Mr. Azeez Kehinde Sheriff -VS-Origin Tech Group Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 19th March 2019 SUIT NO. NICN/LA/522/2018

BETWEEN

AZEEZ KEHINDE SHERIFF CLAIMANT

AND

ORIGIN TECH GROUP NIGERIA LIMITED DEFENDANT

REPRESENTATION:

Quadri Abojukoro Esq. with Babatunde Adebiyi Odukoya Esq. and Uswat Amusa Esq. for the Claimant

Joseph Henkyaa Esq. for the Defendant.

JUDGMENT

The Claimant by his complaint dated and filed on 18th October 2018 claimed against the Defendant as follows:

A declaration that the Claimant is entitled to all the salary arrears as agreed by the parties in their memorandum of understanding signed and dated 23rd day of January 2017.

An order of this Honourable Court directing the Defendant to pay the Claimant the sum of N400, 000.00 [four hundred thousand naira] being the outstanding balance of arrears of salary/allowances to the Claimant as full final payment.

An order of this Honourable Court directing the Defendant to pay 25% interest on all outstanding salary/allowances from the 1st day of February 2017 until full and final payment is made.

General damages in the sum of N1, 000,000 [one million naira] only for psychological trauma of having been deprived of his due salary/allowances for upwards of 3 years.

Cost of this suit.

The Claimant filed with his complaint a statement of facts, list of witness, statement on oath, verifying affidavit, list of documents to be relied on at the trial and copies of the documents. The originating processes were served on the Defendant on 19th October 2018. The Defendant filed its defence processes on 6th November 2018, while the Claimant filed his reply to the statement of defence on 21st November 2018. Trial commenced on 13th December 2018. The Claimant adopted his statement on oath dated 18th October 2018 as his evidence in the suit and tendered 10 exhibits, exhibits 1 to 10. Exhibit 1 is offer of employment, exhibit 2 is salary realignment letter, exhibit 3 is redeployment letter, exhibit 4 is internal memo on payment of Claimant’s outstanding salaries; exhibit 5 is Claimant’s letter of resignation. Exhibit 6 is Claimant’s hand over note, exhibit 7 is email correspondence between the Claimant and Jumoke Amusu; exhibit 8 is Claimant’s Solicitors’ letter to the Defendant; exhibit 9 is a memorandum of understanding between the Claimant and the Defendant dated 23rd January 2017 and exhibit 10 is Claimant’s Solicitors’ second letter to the Defendant. The case was thereafter adjourned to 10th January 2019 for cross-examination and defence. On 10th January 2019, the Claimant was cross-examined and thereafter the Defendant put in its witness, who adopted his statement on oath dated 6th November 2018 as his evidence in defence of the suit and tendered 9 exhibits. Exhibit DW1 is Defendant’s internal memo dated 3/2/16 on temporary cut on operational staff salaries; exhibit DW2 is a query to the Claimant dated 30/6/2016, exhibit DW3 is first warning letter to the Claimant; exhibit DW4 is salary alignment letter dated 6/11/2015. Exhibit DW5 is second warning letter to the Claimant, exhibit DW6 is suspension letter; exhibit DW7 is query memo and answer by the Claimant. Exhibit DW8 is payment receipt for the sum of N200, 000 and exhibit DW9 is memorandum of understanding between the Defendant and the Claimant. The Defendant’s witness was cross-examined and the case was thereafter adjourned to 11th February 2019 for adoption of final written addresses and subsequently to 21st February 2019. On 21st February 2019, the Defendant was absent and unrepresented by Counsel and did not file any final written address. Learned Counsel for the Claimant adopted the Claimant’s final written address dated and filed on 6th February 2019 as his final submission in support of the claim. The matter was consequently set down for judgment.

COURT’S DECISION

I have carefully considered the processes filed by the parties and the Claimant’s final written address. The facts of this case are simple. The Claimant was employed by the Defendant on 16th September 2014 as Accountant on Assistant Manager Level A. He was subsequently downgraded to Assistant Manager grade C in November 2015. The Claimant voluntarily resigned his appointment on 22nd November 2016 and, by his calculation, was owed the sum of N905,101.37 in salaries and allowances. Sequel to the Claimant’s Solicitors’ letter to the Defendant, exhibit 8, an all-parties meeting was held on 23rd January 2017 culminating in a memorandum of understanding, exhibits 9 and DW9 wherein parties agreed that the sum of N600, 000 would be paid to the Claimant in full and final settlement of his outstanding salaries and allowances. It was also agreed that the sum of N600, 000 would be paid to the Claimant in three instalments with effect from January 2017 and the final payment in March 2017. The Defendant paid the first instalment of N200, 000 on 17th February 2017 and defaulted in payment of the balance of N400, 000 necessitating issuance of exhibit 10 which is final demand by the Claimant’s Solicitors. The Defendant did not respond to the letter and did not pay the sum of N400, 000 hence this action. At the trial, the Defendant admitted executing exhibits 9 and DW9 and paying only N200, 000 out of the agreed sum of N600, 000 leaving a balance of N400, 000 which it said it desires to pay as soon as its financial situation improves. The Claimant raised one issue for determination in his final written address to wit, whether from the pleadings and evidence adduced, the Claimant is entitled to the reliefs as set out in the Complaints and the Statement of Facts? Arguing the lone issue, the Claimant submitted that facts admitted need no further proof and referred to section 123 of the Evidence Act 2011. He contended that by failing to pay the sum of N400, 000 as agreed in the memorandum of understanding, the Defendant breached the contract between the parties; and he is entitled to general damages for breach of contract in the sum of N1, 000,000. It was further argued that in a civil case a party must prove his case on the preponderance of evidence, Elias v. Omobare [1982] 5 SC 25 was referred to. He submitted that the Claimant gave credible and weighty evidence to prove that the Defendant owes him salaries and allowances and referred to exhibits 8 and 10 and exhibit 9. It was also submitted that the Claimant is entitled to general damages for the unlawful withholding of his salaries/allowances by the Defendant and referred to Nigerian Bottling Company Plc v. Okafor [2012] All FWLR [pt.647] 766 and Odumosu v. A.C.B. Limited [1976] NSCC [vol.10] 635.

This case is basically for recovery of earned salaries and allowances. I adopt the issue for determination formulated by the Claimant with a little modification, that is, whether the Claimant has proved his case on a balance of probabilities to entitle him to judgment? It is settled law that he who asserts the positive of any fact must prove, see sections 131[1] and 136[1] of the Evidence Act 2011 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21 and Chief Obasi Lawson v. Elder Chinedu Okoronkwo & 10Ors. [2019] 3 NWLR [pt.1658] 66 at 78. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of his claims, see Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. The Claimant tendered exhibits 8, 9 and 10. Exhibits 8 and 10 are demand notices from the Claimant’s Solicitors. Exhibit 8 gave rise to exhibit 9, the memorandum of understanding. The Defendant admitted making exhibit 9, see paragraphs 9d, 9e, 13 and 14 of the statement of defence and paragraphs 17, 18, 20 and 21 of its witness’ statement on oath. The Defendant also tendered the memorandum of understanding as exhibit DW9. The Defendant equally admitted paying N200, 000 out of the agreed sum of N600, 000. It is trite law that facts not disputed or challenged are deemed to have been admitted, see Chief Obasi Lawson v. Elder Chinedu Okoronkwo & 10Ors. [supra] at 74. It is also the law that parties to a written contract are mutually bound by the terms contained in the agreement and the Court has a duty to enforce the terms when called upon to do so, see Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] at page 30 and Dr. Adeosun Oluseyi Olalekan v. Management Board, University of Maiduguri Teaching Hospital [2012] LPELR-20099[CA] at 44. The Defendant agreed to executing exhibit 9 of its volition and went ahead to make part-payment on the basis of exhibit 9. It follows, therefore, that by agreement of the parties, the Claimant is entitled to the sum of N600, 000 as earned salaries and allowances; and out of this amount, the Defendant has paid N200, 000 leaving a balance of N400, 000. In these circumstances, it is my respectful view, and I so hold, that the Claimant has proved his entitlement to judgment for the sum of N400, 000.

This leads me to a consideration of the Claimant’s claims. The first relief is for a declaration that the Claimant is entitled to all the salary arrears as agreed by the parties in their memorandum of understanding signed and dated 23rd day of January 2017. There is uncontroverted evidence that parties agreed that the Claimant shall be paid the sum of N600, 000 as full and final settlement of his outstanding salaries and allowances, exhibit 9. Invariably, the Claimant is entitled to all the salary arrears as agreed by the parties in their memorandum of understanding signed and dated 23rd day of January 2017 tendered in evidence and marked exhibits 9 and DW9 and I so hold.

Relief two is for an order of this Honourable Court directing the Defendant to pay the Claimant the sum of N400, 000.00 [four hundred thousand naira] “being the outstanding balance of arrears of salary/allowances to the Claimant as full final payment”. I have earlier in this judgment found that the Claimant is entitled to judgment for the sum of N400, 000. Accordingly, this claim succeeds and it is granted. I make an order directing the Defendant to pay to the Claimant the sum of N400, 000.00 [four hundred thousand naira] being his outstanding arrears of salaries and allowances.

Relief three seeks order of this Honourable Court directing the Defendant to pay 25% interest on all outstanding salary/allowances from the 1st day of February 2017 until full and final payment is made. The law is now settled that except where parties have agreed on payment of interest, it is not right to award pre-judgment interest, see Alh. Abubakar Sadik Dantama v. Unity Bank Plc [2015] LPELR-24448[CA] pages 21-22. There is no evidence before me that parties agreed on payment of interest on the Claimant’s overdue salaries and allowances. Also, it is not the practice in employment relations to pay interest on overdue salaries. Exhibit 9 is equally silent on payment of interest on the agreed sum of N600, 000.00 or any portion thereof. However, the Court is empowered to award post-judgment interest pursuant to Order 47 rule 7 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 in deserving cases. The claim for pre-judgment interest has not been proved and it is accordingly dismissed.

Reliefs four and five are for general damages in the sum of N1, 000,000 [one million naira] only for psychological trauma of having been deprived of his due salary/allowances for upwards of 3 years and cost of this suit. What psychological trauma the Claimant experienced as a result of non-payment of his salaries and allowances is in the realm of conjecture. Paragraph 16 of his statement on oath alluded to his becoming a financial burden to his loved ones, families and friends. Although general damages are within the discretion of the Court to grant, it is not granted in vacuo or just for the asking. General damages are losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary, see Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at page 54. It is also the law that a party is expected to mitigate his losses and the Court cannot grant a Claimant general damages as well as salaries and allowances, see Selcon Tannery Limited v. Mr. Bala Abubakar & Ors. [2013] LPELR-21412[CA] at pages 21-22. The cases of Nigerian Bottling Company Plc v. Okafor [supra] and Odumosu v. A.C.B. Limited [supra] relied on by learned Counsel for the Claimant relate to an action in detinue. It is incontestable that an employment suit is different from an action in detinue even where it claims arrears of salaries. General damages ordinarily belong to the realm of torts and not claims for arrears of salaries, see Chevron Nigeria Limited v. Titan Energy Limited [2013] LPELR-21202[CA] at pages 32-33. In addition, exhibit 9 is silent on consequences of failure to pay the agreed sum of N600, 000 at the end of March 2017. Accordingly, the claim for general damages fails and it is dismissed.

On cost of the action, cost follows event. Pursuant to Order 55 rules 1 and 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and taking into consideration the conduct of the Defendant and the fact that the Claimant has had to employ a Counsel to recover his earned salaries and allowances, the processes filed by the Claimant including the letters to the Defendant and fees paid, cost of N75, 000 [seventy-five thousand naira] is awarded in favour of the Claimant against the Defendant.

On the whole, this action succeeds in part. Reliefs one, two and five succeed and are granted. Reliefs three and four for pre-judgment interest and general damages fail and are hereby dismissed. For the avoidance of doubt, judgment is entered in favour of the Claimant against the Defendant as follows:

It is hereby declared that the Claimant is entitled to all the salary arrears as agreed by the parties in their memorandum of understanding signed and dated 23rd day of January 2017.

The Defendant shall pay to the Claimant forthwith the sum of N400, 000 with interest at the rate of 10% per annum from today until it is fully liquidated.