MR. ABIODUN AJIBADE VS WESTERN METAL PRODUCT LIMITED & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: WEDNESDAY JUNE 22^ND 2018

SUIT NO. NICN/LA/498/2017

BETWEEN:

ABIODUN AJIBADE

CLAIMANT

AND

WESTERN METAL PRODUCT LIMITED
WEMPCO COOPERATIVE/MULTIPURPOSE SOCIETY
WEMPCO STEEL & ENGINEERING UNION

DEFENDANT

Representation:

EM Okoduwa-Maile appears for the Claimant

Tayo Douglas appears for the Defendants

JUDGMENT

On 12^th October 2017, the Claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the Defendant:

(a) AN ORDER mandating the 1^st Defendant to pay the Claimant the two (2) months salaries he worked for before the termination of his employment.

(b) AN ORDER mandating the 1^st Defendant to give to the Claimant a pension Bond in order to enable the Claimant Access his pension bond.

(c) AN ORDER mandating the 1^st Defendant to give the Claimant clearance letter in order for the 2^nd and 3^rd Defendants to pay to the Claimant all his entitlement.

(d) Cost of litigation and general in the sum of N2,000,000.00 (Two Million Naira Only).

In reaction, the Defendant entered formal appearance vide the Memorandum of Appearance of 26^th October 2017. They also filed their Statement of Defence dated 23^rd November 2017. The Claimant consequently filed a Reply to Statement of Defence dated 6^th December 2017, but without a Witness Statement to support the facts pleaded. At the trial, the Claimant testified as CW for himself and tendered 12 exhibits: Exhibits C1 to C12. The Defendants testified via Mr. Taofeek Olarenwaju Yusuff, staff of Defendants who tendered 5 documents which were all admitted and marked exhibits D1 to D5. Sgt. Ogwu Moses was subpoenaed to tender a police report which was admitted and marked D6. At the close of trial on 13^th February 2018, the Court ordered parties to file and serve their respective written addresses starting with the Defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The Defendant’s final written address is dated 24^th May 2018 and a Reply dated 14^th June 2018. The Claimant’s Final Written Address is dated 6^th June 2018. The Final Written Addresses were adopted on 19^th June 2018 and the Court adjourned for judgment.

CASE OF THE CLAIMANT

It is the case of the Claimant that he first came into the employment of the 1^st Defendant on the 5^th August, 2003 via a recommendation from the Head of Department (Bills Department) to offer to the Claimant an employment form to work as an office assistant dated 5^th August, 2003. Claimant’s employment form is dated 2^nd February, 2007. Claimant states that the confirmation of his appointment as office assistant was finally approved by the 1^st Defendant on the 1^st September 2008. Claimant states that on the 30^th June, 2017 some workers of the 1^st Defendant were alleged to have been involved in stealing of some of the company’s products and that the said group of person(s) were apprehended and taken to the police station. While in the detention he wrote a statement stating in clear terms that he had never at any point in time stolen the company’s product. He states that the police never investigated his claim of not being involved in the allegation levelled against him neither did they charge the matter to Court in order for the Claimant to prove his innocence. He states that he was asked to apologise and he protested that he could not apologize for an offence he did not commit; but all the same wrote another handwritten letter of apology dated 11^th September, 2017 stating that he was sorry for borrowing money from his superior without the knowledge that he had been involved in theft against the company which letter was rejected. Upon realizing that the 1^st Defendant was bent on roping him with the offence he did not commit in order to terminate his employment with it, he then demanded for his salaries he had worked for and the PENSION BOND enabling him to access his pension with Stanbic IBTC. He approached the 2^nd and 3^rd Defendants to get his entitlements by virtue of his membership and contributions. The 2^nd and 3^rd Defendants refused to attend to him telling him to go and get clearance from the 1^st Defendant before he could collect any of his entitlements. He resigned from his employment by a letter dated 6^th October, 2017 personally to the Personnel Manager who refused to accept it whereupon he sent it via DHL Courier services.

CASE OF THE DEFENDANT

It is the case of the Defendant that the Claimant was employed by the 1^st Defendant on the 1^st September, 2008 till he was dismissed by the 1^st Defendant on the 31^st July, 2017 without any benefits or entitlements whatsoever on account of conspiracy and stealing of the 1^st Defendant’s properties valued at N5M (Five Million Naira) sometimes on or before the month of June, 2017. The 1^st Defendant reported the matter to the Police at Area ‘G’ Police Command, Ogba, Lagos and the police in the course of their investigation arrested the Claimant along with other workers of the 1^st Defendant involved in the case of stealing whereby the police turned in their interim Investigation Report on this case on the 25^th July, 2017 and which Interim Report heavily indicted the Claimant. That based on the Police Interim Report, the Claimant was issued a query on the 25^th July, 2017 to explain his involvement in the conspiracy and stealing case and to which query the Claimant ignored with disdain and levity. That when it became apparent that the Claimant would not avail himself of the opportunity given to him vide the said query, the 1^st Defendant set up an administrative panel which looked into the Claimant’s involvement in the case of conspiracy and stealing and based upon the Panel’s report, the 1^st Defendant thereby dismissed the Claimant on the 31^st July, 2017 vide a letter of Dismissal served on him. 1^st Defendant states that the 2^nd Defendant is a registered society and/or organization under the laws of Lagos State on Cooperative and Multipurpose Society and its membership is drawn from any employee or employees of the 1^st Defendant who voluntarily subscribed for its membership while the society’s stated goals and objectives are as provided by its Bye-Laws and any Resolutions made by the society form time to time.That the enjoyment of the benefits of the welfare scheme floated by the 2^nd and 3^rd Defendants’ for their members is not automatic but a qualified privilege.

THE DEFENDANT’S SUBMISSIONS

The Defendant in their submission first noted that the Claimant filed Reply to the Defendants’ Statement of Defence but failed to file along with the Reply his witness’ written deposition or statement on oath with which the facts pleaded in the said Reply shall be proved in evidence. Based on that, they submit that the Claimant’s Reply which is filed and dated the 6^th day of December, 2017 is of no moment as an averment in which no proof of evidence is offered, virtually serves no useful purpose – Emmanuel v. Umana (2016) All FWLR (Pt 856) 214 @ 261 Paras B-F.

Defendant raised a lone issue for determination, to wit:

Whether in the circumstances of this case the Claimant have sufficiently and satisfactorily established any cogent and compelling case before the Honourable Court which on the balance of probability will warrant granting his Claims?

They submit that the Claimant was unable to discharge the onus of proof on him to be entitled to his claim. They contend that there are inconsistencies with regard to when the Claimant states his employment was confirmed and thus his evidence is not reliable. That he states his employment was confirmed on the 2^nd of February, 200, and in another breath states he was confirmed on the 1^st of September 2008. They submit that where there are material contradictions in the evidence adduced by a party, the Court is to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow. They urge the Court to hold that the Claimant have failed to prove his date of employment to show that he has spent up to Ten (10) years of service in the employ of 1^st Defendant so as to enable him access the fund/sum he claims.

THE CLAIMANT’S SUBMISSIONS

The Claimant also submitted a lone issue for determination, which is, “Whether considering the total evidence adduced by the Claimant, the Claimant is entitled to his claim as claimed in this suit against the defendants?

Claimant submits that that the Claimant is entitled to his claim as per his claim in this suit. He submits that evidence shows that Claimant has been in the employment of the Defendant since 2003. He notes that the evidence showing his employment and deductions were not rebutted by the Defendant either by document or testimonies to counter same. He submits that evidence of fact not expressly denied or rebutted is deemed as admitted – Phoebus Economides v. Thomopulous sco ltd (1956) IFSC 7 Falana v. Bello (1995) 9 NWLR (Pt. 418) 182

Claimant also submits that he has scaled the hurdles noted by Defendant to collect his entitlements as he had stayed beyond 10 years and also gave his one month notice to the Society of his resignation from 2^nd Defendant. Claimant submits that he is entitled to his claim against the Defendants.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I join parties to adopt for determination the issue; Whether the Claimant is entitled to his claim. I take the Reliefs sought one after the other. In doing this, I rely only on the Statement of Facts and Statement of Defence and the witness statements on oath supporting both. I discountenance Claimants Reply as there is no evidence to support the facts averred therein. I also note that this Court has not been called to determine the status of the Claimant’s cessation of work; whether it is by resignation or by dismissal. I make no finding on Claimant’s status as I do not find that it is imperative for the determination of any of the Reliefs sought.

Relief 1 – AN ORDER mandating the 1^st Defendant to pay the claimant the two (2) months salaries he worked for before the termination of his employment.

It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both the case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

Also in the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA), the Court of Appeal held that:

It is quite elementary that no court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.

The Claimant has claimed his salary for two months. This was not contested in anyway by the Defendant by evidence; except in Counsel’s address which cannot substitute for evidence. Claimant tendered what appeared to be pay slips from Defendant. However, the said document (Exhibit C1) does not help this Court to determine what would be due to the Claimant as his two months’ salary. Exhibit C1 has entries that are neither consistent nor determinate. Claimant again did not lead evidence to show this Court which months represent the two months owed and how much is owed. This Court would only be engaged in conjecturing if it purports to know how much is due to the Claimant and for which months. In the circumstance, Relief one fails for lack of proof.

Relief Two – AN ORDER mandating the 1^st Defendant to give to the claimant a pension Bond in order to enable the claimant Access his pension bond.

The law is well settled that any fact which has not been categorically countered or denied by a party, that fact is deemed admitted in law by the other party – Efet v. INEC & Ors (2011) LPELR-8109(SC). See also Nzeribe v. Dave Eng, Co. Ltd (1994) 8 NWLR (Pt.361) 124; Omoregbe v. Lawani (1980) 3-4 SC 108. See also section 75 of the Evidence Act, LFN, Cap.112, 1990.” PER MUHAMMAD, J.S.C. (Pp.25-26,Paras G-A.

I have gone through the Defendant’ pleadings and evidence, and found that Defendant did not respond to Claimant’s prayer asking for Defendant to give him a pension bond in order to enable him claim access to his pension bond with Stanbic IBTC.

Once earned by the employee, pension under the Pensions Act 2014 cannot be taken back by the employer even upon dismissal of the employee by the employer for gross misconduct or any other serious allegation. There could be two reasons for this—

1.) The right is a monthly accrued pension right that confers exclusive property on the employee within seven (7) days after the payment of the employee’s salary; and

2.) The employee is the exclusive owner of and sole signatory to the pension account. Once the right has accrued monthly and the employer has made his contribution to the employee’s pension account, he does not have any claim or right to the proceeds in the account.

Even where the dismissal is justifiable on ground of gross misconduct, the quantum of benefits that can be taken away from the employee by the employer is the employee’s accrued entitlements for the month the dismissal took place on the one hand and the employer’s 10% pension contribution to the employee’s pension account on the other hand.

The Defendant having not disputed Claimant’s Relief, I find that the Claimant is entitled to whatever document emanating from the 1^st Defendant that will enable him collect his pension from the named Stanbic IBTC.

Relief Three – AN ORDER mandating the 1^st Defendant to give the claimant clearance letter in order for the 2^nd and 3^rd Defendants to pay to the claimant all his entitlement

There is no dispute on the membership of Claimant in 2^nd and 3^rd Defendant. The dispute is whether he is entitled to collect his benefits from the two bodies of which he was a member. The two bodies are regulated bodies and provides for their administration and the conditions for benefits. One of the conditions is the number of years a member has been a staff of 1^st Defendant.

Claimant asserts that he has stayed over ten years in the service of the 1^st Defendant and hence entitled to benefits in 2^nd and 3^rd Defendant. Defendant has referred to the discrepancy in the date of confirmation of the Claimant’s employment. I have considered the discrepancies mentioned and found them not actually discrepancy in fact. Exhibit C3 which asked that Claimant be given an employment form, has as attachment two forms showing employment forms of six months durations. There is only one Letter of Confirmation which is dated 1^st September 2018. I do not consider the discrepancy in Claimant’s Pleading on date of confirmation weighty enough to discountenance Claimant’s case. I also find that it emanates from some form of inelegant drafting.

In any case, it is trite that year of employment is not computed from the date of confirmation, rather, from the date of employment. Evidence is clear and uncontroverted that Claimant was already employed by Defendant by 5^th August 2003. All the issues raised by Defendants are in relation to date of confirmation. This is evidenced by exhibit C2 recommending Claimant for confirmation. It clearly shows date of employment as 5^th August 2003. Again, exhibit C3 dated 5^th August 2003 from the Bills Department to the Personnel Department states: “kindly provide Mr. Ajibade Abiodun with employment form has he (sic) is being given the opportunity to work in Bills Department as Office Assistant”. Again, Exhibit C4 dated 17^th February 2005 from Bills Department to Mr. Robert Tung – Director, recommends the confirmation of the Claimant. Exhibit C11 is the Co-operative Member’s Pass Book of Claimant with his name and with entries of contribution from 2002 cancelled and then entries from 2004. All these evidence are not challenged. I therefore find, as asserted by Claimant in his Claim, that he had been in the employment of Defendant for 14 years prior to the determination of his employment.

Having thus found, I now refer to the conditions for entitlement to benefits under 2^nd and 3^rd Defendant. Exhibit D1 (tendered by Defendant), the Bye Laws of 2^nd Defendant provides notice of one month of withdrawal provided the member is not expelled or terminated. Where the member’s employment is terminated, the member is no longer required to withdraw by notice. The issue for this Court is the condition that will disentitle a member from getting his benefits where one ceases to be a member either by withdrawal, termination or expulsion. The Bye Law (exhibit D1) provides that when:

Membership terminates owing to death, permanent insanity or expulsion, the society shall pay as in the former, to the nominee/beneficiary, or if none was nominated to the legal representative and/or in the latter, to the expelled member, the sum of his credit less any sum due to the society.

There is no place it is stated in the Bye Law that a member will be denied of his dues for any reason at all; rather it provides for payment, even to expelled members. In fact, exhibit D3A, again tendered by Defendant which is the Amendment on Welfare Contribution of 3^rd Defendant provides in paragraph two:

Appendix ‘B’ which was the second amendment on the amendment on the workers procedure on resignation benefit, which feature under item (ii) of the agreement which stipulated that the sum of ONE THOUSAND NAIRA ONLY (N1000.) should be levied on workers to pay any worker that resigned, SACKED, or retrenched, however at this said meeting the workers have agreed that this sum of (N1000.) should be increased to the sum of (N2000.) TWO THOUSAND NAIRA ONLY, to be contributed to any workers of these categories mentioned above.

This again shows that benefiting from the Society is not dependent on how the member left the society. In fact, this document re-emphasises the fact that a sacked or retrenched employee is entitled to his benefits when it stated; “also any worker or workers under 10 years that is retrenched or sacked shall benefit full payment of the sum of TWO THOUSAND NAIRA (N2000.). This is not withstanding that any worker that resigns from 5 years above but has not completed 10 years in service shall only be entitled to the sum of N1000.

Exhibit D2 is a Recommendation proposed to 2^nd Defendant. It also does not suggest that a person dismissed or terminated cannot benefit from his entitlements.

Based on these, I find that there is no existing provision or condition disentitling the Claimant from his entitlements from 2^nd and 3^rd Defendants. Claimant is thus entitled to Relief 3.

Relief 4 – Cost of litigation and general in the sum of N2,000,000.00 (Two Million Naira Only)

As held in Emperion West Africa Ltd v. AFLON Ltd & Anor (2014) LPELR-22975(CA) in order to strictly indemnify the Claimant, Claimant needs to establish that she incurred such cost, to the Court. In Intels Nigeria Ltd. & Ors. v. Bassey (2011) LPELR-4326(CA), the Court held that:

Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate to engender its disentitlement. I am thus in tandem and at par with the dictum in F. B. N. Ltd. v. Owie (1997) 7 NWLR (Pt. 484) 744/756 where Akpabio, JCA stated thus:

A lawyer’s professional fee is not something to be proved by mere ipse dixit.

Everybody knows that lawyers issue receipts for any money paid to them.”

I do not find any evidence upon which to rely and award cost of litigation. In the circumstance, Relief 4 fails.

On the whole, for the reasons already given, and for the avoidance of doubt, the Claimant’s case partly succeeds only in terms of the following orders:

Relief one fails for lack of proof.
1^st Defendant is hereby Ordered to give to the claimant a pension Bond in order to enable the claimant Access his pension with Stanbic IBTC.
1^st Defendant is Ordered to give the claimant clearance letter in order for the 2^nd and 3^rd Defendants to pay to the claimant all his entitlements.
I make no Order as to Cost.

Judgement is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD