LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Ovansa Ibrahim -VS- International Breweries Plc

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 6th February 2020                               SUIT NO. NICN/LA/02/2019

 

BETWEEN

 

OVANSA IBRAHIM                                                                     …        CLAIMANT

 

AND

 

INTERNATIONAL BREWERIES PLC                                  …        DEFENDANT

           

JUDGMENT

 

  1. The Claimant by his complaint dated and filed on 7th January 2019claimed against the Defendant for:

  1. The sum of N12, 782,781.67 [twelve million, seven hundred and eighty-two thousand, seven hundred and eightyone naira, sixty-seven kobo] being the amount wrongfully withheld from the terminal benefits due to the Claimant from the Defendant; and

  1. General Damages.

The Claimant filed with hiscomplaint a statement of facts, list of witnesses, statement on oath, list of documents, verifying affidavitand copies of the documents. Upon receipt of the originating processes, the Defendant caused its Solicitors to enter conditional appearance and file its statement of defence and accompanying processes dated 25th February 2019 but filed on 1stMarch 2019 together with an application for enlargement of time. The Defendant’smemorandum of appearance, statement of defence and accompanying processes were deemed to have been properly filed and served on 7th March 2019. Trial commenced on 11th April 2019 and was concluded on 4th November 2019. The Claimant adopted his statement on oath dated 7th January 2019 as his evidence in chief and tendered 5documents which were admitted in evidence and marked as exhibits 1 to 5; and he was duly cross-examined.The defence witness, Mr. Damilola Idowu, also adopted his statement on oath dated 1stMarch 2019 as his evidence in chief and tendered 2 documents which were admitted in evidence and marked as exhibits D1 and D2 and was cross-examined. In compliance with the Rules of the Court, parties filed their final written addresses which their respective counsel adopted. The matter was consequently set down for judgment.

  1. In the Defendant’s final written address, its counsel, Mr. Bimbo Atilola, formulated one issue for determination to wit:

“Whether the Claimant has proven [sic] his case to entitle him to his claims as per his complaint?”

He submitted that, in every trial, the crucial question which arises and upon which the ultimate verdict of the Court depends is on whom the burden of proof lies;and noted that the extant position of law is that the person who asserts has the duty to proof all his assertions. He referred to sections 131, 132 and 133 of the Evidence Act, 2011 and Adamu Erinle & Ors. v. Alh. Busari Aluko [2013] LPELR-22157[CA]to buttress his argument.He maintained that the Claimant has not proved his case to entitle him to his claims. He argued that the correct interpretation of the concluding paragraph of exhibit 1 is that resignation does not qualify an employee to make a claim under the double pilon scheme as the expression used and contemplated throughout the paragraph is termination not resignation. Furthermore, the employee must have rejected the transfer.This, he explained, the Claimant did not do.The Claimant accepted the transfer and took the benefits accruing from the transfer. He pointed out that the banding policy introduced by the Defendant enhanced the Claimant’s role and status including an enhanced salary in September 2018.These facts, he noted, are evident in exhibits 2 and D1 and have not been controverted.The Court was urged to accord credibility to it. The case ofGana v. FRN [2018] LPELR-44344[SC] was cited to buttress his submission.It was also argued that it is only a qualifying termination that will give an employee the right to make a claim under the double pilon scheme.

He urged the Court to adopt the literal rule of interpretation so as not to defeat the intention of the drafters of exhibit 1 and relied on A-G of Federation v. A-G of Lagos State [2013] LPELR-20974[SC] and APC v. Agbaje & Ors. [2015] LPELR-25668[CA]. He submitted that going by the literal and ordinary interpretation of the concluding paragraph of exhibit 1, voluntary resignation of an employee after taking benefits of his transfer is not accommodated under the double pilon scheme. He noted that what the Claimant seeks to do here is to eat his cake and yet wants to have it, a scenario not contemplated under the scheme. The Court was urged to dismiss the suit.

  1. In response learned counsel for the Claimant raised two issues for determination in the Claimant’s final written address dated 10th January 2020 to wit:
  2. “Whether theDefendant breached the terms of the employment contract it had with the Claimant as contained in Exhibit 1 when it failed and refused to compute the Claimant’s terminal benefit in accordance with the Defendant’s ‘double pilon’ policy, the Claimant having resigned as a result of the movement of the Claimant’s normal place of work by more than 25 miles?”

  1. “Whether, upon an evaluation of the evidence before the court, the acceptance of a relocation allowance from the Defendant pursuant to exhibit 2 precludes the Claimant from having his terminal benefits computed in accordance with the Defendant’s double pilon policy outlined in Exhibit 1?”

On issue one, it was contended that the Defendant breached the terms of the employment contract as contained in Exhibit 1 when it failed to compute the Claimant’s terminal benefit in accordance with the ‘Double Pilon’ policy, afterthe Claimant voluntarily resigned due to the movement of his normal place of work by more than 25 miles. Counsel posed two questions which would assist the Court in resolving the issue. First, whether the Claimant would have been entitled to the sums claimed under the ‘Double Pilon’ policy if he had not voluntarily resigned? Two, whether the relevant portion of Exhibit 1 preserves the right of the Claimant to the benefits claimed notwithstanding that he voluntarily resigned as a result of the movement of his normal place of work by more than 25 miles? He pointed out that the Defendant’s witness admitted under cross-examination that the Claimant would have been qualified under the ‘Double Pilon’ policy if he had not voluntarily resigned.According to him the Defendant admitted in paragraph 5 of its statement of defence that Exhibit 1 was incorporated into the Claimant’s contract of employment. The Court was urged to hold that the Defendant has admitted on oath and by pleading that the Claimant would have been entitled to the sums claimed under the ‘Double Pilon’ policy if he had not voluntarily resigned. Reliance was placed on sections 19 and 20 of the Evidence Act, 2011 and the case of Ogbonna v. Ogbuji [2014] 6 NWLR [pt.1403] 205 at 235.

 

On the second question, he agreed with the Defendant that the relevant portion of Exhibit 1 is clear and unambiguous and the literal rule of interpretation should be applied to give the words its natural ordinary meaning. However, he urged the Court to break the paragraph into four subsections: the general provision, the exceptions, the effect of the exceptions and the type of voluntary resignation excluded. Included in the general provision, he explained, is the first sentence of the paragraph which reads: “By accepting this letter, you agree to suspend any entitlement or claim relating to a ‘qualifying termination’ [and double Pilon] as set out in the Co-operation Agreement which otherwise arises as a result of the termination of your current role.” The exceptions are: one, “your employment is terminated by the company [other than ‘for cause’ or serious misconduct]”; two, “or your role and/or reporting level is materially diminished”;three, “or the target value of your total compensation is materially reduced”; four, “or your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below]”. The effect of the exceptions, he noted, is that “you will remain entitled to claim a “qualifying termination” [and double Pilon] at that time.” He argued that the type of voluntary resignation excluded from Double Pilon is if the resignation is ‘for any other reason’. He contended that Exhibit 3 clearly brings the Claimant within the fourth exception and urged the Court to note that the fact that the Claimant resigned because his normal place of business was moved by more than 25 miles was not challenged by the Defendant during the trial. The Court was, therefore, urged to resolve issue one in the Claimant’s favour.

On issue two, he explained that the Defendant’s witness, under cross-examination, admitted that the penalty for voluntary resignation within one year of being paid a relocation allowance is as specified in Exhibit 2, that is, a pro rata refund of the relocation allowance paid and received; and that Exhibit 1 is different from Exhibit 2. He submitted that the effect of this admission is that the contention of the Defendant in paragraphs 8, 9, 10 and 11 of its statement of defence amounts to a mistaken conflation of the terms governing transfer and payment of relocation allowance in Exhibit 2 with the terms governing qualification for benefits under the‘Double Pilon’ policy. He argued that paragraph 8 of the statement of defence is not evidenced by any documents and was not proved. It was also submitted that averments in pleading without evidence go to no issue. The case of UBA v. Astra Building [WA] Ltd [2010] 41 NSCQR [pt.2] 1016 was cited in support. Relying on paragraph 3 of Exhibit 2 counsel argued that Exhibit 2 contemplates a scenario where an employee resigns after initially accepting a transfer and receiving a relocation allowance. Consequently, the Court was urged to find that the only penalty provided in the contract of employment for resignation within one year of being transferred is a pro rata refund of the relocation allowance and resolve issue 2 in favour of the Claimant.

Counsel further argued that given that in civil cases, the burden of proof is discharged on a balance of probabilities, the Court should find on a preponderance of evidence that there is no term in the Claimant’s contract of employment which stipulates that in order to qualify under the double pilon policy the employee must have declined the transfer.Also, that the only penalty for resignation within one year of receiving relocation allowance is a pro rata refund of the relocation allowance; and that a proper construction of exhibit 1 is that the right of the Claimant to have his terminal benefits computed in accordance with the double pilon policy is preserved since his voluntary resignation was as a result of the movement of his normal place of work by more than 25 miles and grant the reliefs claimed and N1, 800,000 as general damages.

  1. By way of reply on points of law, counsel for the Defendant argued that an employee who claims any entitlement from his employer must prove his entitlement to the benefit and how he arrived at the amount he is claiming. He cited the case of Dungus & Ors. v. ENL Consortium Ltd [2015] 60 NLLR [pt.208] 39 in support. It was also argued that the Claimant’s failure to produce the Double Pilon Policy in Court amounts to urging the Court to speculate. On the claim forN1, 800,000 as general damages, counsel contended that this amount was not pleaded and proved, and was introduced for the first time in the Claimant’s final written address. On the alleged admission by the Defendant, Counsel argued that the Defendant did not admit facts which are in controversy between the partiesas it relates to the main issue of interpretation of Exhibit 1 and referred to Eigbe v. NUT [2008] 5 NWLR [pt.1081] 604 at 622 on the meaning of admission.

  1. I have carefully read the processes filed by the parties and considered the submissions of their counsel and, in my respectful view, the issue for determination in this case is whether the Claimant has proved his case to entitle him to judgment?

The law is well established that he who asserts must prove. See section 131[1] of the Evidence Act, 2011 and the case of Lawal v. All Progressives Congress& Ors. [2018] 7 SC [pt.VI] 183 at 213.Thus, the Claimant who initiated the suit on a set of facts which he claims entitles him to judicial relief has the burden of: first, establishing those facts and secondly, establishing that those facts entitle him to the reliefs he seeks. See Nduul v. Wayo & Ors. [2018] 7 SC [pt.111] 164 at 212.It is equally the law that in an employment dispute, it is the conditions of service that must be referred to in resolution of the dispute. See Mr. Osamata Macaulay Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108. In this case, Tsammani, J.C.A., observed that:

“… in an employer/employee dispute, it is the applicable conditions of service or any other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties.”

  1. The Claimant’s case,as can be gleaned from his pleading and statement on oath,is that he was an employee of the Defendant due to a merger of the Defendant with his erstwhile employer, Pabod Breweries Limited. As a result of the merger, a number of roles were cancelled and some staff were transferred to other States. In anticipation of issues which may arise from this exercise, the Defendant incorporated the provisions of its Cooperation Agreement with ABInBev into his employment contract by letter dated 12th December 2017, which was admitted in evidence and marked as exhibit 1. According to him, a term of this contract is that if he voluntarily resigned due to a transfer to a location more than 25 miles from his original location or because of a diminution of his role, such resignation would be deemed a ‘qualifying termination’ which entitles him to payment of terminal benefits computed on the basis of ‘Double Pilon’. He was transferred from Rivers State to Lagos State by letter dated 10th January 2018 and paid relocation allowance without increase in his salary. This affected him and his family and he informed the Human Resources officers. In addition, the Defendant implemented a banding policy which substantially diminished his role. As a result, he resigned his appointment by letter dated 5th August 2018, but in a series of emails after his resignation, he was informed that his terminal benefits would not be computed on the basis of the Double Pilon policy. Consequently, he briefed his Solicitors to demand payment of his terminal benefits on the basis of the Double Pilon policy. The Defendant countered by letter dated 15th November 2018 that the Double Pilon policy does not apply in the computation of his terminal benefit and attached a letter dated 8th November 2018 advising him of payment of N5, 486,907.50 as full and final settlement of his terminal benefit, instead of N18, 269, 689.17 which would have accrued to him under the Double Pilon policy. He suffered extensive emotional trauma and was subjected to severe financial pressure as a result of the Defendant’s failure to honour the terms of his employment. The letters of transfer, resignation and Defendant’s response were received in evidence and marked as exhibits 2, 3, 4 and 5 respectively. Under cross-examination he confirmed that he is a Chartered Accountant.

  1.  This case turns on the interpretation of exhibit 1, particularly the last but one paragraph which reads:

“By accepting this letter, you agree to suspend any entitlement or claim relating to a “qualifying termination” [and double PILON] as set out in the Co-operation Agreement which otherwise arises as a result of the termination of your current role. However, your rights will be preserved such that if, in the period between this offer taking effect and 24 months after change of control, your employment is terminated by the company [other than “for cause” or serious misconduct], or your role and/or reporting level is materially diminished, or the target value of your total compensation is materially reduced, or your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below] then you will remain entitled to claim a “qualifying termination” [and double PILON] at that time. For the avoidance of doubt, if you voluntarily leave the company at any time after accepting this offer for any other reason, then that will not constitute a “qualifying termination”.”

Defence counsel argued that the correct interpretation of this paragraph is that resignation does not qualify an employee to make a claim under the double Pilon scheme as the expression used therein is termination not resignation. He argued further that to qualify the employee must have rejected the transfer as voluntary resignation by an employee, after taking benefit of his transfer, is not accommodated under the double Pilon scheme. He contended that it is only a ‘qualifying termination’ that will give an employee the right to make a claim under the double Pilon scheme. He, therefore, urged the Court to adopt a literal rule of interpretation so as not to defeat the intention of the drafters of exhibit 1 and relied on A-G of Federation v. A-G of Lagos State [supra] and APC v. Agbaje & Ors. [supra].

Learned counsel for the Claimant conceded that the proper approach is to give the words its natural ordinary meaning. He divided the paragraph into four subsections: the general provision, the exceptions, the effect of the exceptions and the type of voluntary resignation excluded from the double Pilon scheme. Included in the general provision, he explained, is the first sentence of the paragraph which reads: “By accepting this letter, you agree to suspend any entitlement or claim relating to a ‘qualifying termination’ [and double Pilon] as set out in the Co-operation Agreement which otherwise arises as a result of the termination of your current role.” The exceptions are: one, “your employment is terminated by the company [other than ‘for cause’ or serious misconduct]”; two, “or your role and/or reporting level is materially diminished”; three, “or the target value of your total compensation is materially reduced”; four, “or your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below]”. He argued that the effect of the exceptions is that “you will remain entitled to claim a “qualifying termination” [and double Pilon] at that time.” He argued further that the type of voluntary resignation excluded from double Pilon is if the resignation is ‘for any other reason’; and that exhibit 3 clearly brings the Claimant within the fourth exception. It was also argued that exhibit 1 is different from exhibit 2 and that exhibit 2 contemplates a situation where the employee resigns after initially accepting a transfer and receiving a relocation allowance. Consequently, the Court was urged to find that the only penalty provided in the contract of employment for resignation within one year of being transferred is a pro rata refund of the relocation allowance.

  1.  I agree with learned counsel for the parties that the words used in the last but one paragraph of exhibit 1 are clear and should be given its ordinary meaning. See Daodu v. United Bank for Africa Plc [2003] LPELR-5634[CA] 22 and Dalek Nigeria Ltd. v. Oil Mineral Producing Areas Development Commission [2007] LPELR-916[SC] 49.I also find the categorization by Claimant’s counsel helpful. Evidently, the paragraph contains a general prohibition, which prevents the Claimant from claiming ‘any entitlement or claim relating to a “qualifying termination” [and double PILON]’ upon acceptance of the offer. It goes on to create some exceptions to the general provision. This was introduced with the following phrase: “However, your rights will be preserved such that if, in the period between this offer taking effect and 24 months after change of control….” The word ‘however’ is an adverb and was defined in Longman Dictionary of Contemporary English, New Edition for Advanced Learners, as “used when you are adding a fact or piece of information that seems surprising, or seems very different from what you have just said”. Ogunwumiju, J.C.A., explained the word ‘however’ in Abia State University v. Uwadiegwu Otosi [2010] LPELR-3565[CA] 18-19.She remarked thus:

“In Oxford Advanced Learners Dictionary 6th Edition “however” was defined as an adjective or adverb to mean “to whatever degree”. It is defined therein as “used to introduce a statement that contrasts with something that has just been said”. After considering the various interpretations of the phrase “so however” I am of the humble view that the words “so however” in the context in which it was used in the law can only amount to “provided” – thus it has the effect of a proviso. The effect of a proviso is to cut down or qualify general provisions or create exceptions or relax limitations or throw more light on any ambiguous aspect on an enactment.”

Thus, the word ‘however’ in that paragraph introduces a ‘proviso’, ‘an exception’ to the general provision. Theseexceptions have been ably argued by Claimant’s counsel and are: one, “[if] your employment is terminated by the company [other than ‘for cause’ or serious misconduct]”.Two, “[if] your role and/or reporting level is materially diminished”.Three, “[if] the target value of your total compensation is materially reduced”;and lastly, “[if] your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below]”.

It will be observed that the word ‘or’ is used to separate each exception. Section 18[3] of the Interpretation Act, provides thus:

“The word “or” and the word “other” shall, in any enactment, be construed disjunctively and not as implying similarity.”

The word “or” has also received judicial interpretationin many cases. These cases are in agreement that the word ‘or’ is disjunctive. It is a word that gives an alternative or option. See Kabirikim v. Emefor & Ors. [2009] LPELR-902[SC] 19-20, Abubakar & Ors. v. Yar’Adua & Ors. [2009] 5 EPR 1 at 46-47 and Goyol & Anor. v. INEC & Ors. [2011] LPELR-9235[CA] 13.

  1.  Thus, each of the exceptions is distinct and does not qualify the other. It is for this reason that I respectfully disagree with the submission of learned counsel for the Defendant in paragraph 4.5 of the Defendant’s final written address that “the only correct interpretation that [should] be given to the said paragraph is to the effect that resignation does not qualify an employee to make claim under the “double pilon scheme” as the expression used and contemplated throughout the said paragraph is termination and not resignation.” There is nothing in that paragraph which justifies this proposition. It should be noted that the paragraph provides, inter alia:

“However, your rights will be preserved such that if, in the period between this offer taking effect and 24 months after change of control, your employment is terminated by the company [other than “for cause” or serious misconduct], or your role and/or reporting level is materially diminished, or the target value of your total compensation is materially reduced, or your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below] then you will remain entitled to claim a “qualifying termination” [and double PILON] at that time. For the avoidance of doubt, if you voluntarily leave the company at any time after accepting this offer for any other reason, then that will not constitute a “qualifying termination”.”

The phrase “your employment is terminated by the company” is one of the exceptions and does not qualify the other exceptions.  To come within the ‘“qualifying termination” [and double Pilon] scheme’, the employee must come within any of the four exceptions. It will be observed that the phrase “qualifying termination” is in inverted comma, which gives it a life of its own. Nowhere in exhibit 1 is the phrase explained and it will defeat the clear intention of the makers of the document to read into exhibit 1 expressions which are not patent on the document. SeeDalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission [supra] at pages 49-50, where Ogbuagu, J.S.C., remarked that:

“If parties enter into an agreement, they are bound by its terms. One or the other party cannot legally or properly read into the agreement the terms on which the parties have not agreed.”

In Oforishe v. Nigerian Gas Company Ltd. [2018] 2 NWLR [pt.1602] 35 at page 53, Rhodes-Vivour, J.S.C, puts it more directly. He said:

“Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract.”

The rationale for this is that parties are presumed to intend what they have in fact written down. See Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] 30-31.

            Also, I agree with the submission of Claimant’s counsel in paragraph 4.9 of the Claimant’s final written address that the only type of voluntary resignation excluded from the “qualifying termination” [and double Pilon] scheme is a voluntary resignation made ‘for any other reason’.That is, a reason not covered by any of the exceptions. This is evident from the plain words used in the last sentence of that paragraph, which reads:

“For the avoidance of doubt, if you voluntarily leave the company at any time after accepting this offer for any other reason, then that will not constitute a “qualifying termination”.” [underlining mine]

  1.  The next question is whether the Claimant comes within the “qualifying termination” clause and thus entitled to have his terminal benefits calculated under the double Pilon scheme? Learned counsel for the Defendant argued that the Claimant’s resignation does not come within the “qualifying termination” clause because he did not decline his transfer. He contended that having accepted the transfer and received relocation allowance, he could not then resign and seek to claim “qualifying termination” in order to become entitled to double Pilon. Contrariwise, the Claimant’s counsel argued that the Claimant’s resignation falls within the fourth exception. To determine whether the Claimant comes within the fourth exception or not, regard must be had to exhibits 1, 2 and 3. While exhibit 1 sets out the terms of the contract, exhibit 2 introduced a clause which the Defendant claims modified the terms of the contract disentitling the Claimant to claim under the double Pilon scheme. Exhibit 3 is the letter of resignation. The last sentence of the last but one paragraph of exhibit 1 has been reproduced above. It reads: “For the avoidance of doubt, if you voluntarily leave the company at any time after accepting this offer for any other reason, then that will not constitute a “qualifying termination”.” First, this clause applies to voluntary resignation after accepting the offer contained in exhibit 1 and not after accepting a transfer to another location. Secondly, there is no relationship between exhibits 1 and 2. Both documents are different and relate to different situations. Exhibit 2 does not modify the provisions of exhibit 1. Paragraph 3 of exhibit 2 reads:

“Should you resign voluntarily within the next one year of being transferred, please note that you will have to repay a pro-rata amount of the total cost of relocation relative to the period of your stay in Lagos.”

Clearly, the penalty for resigning within one year of accepting a transfer is, as rightly argued by learned counsel for the Claimant, a pro-rata refund of the relocation allowance received. Voluntary resignation within one year of transfer, therefore, does not diminish the Claimant’s right to claim a “qualifying termination” in exhibit 1 and I so hold.

This said, does exhibit 3 come within the exceptions? Claimant’s counsel argued that it comes within the fourth exception, which provides that:

“… or your normal place of work is moved by more than 25 miles, [or for any of the reasons listed below] then you will remain entitled to claim a “qualifying termination” [and double PILON] at that time.”

The fourth exception is that the Claimant’s normal place of work is moved by more than 25 miles. In paragraph 8 of the statement of facts, the Claimant averred that:

“8.       The Claimant was transferred from Port Harcourt, Rivers State to the Defendant’s head office in Lagos State through a letter from the Defendant to the Claimant dated 10th January 2017. Although a relocation allowance was paid to the Claimant, his salary did not change.”

This paragraph was reproduced as paragraph 8 of Claimant’s statement on oath. The Defendant in paragraph 3 of the statement of defence admitted paragraph 8 of the statement of facts. It is trite law that facts admitted require no further proof. See section 123 of the Evidence Act, 2011 and the case of Adeokin Records & Anor. v. Musical Copyright Society of Nigeria [Ltd./Gte] [2018] 7 SC [pt. 11] 40 at 54. Paragraph 8 of the Claimant’s statement on oath finds support in exhibit 2; and it is a settled principle of law that where documentary evidence supports oral evidence, the oral evidence becomes more credible. See Eya & Ors. v. Olopade & Anor. [2011] 5 SC [pt.II] 47 at 81.Thus, it is beyond dispute that the Claimant was transferred from Port Harcourt to Lagos, a distance which is well beyond 25 miles.

  1.  The Claimant’s letter of resignation is exhibit 3. It is dated 5th August 2018 and was to take effect on 19th October 2018. The resignation was pleaded in paragraph 11 of the statement of facts, which was reproduced in paragraph 11 of the statement on oath. Although, paragraph 11 of the statement of facts was denied in paragraphs 4, 12 and 14 of the statement of defence, the traverse is ineffectual. The Defendant did not deny and could not have denied the fact that the Claimant resigned his appointment citing challenges associated with his transfer to Lagos. In paragraphs 12, 13and 14 of the statement of defence which are reproduced in paragraphs 14, 15 and 16 of the Defendant’s witness’ statement on oath, the Defendant averred that:

“12.    In specific denial of paragraph[s] 9 and 11 of the Claimant’s statement of facts, the defendant states that at no point in time did the Claimant ever complained [sic] to his immediate boss or the Human Resources officers or any other officer of the Defendant company about his alleged discomfort as a result of his transfer to Lagos.”

“13.    The Defendant vehemently denies the falsehood contained in paragraph 10 of the Statement of Facts, and states that at no point in time did the Claimant’s role got diminished in the company. The Defendant further avers that if anything, the “banding policy” referred to by the Claimant in his Statement of Facts actually enhanced the Claimant’s roles and status in the company.”

“14.    The Defendant avers that the banding policy referred to in the [sic] paragraphs 10 and 11 of the Claimant’s in his Statement of Facts has no adverse impact whatsoever on the Claimant’s roles in the company, and that if anything, the policy actually earned the Claimant an enhanced status in the company, including an enhanced pay in September, 2018, the same year he was transferred to the Lagos office. The Defendant pleads the letter of increase of salary dated 1st September, 2018 and shall rely on same during trial.”

The above paragraphs are in responseto paragraphs 9, 10 and 11 of the statement of facts. However, the facts contained in paragraphs 10 and 11 of the statement of facts are contained in exhibit 3 which has not been impugned by the Defendant.As a result, oral evidence cannotbe allowed to vary it. See Ijewere v. Eribo [2014] LPELR-23263[CA] 42. Paragraphs 14, 15 and 16 of the Defendant’s witness’ statement on oath are, in my opinion, an attempt by the Defendant to impugn the reasons stated in exhibit 3 for the Claimant’s resignation. Curiously, the Defendant did not refutethe assertions in exhibit 3 in any way. There is no evidence before me that the Defendant responded to exhibit 3. Having not done so, it cannot now be heard to say,in its pleading and witness’ deposition,that the reasons stated in exhibit 3 did not exist. See section 128[1] of the Evidence Act, 2011 and the case of Ijewere v. Eribo [supra]. Also, the law is fairly settled that in commercial transactions where a party receives a letter from another the contents of which he disputes, he is required to react to the letter failing which he will be presumed to have accepted the contents of the letter as reflecting the true state of affairs. See Sunil Vaswani & Anor. v. C. A. Candide Johnson [2000] 11 NWLR [pt.679] 582 at 588-589.

This is what happened in this case. The Claimant wrote in paragraph 2 of exhibit 3 thus:

“The cost of living in terms of rent and other basic utilities and needs here in Lagos as compared to Port Harcourt is higher by over 3 times. I have persevered hoping for better conditions. Also the recent banding has materially diminished my role. On the strength of these, I will like to resign my appointment to continue my career outside the business on the option of double PILON.”

The Defendant received this letter but failed to respond to it. In the circumstance, the Defendant is presumed to have accepted the contents thereof as true.

In paragraph 14 of its statement of defence, the Defendant referred to its letter of 1st September 2018, which was received in evidence and marked as exhibit D1. The letter is captioned “Merit Increase September 2018” and reads:

“I have pleasure in advising you that, with effect from 1 September 2018, your annual base pay will be increased from N6, 257, 612 to N6, 883,373 in line with the reward strategy.”

It will be observed that this increase came about 8 months after the Claimant’s transfer to Lagos and after he had tendered his letter of resignation. Further, exhibit D1 did not respond to the issues raised by the Claimant in exhibit 3 which remain unchallenged. For this reason, the Defendant cannot now in paragraphs 13 and 14 of the statement of defence seek to contradict the reasons for Claimant’s resignation as expressed in paragraphs 9, 10 and 11 of the statement of facts. Also, exhibit D1 could not have enhanced the Claimant’s status since he had resigned his appointment before it was written. Consequently, the reasons for Claimant’s resignation as contained in exhibit 3 and paragraphs 9, 10 and 11 of the statement of facts are unassailable and bring the Claimant within the fourth exception. I so hold.

  1.  This leads me to the next question, whether the Defendant breached the terms of Claimant’s employment when it failed to compute his terminal benefits in accordance with exhibit 1? Learned counsel for the Defendant argued, in the reply on points of law, that the Claimant made copious references to the double Pilon policy in support of his claims without producing it in Court. He contended that exhibit 1 is not the document purportedly referred to as the ‘Double Pilon Policy’; but makes reference to it and another document referred to as ‘Cooperation Agreement’. This argument is self-defeating. As rightly argued by Claimant’s counsel, the defence witness under cross-examination admitted that the Claimant would have been entitled under the double Pilon policy if he had not voluntarily resigned. I found elsewhere in this judgment that voluntary resignation is not a bar to claim under the double Pilon scheme. Also, the Defendant did not impugned Exhibit 1, and made copious references to the double Pilon scheme in its pleading.In exhibit 4, the Defendant wrote: “The anticipation of a “double pilon” calculation under a certain policy to form part of the exit benefit for Mr. Ibrahim Ovansa is not applicable.” In my humble view the issue of production of the ‘double Pilon policy’ and ‘Cooperation Agreement’ is not material to determine whether the Defendant breached the terms of its contract with the Claimant when it failed to compute his terminal benefits under the double Pilon scheme as specified in exhibit 1? The last but one paragraph of exhibit 1 sets out the term of the contract and having held that the Claimant’s resignation falls within the fourth exception in that paragraph, failure to compute and pay the Claimant’s terminal benefit in line with that provision amounts to a breach of his contract of employment. The double Pilon policy or scheme and ‘Cooperation Agreement’ become material in the consideration of the basis of computation of the sums claimed by the Claimant. Therefore, I return an affirmative answer to Claimant’s issue one.

  1.              I will now proceed to consider the reliefs sought by the Claimant. Relief one is for the sum of N12, 782,781.67 [twelve million, seven hundred and eighty-two thousand, seven hundred and eighty one naira, sixty-seven kobo] being the amount wrongfully withheld from the terminal benefits due to the Claimant from the Defendant. The pleading in support of this claim is paragraph 14 of the statement of facts which was reproduced in paragraph 14 of Claimant’s statement on oath and goes thus:

“14.    In response, the Defendant’s Company Secretary in a letter dated 15/11/2018 [15th November 2018] categorically informed my Solicitors that the “Double Pilon” policy does not apply in the computation of my terminal benefit. Attached to the said letter of 15/11/2018 [15th November 2018] was another letter from the Defendant’s HR department dated 8/11/2018 [8th November 2018] which letter informed me of the payment of N5, 486,907.50 [five million, four hundred and eighty six thousand, nine hundred and seven naira, fifty kobo] as the full and final payment of my terminal benefits. If the terminal benefits had been computed based on the ‘Double Pilon’ basis, I should have been paid not less than N18, 269, 689.17 eighteen million, two hundred and sixty nine thousand, six hundred and eighty nine naira, seventeen kobo.”

This paragraph was denied in paragraph 4 of the statement of defence, and in paragraph 15 of the statement of defence the Defendant averred that it has paid the Claimant’s full terminal benefits. The burden to prove that he would have earned N18, 269, 689.17 as terminal benefits is on the Claimant. See section 136[1] of the Evidence Act, 2011,Socio-Political Research Development v. Ministry of Federal Capital Territory & Ors. [2019] 1 NWLR [pt.1653] 313 at 342 and Ogunniyi v. Hon. Minister of FCT & Anor. [2014] LPELR-23164[CA] 33. In Socio-Political Research Development v. Ministry of Federal Capital Territory & Ors. [supra], Ariwoola, J.S.C., remarked that:

“… whenever issues are joined by parties in pleadings, evidence is required to prove these averments. And it is the person or party whom the burden of establishing that issue lies that must adduce satisfactory evidence. It follows therefore that when there is no such evidence, the issue must necessarily be resolved against the party.”

 

While it is true that a terminal benefit is a lump sum of money awarded at the expiration of employment and has been earned by the employee – see Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] LPELR-8223[CA] 28– the responsibility of proving the amount claimed as terminal benefit rests on the employee. The claim being in the nature of special damages its grant is not automatic. It must be specially pleaded and strictly proved.Where particulars are not given and evidence is not led, the claim is bound to fail. See Mr. Osamata Macaulay Adekunle v. United Bank for Africa Plc [supra] at page 115.

I have carefully read the pleading and corresponding statement on oath and the exhibits, and there is nothing to show how the Claimant arrived at the sum of N18, 269, 689.17 as his terminal benefit. The basis of his computation was not set out in the pleading or statement on oath. In the circumstance, the Claimant has not discharged the evidential burden thrust on him. See section 136[1] of the Evidence Act, 2011,Socio-Political Research Development v. Ministry of Federal Capital Territory & Ors. [supra] and Ogunniyi v. Hon. Minister of FCT & Anor. [supra]. It is the duty of every court of law to render to everyone according to his proven claim. It cannot give to a party a relief which it has not proved. See In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] 24.The claim for N12, 782,781.67 [twelve million, seven hundred and eighty-two thousand, seven hundred and eighty one naira, sixty-seven kobo] being the amount wrongfully withheld from the Claimant’s terminal benefits therefore fails.

Nevertheless, having found that the Claimant is entitled to have his terminal benefit calculated under the double Pilon scheme, and that the Defendant was in breach of its contract with the Claimant in failing to compute his terminal benefits on the basis of the double Pilon scheme, it goes without saying that there must be a remedy for this wrong. See Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] page 43and Alhaji O. A. Oyekanmi v. National Electric Power Authority [2000] 15 NWLR [pt.690] 414 at 444-445. This is the cornerstone of any system of justice. In this regard, Onu, J.S.C., inAlhaji O. A. Oyekanmi v. National Electric Power Authority [supra], had this to say:

“On the principle of “Ubi jus Ibi Remedium” in Bello and 13 Others v. A-G, Oyo State [1986] 5 NWLR [pt.45] 828 at 890 this court per Oputa, JSC held that if from the facts available before the court it is satisfied:

[i]       that the defendant was under a duty to the plaintiff;

[ii]      that there was a breach of that duty;

[iii]     that the defendant suffered legal injury;

[iv]     that the injury was not too remote.

It will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by statute….The established principle of law is that a court of law being no ‘Father Christmas’ ought not to award to a party a relief he did not ask for vide Union Beverages Ltd. v. M. A. Owolabi [1988] 1 NWLR [pt.68] 128; …. Albeit, in the instant case, the court below ought to have used its discretion and based upon the evidence adduced in the trial court, to have awarded the appellant more than the N200,000.00 assessed thereat.”

Applying this principle to this case, I make an order directing the Defendant to compute the Claimant’s proper terminal benefits using the double Pilon scheme.

  1. Relief two is for general damages.General damages are within the discretion of the Court to grant and is awarded to assuage a loss caused by the act of the adversary. The law is that general damages need not be specifically pleaded or proved. It arises from the inference of law and it suffices if it is generally averred. Its award is presumed by law to be the direct and probable consequence of the wrongful act of the adversary. See Andrew v. MTN Nigeria Communications Limited [2016] LPELR-41181[CA] page 12.

 

            I observe that in paragraph 5.2[d] of the Claimant’s final written address, the Claimant claimed the sum of N1, 800,000 as general damages. As rightly argued by Defendant’s counsel, this claim does not appear in the Claimant’s pleading and evidence. Addresses of counsel can never be a substitute for pleading or evidence. See Gbadamosi v. Tolani [2010] LPELR-3733[CA] 20.The address of Claimant’s counsel on this point goes to no issue and is hereby discountenanced.

            It is no doubt trite that the law frowns against double compensation in the sense that where a party has been fully compensated under one head of damage for a particular injury, he cannot legitimately be awarded damages in respect of the same injury under another head. See Zenith Plastics Industry Ltd. v. Samotech Limited [2007] LPELR-8260[CA] 34.Having ordered the Defendant to recalculate the Claimant’s terminal benefits using the double Pilon scheme, it will amount to double compensation to award him general damages for the same injury. The claim for general damages therefore fails.

  1.  In conclusion, this case succeeds in part. The Defendant is hereby ordered to recompute the Claimant’s terminal benefits using the double Pilon scheme within 30 days from today and pay same to the Claimant.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

6/2/2020

 

Attendance: Claimant present, Defendant absent.

 

Appearances:

 

Olufemi Oguntokun Esq. for the Claimant

Bimbo Atilola Esq. with Kolawole Yusuf Esq.and T. O. Adepate for the Defendant

admin

Website:

Related Story