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ANYALEMECHI EMMANUEL CHUKWUKADIBIA -VS- BLOWFISH LIMITED

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IN THE NATIONAL INDUSTRIAL COURT OF NlGERIA

IN THE LAGOS IUDICIAL DIVISION

HOLDEN IN LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE (Dr) I. J. ESSIEN

DATE: 16th May, 2019

SUIT NO: NICN/LA/252/2018

BETWEEN

ANYALEMECHI EMMANUEL CHUKWUKADIBIA —————- Claimant

AND

BLOWFISH LIMITED—————————————————— Defendant

REPRESENTATION:

  1. O. Chukwu Esq. for the claimant.
  2. Agbo Esq for the defendant.

JUDGMENT

By a complaint filed on the 24/4/18 the claimant claimed the following reliefs against the defendant in this suit;

  1. A declaration that a valid and enforceable contract of employment exists between the claimant and the defendant.
  2. A declaration that the defendant is in breach of the contract of employment and therefore liable for breach of the contract.
  3. An order directing the defendant to pay the sum of N 100, 000 (One Hundred Thousand Naira) being the agreed monthly salary payable to the claimant from the date the claimant’s employment was wrongfully terminated and until the claimant secures a gainful employment.
  4. An order directing the defendant to pay interest on the above sum at the rate of 10% monthly from the 27th of November, 2017 till judgment is given.
  5. An order directing the defendant to pay the sum of N25. 000. 000 (Twenty Five Million naira) as general damages.
  6. An order directing the defendant to pay interest on the total judgment sum at the rate of 10% monthly from the date judgment is given till the judgment debt is fully liquidated.
  7.  An order directing the defendant to pay the sum of N 1,000,000 (One million naira the cost of prosecuting this suit.
  8. And for such further order or other orders as the Court may deem fit to make in the circumstances

The originating processes were served on the defendant who filed a defence to this action on the 9/5/2018.

Hearing in this suit commenced on the 16/1/2019. The claimant testified as CW1 and the sole witness. CW1 adopted his witness deposition and tendered the following documents in evidence in proof of his claims;

  1. SMS phone messages and email print out admitted and marked Exhibit C1a, b, c, d, e, f, g, h, I, j, and k
  2. The letter of offer of appointment dated 1/11/2017, marked Exhibit C2.
  3. The guarantor form is admitted in evidence and marked Exhibit C3a and b.
  4. Staff identity card request form, Exhibit C4.
  5. Personal history form Exhibit C5.
  6. Letter of undertaking dated 27/11/17, Exhibit C6.
  7. Letter of resignation dated 2/11/17, Exhibit C7.
  8. Claimant solicitor letter dated 22/2/18 admitted and marked as Exhibit C8.
  9. Strictland Associates Solicitors Invoice dated 23/4/18 admitted and marked Exhibit C9.

The defence case opened and closed on the 18/2/2019 with one Kasiemobi Cynthia Ugwu testifying as DW1 and the sole witness for the defendant. the witness did not tender any document in their defence. The counsel for the parties adopted their final written addresses on the 9/4/2019.

BRIEF FACTS OF THE CASE

The facts of the case are that the claimant was offered an employment by the defendant as an account officer vide an Offer of Employment Letter dated 1st November, 2017. The claimant accepted the offer by endorsing the acceptance clause attached to the offer letter and returned the acknowledgment copy to the defendant. The claimant was issued with some other documents which are: two guarantor forms, staff identity card form, personal history form and a letter of undertaking, all of which the claimant was to complete. The claimant’s employment letter clearly sets out the claimant’s monthly salary at Nl00, 000.00 (One Hundred Thousand Naira) and his resumption date as November 27, 2017.

The claimant allege that he resigned from his previous employer on the strength of the defendant’s offer letter. However, before the date of resumption, the claimant received an SMS on the 10th November, 2017 from the defendant’s Head of Admin and Human Resources (DW1 ), informing the claimant of the reduction in his salary from the agreed sum of N100, 000.00 (One Hundred Thousand Naira) to N80, 000.00 (Eighty Thousand Naira) – Notwithstanding the said reduction in salary, the Claimant allege that on the 27th November, 2017, he made himself available at the defendant’s head office with the completed forms for submission and resumption of duties. The claimant allege that the defendant’s human resources officer (DW1), however, pretended not to recognize the claimant, neither did she accept the completed forms from the claimant nor provided any information to aid the claimant resume into his employed position. The claimant’s subsequent attempt to resume work on the 28th of November, 2017 after series of SMS conversation with the defendant’s  H.R (DW1), was made impossible by the defendant’s H.R who informed the claimant that the position was no longer available as same had been given to another person. The defendant’s H.R further shocked and embarrassed the claimant by walking him out of the defendant’s head office. The defendant admits that they offered the claimant employment but that the claimant could not take up the appointment because he failed to fulfil the condition precedent attached to the offer. These in a nutshell are the facts of this case.

ISSUES FOR DETERMINATION.  

From the facts and circumstances of this case the first issue for determination which will set the tone for the determination of the various claims of the claimant in this action is;

Whether there is a valid contract of employment between the claimant and the defendant and whether the act of the defendant amounts to breach of the contract of employment

The determination of this question would determine whether the other claims are worth examining in this judgment.

On this issue, the evidence are that following an invitation to an interview tendered as exhibit C1a, which the claimant attended, he was offered employment with the defendant on the 1/11/2017 vide a letter of employment tendered as exhibit C2. The claimant was to assume duties on the 27/11/2017. The letter of appointment was subject to the receipt of two satisfactory guarantors form, staff ID card form and personal history form issued to the claimant by the defendant and a medical report from the defendant’s designated  medical practitioner. The forms were tendered in evidence and marked as exhibits C3a, C3b, C4, C5 and C6. The claimant testified that upon receipt of the letter of appointment, he resigned his appointment with his former employer (Grant Thornton Nigeria) on the 2/11/2017 and tendered the letter of resignation as exhibit C7. The claimant testified that on the 9/11/2017 the defendant’s head of human resources who testifies as DW1 called him on phone to inform him that the agreed salary would be reduced to N80,000.00, this was latter followed by an SMS which printout was tendered as exhibit C1b. The claimant testified that he was taken aback since he has already altered his position by resigning his appointment with his former employer. He testified that he promptly informed DW1 of his changed position having resigned from his former employment to take up the employment with the defendant.

The defendant testified that on the 27/11/2017 when he reported to assume duties at the defendant head office he presented himself with the completed forms ie exhibits C3a, C3b, C4, C5 and C6, the defendant HR i.e. DW1 pretended not to know the claimant and refuse to provide information and direction to enable the claimant assume duties. That following this uncertainties, the claimant testified he repeated to DW1 that he had resigned his earlier appointment to take up appointment with the defendant. DW1 then demanded a copy of the letter of resignation from his earlier employment before he could be allowed to assume duties. The claimant testified further that he contacted the HRM of his former employer via SMS tendered as exhibit C1c on the 27/11/2017 to enable him retrieve the letter and forward it to the defendant  since he no longer had access to the official email portal he had used in sending the mail. The former employer also forwarded the letter of resignation to the claimant who in turn forwarded the Gmail forwarding same and the letter to the defendant HR. The evidence was admitted as exhibit C1d, C1e, and C1f. The letter of resignation forwarded to the defendant was also tendered as exhibit C1j. The claimant testified that when he presented himself again on the 28/11/2017 to assume duty, the DW2 informed him that the position offered to the claimant had been given to another person in total disregard of his letter of appointment. I must state here that there was no concrete evidence adduced by the defendant to contradict the facts as stated by the claimant an as recounted above.

The defence of the defendant to the facts and evidence of the claimant in this suit are basically as stated in paragraph 4, 5, 6, and 8 of the witness deposition adopted by DW1. The defendant testified that the claimant was offered appointment with the defendant as shown on exhibit C2 with condition precedent to the appointment as contained in the letter of appointment. That the claimant never fulfilled those conditions between the 1/11/2017 to the 27/11/2017, when the claimant was to take up the appointment. It is also her testimony that the claimant never assumed work. The condition precedent which the defendant alleges was not met by the claimant relates to the return of the forms i.e. the two guarantors forms, the personal history forms, the staff ID card form and the letter of undertaking form, tendered as exhibits C3a, C3b, C4, C5 and C6, The condition would also include the submission of a medical report by the defendant designated medical practitioner. First I have examined the letter of appointment exhibit C2, there is no clause in the letter where a time line is given for the completion and return of these forms, neither is there any clause requiring that the return of these forms is mandatory before the claimant can assume work. During cross examination DW1 admitted that there was no date stated in the appointment letter when the forms were to be returned. It is in evidence that the claimant presented himself to assume work on the 27/11/2017 with these forms but DW1 refused to accord the defendant proper direction on how to assume work even also when the claimant reported again on the 28/11/2017 to assume work, these piece of evidence was never contradicted by the defendant. The court is bound to act on this un-contradicted evidence on the authority of FBN V. Efobi Effiong Bam [2010] LPELR-4160 (CA). There is no evidence given by DW1 that she requested for those forms and the claimant refused to submit the forms to the defendant. The defendant counsel has argued in his final written address that the foundation, basis fulcrum and bedrock of the contract of employment between the claimant and the defendant was the offer of appointment which required the claimant to present the duly completed forms (ie exhibits C3a, C3b, C4, C5 and C6,) as a condition precedent to the assumption of work and also the medical report. It is counsel further argument that the contract of employment between the claimant and the defendant was a conditional contract and that until the condition was met there was no acceptance which could result in a contract. I do not agree with the position of learned counsel for the defendant. First  If the submissions of the forms and the medical report was a condition precedent to assumption of work, the defendant apart from issuing the forms to the claimant (ie exhibits C3a, C3b, C4, C5 and C6,) ought to have also designated a medical practitioner to conduct the medical examination for the purpose of presenting a medical report along with the other forms. This the defendant did not do. Indicating that the fulfilment of all the conditions on the assumption of duties was not very material.

DW1testified that he never saw the claimant on the 27/11/2017 and 28/11/2017. He however did not say if he made effort to contact the claimant to find out if the claimant was still interested in taking up the appointment on the date the claimant was to assume work.

Furthermore, I have examined the offer of appointment exhibit C2. It is clear that the claimant accepted the offer of employment. It is also on record that the defendant did not at any point in time relevant to the facts of this case write to withdraw the letter of appointment after they alleged they had offered the claimant position to another person. Also I have carefully examined the SMS trail detailing the communication between the claimant and DW1 from the 31/10/2017 to the 28/11/2017 tendered in this court as exhibit C1a to exhibit C1f, those communications speak for itself. I find no truth in the testimony of DW1 that he never set eye on the claimant after he came to receive his appointment letter and sign the acceptance form.  It does appear that DW1 with intention to prevent the claimant from assuming work set up a dispute, first by sending a message trying to change the salary of the claimant as stated in exhibit C2. During cross examination the claimant stated he would have accepted the reduced salary because he had already resigned from his former employment, which he had informed the defendant. When this did not work out as she expected DW1 attempted to raise another controversy over the resignation of the claimant from his former employment as if the assumption of work by the claimant depended on the letter of resignation. When this did not also work out because the claimant was able to procure his letter of resignation from his former employer and forward same to the defendant, DW1 let out his intention by informing the claimant that the position had been offered to another person. At what point did DW1 offer the position of the claimant to another person. It certainly could not have been between the 27/11/2017 and the 28/11/2017 when the claimant was supposed to assume work. It could therefore have been before the 27/11/2017 when the claimant was to assume work. It is a common practice that documentation for employment are not always completed on the date of assumption of duty, if the defendant is arguing to the contrary about this practice, why did DW1 not also demand the submission of the medical report from the defendant designated medical practitioner as stated in the exhibit C2. This is because no medical practitioner was designated by the defendant to conduct a medical examination on the claimant. To say that the SMS and mail trail communication between the claimant and the defendant are not the official channel of communication as argued by the defendant counsel in his address is to play the ostrich by the defendant. The defendant has chosen this as the means of communication with the claimant when they first invited the claimant to an interview vis SMS as shown on Exhibit C1a.

From the facts and circumstances of this case and the evidence adduced by the claimant which are not controverted by the defendant but for the bare denial which the defendant have tried to put up as a defence in this matter, The law is settled and it is that bare denial which does not confront the facts put forward by a party in an action does not amount to denial in law. See the case of NNPV V. Famfa Oil Ltd. [2012] LPELR-7812. See also the case of UBA & Anor V. Jargaba [2007] LPELR-3399 (SC)

This court is inclined to believe the testimony of the claimant. This court on the state of fact and evidence adduced in this case is satisfied that there is a valid and subsisting contract of employment between the claimant and the defendant founded on the letter of appointment tendered as exhibit C2. It is also the finding of this court that it was the claimant witness DW1 Kasiemobi Cynthia Ugwu that prevented and frustrated the claimant from fulfilling the condition stated in the offer of appointment thereby preventing the claimant from assuming work as expected on the 27/11/2017 and also on the 28/11/2017 with the defendant organisation. The defendant cannot therefore be heard to complain that the claimant did not meet the condition precedent to the assumption of work with the defendant. This court hereby finds that there is a valid contract of employment between the claimant and the defendant. Accordingly Relief No I and 2 on the claims of the claimant in this action succeeds.

ON RELIEF NO 3.

Under this relief the claimant seeks an order of this court directing the defendant to pay the claimant the agreed monthly salary of N100,000 until the claimant secures another employment. The evidence adduced by the claimant are that he was offered employment by the defendant vide exhibit C2 on the 1/11/2017 which he accepted. Acting on the strength of this appointment by the defendant he resigned his appointment from his former employer (Grand Thornton Nigeria) on the 2/11/2017 vide exhibit C7. He also tendered exhibit C1j a letter from his employer testifying that the claimant had resigned from his employment on the 2/11/2017. The claimant testified that these letters were forwarded to the defendant HR officer on her request when he was not allowed to assume duties in the defendant on the 27/11/2017 and 28/11/2017. These evidence was never contradicted by the defendant. The court is bound to rely on uncontroverted evidence given by a party in a proceeding. See the case of Hani Akar Enterprises Ltd. V. Indo Nigerian Merchant Bank Ltd. [2010] LPELR-4229 (CA)

 It is also in evidence that the claimant accepted the appointment and presented himself to resume work on the 27/11/2017 and 28/11/2017 but was prevented from assuming duties by the defendant Human Resources Officer, DW1. From the facts and the evidence adduced in this case, it is clear that the claimant had altered his position by resigning his appointment with his former employer to take up the appointment with the defendant. The claimant was willing and ready to take up the appointment even on a reduced salary but was prevented from doing so by DW1. One other circumstance that suggest that DW1 had hatched a plan to prevent the claimant from assuming work with the defendant is the fact that it was just a day after the 27/11/2017 (the day of assumption or work as stated in the letter of appointment) ie the 28/11/2017, that DW1 informed the claimant that the position offered to the claimant had been offered to another person. It does appear DW1 had filled that position before the 27/11/2017. This is so because it is illogical that the position would have been filled a day after the 27/11/2017, while the claimant was still in the process of documentation. I find that it was the defendant offer of appointment to the claimant that induced the claimant to resign his appointment with his former employer. To prevent the claimant from taking up the new appointment with the defendant is an act of great disservice to the claimant. I find that the claimant is entitled to his salary which was wrongly denied him by the act of preventing him from assuming office by DW1. I therefore order the defendant to pay the claimant the sum of N 100,000 being salaries he would have earned from the 27/11/2017 to the 23/4/2018 when this action was filed in this court. The registrar of this court shall compute the salaries and deduct PAYE tax from the computed salary as  judgment sum and remit same to the appropriate authority and file the evidence of tax return in this court. It is clear that the defendant has expressed clear intention not to further engage the claimant as his employee. In the circumstances the contract of employment between the claimant and the defendant is deemed determined from the date of this judgment.    

 

ON RELIEF NO 4

In this relief the claimant seeks an order directing the defendant to pay interest at the rate of 10% on the salary from 27/11/2017 until the date of this judgment.

The position of the law as regard interest is well settled and it is that a party who claims interest must specifically plead his entitlement to the interest and strictly lead evidence to establish such entitlement. In the case of S.A.E.P. & U. VS. UBA PLC [2010] 17 NWLR (Pt.1221) The Supreme Court stated the position of the law in the following words.

The court from time immemorial are reluctant to award interest generally thereby giving rise to the rule of law that interest must not only be pleaded but also strictly proved. Thus, where interest is being claimed as a matter of right the fact of the entitlement must be pleaded by the claimant followed by evidence to establish same. It is only when the court is satisfied after reviewing the pleading and evidence that it may award same. The basis of the claim for interest must be made manifest. It is not enough to merely say that the plaintiff is claiming interest.   

See also the case of e Chief Anthony Edoso V. First Bank of Nig. PLC [2011]LPELR-8785 CA. see also U BA V. Sepok Nig. Ltd. [1998]12 NWLR (pt. 578) at 439.

In this case apart from merely stating the claim of interest as one of the reliefs, the claimant failed to plead the entitlement to the interest and also failed to lead evidence in prove of his entitlement of the interest as required by law. This court cannot make any award of interest in favour of the claimant. This claim therefore fails and is accordingly dismissed.

ON RELIEF NO 5.

In this relief the claimant claims the sum of N25.000.000 as general damages. I have found in this judgment that there is a valid and subsisting contract between the claimant and the defendant. it is also in evidence that the claimant resigned his position with his former employer on the 2/11/2017 a day after he received and accepted the offer of appointment (dated 1/11/2017) with the defendant. It is also in evidence that when the claimant went to asume work on the 27/11/2017 and 28/11/2017 he was prevented from assuming work with the defendant. The defendant human resources officer who testified as DW1 on the last mentioned date informed the claimant that his position had been given to another person. The claimant having resigned from his earlier employment which was to the knowledge of the defendant as the DW1 was so informed was not allowed to take up the new employment with the defendant. The claimant testified that in view of the obvious breach of contract of employment occasioned by the defendant conduct, he lost his means of livelihood, monthly earnings, he stated that he is now forced to roam the streets in search of unavailable jobs in the toxic Nigerian labour market and he has been unable to fend for himself and other dependents which also include his aged parents. In his solicitor’s letter tendered as exhibit C8, the claimant reiterated the fact that the claimant had resigned his appointment to take up the new employment with the defendant which he was prevented from assuming. Claimant demanded the   payment of the sum of N25,000,000 as compensation for the breach of contract. He complained that the act of the defendant has caused embarrassment, psychological and mental depravity to the claimant. I have carefully considered that evidence adduced by the claimant in this action. It is without doubt that the action of the defendant has caused the claimant inconveniences most especially having regard to the fact that he had to resign from another employment to take up employment with the defendant. This is the appropriate circumstances in which this court is persuaded to award general damages for the inconveniences caused to the claimant accordingly the defendant shall pay the sum of N1,000.000 (One million naira) as general damages to the claimant in this action.

ON RELIEF NO 7

Here the claimant claims N1,000,000 as solicitors fees. Claimant tendered exhibit C9 which is an invoice from his solicitors addressed to the claimant for payment of legal fees. This claim is in the nature of special damages which require strict proof. The implication of this is that the claimant must offer proof that he actually paid this amount to his solicitors. Exhibit C9 is an invoice. In the case of Nigerian Bottling Co Ltd & Anor. V. Oresanya [LPELR] 8862 at page 21 paras f-g, the court of Appeal adopted the definition of invoice in the Oxford Advance Learners Dictionary, and stated that

‘an invoice means a list of goods that have been sold, work that has been done showing what you must pay. In business term invoice means to write and send something, a bill for work you have done or good you have provided.’

From the above quoted definition Exhibit C9, can never qualify as the evidence of payment of the sum of N1,000,000 to the claimant solicitor as legal fees. To prove the payment of the above sum the claimant ought to have produced a receipt of payment or any other electronic evidence that shows that the claiamant had parted with the above stated sum to his solicitor. In the case of  Etajata & Ors V. Ologbo & Anor. [2007] LPELR-117, The Supreme Court defined a receipt in the following words;

‘A receipt generally is a document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment’

 

On the strength of the above position of the law exhibit C9 is insufficient proof of the payment of the solicitor’s fees to the claimant counsel which can be claimed as special damages in this action. Exhibit C9 is not evidence of payment of the said solicitor’s fees.

Notwithstanding the above position taken by this court, it is a misconception for a party in an action to think that he can recover solicitors charges from the other party if his action succeeds The claim for solicitors fees has never won the favour of the courts in this country. In the case of Christopher Nwanji V. Coastal Services Nig. Ltd [l2004] LPELR 2106, the Supreme Court stated the position thus;

It is an unusual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of cost taxation to get a realistic figure. Cost are awarded arbitrary and certainly usually minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgage who engaged him, in the present case on the grounds of solicitor’s cost paid by him.

 

On the strength of the above cited authorities the claim of N1,000,000 as solicitor’s fee must fail and is hereby dismissed.

On the whole this action succeeds in part. Judgment is hereby entered in favour of the claimant against the defendant in the following terms;

  1. It is hereby declared that a valid and enforceable contract of employment exists between the claimant and the defendant.
  2. It is also hereby declared that the defendant is in breach of the contract of employment and therefore liable to the claimant for breach of the contract of employment
  3.  The defendant is ordered to pay the claimant the sum of N 100,000 being salaries he would have earned from the 27/11/2017 to the 23/4/2018 when this action was filed in this court.
  4. The registrar of this court shall compute the salaries and deduct PAYE tax from the computed salary as judgment sum and remit same to the appropriate authority and file the evidence of tax return in this court.
  5. It is clear that the defendant has expressed clear intention not to further engage the claimant as his employee. In the circumstances the contract of employment between the claimant and the defendant is deemed determined from today.
  6. The defendant shall pay the sum of N1,000.000 (One million naira) as general damages to the claimant for breach of contract of employment between the claimant and the defendant.

Judgment is entered accordingly.

                             __________________________________

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

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