meet the specific stipulation of the claimant’s new employer as stated in Exhibits C14 and C14A. That if the claimant did not meet this specific demand of the condition upon which his new employment was based, which is clearly outside the scope of the Staff Handbook, and his employment was consequently terminated, then the defendant is not in anyway liable; as such,the claimant’s case should be dismissed. That having debunked the assertion, it is the submission of the defendant that the claimant has failed woefully to prove his claim and as such is not entitled to the reliefs being claimed in paragraph 26(i) to (vi) of the statement of facts and the claims specified therein are misconceived and should be dismissed in its entirety. That whatever damages sustained by the claimant if at all, is self-inflicted and not due to any act or omission on the part of the defendant who has fully discharged its obligations to the claimant.
15. On reliefs 26(iii) and (v) wherein the claimant is seeking for compensation for loss of secured 10 years income and earnings from his new contract of employment with Maroct Consultants Limited, the defendant submitted that there is no certainty in the said contract of employment to entitle him to such compensation. That in Exhibit C13, clause 1.12 provided for termination of employment stating that the employment may be terminated by either party without notice during the probation period and with three (3) months’ written notice or payment of 3 months’ salary in lieu of notice after confirmation of appointment.That the claimant himself admitted under cross-examination that his appointment can be terminated at any time as stated in Exhibit C13. To the defendant, it is trite that in any employment contract except those with statutory flavor, the employer has the power and right to terminate the appointment of any employee and forwhatever cause. It is, therefore, the defendant’s submission that the employment contract purportedly granted the claimant by Maroct Consultants Limited for a duration of 10 years is not a guarantee that the employment will last for ten years hence the reliefs sought by him against the defendant is totally misconceived, baseless and should be dismissed by the Court.
16. For issue (c), the defendant submitted that the claimant by his pleadings and under cross-examination stated that the Toyota Corolla car with Registration Number JJJ 43 CQ (old CB 411 KSF) was handed over to him as his official car in 2010 by one Mrs Folasade Moronkeji, the Head of Human Resources and Administration at that material time. And in March 2016 prior to his exit interview, he handed over the keys to the said Mrs Moronkeji, the Head of Administration and Corporate Services, who in turn gave him a memo dated 14th March 2016 (Exhibit C8) transferring the ownership of the car to him as his severance benefit.He stated further that this is the company policy for senior staff and long service staff to go away with their official car.That the claimant confirmed under cross-examination that the policy is not in the Employee Handbook (Exhibit C4) and there is no circular to that effect at any time but that has been the practice in the company.The defendant debunked the evidence of the claimant and stated that by virtue of Exhibit C10A, the claimant was required to hand over all company properties to the company. There was no decision or practice whatsoever to grant the claimant ownership of the said official car at any time.To the defendant, the assertion of the claimant for the ownership of the official car is faulty on three grounds:
(1) From the several documents forming the conditions of employment of the claimant, there is no single provision or agreement that the claimant will be allowed or entitled to own his official car. There is also no circular or written document to prove this assertion.
(2) DW denied that Mrs Folasade Moronkeji is the officer to whom the claimant must hand over the official car prior to his exit or at all. DW is the Head Human Resources and Manpower Development and the one responsible for the exit interview and the handing over of the final entitlements of the claimant to him. There is no proof that the car was part of the final entitlements of the claimant and if it was so, it is DW that will sign such letter of transfer of ownership of the car to the claimant on the authority of the defendant,referring to Exhibit C10A and D2.
(3) DW stated emphatically under cross-examination that the signature on Exhibit C8, the letter dated 14th March 2016 and transferring ownership of the official car to the claimant, was not that of Mrs Folasade Moronkeji. The signature was purportedly appended for and on behalf of the Managing Director of the defendant, Dapo Apara.
17. The defendant went on that theclaimant did not subpoena the said Dapo Apara to confirm that he authorized such transfer of ownership to the claimant neither was Mrs Folasade Moronkeji called to confirm that she actually appended her signature on Exhibit C8 and that she was authorized by Mr Dapo Apara, the Managing Director of the defendant, to do so.That the failure of the claimant to call the above-mentioned people is fatal tothe case of the claimant. The defendant then urged the Court to discountenance the evidence of the claimant as regards the ownership of the car. That the defendant did not at any time transfer the legal ownership of the car to the claimant and is entitled to an order of this Court directing the claimant to return the car to the defendant. It is the defendant’s submission that extrinsic evidence is not acceptable to interpret the agreement made unequivocally by parties. That where parties have entered into an agreement, they cannot rely on extrinsic evidence in the interpretation of same, citingEzemba v. Irereme[2004] 14NWLR (Pt. 894) 241 and Nigerian Gas Company Limited v. Unuavwodo[2003] FWLR (Pt. 169) 1196-1205. That from the foregoing and as stated while arguing issue (a), the terms of the employment contract in this case are contained in Exhibits C1, the letter of employment dated 2nd January 2001, C2, letter of confirmation of appointment dated 2nd January 2002, C3, letter of notification of salary increase, and C4, the Employee Handbook acknowledged by the claimant on 30thJanuary 2002. It is thus the defendant’s submission that the assertion of the claimant that it is the company policy for senior staff and long service staff to go away with their official car without any document to back up such policy or practice is extrinsic evidence and is not admissible to vary or add to the terms of conditions of service between the parties. In conclusion, the defendant submitted that the claimant has failed tor prove his case, and that the defendant complied with the terms of its contract with the claimant; urging the Court to dismiss the claimant’s case and grant the counterclaim.
THE SUBMISSIONS OF THE CLAIMANT
18. The claimant first pointed out that:
(i) The defendant, contrary to admitted facts and documents, Exhibit D4 (the defendant’s solicitor’s letter), clause 40.1 of Exhibit C4 (the defendant’s Employee Handbook) and the admitted fact that the claimant’s employment ceased on 30th April 2016, claimed that it issued Exhibit D1 (Certificate of Service) on 17th May 2016 while Exhibit D2 (letter to Trustfund Pension) was issued on 10th February 2016, the exact date of the defendant’s letter of acceptance of the claimant’s resignation was issued, but the claimant refused to collect only Exhibit D1, because it was not certified and signed by the Managing Director.
(ii) Contrary to admitted facts and documents, the defendant without proof and contrary to its admission in paragraph 1 of its statement of defence and Exhibits C1, C2, C3, C4 and C5, claimed vide its witness (Head Human Resources and Manpower Development) under cross-examination that the defendant is never Alpha Beta Consulting Limited but has always been Alpha Beta Consulting Limited Liability Partnership.
(iii) Contrary to admitted facts and documents, the defendant vide its witness’ testimony under cross-examination, despite denial of the defendant as ever being Alpha Beta Consulting Limited, claimed ownership of Toyota Corolla Car JJJ 43 CQ formally CB 411 KSF registered and owned by Alpha Beta Consulting Limited and not Alpha Beta Consulting Limited Liability Partnership, even though the ownership particulars of the car, Exhibits C7 and C19A to C19N, were issued for Alpha Beta Consulting Limited.
(iv) Contrary to admitted facts and documents, Exhibits C1, C2, C3 C4, C5, C7 and C19A to C19N, the defendant denied Exhibit C6 that it was not issued by the defendant being Alpha Beta Consulting Limited Liability Partnership and not Alpha Beta Consulting Limited. Further to the unsubstantiated series of bare face denial, the defendant also denied Exhibit C8 and claimed that though it appeared to be issued by the defendant being in the name of Alpha Beta Consulting Limited Liability Partnership but denied it was signed by the staff of the company.
(v) The defendant though did not dispute the claimant’s claims of loss of employment from Maroct Consultants Limited and the claimant’s financial, emotional and health losses, but denied liability for the losses.
(vi) The defendant counterclaimed for the Toyota Corolla car, JJJ 43 CQ, owned and registered by Alpha Beta Consulting Limited despite denying that the defendant is not Alpha Beta Consulting Limited but Alpha Beta Consulting Limited Liability Partnership.
19. The claimant proceeded to outline what he termed to be undisputed, uncontroverted and admitted facts.
(1) The defendant agreed and admitted that the claimant was its former employee for 15 years and that the defendant issued Exhibits C1, C2, C3, C4 and C5, which are in the name of Alpha Beta Consulting Limited, referring to paragraph 1 of the defendant’s statement of defence.
(2) The defendant agreed and admitted that the claimant validly resigned his employment on 1st February 2016 vide Exhibit C9, and that the claimant’s resignation was accepted by the defendant first by email admitted as Exhibit C10 on the same day, 1st February 2016, and later by letter dated 10th February 2016 (Exhibit C10A), referring to paragraph 1 of defendant’s statement of defence.
(3) The defendant did not controvert the fact that by clause 40.1 of Exhibit C4 (defendant’s Employee Handbook), the defendant is obligated to issue the claimant’s Certificate of Service on the cessation of the claimant’s employment.
(4) The defendant agreed and admitted that by Exhibits C9, C10 and C10A, the claimant’s employment ceased on 30th April 2016, even though by operation of law, the claimant’s employment ceased on 1st February 2016 being the day of acceptance of claimant’s resignation by the defendant.
(5) The defendant agreed and admitted that while it issued Exhibit D2 (defendant’s letter to Trustfund Pension for the claimant’s entitlement) on 10th February 2016, the same day it issued the letter of acceptance of the claimant’s resignation, it decided to issue Exhibit D1 (purported claimant’s Certificate of Service) on 17th May 2016, more than three (3) months after the acceptance of the claimant’s letter of resignation vide its letter dated 10th February 2016.
(6) The defendant did not controvert facts or discredit the claimant’s evidence in Exhibits C11, C11A and C11B) that the claimant repeatedly demanded for his certificate of service from the defendant even till 29th June 2016 vide the claimant’s solicitor’s letter (Exhibit C16); that the claimant neither demanded for the Certificate of Service to be certified nor that it must be signed by the Managing Director; that the defendant did not reply to the claimant’s Exhibits C11,C11A and C11B by any means whatsoever, not even in Exhibit D4 (defendant’s solicitor’s letter of 18th July 2016) and that the defendant did not communicate to the claimant in any manner whatsoever that it issued a purported certificate of service (Exhibit D1) but it is under no obligation to certify same.
(7) The defendant did not controvert facts or discredit Exhibits C7 and C19A to C19N (purchase receipts and particulars of the Toyota Corolla car JJJ 43 CQ) owned and registered by Alpha Beta Consulting Limited but claimed ownership for Alpha Beta Consulting Limited Liability Partnership.
(8) The defendant did not controvert facts or discredit Exhibits C12, C13, C14, C14A, C15 and C18 that the claimant’s lost his employment with Maroct Consultants Limited, that the claimant lost financial income from the Maroct Consultants’ employment, that the claimant became emotionally depressed and suffered health deterioration as a result of the loss of employment income and livelihood in Maroct Consultants Limited.
20. The claimant then submitted four (4) issues for determination, namely:
(1) Considering the admitted, undisputed and uncontroverted facts, documentary evidence and the legal position on the time of cessation of the claimant’s employment with the defendant, whether the defendant is not in breach of clause 40.1 of the defendant’s Employee Handbook on the issuance of Certificate of Service as the claimant’s severance benefit.
(2) Considering the undisputed and uncontroverted facts and documentary evidence in respect of the claimant’s employment with Maroct Consultant Limited, the loss of the employment with the income and benefits and the consequential losses resulting directly from the defendant’s willful breach of the claimant’s contract of employment on the severance benefit under clause 40.1 of the defendant’s Employee Handbook, whether the claimant is not entitled to be granted all the claims in the statement of facts.
(3) Considering the patent disparity between the admitted, undisputed and uncontroverted facts and documentary evidence in this case and the substantial inconsistency, denial and concealment of facts by the defendant’s witness in respect of the defendant’s name as both Alpha Beta Consulting Limited Liability Partnership and Alpha Beta Consulting Limited at different period of time, whether the defendant’s evidence is not to be discredited and dishonoured as untruthful.
If the answer to Issue 3 above is decided in the negative then:
(4) Whether the defendant can lawfully claim ownership of the Toyota Corolla car JJJ 43 CQ considering the defendant’s claim that the defendant is Alpha Beta Consulting Limited Liability Partnership and not Alpha Beta Consulting Limited and the undisputed documentary evidence, the particulars of the Car, Exhibits C7 and C19 to C19N, that the car is owned and registered by Alpha Beta Consulting Limited.
21. On issue (1), the claimant submitted that considering the admitted, undisputed and uncontroverted facts and documentary evidence presented by parties in this case and the legal position on the reckoned time for the cessation of the contract of employment based on resignation of employee, the defendant is in clear breach of its obligation to the claimant as provided under clause 40.1 of Exhibit C4 to issue certificate of service on the cessation of the claimant’s employment. The grounds in support of this submission are:
(1) The position of law is that notice of resignation becomes effective and valid the moment it is received by the person or authority to whom it is addressed, it is even not necessary for the person to whom the notice of resignation is address to reply that the resignation is accepted, referring toKelvin Nwaigwe v. Fidelity Bank Plc(unreported) delivered 24th January, 2017 andYesufu v. Gov. Edo State[2001] 13 NWLR (Pt. 731) 517 SC.
(2) The defendant’s obligation under clause 40.1 of Exhibit C4 (the defendant’s Employee Handbook) is to issue the claimant’s Certificate of Service on cessation of service and not thereafter.
(3) By the defendant’s admission, the claimant resigned on 1st February 2016 and his employment ceased on 30th April 2016. The letter of acceptance (Exhibit C10) was issued to the clamant on 10th February 2016. The defendant’s acceptance email (Exhibit C10A) indicated acceptance on 1st February 2016. The defendant issued only Exhibit D2 (Pension letter) on 10th February 2016 but did not issue the purported Exhibit D1 (Certificate of Service) till 17th May 2016.
(4) The defendant did not controvert the fact that the claimant repeatedly demanded for the Certificate of Service by three different emails (ExhibitsC11, C11A and C11B) till 29thJune 2016 as further demand vide the claimant’s solicitor’s letter (Exhibit C16). The defendant did not mention the fact that Exhibit D1 had been issued on 17th May 2016 or at any other time and by any means whatsoever prior to this suit.
22. To the claimant, it is settled law that contracts voluntarily entered into by the parties are binding on them, and a court of law will not sanction an unwarranted departure from them unless they have been lawfully abrogated or discharged. That parties are bound by written and express terms of the employment, referring toOlarenwaju v. Afribank (Nig.) Plc[2001] 13 NWLR (Pt. 731) 691 at 712 and FGN v. Zebra Energy Ltd[2002] 3 NWLR (Pt. 754) 471 at 491. The claimant continued that cases abound as authority for the proposition that conditions of service also form part of the terms and conditions of employment, referring to Mrs Caroline Dennis Durugbor v. Zenith Bank Plc (2014) 40 NLLR (Pt. 122) 216 at 276-277,Specomills Textiles, Ikeja v. National Union of Textiles, Garment And Tailoring Workers of Nigeria[1978- 2006] DJNIC 334 at 335,Mr Apara Rasheed v. CFAO Nigeria Plc (2014) 40 NLLR (Pt. 123) 349 at 364 andUnion Bank of Nigeria Ltd v. Edit[1993] 4 NWLR (Pt. 287) at 288. That on tis basis and the defendant’s admission, it is indisputable that the defendant’s Employee Handbook, dated January 2002 is an integral part of the claimant’s contract of employment.
23. The claimant went on that by clause 40.1 of Exhibit C4 (Employee Handbook) under the caption “LEAVING ALPHA-BETA CONSULTING LIMITED”, the defendant has a duty to issue certificate of service to the claimant, which duty is not dependent on the subsistence of the contract of employment but operate as part of the severance benefit or entitlement due and accrued to the claimant after the cessation of his employment; the clause becomes effective on the cessation of the claimant’s service with the defendant; and the claimant is entitled to be issued the certificate of service at the determination of his contract of employment, that is, at the time of his resignation.The claimant then contended that the defendant did not issue the certificate of service as claimed. The claimant challenged the veracity of Exhibit D1, which the defendant claimed to have been purportedlyissued on 17th May 2016. The claimant’s contention is based on the uncontroverted facts in Exhibits D11, D11A and D11B to the effect that the defendant did not for once mention prior to this suit that it has issued Exhibit D1but the claimant refused to collect it, not even in the defendant’s solicitor’s reply (Exhibit D4) to the claimant’s solicitor’s letter of demand of 29th June 2016 (Exhibit C16/D3).
24. The claimant went on that assuming without conceding that the defendant issued Exhibit D1 as claimed on 17th May 2016, it is still his submission that the defendant is in breach of its obligation under clause 40.1 of Exhibit C4 by virtue of the clear words of the saidclause that the defendant shall issue the certificate of service at the “cessation on the employee’s service”. That the pertinent question, therefore, is when the employee’s service ceased. That the defendant expressly admitted in its pleadings(paragraph 1 of the defendant’s statement of defence) that the claimant resigned on 1st February 2016 vide Exhibit C9 and the resignation was accepted by the defendant first by email Exhibit C10 dated 1st of February 2016 and later by a letter (Exhibit C10A dated 10th February 2016). That DW, Head, Human Resources and Manpower Development, Mr. Olufemi Adewunmi Onashile, also reinforced the defendant’s admission in his testimony under cross-examination thus: “Yes, the claimant employment with the defendant ceased on 30th of April, 2016. Yes, Exhibit D1 was issued on the 17th of May, 2016”. That it is trite law that no fact needs to be proved in any civil proceeding which the parties to the proceeding or their respective agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by rule of pleading in force at the time they are deemed to have admitted by their pleadings, referring tosection 123 of the Evidence Act 2011,Aromolaran v. Oladele[1990] 7NWLR (Pt. 162) 262 at 368, Joseph Mangtup Din v. African Newspaper of Nig. Ltd[1990] LPELR-947(SC); [1990] 3 NWLR (Pt. 139) 392 andOkparaeke v. Ndrakaene &ors[1953] 14 WACA 354. Accordingly, that that by the admission of the defendant that it issued the purported certificate of service (Exhibit D1) on 17th May 2016, the defendant did not comply with the terms in clause 40.1 of Exhibit C4 by not issuing the certificate of service on30th April 2016 when the claimant’s service ceased and, therefore, the defendant is in clear breach of the term in the contract of employment. That the contention that the purported Exhibit D1 was issued on 17th May 2017 without more is not a cure to the breach of the contractual obligation in the claimant’s contract of employment, which is already occasioned by the defendant’s willful and unjustifiable refusal to issue the certificate of service on the cessation of the claimant’s service in accordance with the contract of employment.
25. What is more, that the position of law in respect of the time to be reckoned with on the cessation of employee’s resignation has been clearly decided by this Court in Kelvin Nwaigwe v. Fidelity Bank Plc delivered on 24th January 2017 to the effect thata notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. That relying on Spring v. Guardian Assurance [1995] 2AC 296 at 335 andBartholomew v. Hackney London Borough and anor [1999] IRLR 246, this Court heldKelvin Nwaigwe that:“In the appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether formal or existing…which work reference must be true, accurate, fair and not misleading to the future employer”.That in the instant case, there is an express contractual duty imposed on the defendant under the claimant’s contract of employment to issue a fair and accurate reference in form of certificate of service to the claimant and that same should be issued on the cessation of the claimant’s service. That the claimant also demanded for the reference severally from 1st February 2016 when his service ceased to 30th April 2016 and even thereafter vide the undisputed Exhibits C11, C11A, C11B and C16, which the defendant clearly refused or failed to issue or purportedly issued within the contractual time.Thus that the undisputed facts in this case are that despite the claimant’s demand for the certificate of service from the defendant as early as 30th April 2016 when he physically exited the defendant and on 2nd May 2016 when he resumed his new appointment, the defendant refused to issue same, even till 31st May 2016, before the claimant’s new employment was eventually terminated on 3rd June 2016 based on the defendant’s refusal to issue the reference.It is, therefore, the claimant’s submission that whether by the defendant’s clear admission of the time of the claimant’s cessation of service as 30th of April 2016 or by the position of law that the claimant’s service with the defendant ceased on 1st February 2016 when the claimant resigned, the defendant is in clear breach of its contractual duty to issue the claimant with his certificate of 15 years’ service with the defendant on the cessation of his service as provided under clause 40.1 of the defendant’s Employee Handbook, urging the Court to so hold.
26. Issue (2) relates to whether given thedefendant’s willful breach of the claimant’s contract of employment on the severance benefit under clause 40.1 of the defendant’s Employee Handbook, whether the claimant is not entitled to be granted all the claims in the statement of facts. To the claimant, by his uncontroverted facts and documentary evidence in this case, particularly the uncontroverted facts in Exhibits C12, C13, C14, C14A, C15 and C18 as proof in support of his claim that indeed he secured a new employment with Maroct Consultants Limited and the employment was lost consequent to the defendant’s willful breach of clause 40.1 of Exhibit C4, which resulted in financial loss of income, emotional and health deterioration, the defendant is liable for the breach and the claimant is entitled to his claim against the defendant. The grounds in support of his submission are:
(1) The defendant did not controvert or discredit the veracity of Exhibits C12, C13, C14, C14A, C15 and C18 by any means whatsoever in its pleadings.
(2) The defendant did not lead any iota of evidence to challenge or disprove that the claimant’s claim in respect of Exhibits C12, C13, C14, C14A, C15 and C18 that the claimant’s losses resulted directed from the defendant’s willful breach to issue the claimant’s Certificate of Service “on the cessation of service” in accordance with the contract of employment in Exhibit C4.
(3) By the clear wordings of Exhibits C14, C14A, C15 and C18 the defendant’s willful breach of its contractual obligation under Exhibit C4 resulted in the claimant’s loss of finance income and health deterioration.
(4) The law is settled that evidence that is relevant to the issue in controversy and that 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, citingPada Chabasaya v. Joe Anwasi[2010] 10 NWLR (Pt. 1201) 163 SC.
That it is the law as held in National Maritime Authority v. Marine Management Associates Inc. &anor[2008] LPELR-4583(CA) that “a written document referred to in a pleading becomes part of the pleadings and it is open to the court to give the document its true legal effect”.
27. To the claimant, the defendant did not deny or controvert the claimant’s averments in paragraphs 15, 16, 17, 18, 19, 20, 23 and 24 of the statement of facts by any means whatsoever or in any material particular, whether by oral or documentary evidence. It is also not in doubt that the defendant did not challenge the veracity of the claimant’s claim and documents admitted as Exhibits C12, C13, C14, C14A, C15 and C18. Rather, the defendant merely unsuccessfully tried to exculpate itself from liability by stating in paragraphs 12, 13 and 14 of its statement of defence that it is not liable without more.That evidence that is relevant to the issue in controversy and that 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, citing Pada Chabasaya v. Joe Anwasi (supra) and AG, Lagos State v. Purification Tech. (Nig.) Ltd[2003] 16 NWLR (Pt. 85).It is the claimant’s submission, therefore, that the defendant’s line of defence, which is merely to deny liability rather than discredit or challenge the evidence of the claimant in respect of the losses suffered, is therefore liable to fail since the claimant has successfully proved the defendant’s culpability against the established unchallenged exhibits tendered in evidence.
28. The claimant went on that a claim for loss of profit or loss of earnings or loss of business, however described, is within the claim for special damages, citingNational Maritime Authority v. Marine Management Associates Inc. &anor (supra) and Barau v. Cubit (Nig) Ltd[1990] 5 NWLR (Pt. 152) 630.That his claim is that the willful refusal of the defendant to issue the his Certificate of Service in accordance with the claimant’s contract of employment under clause 40.1 of Exhibit D4, which directly resulted in his loss of income/earning to the tune of N72,000,000.00 (Seventy-Two Million Naira) as the claimant’s secured basic income and earnings being the basic salary of N600,000.00 (Six Hundred Thousand Naira) per month for the secured initial 10 years term in the claimant’s new contract of employment as Regional Head, Electronic Revenue/ICT Projects with Maroct Consultants Limited. The claimant also claim damages for deteriorated health condition resulting from the devastation and depression he suffered as a result of the income lost due to the defendant willful breach of its contractual obligations. The defendant while failing to deny the claimant’s claim merely stated in paragraphs 11 of the statement of defence without proof of any sort that “the Defendant denies any award of internal generated revenue contract to Maroct Consultants Limited or any firm whatsoever by Kano State Government or the purported appointment of the Claimant as employee of the said firm”. That the facts of the award of internal generated revenue contract to Maroct Consultants Limited by Kano State Ministry of Finance is contained in Exhibit C13 and the appointment of the claimant as employee of the said firm is evident in Exhibit C12 respectively. That in so far as the defendant has failed to disprove and discredit the facts in the documentary evidence of the claimant in respect of the damages suffered by the loss of his secured income from its new employer and based on the fact that the defendant’s willful breach of its contractual duty under the claimant’s contract of employment directly resulted to the losses, the claimant is entitled to all his claim, urging the Court to so hold.
29. Issue(3) deals with whether the defendant’s evidence is not to be discredited and dishonoured as untruthful. To the claimant, by the patent disparity between the admitted, undisputed and uncontroverted facts and documentary evidence in this case and the substantial inconsistency, denial and concealment of facts by DW in respect of the defendant’s name as both Alpha Beta Consulting Limited Liability Partnership and Alpha Beta Consulting Limited at different period of time, the defendant’s evidence in respect of the admitted facts and relevant documents ought to be discredited and dishonoured as untruthful by this Court.The grounds in support of this submission are:
(1) The defendant has agreed and admitted in its pleadings and vide evidence led in Court that the defendant issued Exhibits C1, C2, C3 C4 and C5 (claimant’s letters of employment, confirmation of employment, notification of salary review, employees’ handbook and redeployment letter by the defendant as Alpha Beta Consulting Limited), referring to paragraph 1 of the defendant’s statement of defence.
(2) The defendant did not discredit Exhibits C7, C19A to C19N (purchase receipts and particulars of the Toyota Corolla car JJJ 43 CQ) which is proof that the car is owned and registered by Alpha Beta Consulting Limited, and the defendant claimed ownership of the car.
(3) However, DW (Head Human Resources and Manpower Development) under cross-examination claimed that the defendant is never Alpha Beta Consulting Limited but has always been Alpha Beta Consulting Limited Liability Partnership to discredit Exhibit C6.
(4) The law is that no witness who has given on oath two material inconsistent evidence is entitled to the honour of credibility, such a witness does not deserve to be treated as a truthful witness, referring toEzemba v. Ibeneme[2004] All FWLR (Pt. 223) 1786 SC at 1816.
To the claimant, it is trite that no fact needs to be proved in any civil proceeding which the parties admit or are deemed to have admitted. That a careful perusal of Exhibits C1,C2,C3, C4 and C5, C7, C19A to C19N, which were not challenged but admitted that the documents emanated from the defendant, will reveal that all these admitted documents are in the name of Alpha Beta Consulting Limited and not Alpha Beta Consulting Limited Liability Partnership.
30. The defendant counterclaimed for the Toyota Corolla car JJJ 43 CQ on the basis that the claimant has custody of the car without authorization of the defendant herein. However, that the defendant in one breath claimed the ownership of the car whose particulars of ownership (Exhibits C7, C19A to C19N) are in the name of Alpha Beta Consulting Limited but later recanted while attempting to falsely deny and discredit Exhibits C6 and C8 vide the testimony of its sole witness, Mr Olufemi Adewunmi Onashile, (Head Human Resources and Manpower Development), who emphatically claimed that the defendant is not Alpha Beta Consulting Limited but Alpha Beta Consulting Limited Liability Partnership. DW’s evidence under cross-examination: “The defendant is a Limited Liability Partnership, not a Limited Liability Company”. To the claimant, DW cannot thus be a credible witness, citing Ezemba v. Ibeneme[2004] All FWLR (Pt. 223) 1786 SC at 1816,Boniface Anyika & Co. Lagos (Nig.) v. Uzor [2006] 15 NWLR (Pt. 1003) 560 at 572 and Emmanuel Omozeghian v. Chief J.J. Adejarho &anor[2004] 4NWLR (Pt. 969) 33. That the only reasonable deduction in the face of the patent disparity between the documentary evidence before the Court (Exhibits C7, C19A to C19N), which are in name of Alpha Beta Consulting Limited and the testimony of DW that the defendant is not Alpha Beta Consulting Limited but Alpha Beta Consulting Limited Liability Partnership is that DW in the attempt to deny falsely the credibility of Exhibits C6 and C8 and mislead the Court as to the truth about the transfer of the car to the claimant by the defendant, decided to willfully lie, withhold and conceal vital information about the transition of the defendant from Alpha Beta Consulting Limited to Alpha Beta Consulting Limited Liability Partnership. That it is trite that the Court would presume that any evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, citingAgbi v. Ogbe[2006] 11 NWLR (Pt. 990) 65, Buhari v. Obasanjo[2005] 13 NWLR (Pt. 941) 1 at 122 and section 167(d) of the Evidence Act 2011. It is, therefore, the claimant’s submission that by the clear contradiction between the admitted documents before this Court in respect of the ownership of the Toyota Corolla car JJJ 43 CQ being Alpha Beta Consulting Limited and the defendant’s testimony before the Court under cross-examination while attempting to falsely discredit Exhibits C6 and C8 at all cost, DW’s testimony in respect of the transfer of the car is incredible, unnatural, unreasonable and improbable in view of the transaction which it describes or to which it relates as to make it easy to believe. That DW is, therefore, not a credible witness and his testimony in respect of the car should be dishonored as untruthful by this Court, urging the Court to so hold.
31. Issue (4) arises only if the answer to issue (3) is in the negative. Issue (4) is thus whether the defendant can lawfully claim ownership of the Toyota Corolla car JJJ 43 CQ.Here, the claimant submitted that in view of the patent denial that the defendant is not Alpha Beta Consulting Limited but the Toyota Corolla car JJJ 43 CQ counterclaimed by the defendant is owned and registered by Alpha Beta Consulting Limited as evident in Exhibits C7, C19 to C19N, the defendant as Alpha Beta Consulting Limited Liability Partnership cannot, therefore, lawfully claim ownership of the car.The grounds in support of this submission are:
(1) By DW’s testimony, Alpha Beta Consulting Limited is not the same company as Alpha Beta Consulting Limited Liability Partnership.
(2) By the uncontroverted facts and documentary evidence in Exhibits C7, C19 to C19N, the Toyota Corolla car JJJ 43 CQ sale receipt and the particulars, the car is owned and registered by Alpha Beta Consulting Limited.
(3) The defendant has claimed that Exhibit C8 which is the only document in the name of Alpha Beta Consulting Limited Liability Partnership relating to the Toyota Corolla car JJJ 43 CQ was not from the defendant.
32, That the defendant’s counsel while arguing the impropriety of the claimant’s custody of the Toyota Corolla car JJJ 43 CQ counterclaimed by the defendant extensively relied on the terms of the contract of employment between the defendant and the claimant as contained in Exhibits C1, C2, C3 and C4 but willfully avoided to disclose to this Court that the said Exhibits C1, C2, C3 and C4 are all in the name of Alpha Beta Consulting Limited and not Alpha .Beta Consulting Limited Liability Partnership.That the Courts have emphatically stated in a plethora of cases that the essence of pleadings is to give one’s adversary the clear and true picture of the case he is to meet at trial. It is not for the party to appropriate and reprobate as to the nature of his claim, citingHong Kong Synthetic Fibre v. Monsuru Ajibawo &ors[2008] LPELR-8646(CA); [2008] 7NWLR (Pt. 1097,Odutola Holdings Ltd v. Ladejobi [2006] 12 NWLR (Pt.996) 321 at 360, Balogun v. Adejobi[1995] 2 NWLR (Pt. 376) 131 at 158 and Bunge v. Governor of Rivers State[2006] 12 NWLR (Pt.995) 573 SC. The claimant went on that thedefendant throughout its pleadings, which is the bedrock of its counterclaim, did not avail the claimant with any fact as regards its claim that the defendant has never been Alpha Beta Consulting Limited; rather, the defendant admitted all documents relating to the claimant’s contract of employment, though in the name of Alpha Beta Consulting Limited. It is thus the claimant’s contention that in view of the patent inconsistency between the defendant’s defence and counterclaim, the defendant has clearly appropriated and reprobated as to the nature of his claim and merely created a confusion as to the claim.
33. However, that in the event that the Court decides issue (3) in the negative and finds it appropriate to believe the defendant’s testimony and claim that the defendant is not Alpha Beta Consulting Limited, then the only reasonable and logical deduction is that the defendant as presently constituted (Alpha Beta Consulting Limited Liability Partnership) cannot lawfully claim to be the owner of the Toyota Corolla car JJJ 43 CQ in view of the clear implication of the admitted sale receipt and particulars of the Toyota Corolla car JJJ 43 CQ (Exhibits C7, C19 to C19N). That it is also instructive to note that the defendant herein has never demanded for the car from the claimant prior to the suit. To the claimant, the only subsisting and valid proof before this Court is that the car is indeed owned and registered by Alpha Beta Consulting Limited and not the defendant as Alpha Beta Consulting Limited Liability Partnership. That this is the reasoning that accords with the defendant’s claim and testimony, urging the Court to so hold and dismiss the defendant’s counterclaim for the Toyota Corolla car JJJ 43 CO. In conclusion, the claimant submitted that he has been able to prove his case, urging the Court to so hold.
THE DEFENDANT’S REPLY ON POINTS OF LAW
34. In replying on points of law, the defendant submitted that the claimant was employed by Alpha-Beta Consulting Limited by a letter dated 2nd January 2001 (Exhibit C1). However, that the claimant addressed his letter of resignation dated 1st February 2016 to Alpha-Beta Consulting Limited Liability Partnership or Alpha-Beta Consulting LLP for short (Exhibit C9). That these two entities (Alpha-Beta Consulting Limited and Alpha-Beta Consulting LLP) are separate and distinct legal personalities that can sue and be sued in “its respective name”. Also, that the claimant’s claim on his service for 15 years is predicated on his having been employed by Alpha-Beta Consulting Limited on 2nd January 2001 (Exhibit C1), and Alpha-Beta Consulting Limited that employed the claimant was incorporated on 26th April 2000. That Alpha-Beta Consulting LLP to which the claimant tendered his letter of resignation was registered under the Limited Liability Partnership Laws of Lagos State on 22nd July 2010. The Partnership Laws of Lagos State was amended in 2009 to create Limited Partnership and Limited Liability Partnership. The Partnership Law of Lagos State is in Chapter P1 in Volume 8 of the Laws of Lagos State, 2015.
35. That partnership is provided for in Part 1 of the Partnership Law, Limited Partnership (LP) is provided for in Part 2 and Limited Liability Partnership (LLP) is provided for in Part 3 of the Partnership law. Section 56(4) provides that a Limited liability partnership may sue and be sued in its registered name. This gives a Limited Liability Partnership a separate and distinct legal personality and it is, therefore, different from an ordinary partnership. Section 59 of the Partnership Law deals with certificate of registration and states in section 59(4) that the certificate is conclusive evidence that the requirements of section 58 (which deals with registration) have been complied with and that the limited liability partnership is registered by the name specified in the registration document. That section 80 of the Partnership Law provides that “Nothing in this Law will be construed as precluding the registration of a registered limited liability partnership as a business name under any existing Law”. That it is on this basis that a Limited Liability Partnership may bear identical names with an existing incorporated or registered body. To the defendant, it is conscious of not straying into company law here and muddle up the issues. That the claimant has not directly challenged the legitimacy or existence of the defendant in this suit but, hoping that it has provided sufficient details on this point, thus inviting the Court to take judicial notice of the Partnership (Amendment) Law, Laws of Lagos State, 2009 and the Partnership Law of Lagos State in Chapter P1 in Volume 8 of the Laws of Lagos State, 2015.
36. The defendant went on the sometime in 2010, by legal arrangement between Alpha-Beta Consulting Limited and Alpha-Beta Consulting LLP, Alpha-Beta Consulting Limited transferred its entire undertakings, including staff and assets to Alpha-Beta Consulting LLP. This arrangement includes protection of employments on the same terms as they then existed with no loss or deprivation of any kind. That this is in line with the best labour practices as obtains in Europe especially the United Kingdom under TUPE i.e Transfer of Undertakings (Protection of Employment). That this arrangement is between the transferor (Alpha-Beta Consulting Limited) and the transferee (Alpha-Beta Consulting LLP). That no staff or any third party is part of this. That this is different from an acquisition and none of the two entities is a subsidiary of the other. That where, however, any staff has any issue with his employment, he can seek redress against the transferee. That this is the basis for the claims in this suit and that is why the defendant did not repudiate the claimant’s contract of service. That it is not correct that DW, who is also the Head, Human Resources of the defendant, testified that Alpha-Beta Consulting Limited no longer exits. That although Alpha-Beta Consulting Limited is no longer trading and does not employ any staff, it still exists and discharges its statutory obligations. Its shares were not taken over. That what DW said in his testimony before the court was that the document the claimant says transferred the motor vehicle to him was not from the company, was not signed by Mrs Folashade Moronkeji and was not authorized by the Managing Director. That curiously enough, the claimant claims that the motor vehicle was transferred to him about a month to the exit date that he had set for himself.
37. On Kelvin Nwaigwe v. Fidelity Bank Plc, the defendant submitted that the principle in the case, in so far as it relates to the exit date of an employee who resigned his appointment, does not apply in the instant case. That inNwaigwe, Mr Nwaigwe resigned with immediate effect, whilein the instant case, the claimant resigned and set his own exit date, referring to Exhibit C9. That he did not resign with immediate effect;he resigned and gave a notice of 3 months, which period of notice started to run from 1st February 2016. That the defendant had no problem with this and so accepted it. To the defendant, however, it is unable to appreciate the point that the claimant’s counsel is making withNwaigwe. In conclusion, the defendant urged the Court to dismiss all the claims and prayers of the claimant in their entirety and grant the counterclaim of the defendant by ordering the claimant to return to the defendant the Toyota Corolla Saloon Car with Registration Number JJJ 43 CQ (old Registration Number CB 411 KSF).
COURT’S DECISION
38. Given the reliefs claimed by the claimant (I note that by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed), the case of the claimant is simply that he worked for the defendant, resigned and was not given the certificate of service by the defendant as enjoined under clause 40(1) of the employee handbook (Exhibit C4), which refusal by the defendant meant a breach of its contract with the claimant and consequential loss to the claimant in terms of the termination of his employment with Maroct Consultants Limited (Maroct, for short), his new employer. To the defendant as per Exhibit D4, having resigned his employment with the defendant, “there was no longer a contract of employment between the parties”; as such “it is…impossible for [the defendant] to breach a contract that was no longer in existence”. This line of argument must right away be discountenanced. Employment rights inure at there levels. As this Court in Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017, puts it in paragraph 50:
…in labour relations, labour rights inure at three levels: pre-employment rights i.e. those rights that arise prior to the start of an employment e.g. rights inuring to job applicants; employment rights i.e. rights arising during the pendency of an employment; and post-employment rights i.e. rights inuring at the end of the employment such as pension rights…
The claimant in the instant case was employed by the defendant, worked and resigned. The defendant acknowledged these facts. The claimant is claiming a right which inured to him as per clause 40(1) of the employee handbook, a right that inures only when an employee ceases to be an employee. This is a post-employment right that inures to an employee.
39. But what is the nature of this post-employment right? In both his issues (1) and (2), the claimant referred to the issuance of certificate of service as his severance benefit. In other words, he equated the issuance of the certificate of service to a severance benefit. The question, however, is: can the issuance of a certificate of service qualify as a severance benefit? In Dr Dave Nwabor v. Oilflow Services Limited unreported Suit No. NICN/LA/552/2015, the judgment of which was delivered on 10th July 2017, this Court considered the meaning of benefit. In the words of the Court at paragraph 51:
…The Black’s Law Dictionary defines benefit as advantage, privilege, profit or gain (from something). More particularly, in employment law it means a payment or gift made by an employer. Wikipedia (at https://en.wikipedia.org/wiki/Employee_benefits as accessed on 20th June 2017), on the other hand, defines employee benefit and benefits in kind (also called fringe benefits, perquisites, or perks) to include various types of non-wage compensation provided to employees in addition to their normal wages or salaries. In other words, employee benefits are non-salary compensation that can vary from one establishment to another; often indirect and non-cash payments within a compensation package, and provided in addition to salary to create a competitive package for the potential employee…
The certificate of service is not a benefit in the sense in which severance benefits are held.
40. In Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017, this Court held thus:
…in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing…
What this implies is that the issuance of a certificate of service is a duty imposed on an employer. So there is a duty imposed on an employer to issue the certificate of service. The observance of this duty is not a severance benefit but simply a duty imposed on the employer. Incidentally, clause 40.1 of the Handbook titled “Certificate of Service” also imposed this duty when it provides as follows:
The Company will issue a Certificate of Service to any employee on cessation of service. The Certificate will state only the name of the employee, his length of service and nature of his duties. In the event of a prospective employer requiring additional information, the Company may provide a report, which may be sent to the enquirer under confidential cover.
41. What then is the nature of the duty imposed under clause 40(1)? Is it a duty that is exercisable only when the claimant makes a request or is it one that must be observed immediately upon the cessation of the employee’s employment? Clause 40(1) has three sentences. The first sentence of clause 40(1) provides that “The Company will issue a Certificate of Service to any employee on cessation of service”. By this, a duty is imposed on the defendant to issue a certificate of service to the claimant on the cessation of his service, which both parties in the instant case agreed was on 30th April 2016. See paragraph 1 of the statement of defence and Exhibits C9, C10 and C10(a). This duty crystallized on 30th April 2016 when the claimant’s resignation became effective. The second sentence of clause 40(1) i.e. “The Certificate will state only the name of the employee, his length of service and nature of his duties” merely indicates the information the defendant must stipulate in the certificate that must be issued as per the first sentence of clause 40(1); in the instant case, the certificate of service that the defendant ought to have issued to the claimant on 30th April 2016. The third and last sentence of clause 40(1) i.e. “In the event of a prospective employer requiring additional information, the Company may provide a report, which may be sent to the enquirer under confidential cover.” is necessary only when a prospective employer of the claimant needs additional information about the claimant; and here, if the defendant chooses to send the additional information, it must be under confidential cover. This third and last sentence does not impose a duty on the defendant given the use of the word “may”; and there has to be a request for it. The defendant accordingly has the discretion to send the additional information or not to send same.
42. Even when Kelvin Nwaigwe v. Fidelity Bank Plc(supra) acknowledged that “in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing”, it also noted that the “work reference must be true, accurate, fair and not misleading to a future employer”. This is necessary to avoid liability in tort as the United Kingdom (UK) cases (Spring v. Guardian Assurance [1995] 2 AC 296, Kidd v. Axa Equity & Life Assurance Society Plc & anor [2000] IRLR 301 HC (QBD), TSB Bank Plc v. Harris [2000] IRLR 157, Cox & Cross v. Sun Alliance Life Ltd [2001] IRLR 448 and Bartholomew v. Hackney London Borough and anor [1999] IRLR 246) relied upon in Kelvin Nwaigwe suggest. It is to avoid the possibility of tortious liability that the third and last sentence of clause 40(1) makes it optional for the defendant to send the additional information. So, while there is an obligation on the defendant to issue the certificate of service as per the first sentence of clause 40(1) consisting of the information indicated in the second sentence, a duty that is not depended on any request from the claimant, there is no obligation to sending any additional information as per the third and last sentence of the said clause.
43. Did the defendant discharge its duty as per the first sentence of clause 40(1)? The answer is NO. Exhibit D1, the Certificate of Service, which the defendant said it issued to the claimant and the claimant refused to accept is dated May 17, 2016, not 30th April 2016 as clause 40(1) would demand. The claimant is not even supposed to ask for the Certificate of Service as per the first sentence of clause 40(1); it should have been given to him as a matter of course on 30th April 2016. The defendant did not; as such it breached clause 40(1) in terms of its first and second sentences. I so find and hold. The argument of the defendant that it issued Exhibit D1 to the claimant and the claimant refused to accept it since it was not certified by the defendant’s Managing Director is immaterial since the defendant had already breached clause 40(1) by not issuing it on 30th April 2016. In any event, the requirement of a certified true copy (CTC) of the certificate by Maroct as per clause 1.7(iii) of Exhibit C13, the letter dated April 15, 2016 by Maroct offering the claimant a new employment with it, was actually misunderstood by the claimant. Maroct was not asking for the original copy of the certificate of service when in clause 1.7(iii) it stated that the confirmation of the claimant would depend on inter alia the “submission of a certified true copy of Certificate of Service from your last employer to back up your 15 years work experience claims”. The expectation here was that the claimant would retain the original certificate of service and transmit to Maroct only the CTC.
44. I reiterate that it is my finding and holding that the defendant breached Clause 40(1) of the Handbook in terms of its first and second sentences and so is liable for any damage that flows therefrom. By Exhibits C11, C11(a) and C11(b), the claimant requested from the defendant his certificate of service and disclosed to the defendant that he needed it to give to his new employer who requested for it. By these exhibits, the defendant knew that the claimant had a new employer. Exhibit C13 is the offer of employment to the claimant by Maroct, the new employer of the claimant. Clause 1.7(iii) of Exhibit C13 makes it very clear that the claimant’s retention of his employment with Maroct is hinged on him sending in the CTC of his certificate of service. Since the defendant did not issue one to the claimant as and when due, the claimant’s employment was terminated as per Exhibit C15 dated June 3, 2016. Is the loss of the claimant’s employment with Maroct a fallout of the failure to supply the certificate of service? The answer is YES. Exhibit C15 says that much. The defendant in the instant case is thus responsible for this fallout. I so find and hold.
45. What then is the measure of damages? The claimant argues that Exhibit C13 gave him a job certain for 10 years; as such taking the monthly basis salary of N600,000, he “is entitled to claim compensation for loss of secured 10 years’ income and earnings from his new contract of employment with Maroct Consulting Ltd”, which he puts at “N72,000,000.00 (Seventy-Two Million Naira)”. Clause 1.2 of Exhibit C13 titled “Contract Duration” provides thus: “Your initial employment duration is 10 years guaranteed, renewable for every 5 years afterwards”. By this clause, the claimant contractually had a guaranteed employment with Maroct for at least 10 years; beyond 10 years, there was no guarantee. The defendant’s submission that the employment contract purportedly granted the claimant by Maroct Consultants Limited for a duration of 10 years is not a guarantee that the employment will last for ten years hence the reliefs sought by him against the defendant is totally misconceived, baseless and should be dismissed by the Court is one that belies the expectation inherent in clause 1.2 of Exhibit C13 that the employment contract will last the said 10 years; after all expectation interest is now recoverable in law. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate), supra, Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012, the judgment of which was delivered on 22nd July 2013 and Mr. Patrick Obiora Modilim v. United Bank for Africa Plc unreported Suit No. NICN/LA/353/2012, the judgment of which was delivered on 19th June 2014.
46. The law is that where a contract of employment is for fixed term, the employee cannot be removed, except for misconduct, during the period of the term contracted; and where the contract is so determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the period of his fixed contracted term. See College of Education, Ekiadolor v. Osayande [2010] 6 NWLR (Pt. 1191) 423 and Shena Security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (Pt. 1118) 77 SC. The claimant had a job certain for 10 years with Maroct. Except for misconduct, which the none submission of the certificate of service amounted to, something that is the fault of the defendant as I have held, Maroct would not have been able to remove the claimant. Since the defendant caused this loss, this must be the measure of damages that the defendant make do to the claimant; and I so find and hold. The defendant is accordingly liable to pay to the claimant the said sum of “N72,000,000.00 (Seventy-Two Million Naira)” as claimed by the claimant. I so hold.
47. In holding thus, it is needless to consider relief (vi), the claim for “N2,000,000.00 (Two Million Naira) to the claimant as general damages for the emotional, mental depression and deteriorating medical health condition suffered by the claimant from shock and trauma upon the loss of secured income and earnings of N1,500,000 (One Million Five Hundred Thousand Naira) per month for 10 years in the claimant’s new contract of employment”. This is to avoid giving to the claimant a windfall; and I take this decision in spite of Exhibit C18 dated 1st August 2016, a medical report showing that the claimant was treated for malaria and high blood pressure between 8th June 2016 and 17th June 2016.
48. From all that I have said, the claimant’s case succeeds only in terms of the following reliefs as rephrased, which I hereby grant:
(1) A declaration that the defendant is under an existing and subsisting contractual obligation under the contract of employment executed with the claimant to issue the claimant’s Certificate of 15 years’ service on cessation of the claimant’s service of employment, the defendant having accepted his resignation and in compliance with the express provision of clause 40.1 of the defendant’s Employee Handbook dated January 2002.
(2) A declaration that the defendant’s failure, decision and refusal to discharge the existing and subsisting contractual obligation under the contract of employment executed with the claimant to issue claimant’s Certificate of 15 years’ serviceon cessation of the claimant’s service of employment, the defendant having accepted claimant’s resignation and despite several demands by the claimant is a willful breach and gross violation of the contract of employment as provided under clause 40.1 of the defendant’s Employee Handbook dated January 2002, and oppressive, wrongful and unlawful.
(3) A declaration that the claimant is entitled to claim compensation for loss of secured 10 years’ income and earnings from his new contract of employment with Maroct Consulting Ltd, whose loss directly resulted from the defendant’s willful refusal to discharge its subsisting obligation under clause 40.1 of the defendant’s Employee Handbook of January 2002 by its refusal to issue the claimant’s Certificate of 15 years’ service cessation of the claimant’s service of employment, the defendant having accepted the claimant’s resignation and despite several demands and notice of the requirement of the Certificate of Service by the claimant’s to save his new employment and income.
(4) An Order of this Court directing the respondent to immediately issue the claimant’s Certificate of 15 years’ service in the defendant in compliance with the contract of employment as contained under clause 40.1 of the respondent’s Employee Handbook dated January 2002.
(5) An order of this Court directing the respondent to pay the defendant compensation in the sum of N72,000,000.00 (Seventy-Two Million Naira) as damages for the loss of the claimant’s secured basic income and earnings being the basic salary of N600,000.00 (Six Hundred Thousand Naira) per month for the secured initial 10 years term in the claimant’s new contract of employment as Regional Head, Electronic Revenue/ICT Projects with Maroct Consultants Limited, which termination directly resulted from the defendant’s willful refusal to discharge its subsisting obligation under clause 40.1 of the defendant’s Employee Handbook dated January2002 by its refusal to issue the claimant’s Certificate of 15 years’ service on cessation of the claimant’s service of employment, the defendant having accepted his resignation and despite several demands and notice of the requirement of the Certificate of Service by the claimant’s new employer.
(6) The said Seventy-Two Million Naira (N72,000,000.00) is to be paid by the defendant to the claimant within 30 days of this judgment, failing which it shall attract interest at the rate of 10% per annum until fully paid.
49. The defendant on its part counterclaimed against the claimant for an order of this Court directing the claimant to return the official car a Toyota Corolla Saloon Car with Registration Number JJJ 43 CQ. The argument of the claimant is that the said car was formally given t him by the defendant, something the defendant denies. Exhibit C6 dated March 31, 2010 is an internal memorandum through which the claimant was handed the Toyota car in question for official duties. Exhibit C6 was issued by “Alpha-Beta Consulting Limited” and signed by Folashade Moronkeji. Exhibit C8 dated March 14, 2016 is a letter from “Alphabeta Consulting LLP” addressed to “To Whom It May Concern”, transferring ownership in the Toyota to the claimant. It is signed by Dapo Apara, for the Managing Director/CE. The argument of the defendant is that
“Alpha-Beta Consulting Limited” is different from “Alphabeta Consulting LLP”; as such there could not have been any valid transfer of the Toyota car to the claimant. In reply, the claimant contends that the two outfits are one and the same. The defendant acknowledged this much in its reply on points of law when it stated that sometime in 2010, by legal arrangement between Alpha-Beta Consulting Limited and Alpha-Beta Consulting LLP, Alpha-Beta Consulting Limited transferred its entire undertakings, including staff and assets to Alpha-Beta Consulting LLP.; and that this arrangement included the protection of employments on the same terms as they then existed with no loss or deprivation of any kind. Although the defendant sought to make a distinction between transfer and acquisition (may be to avoid Afolabi & ors v. Western Steel Works Ltd & ors [2012] LPELR-9340(SC), which held that “the purchaser of a company buys its assets and liabilities”), this did not come out clearly.
50. Also not quite clear is the argument of the defendant that although Alpha-Beta Consulting Limited is no longer trading and does not employ any staff, it still exists and discharges its statutory obligations; and thatits shares were not taken over. I am satisfied with the argument of the claimant that there was a valid transfer of the Toyota car to him. The argument of the defendant that the evidence of DW is to the effect that there was no authorization from the Managing Director for the transfer does not answer the question whether there was authorization form the Managing Director to give the car to the claimant in the first place as at March 31, 2010 when Exhibit C6 was issued. The distinction between “Alpha-Beta Consulting Limited” and “Alphabeta Consulting LLP” sought to be made by the defendant is one that is artificial and brought up just so that the defendant will not own up to its obligations. I have not been shown how “Alpha-Beta Consulting Limited” is still existing and discharges its statutory duties and yet is no longer trading or does not employ staff. As it is, I am persuaded by the arguments of the claimant that the defendant transferred the Toyota car to him. I so find and hold. The counterclaim of the defendant accordingly fails and is hereby dismissed.
51. In all, the claimant’s case succeeds in terms entered as per paragraph 48 above, while the defendant’s counterclaim fails and is dismissed.
52. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
