IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: MONDAY 28THOCTOBER 2019 SUITNO. NICN/LA/156/2017
BETWEEN
- AUGUSTINE ENWEMASOR – CLAIMANT
AND
MAX-EDGE COMMUNICATIONS LIMITED – DEFENDANT
Representation:
ESN Ijeh appears for the Claimant
Johnson Elegboja appears for the Defendant
JUDGMENT
- The claimant commenced this suit by a General Form of Complaint dated 30th March 2017 by which the claimant claims as follows:
- Payment of the sum of N1,488,000.00 (One million, Four Hundred and Eighty-Eight Thousand naira) only being arrears of salaries owed to the claimant by the defendant for November 2015 to February 2016.
- Payment of the sum of N310,000.00 (Three Hundred and Ten Thousand naira) only being 15 days salary of the claimant for the unexpired period of the contract of employment from 29th February to 14th March 2016.
- A declaration that the defendant had breached the contract of employment.
- An order of this honourable court granting the claimant N5,000,000.00 (Five million Naira) only as general damages.
- N500,000.00 (Five Hundred Thousand naira) only being cost of prosecuting this suit.
- 10% interest per annum on the judgment sum till the money is completely liquidated.
2.Claimant in compliance with the rules of Court filed alongside the writ, the statement of facts, written statement on oath of the Claimant and lists of documents to be relied upon by the claimant. The Defendant in response to the Claimant’s case filed its Statement of Defence with accompanying documents and other Processes on the 24th day of April, 2017. The claimant in response to the defendant’s Statement of Defence filed his Reply dated the 31st of July, 2017.
3.Trial commenced on 7th May 2018 and ended on 23rd January 2019. The Claimant adopted his Statement on oath and tendered several exhibits marked as exhibits C1 – C14. The defendant’s Managing Director, Mr. Victor Edegbe adopted the defendant’s Statement on Oath and tendered three exhibits; D1 – D3. The final written addresses of parties was adopted on the 22nd of October 2019 and matter adjourned for judgment.
- Facts of the Case.
The claimant, an old time friend of the MD/CEO of the defendant, was employed as Director, Media & Strategy, in the defendant’s company by a letter of temporary contract dated 17th September 2015. The claimant started work on 15th September 2015.The term of the contract was fixed for 6 months with effect from 15th September 2015.The contract salary was N8million per annum; that is, N666, 666.67 monthly for the six months and there is to be no modifications except in writing and to be mutually agreed by the parties.The claimant was paid the contract salary for two months, and for November 2015 – February 2016, the claimant was paid his contract salary reduced by 60% (N248, 000.00) by the defendant.On 13th November 2015 the defendant’s accountant/financial adviser sent an email to the MD/CEO of the defendant company and copied the claimant wherein he drew attention to the company’s financial situation and made observations/recommendation to the members of the defendant company for a 60% reduction in salary. The claimant said he never renegotiated his contract salary at all. The claimant claimed that he received a text message on his phone on 27th February 2016 from the Managing Director of defendant informing him that his employment would end on the 29th of February 2016. He was invited to the Managing Directors office on 29th February 2016 and further informed to relinquish his position with effect from 29th February 2016. The claimant said he insisted that the defendant should terminate the appointment in writing and not verbally. Claimant maintains his employment was for a fixed period of six months and was due for review on 14th March 2016; and that there was no letter of termination of employment done or given to him.After waiting for the payment of his entitlements, a meeting was fixed for 10th March 2016 in the office of MD/CEO of the defendant for the discussion of the payment modality and it was in the meeting that the MD/CEO of the defendant showed him three unsigned letters two said to belong to him.
It is defendant’s case that he needed the claimant for the NLNG project it was involved in and that the claimant did not perform creditably well. That on the 13thof November 2015 there was a management meeting where a decision was taken to cut management salaries by 60% and that the claimant attended the meeting and in fact suggested the reduction instead of downsizing of staff. The claimant denied all these and said that his contract with the defendant was not project- based.
- Arguments of Counsel
Counsel for defendant, in their final written address formulated the following issues for determination:
- Whether the Temporary Contract of Employment of the claimant going by the wordings of the letter of employment dated the 17th of September, 2015 was for a fixed period not capable of termination by either Party.
- Whether the Temporary Contract of Employment Letter dated the 17th of September, 2015 is immutable or whether it is capable of being varied and if the answer to this is Yes, whether the email of the 13th day of November, 2015 amounts to a variation of the contract terms acceptable by law.
- Whether there has been a breach of the contract of employment between the claimant and the defendant to warrant claimant’s entitlement to damages for breach of Contract.
- 6.On issue 1, defendant submits that the Letter of Employment dated the 17th of September, 2015 spells out the terms and conditions of employment of the claimant by the defendant. They argue that by clause 2 of the letter of temporary employment contract (exhibit C1), the termination of the employment of the claimant by the defendant is lawful and in complete accordance with the terms of employment between the claimant and defendant. That, the wording of paragraph 2 of the Letter of Employment of the claimant by the defendant is clear to the effect that any of the parties could terminate the employment at any time and for any reason or no reason at all; and the claimant was duly notified of the termination of his employment through a letter dated the 29th of February, 2016 which he refused to accept from the defendant’s Managing Director.
- On issue 2, defendant submits that the wordings of paragraph 8 of the Letter of Employment allows for modification of the same contract albeit only by writing. The Paragraph states that “no modification of this agreement shall be valid unless in writing and agreed upon by both Parties.” Defendant further submits on the issue that the email dated the 13th of November, 2015 together with the attachments thereto marked exhibit D1 amounts to a document in writing and satisfies the requirement of paragraph 8 of the Letter of Employment. On whether the parties agreed to the modification of the original contract of employment as contained in the email, defendant argues that by claimant’s statement at paragraph 18, claimant admits receiving the email; and that his only grouse is that he received it as Director, Media and Strategy and not as Austin Enwemasor. The claimant also collected the reduced salary from the defendant subsequently for some months and never once rejected to it or communicated his displeasure in writing or otherwise to the defendant’s Managing Director although he claimed to have made a verbal complaint to him. Defendant submits that the action of the claimant receiving the reduced salary without any form of complaint constitutes an act of acquiescence to the variation of the original contract of employment between him and the defendant. In support, defendant relies on the principle of acquiescence as held in Duke of Leeds v.Earl of Amhest(1846), 2 Ph.117 @page 124cited in the book, Equity &Trusts in Nigeria by J.O. Fabunmi and stated in the case of Caincross v. Larimer (1860) 3 LR, 130 and Aganran v. Olushi (1905) 1 N.L.R, 266.
- On issue 3, defendant submits that there was substantial performance of the contract of employment between the claimant and the defendant and that the contract was not breached at any time by the Defendant.
The Claimant, on his part, identified the following two issues for determination:
(i) Whether by the state of pleadings and evidence the claimant is entitled to his claims and judgment be given in claimant’s favour.
(ii) Whether the claimant having worked in the defendant’s company and paid his personal income tax, under PAY AS YOU EARN (PAYEE), he is entitled to a certificate of tax deductions from the defendant.
- In arguing issue 1, Claimant argues that this suit is contractual, pecuniary and declaratory in nature. It is the case of the claimant that the defendant did not fulfill his obligation when he paid the claimant the sum of N248,000.00 monthly for November 2015 to February 2016 respectively instead of N666,666.67 monthly and submits that this is a breach of the contract between the parties. Claimant submits that having established that the defendant varied the contract salary and that he terminated the contract before its due date without following due process, defendant has breached the contract and the claimant is entitled to damages and recovery of salary, for the unexpired term, and arrears of salaries. He referred to the cases of Mobil Oil Nig Ltd., v Abraham Akinfosile (1969) NMLR 217; Ilobinso v Nduneme (1966 – 1979) 2 and Hardley v Baxendale (1843 – 1860) ALL ER reprint 461 @ 465 per Alderson B.
10.In reply to the defendant’s issue no 1, claimant submits that the defendant terminated the contract of employment without complying with terms and conditions of employment and so the termination of employment is unlawful.Claimant further submits that he never acquiesced to variation of his original contract of employment between him and the defendant.
- On issue 2, claimant submits that by construction of section 17(2) of the Lagos State Personal Income tax Law, Cap. 4, 2003, the claimant is entitled to be issued with a certificate as required by law.
DECISION:
- I have considered the processes filed in this matter, the evidence led and the arguments of counsel. I adopt the following issues as set out by the parties, for determination:
- Whether the Temporary Contract of Employment of the claimant going by the wordings of the letter of employment dated the 17th of September, 2015 was for a fixed period not capable of termination by either party.
- Whether the Temporary Contract of Employment letter dated the 17th of September, 2015 is immutable or whether it is capable of being varied and if the answer to this is Yes, whether the email of the 13th day of November, 2015 amounts to variation of the contract terms acceptable by law.
- Whether there has been a breach of the contract of employment between the claimant and the defendant to warrant claimant’s entitlement to damages for breach of Contract.
- Whether the claimant having worked in the defendant’s company and
paid his personal income tax, under PAY AS YOU EARN (PAYEE), he
is entitled to a certificate of tax deductions from the defendant.
- Whether the claimant is entitled to his claims.
13.The parties are agreed that there existed a contract of temporary employment which commenced on 15th of September 2015 and which was intended to continue for 6 months after which it shall be considered for renewal(see exhibit C1). They are also agreed that the defendant brought it to an end on 29th February 2016. Parties are also agreed on the agreed remuneration of Eight Million Naira (N8,000,000.00) only, payable month at Six Hundred and Sixty Six Naira Sixty Seven Kobo (N666,666.67) monthly; and the fact that employer reduced salary to 248,000.00.
- 14.Issue one queries whether the Temporary Contract of Employment of the claimant going by the wordings of the letter of employment dated the 17th of September, 2015 was for a fixed period not capable of termination by either party. From the nature of exhibit C1, which is the contract of temporary employment, it is obvious that the parties negotiated with the intention to create legal relations as their relationship has all the elements of a valid legal contract – See BPS Construction & Engineering Co. Ltd v. FCDA(2017) LPELR-42516(SC)and Adedeji v. Obajimi(2018) LPELR-44360(SC).
Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract Per RHODES-VIVOUR, JSC in Oforishe v. Nigerian Gas Co. LTD(2017) LPELR-42766(SC). (P. 10, Paras. B-E). See the cases ofA.G Rivers State v. A.G Akwa-Ibom State (2011) 3 Sc p. 1 Uwah&Anor v. Akpabio&Anor (2014)2-3 SC p1; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492; and Union Bank Nig Ltd v. B.U. Umeh& Sons Ltd (1996) 1 NWLR (Pt. 426) p.565. Exhibit C1 contains clear terms regulating the employment relationship. In paragraph 1, it provides:
1 TERM
The term of this Temporary Employment Contract shall commence on 15th of September 2015 and continue 6 months after it shall be considered for renewal.
By construction of this clause, it can quickly be concluded that the contract is for a fixed term of 6 months and thereafter be considered for renewal. However, parties in paragraph 2 provided for termination as follows:
- The Temp agrees and acknowledges that just as they have the right to terminate their employment with the Company at any time for no reason, the Company has the same right and may terminate their employment with the Company at any time for any reason. Either Party may terminate said employment with written notice to the other Party
From the text reproduced above, it is my finding that parties intended the contract to be for an initial period of six months but that it could be terminated by either party giving written notice of such termination to the other.
- 15.Issue two is whether the temporary contract of employment letter dated the 17th of September, 2015 is immutable; or whether it is capable of being varied and if the answer to this is Yes, whether the e-mail of the 13th day of November, 2015 amounts to a variation of the contract terms acceptable by law. Para 8 of exhibit C1 provides as follows:
- NO MODIFICATION UNLESS IN WRITING
No modification of this Agreement shall be valid unless in writing and agreed upon by both parties.
By this provision, I find that the contract of temporary employment dated 17th September 2015 envisages that it could be varied, but only by a written agreement between both parties. It is defendant’s contention that the email of 13th November 2015 amounts to a variation of the contract terms as envisaged by paragraph 8 reproduced above. The claimant disagrees and contends that it could not have varied his contract since it was without his consent.
I have considered the nature and content of the email of 13th November 2015 (exhibit D1). It is an email from one Emmanuel Owolabi to Victor Edegbe (DW on record and Managing Director of defendant) forwarded to other recipients including the claimant. The email starts by making observations on the current financial status of the defendant and the basis of the opinions expressed in the observation. It concludes with a recommendation that it is the opinion of Emmanuel Owolabi that “management staff salary of defendant should be reduced by at least 60% until there is increase in revenue of the company that justifies the corresponding increase in overhead expenditures”.
This is the document relied on by defendant to submit that the contract between it and the claimant has been effectively varied by consent of both parties. Defendant further argues that it is so because claimant was part of the decision in a management meeting held on the same 13th November 2015; and in fact made the suggestion to reduce salary instead of downsizing of staff; an assertion denied by claimant.
I have considered this submission of defendant. I do not find that exhibit D1 in any way varied claimant’s contract. It is not stated anywhere in the document nor is it implied anyhow, that claimant’s contract was being modified. The document does not purport to be a minute or report of any meeting; and there is no proof that such a meeting took place and that the claimant participated in it. I therefore hold that the email of 13th November 2015 did not vary the terms of the temporary contract of employment between the parties in any way.
- 16.On issue three, whether there has been a breach of the contract of Employment between the claimant and the defendant to warrant claimant’s entitlement to damages for breach of contract. It is the case of the claimant that he was paid N248,000.00 for the months of November 2015 to February 2016 and nothing for the unexpired term of 15 days in March 2016 instead of N666,666.67 (subject to tax deduction) agreed by parties. This he asserts is contrary to their agreement as shown in exhibit C1 (particularly the document described as exhibit B annexed to exhibit C1). Paragraph 5 of exhibit C1provides as follows:
“Para 5 COMPENSATION
In consideration for the performance of the duties hereunder, the temp shall be entitled to compensation as described on Exhibit B – attached hereto.
Exhibit B –COMPENSATION
- COMPENSATION. The Temp shall be entitled to receive an annual pay of Eight million naira only(N8,000.000.00); payable monthly to the sum of Six Hundred and Sixty Six Thousand, Six Hundred and Six Thousand Sixty Seven Kobo (N666,666,67) only for performance of the duties described in this Agreement for the term of the Agreement.
- NO OTHER COMPENSATION. The compensation set out above shall be the Temp’s sole compensation under this Agreement.
Having held that there has NOT been any variation in the terms of the claimant’s contract, and the above provision having not been complied with, I find that the act of varied payment (which is not contested) is a breach of the terms of claimant’s contract.
- It is claimant’s contention that defendant further breached the contract by terminating the contract before it expired. According to the claimant, whereas his contract was due to expire on the 14th of March 2016, he was invited to the office of the defendant on 29th of February 2016, and informed that his contract was to end on that day – 29th of February 2016. This is admitted by the defendant when he stated in his evidence that “The claimant was an employee of the defendant up till the 29th February, 2016 when his employment was lawfully terminated by the Defendant”. Defendant stated that it gave to the claimant his letter of termination, and the claimant refused to accept it. It has already been found that the parties reserve the right to terminate the contract by notice in writing. The contract did not state any length of notice. The letter (exhibit D3) alleged to have been given to the claimant is dated 29th February 2019, the same date the claimant had a discussion with DW in his office and was informed of his termination. DW did not state at what point the letter was given to the claimant and he refused to accept; whether before, during or after the meeting of 29th February 2019. In the letter of April 12, 2016 written by the claimant to the defendant(exhibit C4) at page 4 paragraph 2, the claimant stated that in the office of DW, after he was informed that his employment had come to an end, he insisted that his contract provides for termination in writing and that he would prefer the company followed the procedure. In another letter dated April 14th 2016 (exhibit C7) written by claimant to the defendant, he again, at paragraph 2 stated in part that:
Thirdly, that I was shown three unsigned letters of termination, two of which were purportedly meant for me as an afterthought and unacceptable because I had already left the company before these were shown to me and till date no letter of termination of my contract was ever issued to me even when I demanded for it as per contract terms under item 2.
Again, the letter of 28th April 2016 (exhibit C8) written by claimant’s solicitors at paragraph two stated that claimant’s contract of employment was terminated verbally without complying with the terms of the contract of employment. I find no correspondence from defendant rebutting these assertions prior to the commencement of this suit. I find this act of non-denial suggestive of admission. Section 20 of the Evidence Act, 2011 provides that “An admission is 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 this Act.” See Onoba v. Abuja Building Products Ltd &Ors(2014) LPELR-22704(CA) and the case of Registered Trustees Anacowa Motorcycle Owners & Riders Association &Ors v. NUT Endwell Micro Finance Bank Ltd(2018) LPELR-46749(CA). I therefore find that claimant’s employment was terminated, 15 days before its due date for termination, without written notice by the defendant as required by the contract document. I find this to be a breach of the contract between the parties.
The defendant’s assertion that claimant was unable to perform the functions for which he was appointed and that that led to his termination is not proved by evidence. Rather, claimant has furnished evidence of his discharge of the functions of his office by exhibits C5, C12, and C13. The issue of claimant having been employed for a particular project is also not proved, as none of the exhibits tendered establishes that.
- 18. Issue 4 is whether the claimant having worked in the defendant’s company and paid his personal income tax, under PAY AS YOU EARN (PAYEE), he is entitled to a certificate of tax deductions from the defendant.Parties are agreed, as evidenced in exhibit C1, and conceded in evidence, that tax was deductible and was in fact deducted from claimant’s salary on the basis of ‘PAYEE’, to be remitted to the LIRS. The case of the claimant is that the defendant paid his salary without issuing to him any pay slip evidencing the tax deductions and that he needs a certificate to enable him obtain tax clearance certificate from LIRS. Defendant states in response that though taxes were deducted from the claimant’s salary for the period during which the claimant worked for the defendant, that his tax deduction, like other employees’ tax deductions were remitted in bulk to the Lagos State Inland Revenue Service (LIRS); and that the practice in accordance with LIRS is that it does not issue any tax certificate until a person has worked and paid tax consecutively for three years.The DW during cross examination admitted that the defendant was not in the habit of paying staff salaries together with pay slips.
Since parties are agreed that tax deductions were made in accordance with the contract(Exhibit C1) and to be remitted to the Lagos State Inland Revenue Services (LIRS), and no pay slips were issued to evidence the tax deductions and payment, it is imperative that defendants show evidence of this deduction, and the further remittance to the state tax authority. Apart from flowing from the contract of employment, it is also a statutory duty hence the need for defendant to show proof of compliance. It is part of the inherent and innate powers of courts to make consequential orders to directly or indirectly promote and ensure proper administration of justice – Tubonemi v. Dikibo (2006) 5 NWLR (Pt. 974) 565 at 582 – 583 (CA). See also EYIGEBE v. IYAJI (2013) LPELR-20522(SC). In the case of Noekoer v. Executive Governor of Plateau State &Ors(2018) LPELR-44350(SC), the Supreme Court held, per SANUSI JSC as follows:
The Supreme Court had made clarifications on matters pertaining to consequential orders and I specifically refer to the case of ChigozieEze& 147 Ors v Governor of Abia State &Ors (2014) 7 SCNJ 38 at 57 – 88 thus:
“A consequential order is an order that gives effect to a judgment it gives meaning to the judgment. It is traceable or following from the judgment prayed for and made consequent upon the relief claimed by the Plaintiff. A consequential order must be incidental and flow directly and naturally from reliefs claimed. It is an offshoot of the main claim and it owed its existence to the main claim. It gives effect to the judgment already given.”
In his contribution W. S. N. Onnoghen JSC (as he then was) at page 60 paras 15 – 25 had this to say:
“It is under the above general principle of law that another principle was developed or emerged; that of consequential relief is a principle that enables a Court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the Court do justice between the parties. It is in line with the above that this Court ordered payment of salary and wages for the intervening period even though not expressly claimed.”
See also SuleEyigebe v. Musa Iyaji (2013) SCNJ 428 at 445 – 446.” Per PETER-ODILI, J.S.C. (Pp. 41-42, Paras. C-C).
In furtherance of the above, it is hereby ordered that defendants file in court, within 14 days of this judgment evidence of and or proof of tax deductions from the claimant and further, evidence of its remittance to the Lagos State Inland Revenue Services (LIRS).
- Issue 5 is whether the claimant is entitled to his claims. To resolve this, I would consider each of claimant’s reliefs one after the other. Relief (a)seeks for the payment of the sum of N1,488,000.00 (One million, Four Hundred and Eighty-Eight Thousand naira) only being arrears of salaries owed to the claimant by the defendant for November 2015 to February 2016. Having found under issue 3 that defendant breached the contract when it unilaterally started paying the claimant a reduced salary; I find that claimant is entitled to this relief. I so hold.
Relief (b) is for the payment of the sum of N310,000.00 (Three Hundred and Ten Thousand naira) only being 15 days salary of the claimant for the unexpired period of the contract of employment from 29th February to 14th March 2016. Having found that defendant breached the contract of employment by terminating it 15 days before its expiration without following the terms of the contract, I find that claimant is entitled to this relief; and I so hold.
Relief (c) is for a declaration that the defendant had breached the contract of employment. I have already so found; and hereby so declare that defendant breached the contract of employment.
Relief (d) seeks for an order granting the claimant N5,000,000.00 (Five million Naira) only as general damages. This relief is declined as claimant has not led evidence proving his entitlement to it. On the contrary, claimant has consistently rejected the suggestion by defendant that he was given the job to help his weak financial condition after he left his former employment.
This Court, per OBASEKI-OSAGHAE, in Mr. Olufemi Emmanuel Oyewole v. OlabisiOnabanjo University SUIT NO. NICN/LA/273/2013judgment of which was delivered on November 22nd 2016 found that on the authorities, expenses incurred by a party on Counsel are reasonably compensated. She referred to the cases of Int’l Offshore Const Ltd v S.L.N. Ltd [2003] 16 NWLR (Pt 845) 157 at 179, and Rewane v Okotie-Eboh [1960] NSCC 135 at 139. Relief (e) is for N500,000.00 (Five Hundred Thousand naira) only being cost of prosecuting this suit. Claimant testified that in order to prosecute this matter and recover the arrears of salaries owed to him, he had to consult his solicitors who presented a bill of N500,000.00 (Five Hundred Thousand Naira) only for their services. That, he advanced the sum of N300,000.00 (Three Hundred Thousand Naira) only with a promise to the balance on the conclusion of the case. The letter conveying the bill is dated 10th March 2017 (exhibit C2); the letter of instruction to commence action also conveying acceptance of the bill is dated 15th March 2017 (exhibit C9) and receipt of payment of the sum of N300,000.00 (Three Hundred Thousand Naira) only issued by claimant’s solicitors to him is exhibit C3. The defendant made no response to this relief. The legal fees incurred by the Claimant are a result of the wrongful actions of the Defendant. I am convinced that claimant’s entitlement to this relief is established. I so hold.
- In summary, and for the avoidance of doubt, claimant’s action succeeds, except for relief (d) which is declined. Defendant is ordered to pay to the claimant sum of N1,488,000.00 (One million, Four Hundred and Eighty-Eight Thousand naira) only [per relief (a)], the sum of N310,000.00 (Three Hundred and Ten Thousand naira) only [per relief (b)] and the sum of N500,000.00 (Five Hundred Thousand naira) only [per relief (e)] within 30 days from this judgment. Thereafter they shall attract post-judgment interest at the rate of 10% per annum till the date the judgment sums are completely liquidated. Defendant is ordered to file in court, within 14 days of this judgment evidence of and/or proof of tax deductions from the claimant and further, evidence of its remittance to the Lagos State Inland Revenue Services (LIRS).
I make no order as to cost.
Judgment is entered accordingly.
——————————————–
Hon. Justice Elizabeth A. Oji PhD



