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Elizabeth Atiene Otakponmwenhi VS SGS Inspection Services Nigeri

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

 

DATE: JUNE 21, 2018                                        SUIT NO: NICN/LA/518/2014

 

BETWEEN

Elizabeth Atiene Otakponmwenhi                        –                                    Claimant

 

AND

SGS Inspection Services Nigeria Limited              –                                  Defendant

 

REPRESENTATION

Harrison Declan with F.A. Oshonogon & Agomuo Victoria for the Claimant.

S.K. Moor with Oluwasade Adedayo, Bolu Agbaje Akadiri &

Folayemi Adeola for the Defendant.

 

 

JUDGMENT

  1. Introduction, Claims & Counter claims

On the 6th of November, 2014, the Claimant approached this Court via her Complaint and Statement of Facts and claimed the total sum of =N=12,644,139.81 (Twelve Million, Fifty Nine Thousand, Seven Hundred and Seventy Two Naira, Seventy Three Kobo) being the outstanding  of her retirement benefits computed as follows –

 

  1. The sum of =N=1,870,953.33 (One Million, Eight Hundred and Seventy Thousand, Nine Hundred and Fifty Three Naira, Thirty Three Kobo Only) being the Claimant’s final payment of her six months’ salary in lieu of notice.
  2. The sum of =N=1,780,632 (One Million, Seven Hundred and Eighty Thousand, Six Hundred and Thirty Two naira Only) being her 2013 leave allowance.
  3. The sum of =N=914,166 (Nine Hundred and Fourteen Thousand, One Hundred and Sixty Six Naira only) being her 2013 payment in lieu of leave.
  4. The sum of =N=3,807,896.04 (Three Million, Eight Hundred and Seven Thousand, Eight Hundred and Ninety Six Thousand, Four Kobo) being the balance of her retirement benefit, which is 300% of total emolument for 2 years and seven months.
  5. The sum of =N=609,444 (Six Hundred Thousand, Four Hundred and Forty Four Naira Only) being her 13th month pay for 2013.
  6. The sum of =N=206,910 (Two Hundred and Six Thousand, Nine Hundred and Ten Naira Only) being her salary from 20th – 30th November, 2012.
  7. Certificate of Service to be issued her by the Defendant.
  8. The sum of =N=368,271 (Three Hundred and Sixty Eight Thousand, Two Hundred and Seventy One Naira Only) to be paid to her Retirement Savings Account maintained by her Pension Fund Administrator being the Defendant’s mandatory contributory pension payments for seven months including the month of November, 2012.
  9. The sum of =N=716,900 (Seven Hundred and Sixteen Thousand, Nine Hundred Naira Only) being her Driver’s allowance for six months.
  10. The sum of =N=2,368,967.44 (Two Million, Three Hundred and Sixty Eight Thousand, Nine Hundred and Sixty Seven Naira, Forty Four Kobo Only) being the total sum of the expenses made by her for the six months period broken down as follows:

 

  1. Fuel for six months           –        =N=420,000
  2. Purchase of four new tires           –        =N=140,000
  • Change of wind shield           –          =N=58,000
  1. Car maintenance for six months           –        =N=600,000
  2. Change of vehicle particulars           –          =N=63,000
  3. Medical expenses           –        =N=290,000
  • Mobile phone usage (=N=60,000 x 6 months) –        =N=360,000
  • After hours phone subscription x 6 months) –          =N=60,000
  1. After hours phone repair –            =N=8,000
  2. DSTV subscription for 6 months –        =N=153,600
  3. DSTV change of LNB –          =N=31,000
  • Replacement of HD Digital Receiver –          =N=55,000
  • Ikoyi Club subscription January – June 2013 –          =N=34,367.44

 

  1. Interest on the said sum at the prevailing Central Bank of Nigeria interest rate from the day of the filing of this suit until full payment thereof.
  2. The sum of =N=2,500,000.00 (Two Million Five Hundred Thousand Naira Only) being the cost of this suit.

 

Accompanying the statement of facts are witness statement on oath, list of witness, list and copies of documents to be relied on at trial. The Defendant entered an appearance and filed its statement of defence on 15/5/15 together with all requisite frontloaded processes and counter claimed as follows –

 

  1. A declaration that the termination by the Counter-Claimant, of the employment of the Defendant by Counter-Claim vide letter of disengagement from service dated 19th November, 2012, is lawful, binding, subsisting and done in accordance with the employment agreement dated 9th October, 2010.
  2. A declaration that the Defendant by Counter-claim having received her termination benefits in full and her pension, is not entitled to any remuneration           whatsoever from the Counter-Claimant either as retirement benefits or for any           other purpose whatsoever, the said termination having become mutual upon her           acceptance of her termination benefits.
  3. A declaration that the subsequent purported retirement of the Claimant from the Defendant vide a backdated letter dated 19th November 2012 is baseless           unfounded and of no effect whatsoever.
  4. An order of perpetual injunction restraining the Defendant by Counter-Claim from parading, representing and or holding herself out as a retiree of the Counter- Claimant and from further harassing the Counter-Claimant and or demanding from       it any purported retirement benefits or any other sums whatsoever.
  5. The sum of =N=3,000,000.00 (Three Million Naira Only) as cost of defending this suit.
  6. The sum of =N=2,000,000.00 (Two Million Naira Only) general damages against the Defendant by Counter-Claim for the unwarranted embarrassments and harassments of the Counter-Claimant.

 

  1. Case of the Claimant

Claimant opened her case on 16/2/16 and testified in chief by adopting her witness statement on oath dated 6/11/14 as her evidence. Claimant tendered 14 documents which were admitted without objection and marked as Exh. C1-Exh. C14. The case of the Claimant from the pleadings filed is that she was employed by the Defendant; that she retired from the services of the Defendant and that her retirement benefits and entitlement were not paid or fully paid by the Defendant.

 

Under cross examination, the Claimant testified that she joined the employment of Defendant in 20/9/07; that the appointment was terminated on 19/11/12; that she was 54 years old then; that she was General Manager/Head of Human resources; that she was the author of the Human Resources Policy of the Defendant; that in event of discrepancies between Contract of Employment and the Policy, the Contract takes precedent; that her severance package upon termination of employment; that on 21/11/12 the termination of her appointment was converted to voluntary retirement; that her letter of voluntary retirement was prepared in October 2013; that the reason for the conversion of termination to retirement was because she complained to the Managing Director about her termination and requested him to consider converting the termination to retirement; that she did not conceal any motive while approaching the Managing Director of Defendant; that benefits for termination and voluntary retirement are not the same; that it is not because of the benefits accruable to those who retire that she asked for conversion; that 50 years is the age for voluntary retirement and that 10 years is the minimum working period. Claimant added that she does not have the findings of the Federal Ministry of Labour; that the Ministry requested the parties to settle amicably and she was advised to write to the Managing Director to demand her entitlement; that she would be surprised if the finding is different from what she has stated; that she does not have the letter of invitation to Panti Police Station before the Court and that she did not serve for up to 10 years with the Defendant. Under reexamination CW1 stated that ownership of the Car was transferred to her long before she was reported to Panti Police Station.

 

  1. Case of the Defendant

The Defendant opened its case on 21/9/16 when it called one Muyiwa Olaniyan as its lone witness. The witness adopted his witness deposition made on 15/5/15 as his evidence in chief and tendered 16 documents as exhibits. The documents were admitted without objection and marked as Exh. D1-Exh. D16.

 

The case of the Defendant as distilled from the pleadings is that the Defendant vide an employment agreement dated the 29/10/10 employed the Claimant as Head Human Resources on Management Level 1; that during the internal restructuring conducted by the Defendant’s Head Office in Geneva sometimes in 2012 decided that certain members of staff of the defendant be laid off; that on the 19/11/12 the Claimant was issued a letter of disengagement from service with strict compliance with the contractual terms contained in the employment agreement between the Claimant and the defendant; that in line with Clause 6.1 of the employment letter, the disengagement letter was accompanied with the claimant’s termination benefit Invoice and Citi Bank cheque dated the 19/11/12 for the sum of =N=4,033,940.00 (Four Million, Thirty Three Thousand, Nine Hundred and Forty Kobo) and same was cashed by the claimant on the 7/12/12. Witness added that the amount was broken down as follows – a. The sum of =N=1,645,150.00 (One Million, Six Hundred and Forty Five Thousand One Hundred and Fifty Naira Only) being the sum due for 3 months basic salary in lieu of the agreed Notice period calculated at them of =N=548,383.33 (Five Hundred and Forty Eight Thousand, Three Hundred and Eighty Three Naira Thirty Three Kobo Only) per month, b. the prorated sum of =N=357,390.00 (Three Hundred and Fifty Seven Thousand, Three Hundred and Ninety Naira Only) being the sum due for 19 (nineteen) days in the month of November, 2012, c. the sum of =N=1,128,600.00 (One Million One Hundred and Twenty Eight Thousand Six Hundred Naira Only) being the sum due as severance benefits calculated at the sum of =N=564,300.00 (Five Hundred and Sixty Four Thousand Three Hundred Naira Only) for two years of service offered to the company as provided by the employment agreement dated 29/10/10, d. the sum of =N=338,500.00 (Three Hundred and Thirty Eight Thousand Five Hundred Naira Only) being the sum due as untaken leave allowance for 2012, e. the sum of =N=564,300.00 (Five Hundred and Sixty Four Thousand Three Hundred Naira Only) being the sum due as Christmas bonus; that the Claimant upon her termination pleaded that she be allowed to retain her official car and the plea was granted by the Defendant’s Managing Director; that however, a year after the Claimant had exited the Defendant’s company as aforesaid, (sometimes in November, 2013), the Claimant informed the Defendant of her difficulty in securing another job due to her termination and pleaded that the termination be converted to voluntary resignation; that the defendant through its Managing Director initially declined the request but on further pressure form the Claimant, by several calls and text messages, the Defendant’s Managing Director out of good faith finally yielded to the Claimant’s request and acknowledged the back dated letter of voluntary retirement dated the 19/10/12 submitted by the Claimant; that the claimant, now harmed with the acknowledged copy of the letter of voluntary resignation immediately called the Managing Director of the Defendant requesting for retirement benefits and threatened to sue the Defendant to recover the said sum; that the Claimant thereafter wrote a petition against the defendant to the Ministry of Labour and Productivity for recovery of her illusory retirement benefits and that after series of meeting with officials of the Ministry, a formal report  was issued which clearly showed that the defendant stood its ground that Claimant has been fully remunerated.

 

Under cross examination, the witness stated that he has been working with Defendant since 2007; that he became Human Resources Manager in February 2015; that before then he worked in Product Analysis, Risk Management Valuation and Head of Operation; that by his position he has of issues involved in this case; that Managing Director is the overall head of decision making body of Defendant; that the Managing Director does not have power to convert termination of staff to retirement; that this is because there are policies and procedure on staff matters; that the Managing Director cannot waive the policies of the Defendant aside; that there are differences between termination, resignation and retirement; that the Claimant did not retire from Defendant; that her appointment was terminated and that the Claimant only sought a letter to indicate retirement without any benefit attached.

 

  1. Submissions of learned Counsel

At the conclusion of trial on 21/9/16, the Court directed learned Counsel on either side to file their final written addresses for adoption. The final written address of the Defendant was dated and filed 26/10/16. In it learned Counsel set down the following two issues down for determination –

 

  1. Whether having regard to the facts and circumstances of this case, particularly the case put forward by the claimant, the claimant has been able to discharge the          burden of proof on her to justify her entitlement to the reliefs before this         Honourable Court.

AND IF NO

  1. Whether the defendant is not entitled to succeed in his(sic) counter-claim.

 

The crux of the submission of learned Counsel on these issues is that the appointment of the Claimant had earlier been lawfully terminated; that the Claimant was paid all her terminal entitlements; that at that point she ceased to be a staff of the Defendant and that she had no employment from which she could have voluntarily retired in October, 2013. Learned Counsel prayed the Court to dismiss the claims of the Claimant and grant the counter-claims sought by the Defendant. The Final written address of the Claimant was filed on 25/11/16. In it learned Counsel set down the following 4 issues for determination –

  1. Whether the Defendant’s Managing Director acted for the Company in accepting to convert the Claimant’s termination to retirement and pay her contractual       entitlements for retirement.
  2. Whether the Defendant is bound by its undertaking to pay the claimant her retirement benefits as contained in Exhibit C5.
  3. Whether the Company can waive the requirements for voluntary retirement as contained in its Hunan Resources Policy.
  4. Whether the Defendant is entitled to their counterclaim.

 

Learned Counsel submitted that a company acts through its members citing Section 63(1), Companies and Allied Matters Act Cap.20 Laws of the Federation of Nigeria, 2004; that the Managing Director acts of the Managing Director is binding on the company citing Faith Enterprises Limited v. BASF (Nig.) Limited (2001)8 NWLR (Pt. 714) 242 at 250; that the Defendant is bound by the act of its Managing Director accepting the voluntary retirement of the Claimant and hence bound to pay the Claimant her retirement benefits as contained in Exh. C5. It was the further argument of the Claimant Counsel that the Defendant is bound by its Human Resources Policy and the Managing Director of the Defendant having overridden the provision of Exh. C2 in relation to the qualifications for retirement as it concerns the Claimant, the Defendant is bound to pay the Claimant her retirement benefits and that the Defendant is not entitled to any of the counter claims sought. The learned Counsel to the Defendant subsequently filed a 9-page reply address on 2/12/16.

 

  1. Decision

I read and understood all the processes filed by learned Counsel on either side of this case. I also listened to the oral submissions of Counsel while adopting their final written addresses. I heard the testimonies of the witnesses called by the parties at trial and watched their demeanor. I also carefully and diligently evaluated all the exhibits tendered and admitted in this case. Having done all this, I narrow the issues for the just determination of this case as follows –

 

  1. Whether the employment of the Claimant was lawfully terminated.
  2. Whether the Claimant voluntarily retired from the services of the Defendant.
  3. Whether the Claimant is entitled to all or some of her claims before the Court.
  4. Whether the Defendant is entitled to all or some of the counter-claims sought.

 

The facts of this case are ordinarily simple and straightforward. From the pleadings filed, the Claimant was employed by the Defendant via an Employment Agreement dated 29/10/10 (Exh. C1). The relationship is also regulated by Human Resources Procedures (Exh. C2). The employment of the Claimant was terminated by a letter dated 19/11/12 (Exh. C3). Paragraph 2 of that exhibit indicated that a cheque in the sum of =N4,033,940.00 was attached as terminal benefits of the Claimant. Included in the sum, is 3 months’ salary in lieu of notice, prorated sum for 19 days which the Claimant worked in the month of November and sum due as untaken Leave Allowance for 2012. Also included in the calculation is the sum of =N=564,300.00 being the sum due as Christmas bonus. I find as facts that the parties are in ad idem on all this. There is however a letter of voluntary retirement by the Claimant dated 19/11/12 but received by the Defendant on 14/10/13 and acceptance of same by the Defendant. A major issue for determination here is whether the appointment of the Claimant was lawfully terminated by the Defendant or whether the Claimant voluntarily retired from the services of the Defendant. The resolution of these issues one way or the other will determine whether the reliefs sought will succeed or whether the counter claims of the Defendant will be granted.

 

It is trite that employment relationship or master/servant relationship is a voluntary one in which there is a freedom of entry and freedom of exit. Either party to the relationship is always at liberty to opt out of same subject only to giving the requisite notices or any stated condition under the contract. In the instant case, Clause 6.1 of Exh. C1 states that ” … either party may terminate the employment by giving three month’s notice, or three month’s basic salary in lieu of notice”. Claimant tendered Exh. C3(same as Exh. D2) the letter terminating her employment from the Defendant. That exhibit was dated 19/11/12. That exhibit was received and signed for by the Claimant. The purport of that exhibit was not contested at trial. The law is trite that a letter of termination takes effect from the date of its receipt. See Oduko v. Government of Ebonyi State (2004)13 NWLR (Pt. 891) 487. I dare say that the same principle is applicable respecting letters of resignation or retirement. I perused the reliefs sought by the Claimant before this Court. I note that the Claimant did not in any way or manner argue that the termination of her employment was wrongful or not in tandem with applicable agreement signed by the parties. Claimant did not lead any evidence to the effect of or suggesting that the said letter of disengagement was withdrawn by the Claimant. For, until it is withdrawn, a letter of disengagement or termination of employment continues to be effective for all intents and purposes. I have sufficient evidence before me that the employment of the Claimant was effectively terminated on 19/11/12 by Exh. D2. I also find that by Exh. D2 & Exh. D3 the Claimant was paid all her terminal entitlements. It is also my finding that the letter of disengagement served on the Claimant was not at any point in time withdrawn by the Defendant. Therefore, resolving issue 1, I hold that the employment of the Claimant was lawfully terminated by the Defendant.

 

The second issue for determination is whether the Claimant voluntarily retired from the services of the Defendant. I have already found and held that the employment of the Claimant was lawfully terminated and that the letter of disengagement was not withdrawn by the Defendant at any time till date. At least I do not have evidence to that effect before me. It is therefore safe for me to simply hold that the Claimant did not voluntarily resign from the services of the Defendant. The argument of the Claimant that she retired voluntarily form the services of the Defendant is founded on Exh. C4 allegedly dated 19/11/12 but allegedly received by the Defendant on 14/10/13 and the alleged acceptance of that voluntary retirement by the Defendant on 21/11/12. I should emphasise that as at 19/11/12 the Claimant ceased to be an employee of the Defendant. Again as at that date the Claimant had no employment from which she could have voluntarily retire from. The Claimant relied on Exh. C5 in making claims for retirement benefits. I dare say that it is unfortunate that the Claimant decided to take the step she took in instituting this action. I have enough evidence before me to the effect that that exhibit was provided the Claimant at her own behest and plea to the Managing Director of the Defendant. Claimant tendered Exh. C14. That was the communication between the Claimant and the Managing Director of the Defendant in which she begged the latter that she be allowed to send in a letter of voluntary retirement in view of the problems and challenges she was facing both in securing another employment as well as securing travel visas. The conversation was between 11/10/13 and 2/12/13. I find sms exchanges between the Claimant and Andy Hunter, Managing Director of the Defendant, germane hence I decide to reproduce same verbatim as tendered by the Claimant and admitted without objection-

”Gd morning MD, I’m sorry I have to come back to you. Believe me, I woudn’t if I didn’t have to. Recently, I lost an opportunity to secure a job cos I could not explain my mode of exit from SGS.  I still do not know why I lost my job. Just last week, I was denied a visa to Belgium on grounds of irregular income. I had never been denied a visa. I’m worried dt I may have more difficulties in future as a result of dis termination of my appointment. I therefore appeal to you MD, to look at d possibility of making it a Retirement from Service or Resignation. That way I can explain d lack of income and position myself better for employment. I’m suffering unduly, MD. Your kind consideration will be appreciated. Thank you and regards to your family. Lizzy.               11/10/2013,  08:46

 

Lizzy I have no problem with resignation if that will help you,

its unfortunate that Corp HR made the change but that was their

decision. Rgds. Andy.                            11/10/2013. 08:55.

 

Thank you, MD but Voluntary Retirement may make more sense as pple hrdly resign to go into d job market. One expects dt you have another job b4 you resign but with retirement, it can b due to many other factors all of which can explain lack of income for the moment and justify seeking paid employment in d near future.                 11/10/2013, 09:21.

 

Lizzy send me the letter back date it and we will reply

accepting it that should be ok for you.

11/10/2013, 09:22

Which of them, Voluntary Retirement or Resignation?

11/10/2013, 09:24.

You decide whatever is best for you

11/10/2013, 09:29.

Thank you. Will send it in next week. God bless you.

11/10/2013, 09:30.

 

Ok no problem.    11/10/203. 09:30.

Lizzy I have your letter and we are arranging our letter

of acceptable once its ready I will let you no tnkx.

24/10/2013, 09:44.

Thank you.                    24/10/2013, 09:49

Gd morning MD, just reminding you abt the letter.

Sir. Thank you.               07/11/2013, 09:08.

 

Hi Lizzy I will get it done this week for you.

07/11/2013, 10:27

Thank you.                    07/11/2013, 10:36.

MD, MD, Please. I have an interview next week Wednesday.   Pls help with the letter. Thank you.

21/11/2013, 09:28

 

Mrng Lizzy u can collect your letter today I will be

in my office at 2pm so call in as I need you to sign

for it tnks.                            26/11/2013, 09:23.

 

Thank you MD, will be there at about 2.30pm. God bless you.                                        26/11/2013, 10:22.

Ok no problem.    26/11/2013, 10:21.

Good morning MD. I want to thank you once again for accepting my voluntary retirement from the services of SGS Inspection Services Nigeria Limited. As emphasized in your letter of acceptance, all my contractual entitlements will be paid to me. Could you please let me know when my cheque will be ready for collection? Thank you.  Lizzy.            02/12/2013, 10:56.

 

These exchanges are sufficient pointer to the fact that the Claimant had long ceased to be in the employment of the Defendant before the alleged letter of voluntary retirement. I so find and so hold. I further find and hold that the purposes of Exh. C4 & Exh. C5 was not to enable the Claimant make any financial claims from the Defendant but rather that they were meant to serve the purposes as stated by the Claimant in Exh. C14.

 

Finally on this point, assuming (for the sake so doing) that the Claimant indeed voluntarily retired from the Defendant, did the Claimant qualify for voluntary retirement under the applicable policy of the Defendant to be entitled to retirement benefit sought? In support of her position, the Claimant tendered Exh. C2 – Human Resources Procedures of the Defendant. Under cross examination, the Claimant testified that she actually prepared that exhibit for the approval of the Managing Director of the Defendant. Thus she is very conversant with the contents. Claimant started work with the Defendant on 1/11/10. Her employment was terminated effective on 19/11/12. It meant that she worked for the Defendant for a period of 2 years and 18 days. The Claimant did not lead evidence respecting her age at the date of termination or disengagement. Now, was the Claimant qualified for voluntary retirement under Exh. C2? Clause 5.3.2 of that exhibit provides under the heading Voluntary Retirement thus –

 

”Employees may exercise the option to retire with the Company on reaching the     age of 45, i.e up to 15 years before the maximum retiring age, provided 10 years qualifying service has been completed. Alternatively, the Company may exercise its right to require an employee to retire at the age of 45 for reasons of ill-health or      continued drop in efficiency. However, employees who have served the Company   for not less than 15 years can retire regardless of age”.

 

Clause 5.3.3 states, on Notice of Retirement, that –

 

”The Company will give notice to retire to employees who are due to retire from    the Company’s service. Employees, other than those retired on health grounds or          due to total or partial disability, will be obliged to work the period of notice. Whether notice is given or not, an employee will retire at 60. Failure by the   Company to give notice does not confer benefits on the employee.

 

An employee who wishes to retire before the normal retirement age of 60 must           give the Company at least six months’ notice of his intention to retire, and will be           expected to serve the period of notice”.

 

It appears obvious that the Claimant is certainly not qualified for voluntary retirement from the Defendant. There is no evidence that she was up to 60 years of age. There is no evidence that she put in up to 10 years in the service of the Defendant and neither is there evidence of having served for not less than 15 years so as to be entitled to early retirement. Having resolved the first 2 issues against the Claimant and in favor of the Defendant, I further hold that the Claimant is not entitled to any of the reliefs sought. Claimant was properly disengaged and dully paid all her terminal entitlements which she did not deny. I hold that she is not entitled to be paid any sum of money for any reason whatsoever.

 

The final issue for determination is whether the Defendant is entitled to all or some of the counter-claims sought. Taking cognizance of my findings and holdings thus far in this case, I here make declaration as sought that the termination by the Counter-Claimant of the employment of the Defendant by Counter-Claim vide letter of disengagement from service dated 19/11/12 is lawful, binding, subsisting and done in accordance with the employment agreement dated 9/10/10. I also declare that the Defendant to the Counter-claim having received her terminal benefits in full and her pension is not entitled to any remuneration whatsoever from the Counter-Claimant either as retirement benefits or for any other purpose whatsoever, the said termination having become mutual upon her acceptance of her termination benefits. I further declare that the subsequent purported retirement of the Claimant from the Defendant vide a backdated letter dated 19th November 2012 is baseless unfounded and of no effect whatsoever.

 

Now, the Counter-Claimant also sought an order of perpetual injunction restraining the Defendant by Counter-Claim from parading, representing and or holding herself out as a retiree of the Counter-Claimant and from further harassing the Counter-Claimant and or demanding from it any purported retirement benefits or any other sums whatsoever. According to Owoade JCA in C.A.C v. Davis (2008)1 NWLR (Pt. 1067) 60 at 1-82, an order of injunction can be rightly made where the claim discloses a recognizable legal right. A claim for an injunction is won and lost on the basis of the existence of legal Rights. Where an applicant for an injunction has no legal right recognisable by the courts, there is no power to grant him an injunction. The purpose of an order of perpetual injunction is to permanently restrain a Defendant from the doing of an act or to permanently restrain a Defendant from infringing on an already established right. The Court has found and held in this case that the Claimant did not voluntarily retire from the services of the Defendant. In order words the Court has found and held that the Claimant is not a retiree of the Defendant. That being the case, the Claimant is not entitled to parade herself as a retiree of the Defendant. I have found and held that the Claimant has been paid all her terminal benefits upon termination of her appointment with the Defendant and that the Defendant is not liable in any sum whatsoever to the Claimant. I find merit in this prayer sought. I therefore make an order of perpetual injunction restraining the Defendant to the Counter-Claim from parading, representing and or holding herself out as a retiree of the Counter-Claimant and from further harassing the Counter-Claimant and or demanding from it any purported retirement benefits or any other sums whatsoever.

 

The Defendant/Counter-Claimant sought payment of the sum of =N=3,000,000.00 (Three Million Naira Only) as cost of defending this suit. The law is trite cost is at the discretion of the Court. It is meant to compensate the wining party for reasonable expenses incurred in the prosecution of a case he/she has won. Cost is not meant to be punitive. This case was filed in November, 2014. The Defendant/Counter-claimant was represented in this Court about 14 times by Counsel. I have evidence on record of receipts for payments to this Court. Considering the circumstances of this case, I here award to the Defendant/Counter-claimant =N=300,000.00 as cost of this action.

 

The Defendant also counter claimed for the sum of =N=2,000,000.00 (Two Million Naira Only) general damages against the Defendant by Counter-Claim for the unwarranted embarrassments and harassments of the Counter-Claimant. Damages have been defined as pecuniary compensation obtainable by success in an action which is either a tort or a breach of contract, the compensation in the form of a lump sum at the time unconditionally and generally. See McGregor on Damages, 1979, 16th Edition. See also Ayoola, J.S.C in Agbanelo v. Union Bank Plc (2000)7 NWLR (Pt. 666) 534. Damages may be general or special. The law regarding to general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be specifically pleaded and strictly proved. In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued. See the cases of UBN Plc. v. Ajabule (2011) 18 NWLR (Pt. 1278) 152 S.C & Husseni v. Mohammed (2015) 3 NWLR (Pt. 1445) 100. The Claimant brought the Defendant/Counter-claimant to this Court to defend this suit. There is no doubt the fact that some wrong has been committed against the Defendant. Aside from this, I have the evidence of the Claimant in chief on record to the effect that she filed a complaint against the Defendant at the office of the Federal Ministry of Labour, Lagos and that the Defendant was invited to a meeting at the instance of the Claimant. See paragraphs 22-25 of the Claimant’s statement on oath dated 6/11/14. See also Exh. C6 & Exh. C7. The law is trite that where there is a wrong there must be a remedy. Award of damages is imperative to compensate the Defendant in this case. I thus award to the Defendant/Counter-claimant the sum of =N=500,000.00 as general damages for the unwarranted embarrassment and harassment.

 

Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment,

 

  1. The case of the Claimant is dismissed in its entirety for lacking in merit.
  2. The counter claims of the Defendant/Counterclaimant succeeds.
  3. I declare that the termination by the Counter-Claimant of the employment of the Defendant by Counter-Claim vide letter of disengagement from service dated           19/11/12 is lawful, binding, subsisting and done in accordance with the           employment agreement dated 9/10/10.
  4. I also declare that the Defendant to the Counter-claim having received her terminal benefits in full and her pension is not entitled to any remuneration whatsoever           from the Counter-Claimant either as retirement benefits or for any other purpose           whatsoever, the said termination having become mutual upon her acceptance of      her termination benefits.
  5. I further declare that the subsequent purported retirement of the Claimant from the Defendant vide a backdated letter dated 19th November 2012 is baseless           unfounded and of no effect whatsoever.
  6. I here issue an order of perpetual injunction restraining the Defendant to the Counter-Claim from parading, representing and or holding herself out as a retiree of the Counter-Claimant and from further harassing the Counter-Claimant and or           demanding from it any purported retirement benefits or any other sums           whatsoever.
  7. Claimant/Defendant to the Counter claim is ordered to pay to the Defendant/Counter       claimant the sum of =N=300,000.00 as cost of this action.
  8. Claimant/Defendant to the counter claim is ordered to pay to the Defendant/Counter claimant the sum of =N=500,000.00 as general damages for      the unwarranted embarrassment and harassment to the Defendant/Counter claimant.
  9. All the terms of this Judgment are to be complied with within 30 days from today.

Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge

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