IN THE NATIONAL INDUSTRIAL CORT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO
DATED: 19TH JULY, 2019 SUIT NO. NICN/AK/20/2018
BETWEEN
DAVID OLUROPO OLOGUN ……………. CLAIMANT
AND
MACMILLAN NIG. PUBLISHERS LIMITED …….. DEFENDANT
REPRESENTATION:
O. M. AFOLABI FOR THE CLAIMANT.
OPEYEMI ADEWALE FOR THE DEFENDANT.
JUDGMENT
The claimant by a complaint before this Court on the 15th of March, 2018 claim against the defendant as follows:
The sum of N1,270,000.00k (One Million, Two Hundred and Seventy Thousand Naira) only being the entitlement of the claimant as follows:
Basic salary (N19, 328 x 6) = N115,968
Housing Allowance (N11, 637 x 6) = N69,822
Floats (N45, 000 x 3) = N135,000
A month in lieu of Notices = N19,328
Cooperative Saving = N588,152
Pension (N1, 500 per month x 48 mths) = N72,000
Total = N1,270,000
The sum of N5 million as general damages
The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, written statement on oath of the claimant, list of witness and documents to be relied upon. The defendant on their part filed a memorandum of appearance, statement of defence and all other accompanying processes on the 30th November, 2018.
The claimant’s case is that he was employed as an ASSISTANT SALES REPRESENTATIVE (ONDO WATER SIDE) in the Akure Depot of the defendant vide a letter of Appointment dated 12th February, 2007 and the condition of service between him and the defendant is contained in the “Macmillan Nigeria Publishers Limited conditions of service” which came into operation on 1st January, 2002. The claimant stated that on 26th March, 2014, the defendant terminated his appointment vide a letter with reference no. MNP/CFO/OJO/IB/2014, due to “re-organisation exercise going on in Macmillan Nigeria Publisher Limited” and in breach of the conditions of service, he also pleaded that he caused his solicitor to write a letter of demand to the defendant on his entitlements but to no effect.
The Claimant averred that under the conditions of service, employees are entitled to gratuity, depending on their years of service and the defendant is to pay one (1) month in lieu of notice while the company is owing him a sum of N135,000.00 (N45,000.00 per month x 3 months) as imprest for 3 months.
The claimant further asserted that the defendant organised a cooperative savings scheme for its employees, of which the claimant is inclusive wherein a specific sum is deducted from the claimant’s wages. He stated that his last pay slip reflected that he has a sum of N588,152.00k outstanding credit in his cooperative savings, he is therefore claiming same.
The claimant pleaded that the defendant failed, refused and or neglected to pay the claimant the agreed gratuity as contained in the contract of employment, and his total gratuity of 6 months emoluments is calculated as follows:
Basic Salary (N19, 328 x 6 mths)= 115,968
Housing Allowances (N11, 637 x 6 mths)= 69,822
Floats (N45, 000 x 3)= 135,000
A month in lieu of Notice= 19,328
Cooperative Savings= 588,152
Pension (N1, 500 x 48 mths)= 72,000
Grand Total=1,270,000
He further averred that the failure of the defendant to pay him his entitlements resulted in great psychological trauma and economic loss for him and that many opportunities for him to invest suffered due to this.
WHEREOF the claim against the defendant as aforestated.
The defendant filed a memorandum of appearance and statement of defence on the 30th day of November, 2018. In its defence, the defendant admitted paragraphs 1, 2, 3, 4, 5, 6, 7, and 13 but denied paragraphs 8, 9, 12, 14, 16, 17, 18, 19, 20, 21, 26 and 27 of the Claimant’s statement of facts.
The defendant denied the claim for the sum of N45,000 (Forty five thousand naira) per month for 3 months as imprest/float, and stated that there was no agreement to that effect.
The defendant admitted that the claimant and some employees were laid off due to economic downturn and that they are indeed owing the claimant his entitlements but denied the amount claimed.
The defendant averred that it was the economic downturn being experienced by the defendant that is responsible for the inability to pay the claimant.
In conclusion, the defendant prays this Court to dismiss the Claimant’s suit in its entirety for being frivolous and unmeritorious.
The claimant in his reply to statement of defence re affirmed that there was an agreement that the defendant would pay the claimant a monthly float of N45,000.00 to cover the claimant’s expenses incurred in the employment and the defendant has been consistent in paying the float for years but defaulted in the 3 months prior to the termination of his appointment.
He stated that the cooperative saving scheme was organised by the defendant and a sum of N1,000 monthly was regularly deducted from the claimant’s monthly salary.
He therefore averred that the Statement of Defence lacks merit, is an abuse of Court process and should be dismissed with substantial cost.
The trial in this case commenced on the 29th of October, 2019, but the defendant was unrepresented despite the issuance of Hearing Notice on it, listing the case for hearing. The claimant testified for himself as CW1, adopted his sworn affidavit on oath, and tendered several documents which were admitted and marked Exhibits D1 – D11, he was cross examined and thereafter closed his case. The court thereafter adjourned for cross examination of CW1 and defence, upon failure of the defendant to put in an appearance. The Defence was allowed to cross examine CW1 and on the 19th February, 2019, after regularising its processes, the defence later opened its case on the same date and called one Ajayi Bamidele Ojo, a field Sales Manager of Akure Branch of the defendant as DW1, he adopted his witness Statement on Oath, gave evidence and was cross-examined and the defence subsequently closed its case. The case was adjourned for the adoption of final written address and parties adopted their addresses on 27th of May, 2019, thereafter, the case was adjourned for judgment.
The defendant filed its final written address on the 2nd of April, 2019 wherein two (2) issues were formulated for consideration to wit:
Whether considering the facts, circumstances, and evidence led by the parties in this case, the Claimant has established that he is entitled to the sum of N1,270,000 (One Million, Two Hundred and Seventy Thousand Naira) as the amount the Defendant is owing him.
Whether from the evidence led by both parties, this Honourable Court can grant the Claimant the sum of N5,000,000 (Five Million Naira) as general damages.
On issue one, counsel for the Defendant submitted that the defendant admitted owing the claimant his entitlements after the termination of his employment but denied the sum of N1,270,000.00K (One Million, Two Hundred and Seventy Thousand Naira) claimed by the him. He submitted that the Claimant throughout the course of trial was not able to proof how he arrived at the said sum and none of the exhibits tendered was able to show same.
Opeyemi Adewale Esq. of counsel to the Defendant submitted that it is a fundamental principle of law that he who assert must prove, and this the claimant failed to do, he cited Section 131 (I) of Evidence Act 2011, and OKUBULE VS OYABOLA (1990) 4 N.W.L.R. (PART 147) 723, amongst others. He urged the Court to resolve issue one in favour of the Defendant.
On issue two, counsel submitted that it is trite that general damages may be awarded when there is evidence that a party so claiming has suffered such. He argued that the law remains that in a case of breach of contract, the principle upon which the award of damages is predicated is “restitution in integrum, id est.” (restoration of the Claimant to the condition he was before the breach occurred). It is never the object of an award of damages to give the Claimant a wind fall or restitution in opulentiam. He cited SAVANAH BANK OF NIG PLC VS OPANUBI (2004) 15 N.W.L.R. (PT 896) 437, and UNION BEVERAGES LTD VS OWOLABI (1998) 2 N.W.L.R. (PT 68) 128. Learned counsel stated that the claimant during hearing of this suit failed to lead evidence to proof the alleged special and general damages, he therefore urged the court to resolve issue two in favour of the Defendant.
In conclusion, the Defendant’s Counsel urged the Court to hold that the Defendant is not owing the Claimant the sum of N1, 270,000 (One Million, Two Hundred and Seventy Thousand Naira) and he is not entitled to the sum of N5,000,000 (Five Million Naira) as general damages.
The Claimant’s final written address dated 10th April, 2018 was filed on the 11th April, 2019 in which he formulated two issues for determination to wit:
Whether there is a wrongful termination of the claimant employment by the defendant.
Whether the claimant is entitled in law and fact to the reliefs sought and the sum of 5 million damages per the complaint issued on 15th day of March, 2018.
On issue one, the counsel placed reliance on the Exhibits D1-D11 and submitted that the burden of establishing the wrongful termination/dismissal of employment rest squarely with the claimant. He cited the supreme court case of KATTO VS CBN (2001) FWLR (Pt53) 188 @ page 200 paragraph G-H.
O. M Afolabi of counsel to the Claimant submitted that the import of this decision is that the claimant must plead the contract of service and prove the breach thereof which makes the termination of his employment wrongful or unlawful. He cited DENLOYE VS MEDICAL & DENTAL PRACTITIONERS COMMITTEE (1968) INLR 306 and OLANIYAN VS UNILAG (1985) 3 NWLR (Pt. 9) 599 and others.
Learned counsel maintained that in all these cases, the court firmly established the test to determine whether the dismissal of an employee is improper or unlawful, and affirmed that the claimant in this case has satisfied these conditions.
The Claimant’s counsel argued that by Exhibit D10 the claimant’s employment can only be determined by notice or salary in lieu, and this was not done in this case. Furthermore, he stated that the defendant under cross-examination failed to debunk the assertion that the employment of the claimant was wrongfully terminated. The Counsel posited that the testimony of DW1 reveals that he is not conversant with the rules guiding the employment, termination or any other affairs that relates to the defendant.
He stated further that it is trite that the terms and conditions of a contract of service is the bedrock in the determination of any case involving termination of employment and this was flouted by the defendant, citing UDOH V C.S.C. AKWA IBOM STATE 2014 PT 716 ALLFWLR CA 584, he urged the court to hold that the claimant’s termination was wrongful, illegal, null and void.
On issue two, he submitted that the claimant is entitled in law and fact to the reliefs sought and the sum of N5 million damages from the evidence adduced in this case.
He posited further that once the court comes to the conclusion that the claimant was wrongfully dismissed/terminated, then it follows that the claimant is entitled to the reliefs sought. In awarding the reliefs, counsel maintained that the court will have recourse to the condition of service and the Exhibits backing up the reliefs.
Learned counsel stated that it is trite that admitted facts needs no further proof and cited N.B.C. PLC. V UBANI pt 718 (2014) ALL FWLR SC 803, stating that in the instance case, the defendant admitted that they are owing the claimant his entitlements. He urged the court to find in favour of the claimant and grant all his reliefs.
I have perused all the processes filed in this case and have listened to the witnesses called by both parties in proof of their case and the submissions of counsel in their final address and have thereafter formulated two issues that will best determine this case:
Whether or not the claimant is entitled to the payment of one month salary in lieu of notice and other entitlements by way of special damages.
Whether or not the claimant has succeeded in proofing his claim for N5 million as general damages.
The claimant’s case is that the termination of his employment by the defendant was wrongful in that he was not issued a month notice or a month salary in lieu of notice before the appointment was terminated, he claims that this runs contrary to the contract of employment between the parties i.e. Exhibit D 10, he is also contending that under Exhibit D 10, the claimant is claiming his gratuity, his cooperative savings and other allowances. The defendant however contends that it was compelled to reduce its staff due to the economic downturn being experienced by the defendant and this resulted in the termination of the employment of the claimant, the defendant also agreed to owing the claimant his entitlements but disputed the amount claimed as special damages and maintained that the claimant is not entitled to any general damages.
It is imperative to note before delving into the issues for determination, that the sum total of the figures contained in the reliefs of the complaint and statement of fact is inaccurate. The figures are as follows:
Basic Salary (N19, 328 x 6 months) = 115,968
Housing Allowances (N11, 637 x 6 months)= 69,822
Floats (N45, 000 x 3)= 135,000
A month in lieu of Notice= 19,328
Cooperative Savings= 588,152
Pension (N1, 500 x 48 months)= 72,000
Grand Total=1,270,000
The addition of these figures is a total of N1,000,270 i.e. (One Million Two Hundred and Seventy Naira) not N1,270,000.00k (One Million, Two Hundred and Seventy Thousand Naira). I so find and hold.
It is trite law, that when an employee complains of wrongful termination of his employment or is claiming any entitlement from an employer, he has the onus to prove same by leading evidence as follows:
He is to prove that he was employed by the Employer.
He must place before the court the terms and conditions of the contract of Employment.
Who can appoint and who can remove him and
In what circumstances the appointment can be determined by the employer and the breach of the terms of employment.
See Okomu Oil Palm Co.Ltd v. Iserhienhrien [2001] 6 N.W.L.R. Pt.710 @ pg. 660.
In the instant case the fact that the claimant was an employee of the defendant is uncontroverted; it is also uncontroverted that the parties are in a Master/Servant relationship which can be determined with or without any reason at any time by the parties; the letter of employment and terms and conditions of employment were tendered and admitted as i.e. Exhibit D1 and Exhibit D10; on whether the terms of employment was in any way properly determined or breached in any way, the claimant referred the court to clause 18 of Exhibit D10 which states as follows:
“it is understood and recognised that the company or the employee may terminate an appointment giving the necessary notice without adducing any reason whatsoever. If at the company’s discretion, the employee is not required to work out his/her notice, he/she will receive the appropriate amount of his/her pay in lieu of notice. An employee who resigns without giving notice will not be allowed any leave or salary. An employee who resigns and give notice will be allowed leave due to him/her at the time of resignation but no leave allowance will be paid”
Further reading of clause 25 of Exhibit D10, reveals that:
Redundancy is caused by an excess of man power resulting in an involuntary and permanent loss of employment. The company will endeavour to avoid terminating the services of an employee on the ground of redundancy. However, where through force of circumstances, it is necessary to reduce work force the Management will consider such factors as efficiency, ability, diligence, reliability, fitness or work, loyalty and length of service before deciding who to lay off. Such employees will be given appropriate length of notice or salary in lieu.
In furtherance of his case, the claimant tendered Exhibit D2 which is the letter of termination of his appointment, which reads as follows:
TERMINATION OF APPOINTMENT
“Please be informed that due to the current reorganisation exercise going on in Macmillan Publishers Limited, Management has decided to terminate your appointment with effect from Monday 31st of March 2014.
The Accounts Department will be contacted to pay your entitlements. But if you have obtained any loan(s) from Mascoop Ltd, and have not fully settled the loan(s) the balance will be deducted from your entitlements before payment. In accordance with your terms of employment, you will be paid one month’s salary in lieu of notice with your entitlements.”
It is trite that admitted facts need no further proof see section 123 of the Evidence Act and the case of Nwachukwu & ors v. Dimgba & ors [2009] LPELR-8414 (CA). The defendant in this case admitted owing the claimant his entitlements but kept silent on the amount it is owing, rather they sought to find solace in the assertion that the claimant is not entitled to the amount he is claiming. The court is therefore left with no other option but to examine the monetary claims and determine whether the claimant adduced enough evidence in proof of the total sum claimed.
An evaluation of all the above discloses that while the defendant exercised its right to determine the employment of the claimant pursuant to the provisions of Exhibit D10 highlighted above, the defendant breached the express terms of the provisions as to issuance of “…necessary notice”, this position is reiterated by Exhibit D2 which is the letter of termination, wherein it was stated clearly that one month salary in lieu of notice will be paid to the claimant along with his entitlements. It is the position of the law that where an employee’s appointment is terminated, and the mode for termination of the employment is stipulated as notice or salary in lieu of notice, the payment in lieu should be made alongside the service of the letter of termination of appointment. Where the employer fails to do this he is liable for breach of the terms of employment see New Nigeria Bank Plc v. Solomon Owie [2010] LPELR 4591 (CA). It is unrefuted that the defendant in the instant case did not pay the one month salary stated in Exhibit D2, and as such is in breach of the contract of employment and is therefore liable to pay same to the claimant. Exhibit D5 is the last pay slip of the claimant, and it is so stated therein that the last paid monthly net salary of the claimant is N32, 559.45K, the claimant is however claiming his basic salary of N19, 328.00k as his one month salary in lieu of notice. In the case of Abiodun Joseph v. Fajemilehin O.O. & Anor [2012] LPELR-9849 (CA) the Court of Appeal held per Fasanmi, J.C.A thus:
“it is the law that where a party proves his claim to a larger sum than the sum pleaded, he will only be entitled to the lesser sum claimed and proved.”
I find therefore that the Claimant is entitled to N19,328.00K basic salary as one month salary in lieu of notice as captured in his Statement of Facts. I so hold.
In proof of his claim for six months total emolument as gratuity for his service of seven (7) years with the defendant, the claimant relied on Exhibit D10, and testified further, he stated that his claim is in accordance with clause 27 of Exhibit D10. The claimant having served the Defendant for 7 years is entitled to six (6) months total emolument as gratuity. Exhibit D5 is the claimant’s last pay slip which contains his monthly entitlement, the gratuity of the claimant is therefore calculated based on this Exhibit as follows:
Basic Salary (N19,328 x 6 mths) = 115,968
Housing Allowances (N11,637 x 6 mths) = 69,822
Total = 185,790
The claimant is therefore entitled to a total sum of N185,790 (One hundred and eighty-five thousand, seven hundred and ninety naira) as gratuity for his 7 years’ service with the defendant. I so hold.
On the amount contributed and remitted to the defendant’s cooperative society, it is on record that when the claimant was cross examined by counsel for the defendant on whether the cooperative society is distinct from the defendant, he responded as follows:
The defendant and Macmillan Cooperative are one and the same
Also from Exhibit D5, it is clear that deductions were made from the claimant’s salary to the cooperative savings and the total savings as of date was stated, Exhibit D10 further reveals that the cooperative was recognised by the defendant, as same is incorporated in clause 12 of Exhibit D10 (the defendant’s terms and conditions of service), where all staff are enjoined to join the cooperative society for loan requests. The defendant cannot therefore deny that the cooperative society is been operated by the company, having incorporated same in Exhibit D10. Moreover the defendant did not deny the claimant’s entitlement to his cooperative savings. It is based on the reasoning above that I find that the claimant is entitled to be paid his savings in the defendant’s cooperative society computed at N588,152 (Five Hundred and Eighty Eight Thousand, One Hundred and Fifty Two Naira) vide Exhibit D5 less any unpaid loan by the claimant. I so hold.
On the issue of pension, the claimant tendered Exhibit D4 in proof that pension deductions were made and remitted to NLPCPFA Global Fund. Also Exhibit D5, the last pay slip of the claimant shows that deductions for pension were made from his salary. The total amount deducted from the claimants salary and remitted to his PFA is ₦71,658.22 (Seventy One Thousand, Six Hundred and Fifty Eight Naira, Twenty Two Kobo.). I find that the Claimant is entitled to ₦71,658.22 (Seventy One Thousand, Six Hundred and Fifty Eight Naira, Twenty Two Kobo.) as his pension to be claimed from his Pension Fund Administrator, and the defendant is to facilitate same. I so hold.
The claim for N5 million as general damages however fails, as it is the position of the law that damages are not usually granted in employment cases as the quantum of damages available to an employee is the sum accruable to him at the time of termination of his appointment, see ONALAJA V. AFRICA PETROLEUM LTD supra, having awarded the claimant his entitlements, I find no merit in awarding him double compensation by way of general damages. I so hold.
It is noteworthy that the claimant claimed against the defendant a sum of N45,000.00 per month to be paid as imprest, and that he is being owed the said sum for 3 months, at a sum total of N135,000.00, no cogent evidence was adduced on this claim and it was not addressed by counsel to the claimant. I find that this issue is deemed abandoned and unproven. I so hold.
Finally, I hereby order as follows:
The defendant is to pay the claimant one month salary in lieu of notice in the sum of N19, 328.00K (Nineteen thousand, three hundred and twenty-eight naira).
The defendant is to pay the claimant a sum of N 226,656 (two hundred and twenty-six thousand, six hundred and fifty six naira) as gratuity.
The defendant is to pay the claimant his total savings of N 588,152.00k (Five Hundred and Eighty Eight Thousand, One Hundred and Fifty Two Naira) less any unpaid loan from the defendant’s cooperative society.
The claim for general damages fails
The Claimant is entitled to a sum of N71,658.22 (Seventy One Thousand, Six Hundred and Fifty Eight Naira, Twenty Two Kobo) to be claimed from his pension Fund Administrator.
All monetary sum awarded in this judgment against the Defendant are to be paid within 30 days failure upon which it will attract 25% interest per annum.
A sum of N50,000 (fifty thousand naira) is hereby awarded as cost against the defendant to be paid to the claimant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
