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: OCTOBER 30, 2018 SUIT NO. NICN/LA/490/2014
BETWEEN
Mr Jerry Okoh – Claimant
AND
Waterwell Services Ltd – Defendant
REPRESENTATION
S. O. Amaefule, for the claimant.
S. A. Owhofawhoraye, for the defendant.
JUDGMENT
1. The claimant commenced this action by a complaint filed on 24th October 2014 together with the accompanying originating processes. The claimant prayed against the defendant for four reliefs, reliefs (b) and (c) of which (respectively dealing with trespass to the person and false imprisonment) were struck out on 16th November 2016 leaving only reliefs (a) and (c), which for purposes of this judgment will now be put as reliefs (a) and (b). Accordingly, the remaining two reliefs claimed by the claimant are:
(a) A declaration that the defendant breached the terms of employment of the claimant by failing to confirm the claimant’s employment at the end of the three months period of probation, nor increasing the claimant’s salaries and allowances as per the agreement, nor paying the claimant’s salaries, allowances and all other entitlements as and when due, nor fulfilling other conditions stipulated in the agreement governing the claimant employment.
(b) The sum of N40,000,000 (Forty Million Naira as special and general damages for unpaid entitlements, loss of employment, loss of productivity, loss of goodwill, loss of integrity, humiliation, ill-treatment, deprivation suffered by the claimant as a result of the several breaches of the contract of employment by the defendant.
2. In reaction, the defendant entered formal appliance and filed its defence processes, to which the claimant filed a reply to the defendant’s statement of defense and a further witness attempt.
3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C11. For the defendant, Akinsola Oyetakin, the General Manger of the defendant testifies as DW ad tendered Exhibits D1 to D5. Both sets of exhibits were admitted without prejudice to the right of the parties to raise in their final written addresses any issue as to admissibility and/or evidential value of the exhibits especially Exhibits C8, C8(a) and C9. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 13th March 2018, while the claimant’s was filed on 18th April 2018. The defendant’s reply on points of law was filed on 26th April 2018.
THE CASE OF THE CLAIMANT
4. To the claimant, he had been previous employed by the defendant but was invited again in 2006 for employment by the defendant. After negotiations which spanned over six months during which several meetings were held and letters of offer and counter-offer (Exhibit C1) were exchanged, the claimant was employed on 1/3/2007 (Exhibit C2). Other conditions in addition to those stated on Exhibit C2, which governed the employment of the claimant, are as stated in the defendant’s Senior Staff Condition of Service manual which was given to him on the occasion of his employment (Exhibit C3). That the defendant serially breached the terms of the claimant’s employment contained both in Exhibits C2 and C3 thus:
• It failed to purchase a car and employ a driver to be attached to the office of the claimant.
• After initially giving the claimant N25,000 to cover this transport costs for the first week of his employment while awaiting purchase of the car, the defendant did not again provide money for the transportation of the claimant as can be seen in the payrolls for December 2008 (Exhibits C7, C7A and C7B) which show in lines 3 of each that all staff of the defendant received transport allowance with the exception of OKOH (the claimant) in Exhibit C7.
• It failed to confirm claimant’s employment after three months period of probation nor give notice of any extension of the probation period, despite reminders by the claimant on the issue and other breaches of the terms of the offer of employment (Exhibits C4 and C4A).
5. The claimant went on that the defendant made regular deductions for pension fund (aka. NSITF) from the claimant’s monthly salaries, but did not remit same to the Pension Fund Administrator either of its own choice or the one with whom the claimant registered (paragraph 10 of the claimant’s further witness statement in reply and Exhibits C5, C6, and C7). Furthermore, that the defendant who has been deducting regular amounts from the claimant as pension contribution (a.k.a. NSITF) all through the period of his employment, upon terminating the claimant’s employment in January 2009 (Exhibit C9), prepared a document titled ENTITLEMENTS (Exhibit C9A) which showed that after deducting sum of N30,000.00 for pension and N4,000.00 for tax for the months of July to December 2008, leaving balance of N366,000.00 respectively, it went on to deduct N60,000.00 all over again for the 22 months of the claimant’s employment and which amount is made up of the N30,000 contribution by the claimant to the pension fund and N30,000.00 for the defendant, taken from the claimant’s entitlements. That in a show of its malicious disregard of its obligation to the claimant, the defendant (in the last paragraph of Exhibit C9A) required the claimant to produce evidence of payment of N960,000.00 from March 2007 to July 2008 (to pension fund) when in fact it is the defendant who deducted the said amount from the claimant’s salaries from March 2007 without remitting same to any pension savings account as per paragraph 29(i) of the claimant’s witness statement on oath.
6. That three months after his employment, the claimant had become entitled as per Exhibit C2 to the confirmation of his employment and upon which event he was also entitled to 2% increment in salary in accordance with Article 28 of Exhibit C3.
THE CASE OF THE DEFENDANT
7. The claimant is an ex-staff of the defendant, a Limited liability Company. The claimant was employed on 9th February 2007 i.e. Exhibit C2, which employment was terminated with undated letter that took effect from 31st December 2008, after a period of 22 months. The offer of employment clearly states that the claimant was employed as Head of Finance Manager with monthly salary, including Housing Allowance, of N400,000.00 and he was entailed to annual leave of two weeks after putting in one year of service. In the offer of appointment in paragraph 2(3) he was allowed 30 days for other commitment without pay, 3 months probationary period and official car with a driver which the claimant duly accepted on 12th February 2007. The employment of the claimant was not confirmed after his probationary period by the defendant due to lack of performance, inefficiency, fragrant disobedient to the defendant’s rules and regulations. The claimant was also found to be running a parallel business in the defendant’s premises to the extent that he set up a personal interest services for his private consultancy services while he was in the employment of the defendant and these anomalies continue unabated and the defendant has no choice but to terminate the claimant’s employment based on this, hence this action against the defendant. That the claimant had before this suit instituted Suit No ID/141/2011 at the High Court of Lagos State Ikeja between the same parties in which the claimant’s claim for wrongful termination of his appointment by the defendant was struck out the by the High Court of Lagos State, Ikeja.
THE SUBMISSIONS OF THE DEFENDANT
8. The defendant submitted four issues for determination, namely:
(1) Whether the claimant has established his right to the claims from the defendant.
(2) Whether from the facts and the circumstances of the claimant’s claim, can the claimant succeed considering that the claimant’s claims for special damage requires particularization and specific proof?
(3) Whether there is any nexus/link between the claimant’s claims and the senior staff condition of service meant for 2004 to 2006 when the claimant was not in the employment of the defendant.
(4) Whether the claims of the claimant are not unreasonable.
9. For issue (1), the defendant submitted that it is trite that he who asserts must prove it and not he who denies it, citing section 131(1) of the Evidence Act 2011. That the burden of proof in this case lies on the claimant since he alleged that he is entitled to these claims from the defendant. That a declaration as requested in paragraph 34 of the claimant’s claim should not be granted because the claimant has not discharged the burden of proof placed, referring to Addah & ors v. Ubandawaki [2015] LPELR SC 7/2012. That the claimant failed to plead facts in his pleading and to lead cogent evidence at the trial to establish his entitlement to the claims from the defendant.
That the claimant’s entitlement to claims is not as of right. That whether an employee is entitled to his claim can be decided only by reference to his contract of service which must be predicated on a contract e.g. contract of service or the law, which the claimant has failed to establish. That the fact that the claimant worked with the defendant does not automatically entitle him to be paid these claims by the defendant, citing Julius Berger (Nig) Plc v. Nwagwu [2006] 12 NWLR (Pt. 995) 518, NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 at 337 and section 132 of the Evidence Act 2011.
10. On issue (2), the defendant, citing Aluminium Manufacturing Co. of Nig. Ltd v. Volkswagen of Nigeria Limited [2010] 7 NWLR (Pt. 97) at 126 – wrong Part – and Alao v. VC Unilorin [2008] 1 NWLR (Pt. 1069) 421 and Calabar East Co-op v. Ikot [1999] 14 NWLR (Pt. 638) 225, submitted that the claimant’s claim must necessarily fail due to the fact that it is not enough for the claimant to just claim against the defendant the sum of N40 Million Naira being amount due to him as special general damages. That for his claim to succeed, the claimant must give the particulars or state how he arrived at the sum of N40 Million Naira, how loss of employment, productivity, goodwill, integrity, deprivation amount to damages of N40,000,000 taking into consideration that the claimant in his evidence-in-chief told the Court that he has his own firm and he is a tax consultant. That in Obat v. CBN [1993] 1 NWLR (Pt. 310) 140, the Supreme Court held that an employee dismissed in breach of his contact of employment cannot choose to treat the contact as subsisting and claim for salaries and entitlements he would have earned up to the end of the contractual period. Also referred to is Spring Bank v. Babatunde [2012] All FWLR (Pt. 609) 1191. Accordingly, that the implication of the claimant’s claim for N40 Million as special and general damage is that the claimant notwithstanding that he was effectively terminated in 2009 has chosen to treat his contract of employment as subsisting till date to claim the alleged claim. That his claim must necessarily fail as same is not in line with the Supreme Court case cited above case and cannot find support in law as the law does not allow the claimant to treat his contract of employment terminated in 2009 as subsisting to date and on the other hand claim that same is still subsisting till date must fail.
11. The defendant continued that where a claimant claims special damages against a defendant for loss suffered but fails to specifically plead the particulars of his claim as required by law, all oral and documentary evidence adduced by him in support of his claim for special damages will go to no issue and such document, would be inadmissible and should be expunged from the records of proceeding, citing Nwanji v. Coastal Service (Nig.) Ltd [2004] 11 NWLR (Pt. 885) 552, NMA v. MMA [2010] 4 NWLR (Pt. 1185) 613 at 653-655. That the law is that where a claimant’s claim is for special damages but failed to particularize same, his statement of claim is defective and he cannot lead evidence thereon, citing Attorney-General, Oyo State v. Fairlakes Hotel (No. 2) [1989] 5 NWLR (Pt. 121) 255 and Nwanji v. Coastal Service (Nig.) Ltd [2004] 11 NWLR (Pt. 885) 552. That in the instant case, the claimant’s evidence must be discountenanced as it goes to no issue. That the Court had an obligation to expunge the said evidence from the record and decide the case on properly and legally admissible evidence only, citing BON v. Muri [1998] 2 (Pt. 536) 153, Neka B. B. B. Mfg. Co. Ltd v. ACB [2004] 2 NWLR (Pt. 858) 521, Nzeribe v. Dave Eng. Co. Ltd [1994] 8 NWLR (Pt. 367) 124, Amadi v. Essien [1994] 7 NWLR (Pt. 354) 91 and A-G Leventis Nig. Ltd v. Akpu [2002] 1 NWLR (Pt. 747) 182. That the claimant must adduce evidence in strict proof of the claim for special damages for N40,000,000,which he did not do; as such, the claim for N40 Million must fail.
12. Issue (3) is whether there is any nexus/link between the claimant’s claims and the senior staff condition of service meant for 2004 to 2006 when the claimant was not in the employment of the defendant. To the defendant, there is no nexus or link between the terms of the employment of the claimant and the senior staff condition of service given that there was no staff conditions of service booked in 2007-2009 in the defendant. That one cannot put something upon nothing and expect it to stand. That it is settled law that oral evidence cannot be admitted to contradict or alter documentary evidence; and documentary evidence is the best form of evidence. That the Court has a duty to respect the contract of employment and not to allow any term that was not agreed by the parties to form the opinion of the Court, citing Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) 96 at 115, Ibrahim v. SPDC (Nig) Ltd [2005] 17 NWLR (Pt. 954) 364 and Aboto v. UBN Plc [2016] 86 NLLR (Pt. 235) 292 NIC. That Exhibit C3 is clear and unambiguous. It is clearly written on the senior staff condition of service that the document is for a period of 2004 to 31st December 2006, a period the claimant was not in the employment of the defendant. That the claimant should tell this Court how he came about this document he exhibited and marked Exhibit C3 and relied on for his claims. That the senior staff condition of service is an obsolete document which does not form the terms and conditions of the claimant’s employment and claims. That the mere fact that the phrase ‘no work no pay’ was imported from that document does not re-validate the document. The phrase ‘no work no pay rule’ pre-dates the employment of the claimant and the production of the edition of senior staff condition of service in 2004-2006. That the general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of a written instrument. That in the instant case, the offer of employment is the instrument of terms of the claimant’s employment with the defendant and not the claimant’s Exhibit C3. That the claimant cannot lay his hands on some obsolete document in the office of the defendant to support his claim as in his offer of appointment there was no reference made to the senior staff condition of service i.e. the claimant’s Exhibit C3, referring to Union Bank (Nig) Ltd v. Prof Ozigi (supra), section 131(1) of the Evidence Act 2011 and Bank of the North v. Aliyu [1999] 7 NWLR (Pt. 612) 622.
13. The defendant proceeded that it was an act of bad faith for the claimant to remove the obsolete senior staff condition of service from the defendant’s office for the purpose of this proceeding given that the document was not endorsed to him. That the front page of the senior staff condition of service (Exhibit C3), before the list of Articles ought, to indicate the the claimant’s name, his position, date of employment and confirmation that he would undertake to abide by the rules and regulations of defendant company and the claimant’s signature. That this front page of Exhibit C3 is missing in the claimant’s copy of Exhibit C3, which is thus a confirmation that the claimant’s Exhibit C3 was NOT endorsed by the defendant to the claimant. That the claimant might have removed secretly Exhibit C3 in anticipation of this proceeding, citing section 83(3) of the Evidence Act 2011. That the claimant should prove how he derived his terms and conditions of employment from the document that was clearly marked for 2004-2006 before his employment; and he cannot go outside his terms of employment for greener pasture or for more favourable terms to support his claims, citing Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 599) – no page given, and International Drilling v. Ajijola [1976] 2 SC 115.
14. Issue (4) is whether the claims of the claimant are not unreasonable. In arguing this issue, the defendant first reproduced paragraph 29 of the claimant’s statement of facts where the claimant gave the particulars of the sums owed to him by the defendant. However, what the defendant reproduced is not that of the statement of facts filed on 24th October 2014 but of some other given the assumption of the defendant that this Court granted the claimant leave to amend his statement of facts, something that is not true. I comment more on this in the decision part of this judgment below. Suffice it to note here that what the claimant gave particulars for was for the sum of N15,844,837, not N16,135,534.00 that the defendant indicated in its written address. The defendant proceeded to look at the particulars of the claimant’s claims as per paragraph 29, showing how unreasonable they are given that Exhibit C3, the senior staff condition of service is not applicable to the claimant’s employment because the claimant was not recruited for employment between 2004 and 2006 when Exhibit C3 was used.
15. The defendant then submitted that the letter of appointment dated 9th February 2007 is binding on the parties, both the claimant and the defendant, which letter at appointment contains the contract conditions of employment and in in case of dispute will serve as a reference point. Therefore, that the letter of appointment becomes imperative when the claimant alleged wrongful termination of employment, citing Faturoti v. University of Lagos [2016] 65 NLLR (Pt. 233) 783 NIC. That the duty of the Court is to give effect to manifest intention of the parties to a contract of employment; once a contract of employment is lawfully determined the Court is under a duty to give effect to manifest intention of the parties, citing Nwangwu v. Nzekwu [1957] SCNLR 61, Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 5 and International Drilling Co. v. Ajijola [1976] 2 SC 115. That in the instant case, the employment of the claimant was properly or lawfully terminated, and the defendant never breached the terms of the employment of the claimant. That an employee cannot compel the employer to retain him no matter how desirable that may be. That it is trite in law that an employee who abandons his job is deemed to have committed a major breach of contract of his employment; such a breach is so fundamental that the employer is entitled to treat the contact as having been duly terminated, citing Maja v. Stocco [1968] NMLR 372.
16. On the allegation of deductions from the claimant’s salary for absenteeism from duty, the defendant submitted that absenteeism from duty without permission is a serious offence punishable by dismissal or termination of appointment. On the right of the defendant to terminate a probationary employment, that once an employee is placed on probationary employment the essence is to confirm the suitability of the employee; if the employee is suitable he would be retained and if not he would be asked to leave. That the onus for breach or wrongful termination of employment is on the claimant to prove by cogent and credible evidence before the Court. That the claimant claims that his employment was wrongly terminated. That unlawful and wrongful termination convey different meanings; wrongful connotes some moral blames, whereas “unlawful” suggests a violation of a legal right for instance a breach of statutory term of employment or an infringement of the relationship of “master and servant” or between the claimant and the defendant. That having paid the claimant all is entitlements including one month of salary in lieu of notice, the same claimant cannot claim for wrongful termination of employment; as such, the claims of the claimant must fail.
17. The defendant concluded by urging the Court to dismiss the claimant’s claims with substantial cost for failure to establish his claims, for want of legally admissible evidence due to the failure of the claimant to plead the particulars for his claims and for special and general damages and his inability to adduce cogent and credible evidence before the Court to establish the wrongful termination of his employment by the defendant.
THE SUBMISSIONS OF THE CLAIMANT
18. The claimant first set out what to him is the case of the defendant before submitting issues along the lines of the said case of the defendant. To the claimant, the defendant raised the following grounds of defence:
(a) The-employment of the claimant with the defendant was governed by the terms in the letter of employment (Exhibit C2) and he cannot make any claims founded on the Senior Staff Condition of Service (Exhibit C3).
(b) The Senior Staff Condition of Service (Exhibit C3) had fallen into disuse by 2007 when the claimant was employed, same having expired in 2006.
(c) The claimant’s employment in 2007 was a second chance given to the claimant to prove that he could perform the job, having failed during his first employment.
(d) The claimant was inefficient, disobedient, truant, and a poor-performer hence his employment was not confirmed despite the extension of his probationary period and was, therefore, terminated in December 2008.
(e) The defendant did not remit the pension deductions from the claimant’s salaries to the pension fund administrator due to the claimant’s failure to supply his Retirement Savings Account pin to the defendant.
19. The issues submitted by the claimant thus are:
(1) Whether the claimant’s employment by virtue of Exhibit C2 (the Offer of Employment) was an opportunity granted the claimant by the defendant to remedy his poor performance in his first employment.
(2) Whether the defendant’s Senior Staff Condition of Service (Exhibit C3) was in force and governed the claimant’s employment along with the Offer of Employment.
(3) Whether the defendant in all the circumstances could lawfully refuse to confirm the claimant’s employment at the end of the probation period without stating any reason nor specifying a period of extension of the probation, whilst keeping the claimant in its service; nor fail to remit the deductions from the claimant’s monthly salary to a pension fund administrator.
(4) Whether the claimant proved his claim contained in reliefs “a” and “d”: for a declaratory order and for special and general damages.
20. As per issue (1), the claimant submitted that the defendant alleged in their defence and evidence that the claimant was employed by it on 1st March 2007 to give the claimant an opportunity to improve on his dismal performance during his first employment; but that despite this second chance, the claimant could not secure a confirmation of his employment due to his inefficiency, divided loyalty, and disobedience of the defendant’s rules. Also that the defendant extended the probation period of the claimant to afford him more time to do well, but finally had to terminate him when his performance remained unsatisfactory. To the claimant, this assertion of the defendant (which was made without the slightest proof) is false, referring to paragraphs 17 and 18 of the claimant’s further witness statement in reply. It is the case of the claimant that he was invited by the defendant to return to its employment as the business of the defendant was going through a crisis and it needed a capable Accountant to head its financial department. The negotiation between the claimant and the defendant, who was represented by its Managing Director (MD) and the Administrative Manager, lasted about six months in the course of which a letter of Offer of Employment dated 10/10/2006 was given by defendant to claimant. That the letter was not tendered in Court, but Exhibit C1 which is the claimant’s reply to that offer is in evidence and made direct reference to the offer letter. That the tone of the claimant in Exhibit C1 is not that of a person seeking a second chance to right his wrongs. The wordings from the first line to the end is that of a person negotiating from a position of strength and giving condition on which he will accept an offer of employment, referring to paragraphs 1, 2, and 3 of the letter to show the confident language of the claimant. Also to show that he was not the person in need of the employment but that it was the defendant who needed him to rescue it from crises. That in the last paragraph of Exhibit Cl, the claimant offered other options to the defendant that could obviate the necessity for his employment as a staff by offering either for him to be engaged as a Consultant to the defendant, or that he recommends another capable accountant to the defendant.
21. The claimant continued that Exhibit C2 written by the defendant showed that it considered the counter-offer of the claimant but preferred to have the claimant work for it as a permanent staff, and also conceded to most of the conditions given by the claimant. In paragraph (4) of Exhibit C2 the defendant offered that the probation period shall be three months stated to be with the “advantage” of his previous employment (which obviously is less than the six months stipulated in the Senior Staff Condition of Service — Exhibit C3). That this was an admission by the defendant that the claimant’s performance in his previous employment with the defendant was a plus, not a minus. In paragraph (3) of Exhibit C2 the defendant granted the claimant 30 days without pay during the year to attend to his commitments to his existing clients. That this too is and admission by defendant that it is aware that the claimant would be sacrificing his existing consultancy service to take up the new employment. The claimant then urged the Court to hold that the defendant did not provide any iota of proof of its allegation of the claimant’s desperate need of employment in defendant organization, nor that the claimant was offered the employment as an opportunity to perform well. Rather it was the defendant who needed the claimant, a top performer in his field, to rescue it from its management and financial crisis, citing section 131 of the Evidence Act. That it ought, therefore, to be the burden of the defendant to substantiate its assertion that the claimant’s performance during his first employment was unsatisfactory, and hence the second employment was given him as opportunity to show that he could do the job. But as the defendant failed to provide any material evidence in support of its assertion. That the claimant undertook in his reply to rebut the baseless assertion and went on to prove from available record that while still on probation he was paid a basic salary that was about 250% of the combined salaries of all the other staff in the Lagos Head office, including Mr. Akinsola Oyetakin, the defendant’s only witness, referring to Exhibit C7.
22. As to issue (2) i.e. whether the defendant’s Senior Staff Condition of Service (Exhibit C3) was in force and governed the claimant’s employment along with the Offer of Employment, that the defendant had stated in its defence that the Senior Staff Condition of Service (Exhibit C3) was no longer in use by the date of the claimant’s employment and, therefore, did not govern the employment. That this assertion of defendant was based on the statement of Article 5 of Exhibit C3 which provides in the second paragraph as follows: “Notwithstanding changes in these terms and conditions due to changes in the law, these terms and condition herein, the company concedes that the agreement from 1st January, 2004 to December 2006”. That it is this inchoate and ambiguous statement of duration of policy that the defendant wants the Court to accept as a definite statement of the expiration of the Senior Staff Condition of Service, but which the claimant disputes. That the evidence of the claimant is that the Senior Staff Condition of Service was not only in use during the period of his employment by the defendant, but that the document also governed his employment.
23. That the grounds on which the Court will so find are that: despite the defendant’s claim that Exhibit C3 had ceased being in force, the defendant assured the claimant during the negotiation for his employment that other conditions he demanded need not be stated in the Offer of Employment as they are well codified in Exhibit C3; the defendant made reference to the conditions of service in Exhibit C2; the defendant complied with the provisions of Exhibit C3 in the employment of the claimant; it used the provision of the document in the calculation of the allowance paid to its staff during the period of claimant’s employment; and it relied on some provisions of the document in its defence. That the particulars are as follows:
(a) The claimant gave evidence in paragraph 4 of his further witness statement in reply, which remains unchallenged, that the defendant conceded to his demands in Exhibit C1, but informed him that some of them need not to be stated in the offer letter since the conditions of service covered the grounds.
(b) Paragraph (2) of Exhibit C2 made reference to Exhibit C3 when it stated thus: “the annual leave sums according to the organization condition of service…”
(c) Article 7 of the Exhibit C3 provided for the documents that shall be provided and given to the new employee, all of which were applied in the case of the claimant. The claimant supplied all the materials required of him under Article 7 as a new employee while the defendant issued an identity card and a copy of the Senior Staff Condition of Service to the claimant.
(d) The three months probationary period stipulated in Exhibit C2 was in compliance with Article 9 of Exhibit C3 where it is provided that “the employment of personnel by the company shall be deemed to be subject to a probationary period of six months or period adjudged by management”. It was in exercise of the management discretion that the claimant’s probationary period was reduced to “three months with the advantage of past service in the organization”.
(e) The claimant tendered Exhibits C5, C7, C7A and C7B; and the defendant tendered Exhibits D2, D3 and D4. Each of these exhibits showed the payments to several employees in the respective months for transport allowance, leave allowance, medical allowance, and Xmas bonuses which were checked based on the parameters contained in Exhibit C3. Using Exhibits D2 and C7 as pointers, and the entries under the names of “Akin”, who is the defendant’s Witness, and “JOSEPHINE” as points of reference: In Nov. 2007 “Akin” received N19,703.19 as leave allowance (Exhibit D2) while “Josephine” in December 2008 received N12,156.50 as leave allowance (Exhibit C7). These figures represent one month basic salary of Akin and Josephine in the respective months which is as provided in Article 21(h) of Exhibit C3. Also Exhibit C7 shows that in December 2008 Josephine, Akin, and Okoh (just like all other staff) received sums of N9,117.38, N14,777.39, and 150,000 respectively as XMASS Bonuses for the year which represents 75% Of the monthly basic salary of each of them as provided by Article 17 of Exhibit C3. Also medical allowance paid to each of the staff as shown in Exhibit C7 was calculated based on parameters provided in Article 24(3) thereof. It was foolhardy, therefore, for the defendant to assert that Exhibit C3 was no longer in force, when the evidence of its operation contradicts it.
(f) In paragraphs 11(e), (i), (j) and (l), 18, 29 and 30 of the defendant’s statement of defence, the defendant relied on the provisions of Exhibit C3 in its defence in terms of Articles 40(c), 19, 18, 28 and 33 as well as pages 16 to 18 of Exhibit C3.
24. The claimant proceeded that the denial by the defendant of the operation of Exhibit C3 will be seen for what it really is: a frantic effort to deny the existence of its own document in a futile attempt to deny the claimant of his benefits under the document. That under cross-examination, the defendant’s witness was asked if the defendant made any other rule or regulation governing its affairs, and he answered in the negative. Of course, that no such other rule is in evidence. It is the burden of the defendant, therefore, to show to the Court any other basis upon which the calculations of the benefits contained in Exhibits C5, C7, C7A, C7B, D2, D3 and D4 were made other than from the provisions of Exhibit C3. And this burden it has woefully failed to discharge, citing sections 134 and 133(2) of the Evidence Act.
25. The defendant had also argued that the claimant, whose employment was not confirmed up to the date of his termination, was not entitled to any benefits under the Senior Staff Condition of Service. To the claimant, this defence flies in the face of the clear provision of Article 2 of Exhibit C3 which states as follows: “Personnel subject to these policies are those employees classified as Senior and Technical Staff, confirmed or probationary employees of Waterwell Services Limited.” That Article 8 provides under the subhead Category of Staff that the senior staff compliment of the defendant includes (a)………(b) Non Technical Staff i. e. Accountancy, Administration, Marketing, Protocol, etc. Accordingly, that on the strength of Articles 2 and 8 the argument of the defendant falls flat on its face for lack of merit. The claimant then urged the Court to hold that he has adduced satisfactory evidence to prove that the Senior Staff Condition of Service remained in force in the defendant’s organization during the period of the claimant’s employment and that it actually governed the claimant’s employment.
26. On issue (3) i.e. whether the defendant in all the circumstances could lawfully refuse to confirm the claimant’s employment at the end of the probation period without stating any reason nor specifying a period of extension of the probation, whilst keeping the claimant in its service; nor fail to remit the deductions from the claimant’s monthly salary to a pension administrator, the claimant submitted that his employment by the defendant was a contract governed by the terms and conditions stipulated in Exhibits C2 and C3. It was binding and was not open to variation by verbal assertion nor by mere conduct. Any intention to vary the provisions therein must be in writing also. That the Offer of Employment (Exhibit C2) stipulated three months probationary period and this was based on an advantage accorded to the claimant for his past meritorious service in the defendant’s organization. That if Exhibit C2 is taken as the sole document which governed the claimant’s employment, then the terms it stipulated must be strictly complied with, and the claimant’s employment, unless terminated, shall be confirmed at the end of the probationary period which fell due on 1st June 2007. That the defendant’s failure to confirm his employment upon maturity constituted a breach of contract as Exhibit C2 did not afford the defendant any discretion to extend the probationary period. When the defendant failed to take the option of terminating the employment at the end of the probationary period, it was bound to confirm the employment. However, it is the claimant’s case that the Senior Staff Condition of Service was in force and also applied to the employment, under which the Defendant had a discretion to extend.
27. That the defendant had stated in its defence and evidence that the claimant was deficient in his performance, hence the defendant continued to extend the probationary period until it terminated the employment in December 2008. That it is instructive that Article 9 of the Senior Staff Condition of Service provided in part as follows: “… At the end of the first six months of employment, the company shall:
– confirm the employment and convert the individual’s status to that of regular employee, or
– terminate the employment relationship, or
– extend the probationary period for a period not exceeding six months in the case of field personnel.
To the claimant, on the basis of this provision of Exhibit C3, the defendant had a duty either to confirm the claimant’s employment at the end of the agreed period of probation or terminate it. If it had any reason not to confirm the claimant’s employment, it must terminate the employment relationship. In the final analysis, the claimant not being a field personnel, the defendant had no discretion to vary or extend the probationary period of his employment.
28. The claimant went on that the defendant’s assertion of the claimant’s poor performance, disloyalty, and disobedience of the defendant’s rules is a volte face and deficient in material proof. The defendant could not find nor show to the Court any single query issued to the claimant nor one occasion of a disciplinary action being taken against him in compliance with the provision of Article 34 of Exhibit C3. That the defendant did not challenge the evidence of superlative credentials and performance adduced by the claimant in paragraphs 17 and 18 of his further witness statement in reply. The defendant was unable to show how the claimant could not perform despite such record, nor why it kept the claimant in its employment despite all its negative assessment of him. That contrary to the defendant’s assertion, it was the claimant who wrote to the defendant severally to demand the confirmation of his employment (Exhibits C4 and C4A). In the last sentences of both cited letters the claimant unequivocally advised the defendant that if he (the claimant) failed to meet the performance standard, it should inform him, and if it is so inclined, it should terminate his employment. The defendant played deaf to both documents and other reminders, and took no action to remedy the ongoing breach. But that as soon as it felt that it has become stable enough and no longer required the claimant, it terminated his employment in an insolent manner. The claimant the submitted that the proper answer to issue (3) ought to be in the negative, citing Astra Industries Nig. Ltd v. Nigeria Bank of Commerce and Industry [1998] 3 SC 98 at 111-112. That the defendant has no reason for not confirming the claimant’s employment and indeed ignoring the claimant’s reminders to it. That it will be unconscionable for the defendant to rely on its bad faith in the transaction to insist that the non-confirmation of claimant’s employment was the claimant’s fault.
29. The claimant continued that in its defence to the claim of the claimant that it made deductions from his monthly salaries for 23 months for National Social Insurance Trust Fund a.k.a pension contributions, but failed to remit same to an administrator of pension funds, the defendant admitted not remitting the sum but claimed that it was due to the claimant’s non-submission of his Pension Account PIN to it. In reply the claimant deposed in paragraph 10 of his further witness statement on oath in reply that he supplied the information in March 2007 on his assumption of duty, but when the account was not utilized, he opened another account in 2009 and again supplied the PIN to the defendant by his letter dated 14th July 2009. However, that assuming without conceding that the claimant did not submit the PIN, the defendant is obliged under section 11 of the Pension Reform Act 2004 (as amended by the Pension Reform Act 2014) to open an account with a Pension Fund Administrator in the name of the employee and to remit all contributions to the Administrator within a month of each deduction. Also the defendant had undertaken the obligation in Art. 41 of Exhibit C3 to save the contributions with the American International Insurance Company for the benefit of each staff which included claimant.
30. Issue (4) is whether the claimant proved his claim contained in the now reliefs (a) and (b) for a declaratory order and for special and general damages. To the claimant, for a claimant to succeed in a claim for order of declaration, he is required to adduce sufficient evidence as to satisfy the Court of his entitlement to the declaratory relief sought. The declaratory order sought by claimant in the present case is as to the existence or not of a state of affair arising from the conduct of the defendant, namely, that the defendant breached the terms of the claimant’s employment. The evidence led by the claimant in the suit is preponderant and leads inexorably to a determination that the defendant’s conduct was indeed a breach of the claimant’s contract of employment. That damages is one of the remedies open to a victim of a breach of contract. The rule is that whenever one party breaks a contract into which he freely entered, the other party has a right of action against him for damages, the aim of which is compensatory, citing Sally Wetheim v. Chicoutimi Pulp Co. [1911] AC 301 at 301, Economic Exports Ltd v. Odulola [1959] WRNR 239 and G. Garabedian v. Jamakani [1961] 1 All NLR 177.
31. To the claimant, to succeed in a claim for special damages, the claimant is required to plead the damages with particulars and to prove same strictly, citing Savannah Bank of Nig. Plc v. CBN [2009] 6 NWLR (Pt. 1137) 237 CA. That the items of special damages claimed by the claimant are as set out under paragraph 29 of the statement of facts. That the claimant’s evidence in support of the claim for special damages is contained in paragraph 29 of the claimant’s witness statement on oath which he adopted and relied on the his evidence in chief. That the claimant claimed the sum of N15,844,837.00 being his specific losses suffered as a result of the defendant’s breach of the term of the contract of employment. That what the law requires of the claimant is to give particulars of how the special damages he claimed arose. This he did by the particulars supplied under paragraph 29 of his witness statement. That it is, therefore, not correct as claimed by the defendant in its final address that the claimant did not furnish particulars of his claim for special damages. For each item of claim for special damages, the claimant provided the basis and parameters of the calculation that led to the amount. That the stating of particulars of claim is intended for the defendant to know the basis of the claim and to contradict same if he has grounds to do so; and to say that the claimant ought to do more is to require him to do the arithmetic and calculations on the Court process, citing Savannah Bank of Nig. Plc v. CBN and UBA Plc v. Mrs Ogundokun [2009] 6 NWLR (Pt. 1138) 450 CA.
32. The claimant then outlined the particulars of special damages he claims and as set out under paragraph 29 thus:
• Item “a” is claim of the increment of salary to which the claimant became by 1st June 2007 when he completed his probationary period without any query or notice of dereliction of duty from the defendant. It is ascertained percentage of 30% of his entry basic salary of N400,000.00 per month.
• Item ‘b” is a claim based on Article 21 of Exhibit C3 which provides for the payment of 75% of the basic monthly salary as leave allowance. Prior to the end of 2008 the defendant was owing the claimant six months arrears of salary, did not pay him before the defendant proceeded on the Xmas break, and upon resumption from the break on 5th Jan. 2009, the claimant was terminated without receiving his benefits (Exhibit C9A).
• Item “c” claim is for the transport allowance due to him upon the breach of the condition in clause 5 of Exhibit C2. The claimant gave evidence that the defendant paid him N25,000.00 to cover the transport for the first week of his employment and promised to purchase the car and hire a driver by the following week, but thereafter breached the agreement. He was constrained to use rented cars for his work at a monthly cost of N100,000. The amount claimed is at the rate of N100,000 per month for the 22 months of his employment (less the N25,000 paid to him). In both Exhibits C4 and C4A at paragraph 4 in each, the claimant brought this issue to defendant’s notice.
• Item “d” is for the unpaid medical allowance at the rate of 55% of his basic monthly salary as provided by Article 24 of Exhibit C3 to which he was due.
• Item “e” is a claim based on Article 14(v) of Exhibit C3 which provides for the payment of “rent, transport, furniture alliances etc. may be separated or aggregated, but are determined by appropriate memorandum or appointment letter”.
• Item “f” is a claim for the specific sum spent by the claimant on out station official engagement. Article 14(iv) of Exhibit C3 provides for the payment of out of station allowance. But all the claimant claims is costs.
• Item “g” is the claim for expenses incurred by the claimant at N10,000.00 per month for the duration of his employment. In Exhibits C4 and C4(a) at paragraphs six in each letter, the claimant demanded that telephones be installed in the offices for official use to avert his incurring costs on same.
• Item “h” is the cost incurred by the claimant in installing internet facility in the defendant’s office which was used by all staff and the defendant’s Chief Executive, but which the defendant destroyed as part of shooing off the claimant on the occasion it terminated his employment.
• Item”i” is a claim for National Social Insurance Trust Fund (or pension) contributions deducted from the claimant’s salaries for 23 months, that is, from March 2007 to January 2009 at the rate of N60,000.00 per month. It was found that the defendant deducted both its own monthly contribution of N30,000 and the claimant’s monthly contribution of N30,000 from the claimant’s salary in each month as shown in Exhibit C9(a) as NSITF. The amount in document did not include the N60,000 subsequently deducted from the one monty basic salary in lieu of notice at the time it was paid.
• Items “j” and “k” are claims based on Articles 18 and 19 of Exhibit C3 both of which provide for the payment of 3% respectively of the basic salaries of the staff entitled to the bonuses which in each case include management and accounting staff within which category the claimant falls.
• Item “l” is a claim based on the provision of Article 40(b) of Exhibit C3 where it is provided that Termination Allowance shall be paid in respect of employees who suffer loss by reason of termination of employment through no fault of their own. The claimant has shown that the termination of his employment was through no fault of his but by the defendant’s decision not to be bound any longer by the terms of the employment.
• Item “m” is claim based on the claimant’s case that his employment was due for confirmation on 1st June 2007 by which date he became due to an increment in his basic monthly salary from N400,000.00 to N520,000.00 per month. The defendant paid him only N400,000.00 at salary in lieu of notice upon the termination. The claim is for the difference between the sum paid and the sum which ought to be paid.
• Item “n” is a claim based on evidence which was adduced in paragraphs 19 and 20 of his witness statement on oath and supported by Exhibits C6 and D3.
33. The claimant also claimed general damages in the sum of N24,155,163.00 being the difference when the sum of N15,844,837.00 claimed as special damages is deducted from the total amount of N40,000,000.00 claimed in the suit. That as stated in the claim, and proved by evidence, the claim is for the breach of contract of employment by the defendant, which caused him to suffer loss of employment, loss of productivity, loss of goodwill, and loss of integrity, relying on UBA Plc v. Ogundokun (supra) at page 489 where the Court of Appeal held that: “General damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of or necessary results of the wrong complained of. It is awarded by the court where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man”.
34. The claimant concluded by urging the Court to hold that he has proved his case on all the reliefs claimed, has also repelled the unsubstantiated attacks of the defendant, and that the burden of proof was properly shifted on the defendant, but the defendant failed to prove its allegations against the claimant nor its denials of the entitlements of the claimant.
THE DEFENDANT’S REPLY ON POINTS OF LAW
35. The defendant’s reply on points of law is anything but a reply on points of law. It is merely a rehash, a re-argument, of its arguments in the final written address. It is thus needless reiterating the said re-argument here.
COURT’S DECISION
36. In considering the merit of the claimant’s case, I start off with the clarification of a point made by the defendant in its final written address. In paragraphs 2.2 and 2.6 of its final written address, the defendant stated that this Court gave the claimant leave to amend his statement of facts for which the claimant filed an amended statement of facts. This is not true. The records show that on 11th February 2016 and 17th May 2017, this Court rejected two applications to amend the claimant’s originating processes. This means that the originating processes before the Court for purposes of this suit remain those filed on 24th October 2014 including the sworn deposition of 24th October 2014 as well as the reply processes filed on 23rd July 2015. It is this error on the part of the defendant that led it to submit in paragraph 2.6 of its final written address that the witness written statement dated 24th October 2014 was wrongly admitted and it should be expunged from the records of proceeding. As it is, the processes of the claimant filed on 24th October 2014 and 23rd July 2015 are the processes valid for the prosecution of the claimant’s claims in this suit. This means that arguments of the defendant premised on any other process goes to no issue and so will be discountenanced in this judgment.
37. The claimant when adopting his final written address had urged the Court to discountenance the defendant’s reply on points of law because it was a re-argument of submissions already made by the defendant. I read through the reply on points of law. I agree with the claimant that the defendant’s reply on points of law is a re-argument of its defence submissions already made out in the final written address. In fact, in some instances, the defendant brought up new issues. For instance, in its final written address, the defendant did not raise the issue of the admissibility and/or evidential value of any of the exhibits tendered despite that the Court permitted the parties to do so especially in terms of Exhibits C8, C8(a) and C9. The defendant would, however, wait until in paragraphs 2.1 and 4.3 of its reply on points before it submitted that Exhibit C3 is inadmissible evidence. How does the defendant expect the claimant to react to this piece of submission? The law is that a reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). Accordingly, I shall discountenance the defendant’s reply on points of law; and I so do.
38 There is the issue of the admissibility and/or evidential value of Exhibits C8, C8(a) and C9 raised by the Court during trial. None of the parties made any submissions on this issue in their final written addresses. Exhibit C8 is a handwritten sheet of paper containing figures. The source is unknown; it has no signatory; and it has no date. Exhibit C8(a) is headed “Deduction for Days Off-Duty – Jan’ 08”. It has the name of the claimant on it; and appears to be signed by Managing Director but without any disclosure as to who the Managing Director is. It has typed sums on it as against gross monthly pay, number of working days, daily salary and number of days absent. Its source is unknown and it has no date. Exhibit C9 is an undated letter of termination addressed to the claimant and signed by Peter Oba, Managing Director. To the extent that these three exhibits are not dated (and Exhibit C8 is additionally not signed), they become inadmissible. See
Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47, Sarai v. Haruna [2008] 23 WRN 130 ,Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). This means that Exhibits C8 C8(a) and C9 have no evidential value and so are hereby discountenanced for purposes of this judgment.
39. There is the issue of the applicability of Exhibit C3, the Senior Staff Condition of Service Revised January 2nd 2004. To the claimant, when clause (2) of Exhibit C2, the offer of employment, referred to “the organization condition of service”, what was meant was Exhibit C3. The defendant, however, argues that by Article 5, Exhibit C3 had a duration of only 1st January 2004 to December 2006; and that when the claimant was employed vide Exhibit C2 dated 9th February 2007 but with effect from 1st March 2007, Exhibit C3 had expired and so was inapplicable. The problem here, as pointed out by the claimant, is that Article 5 is badly drafted. It provides thus:
All terms of conditions are subject to the laws and regulations of the Federal Republic of Nigeria; thus they are liable to change in response to changes in the law.
Not withstanding changes in these terms and conditions due to changes to the law, these terms and conditions herein, the company concedes that the agreement from 1st January 2004 to December 2006.
40. It is by this provision that the defendant argued that Exhibit C3 had expired. In the first place, in labour relations bad, or ambiguity in, drafting must be resolved against the party that made the drafting, the defendant in the instant case. See James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016. Secondly, Article 3 of Exhibit C3 on validity acknowledges that any part of Exhibit C3 may be rendered void and illegal by any law or government regulation or court order; and where this is the case, “the invalidity or illegality of such parts thereof, not withstanding, the same document shall continue in full force and effect”. Thirdly, it is the claimant who tendered Exhibit C3 as the document containing the terms and conditions of his employment. The defendant argues that Exhibit C3 had expired but did not tender the current conditions of service applicable to the claimant since clause (2) of Exhibit C2 talks of “the organization condition of service”, certainly (or at least presumably) a separate document from Exhibit C2 itself. If the thinking of the defendant is that there was no such separate document, it must realize that nature abhors any vacuum. Exhibit C3 cannot exist, expire and have no new/other document replacing it. As long as there was no new conditions of service replacing Exhibit C3, Exhibit C3 continued to exist as such. So aside from the badly drafted Article 5, I am not convinced at all by the argument of the defendant that Exhibit C3 expired as not to apply to the claimant’s employment. If this argument were true, the defendant would have tendered the current and applicable conditions of service. That it did not do so means that Exhibit C3 remained applicable even in the case of the claimant’s employment. I so hold. Exhibit C3 would accordingly be used as such in this judgment.
41. The claimant’s case is a claim for two reliefs already set out at the start of this judgment. By the Supreme Court decision in 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. In like manner, the claimant’s now reliefs (a) and (b) must circumscribe his claim. Relief (a) prays for “a declaration that the defendant breached the terms of employment of the claimant by failing to confirm the claimant’s employment at the end of the three months period of probation, nor increasing the claimant’s salaries and allowances as per the agreement, nor paying the claimant’s salaries, allowances and all other entitlements as and when due, nor fulfilling other conditions stipulated in the agreement governing the claimant employment”. In paragraph 27 of the statement of facts, the claimant acknowledged that many months after the termination of his employment and after several demands, the defendant paid him the arrears of his salaries from July to December 2008 and one month salary in lieu of notice but that the payment was at the flat rate of N400,000 per month contrary to the terms of employment. There are four components of the claimant’s complaint as per relief (a). They are:
• breach of the terms of employment by failing to confirm his employment;
• failure to increase his salary and allowances;
• failure to pay his salary and allowances and other entitlements as and when due; and
• failure to fulfill other conditions stipulated in the agreement covering the claimant’s employment.
These four components are reflected in the claimant’s claims as per relief (b) since it is the grant of the declaratory order as per relief (a) that entitles the consideration of the grant of the monetary sum in relief (b). I shall accordingly take both reliefs together.
42. But first, the claimant complains that he was not confirmed. Before addressing this issue, I must state that only Exhibits C2 and C3 in the main contain the terms and conditions of the claimant’s employment. The reference to Exhibit C1 by the claimant is merely an offer to the defendant, which by the contents of Exhibit C2 cannot be said to have been accepted by the defendant. Exhibit C1 accordingly does not regulate the claimant’s employment and so would be discountenanced in this judgement. I so hold.
43. Exhibit C2 dated 9th February 2007 offers the claimant employment at a monthly salary including housing allowance of N400,000. Three other conditions are stipulated in clause (4) of which states: “Probation period is 3 (three) months with the advantage of past service in the organization”. The claimant signed Exhibit C2 as accepting the terms and conditions. The argument of the claimant as to non-increase of his salary and allowances as per agreement is that he ought to have been confirmed, which would have led to an increase of 30% in his basic salary. To start with, Exhibit C2 did not expressly state that after three months of probation, the claimant would be automatically confirmed; neither did it expressly state that upon confirmation, the basic salary of the claimant would be automatically increased by 30%. And the claimant did not show to this Court any other instrument mandating the 30% increase in his basic salary. This is at the root of the general defence of the defendant that the claimant did not prove his claims. I shall talk on this shortly.
44. Though Exhibit C2 did not expressly state that confirmation is automatic after three months, the law often threats the issue of confirmation of appointment as a matter of implication. By Obafemi Awolowo University v. Onabanjo [1991] 5 NWLR (Pt. 193) 549 CA, a servant is deemed to have been re-appointed and confirmed by implication, if after his probationary period, although not specifically confirmed in writing, he is encouraged to continue working by his master and duly paid for his continued services by the master. See also University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478; [2013] NSCQR Vol. 53.3 page 330 SC. 258/2005. This is true of the instant case. The claimant was allowed by the defendant to work beyond the three months probationary period indicated in clause (4) of Exhibit C2. This being so, the claimant’s employment must be deemed to have been confirmed. I so hold. The issue of the defendant breaching the contract of employment by not confirming the claimant does not accordingly arise at all. I so hold. There is no provision (and this cannot be a matter of implication) that the claimant’s salary automatically increased in virtue of the deemed confirmation. Any claim in this regard must be supported by concrete and credible evidence. Has the claimant done this? This remains the key issue especially in terms of relief (b).
45. The claimant broke his claim for N40 Million as per relief (b) into two: the claim for N15,844,837.00 claimed as special damages in terms of the particulars listed out in paragraph 29 of the statement of facts and the corresponding paragraph 29 of the deposition; and the claim for N24,155,163.00 as general damages. The two sums added up gives the total sum of N40 Million claimed by the claimant. I shall take the claim for N15,844,837.00 first, which the claimant himself acknowledged is a claim for special damages. In proof of his claim for special damages in the said sum of N15,844,837.00, the claimant referred the Court to paragraph 29 of his witness statement on oath which he adopted and relied on as his evidence in chief; and then submitted that what the law requires of him is to give particulars of how the special damages he claimed arose. To the claimant, he did this by the particulars supplied under paragraph 29 of his witness statement.
46. The problem here is that the claimant seems to think that once particulars of special damages are given in the pleadings he has discharged the burden of proof placed on him by law. It is this fallacy that led the claimant to submit that the stating of particulars of claim is intended for the defendant to know the basis of the claim and to contradict same if he has grounds to do so; and that to say that the claimant ought to do more is to require him to do the arithmetic and calculations on the Court process. Yes, the claimant MUST DO THE ARITHMETIC AND CALCULATIONS; otherwise, his claim must fail as countless case law authorities show. It is not the duty of the Court to do the calculations for the claimant. Even UBA Plc v. Mrs Ogundokun [2009] 6 NWLR (Pt. 1138) 450 CA cited by the claimant in paragraph 4.19 of his final written address talks of “Strict proof of damages means that the evidence adduced by the plaintiff must show how particularly in accordance with his pleadings and while basing his claim upon a precise calculation must give the defendant access to the fact which makes such calculation possible”. And in University of Jos v. Dr M. C. Ikegwuoha (supra) the Supreme Court had cautioned that a claim for salary, allowances and the like without any particularisation as to how the sum was earned and arrived at makes such a claim vague (my emphasis).
47. There is no question that the claimant’s claim of N15,844,837.00 is a claim for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) must be claimed specially and proved strictly with concrete, credible and compelling evidence. By 7UP Bottling Company Plc v. Augustus, the claim for salary is a claim for special damages, which must be proved to the satisfaction of the Court “with credible evidence and without such proof no special damages can be awarded”. And by Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, the claimant must first show an entitlement and then show how he arrived at the quantum of the entitlement; the claimant shows an entitlement by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. In other words, without more, the ipse dixit of a claimant is insufficient to ground a claim for special damages. See Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA).
48. I shall accordingly take each of the claims as per paragraph 29 of the statement of facts and see if the claimant has proved his entitlement to each aside from his ipse dixit as per paragraph 29 of his deposition. Item “a” is a claim of N2,400,000 being the increment of salary to which the claimant became due by 1st June 2007 when he completed his probationary period without any query or notice of dereliction of duty from the defendant. It is ascertained as 30% of his entry basic salary of N400,000.00 per month. I indicated earlier that the Court was not shown any document that authorizes this increment of salary. Exhibit C2 is silent on such an increment. The claim is thus not proved. It fails and so is dismissed.
49. Item ‘b” is a claim for leave allowance which the claimant puts at N390,000 and said is based on Article 21 of Exhibit C3 which provides for the payment of 75% of the basic monthly salary as leave allowance. Prior to the end of 2008 the defendant was owing the claimant six months arrears of salary, did not pay him before the defendant proceeded on the Xmas break, and upon resumption from the break on 5th Jan. 2009, the claimant was terminated without receiving his benefits (Exhibit C9A). Article 21 deals with leave allowance; even here, it deals with leave of 21 calendar days, 28 calendar days and 35 calendar days. The claimant’s leave as per clause (2) of Exhibit C2 is 2 weeks, something not covered by Article 21 of Exhibit C3. Article 21 provides one month’s basic salary as the vacation allowance. What is the claimant’s basic salary? Was it even pleaded? The claimant did not plead his basic salary. He only pleaded Exhibit C2; and Exhibit C2 did not indicate what the claimant’s basic salary is. It only states that his monthly salary including the house allowance is N400,000. This appears to be gross, not basic, salary. As it is, this claim remains unproved. It fails and so is dismissed.
50. I shall take items “c” and “g” together since they rely on the same exhibits, Exhibits C4 and C4(a), both respectively dated 31st August 2007 and 31st October 2007. Item “c” is a claim for N2,200,000 being transport allowance due to him upon the breach of the condition in clause (5) of Exhibit C2. Clause (5) simply indicates that “Official car plus driver” is part of the claimant’s terms and conditions of employment. It places no monetary value for non-provision of these items. The claimant gave evidence that the defendant paid him N25,000.00 to cover the transport for the first week of his employment and promised to purchase the car and hire a driver by the following week, but thereafter breached the agreement. He was constrained to use rented cars for his work at a monthly cost of N100,000. The amount claimed is thus at the rate of N100,000 per month for the 22 months of his employment (less the N25,000 paid to him). The reliance by the claimant on Exhibits C4 and C4A especially paragraph 4 in each is to the effect that he not only brought this issue to the defendant’s notice but he made a demand for the payment of the said sum incurred as transport cost since the car plus driver was not provided by the defendant.
51. Item “g” on its part is the claim for N220,000 being telephone expenses incurred by the claimant at N10,000.00 per month for the duration of his employment (22 months, from March 2007 to December 2008). As with claim “c”, the claimant relied on Exhibits C4 and C4(a) but this as per paragraph six of each letter, for this claim. In the said paragraph, the claimant demanded that telephones be installed in the offices for official use to avert his incurring costs on same. The truth, however, is that in the second paragraph at the second page of both Exhibits C4 and C4(a), the claimant merely requested from the defendant that there should be an agreed monthly telephone allowance for him. There is no evidence before the Court that such an agreement was reached.
52. All of this aside, like I indicated earlier, in both the claim for transport and telephone expenses incurred by the claimant per month, the claimant referred to Exhibits C4 and C4(a) as documents that he used in demanding and bringing to the notice of the defendant his respective claims under heads “c” and “g”. The claimant must note here that a letter from the claimant himself cannot be proof of the claims/sums therein. In Barrister Jerome Lucky Simon v. Barrister Moses Okosun unreported Suit No. NICN/LA/78/2016, the judgment of which was delivered on 25th April 2018 this Court at paragraph 11 held thus:
Even if there was an employment relationship between the claimant and the defendant, Exhibit C2 dated 21st April 2015 is a letter of demand by the claimant to the defendant for N655,000.00 being the unpaid outstanding salaries from June 2012 to 6th February 2015. Exhibit C2 is written on the letter-headed paper of the claimant although the physical address on it has changed from that used in Exhibit C1. As a letter of demand, Exhibit C2 can only be proof of a demand, not proof of entitlement to what is demanded. It is proof of the demand for outstanding salaries, but not proof of the entitlement to the outstanding salaries; it is not even proof of the salaries themselves. I so find and hold.
As it is, claims “c” and “g” have not been proved. They fail and so are dismissed.
53. Item “d” is a claim for N201,674 for the unpaid medical allowance for 22 months from March 2007 to December 2008 at the rate of 55% of his basic monthly salary. The claimant relies on Article 24 of Exhibit C3 for this claim. As with item “b”, item “d” relies on the basic salary of the claimant for calculation. Since the claimant did not plead and prove his basic salary, this claim must fail as it is not proved. I so hold. The claim is accordingly dismissed.
54. Item “e” is a claim of N1,000,000 as furniture allowance at N45,454.55 per month for 22 months from March 2007 to December 2008. The claimant relies on Article 14(v) of Exhibit C3 which provides thus: “Senior staff are entitled to the following bonuses as exppatiate upon by relevant memoranda…(v) Rent, transport, furniture allowances, etc. may be separated or aggregated, but are determined by appropriate memorandum or appointment letter”. Exhibit C2, the offer of employment, says nothing about furniture allowance; and the claimant did not supply any memorandum to that effect. I do not, therefore, see how the claimant thinks he is entitled to furniture allowance given the wordings of Article 14(v) since it states that furniture allowance is “determined by appropriate memorandum or appointment letter”. As it is, this claim has not been proved. It fails and so is dismissed.
55. Item “f” is a claim for N17,000 being unrefunded official travel expenses i.e. expenses incurred for out station official engagement. The claimant relied on Article 14(iv) of Exhibit C3, which provides for the payment of out of station allowance. But to the claimant, all he claims is costs. To claim for out station allowance or cost/expenses as to official travel, the claimant must show authorization for the trips as well as the exact costs/expenses incurred. Nothing of this had been done by the claimant or shown to the Court. As it is then, in the instant case, the claim for refund of official travel expenses incurred by the claimant on out station official engagement is not supported by any document showing the approval for the official engagement, the cost incurred on the official trip, etc. In Mr. Patrick Aimiosior v. Industrial & General Insurance Plc unreported Suit No. NICN/LA/184/2012, the judgment of which was delivered on 3rd June 2014, this Court rejected a claim for out-station allowance/estacode on the ground that no document was shown that entitles the claimant to it. Accordingly, this claim fails and so is dismissed.
56. Item “h” is a claim for N100,000 being cost of damaged internet facility. To the claimant, the cost incurred by him is in installing internet facility in the defendant’s office which was used by all staff and the defendant’s Chief Executive, but which the defendant destroyed as part of shooing off the claimant on the occasion it terminated his employment. Nothing has been shown to this Court to indicate that the claimant was authorized to install any internet facility, nor is it shown to this Court any document authenticating the exact cost incurred. This Court has not been shown how the claimant came by the N100,000 he claims. As it is, this claim has not been proved. It fails and so is dismissed.
57. Item”i” is a claim for N1,380,000 being deductions for National Social Insurance Trust Fund contributions for 23 months from March 2007 to January 2009. To the claimant at paragraph 16 of his deposition, the defendant deducted from the claimant’s monthly salary the sum of N60,000 (at N30,000 each representing the respective contribution of the employer and employee). The claimant relied on Exhibit C9(a) dated 15th December 2008. That the amount in the document did not include the N60,000 subsequently deducted from the one month basic salary in lieu of notice at the time it was paid. In an alternative submission, the claimant had contended that the defendant is obliged under section 11 of the Pension Reform Act (PRA) 2004 (as amended by the Pension Reform Act 2014) to open an account with a Pension Fund Administrator in the name of the employee and to remit all contributions to the Administrator within a month of each deduction. It is section 11(5) of the PRA 2014 that actually makes provision for this. The old PRA 2004 did not have any provision to this effect. The PRA 2014 came into effect on 1st July 2014 and it repealed the 2004 PRA. See section 117(1) of the PRA 2014. Now by paragraph 29 of the claimant’s deposition, the defendant terminated his employment in January 2009. This means that as at January 2009, there was no duty of the defendant comply with the provision of section 11(5) of the 2014 PRA since that provision was not in existence then.
58. I indicated earlier that Gabriel Ativie v. Kabelmetal (Nig.) Ltd held that a claim is circumscribed by the reliefs claimed. The manner in which the claimant framed relief (b) signifies that he wants the sum of N1,380,000 he claims per item “i” paid to him; yet by section 11(4) of the 2004 PRA retained as section 11(8) of the 2014 PRA, this cannot be. The said section 11(4) of the PRA 2004 provides thus: “The employee shall not have access to his retirement savings account nor have any dealing with the custodian with respect to the retirement savings account except through the pension fund administrator”; while section 11(8) of the PRA 2014 provides thus: “An employee shall not have access to his retirement savings account or have any dealing with the Pension Fund Custodian with respect to the retirement savings account except through the Pension Fund Administrator”. In paragraph 8 of the reply to the defendant’s statement of defence as well as the supporting paragraph10 of the claimant’s further witness statement, the claimant disclosed that he opened an account with IEI Anchor Ltd, notified the defendant of his RSA PIN and then asked the defendant to remit his pension contributions into the said account. The account number and/or RSA PIN were not disclosed by the claimant.
59. The sum the claimant claims here is N1,380,000, which the claimant puts is for 23 months i.e. up to January 2009. Exhibit C9(a)/D5 relied on by the claimant puts the sum as N1,320,000 i.e. 22 months (up to December 2008); even at this it provides the sum as deduction for NSITF. In other items, the claimant had claimed for 22 months. The claimant did not show to this Court why he is claiming as per item “i” for 23 months. Even when the claimant said that his termination was in January 2009, he did not give the exact day in January that the termination took effect. Exhibit C9, the letter of termination, which I held is inadmissible aside form being undated stated the termination took effect from 31st December 2008. In all respects, there is nothing before the Court to show that the claimant worked for the defendant other than for 22 months. Since Exhibit C9(a)/D5 stipulated N1,320,000 as the NSITF deductions, this is the sum that is in issue in terms of item “i”. I so find and hold.
60. Even as the claimant is claiming as per item “i”, he made it very clear in paragraph 29 of both his statement of facts and deposition that it is deduction for NSITF contribution. In talking about him owning an account with IEI Anchor Ltd, the claimant confuses matters further. NSITF as an institution caters for two types of contributions: the contributory pension contributions, which is actually administered by Trustfund Pensions Plc, the Pension Fund Administrator set up by the NSITF; and contributions for the Social Insurance Scheme set up under the Employees’ Compensation Act (ECA) 2010. Both the claimant and the defendant do not seem to understand this distinction for in all their discourse they assumed NSITF contributions was synonymous with pension contributions, something within the sole remit of Trustfund Pensions Ltd though set up NSITF. So when Exhibit C9(a)/D5 talked of N1,320,000 as NSITF contribution, was it in terms of contributions to Trusfund Pensions Plc or the Social Insurance Scheme set up under the ECA 2010? The Court is not told. In either case, the said N1,320,000 cannot be paid to the claimant, which is what relief (b) prays for. In this sense, the claim for item “i” as prayed for per relief (b) cannot be granted. It is accordingly rejected. Since the claimant as per relief (b) did not pray that the claim as per item “i” be paid to his Pension Fund Administrator, I cannot make that order either. Gabriel Ativie v. Kabelmetal (Nig.) Ltd (supra) held that a claimant cannot “obtain reliefs not claimed”; and “a court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed”. On this score, I cannot grant item “i” as claimed.
61. Items “j” and “k” are respective claims for N3,000,000 each for activity related bonus and productivity bonus, all for years 2007 and 2008 at N1,500,000 per year. For both items, the claimant is claiming a total sum of N6,000,000. The claim for both items is based on Articles 18 and 19 of Exhibit C3 both of which provide for the payment of 3% respectively of the basic salaries of the staff entitled to the bonuses which in each case include management and accounting staff within which category the claimant falls. I held earlier that the claimant did not plead and prove his basic salary. There is no way the claims as per items “j” and “k” can thus be assessed and computed as claimed in order to know how the claimant arrived at the total sum of N6,000,000. These claims accordingly fail and so are dismissed.
62. Item “l” is a claim for N1,560,000 being termination allowance. It is based on Article 40(b) of Exhibit C3 where it is provided that termination allowance shall be paid in respect of employees who suffer loss by reason of termination of employment through no fault of their own. To the claimant, he has shown that the termination of his employment was through no fault of his but by the defendant’s decision not to be bound any longer by the terms of the employment. The said Article 40(b) talks of the termination allowance being “one and half month’s salary service”. The evidence before the Court as per Exhibit C2 is that the claimant’s monthly salary is N400,000. One and half month’s salary will thus be N800,000, not N1,560,000 that the claimant is claiming under item “l”. The defendant argues that it terminated the claimant’s employment due to flagrant disobedience of the defendant’s rules and regulations. See paragraph 5 of the statement of defence. This allegation by the defendant was, however, not proved before this Court. As it is, therefore, the termination of the claimant’s employment was done through no fault of the claimant; and I so find hold. This means that Article 40(b) comes into effect; and so the claim for item “l” has been proved but only in terms of N800,000, certainly not N1,560,000 claimed by the claimant. Accordingly, I find and hold that the claim for N800,000 as per item “l” has been proved by the claimant. This is the sum due to the claimant by the defendant as per item “l”. I so order.
63. Item “m” is a claim for N120,000 being unpaid difference on one month salary in lieu of notice of termination of employment. It is based on the claimant’s case that his employment was due for confirmation on 1st June 2007 by which date he became due to an increment in his basic monthly salary from N400,000.00 to N520,000.00 per month. That the defendant paid him only N400,000.00 at salary in lieu of notice upon the termination. The claim is thus for the difference between the sum paid and the sum which ought to be paid. I already held that no right to any increment was proved by the claimant as to warrant any sum above N400,000. Accordingly, the claim for item “m” fails and so is dismissed.
64. Item “n” is a claim for N156,163 being a wrongfully deducted amount from salaries in November 2007 and February 2008. It is based on evidence which was adduced in paragraphs 19 and 20 of the claimant’s witness statement on oath and supported by Exhibits C6 and D3. In paragraph 19 of the claimant’s deposition, he deposed that the defendant wrongly and maliciously deducted the sums of N181,818.00 and N300,055.58 from his salaries in November 2007 and February 2008 respectively. Paragraph 20 on its part talks of the failure of the defendant to financially assist the claimant when he was forcefully evicted from his residential accommodation. Exhibit C6 is the pay advice slip for 31-01-08, which shows that N156,160.05 was deducted for absenteeism. Exhibit D3 is the Lagos Payroll for February 2008 showing a deduction of N266,055.58. It has no relationship whatsoever with the claim of N156,163 under item “n”. Exhibit D3 will accordingly be discountenanced for purposes of item “n”. I so hold. In defence, the defendant contended that it deducted the sum of N156,163.05 from the claimant’s salary due to the claimant’s absence from work based on the defendant’s rule of no work no pay. See paragraph 19 of the statement of defence and paragraph 22 of the defendant’s written statement on oath. In his reply to the statement of defence, the claimant did not react to paragraph 19 of the statement of defence. This means that the claimant admitted both the fact of his absence from work and the defendant’s policy of no work no pay. This being so, the claimant has no valid claim as per item “n”. The said claim accordingly fails and so is hereby dismissed.
65. Since the claimant’s case in the main fails, the claim for N24,155,163.00 as general damages has no basis. It fails and so is dismissed.
66. On the whole, and as it is, the claimant’s case succeeds only in terms of the payment of N800,000. This being so, I make the following orders:The defendant shall within 30 days of this judgment pay to the claimant the sum of N800,000 only being termination allowance. Failing this, the said sum shall attract interest at 10% per annum until fully paid.
67. Judgement is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
