IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE P. A. BASSI
DATE: MONDAY 19th APRIL 2018
SUIT NO: NICN/LA/365/2017
BETWEEN:
FOLASHADE OLAOLUWA
CLAIMANT
AND
- LEARN AFRICA PLC
- 2.MR. HASSAN BALA
(MANAGING DIRECTOR, LEARN AFRICA PLC)
DEFENDANT
REPRESENTATION
- N. Akabike…….For the Claimant
- Balogun …………For the 1stand 2ndDefendant
JUDGMENT
1.0 The claimant commenced this suit by way of a complaint filed on 2nd August 2017 together with the accompanying originating processes. The claims as endorsed on the general form of complaint and statement of facts dated 2nd August 2017 are for the following reliefs against the Defendant:
- The total sum of N9,169,000.00 (Nine Million One Hundred and Sixty-Nine Thousand Naira) comprising:
(i) N1,375,000.00 (One Million Three Hundred and Seventy-Five Thousand Naira) being the sum of her unpaid difference of salary;
(ii) N406,000.00 (Four Hundred and Six Thousand Naira) being the sum for housing allowance owed her;
(iii) N60,000.00 (Sixty Thousand Naira) being outstanding sum for medical allowance owed her;
(iv) N150,000.00 (One Hundred and Fifty Thousand Naira) which is sum for floating car allowance for 25 months;
(v) N203,000.00 (Two Hundred and Three Thousand Naira) which is a total outstanding sum for leave allowance owed to the complainant;
(vi) N6,975,000.00 (Six Million Nine Hundred and Seventy-Five
Thousand Naira) being gratuity owed the Claimant for 9 years as
stipulated in the letter dated the 19th March 2012.
- N500,000.00 (Five Hundred Thousand Naira) being the cost
of this action.
1.1 Upon being served with the originating processes of the claimant, the defendant filed a statement of defense dated 20th September 2017 along with a counter claim. In consequence of the defendant’s statement of defense and counterclaim, the claimant filed a reply to the statement of defense and its defense to the counterclaim dated 5th October 2017 and also filed on the same date.
1.2 At the trial, the claimant testified on her own behalf as CW and adopted her two Witness Statements on Oath. She tendered Exhibits C1 TO C18 into evidence as exhibits without objection and also without prejudice to the right of the defendant to raise any objections as to the admissibility of the said exhibits and/or their evidential value in its final address.
1.3 The 2nd defendant testified on his behalf and on behalf of the 1st defendant. He tendered 3 exhibits into evidence. Mr Odoe for the claimant raised an objection to the admissibility of exhibit D4 and the court ordered for the objection to be raised at Final Address stage along with any issues as to the weight to be attached to the said exhibit D4.
1.4 At the close of evidence, the Court ordered the filing of final written addresses. The final written address of the Defendant was filed on 15th of November 2017, while the claimant’s was deemed properly filed and served on the 29th of January 2018. The defendant’s reply on points of law was dated and filed on 29th of December 2017. On the 29th of January 2018, parties adopted their respective Final Addresses and the matter was adjourned for judgment.
THE CASE OF THE CLAIMANT
1.5 It is the case of the claimant that she was an employee of the 1st defendant company, a
Learn Africa, Plc, from June 2008 to April 2017 when she resigned her appointment as a Senior Sales Manager. She relied on her Offer of Appointment dated 3rd June 2008 which was admitted as Exhibit C1 and her Letter of Confirmation of Appointment dated 10th of November 2010 which was admitted and marked as Exhibit C2.
1.6 On the 25th of May 2012, the claimant averred that she was rewarded for her diligence after an appraisal from the previous year. The appraisal letter dated 25th May 2012 was admitted into evidence and marked as Exhibit C5.
1.7 On the 19th of March 2012, it was the claimant’s story that the Defendants vide a letter communicated to her, her retirement benefit and gratuity having qualified for it by reason of the
condition stated in the letter. The said letter dated 19th March 2012 was
admitted into evidence and marked as Exhibit C4
1.8 Subsequently, on the 11th of February 2015 it was the Claimant’s evidence that she was appointed to the position of Acting Field Sales Manager (Ikorodu – Lagos IV) and confirmed a full Sales
Manager vide the Defendants Memorandum dated 6th of January 2016 before she was deployed to Ikorodu, Lagos State. The said Appointment letter dated 11th February 2015 and Defendants’ Internal Memorandum dated 6th January 2016 were admitted into evidence and marked as Exhibits C6 and C7 respectively.
1.9 Claimant further testified that she knows for a fact (HOW?) that a monthly salary of N120,000. 00 (One Hundred and Twenty Thousand Naira) a month was payable to the position of a Field
Sales Manager before and at the time of my appointment, but the Defendants failed to pay her with until my resignation in 2017 and that the defendant owes her the difference between her present salary and the salary of a field sales manager for a period of 25 (Twenty-Five) months. ( what is the proof of the salary of the field sales manager? What shows she was entitled to the N120k? Exhibit C5 showed a review, if there was a further review, she can only prove it by adducing evidence of that review. ENTITLEMENT AND QUANTUM. Nothing to show.
1.10 Further to the above, all my entitlements with respect to my Housing,
Medical, Leave and Floating Car Allowances were being paid in halves by the
Defendants for several months and years. (based on C5 or the Field manager salary? Either way, no evidence. What evidence showed the payment made and the entitlement? How does one establish what the difference is??(What is the proof of what is payable? A letter like exhibit C5? Anyone can put up any figure but what is the evidence? What is the basis? What was paid and what is due? Mere assertions would not suffice. The only thing before the court is C5. And even to prove non-payment of figures in C5, bank statements would be needed.)
1.11 That despite the failure of the Defendants to pay her allowances in full, she continued carrying out her duties to the satisfaction of the Defendants. That she received recommendations and appraisals from the Defendants which were favourable to her.
1.12 That On 25th day of January 2017 the 1st Defendant vide a letter redeployed her
from Ikorodu District back to Lagos District Ikeja office of the 1st Defendant.
vide a letter of redeployment dated 25th January 2017 which was admitted and marked Exhibit C8. Claimant further avers that she in compliance with Exhibit C8, she resumed at the 1st
Defendant’s Lagos District Ikeja office on the 1st day of February still as Senior
Sales Manager.
1.13 That Surprisingly to the claimant, on the 12th of April 2017, about 3 (Three) months after her redeployment back to Ikeja office of the defendant, she was issued a query for gross insubordination wherein she was accused of refusing to hand over all the
schools in her previous District in Ikorodu to one Chuks Konyegwachie and
was given 24 hours to respond to the query. The query dated 12th April
2017 was admitted as Exhibit C10 Claimant duly replied to the said query with Ref no: FWO/FSM/IKJ/2017 on the 13th of April 2017 within 24 (Twenty
Four) hours The Reply to the Query was admitted as Exhibit C11.
1.14 Following the claimant’s reaction to Exhibit C10, Claimant was suspended by the defendant for two weeks without pay with effect from the 18th of April 2017. The Suspension letter dated 13th of April 2017 was admitted into evidence and marked as exhibit C12. (SUSPENDED ON THE SAME DAY AND SACKED WITH EFFECT FROM THE SAME DAY??? DEFENDANT MUST BE LYING. REFERENCE EXHIBIT D2)
1.15 Upon claimant’s suspension, she avers that when she was about to leave the 1st Defendant’s premises, she was forcefully held back by the 1st Defendant’s private security officials acting under the directive of the 2nd Defendant and compelled to
sign an undertaking/memorandum that she will hand over all company assets
in my possession particularly the official vehicle attached to her. The undertaking dated 13/4/2017 was admitted into evidence and marked as exhibit C13
1.16 It was the claimant’s story that she promptly resigned from appointment with the 1st Defendant by sending her letter of resignation dated 15th April 2017 via electronic mail on the 18th of April 2017 and in addition sent same by DHL courier on the 19th April 2017. The email print out of 18th April 2017 was admitted as Exhibit C13and the DHL Courier receipt dated 19th April 2017 was admitted and marked as Exhibit C15
1.17 That further to her resignation, claimant avers that the details of my outstanding and unpaid entitlements and gratuity came up to the sum of N9,169,000.00 (Nine Million One Hundred and Sixty-Nine Thousand Naira). Claimant also admitted holding on to the 1st Defendant’s company car assigned to her as a lien pending payment of my
outstanding entitlements and gratuity. She further professed that by virtue the 1st Defendant’s Vehicle policy, she was entitled to purchase the car earlier assigned to her and that the Defendants deprived her of the opportunity and sold the car instead to a staff of lower cadre contrary to the Vehicle Policy of the 1st Defendant The copy of the
1st Defendant’s Vehicle policy was admitted as exhibit C16.
1.18 Under Cross Examination, claimant admitted that her employment with the 1st defendant was governed by Exhibit C1 and Exhibit D4 although she wasn’t given a copy of Exhibit D4 while she was in the employment of the 1st defendant. She further admitted to being on probation for 1 year from the date of her employment and was still on probation as at 31st December 2008. Claimant further agreed that by virtue of paragraph (i) of Exhibit C1, gratuity had been abolished with effect from 31st December 2004. She however still contended that she was still entitled to gratuity because the new management reviewed it. She added that she employment was confirmed on the 10/11/2010 as per exhibit C2. She also agreed that by virtue of exhibit C4, only employees of the 1st defendant as at 31st December 2008 would be entitled to gratuity.
1.19 Claimant also added that she had possession of the 1st defendant’s vehicle and had given an undertaking to return same but that the undertaking was given under duress. She admitted the vehicle was never sold to her by the 1st defendant.
1.20 There was no re-examination and the claimant closed her case.
CASE OF THE DEFENDANT
1.21 The 2nd defendant testified on behalf of both defendants in this suit. He testified that he is an employee of the 1st defendant and that the claimant was his co-employee. He testified that the letter relied upon by the claimant emanated from her fabrication and was simulated by the claimant from a circular that could not have been and was in fact never intended for or addressed to her. He categorically stated that the signature on the letter of 19th March 2012 was not of his predecessor in office Mr Fred Ijewere. That handwritten address and salutation in that document were not made by the said Mr Ijewere. That the claimant possibly chanced upon a document meant for staff who were entitled to gratuity in their contracts of engagement before the policy change and she decided to simulate the document dated 19th March 2012 from that circular. Mr Bala was insistent that the claimant’s contract did not provide for Gratuity and she was not entitled to it.
1.22 Mr Bala further testified that the claimant On or about the 25th January 2017 was informed by the HR Department of the 1st Defendant that she had been redeployed from Ikorodu to Lagos District, Ikeja office and she was to resume at her new location on the 1st of February 2017 after a proper handing over to the incoming Manager in her old station. However, the claimant failed to comply with the directives of the HR Department which necessitated the issuance of a query to her. He testified that the response to the query was deemed unsatisfactory and the claimant was suspended for 2 weeks on the 13th of April 2017 with effect from 18th April 2017.
1.23 He further averred that on the same day the claimant was suspended, she sent in an undertaking that she would return the company vehicle attached to her by the 17th of April. That she however failed to do so and had been holding on to the vehicle ever since. That the vehicle was allocated to the defendant as a work tool and the claimant had no right to the vehicle. He relied upon the 1st defendant’s Vehicle Policy Clause 3.2.0. He testified that the vehicle was a year old when the claimant took it away and the 1st defendant is claiming for its value back from the claimant. He also denied that there was a previous car qualified to be sold to the claimant but instead sold to someone junior to her in the employment of the 1st Defendant. That the said car retrieved from the claimant when the new vehicle was allocated to her was assigned to a junior sales representative and that was within the rights of the 1st defendant as the owner of the vehicle.
1.24 That as a consequence of the claimant’s refusal to return the said vehicle, the claimant was dismissed after the 17th of April 2017 she had set down to return the vehicle. That the dismissal was for gross insubordination. That the dismissal was conveyed to the claimant by a letter dated the 19th of April 2017. That the claimant did not at any time notify the 1st defendant of her resignation of her appointment prior to her dismissal. That her dismissal was in line with the 1st defendant’s Staff Handbook Paragraph 5.2(vi)
1.25 Exhibits D1-D4 were admitted into evidence through this witness. The particulars of the 1st defendant’s vehicle in custody of the claimant was admitted as D1. The letter of Dismissal of the claimant was admitted as D2. The Defendant’s counsel letter was admitted as D3 while the handbook of the 1st Defendant was admitted as exhibit D4 subject to the objection to be raised in the claimant’s final address.
1.26 Under cross examination, the witness admitted to not being privy to management decisions taken in 2012 but that he was a manager and before there were any additions made to the sales team, the managers were notified. And that how he knew when the claimant was employed. He further admitted to not knowing the benefits accruable to managers as it was the HR Head that would know.
1.27 There was no re-examination and the witness was discharged.
SUBMISSIONS OF THE DEFENDANT
1.28 The counsel for the 2 Defendants submitted in his Final Address that the issues that arise for the court’s determination are as follows:
(i) Whether the Claimant is entitled to the reliefs being sought by the
Claimant in this suit;
(ii) Whether the 1st Defendant is entitled the reliefs being claimed as
per the Counterclaim.
1.29 In his argument on issue one, counsel submitted that a contract is an agreement between two or more parties, which creates reciprocal legal obligations to do a particular thing and that for a contract to be formed, there must be a mutuality of purpose and intention. Two or more minds must meet at the same point, event or incident. Counsel referred to the case of ORIENT BANK (NIG) PLC vs. BILANTE INT. L TD (1997) 8 NWLR 37 at 76. He argued that A contract of employment is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain. On the one end stands an “employee” who is “employed” by an “employer”.
1.30 He further argued that the right to terminate a contract of employment by parties is either provided for in the contract or read into the contract if omitted. On this point he referred to the case of LADIPO vs. CHEVRON NIGERIA LIMITED (2005) ALL FWLR (Pt. 260) 133 at 142. It was also counsel’s submissions that an employee can be dismissed or have his or her employment terminated but whether it is by summary dismissal or by termination of Employment, what is common is that the employment has been determined, although different consequences attend to each of these methods. Furthermore that where an employee is guilty of persistent act of insubordination he or she leaves the employer with no other option than to severe the employment relationship between the parties to the contract of employment by way of termination or outright dismissal, depending on the circumstances of each case. He strongly argued that an employee who is dismissed may not be entitled to terminal benefits depending on his or her conditions of service while an employee whose employment is terminated may be entitled to those benefits.
1.31 It was Defendant counsel’s submission that a court will give effect to the conditions of service of employees in calculating their entitlements and employees have a duty to plead and particularize their monetary claims as they are in the category of special damages. He relied upon OKPETA V. NIGERDOCK NIGERIA PLC. (Unreported judgment in suit No: NIC/LA/27/2009 delivered on February 9, 2012. Flowing from the preceding, It was his submission that the Claimant’ s claims as presently constituted must fail as same cannot be sustained by this Honourable Court. That the claims are in the nature of special damages and it was his submission that the Claimant did not put enough materials before this Honourable Court to assist the Honourable court in determining whether or not the Claimant is entitled to the claims being made. Special damages are items of loss which the Claimant has to particularize in his or her pleadings to enable him or her to give evidence thereto and to recover thereon. He referred to the case of ATTORNEY GENERAL, OYO STATE V. FAIRLAKES HOTELS (No. 2) (1989) 5 NWLR (Pt. 121) 255 on that point. Regarding his contention that special damages must be strictly proved counsel relied on AGUNWA V. ONNKWUE (1962) 1 All NLR 537; (1962) 2 SCNLR 275.
1.32 It was the defendant’s submission that the claim of N1,375,000.00 (One Million Three Hundred and Seventy-Five Thousand Naira) which the claimant alleged is the sum of her unpaid difference of salary cannot stand because the Claimant failed to furnish the court how this claim arose with dates and other details that may assist the court and the Defendants. The defendant also made the same argument as regards the claim for N406,000.00 (Four Hundred and Six Thousand Naira) which claimant alleged is the sum for housing allowance owed her. He insisted that claim was not particularized with necessary details as to enable the Defendants to prepare for their defence with regards to this head of claim. Same applies to the claim for N203,000.00 (Two Hundred and Three Thousand Naira) which was claimed as the total outstanding sum for leave allowance allegedly owed to the complainant also fail as no particulars of the claim were stated in the Statement of Claim by the Claimant.
1.33 Counsel argued that by the time the Claimant was dismissed she was not being owed any salaries or allowances for the period she had worked with the 1st Defendant and neither was she entitled to any terminal benefits upon her dismissal from her employment. That the only benefits the Claimant is however entitled to is the amount which has accrued to her in her Pension Account and that the Defendants have not in any way prevented the Claimant from claiming her entitlement as per her Retirement savings Account.
1.34 Counsel submitted that the contract of employment between the Claimant and the 1st Defendant was governed by a Letter of Offer of Appointment dated 3rd June, 2008 (Exhibit Cl) as well as the 1st Defendant’s STAFF HANDBOOK (Exhibit D4) and that the Claimant’s monetary entitlements incidental to her employment were clearly spelt out in Exhibit Cl and as revised by Exhibit C6.In addition to her basic salary, counsel submitted that the Claimant was also entitled to Housing Allowance, Meal Subsidy and Utility Allowance which were payable monthly in line with Exhibits C1and C6 and the 1st Defendant’s responsibility in respect of the medical expenses incurred by the Claimant was limited to the sum of N50,000 (See Exhibit C6). Which was not automatic, but contingent on such expenses being “reasonable medical expenses” before being entitled to reimbursement to the limit of the Medical Allowance.
1.35 However, defendant submitted that the Claimant was not entitled to any Transport Allowance because she had been allocated an official car for which the 1st Defendant was responsible for its running cost. To buttress this point, counsel opined that that was the reason that Transport Allowance was deliberately omitted in Exhibit C6 which points clearly to the fact that the Claimant was not entitled to Transport Allowance since she was given an Official Vehicle.
1.36 On the issue of Gratuity, defendant argued that the Claimant was also not entitled to any gratuity as same was expressly excluded by Exhibit Cl and Exhibit C4. Paragraph (i) of Exhibit Cl provides thus: “Please note that gratuity scheme has been abolished with effect from 31st December, 2004, as it has been merged with the Pension scheme in accordance with the new Pension Act of 2004″ That Exhibit C4 (a letter purportedly issued to the Claimant by the 1st Defendant’s former Managing Director) was vehemently denied by the Defendants). And as parties are bound by the terms of the contract or agreement which they freely and voluntarily entered into, no internal memo or other document can unilaterally vary the salary or entitlements of an employee.
1.37 Paragraph 1 of Exhibit C4 provides thus: “We write to inform that the board has since directed that henceforth, staff in the employment of the company as at 31st December 2008 will be entitled to gratuity for the number of years spent up to 2008.” In counsel’s opinion, Exhibit C4 did not confer any benefit on the Claimant with regards to payment of gratuity. As the Claimant was employed on the 3rd June, 2008 and as at 31st December, 2008, the cut-off date, her employment has not been confirmed. The Claimant’s employment was only confirmed with effect from 1st November, 2010 as evidenced by Exhibit C2. Conferring entitlement is a deferent issue) . in similar vein, Defendant argued that the Claimant did not place any material before the Honourable Court to support her averment in paragraphs 9 and 10 of the Statement of Claim that her allowances were being paid by halves by the Defendants and the Claimant also did not give particulars of these allegations for the Honourable Court determine the matter one way or the other. He relied on MACRON SERVICES (NIG.) LTD VS. AFRO CONTINENTAL (1995) 2 NWLR (PT. 376) 20 on the point that allegations however strong in their wording cannot amount to averments unless they are sufficiently particularized.
1.38 In final submissions, defendant argued that a party who avers the truth or existence of a fact must prove it and in civil cases, the onus of first proving the existence or otherwise of a fact lies on the party who will fail if no evidence were given on either side. He referred to Section 136 of the Evidence Act Cap 112 of the Laws of Federation of Nigeria, 1990 and the cases of ARCHIBONG V, ITA (2004) 2 NWLR (Part 858) 590,619 and EWO V. ANI (2004) 3 NWLR (Pt. 861) 610, 636. Counsel submitted that the Claimant did not discharge the onus of proof placed on her by law and consequently the proper thing to do by this Honourable Court is to dismiss the Claimant’s case in its entirety.
1.39 Counsel also relied on the cases of Orient Bank (Nig.) Plc v. Bilante lntl, Ltd. (1997) 8 NWLR 37, in reference to Uwa Printers Nig. Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWlR (Pt.92) 110 on the principle that the burden of proving amount of the loss sustained for claim of a special damage rests on the plaintiff and it is also the responsibility of the plaintiff at the trial to give sufficient particulars of his claim for special damages for purpose of enabling the court to calculate. Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWlR (pt.521) 388 and Shell Pet. Dev. Co. v. Isaiah (1997) 6 NWLR (Pt.508) 236 also relied upon by counsel as well as U. B. N. Plc. v Sparkling Breweries Ltd. (1997) 5 NWLR (Pt.50S) 344 at 368 as also relied upon where Katsina-Alu JCA (as he then was) had thus to say on an ipse dixit of the plaintiff:- “Evidence of these matters necessary to prove special damages herein pleaded was visibly non-existent. The fact that the evidence was unchallenged and un-contradicted did not improve the quality of the
evidence……No doubt there may be situations where the evidence of special damages will rest on the ipse dixit of the plaintiff. But each case must be treated on its peculiar facts and circumstances: see Odinaka v. Moghalu” (1992) 4 NWLR (Pt.233) 1.
1.41 In conclusion, defendant counsel submitted that the Claimant did not claim that she is entitled to any terminal benefits other than as claimed by her which was not unconnected with the fact that she was dismissed from her employment and that the Claimant’s erroneous claim that she sent in a letter of resignation of her employment via email and later by courier does not hold water. Counsel relied upon paragraph 3.14 of the 1st Defendant’s Staff Handbook regarding an employee wishing to resign is to do so by submitting a written letter of resignation “through his/her Departmental Head, that A decision is then taken on whether to accept or reject the resignation before it is forwarded to the HRM Department” and that at no time did any resignation of the Claimant notified or take effect within the stated requirement. Consequently, he submitted that the Claimant has no basis to institute this suit considering the circumstances of her dismissal.
Therefore, the sum of N500,000.00 (Five Hundred Thousand Naira) being claimed by the Claimant as her Solicitors professional fee was responsibility recklessly incurred by the Claimant who knew fully well that her action is baseless and ill-motivated and so the 1st Defendant/Counter-claimant cannot be held liable to pay for the legal expenses incurred by the Claimant in instituting this case and urged the Honourable Court to so hold. Counsel then prayed the court to resolve issue No. 1 in favour of the Defendants by holding that the Claimant is not entitled to the reliefs being claimed by her and to dismiss the Claimant’s claim in its entirety.
1.42 On issue 2 which is the counterclaim, the 1st Defendant/Counterclaimant submits that it is the owner of a brownish grey coloured brand-new Nissan Almera MT car bearing Chassis No. MDHBBAN1720507388 and Engine No. HR157939488 which was purchased for a gross sum of N3,320,000.00 (Three Million Three Hundred and Twenty Thousand Naira) and that the said vehicle was allocated to the Claimant/Defendant to the Counterclaim to use for the performance of her official duties (that is, as a work tool). That upon the cessation of the Claimant/Defendant to Counterclaim employment with the 1st Defendant/Counterclaimant with effect from the 18th April, 2017, she failed and or refused to return the said vehicle to the 1st Defendant/Counterclaimant despite persistent demands from the Counterclaimant and her Solicitors. That the vehicle is about a year old as at the 17th April 2017 when the Claimant/Defendant to the Counterclaim ought to have returned the said vehicle. Counsel relied upon Paragraph 3.1.6(i) the 1st Defendant/ Counterclaimant’s vehicle policy provides as follows: “Staff allocated status vehicles are eligible to purchase such vehicles
at a scraped value. This will be determined by management at the end of the sixth year, for office Managers, and at the end of four years for Sales Representatives.
The periods will commerce from the date of purchase of vehicles”.
1.43 On the strength of the clause above, counsel submits that the Vehicle allocated to the Claimant/Defendant to Counterclaim is a status vehicle since it was attached to the Claimant/Defendant to Counterclaim’s Job and she would have been eligible to purchase the said vehicle the subject matter of the Counterclaim as scrap had it been she was in the employment of the1st Defendant/Counterclaimant for at least Six years from the date the said vehicle was allocated to her. However, he argued that the vehicle is about five years less than the 1st Defendants policy-stipulated depreciation lifespan as at the time the Claimant/Counterclaim Defendant took away with and converted it to her personal use upon her suspension and eventual dismissal in 2017. That in monetary terms, based on its gross purchase price of N3,320,000.00, the un-depreciated value of the five years left of the said
“Company’s property (car)” at the time the Claimant fled with it and converted it to her private use in 2017 was N2,766,667.00 (that is, N3,320,000.00/6yrs X 5yrs).
1.44 Since in counsel’s opinion the Claimant/Defendant to Counterclaim has never denied being in possession of the said vehicle and she has also admitted that she is holding the said vehicle as a “lien pending payment of her outstanding entitlements and gratuity”. the Claimant’s claim that a vehicle she used for four years was not sold to her by the 1st Defendant/Counterclaimant was an afterthought and has nothing to do with the vehicle the subject matter of this counterclaim. Counsel also submits that the 1st Defendant/Counterclaimant is not under any contractual compulsion to sell any of its assets to any staff member and the Claimant/Defendant to the Counterclaim will not be an exception. That vehicles so allocated as “tool of trade” are governed by the stipulations in clause 3.2.0 of the 1st Defendant’s Vehicle Policy (Exhibit 16 ) and the vehicle the subject matter of this Counterclaim did not form part of her compensation as an employee of the 1st Defendant therefore the Claimant/Defendant to Counter- claim had no right whatsoever to hold on to or detain such vehicle upon the cessation of her employment with the first Defendant/Counterclaimant.
1.45 In counsel’s opinion, for the 1st Defendant/Counterclaimant to succeed in its Counterclaim all it needs to do is to prove that it is the owner of the vehicle the subject matter of the Counterclaim and that it has immediate right to possession of the said vehicle. He relied on the cases of UNIPETROL (NIG.) Plc. V. BURAIMOH (2004) 15 NWLR (Pt. 897) page 641. and SALISU V. YASSIN (2004) 4 NWLR (PT. 756). That it is beyond any doubt that the 1st Defendant/Counterclaimant is the owner of the vehicle in question especially as the Claimant/Defendant to Counterclaim is not contesting ownership of the vehicle with the 1st Defendant/Counterclaimant and in the circumstances, the 1st Defendant/Counterclaimant is therefore entitled to the immediate possession of the said vehicle as the continued use by the defendant to the counterclaim leads to further depreciation of the vehicle’s value. That the Claimant/Counterclaim Defendant’s is liable to refund the cost of the said vehicle to the 1st defendant as the vehicle has already depreciated in value. In the final analysis, counsel submitted that the justice of the matter dictates that the Claimant/Defendant to Counterclaim be made to refund the cost of the Counterclaimant’s Vehicle with interest as per the Counter- claim. And where a trial judge refuses to award the court rate interest, he is expected to advance reason for such refusal particularly where it has been asked for by a party. See Nigerian Railway Corporation v. J.C. Emealwra & Sons {1994} 2 NWLR {pt. 325} 206.
1.46 The Counterclaimant also submitted that he is entitled to the cost of this action and urged the Court to so hold and called upon the Court to consider all the circumstances of the case as the ultimate aim of award of costs is to restitute the successful party to the extent of the expenses incurred in the litigation process and the relevant considerations in the award of cost by the Courts have been enunciated in a plethora of decided cases by the Supreme Court and this Court. he referred the court to Onabanjo Vs. Ewetuga (1993) 4 NWLR Pt. 288 P.445 and Uzoma Vs. Okorie (2000) 15 NWLR Pt.692 P.882. In Iliyasu Vs. Ahmadu (2011) 13 NWR Pt.1264 P.236 @ 261, where the Court held that cost to be awarded by Court is always left within the confines of the discretion of the trial judge, but this discretion has to be exercised judicially and judiciously. Also relied on was Adelakun Vs. Oruku (2006) 11 NWLR Pt. 992 p. 625 @ 650, this Court laid down certain factors to be taken into consideration in awarding costs. They are:
(a) the summons fees paid;
(b) the duration of the case;
(c) the number of witnesses called by the successful party;
( d) the nature of the case of the parties, the plaintiff’s case or
the defence of the defendant, whether frivolous or
vexations;
( e) cost of legal representation.
He urged the Honourable court to resolve issue No. 2 in
favour of the Defendants and hold that the 1st Defendant is entitled to its claims as per the Counterclaim.
CLAIMANT’S SUBMISSIONS
1.47 On behalf of the claimant, his counsel submitted that 3 Issues arise for determination by this court. They are;
- i) Whether the resignation of the Claimant from the Defendants’ employment is valid and proper in law.
- ii) Whether from the fact and evidence before this Court the Claimant is entitled to the reliefs sought before this Court.
iii) Whether from the evidence lead before this Honourable Court the Defendants are entitled to their reliefs claimed in the counter claim.
1.48 In arguing issue one which is whether the resignation of the Claimant from the defendants’ employment is valid and proper in law, it was the submission of the Claimant that the letter of resignation to Defendant dated 15th day of April 2017 vide Exhibit C15 and C16 respectively are proper and valid in law. That though the Claimants averments was not specifically denied but admitted in paragraph 4.10 of the Statement of Defence, the Defendant previously denied that the Claimant resignation was not brought properly as stipulated in the Staff Handbook of the employee. Counsel referred to paragraph 4.10 of the Statement of Defence and that also during the examination in chief of the 2nd Defendant, he made reference to a Staff Hand Book. That this document (Exhibit D4) was not pleaded and as such is not admissible and Such evidence should expunge from the record. He relied upon the case of OWOEYE V. OYINOLA (2012) 15 NWLR (PT 1322) pg 117 paragraphs A- B that where such evidence on record are not pleaded they will expunged from record. Counsel submitted that the Defendant is not under any obligation to accept the Claimant’s resignation the same way the Defendant is not bound to give reason for the Claimant termination. He relied upon ADEFAN VS. ABEGUNDE (2004) 29 WRW 126 CA where the court of Appeal held that once employee resigns his appointment it takes immediate effect as it is not contingent on acceptance by the employer. Also cited was the case of BENSON V. ONITIRI (1960) NSCC S 2 where it was held that there was no need for a reply to make the resignation effective.
“There is a right to resign unless there is a reason to show
that the holder of the office cannot … A power of resignation
to those competent to receive, it is by the common law
incident to every corporate office”.
1.49 Counsel further submits that the assumption of the Defendant that the Claimant was issued with a Dismissal Letter was not proved before this Honourable Court, because the Claimant was never shown or served with any dismissal letter before her resignation and that the Letter of Dismissal dated 19th day of April 2017 which forms parts of the bundle of documents before this Honourable Court has further buttress the malice against the Claimant when the said document though dated 19th day of April 2017 was said to have effect from the 18th day of April 2017. Reference here was made to Exhibit D2. He therefore urged this Honourable Court to reject the Defendants vague assertion that a dismissal letter was issued to the Claimant whereas the Claimant resigned with a letter dated the 15th day of April 2017 sent by email on the 18th day of April 2017 and hold and/ or resolve issue one in favour of the Claimant that the resignation is valid and proper in law. The Claimant got to know of the entrance of the said letter after she had served the defendants with her letter of demand. He submitted that the Claimant’s letter of resignation came earlier than the purported letter of Dismissal. The Claimant further submitted that the purported letter of dismissal was not in existence but was hurriedly done or an afterthought hence cannot be relied upon. In effect counsel argued that the Defendants did not terminate the appointment of the Claimant rather the Claimant exercised her right to voluntary resignation. He urged this court to so hold.
1.50 On issue 2 which is Whether from the fact and evidence before this court the Claimant is entitled to the reliefs sought before this Court, the Claimant submitted that she is entitled to the reliefs claimed and relied on section 131 (1) and 134 of the Evidence Act 2011 to the effect that the Claimant has the burden of proof to establish her claims before this Court. Claimant submits that she has discharged the burden placed on her. In establishing this, counsel submits that it is trite that the duty of the court is to interpret the said contract and not to write one for the parties. The said contract also provided for the mode of termination exercisable by either of the parties. That the Defendants argued in paragraph 4.13 of the final address that the Claimant was guilty of insubordination, but the facts and evidence of the alleged insubordination was not presented before this Court and therefore the argument contained therein was unsubstantiated and ought to fail. We urge this court to discountenance same and hold in favour of the Claimant.
1.51 Claimant also submitted that it is trite principle that the fact that a claim was brought under the wrong law does not negate the validity of the claims in so far as they are provided for under the law. Reliance here was placed on FALOBI V. ELIZABETH (1976) 1 NMLR 169 where Fatayi Williams JSC (as he then was) stated thus:
“if a relief or remedy is provided for by any written law (or by the
common law or in equity for that matter) that relief or remedy
if properly claimed by the party seeking it cannot be denied to
the applicant simply because he has applied for it under the wrong
law”.
1.52 On the reliefs for the balance of unpaid salary Claimant referred the court to Exhibit C15 & C16 to show that the contents of the documents are clear, unambiguous and do not need any extrinsic evidence. Counsel submitted that it is trite that a document once tendered and admitted speaks for itself and no oral evidence can be admissible on the contents thereof. The period and time of calculation of the reliefs of the Claimant is from February 2015 in these words:
“Below are my outstanding allowances which have
accrued to me as a senior manager since February, 2015″.
And the contention that the Claimant did not state the date cannot stand and urged this Court to dismiss the same as the period of the Claimant’s entitlements have been clearly stated. That the Claimant claims accrued from February 2015 to February 2017 which total the 25 months stated in exhibits C15, C16 & C18 and the letters were specifically pleaded in paragraphs 19 and 23 of the Statement of Claim. That Hence the reliefs as per the period it accrued and the explicit details have been proved therein and by the evidence before the Court. Counsel therefore urged this court to discountenance the argument in the said paragraph and hold in favour of the Claimant. Counsel also referred the court to the letter dated the 19th of March 2012 addressed to the Claimant from the Defendants in respect of the entitlement of the Claimant to her gratuity and submitted that the said letter forms part of the contract of service between the Claimant and the Defendants.
1.51 That the intendment of the Defendants is that the Claimant was due and qualified to be given the said gratuity having been a staff of the Defendants as at 31st of December 2008.
Claimant referred to the Black’s Law Dictionary, which defines an employee or staff as a person who works in the services of another under express or implied contract for hire under which the employer has the right to control details of work performance”
And by the clear definition above, that the Claimant was an employee of the
Defendants as at the 31st of December 2008. In his opinion,the fact that she was still under
probation is immaterial as the overriding determinant of an employee is whether the Claimant was under the control and supervision of the Defendants which answer is in the affirmative. So the Claimant averred that she is right to have claimed for entitlement of gratuity in relief six as N6,975,000.00 (Six million, Nine hundred and Seventy five thousand naira) for the period worked from 2008. That the non-confirmation of the Claimant did
not disqualify her to be a staff reading into the clear definition of an
employee
1.52 Counsel argued that a party cannot be allowed to approbate & reprobate at the same time and the Defendants intention not to grant the Claimant her gratuity was defeated by Exhibit C4. which emanated from the Defendant and formed part of the records of this court which this court can rightly attach probative value to in determination of the issue in this case. Claimant submits further that the acts of the Managing director of a legal establishment are deemed the act of the establishment. The 1st Defendant is a legal personality that thinkers, wills and acts through the Director of which the Managing Director is a principal officer of the company and it is fallacious for the Defendants to deny the validity of the acts of the managing Director as same is deemed proper. Counsel referred tothe case of BOLTON (ENGINEERING) CO LTD V. GRAHAM & SONS (1957) 1 Q. B 159 where the court held as follows:
“A company may in many ways be likened to a human body.
It has a brain and nerve center which controls what it does.
It also has hands which hold the tools and act in accordance
with direction from the centre. Some of the people in the company
are mere servants & agents who are nothing more than hands to
do the work and cannot be said to represent the mind or will. Others
are Directors and Manager who represents the directing mind and
will of the company and controls what it does”.
Similarly Counsel also relied upon YALAJU-AMAYE V. AREC LTD & ORS (1990) 6 S C 157 where Salami JSC (as he then was) stated thus:
“The court of Appeal stated the general rule and the usual position that
there is generally the relationship of master and servant between the
managing director and his company. As an employee, there is usually
contract of service between him and the company. The Managing
Director relies on his tenure on the Articles of Association of the
company and any other contract of service supplemental thereto.
Thus, a valid determination of his contract of service will depend on the terms of such contract of services. No such contract of services was proved.
See the cases of OMOSADE V. MANDE (1987) 2 NWLR(PT 55)155 at
170, EREBOR V. MAJOR(2001) 5 NWLR (Pt 706) 300 at 308-309,
NWUKUSI V.RTCMZC (NIG) L TD(1995)6 NWLR (PT 402) 402, J & J
TECHNO (NIG)LTD v. YHQS LTD. (2015) 8 NWLR Pt 1460 at pages
25 -26
Counsel further argued that by the March 2012 (Exhibit C4) was proper and binding on the Defendants and the Claimant and the said letter forms part of the document re-establishing contract of service between the parties.
5.15 On the validity of the resignation letter which he had been argued in issue 1 above, counsel further submitted in addition that this court is empowered to declare any provision of any law that infringes on the right of a party as null and void.
Consequently counsel prayed the court urge this court to declare paragraph 3.14 of the Defendants Staff Handbook null & void and being unconstitutional null & void as the said section restricts the right of the Claimant to terminate her employment by surreptitiously placing a condition for a letter of resignation takes effect the day it is sent and received and not contingent on any decision to be taken thereon.
5.16 On issue 3, it was submitted on behalf of defendant to the counterclaim that the Defendants/Counter Claimant failed to prove the counter claim hence not entitled to same. That it is a fact that the Defendants assigned a car to the Claimant not as a work tool but to be in lieu of the transport allowance she was entitled to as long as the Claimant was in possession of the car as the Defendant was not to pay the transport allowance. Counsel submits that the defendant to the counterclaim was fraudulently derived the enjoyment of a car when the first car was taken from her after four (4) years when the defendant to the counterclaim’s right to an option of first purchase arose but was refused. However, the defendant to the counterclaim averred that she detained the said vehicle not to convert it to her personal use but as a lien against the Counterclaimant who is indebted to her. That she is not contending the ownership of the said vehicle but contends strongly that she is entitled to the right of first option to purchase and the undertaking on the 13th of April 2017 was done under duress and cannot stand hence the demand for the return of the said vehicle does not arise in view of the Defendants’ breach of the Claimant’s right under the vehicle policy.
COURT’S DECISION
5.17 I have read all the submissions of counsel and the processes filed in this matter. I have evaluated the oral and documentary evidence as presented by both sides. I would however deal with the contentious issue of whether or not the claimant validly resigned from services of the defendant or she was dismissed as put forward by the defendant. There are implications for the dismissal of an employee and for the voluntary resignation. In PROFESSOR DUPE OLATUNBOSUN Vs. NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH COUNCIL (1988) LPELR-2574(SC) or 1988) NWLR (Pt.80) 25, the Supreme Court held that;
“Legally both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not”.
5.18 Now the time stamp on exhibit C14 indicates that it was sent to Grace Okon @ learnafricaplc.com at 7.08PM on the 18th of April 2017. DW testified that the claimant had interactions with Grace Okon as HR regarding her issues with the 1st defendant. Indeed exhibits C6, C8, C9,C10,C12 AND D2 were all signed by a Grace Okon as Head, HR and Admin of the 1st defendant. The salutation in exhibit C14 reads “Dear HR”. When married together with the email address which is @learnafricaplc.com, it is safe to conclude that exhibit C14 was sent via email to an agent of the 1st defendant on the 18th of April 2017 at 7.08PM.
5.19 Moving further, exhibit C15 is the DHL waybill with number 9813064074. On the face of it, it shows that it was sent from the claimant to the HR Manager of the 1st defendant. The time stamp on the exhibit shows it was sent at 10:14:38am on the 19th of April 2017. The exhibit further shows that the Claimant’s letter of resignation was the consignment and was received and signed for by one UZOMA GIFT on the 20th of April 2017.
Exhibit D2 is dated the 19th day of April 2017 and signed by Grace Okon. It purports to dismiss the defendant with effect from 18th of April 2017. But most importantly, no evidence was led as to when Exhibit D2 was delivered to the claimant. No acknowledged copy or any other evidence has been shown to the satisfaction of this court that indeed the claimant had received the dismissal letter.
5.20What is even more curious is the fact that exhibit D2 is dated the day after exhibit C14 was sent by email. The recipient of exhibit C14 on the next working day signed exhibit D2 and stated that it was to take effect from the 18th of April. The question that arises is “why make exhibit D2 take retrospective effect?” . What was so special about the 18th of April 2017 that Exhibit D2 had to take effect from that date? Was it to circumvent the resignation of the claimant? I would refrain from further comment as this point.
5.21Now in CHIEF AKINDELE OJO SUNDAY V. OYEDELE SAMUEL OLUGBENGA & ORS (2008) LPELR-4995(CA) the Court of Appeal per Fabiyi, JCA(as he then was) held that;
“”It is clear to me that a notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. Refer to W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258. Put bluntly, resignation takes effect from the date notice is received by the employer or its agent. See Adefemi v. Abegunde (supra) at p. 28. In Benson v. Onitiri (supra), Ademola, OF (as then called) pronounced as follows: – “Further, it is clear on the authority of Riodan v. The War Office (1959) 3 All E.R 522, 588 that resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice.” In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the Board, on which Benson was serving … I am of the view that notice of resignation to either of them is good, nor do I think it necessary for the Board or anybody else to reply that the resignation is accepted.”
On the strength of SUNDAY VS OLUGBENGA (supra), I therefore find that the Clause of the Defendant’s Handbook requiring review and acceptance of resignation before it becomes effective is illegal and void. I so hold. Reference here to the case of Hon. Kola Adefemi & anor. v. Muyiwa Emmanuel Abegunde & ors [2004] 1 NWLR at 27 ‘ 28, which applied Benson v. Onitiri [1960] SCNLR 177 at 189 ‘ 190: [1960] 5 FSC 69 to the effect that resignation dates from the date notice was received and there is absolute power to resign and no discretion to refuse to accept notice;
Furthermore, the question as whether or not exhibit D4 was validly admitted or not is moot as the basis for the contention has been declared invalid and would not be considered in determining this matter. I would therefore discountenance Exhibit D4 for the purposes of this decision. I so hold.
5.22 The Defendant did not challenge the admissibility of exhibits C14 and C15. There was no challenge whatsoever. The defendant did not deny exhibit C15 was received on its behalf or the person that signed for it was not its agent. Neither has the defendant refuted the receipt of exhibit C14 by the head of HR of the 1st defendant. Accordingly, I find that the defendant indeed on the 20th of August 2017, received the resignation letter of the Claimant and the resignation of the claimant was effective from that date. I so hold.
5.23 The purported dismissal of the claimant goes to no issue as you cannot dismiss an employee who has resigned already. There is no evidence of when and how and if Exhibit D2 was ever given to the claimant. He who asserts must prove. Defendant has failed to prove it conveyed this decision to the claimant at any time. Exhibit C12 is a letter suspending the Claimant with effect from the 18th of April 2017. Exhibit C12 was dated 13th of April 2017. When the claimant sent in her resignation letter via email on the 18th of April 2017 to the defendant’s HR Head who had signed Exhibit C12, then signed exhibit D12 dismissing the claimant with effect from the date the suspension of the claimant started. Did the defendant intend to convert the suspension to dismissal? Whatever the reasons, the claimant had effectively resigned and in the absence of any evidence of the claimant being served with Exhibit D2, I find that the claimant was not dismissed by the 1st defendant. I so hold and so.
5.24. Having resolved that the claimant’s resignation was valid, I must at this juncture state that the only terminal benefit the claimant is suing for is her Gratuity. All the other claims border on her entitlements earned in the course of her employment which were not paid in full. Specifically, for balance of her entitlements. In determining monetary claims as this one, the court has to evaluate the evidence on the basis of proof of entitlement and the quantum thereof. See the case of MOHAMMED DUNGUS & ORS VS ENL CONSORTIUM (2015) NNLR PT 208, PG 39 where Kanyip, J held that;
“Now the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer” The court went further to rule that;
“The issues before the Court are essentially two: whether the claimants can be said to have proved their claims; and for them to do so, they must show an entitlement to each of the claims. Secondly, whether the defendant has equally proved its counterclaim against the claimants”
5.25 Using the test as enunciated in Dungus (supra), this court would examine each claim vis-à-vis the proof of entitlement and the quantum. The claims for unpaid difference in salary which is N1,375,000, unpaid housing allowance which is N406,000, outstanding medical allowance for 3 years which is N60,000, floating car allowance for 25 months which is N150,000 and outstanding leave allowance of N203,000 would be dealt with together. In determining this claim, the only documents that the claimant has put forward to show her entitlement are Exhibits C1, C2, and C5 (letter of Appraisal for 2012).
Taking the difference is salary first, what is the difference based on? What was the claimant’s salary and what was paid so that the difference claimed can be clearly seen? The claimant vide exhibit C14 tried to rely upon a table she drew up showing her claims. That exhibit does not by any stretch of the imagination translate into a document that confers entitlement on the claimant. If the court is take the computation of salaries based on the review shown in exhibit C5, how can the court determine that there are outstanding amounts unpaid? No evidence at all has been presented of the payments of salaries paid and the unpaid difference. What months were paid fully and what months were unpaid and by how much? A simple bank statement showing payments made would have helped the claimant’s case. Paragraph 9 of the Claimant’s deposition states that;
“ I know for a fact that a monthly salary of N120,000 is attached to the position of a field sales manager before and at the time of my appointment which the defendants did not comply with until my resignation. Up till now they have refused to pay the difference for a period of 25 months”
5.26Where is the evidence laid out in Dungus (supra) that shows the entitlement to the N120,000 per month that was due to the claimant?
She further averred in paragraph 10 of her deposition that;
“Further to the above, all my entitlements with respect to Housing, medical, Leave and floating car allowance were being paid in halves by the defendants for several months and years”
What were the halves claimants spoke of? For which months and years even? Based on calculations from which entitlement? Exhibit C1, C2, or C5? Or the entitlement of the Field Manager
5.27 It is the party that would fail if no evidence is adduced that must adduce the convincing evidence of that fact that needs proving. In the case of MADAM SARAH OSCAR & ANOR VS MALLAM MANSUR ALIYU ISAH (2014) LPELR 23620 (CA) the Court of Appeal held that “it is elementary that in civil cases, the person that asserts bears the burden of proving that which he asserts”. See also AMECHI VS INEC (2008) ALL FWLR (PT 407) 1, DAODU VS NNPC (1998) 2 NWLR (PT 538) 355, FASHANU VS ADEKOYA (1974) 6 SC 83.
It is not for the court to go fishing for details of wrongs on behalf of claimants or any party. The Court is not a calculator.
In STEPHENSON STANDARD COMPANY LIMITED VS YIFA NIGERIA LIMITED, (2012) LPELR 9707 (CA) OGUNWUMIJU JCA held that;
“it is not enough for the claimant to state that it is entitled to a particular sum of money. He must give concrete and accurate evidence of such sum. Learned Appellant counsel had argued that since its claim was uncontroverted, the trial court should have taken its word at face value. This, in my humble opinion stems from a misconception of the law as it relates to special damages.”
5.28 This decision applies in the instant case. This court cannot take the words of the claimant at face value without particulars of entitlement, proof of quantum, payments made, and difference entitled to. Reference to paragraphs 9 and 10 of the claimant’s deposition on oath.
Claims for salaries and other entitlements are in the nature of special damages as held in NITEL Vs OSHODIN (1999) 8 NWLR (PT 616) 528 @ 542 and RENE ANTOUN & ANOR VS BENSON OGHENE (2012) LPELR. They must be specifically pleaded and proved. And the claimant has failed to do.
5.29 Cases are decided on evidence placed before the court and unfortunately for this claimant, the evidence presented fails short of the standard required to sway the court in her favour on this issue. Accordingly, the claims for unpaid difference in salaries for N1,375,000 must and hereby fail as no evidence has been produced in support of the entitlement. Exhibit C14 is not a contract or agreement or any kind of document conferring entitlement on the claimant and I so hold. No basis for the calculation of the unpaid difference has been shown. Indeed, no evidence has been presented to enable the court to determine the difference between paid and unpaid. This head of claim is hereby dismissed. So also, the heads of claim for housing allowance of N406,000, medical allowance of N60,000, 150,000 floating car allowance and N203,000 outstanding leave allowance all fail for the same reasons given regarding the claim for unpaid difference in salaries and they are hereby dismissed. I so hold.
5.30 For the claim of N6,975,000 for Gratuity for 9 years, it is based on exhibit C4. Exhibit C4’s authenticity has been vehemently challenged by the defendant who submitted that the document was meant for other staff entitled to Gratuity in their contracts of employment of which the claimant is not one. The defendant rather curiously then submits that the claimant could not benefit from the exhibit as she had not been confirmed as at December 2012. So, is the exhibit a forged document or just one that the defendant was not qualified to benefit from? Or both?
5.31 Where as in this case, the defendant averred that there is an authentic document that the claimant modified, why didn’t the defendant bring that before the court to enable the court to make an informed decision? All that is before this court is Exhibit C4 which shows on the face of it, an entitlement. It is trite that the contents of a document can only be varied or altered by another document. See IJEWERE VS ERIBO (2104LPELR-23263 (CA). It is not for the court to make agreements for parties. See UNION BANK VS INNOSON (NIG) LIMITED (2017) LPELR. Rather the duty of the court is to give meaning to a validly made agreement between the parties.
As it stands, the defendant was simply trying to vary the contents of exhibit C4 by oral evidence. Challenging the signature of the 1st Defendant’s former Managing Director is not enough. The 2nd defendant who testified to that fact did not state that he was an expert in handwriting or signatures. The same way the defendant conceded that exhibit C5 modified exhibit C1, is the same way exhibit C4 modified C1 and I so hold. Accordingly, the objections of the defendants to this court placing reliance on exhibit C4 are hereby overruled.
5.32 A close examination of exhibit C4 itself would show that both counsel seemed to have missed the point of exhibit C4. The clear and unambiguous wordings of exhibit C4 state;
“ we write to inform you that the board has since directed that henceforth, staff in the employment of the company as at 31st December 2008 will be entitled to gratuity for the number of years spent leading up to 2008. However, 2010 salary would form the basis for this computation”
The exhibit said staff in the employment of the company as at 31st December 2008. It did not say confirmed staff. Defendant Counsel introduced this distinction and I am not in any way convinced by it. As the claimant was a member of staff of the 1st defendant as at 31st December 2008, I hold that she is entitled to benefit from the gratuity provided for by the exhibit. I so hold.
5.33 The entitlement having been settled, next is the quantum. Again, the exhibit C4 provides for staff to be entitled to gratuity for the number of years spent up to 2008. That means the calculation for gratuity would be for the number of years a member of staff had spent to the end of 2008. Not as claimant counsel erroneously calculated to mean FROM 2008. Gratuity in the 1st defendant company would be calculated for the beneficiaries of exhibit C4 on the basis of the years they spent up 2008. There is a world of difference between up to and from. The cut-off period is 2008. Not the commencement period. I so hold.
5.34 Accordingly, the claimant is entitled to be paid her gratuity for the period of 3rd June 2008 when she was employed to 31st December 2008 going by the provisions of exhibit C4. The defendant is to calculate and pay the gratuity due to the claimant on the basis of her 2010 salary for the period she is entitled to and I so order.
5.35 Having succeeded in at least one head of claim, the claimant is entitled to costs. This court hereby awards N25,000 as costs of this action in favour of the claimant.
On the whole and for the avoidance of doubt, the claimant’s case succeeds in terms of the following orders;
(i) The Claim for Claimant’s gratuity only succeeds in part which is for the period of 3rd June 2008 -31st December 2008 is to be calculated and paid to her by the defendant on the basis of her 2010 salary.
(ii) N25,000 as cost of this suit is hereby awarded in favour of the claimant.
- The following claims failed for the reasons given earlier and are dismissed accordingly.
(i) N1,375,000 which represents the claimant’s unpaid difference in salary
(ii) N406,000 which represents the claim for housing allowance
(iii) N60,000 which represents the outstanding leave
(iv) N150,000 which represents the floating car allowance for 25 months
(v) N203,000 which represents the claim for outstanding leave allowance
(vi) For sake of clarity, Gratuity for 9 years calculated at N6,975,000 fails. The period entitled to be paid to the claimant has been shown above.
Judgment is entered accordingly.
Terms of this judgment to be complied with within 30 days.
COUNTER CLAIM.
Coming to the counter claim, there really isn’t a dispute as to this claim. The defendant to the counter claim had acknowledged that the vehicle in dispute does not belong to her. That she is merely keeping it as a lien for her unpaid entitlements. There was no point going into the heated argument over whether the vehicle in question was a tool of trade or not. Both parties have relied upon the counterclaimant’s vehicle policy. If the defendant to the counterclaim felt she had been unjustifiably denied an opportunity to purchase a vehicle from the counterclaimant, she should have brought and action to enforce that right. Her grouse is not with this present vehicle.
The defendant to the counterclaim has no right to resort to self-help. Going by the counterclaimant’s vehicle policy which is Exhibit C16 which the defendant to the counterclaim tendered into evidence, the vehicle in question was not due to be sold off going by the evidence that it was just a year old as at the time the dispute arose and the Exhibit C16 clearly provides the timeline and conditions under which a vehicle can be sold off. This is not the case here as the retention of the vehicle by the defendant to the counterclaim was not in compliance with the Exhibit C16.
The counterclaimant has by exhibit D1 proved its ownership of the vehicle with chassis number MDHBBAN1770507388 and the defendant to the counterclaim has admitted that she is not the owner of the vehicle. An admission has been defined in ANASAN FARMS LTD VS NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 @ 252 as “a statement oral or written by a party or his agent to legal proceedings and which statement is averse to his case”. Reference also to IYEKE VS ABU (2015) LPELR-25735. What is admitted needs no further proof especially a categorical admission like the one made by the defendant to the counterclaim. See the cases of UNION BANK OF NIGERIA PLC VS IKECHUKWU ONUORAH & ORS (2007) LPELR 11845 (CA), ANKA VS LOKOJA (2001) 4 NWLR (PT702) 178 @182, NV SCHEEP VS MV ARAZ (2000) 15 NWLR (PT 691) 622 @ 634. Reference to paragraph 5 of the Statement of Defence to the counterclaim and paragraph 20 of the Defendant to the counterclaim’s deposition on Oath. Section 20 of the Evidence Act 2011 defines an admission as “a statement, oral or documentary or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstances mentioned in the Act
The defendant to the counterclaim is hereby ordered to return the vehicle to the counterclaimant within 14 days of today failing which the defendant to the counterclaim is to pay the alternative prayer of the undepreciated value of the vehicle put at N2,766,667 based on the calculations made pursuant to the 1st defendant’s vehicle policy.
I so order.
Judgement is hereby entered accordingly
I make no order as to costs.
Hon. Justice Paul Ahmed Bassi
Judge
