IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON JUSTICE OYEBIOLA O. OYEWUMI
DATE: 12TH MARCH, 2019
SUIT NO: NICN/AK/03/2012
BETWEEN
THOMAS J. ENAKHENA ESQ.
CLAIMANT
AND
BENDEL INSURANCE PLC.
(Being Sued in the Name of the Liquidator; FELIX IMAGBE OBOH ESQ.)
NATIONAL INSURANCE COMMISSION (NAICOM)
DEFENDANTS
REPRESENTATION:
S.S. Imope-Audu, and T.J. Enakhena Esq. for the Claimant
Rotji Emmanuel for the 1st defendant with him, Motunrayo Ayelabola Esq, Esan Agha, for the 1st and 2nd Defendants
JUDGMENT
It is the case of the Claimant by his sworn deposition which is in tandem with his pleadings that the 1st Defendant Company lost its operating license on the 26th June, 2013 when the 2nd defendant withdrew the said license and Felix Imaghe Oboh Esq. of Oboh & Associates, 1st Floor No. 55 Akpakpava Road, Benin City, Edo State was appointed as Receiver and Liquidator. He averred that he was employed into a managerial position in the Secretarial and Legal department of the 1st defendant on the 1st of August, 2001 and upon the acceptance of the employment, he was given the 1st defendant’s Handbook containing the term and conditions of his employment and the 1990 Main National Collective Agreement between Employers and Senior Staff of Banks, Insurance and Finance Institutions. After the completion of the probationary period, his employment was confirmed effective on the 1st February 2002, that approval was made with regards to 2003 and 2005 Collective Agreement for increment in individual salaries and allowances. That the effective implementation date of the Reviewed Collective Agreement as approved by the Board was 1st May 2006 but the 1st Defendant neglected/omitted to pay him the increase salary and other monetized allowances for the months of May and July 2006. Also, that in accordance with extant law and terms and conditions of his employment, he is entitled to annual leave and /or payment of leave allowance, same was not paid to him for five (5) years between 2007 and 2011 by the 1st defendant company and its Agent.
That sometimes on the 4th July 2011, the 1st defendant Company carried out a massive retrenchment exercise of its staff both Junior and Senior Staff, but himself, the Head of the Management team, Head of Accounts were not affected by the said exercise so he continued to perform his official duties and reported at work due to the exigencies of his office as the functioning Company Secretary/Legal Adviser and he signed the attendance register until 18thAugust 2011 when himself and the head of Account department were purportedly suspended from office even during the suspension, he performed his official duties and reported to work to monitor pending litigations of the 1st defendant and liaise with the Company retained solicitors in various pending Court cases. He continued that whilst on suspension he attended several meetings on behalf of the 1st defendant and even met with Mr. John Inegbedion one of the Directors in the 1st defendant to discuss the proprietary of the purported suspension. That during the period of his suspension, he never set his eyes nor met with the Chief Executive Officer of the 1st defendant.
He continued that he was later issued a letter dated 13th March 2012 purportedly disengaging him from the 1st Defendant’s Company, it is his further averment that he was neither given the requisite three (3) months’ notice nor was he paid in lieu of the said notice. In addition, that he was not paid his 2007 and 2011 Christmas entitlement, his redundancy benefits, which is based on his total emolument as stipulated in the terms and conditions of his employment. That he is entitled to be paid for Nineteen (19) months that is from September 2010-March 2012,(since his employment was disengaged in August 2010) having worked between the period of February 2011 and March 2012
It is also his testimony that he is entitled to the refund (as provided for in the company’s policy on staff membership of social and professional clubs and association) of his NBA practicing fees and Branch dues for the year 2011, which he bore from his pocket the fees /expenses. He concluded that the letter disengaging him was issued in bad faith and also that the caption of the letter together with its retrospective date of disengagement of 1st July 2011, was contrived to portray him in bad light as an employee disengaged on grounds of misconduct as a result of unauthorized purported disbursement of Company’s funds or misappropriation. That the 1st defendant Company was closed down without the payment of his outstanding salaries and severances benefits and not likely to open for business any longer to the full knowledge and/or consent of the 2nd defendant who is the appointer/principal of the party, Felix Imagbe Oboh Esq. Sequel to which he instructed his solicitors to serve the Managing Director of the 1st Defendant Company Pre-action Notice through Mr. John Inegbedion of Edo State Ministry of Finance Benin City after several attempts to reach the Head of Management Team to no avail., also that he served a pre-action Notice on the 2nd defendant NAICOM.
It is against this backdrop that he claims against the Defendants as follows:
A Declaration that the Claimant’s Letter of Disengagement from the 1st defendant Company dated 13th March 2012 made under the hand of its Head of Management and /or Chief Executive with retrospective effect of 1st July 2011, is wrongful, null and void same having been made is in bad faith and without regards to his terms and conditions of employment.
Further, or in the alternative
A Declaration that the 1st Defendant’s Company and /or its Agents failure, omission, neglect and/or refusal to give the Claimant the requisite three (3) months’ notice or make payment in lieu of the notice at the material time of his disengagement is wrongful, null and void same (disengagement) having been made without compliance with his terms and conditions and/or extant collective Agreement
A Declaration that the Claimant’s employment with the 1st Defendant Company notwithstanding the period of his suspension still substituted and/or is entitled to be paid his full salaries and allowance as well as redundancy benefits in accordance with the terms of employment.
An Order of the Court directing the Defendants Jointly and /or severally to pay the Claimant all his outstanding/unpaid salaries and other monetized allowances as well as redundancy benefits amounting to Five Million, Five Hundred and Ninety Four Thousand, Seven Hundred and Two Naira , Sixty Six Kobo {N5,594,702.66} which particulars of liquidated monetary claim is:
Refund of the Claimant’s Contribution to Pension Fund and NSITF (including 10% of employer’s contribution) 165,847.87
Outstanding/Unpaid Salaries and Other monetized
Allowance for 3 months as per approved Collective
Agreement (May-July) by BOD 140,114.70
Outstanding/unpaid Nineteen (19) months
Salaries and allowances (Sept 2010-Mar 2012) 1,729,000.00
Three(3)Months Basic Salary in lieu of
Notice of Disengagement (April-June 2012) 136,788.75
Unpaid/Outstanding Five (5) years
leave entitlement 437, 724,00
Xmas Bonus for Five(5) years leave entitlement
(2007-2011) based on a Month’s basic salary 227,981.25
Redundancy Benefit -11yeras of Service 2,516,827.50
Refund of NBA Annual Practicing fees
and NBA Benin Branch Dues 17,000.00
Acting Allowance 35% of Monthly
Basic salary 223,421.38
An Order of this Honorable Court directing the Defendants jointly and Severally to pay the sum of N2,000,000.00 (Two Million Naira) to the Claimant as costs/expenses of this action
An Order of this Honorable Court directing the Defendants jointly and severally to pay the sum of Two Million Naira (N2,000,00.00 only to the Claimant as general damages and/or aggravated /exemplary damages
An Order of the Court directing the Defendants to pay post-Judgment interest on the judgment sum at the rate of 10% per-months with effect from the date of judgment until the judgment debt is fully liquidated
The 1st defendant in its defence averred that Bendel Insurance had been liquidated and wound up by the Court and Receiver/Liquidator was appointed but though in liquidation, is not indebted to the claimant as claimed, it also averred that Bendel Insurance is not unionized, that the claimant was said to be disengaged and was on suspension prior to his disengagement. The 1st defendant posited further that he neither received nor saw any pre-action notice or letter written by the claimant to it and moreso, that the claimant has not complied with all necessary condition precedent to institute this action. It contended that the collective agreement is not enforceable against it as it is not a signatory to same and that the pleadings of the claimant have not disclosed any cause of action against it. It therefore urged the Court to dismiss the claimant’s claim with substantial cost
The 2nd defendant on the other hand stated that the 1st defendant operating license was withdrawn for its inability to meet the capital requirement for its operation. That the 2nd defendant is empowered to settle any genuine and verifiable debt owed by any insurance Company including the 1st defendant. They denied that the claimant was an employee of the 1st defendant. Also, admitted that the claimant was disengaged and was on suspension prior to his disengagement. It went on to state that the claimant has not submitted any claim to the 2nd defendant for settlement. That it has not done any wrong to the claimant to warrant the payment of damages in his favour.
During trial, the Claimant testified for himself as CW, he adopted his deposition on oath dated 28th January 2015, he tendered some documents which were admitted in evidence and marked Exhibit TE-TE14, the defendants also testified through One Adesola Obeya as DW1 and Oboh Felix Imagbe as DW2, they adopted their statement on oath dated 27th November 2012 and 21stFebruary 2017 respectively.
At the close of trial, parties caused their Final Written Address to be filed, the Defendants filed on the 14th November 2018 and canvassed a sole issue for the Court’s determination, the Claimant also filed his on the 7th January 2019 and submitted five(5) crucial issues; salient part of which would be discussed in the course of this Judgment.
After giving a careful consideration to the processes filed by Counsel on both divide, their written arguments and documents attached in support of their respective cases; it is my humble view that the sole issue, the consideration of which will meet the justice of this case is:
Whether or Not the Claimant has proven his case on the Preponderance of evidence to be entitled to the reliefs sought?
Before going into the main issue, the law is trite that preliminary issues must be dealt with in limine; the Court has a duty to first express in writing whether or not it agrees with the preliminary issue canvassed by a party to a case. Hence it is pivotal to the administration of justice that a party has to know the fate of his objection before proceeding with the case. See the case of Abia v. C.R.S.P.I Ltd [2007] (Vol.28) WRN 280 at 164-165 lines. 35-10(CA) It would also amount to injustice and unfair hearing to ignore any objection raised by either party to an action. It is in compliance with the forgoing that the preliminary issues canvassed by parties to this suit would be examined before delving into the substantive suit.
Learned Defence Counsel raised a preliminary issue in Paragraph 3. 1 of his written submission as to the competence of this suit as constituted as to confer jurisdiction on this Court. His first objection was hinged on the provisions of Section 417 of the Companies and Allied Matters Act (CAMA) which provides: “If a Winding-up Order is made or a Provisional Liquidator is appointed, No action or Proceedings shall be proceeded with or commenced against the Company except with the leave of the Court given on such terms as Court may impose”. Counsel cited the cases of Agro Allied Dev. Ltd v. MV Northern & Anor [2009] 6 SCM 1 at 10-11, F-1, A-F. Onwuchekwa v. NDIC [2002] 4 SCM 177 at 188, CCB (Nig) Ltd v. Mgbakwe [2003] 3 NWLR (Pt 755) 523, SBN Plc v. NDIX [2000] 3 NWLR (Pt 986) 425), Progress Bank Plc v. OK Contract Point Ltd [2008] 1 NWLR (Pt1069) 514 @529 and stated that a liquidator has been appointed and a winding-up order has been made, it is also the argument of counsel that the claimant admitted that a receiver/liquidator has been appointed, that it is not in dispute that an order of Court winding up the Company has been made and a liquidator has been appointed and gazette. He then submitted that by the Mandatory provision of Section 417 of the CAMA, a condition precedent to wit: leave, has been prescribed before proceedings or commencing an action against a Company which a liquidator has been appointed and/or winding up order made, the claimant has not fulfilled the condition precedent of obtaining leave and consequently robs this Court of jurisdiction to entertain this suit. Counsel relied on the latin maxim: “Condition Pracedent A dimpleidebet Prius Qua, Sequitur Effectus” which means “a condition precedent must be fulfilled before the effect can follow, he also cited the following cases, the Provincial Council O.S.U v. Makinde [1991] 2 NWLR (Pt 175) 613, Sajare v. Iretor [1991] 3 NWLR (Pt.179) 340; Nwora v. Nwabueze [2013] All FWLR (Pt 691) 1492) @1508, G-H.
Learned Claimant’s Counsel on the other hand replied that the Defendants’ objection at this stage is founded on a false premise, erroneous in law, or fact, mischievous and well-crafted deliberately to circumvent the just determination of this suit and to ridicule the judicial process of Court. He continued that by virtue of the rulings of this Court delivered on the 16th October and 5th November 2014 respectively which are still subsisting and the defendant did not appeal against, the objection is a smack of re-litigating over the issues of the Competence of the Court to determine this suit and by necessary implication an abuse of Court’s processes, Counsel then submitted that this Court has held that it has exclusive jurisdiction to determine the Claimant’s action as the claim relates to labour matters, or payment of his terminal benefits, notwithstanding the appointment of Felix Imaghe Oboh Esq as the 1st defendant.
It is also the submission of Learned Claimant’s Counsel as per record of this Court that upon the Claimant motion of 4th March 2014, wherein he sought the leave of the Court to sue Bendel Insurance in the name of Felix Imaghe Oboh Esq in accordance with the provisions of Section425 (1) (a) of the CAMA and to amend his statement of facts and other Court processes to reflect the name of the liquidator to Bendel Insurance and not joinder of Felix Imaghe Oboh Esq as the 1st defendant. The Court granted the Claimant’s prayer in its ruling delivered on the 5th November, 2014 and hence the defendants are estopped from adducing any contrary evidence on the issue of competence.
The position of the law is settled that a preliminary objection is raised usually where a party fails to comply with an enabling law or the rules of Court, Mohammed v. Olawunmi [1993] 4 NWLR (Pt.288) 384, Oloriode v. Oyebi [1984] 1 SCNLR 390. The first preliminary issue raised by the learned defence counsel is predicated upon the failure of the claimant to seek leave before this action was commenced in this Court as stipulated by Section 417 of the Companies and Allied Matters Act supra. At this juncture, I must emphatically state that this Court in its ruling delivered on the 5th November 2014 has addressed the objection raised by Learned Defence Counsel that no action can be brought against a Company which has been wound up or in liquidation except the leave of Court is sought as provided by Section 417 of CAMA. I am therefore surprise at this stage that the defence raised this same issue again in their written address. To do this evinces that learned defence counsel when he took over from the former counsel failed to go through the record. He equally failed in his responsibility as counsel to his client to get himself abreast of the Court proceeding, which he actually sought for and obtained the indulgence of the Court to do on the 3rd May, 2017. I now wonder why he raised the same issue already settled by this Court in its ruling of 5th November, 2014. That to say the least is an abuse of the process of this Court as submitted by learned claimant’s counsel. It is in consequent of this that I discountenanced the preliminary issue raised by the learned denfence counsel in his final written address filed on the 14th November, 2018, and adopt the ruling of this Court delivered on the 5th of November, 2014 as part and parcel of this judgment. I so hold
On the second leg of the preliminary objection, it is the argument of learned defence counsel that the pleadings and the evidence of the claimant does not disclose any cause of action against the 2nd defendant and it is the law that where a claimant’s pleading discloses no reasonable cause of action, the proper order to make is to strike out the suit, counsel relied on the cases of Buraimoh Oloriode & Ors v. Simeon Oyebi & Ors [1984]5 SC1, Thomas & Ors v. Olufosoye [1986] 1 SC 323. Counsel argued further that in determining whether a reasonable cause of action is disclosed, the Court does not scrutinize or examine documents or affidavits evidence whether from the defendant or claimant, all the Court is concerned with at that stage is whether the statement of claim standing alone discloses a cause of action that has a chance of success, see the cases of Ikenne L.G v. West African Portland Cement Plc [2012] All FWLR (Pt 642) 1747 at 1770-1771, H-F, Yare v. N.S.W.I.C [2013] 12 SCM 233 at 243, C-E. It is then the submission of counsel that the proper order to make is to strike out the suit for failure to disclose any reasonable cause of action against the 2nd defendant.
Learned Claimant’s Counsel on the other hand argued that this second ground of objection is an offshoot of the first ground, a smokescreen challenging this Court’s competence to determine this suit after the rigorous trial, he submitted that a reasonable cause of action is disclosed in the claimant’s statement of fact, paragraphs 4.5 and 6 as disclosed against the 2nd Defendant, the summation being that by the Insurance Act 2003 and the 2nd Defendant letter dated 11th October 2010 addressed to the Hon. Attorney General/Commissioner of Justice, Edo State(Exhibit N3) that the 2nd defendant elected to pay all staff of Bendel Insurance by virtue of the Provisions of Section32(4) of the Insurance Act which was pleaded and the defendants are estopped from adducing any evidence which contradicts same. However, learned counsel argued that the said letter was rejected in the course of trial but same was considered in the ruling delivered on the 5th November 2014, he then stated relying on the Supreme Court case of Uzodinma v. Izunoso & Ors [2012] Vol 211 LRCN 153 Ratio 9 at 200 AF that this Court can look at a document in its file even though not tendered or admitted while delivering its ruling or judgment if such a document will lead to substantial justice to the claimant’s action. He also cited the case of A.G Federation v. A.G Abia State &Ors [2001] 11 NWLR, part 725 Ratio 12, PP 733, paras B-E 742. Para E. Counsel concluded and submitted that the claimant’s case disclosed a reasonable cause of action against the 2nd defendant.
A cause of action simply put consists of facts which establish or gives rise to a right of action. In the Apex Court decision of Cookey v. Fombo [2005] 15 NWLR (Pt 947) 182, the Court gave meaning of cause of action as follows: “A cause of action is the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive tight to make the claim for the reliefs or remedy being sought”. In the notorious case of NEPA v. Olagunju [2005] 3 NWLR (Pt913) 604, the Court stated as follows A cause of action means;(a) a cause of complaint (b) a civil right or obligation for determination by a Court of law and (c) a dispute in respect of which a Court of law entitled to invoke its judicial powers to determine. A Cause of action is indeed a factual situation which enables a person to obtain a remedy from another in Court with respect of the injury. It matures and arises on the date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or prosecution of his legal right that has been breached. It is the factual situation that gives rise to judicial relief, it is regarded as every fact or set of facts which establish or give rise to a right of action; a factual situation which gives a person a right to judicial relief. It is claimant’s case that determines the cause of actions, see the case of Lasisi Fadare & Ors v. Attorney General of Oyo State [1982] 4 S.C 1 at 67. Suffice to say that it is the sum total of the wrong complained of which impelled a claimant to go to Court to seek redress in the cause of action. It is the bundle of aggregate of facts which the law will recognize as giving the claimant a substantive right to make the claim for the relief or remedy being sought.
It is a cardinal principle of law that to ascertain a cause of action, the immediate material a Court should look at are the writ of summons and the averments of the claim. For it is by examining them that the Court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the Court. After determining the cause of action then it is by the very averments, the Court can discern the time that a cause of action arose, See the case of Alhaji Usman Dantata v. Moukta Mohammed [2000] 7 NWL R (Pt 664) page 176. An examination of the reliefs sought by the Claimant and his averment discloses that he has a right of action against the defendants and thus a cause of action as accrued. I say so in view of the fact that he was in the employment of the 1st defendant before his employment was determined and subsequently the 1st defendant went into liquidation, his action against the 2nd defendant is predicated on the fact that the 2nd defendant is by statute now charged with the management and settlement of all the 1st defendant’s claims and liabilities including the payment of claimant’s outstanding salaries and allowances as well as terminal benefits in accordance with the extant statutes and practices as disclosed in his averments. See paragraphs 4, 5 and 6 of the claimant’s statement of facts. The claimant’s cause of action arose when he was issued the letter dated 13th March 2012 (Exhibit TE9) purportedly disengaging him from the employ of the 1st defendant and thus has to claim his terminal benefits already admitted to be paid by the 2nd defendant after verification of same by its paragraphs 3 and 4 of its statement of defence. It is on this premise that I find and hold that the Claimant has a cause of complaint/action against the defendants in this suit. I discountenanced with the defendants objection and upholds the claimant’s position that he has a reasonable cause of action against the 2nd defendant.
On the Legal status of the 1st defendant viz-a viz that of the liquidator in person of Felix Imagbe Oboh Esq, learned Claimant’s counsel submitted that Bendel Insurance being a separate legal entity notwithstanding the appointment of liquidator is not dead until it is dissolved by the Court and it is struck off from the Company’s Register at the Corporate Affairs Commission, he cited the cases of CCB (Nig) Ltd v. Alex Onwuchekwa [2000] 3 NWLR PT. 647, P65 @ Pages 73-75;, Co-operative &Commerce Bank (Nig) Plc v. Mbakwe [2002] 3 NWLR (Pt755) Ratio1 and 2, pages 527-528, Progress Bank (Nig) Plc v. Contract Point Ltd [2008]1 NWLR 515 (PT.1069) Page 529, para D-G @ P532. Counsel continued that Felix Imagbe Oboh Esq is not the Dejure Liquidator of Bendel insurance but, merely an agent of his disclosed principal and appointer (not to Bendel insurance), he cited Section 425(2)(g) of the Companies and Allied Matter Act[ Hereafter called CAMA] and that there is no time as per the record of the Court that the liquidator was joined as a party in this suit, therefore he cannot be joined as a party (as Bendel Insurance is not dead) to warrant joining him, counsel also relied on Section8(6)(b) of the Insurance Act 2003. Counsel contended further that the liquidator to Bendel Insurance cannot renounce the Claimant terms and condition of employment entered before his appointment, he relied on the case of Tanarewa Nig. Ltd &Anor v. Plastifarm Limited [2003]14 NWLR (Pt 840)at 355 Ratio9, pages 379-380, paras B-A
At this juncture, it is imperative to state that the term liquidation or winding up of company is the process whereby the life of a Company is ended and its property administered for the benefit of its creditors and members, See the case of IniOkon Udo Utuk v. The Liquidator (Utuks Constructions) Marketing Co Ltd) Anor [2009] LPELR-4322 (CA). The winding up of Company is a special form of civil proceeding which has at its main objective the termination of existence of a company however, a liquidator is no more than a person closing down a business and using any profits from the sale to pay its debts, See the case of Ogheneovo Andrew Anibor v. Economic and Financial Crimes Commission &Ors [2017] LPELR-43381 CA. The Black’s Law Dictionary 9th Edition, page 1015 defines liquidation as an act of settling a debt by payment or other satisfaction, the act of converting assets into cash especially to settle debts. The Apex Court in Okeya Trading Co v. BCCI & Anor [2014] LPELR-22011 SC; endorsed the finding of the Court of appeal in Cooperative & Commerce Bank (Nig.) Plc V O’Silva Wax Int. Ltd & Ors (1999) 7 NWLR (Pt. 609) 97; where M.D Muhammad JSC held that “…the fact of winding up of Company or the appointment of a liquidator does not itself result in the death of a Corporate body thereby removing its legal personality…” from the foregoing, thus, the 1st defendant is still responsible for any liabilities incurred whilst in existent. The intriguing question that yearns for an answer is that can Felix Imagbe Oboh Esq validly defend this action on behalf of the 1st defendant. I answer in the affirmative in view of the provisions of Section 425(1) of the CAMA which provides that the liquidator in a winding-up shall have the power with the sanction either of the Court or the Committee of inspection to bring or defend any action or other legal proceeding in the name and on behalf of the company, carry on the business of the company so far as may be necessary for its beneficial winding-up, appoint a legal practitioner or any other relevant professional to assist him in the performance of his duties. Therefore to hold that the 2nd defendant has no responsibility towards the claimant in this case is to put a ridiculously spin in the clear meaning of a liquidator or a Company in liquidation as in this instant. This is because a Company in liquidation still maintains its legal or juristic personality. It is in view of all stated above in this judgment that I find and hold that learned Counsel Felix Imagbe (The liquidator) can validly defend this suit on behalf of the 1st defendant Company already in liquidation. I so hold.
To the substantive suit, parties are in ad idem that a contractual-employment relationship of Master and Servant was existent between the Claimant and the 1st defendant before the claimant’s purported disengagement from the services of the 1st defendant. In Obanye v. Union bank of Nigeria Plc [2018] LPELR -44702 SC, the Apex Court held among other things that “Where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end. An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that the employee’s only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. This, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only…”
At Common law ordinarily, a master is entitled to terminate his servant’s employment for good or bad reason, or for no reason at all. Consistent with this principle, the Court will not impose an employee on the employer. Hardly does the Court Order for specific performance of contract of employment, it is an aberration that is rarely made, See the case of Ujam v. I.M.T [2007] 2 NWLR (Pt 1019) 470) at 489, paras B-D (CA).
It is the Claimant’s grouse that he was appointed as an Assistant Company Secretary (Legal Manager II) in the 1st defendant Company vide the letter dated 1st August 2001, Ref no: BICP.1882/14 (Exhibit TE) and his appointment was later confirmed vide the letter dated 11th June 2002 with effect from 1st February 2002. That whilst in the employment of the 1st defendant he received commendation (Exhibit TE4) for his outstanding performance. He was however suspended by the 1st Defendant vide the letter dated 10th August 2011 on an allegation of “misappropriation and/or unauthorized disbursement of Company’s fund leveled” (Exhibit TE7) and subsequently he was issued a letter dated 13th March 2012, disengaging him from the 1st defendant’s employment with retrospective effect from 1st July 2011 (Exhibit TE9), it is consequent upon this that he filed this suit in this Court.
With regards to relief A, it is the contention of the claimant that the letter of disengagement from the 1st defendant Company dated 13th March 2012 made under the hand of its Head of Management/or Chief Executive with retrospective effect of 1st July 2011 is wrongful null and void same having been made in bad faith and without regards to the terms and conditions of employment. It is the submission of the Claimant’s counsel that the claimant as per record of this Court pleaded not only the facts in Paragraph 24 (a) of his statement of fact but also adduced oral evidence by tendering of Exhibit TE9 as well as the 2005 Collective agreement which by the board resolution of the 1st defendant (Exhibit TE5) was incorporated as part of the claimant’s term of employment. In defence the defendant adduced that the 2005 Collective Agreement is not enforceable against it as it is not a signatory to the agreement. It is clear from the record that exhibits TE1(i.e. Bendel Insurance Co. Ltd terms and conditions of service and 1990 Collective agreement) and Exhibit TE5 are the Collective agreement between The Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) which the 1st defendant is a member of and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) for the years 1990 and 2005. It is a long settled position of the law that a claim is circumscribed by the reliefs claimed; and the duty of a claimant is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. And in several decisions of the Court of appeal as well as this Court, it has been held that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, judgment was delivered on 21st February 2017, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. The Court of appeal in Mighty Plastic Industries Ltd v. Okeke [2016] LPELR- 41034CA, Oredola JCA, reiterated the well settled principle of law that where an employee complains of a wrongful termination of his employment he has the onus of placing before the Court his terms of employment and show the Court how his employment was wrongfully determined and not the other way round. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. The claimant in this case has complied with the first arm of the onus placed on him by placing before the Court exhibits TE, TE1 and TE5, id est his letter of appointment, the terms and conditions of service of the 1st defendant and the collective agreements. However, the defendants are denying the collective agreement.
To start with, by the Black’s law dictionary, the 9th Edition at page 299, A collective agreement is defined as ”A contract between an employer and a labour union regulating employment conditions, wages, benefits and grievances”. It is noteworthy that by Section 254C (1) (j) (i) of the 1999 Constitution as amended, this Court is vested with jurisdiction to interpret and enforce collective agreement. An agreement that can be interpreted and applied cannot thereby be just a gentleman’s agreement. It must and does command a status higher than being a gentleman’s agreement to be tossed around. The process through which a collective agreement is arrived at is the collective bargaining process. So the collective agreement and collective bargaining agreement in practice mean one and the same. It stems from the right of freedom of association. This Court by Section 254C of the 1999 Constitution, as amended, is also enjoined to apply conventions ratified by Nigeria. ILO Conventions 87 (dealing with freedom of association) and 98 (dealing with collective bargaining) have been so ratified by Nigeria. The learned authors B. Gernigon, A. Odero and H. Guido in their piece, “Collective Bargaining” in International Labour Standards: A Global Approach, 75th anniversary of the Committee of Experts on the Application of Conventions and Recommendations, First Edition 2002 at pp. 41 – 51 especially at pp. 49 – 50 posit that collective bargaining as governed by Convention 98 evinces that the right to collective bargaining is a fundamental right; it is a right of employers and their organizations, on the one hand, and organizations of workers, on the other hand (in the absence of workers’ organizations, representatives of workers may assume this right).
Now it is obvious from all stated above that the 1st defendant does not have to be a sole signatory to exhibit TE5 to make it applicable to it in so far as it is a member of NEABIAI it is binding on it and all other members of the NEABIAI. A follow up question here is assuming without conceding that the 1st defendant is not a signatory to the collective agreement, why comply with the New Salary Structure of Staff of the Company in line with the New Collective Agreement, i.e. exhibit TE5 vide a Board Resolution dated 2nd August, 2006 wherein it agreed at clause 5 of the Resolution that;
“5. Implementation of Collective Agreement
Following an undertaking executed jointly by Management, ASSBIFI and NUBIFIE for and on behalf of the entire staff, to generate revenue to meet salaries and other operational costs, as and when due, without recourse to government for financial assistance, it was resolved that the implementation of the 2003 and 2005 Collective Agreements be approved with effect from 1st of May, 2006 ” (Underline mine)”.
It is obvious from the above captured clause of the 1st defendant’s Board resolution of 2nd August 2006 the 1st defendant approved the implementation of the 2005 collective agreement effective from 1st May, 2006. The 1st defendant having approved the 2005 Collective agreement, cannot turn around and resile from its agreement at this stage. The implication of which is that the 2005 coollective agreement, i.e. exhibit TE5 is binding on the 1st defendant. I therefore, discountenance with the argument of the learned defence counsel and find that the collective agreement of 2005 forms part of the terms of the claimant’s contract of service. I so hold.
It is learned claimant Counsel’s argument that by Section 11(7) and 11(9) of the Labour Act 1974 which clearly makes it mandatory for the 1st defendant Company to pay the claimant’s three months’ salary on or before the expiry of the notice, or the three months’ salary in lieu of notice. He continued further that the reasons adduced by the defendants for the failure or refusal to give the claimant requisite notice or make payment in lieu of notice is irrelevant as the 1st defendant did not give the adequate notice before termination, Counsel relied on FGN v. Zebra [2003] Volume 105 LRCN S/C 360 Ratio 6, Chukumah v. Shell Petroleum Development Company of Nigeria [1993-1994] ANLR 131 at page 148 Ratio 3. Learned Defence Counsel on the other hand contended that all through the evidence in chief of the claimant, it is obvious that the claimant’s complaint is that he was not given requisite notice and was not paid the equivalent salary in lieu of notice, counsel argued that this is not supported by any documentary evidence tendered by the claimant himself, he noted further that the record of this Court shows that this suit was not filed not long after the letter was authored and before the Company’s acquisition can be completed that even under cross examination the claimant admitted that prior to his suspension, he was queried and he responded to same, he concluded that it is obvious that the claimant’s claim cannot stand in the face of the pleadings and evidence before the Court. It is pertinent for me to say clearly that the Labour Act supra only applies to the category of staff who fall in the category of the term Workers (i.e. clerical staff or artisans, junior staff) by virtue of Section 91 of the Labour Act. The claimant in this suit by virtue of Exhibit TE dated 1st of August, 2001 was employed as an Assistant Company Secretary, Legal Manager and thus not contemplated under the category of workers under the labour Act. Whereas as a senior employee, the claimant’s terms of employment is governed vide the 1st defendant’s condition of service and collective agreement which provided for the period of notice upon termination at Clause 5 [e] at page 6 of exhibit TE1 and Article 4 clause (ii) (d) at page 23 of exhibit TE5. In other words the claimant’s claims for period of notice upon termination cannot be considered under the labour Act. I therefore discountenance the argument of claimant’s counsel in this regard.
Next question to answer is, was the claimant’s employment terminated in accordance with the terms of his employment? With regards to the claimant’s termination, it is evident from Exhibit TE9 (letter dated 13th March 2012) titled RE: Implementation of Mr. Governor Approval-Unauthorized Disbursement of Company’s Fund issued to the claimant under the hand of One Egiebor M.E (Mrs) the Head (Management Team) , Paragraph 4 thereof :
“Given the fact that the operations of the Company has been brought to zero level; your service to the Organization is no longer required with effect from 1st July, 2011”.
The term services no longer required connotes disengagement /termination from the employment of the 1st defendant. Whilst the term “disengagement” means laying off, withdrawal, retrenchment or other exercise as opposed to dismissal, see the case of Omidora v FCSC [2007] 14 NWLR (Pt 1053)17 at 35, Paras G-H (CA).. Having stated supra that an employer has the inherent right to terminate the employment of his employee, this however, must be done within the confines of the terms and condition regulating the employee’s appointment; where such act is done without compliance with the terms and conditions of employment, such termination is usually not tolerated by the Courts and are without hesitation declared wrongful and appropriate measure of damage is awarded such employee, See the case of Keystone Bank Limited v. Micheal Femi Afolabi [2017] LPELR-42390 (CA), Partick Ziideeh v. RSC [2007] 3 NWLR (Pt 10022) 554 at 577, Isheno v. Julius Berger Nig Plc [2008] 6 NWLR (Pt1084)582 at 609. In employment relations, it is not sufficient for the employee to contend that his employment was abruptly terminated, he has the onus to establish the way and manner the wrong was done by way of cogent and credible evidence. This forms the crux of the decision of the Courts in these case law authorities; Union Bank v. Salaudeen [2017]LPELR-43415 (CA); Ahmed v. Abu &Anor [2016]LPELR-40261 (CA; Audu v. Pertroleum Equalization Fund (Management) Board &Anor [2010] LPELR-3824 (CA); Cadbury Nig Plc v. OLubunmi O. Oni[2012] LPELR-19821 (CA),), Nig Gas Co .Ltd v. Dudusola [2005] 18 NWLR (PT957) 292, Okomu Oil Palm CO Ltd v Iserhienrhien [2001] 6 NWLR (Pt710) 600 ..
In prove of that the claimant contended that his employment was terminated without strict compliance with Exhibit TE1 (the Bendel Insurance Co. .Ltd, terms and conditions of service for the senior staff of Bendel insurance Co Limited and the 1990/2005 Main Collective Agreement between the Nigeria Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Institutions). It is clear from the claimant’s case that he was appointed as a Senior staff as evinced in Exhibit TE and he remained a Senior staff as at the time his employment was determined by the 1st defendant. It is also plain on record that termination of his employment was given retrospective effect from 1st July 2011, contrary to exhibits TE1 and TE5. Now, notwithstanding the employer’s power to determine the employee’s employment in accordance with the terms and conditions of service, can the 1st defendant terminate the claimant’s employment with retrospective effect? The answer is found in the latin maxim Lex prospicit non respicit meaning law looks forward and not backwards, see the recent case of Akinbola v. Ministry for FCT &Anor [2018] LPELR-45848(CA and the case of Cosmos C. Nnadi v National Ear Care Centre &Anor[2014] LPELR 22910 CA, It is premised on the above position of the law as well as the provision of the claimant’s contract of employment which do not align with the retrospective effect of his termination that I find that the termination of the claimant’s employment on 13th March 2012 with effect from 1st July 2011 is wrongful. I so hold
Regarding the claimant’s claim that the 1st defendant Company and/or its agent’s failure, omission, neglect and/or refusal to give him the requisite three (3) months’ notice or make payment in lieu of the notice at the material time of his disengagement is wrongful, null and void, was made without compliance with its terms and conditions/or extant collective agreement. The law is that parties are bound to the agreement that they freely entered into. Also, where there is a written provision for terminating the contract of employment as in the present case, and there is even a breach of the written provision, what the employee will be entitled to would be salary for the period of notice which the employer would have given as notice to terminate the employment of the employee, See the case of Obanye v. Union Bank supra, Gabriel Ativie v. Kabel Metal Nig. Ltd [2008]LPELR-591 SC, Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871 (CA).
From Paragraphs 5 of the Claimant’s appointment letter (Exhibit TE) states that: “This appointment may be terminated by either party by giving one month in writing.”
“Also, Clause 5(e) of exhibit TE1 provides that; “Appointment of permanent member of staff may be terminated by either the staff or the Company on the giving of a month’s notice or payment of a month’s salary in lieu of notice”.
Article 4, Part II (Section1) (clause ii (d)) of the 2005 Main Collective Agreement between the Nigeria Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Institutions provides
An Employee whose services has been terminated under the provisions of this paragraph shall nevertheless be entitled to one-month notice in case of confirmed Employees or salary in lieu, in addition to other terminal benefits that may be due to him.
In view of the above stated, it is evidently clear that the 1st defendant upon the termination of claimant’s employment, shall be entitled to one month’s notice in writing or the payment of one month’s salary in lieu of notice (also disclosed in Paragraph 5 of Exhibit TE, TE1 and TE5). The 1st defendant must of necessity give a notice to the claimant or alternatively a salary in lieu of notice and all entitlement must be paid. The 1st defendant stated vide Exhibit TE9 that the claimant’s employment was terminated in view of the magnitude of offence levied against him, the claimant has earlier been suspended by (Exhibit TE7) on the allegation of misappropriation and/or unauthorized disbursement of the Company’s fund and this however constitutes a misconduct by the terms and conditions of his employment as highlighted above. It is glaring from the evidence before the Court as disclosed in Exhibit TE and TE1 that the claimant is entitled to one-month notice. From the circumstances of this case and the clause adumbrated supra, I find that the failure of the 1st defendant to issue the claimant the requisite notice of one month or salary in lieu of notice upon disengagement is wrongful. Therefore, I also find that the claimant is entitled to be paid One month salary in lieu of notice prior to the issuance of Exhibit TE9 on him. It is upon the basis of Exhibit TE12 (the last salary earned) that I find that claimant is entitled to one month salary in lieu of notice (which was not issued to him) in the sum of Eighty-Eight Thousand, Two Hundred and Eighty-Seven Naira and Fifty Kobo [N88,287.50]. I so find and hold.
On Relief B, it is also the contention of the claimant that his employment with the 1st defendant company notwithstanding the period of the suspension still subsisted and/or is entitled to be paid his full salaries and allowances as well as redundancy benefits in accordance with the terms of employment, Learned Claimant’s counsel submitted as per record that the claimant was suspended on the 18th August 2011 (Exhibit TE7) pending the setting up of an investigation panel which was not set up, counsel contended that from the pleadings of the claimant and the evidence his suspension elapsed by efflusion of time (after six months) in accordance with the terms of employment when his employment was terminated therefore he is entitled to his full salaries, allowance and terminal benefits, he argued that the defendants did not adduce documentary evidence to the payment of the salaries and allowance. DW2 only adduced oral evidence in that regard as disclosed in paragraph 7 of his sworn evidence. Learned Defence Counsel on the other hand contended that the claimant’s claim is unfounded, gold-digging and extremely ridiculous that under cross-examination he testified admitting that by the condition of service he was suspended and during suspension he could be placed on half basic salary, Counsel cited University of Jos v. Ikegwuoha [2013] All FWLR (Pt.707) 641 at 655, B-F. In considering the issue of claimant’s suspension, I have recourse to the position of the apex Court Per Adekeye J.S.C in the case of Longe v. F.B.N Plc [2010] 6 NWLR (Pt1189) 1 at 60 paragraph C-D, where she held thus:
“Suspension is usually a prelude to dismissal/termination from an employment. It is a state of affairs which exists while there is a contract but there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operate to suspend the contract rather than terminate the contractual obligations of the parties to each other,”
Now the law is that an employer generally has the right to discipline an erring staff, see the cases of Shell Pet Dev. Co. ltd v. Omu [1998] 9 NWLR (Pt 567) 672 , NEPA v. Olagunju [supra]. The law is that employers cannot suspend an employee without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself to assess its own damages for employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. I have held that an employer has a right to discipline its employee by suspending him to allow it conduct proper investigation into an allegation leveled against its employee, however, the Court concerns is whether or not the power to do so is vested in the employer and this could be found to be so by an examination of the terms and conditions binding the employer and employee. I found in Clause 10(d) of the terms and condition of service for senior staff of Bendel Insurance Company Limited (Exhibit TE1) that:
“In case of gross misconduct or serious neglect, the company may interdict and suspend a staff member pending the result of investigation into his misconduct or serious neglect. During the period of investigation, the staff concerned shall be entitled to be paid half of his basic salary. If the interdiction or suspension is not followed by dismissal or severe disciplinary action, the staff member shall be reinstated to his post and shall be paid his full benefit for the period during which he was interdicted or suspended”
Also Article 4 Clause (iii) (a, b and d) of exhibit TE5 also provides that;
“a. If an employee is suspected of dishonesty or any other serious misconduct, he will be suspended from duty for a period not exceeding six months during which investigations shall be concluded. However, if the investigations are not concluded within six months, the Employee shall remain suspended until such a time that the investigations are concluded;
b. During the period of suspension, the Employee shall, provided he complies fully with conditions stipulated in (c) below, be paid half of his basic salary and full transport, housing and utility allowances and he shall be entitled to usual medical treatment. If after investigations he is exonerated, he shall be recalled and the balance of his basic salary and any other entitlements due to him shall be made good to him from the date of suspension. If however, the employee is found guilty, he shall be dealt with in accordance with the appropriate section of the Disciplinary procedure.
d. Unless where it is obvious impracticable, an employee on suspension shall be required to report each working day (morning and afternoon) for 2 hours to an official designated by the employers, and shall sign for such attendance”
It is deducible from the foregoing that an employee shall not be suspended for a period not exceeding six months and that he shall be paid half of his basic salary and full transport, housing and utility allowances and he shall be entitled to usual medical treatment. That the employee so suspended shall be required to report each working day (morning and afternoon) for 2 hours to an official designated by the employers, and shall sign for such attendance.
The Claimant vide Exhibit TE7 was suspended on the 18th August 2011, his suspension was sequel to a query issued on him on the 4th July 2011 and reply which he wrote on the 6th July 2011, the grounds upon which he was suspended was predicated on; “allegation(s) of misappropriation and/or unauthorized disbursement of Company’s fund leveled”. It is lucid from the above stated Exhibits TE1 and TE5 that the claimant was entitled to half of his basic salaries and full transport, housing and utility allowances and he shall be entitled to usual medical treatment for the period of suspension that is from 18th August 2011 till when his employment was determined that is 13th March 2012. The claimant by paragraph 20 of his amended statement of claim averred that despite his purported suspension, he continued with his official duties in the service of the 1st defendant. The 1st defendant in denial of this averment pleaded vide paragraph 12 that the claimant never performed any duties during the period of his suspension until he was finally disengaged. It is the law that he who assert must prove. See the case of Oredola Okeya Trading Co &Anor v Bank Credit & Commerce International &Anor in Re Mr Sikiru Amolegbe & Anor [2014] 8 NWLR (Pt 1408) 76. The claimant in this case has by exhibits TE8 and TE13 which are the letters he received from one Joe Omare & Co intimating him to make representation for the 1st defendant in Court. Also, in the letter dated 21st January, 2011, he was invited by a letter written from the office of the Attorney General of Edo State to come for a pre trial conference, this was endorsed to the claimant by his boss who signed on the 24th January, urging him to ensure justice is done to that case. It thus goes without saying in view of these documentary evidence that claimant’s whilst on suspension was working for the claimant. CW admitted under cross-examination that by the contract of service he is entitled to half of his salaries for the period of suspension. I noted that the claimant’s suspension was for a period of 7 months, hence he is entitled to be paid half of his basic salary for the said period. There is nothing on record to evince that the claimant was paid during the period he was on suspension, the defendants did not adduce evidence contrary to the claimant’s claim. See the case of Peugeot Automobile Nigeria Ltd v. Oje &Ors [1997] LPELR-6331(CA), Union Bank v. Saludeen [2017] LPELR-43415 CA. I therefore resolve this issue in favour of the claimant by holding that claimant was not paid for the period of suspension, hence he is entitled to half of his basic salary. Claimant’s basic salary per exhibit TE12 is N45,596.25 half of this amount is N22,798.13 multiplied by 7 months of the period he was on suspension making the sum of One hundred and fifty nine thousand, five hundred eighty six naira, eight seven kobo.[159,586.87]. I so find and hold,
The other side of his relief seeking for redundancy benefits in accordance with the terms of his employment. Redundancy is a mode of removing of an employee from service when his post is declared “redundant” by the employee. It is not a voluntary or forced retirement, and it is not a dismissal from service. It is a procedure where an employee is quietly and lawfully relieved of his post, such type of removal from office does not usually carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee so declared. Now is the claimant’s employment terminated on the ground of redundancy? In answering this recourse is had to exhibit TE9 particularly at paragraph 4 that states thus “Given the fact that the operations of the Company has been brought to a zero level, your service to the organisation is no longer required with effect from 1st of July, 2011” A careful reading of all the processes before this Court reveals that the 1st defendant is in liquidation, however when the claimant’s employment was terminated, the 1st defendant was a going concern, I say so in view of the fact that there is nothing on record to evince that at the time the claimant’s employment was terminated, the Company, its operation were brought to null or it was insolvent and moreso, he was not expressly declared redundant but on the grounds that his service to the organization was no longer required. By Isheno v. Julius Berger Nig. Plc [supra], in labour relations, retirement and declaration of redundancy cannot happen simultaneously, therefore no employee is entitled to both retirement and redundancy benefits at the same time. The claimant’s employment having been terminated simplicter and not on the ground of redundancy as he claims, his claims for redundancy fails. I so find and hold.
On Relief C, the claimant is claiming for an order of the Court directing the defendants jointly and/or severally to pay him all his outstanding/unpaid salaries and other monetized allowances as well as redundancy benefits amounting to N5,594,702.66 (Five Million, Five Hundred and Ninety Four Thousand, Seven Hundred and Two Naira, Sixty-Six Kobo). I have just held supra that claimant was not declared redundant and thus he is not entitled to any redundancy benefit. Hence, his repeated claim for redundancy is frivolous and thus discountenanced.
Now, regarding his other claims under relief C, Learned claimant’s counsel submitted at page 12 of his final written address that the claimant not only pleaded facts but also particularized each item that is on his claim for refund of pension contribution, that the claimant for explicable reason is no longer disposed to pursuing this claim. Now generally speaking, a party has and reserves the right to at any stage of the proceedings in a case presented by him before a Court to withdraw and or abandon any part of all the claims before judgment. The abandonment must be express and precise on what was abandoned by the party, see the case of Haruna v. Ojukwu[1991] 1NWLR (Pt 165) 53, Amosun v.INEC &Ors [2010] LPELR-4943 (CA). It is in view of this that I find and hold that the claimant’s claim for Claimant’s Contribution to Pension Fund and NSITF (including 10% of employer’s contribution) in the sum of One Hundred and Sixty-Five Thousand, Eight Hundred and Forty Seven naira, and Eighty-Seven Kobo [165,847.87] fails, same having been abandoned and thus dismissed,
On unpaid salaries between May and July 2006, it is the law of long standing that for a party to succeed in his claim of this nature he has to specifically and strictly prove same. See the case of Agunwa v. Onukwe [1962] 1 All NLR 537, Shell B.P v. Cole [1978] 3 SC 183, W.A.E.C v. Koroye [1978] 2 SC 45, Renolds v. Rokonoh [2005] 10 M.J.S.C 159. It is also fairly settled law that special damages must be particularized and proved strictly, the claimant must prove special damages he claims unless admitted by the defendant. See the case of Comet Shipping Agencies Nig. Ltd v. Babbit (Nig.) Ltd [2001] LPELR-10082 (CA), L.S.D.P.C v. Foreign Finance Corp [1987] 1 NWLR (Pt.50) 413. On what constitutes special damages, the Court in Udeagha v. Nwogwuguw[2013] LPELR 21819 CA stated that ; “The determination of what constitute special damage is therefore not a matter of conjecture, assessment or estimation by the Court…”
Counsel argued that the claimant by Paragraphs 13-16 of his statement of claim pleaded the fact regarding this non-payment of outstanding salaries and allowances, that he has also adduced evidence vide paragraphs 14-16 of his written statement on oath that he is entitled to the sum of One Hundred and Forty Thousand, One Hundred and Fourteen Naira (N140,114.00). Counsel contended that Paragraphs 5 and 8 of DW2’s testimony is evasive and there is no material evidence before the Court to challenge the claimant’s entitlement thus the claimant is entitled to the said sum.
Learned counsel also submitted on the outstanding salaries/allowances for nineteen (19) months claimed by the claimant that same was pleaded in Paragraph 24(c) of the statement of fact and oral evidence adduced in support of same as well as documentary evidence as disclosed in Exhibit TE12. The 1st defendant by paragraphs 11, 17 and 19 of its statement of defence, averred that in furtherance of the agreement between the management and staff of the Company which includes the claimant, full and final payment of all staff salaries and allowances, and all their terminal benefits would be paid. It is right to say taking a cue from the foregoing paragraphs of the defendant’s pleading, that the said sum was not controverted by the defendants as it admitted to settle all the 1st defendant’s staff. The 2nd defendant’s witness equally admitted by paragraph 4 of her sworn deposition to pay all verifiable debts owed by the 1st defendant. It is thus obvious that the defendants are not controverting claimant’s claim for his unpaid salary which is from September 2010 till August 2011, which is a total of 12 months as opposed to 19 months alleged by the claimant. Therefore, it is on this basis that I find that claimant is entitled to 12 months’ unpaid salary. By exhibit TE12, claimant’s August salary and allowances is N88,257.50, this multiplied by 12 months is the total sum of N1,059,090.00. [One million, fifty nine thousand, and Ninety naira only]. I accordingly award the claimant 12 months’ unpaid salary in the sum of N1,059,090.00. I so hold.
Claimant is also claiming for 3 months unpaid salary after the implementation of the collective agreement in the sum of N140,114.00. In prove of this claimant tendered exhibit TE5, the collective agreement and the Board approval for payment of the new salary structure by the Board at their meeting of 2nd August 2006 which gave the effective that for implementation as 1st May, 2006. He equally tendered a new tabulated salary structure for its staff in line with the new collective agreement. Claimant’s name is number five on the new salary structure with his new salary put at N92,244.00. However claimant failed to substantiate this claim, in that he failed to show how he arrived at the sum claimed. He equally failed to convince me that he was not paid any salary at all for the three months or that he was not paid the difference in the increment. I have reasoned above that this type of claim has to be strictly proved. I find that claimant has fallen short of this requirements, it is thus discountenanced.
Claimant also claims unpaid outstanding five years leave entitlement for the period of 2007 -2011. It is also the contention of counsel that upon the defendant’s failure to challenge same, the claimant has averred vide paragraphs 23(c) and 23(d) of the statement of fact, that by Exhibit TE(that is the letter of appointment) and Articles 3 and 6 of Exhibit TE5( 2005 Collective Agreement) at pages 41 and 50. A cursory look at exhibit TE5 at Article 3 states that “paid annual leave shall be granted to all employees for every completed twelve months service subject to the exigencies of service” Article 6(g) provides that leave Allowance shall be paid at 16% of annual basic salary. There is nothing on record controverting same. I found that 16% of claimant’s annual basic salary is N87,544.08 multiplied by 5 years is the sum of N437,720.04. I therefore, find that the claimant is entitled to be paid his outstanding leave allowances in the sum of N437,720.4. I so find and hold.
On the Christmas Bonus for five (5) years from 2007 to 2011. It is the argument of learned claimant’s counsel that the claimant is entitled to be paid Xmas bonus as averred in his Paragraphs 24(a) and 25(a) of his statement of claim and written deposition on oath respectively. In buttressing same, claimant tendered Exhibit TE and relied on Article 14 of Exhibit TE5. A cursory look at exhibit TE reveals that the claimant is entitled to one month basic salary as his Christmas bonus. The defendants failed to challenge this claim. Claimant having canvassed evidence in prove of his unchallenged evidence, I find that claimant is entitled to the sum of Two Hundred and Twenty Seven Thousand (N227,981.25) for the outstanding Christmas bonus for five [5] years as claimed. I so find and hold.
Learned counsel also argued on the Claimant’s redundancy benefit that same was averred vide paragraph 23(c),(d) and 24(a) of the Statement of Fact, Exhibit TE5 and TE9, he argued that the claimant and some other employees of Bendel Insurance lost their jobs due to and 1st defendant’s failure to re-capitalize the company via merger and acquisition culminated the withdrawal of Bendel Insurance license and appointment of liquidator by the 2nd defendant. I have held earlier that the claimant was not made redundant as at the time of his disengagement by the defendants hence his claim for the sum of N2,516,827.50 (Two Million, Five Hundred and Sixteen Thousand Eight Hundred and Twenty-Seven, Fifty kobo ) only being his redundancy benefits fails.
On claimant’s claim for Acting Allowance of 35% of monthly basic salary. He posited that the documents on record reveals at exhibit TE13 that the claimant vide a letter dated the 8th of February, 2011 was appointed as the Acting Company Secretary/legal Adviser with effect from 31st of February, 2011, discloses that claimant acted as Company Secretary/legal adviser, wherein he was informed of his entitlement to all salaries, allowances and other pertaining allowances to the office in accordance with the 1st defendant’s terms and condition of service including the 2005 collective agreement. In prove his claim claimant tendered exhibit TE5 2005 wherein Article (e) provides thus;
“Where an employee is called upon to perform duties in a higher grade other than in a training on the job capacity of a specified duration in which case he shall be so advised in writing, the employee shall be paid an acting allowance equal to 35% of his monthly basic”
From the above I find that the claimant is thus entitled to his acting allowance that is 35% of his monthly basic salary which amounts to the sum of N15,958.6. I therefore resolve this claim in favour of the claimant and award the sum of N15,958.6 as 35% of his acting appointment for 6 months of his acting appointment will give a total of N95,751.6. 1st defendant is to pay the claimant the sum of N95,751.6 as his acting allowance for 6 months. I so find and hold.
Counsel on the Refund of the Claimant’s NBA Practicing fees and NBA Benin Dues argued that the claimant is entitled to the sum of Seventeen Thousand Naira (N17,000) having pleaded same in paragraphs 25(b) and 24(b) of his sworn deposition and statement of fact respectively also same disclosed in Exhibit TE11. Learned defence counsel on the other hand contended that the pleadings of the claims were itemized but in evidence they were not mentioned thus same is deemed abandoned, he relied on the cases of Ben v. N.S.I.T.F [2015] All FWLR (Pt780) 1230 at 1264, B-E, Anyaka v. Anyaka[2015] All FWLR (Pt 799) 1150 at 1167, he argued that for a party to be awarded any relief, the party must only plead with particularity but also prove by credible and cogent evidence that he is entitled to the reliefs sought, he relied on University of Jos v. Ikegwuoha [supra]. He concluded that the claim has not been proven as required by law and hence same should be dismissed for lack of prove. The claimant in this suit has the duty to prove and establish before this Court that he incurred pecuniary loses as a result of the action of the defendant which have crystalized in terms of cash and values before trial. I must state emphatically that the claimant has vide exhibit TE11 tendered the receipt of payment for his NBA Practicing fee however, there is nothing on record evincing the fact that the defendant were under an obligation to pay his practicing fees. The claimant has thus failed to prove this claim. See Daniel Holding v. UBA Plc [2005] 11 MJSC 69 at 73; Cameroon Airlines v. Otutiuzu [2011] 4 NWLR (Pt.1238) 512; Spring Bank v. Adekunle [2011] 1 NWLR (Pt1229) 581. Claimant’s claim for refund of his NBA Practicing fees fails. I so hold.
On Relief D, the claimant is seeking for an order of the Court directing the Defendants jointly and severally to pay the sum of Two Million Naira N2,000,000) to the claimant as cost/expenses of this action, the claimant vide paragraph 23(g) of his statement of facts and paragraph 24(g) of his sworn deposition argued that he is entitled to the said sum for the cost expenses of this action, Learned Claimant’s counsel argued that DW2 stated under cross-examination that this was his first time coming to Court since he was appointed in June 2013, while for inexplicable reasons to the Court, the defendants representative and their counsel did not almost for two years attend the Court but the claimant continued to attend court and incurred huge cost/expenses in the pursuit of his action, counsel relied on Order 55 Rules 1,2,4 and 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules which gives the Court discretionary or inherent power to grant same. Learned defence Counsel argued that this relief is another claim for special damages and it must also fail, he continued that the basis of that claim is just the mere assertion of the claimant and nothing more, that claim has no foundation and nothing in the evidence to support the claim, he argued that the claimant apart from the mere assertion that he has spent or incurred expenses has not placed any evidence before the Court that he is entitled to the claim.
The award of cost is entirely at the discretion of the Court, costs follow the events of litigation. See the case of NNPC v. CLIFCO Nig Ltd.[2011] LPELR-2022 (SC) , Mudum &Ors v. Adanchi & Ors [2013] LPELR-20744 (CA), Olokunlade v. Samul [2011] 17 NWLR (Pt 1276) 290. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the ultimate requirement is that such discretion must be exercised judicially and judiciously. See the case of Anyaegbunam v. Osaka [1993] 5 NWLR (Pt294) p.499, Obayagbona v. Obazee [1972] 5 SC P.247, NNPC. It is apt to state that the essence of costs is to compensate the successful party for part of the loss incurred in the litigation but it cannot cure all the financial loss sustained in the litigation process. Costs serves merely as a cushioning or palliative effect on the financial burden of the party in victory. Having stated that the grant of Cost is discretionary, in view of the fact that the 1st defendant Company is in liquidation and financial distress would amount to substantial injustice compelling the 1st defendant or the 2nd defendant to pay the cost of this litigation. It is in consequence that I refuse the claimant’s prayer for cost of this suit in the sum of Two million Naira (N2,000,000) and make no order as to costs.
As regards relief E, the claimant is also seeking for an order of this Court directing the defendants jointly and severally to pay the sum of Two Million Naira (N2,000,000) only as general damages and/or aggravated exemplary damages,. Learned Defence Counsel argued that damages can only be granted if there is any wrong in the first instance that the Company was in the process of liquidation, he continued that damages are presumed as natural and probable consequences of any act complained of by a person who has been wronged that the claimant has not successfully shown that he has been wronged by the defendant, he relied on the case of Oni v. Akinmolayan [2015] All FWLR (Pt799) 1076 at 1099, A-B.
It is trite law that general damages are the kind of damages which the law presumes to be the consequences of the act complained of. I have awarded several prayers of the claimant spanning from his salary in lieu of notice, unpaid salaries and other allowances. What more, the Court has equally granted his reliefs regarding terminal benefit. It is in the light of all the above reliefs granted by this Court supra that I find no justice in making any award in general damages, to do so will amount to double compensation. I thus resolve this prayer in favour of the defendants and dismissed claimant’s claim for general damages.
On Relief F, the Claimant is seeking for an order directing the defendant to pay Judgment interest on the judgment sum at the rate of 10% per month with effect from the date of judgment until judgment debt is liquidated. It is trite that post-judgment interest is awarded where there is power conferred by statute on the Court to do so in exercise of Court’s discretion and it is meant to commence from the date of judgment until whole liquidation, See the case of Stabilini Visioni Ltd v. Metalum Ltd [2008] ( NWLR (PT1092) 416 at 436, pars E-F. By Order 47 Rule 7 of National Industrial Court of Nigeria 2017 which provides that this Court may at a time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. It is in view of this that I order the defendants to pay 10% interest per annum on all judgment sums after 30 days of failure of the defendants to pay the claimant the judgment sums. I so find and hold.
On a whole, the claimant’s case succeeds in part and for the avoidance of doubt I declare and order as follows:
That the claimant’s employment is governed by the collective agreement in the year 1990/2005.
That the failure of the defendant to issue the claimant the requisite notice upon termination is wrongful.
That the termination of claimant’s employment with retrospective effect is wrongful.
That claimant is entitled to one month salary in lieu of notice in the sum of Eighty-Eight Thousand, Two Hundred and Eighty-Seven Naira and Fifty Kobo [N88,287.50].
That the claimant employment during the period of suspension subsisted until his employment was terminated on 13th March, 2012.
That the claimant is entitled to the sum of [159,586.87] One Hundred and fifty Nine Thousand, five hundred and eighty six naira eighty seven kobo for the period of he was on suspension.
That he is entitled to his outstanding leave allowance in the sum of N437.720.04.
That the claimant is entitled to his Christmas bonus in the sum of N227,981.25.
That claimant’s claims C vii fails.
That claimant’ claim for 3 months unpaid salary after the implementation of the collective agreement fails.
That the claimant is entitled to his acting allowance in the sum of N95,751.06. [Ninety five thousand, seven hundred and fifty one naira, six kobo.
That the claimant’s claim for Contribution to Pension Fund and NSITF (including 10% of employer’s contribution), same having been abandoned fails.
The claimant is entitled to the claim for the payment of the Outstanding/unpaid Twelve (12) months Salaries and allowances (Sept 2010-August 2011) in the sum of One Million, fifty nine thousand and Ninety naira .N1,059,090.00.
All Judgment sum awarded is to be paid within thirty (30days) of this judgment, failing which it attracts 10% interests per annum.
No Order as to Costs.
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
