BENITA BOLOGI -VS- MR. SALEH & CO. LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

TUESDAY 3^RD JULY 2018

SUIT NO: NICN/ABJ/302/2015

BETWEEN

BENITA BOLOGI ………………………………………………. .CLAIMANT

AND

SALEH & CO. LTD……………………………………….. DEFENDANT

REPRESENTATION

FRANCIS SYLVESTER for the Claimant

OGUCHE OBONIKA for the Defendants with T.E.A. SAMPSON, and E. R. AROMA for the Defendant

JUDGMENT

The Claimant instituted this action via Amended Complaint with the accompanying frontloaded documents filed on 1^st June, 2016 and dated 23^rd May, 2016, against the defendant for the following reliefs:

The outstanding balance of N15, 000.00 (Fifteen Thousand Naira) wrongfully deducted from the Claimant’s salary in October 2014.

Accumulated Bonuses to the Claimant;

– Recharge Cards to the Claimant N3, 000 per month from October 2014 till date.

– Housing Allowances Claimant N66, 000.00 per annum from 2009 till date.

– Wardrobe Allowances to the Claimant N35, 000.00 per annum from 2009 till date.

Accumulated Leave Benefits to the Claimant One month salary plus 100% of her One month basic salary (N63, 840.00).

Gratuity to the Claimant in the sum of N319, 200.00 (One month salary times the period of Eight years plus one month salary.

5 21% pre judgment interest of the total sum.

10% post judgment interest on the judgment till liquidated.

The sum of N5, 000,000.00 as General Damages.

Claimant’s Case

The Claimant was employed in the service of the Respondent as a Sales Executive on the 5^th day of February, 2007,] and she served in that capacity until her employment was terminated by the Respondent on the day of June, 2015, wherein the Respondent denied the Claimant her termination benefits hence this action in court to recover same.

The defendants filed their STATEMENT OF Defence on 7^th December, 2015.

Wherein the Defendant averred that upon employment and confirmation thereof, the Claimant’s gross monthly salary was the sum of N25, 200.00 (Twenty Five Thousand, Two Hundred Naira) only; which amount includes the claimant’s monthly basic salary of N12, 500.00 (Twelve Thousand, Five Hundred Naira) only, monthly Housing allowance of N6, 000.00 (Six Thousand Naira) only, Monthly Transport allowance of N1, 500.00 (One Thousand Five Hundred Naira) only. The Defendant maintained that their Defendant’s Condition of Service/Rule Book was made available to all the employees including the claimant immediately after employment.

Defendant admit duly terminating the employment of the claimant, but deny that the termination was based on spurious allegation or tainted with malice and made in bad faith.

Furthermore the defendant contended that it is in their practice to pay for Recharge cards for its employees, but in exceptional circumstance, the Defendant buys recharge cards for the purpose of easing communication between employees and the Defendant’s customers for the purpose of Defendant’s business. And that since the Claimant is no longer in the service of the Defendant, he is not entitled to recharge card as claimed.

The Defendant also stated that the claimant is not entitled to the sum of N1, 723,680.00 (One Million, Seven Hundred and Twenty Three Thousand, Six Hundred and Eighty Naira) only, as gratuity or any sum at all as the Defendant is not owing the claimant the said gratuity.

WHEREFORE, the Defendant states that claimant’s case is vexatious, frivolous, lacking in merit and the Defendant shall urge this Honourable Court to dismiss the claimant’s Suit with substantial cost.

At the trial the claimant testified as CW, adopted her witness statement on oath of 23^rd May 2016 which was marked C1, she went on to tender 12 other documents marked Exhibit C2-C13. She was duly cross examined, and the claimants closed their case.
The defendant called one Peter Onoja. A sales Manager who testified as DW, adopted his witness statement on oath and was cross examined by the claimants counsel and then the court gave direction as to filing of final written addresses in line with the rules of this court.

S/No	Description of Document	Dated	Exhibit No	Date Tendered	Remarks
	Claimants W/S/O		C1	22^nd November 2017
2.	Claimant’s Letter of employment	Feb 5^th 2007	C2
3,	Acceptance of Employment		C3
4.	Confirmation Letter	May 5^th 2007	C4
5.	The Condition of Service/Rule Book		C5
6.	Termination of Employment	Nov 7^th 2014	C7
7.	House/Shop Rent Receipt		C8
8	Letter of Appeal for Intervention	21^st Aug 2015	C10
9	Letter of Complain	24^th June 2015	C12
10.	House/Shop Rent Receipt		C13
11.	Letter of Appeal for Intervention	Aug 10^th 2015	C14
12.	Electronic Statement of Account	05/09/2014 -27/11/2014	C15

The DEFENDANT’S FINAL WRITTEN ADDRESS was filed on 3^rd October, 2017.

ISSUE

Whether the claimant has proved her case on the balance of probability to the reliefs sought.

It is counsel’s submission that in all civil suits, the onus to prove a particular fact or a case in general is on the party who asserts, and since civil suits are determined on balance of probability and preponderance of evidence, a party who proves his case will obtain judgment based on such preponderance of evidence and balance of probability. Section 131 (i) & (2) of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2011 and the case of NEWBAREED VS. ERHOMOSEYE (2006)2 F.W.L.R (Pt. 313) 2736 at 2767 Paragraphs F-G.

Counsel submitted that in a master/servant relationship where the termination of the appointment of an employee is not based on any alleged wrong doing by the employee, the issue of breach of the Rules of natural justice does not arise. Nigeria society of Engineers vs. Ozah (2015) 5 NWLR (Pt. 1454) 76 at 102 paragraphs C-D CA; Olarenwaju vs. Afribank (Nig.) Plc. (2001)13 NWLR (Pt. 731) 691. CA.

He submitted further that in a master/servant relationship, an employer is under no obligation to give reasons for terminating the appointment of his employee. Also, that the motive which impelled an employer to terminate the appointment of an employee is not relevant in the determination of an action by the employee. N. N. P. C vs. Idoniboye- Obu (1996)1 NWLR (Pt. 427) 655 at 671- 672 paragraphs H-A, CA.

ON THE CLAIM FOR N10, 000.00 (TEN THOUSAND NAIRA) WRONGFULLY DEDUCTED FROM THE CLAIMANT’S SALARY IN JUNE, 2015.

Counsel submitted that in an action challenging termination of employment, a claim for salary earned is in the nature of special damages which must be pleaded and proved strictly. UDEGBUNAM VS. F.C.D.A (1996) 5 NWLR (Pt.449) 474 at 485 paragraphs F; A. G. Oyo State vs. Farlakes Hotels Ltd (No.2) (1989) 5 NWLR (Pt. 121) 255 at 279 paragraphs D.

He submitted that the effect of lack of facts and evidence to support a relief is that the claimant’s action, particularly the relief sought must he dismissed. ADEDEJI VS. OLOSO (2007)3. M. J. S. C. 6 at 96 paragraph G, per Oguntade, J.S.C.

ON CLAIM FOR N1, 500 PER MONTH FROM JANUARY, 2009 TILL DATE FOR RECHARGE CARD.

Counsel submitted that where an employee has been dismissed or his employment terminated, it is the terms and conditions governing his employment that have to be construed to determine the rights and obligations of the employee and the employer. Ezenwa vs. K. S. H. S. M. B (2011) 9 NWLR (Pt. 1251) 89 at 119 paragraphs C-D (CA).

He urged the Honourable Court to hold that having regard to the evidence on record, the claimant is not entitled to the claim for money for re-charge card.

ON THE CLAIM FOR HOUSING ALLOWANCES OF N66, 000.00 PER ANNUM FROM 2009 TILL DATE

Counsel argued that the position of law in this regard is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. That it is not the duty of the court to tie each of a bundle of documentary exhibits to specific aspects of the case for a party when the party has not done so himself. Iniama vs. Akpabio (2008) 17 NWLR (Pt. 1116) 225 at 296 paragraphs 296 E-F 299- 300 paragraphs F-B; Omisore vs. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 279- 280 paragraph H-B, 299 paragraphs A- B.

He submitted further that the averments contained in the paragraphs of the Defendant’s statement of defence referred to above, remained unchallenged and uncontroverted and the Court is urged to deem same as admitted. Mabamije vs. Otto (2016) 13 NWLR (Pt. 1529) 171 at 188 paragraphs E-F.

ON “ACCUMULATED LEAVE BENEFITS ONE MONTH SALARY PLUS 100% OF HIS ONE MONTH BASIC SALARY (N70, 000.00)
In respect of the claimant’s relief for housing allowance, counsel contended that the claimant is not entitled to the relief for accumulated leave benefits for the following two reasons:

the accumulated leave benefits of the nature being claimed by the claimant fall within the realm of special damages, which must be specifically pleaded and strictly established by cogent evidence. UDEGBUNAM VS. F.C.D.A (Supra) at 485 paragraphs F; A-G. Oyo State vs. Fair-Lakes Hotels Ltd (No.2) (supra) at 279 Paragraph D.

the defendant’s position as maintained in paragraph 23 of the statement of defence and paragraph 23 of DW1’s statement of witness on oath.

ON THE CLAIM FOR “GRATUITY TO THE CLAIMANT IN THE SUM OF N350, 000.00 (ONE MONTH SALARY TIMES THE PERIOD OF NINE YEARS PLUST ONE MONTH SALARY.

Referring to paragraph 19 (iv) (b) of the Exhibit A4 which provides thus;

“19 (iv) Gratuity payment commences after 2 years of being in continuous employment at the following rate.

(b) In the case of disengagement at the instance of management as in (a) plus one month salary”.

Counsel contended that inspite of the admission of DW1, Mr. Peter Onoja, who testified for the Defendant stated under cross- examination that the only liability the Defendant owes the claimant is the payment of gratuity, the burden still lies on the claimant to convince this Honourable Court of his entitlement to gratuity.

ON THE CLAIM FOR INTEREST AND GENERAL DAMAGES.

Counsel submitted that the position of law relating to the award of interest generally is as laid down in many Supreme Court decisions, particularly in Ekwunife vs. Wayne (W,’A Ltd (1989) 5 NWLR (Pt. 122) 422 at 445 paragraphs C-D; 452 paragraph G and 455 paragraphs A-B; Himma Merchants Ltd vs. Aliyu (1994) 5 NWLR (Pt. 347) 667 at 677 paragraphs B-D; 676 paras. E-F; 682 paragraphs A and 679 paragraphs A-B, where the court held that interest may be awarded in a case in two distinct circumstances, namely:

(a) where it is claimed as of right,

(b) where there is a power conferred by statue to do so in the exercise of the Court’s discretion. See also The Supreme Court decision in G. K. F. I (Nig,) Ltd vs. NITEL PLC (2009) 15 NWLR (Pt. 1164) 344 at 376 Paragraph G.

He argued that in respect of claim of interest as of right, the claimant must place before the court sufficient facts and evidence to justify the award of such interest and that the best method of satisfying a court about the existence of the ground for the award of interest is by adducing credible, sufficient and satisfactory evidence about it. Himma Merchants Ltd vs. Aliyu (supra) at 676- 678 paragraphs E-F.

Counsel submitted that the award of interest in this case is not automatic and that the operative word in Order 47 Rule 7 of the Rules of this Honourable Court is “May”, in which case, the court has the discretion in the award of post judgment interest. Again, that there must be facts and/ or circumstances upon which the court can exercise its discretion. Ekwunife vs. Wayne (W/A) Ltd (supra) at 447 paragraphs G-H.

On general damages, counsel submitted that in an action seeking damages for termination of employment, general damages which are not covered by the contract of employment are not awarded. Maiduguri Flour Mills Ltd vs. Abba (1996) NWLR (Pt. 473) 506 at 511 paragraphs C-G.

CLAIMANT’S FINAL WRITTEN ADDRESS PURSUANT TO ORDER 45 RULE 1^st,2^nd &3^rd OF THE NATIONAL INDUSTRIAL COURT (CIVIL PROCEDURE) RULES 2017 filed on 3^rd October, 2017.

Learned Counsel contended that it is trite law that facts which are not specifically denied are deemed not to be in dispute or are deemed to have been admitted, he urged the court to hold that all the averments contained in the Claimant’s Amended Statement of Claim which were not traversed by way of reply to the Statement of Claim are deemed to have been admitted.

He submitted that the following facts are not in controversy or in dispute:

1) That the Claimant was in the employment of the Respondent.

2) That the service of the Claimant was terminated by the Respondent.

3) That the Claimant was not paid her termination benefits as contained in Exhibit

4) C5.

5) That Exhibit C5 (condition of service/rule book) regulates the relationship between the Claimant and the Respondent therefore binding on both.

6) That the Claimant was in the service of the Respondent for a period of 9 years.

ISSUES

(I) Whether Exhibit C5 is binding on the parties so as to regulate the relationship between them as Employer/Employee or Master/Servant relationship.

(II) Whether by virtue of Exhibit C5 the Claimant is entitle termination benefits in the form of gratuity, leave and accumulated bonuses.

(III) Whether the Respondent is justified in deducting the sum of N15, 000 from the Claimant last salary in October, 2014.

(IV) Whether in view of the fact that the Defendant is in breached of Exhibit C5 the Claimant will not be compensated with damages as the injured party.

ON ISSUE 1

Whether Exhibit C5 is binding on the parties so as to regulate the relationship between them as Employer/Employee or Master/Servant relationship.

Learned Counsel submitted for the claimant that P.I. AMAIZU, J.C.A: held in Nigerian Gas Co. v Mr. G. O Dudusola (2005) LPELR-5958(CA) “I will only add that there are three types of employer/employee relationship in our country with different consequences namely: – (1) Under the common law where in the absence of a written contract, each party could abrogate the contract on a wages or months’ notice, or on payment of wages for a week or month or whatever was the agreed period for payment of wages. (2) Where there is a written contract of employment between an employer and an employee, in such a case, the court has a duty to determine the rights of the parties under the written contract. (3) (i) Public Servants – their employment is provided for in a statute, plus conditions and service agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Part 9) 599. (ii) Public servants in the nation’s civil service as in the case of Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40.” Per AMAIZU, J.C.A (P. 37, paras. A-E)

ON ISSUE 2

Whether by virtue of Exhibit C5 the Claimant is entitle termination benefits in the form of gratuity, leave and accumulated bonuses.

Counsel submitted that in the case of BUKAR MODU AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) it was held, per MARY UKAEGO OPETER-ODILI, JSC:

“It has to be understood that as the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties”. See Western Nigeria Development Corporation V. Abimbola (1966) NSCC 172, Olaniyan V. University of Lagos (1985) NWLR (Pt.9) 599. Per OKORO, J.S.C. (P. 27, paras. B-D

ON ISUES 3 & 4

Whether the Respondent is justified in deducting the sum of N5,000 from the Claimant last salary in October, 2014.

Whether in view of the fact that the Defendant is in breached of Exhibit C5 the Claimant will not be compensated with damages as the injured party.

Counsel noted that PW1 in his evidence in chief testified that his last month salary in October 2014, the sum of Nl0, 000 was deducted and no justification was given, however, that the Respondent did not contradict the above evidence. That the law is trite that evidence which is unchallenged and uncontradicted is taken as admitted. Abogede v State (1994) LPELR23O42 (CA). He urged the Court to hold that the sum of N10, 000 which was deducted from the claimant salary in June 2015 was wrongly deducted and should be reverted.

Counsel submitted that the law is trite that where there is a wrong there is a remedy (Ubijus Ubi remedium) and that it is established before this court that the Respondent is in breach of Exhibit C5 as a result of which the Claimant will be compensated with damages for the injury suffered. Mr. Kunle Osisanya v Afribank Nigeria Plc. (2007) LPELR 2809(SC); Sisanya v Afribank Nigeria Plc. (supra).

DEFENDANT’S REPLY ON POINTS OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS filed on 23^rd October, 2017.

Counsel submitted that the position of law is that the right to file final written Address as provided by the Rules of this Honourable Court is not an opportunity or avenue for a party to introduce fresh facts and evidence into the case; and that the address of a Counsel, no matter how well written is not a substitute for evidence. Niger- Construction Ltd v. Chief Okugbeni (1987) 4 NWLR (Pt. 67) 287, Para. A; Ekpenyong v. Etim (1990) 3 NWLR (Pt. 140) 594 Para. 10.

On the 30^th May 2017 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.

I am inclined to adopt the issue for determination formulated by the Defendant. This way all the arears raised by the Claimant and shall be resolved in answer to all the issues raised in this complaint
The claimant’s issues are as follows;

(I) Whether Exhibit C5 is binding on the parties so as to regulate the relationship between them as Employer/Employee or Master/Servant relationship.

(II) Whether by virtue of Exhibit C5 the Claimant is entitled to termination benefits in the form of gratuity, leave and accumulated bonuses.

(III) Whether the Respondent is justified in deducting the sum of N15, 000 from the Claimant last salary in October, 2014.

(IV) Whether in view of the fact that the Defendant is in breach of Exhibit C5 the Claimant will not be compensated with damages as the injured party.

The defendant’s case and the issue of determination in this suit is

Whether the claimant has proved her case on the balance of probability to the reliefs sought.

In law, the burden of proof of breach of terms of employment lies on the party who alleges that fact, referring to CBN V. DINNEH [2011] 23 NLLR (PT. 64) 1 CA. The defendant then urged the Court to hold that since the claimant has failed to prove the alleged breach of the contract of employment he is not entitled to damages. See SUIT NO. NICN/LA/184/2012 MR. PATRICK AIMIOSIOR VS. INDUSTRIAL & GENERAL INSURANCE PLC. Delivered 3^rd June 2014.

The claimant has argued that facts which are not specifically denied are deemed not to be in dispute or are deemed to have been admitted, however the law requires that facts (pleadings) be supported by evidence otherwise such facts are deemed abandoned.

The following are Claimants reliefs:
The outstanding balance of N15, 000.00 (Fifteen Thousand Naira) wrongfully deducted from the Claimant’s salary in October 2014.

Accumulated Bonuses to the Claimant;

– Recharge Cards to the Claimant N3, 000 per month from October 2014 till date.

– Housing Allowances Claimant N66, 000.00 per annum from 2009 till date.

– Wardrobe Allowances to the Claimant N35, 000.00 per annum from 2009 till date.

Accumulated Leave Benefits to the Claimant One month salary plus 100% of her One month basic salary (N63, 840.00).

Gratuity to the Claimant in the sum of N319, 200.00 (One month salary times the period of Eight years plus one month salary.

21% pre judgment interest of the total sum.

10% post judgment interest on the judgment till liquidated.

The sum of N5, 000,000.00 as General Damages.

From the exhibits particularly exhibit C2 the letter of appointment, I find that the employment relationship existing between the claimant and the defendant is one of employer /employee commonly called master and servant.
And by CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC, This court held that in determining the rights and duties of parties to an employment contract, the Court will consider the terms of contract of service between an employer and an employee. These terms of agreement are binding on both parties. FMC IDO-EKITI v. OLAJIDE (2011) 11 (PT. 1258) 256 referred to.]

Looking at the Exhibit C2 and C5 I find that these documents create and govern the relationship between the claimant and the defendant.
Now looking at these documents juxtaposed against the above mentioned exhibits, I am unable locate or resonate the claimants claims to; – an outstanding balance the listed bonuses, Accumulated Leave Benefits or a Gratuity in or from the documents or any of the documents presented before the court. The claimant’s pleadings; – Statement of Fact which she termed Points of claim, also failed to reflect or make any mention of these claims so as to enable the court consider then accordingly.

It is not in doubt that the claimant was terminated by the defendants and that the claimant feels she is entitled to terminal benefits and other unpaid allowances and claims and argued such entitlement before the court, having been unable to present to this court any authorization for the claims sought so as to enable the court make a determination of the claimants entitlement if any to the reliefs sought. The question then arises as to the proper order to be made in these circumstances. Whether to make an order Dismissing this suit or Striking it out or the third option Non-suiting the claimant).

The law requires that I hear from parties before I resolve this question. May I hear the defendants first; –

V. OGUINYI for the defence,

Evidence cannot be led on facts not pleaded, we urge the court to dismiss the case

A.O. AYE for the claimant

The claimant led evidence in support of the claim but led no fact to pleaded, we urged the court to strike out this suit.

AMICUS CURIAE

S. A. OGAGA

This is a matter of error of counsel which should not be visited on the claimant, in the circumstances we urge the court to non-suit the claimant.

AJEWONMU

The relationship of Counsel and litigant is for better for worse, having said that and looking with the eyes of equity we urge the court not to dismiss the suit.

COURT

I have listened to learned Counsel to the Defendant and the Claimant and considered their respective submissions, arguments and authorities. I find the proper order to be made in this case is an order of the court striking out this suit.