Mr. Ayodele Balogun -VS- Notore Chemicals Industries Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

SUIT NO: NICN/LA/192/2015

DATE: DECEMBER 02,2019

BETWEEN:

AYODELE BALOGUN – CLAIMANT

AND

NOTORE CHEMICALS INDUSTRIES PLC – DEFENDANTS

REPRESENTATION:

U Njoku, Esq., (with him, J. Uchenna-Njoku) – for the Claimant;

I.O Uwaifo Esq., (with him Hasiya Nagode, and J. Abukpain, Esq.),

-for the Defendant

JUDGMENT

The Claimant commenced this Suit vide a General Form of Complaintwith the accompanying frontloaded processes dated and issued on 20^th May 2015, against his former employer, basically seeking for payment of outstanding balance of his gratuity entitlement, which he claims that the Defendant did not pay him in full, upon his resignation.

The Claimant’s endorsed Reliefs are as follows:

“1. An Order for immediate payment of the sum of twenty million, five hundred and twenty-five thousand, nine hundred and ninety nine naira, sixty kobo (N20,525,999.60k) being the amount outstanding from the debt owed the Claimant which the Defendant has refused and failed to repay despite repeated demands since 2013.

Interest at the rate of 21% per annum on the above outstanding sum of twenty million, five hundred and twenty-five thousand, and nine hundred and ninety-nine naira, sixty kobo (N20, 525,999.60k) from 1^stOctober 2013 till date of Judgment in this suit and thereafter at the rate of 6% per month from date of judgment until total and final liquidation.

The sum of five million naira (N5, 000,000.00) as Solicitors Fee”.

Upon service of the said court processes, the Defendant though delayed to respond, laterfiled Memorandum of Conditional Appearance of its Counsel dated 2^nd July 2015, and Statement of Defence& Counter-Claim and other frontloaded processes dated 5^th November 2015 and filed on 10^thNovember 2015,wherein the Defendant not only vigorously denied the Claimant’s claims, but also counter-claims against the Claimant, seeking for refund of the sum already paid to him as part-payment of his gratuity, of which the Defendant contends that it was paid in error, as the Claimant was not entitled to any sum at all. In response, the Claimant filed a Reply to the Defendant’s Statement of Defence and a Defence to the Defendant’s Counter-Claim, dated and filed on 31 May 2017, and joined issues with the Defendant on his claims and the Defendant’s counter-claim.

The Suit which was originally assigned to my lord O.O oyewunmi, J and re-assigned to my Lord A.N Ubaka, J, and later to this court, came up for Mention on 13^th February 2018, and Hearing commenced at the proceedings of 18^th April 2018. At the trial proceedings, the Claimant testified for himself as his sole Claimant’s Witness (CW), and adopted his Written Statements on Oath deposed to on 20^th May 2015 and Additional Written Statement on Oath deposed to on 31^st May 2017, and tendered 7 documents, all admitted in evidence and marked ‘Exhibits CB1-CB7’, as described in the modified Claimant’s list of documents dated 14^th May 2015.

At the resumed trial proceedings on 19^th July 2018, CW was thoroughly cross-examined by the Defendant’s counsel. One document (Notore Gratuity Policy for Human Resources version 1 dated November 30 2011) was tendered through CW under cross-examination, admitted in evidence and marked as ‘Exhibit CB8’. The Claimant closed his case after his re-examination by his counsel. Thereafter, the Defendant, through its sole Defendant’s Witness (DW), oneSuanuNkipnee (HR Manager with the Defendant), opened the Defendant’s case for the defence and Counter-Claim. DW adopted the Defendant’s Witness Statement on Oath deposed to on 10^th November 2015, and did not tender any document. DW was rigorously cross-examined by the Claimant’s counsel, and the Defendant’s case was closed.

From the pleadings and testimony of the CW, the case of the Claimant is that he was employed on 1^st October 2008, by the Defendant company, involved in business of fertilizer production and other agro-allied services, as Chief Marketing Officer and until his resignation on 1^st October 2013, he was its Group Chief Operating Officer. CW testified that when he planned to resign to focus on personal business, sometime in June 2013, he informed one Mr. JiteOkoloko, the Group Managing Director/Chief Executive Officer, who told him that his effective date for resignation should be 1^st October 2013, so as to be entitled to certain terminal benefit as gratuity in line with the gratuity policy of the Defendant company. That one OnomeAgomate, the Group HR Manager, also informed him that once he tenders his resignation, he would be advised on his terminal benefits which would be computed and paid to him. That based on the said information, by a letter dated June 14, 2013, sent via e-mail of Wednesday June 19, 2013 to the said OnomeAgomate, he tendered his resignation, indicating that it would take effect on 1^st October 2013. That the e-mail was received and immediately accepted via the Reply e-mail by OnomeAgomate. (exh. CB7).

CW went on that, as a result of his service to the Defendant spanning from 1^st October 2008 to 1^st October 2013, he has become entitled to payment of gratuity upon successful exit from the Defendant Company. That a total settlement package in the sum of N41, 049,999.20 was communicated to him via e-mail of 4^th September 2013 (exh. CB5), out of which only 50% of it, which is N20, 525,999.60 was paid on 15^th June 2014. Claimant further testified thatafter his personal emails demanding payment of the balance (exh. CB4) did not yield result, he contacted his counsel, who, by two letters dated 21^st January 2015 and 29^th January 2015, respectively, his former counsel, LanreOmisore, Esq, wrote to the Defendant twice demanding payment of the said outstanding sum, (exh. CB2).That the Defendant responded via a letter dated 25^th March 2015 (exh.CB3), in which the Defendant admitted the indebtedness and requested for three months’ time to enable it pay the outstanding balance. That on receipt of the reply, his said counsel wrote another letter dated April 1 2015 (exh.CB6) and gave the Defendant 14 days to pay up the debt that has been outstanding for 2 years.

Claimant prayed the court to dismiss the Defendant’s counter-claim seeking refund of the 50% gratuity already paid to him, and hold that the Claimant is entitled to payment of full gratuity as claimed.

On the part of the Defendant, its case are basically same with that of the Claimant but differed markedly on whether the Claimant was entitled to Gratuity payment given the prescriptions for qualification under the Gratuity Policy for Human Resources dated November 30 2011 , tendered through the CW under cross-examination and marked as ‘exh.CB8’.

Defendant’s main contention as testified by DW was that the Claimant did not attain the threshold of ‘continuous service greater than 5 years and up to 10 years’ to be qualified for monetary payment in addition to ‘Testimonial of Service’, which is the only package available for those who were in ‘continuous service up to 5 years’, under the Defendant’s gratuity policy (exh.CB8).

It is also the Defendant’s case that the sum of N20, 525,999.60 already paid to the Claimant was a mistake and it was because of the discovery of the error that the Defendant refused to pay the balance and also seeks refund of it in its counter-claim. Defendant contends that by the Claimant’s resignation letter dated 14^th June 2013, he spent 4 years and 7 months in the Defendant’s employment, and that his resignation was said to take effect on October 1 2013, but his last working day was 30 June 2013.

Defendant further contends that the Claimant’s case lacks merit and should be dismissed while upholding the Defendant’s counter-claim for refund of the sum already paid to the Claimant in error.

Both counsel for the respective parties filed and exchanged their respective Final Written Addresses, wherein they variously canvassed legal support for the position taken by either side.

COUNSEL’S SUBMISSIONS

Submissions by Defendant’s Counsel:

Learned lead Defendant’s counsel, I.O Uwaifo, Esq, in his 24-paged Final Written Address (settled with I.Wilson, Esq, N.E Ogbeide, Esq, J.Abukpain, Esq, and A. Araromi, Esq), dated20^th September2018 and filed on 21^st September 2018, formulated two (2) legal issues for determination. The two issues are: (1)-Whether by a strict application of the Defendant’s Gratuity Policy, the Claimant is entitled to be paid any sum of money as gratuity by the Defendant? In the event that the claimant is not entitled to any monetary payment as gratuity, whether the claimant is liable to refund to the Defendant the N20, 525,999.60k paid by the Defendant as gratuity?; (2)- Whether the claimant is entitled to prejudgment interest and solicitors fees?

Arguing issue (1), learned counsel contended that, claim for gratuity payment is in form of special damages, which requires that the claim should be specifically pleaded and strictly proved based on exact provisions of law or document. And that since employment contract is the bedrock of employee-employer relationship, it is the Claimant’s task to plead and tender evidence of the document that conferred the entitlement to gratuity, failing which his case must fail, as the court is not allowed to look outside the terms stipulated therein in deciding the rights or obligations of the parties. Counsel cited and relied on a myriad of judicial authorities to anchor his submissions, such as:NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC); IgnatiusAnyanw&Ors. v. Aloysius Uzowuaka&ors. (2009)LPELR-515(SC); Osoh v. CBN (2013)35 NLLR (Pt.103)1(CA); Rector, Kwara State Polytechnic v. Adefila [2007]15 NWLR (Pt.1056)42; Okobi v. Sterling Bank Plc (2013)30NLLR (Pt.86)245,and someunreported decisions of this court (certified true copies not supplied).

Counsel further contended that the Claimant was not entitled to any monetary benefit other than testimonial of service (which is mere paper certificate affirming performance during service), given the stipulations of the Defendant’s Gratuity Policy for Human Resources dated 30 November 2013, which prescribes ‘Testimonial of Service’ for employee who served up to 5 years’ and ‘Testimonial of Service, Certificate of Appreciation and an amount equivalent to 25% of the gross annual salary per year of total continuous service’ . Counsel pointed that it even going by the contention of the Claimant that his resignation took effect on 1^st October 2013, still, the total number of years served by the Claimant was not more than 5 years from 1^st October 2008 to 1^st October 2013, arguing that the effective day of the resignation (October 1 2013) would not count in determining the ‘above 5 year threshold of service’, required to qualify for any monetary benefit.

Counsel further argued that the Claimant’s resignation becomes effective on date of receipt of the letter of resignation by the employer, and as such, the correct effective date of the Claimant’s resignation is June 14 2013 (submission date), and not the 1^st October 2008 contained in the resignation letter. Counsel cited and relied on Yesufu v. Governor of Edo State [2001]13 NWLR (Pt.731)517SC; Adefemi v. Abegunde [2004]15 NWLR (Pt.895)1CA; WAEC v. Oshionebo [2006]12 NWLR (Pt.994)258CA, to the effect that a notice of resignation of employment becomes effective upon receipt by relevant authority. Counsel further pointed that the Claimant had by his email of 21 April 2014, confirmed that he left the services of the Defendant in June 2013, when he expressed in the mail that ‘the end of April will however make it 10 months since I left Notore…’. To counsel, since three months’ notice for resignation was what the Claimant served on 13 June 2013, it would expire in September and not 1 October 2013.It is counsel’s further contention, as to whether the email of 17 June 2013 relied on by the Claimant has varied the contract between the claimant and Defendant, of which counsel answered in the negative, that it does not amount to variation, since it was unilateral.

On the part of the gratuity sum of N20, 525,999.60 already paid to the Claimant upon which he is claiming for the 50% outstanding balance, it is counsel’s spirited contention that the payment was a mistake, as the Claimant was not entitled to any sum at all under the gratuity policy. That it is based on this error that the Defendant counter-claimed against the Claimant to refund the said sum already paid to him in error, and as such, he is not entitled to any further payment by the Defendant, counsel submitted. Counsel urged the court to uphold his submissions and resolve this issue in favour of the Defendant.

On issue (2) – whether the Claimant is entitled to pre-judgment interest and Solicitors fees: Counsel submitted that the Claimant is not entitled to the interest claimed, as interest is not awarded as a matter of course, but must be awarded in line with established principle of awarding interest, enunciated by the Supreme Court in N.M.C.B (Nig) Ltd v. Obi [2010]14 NWLR (Pt.1213)175, to the effect that interest is payable only by based on agreement of parties, customs of trade, and proof thereof. Counsel contended that the Claimant did not prove the claim for interest, and as such, the claim for interest must fail.

On the claim for Solicitors’ fees, counsel argued that the standard of proof for Solicitors’ fees is same as special damages, which should be specifically pleaded and strictly proved. Counsel, pointed that the Claimant failed to satisfy the requirement, as he failed to plead, particularize and lead evidence in proof of the claim. Counsel urged the court to discountenance same.

Submissions by Claimant’s Counsel:

On the Claimant’s part, learned Claimant’s counsel, UchennaNjoku, Esq., in his un-numbered 19-paged Final Written Address (settled with J. Uchenna-Njoku) dated and filed on 5th October 2018, also raised two (2) legal issues for determination:(a). Whether the Claimant is entitled to the payment of the balance of 50% of his gratuity package as computed by the Defendant in 2013 and implemented in part by payment of initial 50%; and (b). Whether the Defendant proved its Counter-Claim?

Canvassing arguments on the issue (a), counsel serialized his submissions on the issue into three sub-heads- (i). The Claimant was in employment of the Defendant till 1 October 2013; (ii). The Claimant is entitled to the balance of his gratuity package; and (iii). The Claimant is entitled to the interest and professional fees claimed. On the Contention (i) – That the Claimant was in employment of the Defendant till 1 October 2013, counsel maintained that by exh.CB7, the Claimant’s effective date of resignation is October 1 2013 even as he tendered his resignation in June 2013. Counsel distinguished the cases relied on by the Defendant’s counsel, to the effect that unlike the instant case which stated effective date of resignation, the letter of resignation in those cases did not state effective date of resignation, and therefore had immediate effect. Counsel pointed that the Defendant did not dispute the exh.CB7 which is the email conveying the resignation letter dated 14 June 2013 which clearly stated the effective resignation date to be October 1 2013.

Counsel urged the court to hold that by exh.CB7, the Claimant’s employment ended on 1^st October 2013, since the court is to give effect to document in its clear and unambiguous words, citing and relying on a myriad of cases such as: Victor Amede v. UBA Plc (2007)LPELR-9043; African Reinsurance Corporation v. Fantaye [1986]1NWLR (Pt.14)113; Anason Farms Ltd v. Nal Merchant Bank Ltd [1994] 3 NWLR (Pt. 331) 241; U.B.N Ltd v. Prof A.O Ozigi[1994] 3NWLR (Pt.333) 385; Isulight (Nig) Ltd v. Jackson (2005)11 NWLR (Pt.937); Egwunewu v. Egeagwu (2007)6 NWLR 6 NWLR (Pt.1031)431.

Counsel clarified that the email of 21 April 2014 which the Defendant’s counsel was relying on to contend that the Claimant actually left the Defendant’s employment in June 2013, was misleading as that mail was written long after the Claimant’s terminal date of 1^st October 2013. Counsel contended that the Defendant failed to tender its payroll to disprove that the Claimant was no longer in its pay roll as at 1 October 2013. Counsel argued that such refusal to tender the pay roll in its custody despite being requested by notice to produce amounts to withholding evidence. Counsel urged the court to so hold, relying on West African Chemical Co Ltd v. Caroline poultry Farm (Nig) Ltd (1999) LPELR-6228 (CA), to the effect that presumption in law is that evidence which could be, and is not produced would, if produced be unfavourable to the person who withholds it, as provided for in S.149 (d) of the Evidence Act. Counsel further submitted that even the DW under cross-examination accepted that he was aware that that the Claimant received salary from Defendant up till 1^st October 2013’. Counsel urged the court to give effect to such admission by the DW under cross-examination, and resolve the contention of the actual date of resignation in favour of the Claimant by holding that the effective date was 1^st October 2013 and not June 2013 as contended by the Defendant.

On the Contention (ii) – Thatthe Claimant is entitled to the balance of his gratuity package: It is counsel’s stout submission that the Claimant is entitled to payment of the outstanding balance, having been entitled to the gratuity package and having already been paid 50% of the total package sum. Counsel agreed with the submission of the Defendant’s counsel, that such entitlement must be found in the contract of employment to be payable. He refers to the page 3 of exh.CB8 (the gratuity policy document), which was tendered by the Defendant through the CW during cross-examination, and contended that the provision relating to entitlementincludes the Claimant who served up to 5 years, and such satisfied the requirement to be entitled to payment of gratuity in money value and not just testimonial/certificate, as canvassed by the Defendant’s counsel.

Counsel further argued that exh. CB8 forms part of the contract of employment, which would be interpreted together with exh. CB1, being an email by a responsible officer of the Defendant clarifying when the resignation can take effect to enable the Claimant benefit from the gratuity policy (exh.CB8). Counsel contended that such clarification was neither a variation of the contract nor a new contract. Rather, it is an interpretation of exh.CB8, and as such not in conflict with exh.CB8. That the Defendant relied on the said interpretation given by its responsible officer in charge of Human Resources ( AnomeAgomite- HR Manager), and computed the Claimant’s gratuity, and in deed commenced payment of the 50% of the computed sum, leaving a balance of 50%.

Counsel further argued that the Claimant’s gratuity payment was calculated on the basis that the Claimant attained 5 years of continuous service with the Defendant, effective 1^st October 2013, and as such the Defendant is obliged to pay the balance having been satisfied of the Claimant’s entitlement to gratuity payment and made part payment of 50%. It is counsel’s further submission that by exh.CB3, the Defendant admitted owing the balance and sought for time to pay up the balance. Counsel contended that it is surprising that it is an external adviser that the Defendant relied on to negate the intention of the policy, which it has implemented already. Counsel urged the court to so hold that the Claimant is entitled to payment of the balance sum of the 50% of the calculated entitlement.

On the Contention (iii) – Thatthe Claimant is entitled to the interest and professional fees claimed: Counsel submitted that the essence of interest is that the creditor’s money has been withheld and denied him the profit he might have made if he had to use his money, or the loss suffered for not having the use of the money.Counsel contended that the Defendant having not paid the Claimant despite several demands and promise to pay, it deprived the Claimant the use of his money and therefore liable to pay interest on it.

Arguing that the Claimant is entitled to award of interest on the unpaid balance sum, counsel submitted cited and relied on N.MB P LC v. Aiyedun Invest. Ltd [1998]2NWLR (Pt.537); PetgasRes.Ltd v. Mbanefo [2007]6 NWLR (Pt.1031)545, to the effect that pre-judgment interest can be awarded not just on agreement of parties or mercantile custom or equity, but can also be awarded even if not pleaded and evidence adduced, like damages, as such interest naturally accrue from failure to pay the sum involved over a period of time which deprives use and enjoyment of the sum involved.

On the cost of legal representation, counsel submitted that the Claimant engaged and retained services of counsel throughout the proceedings of this suit, of which the Defendant did not dispute, and hence admitted the liability of this aspect of the Claimant’s claims. Counsel urged the court to so hold.

In respect of issue (2) – Whether the Defendant proved the Counter-Claim: Learned counsel answered in the negative, submitting that the Defendant never tendered any document or led evidence in proof of its Counter-Claim. Counsel contented that under cross-examination, DW admitted that it never made a demand of payment of the part of the gratuity to the Claimant, which it claimed was made in error. On that note, counsel urged the court to dismiss the Counter-Claim as lacking in merit.

At the resumed proceedings of 17^th September 2019, both counsel adopted their respective Final Written Addresses, adumbrated on same, while counsel urged the court to uphold their divergent position in favour of their respective parties. During the proceedings, I had raised,suomotu, an issue of applicability of the issue of estoppel by conduct, and had called on both counsel to address the court on the issue, as part of the legal issues to be considered in the resolution of the legal issues formulated and canvassed by the respective parties’ counsel, particularly as regards the Counter-Claim which seeks to recover already paid gratuity to the Claimant.

Addressing the said issue of estoppel raised suomotu by the court, learned Defendant’s counsel submitted that the issue of estoppel did not avail the Claimant. To counsel, for the principle of estoppel to apply, the Claimant would have acted to its detriment /injury. Counsel submitted that there was no detriment or injury occasioned on the Claimant. And assuming without conceding that estoppel applies, the Claimant ought to have known that he is not entitled to gratuity policy, because he ought to have stayed 5 years, of which he did not.

On the part of the Claimant, learned counsel submitted that the principle of estoppel by conduct applies in favour of the Claimant, and that the Defendant is estopped from denying the representation made to the Claimant, relying on exhs. CB1, CB2, CB3, CB4 and CB6, which all demonstrated unequivocally the Defendant’s representation and Claimant acted on it. Counsel further submitted that even by exh.CB3, the Defendant also acted on its own representation and actively made the Claimant to trust more on it. Counsel further contended, citing and relying on B.P.S Construction Engr. Co. Ltd v. FCDA (2017)LPELR-42516(SC); Tika Tore Press Ltd v. Abina (1993)12SC79, to the effect that where one party by his word or representation made another to act , the legal relationship will be accepted as modified. Counsel submitted that the estoppel by conduct applies not only to the Counter-Claim but also for the main claim of recovery of the balance owed.

Judgment was thereafter reserved.

COURT’S DECISION

I have keenly followed the proceedings and observed Witnesses testify and noted their demeanors, as well as evaluated the evidence tendered as exhibits in the proceedings. I have also intensively reviewed the processes filed and exchanged by the parties along with the submissions canvassed in the Final Written Addresses filed and exchanged by respective counsel in advancing the case of their respective parties.

Both Counsel formulated two but divergent issues each, for determination in their respectiveFinal Written Address, and canvassed theirrespective submissions in advancing their viewpoints.

The Defendant’s issues are:

(1).Whether by a strict application of the Defendant’s Gratuity Policy, the Claimant is entitled to be paid any sum of money as gratuity by the Defendant? In the event that the claimant is not entitled to any monetary payment as gratuity, whether the claimant is liable to refund to the Defendant the N20, 525,999.60k paid by the Defendant as gratuity?;

(2).Whether the claimant is entitled to prejudgment interest and solicitors fees?

The Claimant’s issues are:

(a). Whether the Claimant is entitled to the payment of the balance of 50% of his gratuity package as computed by the Defendant in 2013 and implemented in part by payment of initial 50%; and

(b). Whether the Defendant proved its Counter-Claim?

Claimant’s counsel also serialized his submissions on the issue (1) into three sub-heads- (i). The Claimant was in employment of the Defendant till 1 October 2013; (ii). The Claimant is entitled to the balance of his gratuity package; and (iii). The Claimant is entitled to the interest and professional fees claimed.

Upon review of the issues raised and canvassed submissions by both counsel, I have observed that the issues set out for determination are common to both sides, though presented in different manner, which needs to be clearly set out, as the Claimant did in the serialized arguments on the issue(1). That approach had brought forth the main contentious areas of the dispute between the parties. I have adopted that model but modified same, and have formulated three (3) key issues in addition to the 4^th issue, which is the one raised suomotu by the court.

To my mind, the modified issues now set out for determination in the main suit are:

When did the Claimant’s resignation take effect, and how long did the Claimant stay in the Defendant’s employment?
Whether the Claimant is entitled to payment of gratuity under the Defendant’s gratuity policy?
Whether the Defendant is entitled to the balance of the gratuity payment?
Whether the principle of estoppel by conduct applies in the circumstance of the case?

For the Defendant’s Counter-Claim, although the Defendant’s counsel did not raise a separate issue in respect of the Counter-Claim, the second part of its issue (1) alludes to the Counter-Claim. It states “In the event that the claimant is not entitled to any monetary payment as gratuity, whether the claimant is liable to refund to the Defendant the N20, 525,999.60k paid by the Defendant as gratuity?” On the other hand, theClaimant’s issue (b) deals with the Counter-Claim. It states: Whether the Defendant proved its Counter-Claim?

I have observed that sole issueraised and submissions thereto, by each of the both counsel, are similar. The sole issues and arguments in support by respective counsel would be extracted and considered in the part of the Judgment on the Counter-Claim. The sole issue as modified is set out as– Whether the Defendant is entitled to the refund of the gratuity payment already paid to the Claimant?

On that note, the issues set out in the main suit and the reliefs sought by the Claimant would be considered first.

On issue (1)- When did the Claimant’s resignation take effect, and how long did the Claimant stay in the Defendant’s employment: Both counsel had maintained end- point positions on this issue underpinning the core of the dispute between the parties. Interestingly, both sides lay common reliance on exh.CB7. This piece of evidence contains the Claimant’s resignation letter dated June 14 2013and accompanied by his forwarding email of Wednesday June 19, 2013 9:10AM andthe replyemail by OnomeAgomate (said to HR Manager) on the same day 19 June 2013 13:41 and copied to JiteOkoloko (said to be the MD/CEO), by which the Claimant’s said Resignation was said to be accepted. This is commonly agreed by the parties, but what was vigorously disputed is as to when the Claimant’s said resignation took effect; whether it is on the date of receipt by the Defendant, which is June 19 2013 or when it was expressed to take effect, which is October 1 2013.

The relevant portion of the exh.CB7 dated June 14 2013, but sent in by the Claimant and received and acknowledged/accepted by the Defendant via June 192013 emails, respectively, reads in third paragraph thus: “We are at a stage in this organization I am no longer able to add value. I am obliged therefore to resign from the company effective 1^st of October 2013”. It is this portion of this exhibit that calls for interpretation.

While the Defendant’s counsel holds the view that resignation takes effect upon notification receipt, the Claimant’s counsel disagrees, noting that such only applies automatically upon notification where no effective date was stated. That was the basis of the distinction drawn between the cases relied on by the learned Defendant’s counsel and the instant case. The law relating to resignation as an employment exit route is quite clear on effective date of commencement. Where date is not provided in the resignation or notice period is to be paid for by ‘salary in lieu of notice’, it takes immediate effect upon receipt of resignation, but when effective date is provided, mostly to observe notification period in the contract of employment, it becomes effective on the last day of the notice period. I find that this instant case belongs to the later scenerio, as the Claimant had stated that he sent in the resignation to give at least three months’ notice to the Defendant and be positioned to obtain terminal benefit in line with the Defendant’s gratuity policy as explained by the Defendant’s officer (Human Resources Manager- OnomeAgomate) in exh. CB1 (email exchanges of 17 June 2013).

On that note, I find that the Claimant’s resignation took effect on October 1 2013, as contained in the letter of resignation dated June 14 2013. I so hold.

Another segment of issue (1) is as to how long the Claimant stayed in the Defendant’s employment:The answer quite depends on the period of the Claimant’s employment history, spanning from commencement and its end by resignation. From the records, it is not in dispute that the Claimant was employed by the Defendant as a Chief Marketing Officer on October 1 2008 and he resigned effective October 1 2013. Arguments were traded by both counsel as to whether the Claimant in deed worked with the Defendant and earned salaries between the period he tendered resignation in June 2013 and when the resignation took effect on October 1 2013. When Claimant’s counsel asked DW under cross-examination: “Are you aware that the Claimant received salary from the Defendant up till 1^st October 2013?” DW answered: “Yes, I am aware”.

It is noteworthy and settled principle and practice of labour relations that where resignation did not take immediate effect but differed to a later date of notice period, the employee remains in employment, and thus subject to all disciplinary measures until the last day of the effective date of resignation. Consequently, where such an employee errs by way of absenting from workplace without excuse/ justifiable reason, the employer reserves the right to invoke its unfettered power of discipline over its erring employee.Otherwise, such errant conduct is deemed condoned by the employer, which also reserves right to condone an indiscipline act of the employee. I have maintained similar position in Grant Mpamugo v. CAT Construction Group Ltd & Anor. (Unreported suit no.NICN/LA/660/15, Judgment of which was delivered on 20^th September 2019).I adopt same in resolving this aspect of the issue.

I find no evidence of any disciplinary measure given by the Defendant against the Claimant for walking away and staying off duty from the time he tendered resignation in June 2013 and October 1 2013 when his resignation took effect, as alleged by the Defendant’s counsel. What I rather find is that the Claimant received his salaries all through to the end of his employment in October 1 2013, as admitted by the DW under cross-examination by the Claimant’s counsel. Consequently, I find that the Claimant’s continuous employment history with the Defendant spanned from October 1 2008 to October 1 2013; a period of 5 years and one (1) day. I so hold.

On issue (2)-Whether the Claimant is entitled to payment of gratuity under the Defendant’s gratuity policy: From the records, both side of the litigation divide were sharply divided on this issue even though relying on the same piece of evidence- exh.CB8 (Defendant’s Gratuity Policy for Human Resources dated November 30 2011). Defendant had contended that the Claimant did not have evidence of any contractual document evidencing his claim for gratuity in monetary value, and that the 50% already paid him was made by error and not backed by any contractual document between the parties, and sought to be refunded by the Counter-Claim. On his part, the Claimant insisted that his claims are part of his contract of employment, and relies on the same piece of evidence (exh. CB8), which was adversely tendered by the Defendant through him under cross-examination. Yet he found it useful to his case and also relies on same.

I have done a holistic evaluation of the exh.CB8. I find that the version presented by the Defendant is a table in page 4 (prescribed amounts for Gratuity payments), which in the columns for ‘Number of years’ service and Amounts of Gratuity’ stated that “Continuous service up to 5 years is ‘Atestimonial of Service’. And any monetary payment is for ‘Continuous service greater than 5 years and up to 10 years’, which includes ‘Testimonial of service, certificate of appreciation and an amount equivalent of 25% of the gross annual salary per year of total continuous service’.

The Claimant did not agree to that version in the table as exclusive provision for gratuity entitlement, as it appears contrary to the portion prescribing the gratuity policy of the Defendant. He relies on page 3 of the said exh.CB8 (which prescribes the policy). It reads:

“All regular employees who have been in continuous service for a period of 5 years and above shall be entitled to a Testimonial of Service, a Certificate of Appreciation, a cash payment, an asset or a combination thereof in appreciation to that employeefor their past commitment to the organization.

Employees, who have been in continuous service for a period less than 5 years, may be given a token of appreciation in the form of Testimonial of Service, a Certificate of Appreciation, a cash payment, an asset or a combination thereof in appreciation to that employee for their past commitment to the organization.

Gratuity payments, when made, are in in addition to any remuneration which the employee is entitled to under a contract of employment, enterprise agreement or award”.

From the tenor of the above provisions of the Gratuity Policy, I find that once an employee attains 5 years of continuous service with the Defendant, such an employee shall/must be entitled to not only cash payment as gratuity but also other testimonials and certificate of appreciation and or asset gift. Otherwise, if the employee did not attain 5 years continuous service, the Defendant may/ with its discretion pay any monetary gratuity. I find also that by exh.CB8, eligibility for payment of gratuity by employee who though attained the prescribed years of continuous service but leaving by resignation is entitled only if such resignation is not as a result of performance management report or investigation being conducted by the Defendant. In the circumstance of the Claimant, I find that he has attained 5 years of continuous service with the Defendant and there was no evidence disputing that he resigned willfully and there was no evidence of any skirmish of probe or low performance tainting his voluntary resignation. I so hold.

I find also an apparent conflict between the prescription of the table in page 4 and that of the policy prescription in page 3 of the exh.CB8. While the policy statement in page 3 has only threshold of 5 years of continuous service, the table not only has a threshold of 5 years continuous service, but divided the 5 years threshold into two folds; one is without cash payment if it is only attaining 5 years, and the second is 5years plus up to 10 years i.econtinuous service period of above 5 years up to 10years, and that is the one attached with monetary payment.

In resolving this issue, I have formed the view that although a court of law does not form the habit of making agreement for the parties while embarking on interpretative duty in construing an agreement, yet, where parties in their own agreement are not in tandem as to the exact intention of the parties therein, the court in invoking its interpretative jurisdiction, is empowered and is at liberty to distil the contract with aim of finding out and bringing to the fore the true intention of the parties. See: Cannitec Int’l Co. Ltd. v. SolelBonch (Nig.) Ltd.[2017] 10 NWLR (Pt. 1572) 66 at page 80, paras. A-B.

I am also persuaded by the submission of the learned Claimant’s counsel on holist approach of construing the exh.CB8 to harmonize the diverse provisions therein. Counsel had cited and relied onAshaka Cement plc v. AsharatulMubashshurun Investment Limited (2016) LPER-40196(CA), to the effect that in interpreting a document, “the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts..”

I also note that it is part of the court’s equitable jurisdiction to preserve earned benefits, particularly those of pecuniary nature, and court usually tilt towards resolving such emerging controversy in favour of the beneficiary rather than in favour of one trying to take away or expropriate the benefit. I have taken such position in Ekeoma Aja v.Fidelity Bank(unreported suit no. NICN/LA/588/2017 (Judgment of which was delivered on May 14 2019).

On the whole, I find that the Claimant having attained 5 years continuous service, by being in the continuous employment of the Defendant between October1 2008 and October 1 2013, is therefore entitled to monetary payment of gratuity, as already calculated by the Defendant, to the tune of N41, 049,999.20(forty one million, forty nine thousand, nine hundred and ninety nine naira twenty kobo) of which the sum of N20, 525,999.60 (twenty million, five hundred and twenty five thousand, nine hundred and ninety nine naira, sixty kobo), representing 50% of the gratuity payment has already been paid by the Defendant to the Claimant on 15^th June 2014. I so hold.

On issue 3-Whether the Defendant is entitled to the balance of the gratuity payment: It is common ground between the parties that there is an outstanding 50% payment to the tune of N20,525,999.60 (twenty million, five hundred and twenty five thousand, nine hundred and ninety nine naira, sixty kobo), representing 50% of the balance of the gratuity payment. While the Claimant had pressed demands, both personally and through counsel, for payment of the outstanding balance, the Defendant who earlier agreed to pay and pleaded for extended time, later turned round in the suit to contend that it made mistake to pay the part-payment, and no longer liable to pay the balance.

I have evaluated relevant exhibits relating to the claim for the balance, particularly, exhs. CB2 (Claimant’s solicitors’ demand letters dated 21^st January 2015 and 29^th January 2015); exh. CB3 (Defendant’s reply letter dated 25^th march 2015 on the Claimant’s demand for outstanding gratuity); exh. CB 4 (various email exchanges by the claimant and principal officer of the Defendant on the outstanding balance) and exh. CB6 (Claimant’s solicitors’ reply letter dated April 1 2015 to the Defendant’s response of 25^th March 2015). Of most relevant is the Defendant’s response to the various demands for payment of the outstanding balance by the Claimant. It reads:

“Notore

25^th March 2015

Omisore& Co

16^th Floor, Western House

8-10 Broad Street, Lagos.

Attn: Mr. LanreOmisore

Dear Sir,

RE: OUTSTANDING GRATUITY PAYMENT- MR. AYO BALOGUN

Our meeting at your offices on Friday 20 March 2015 refers.

At the meeting on Friday, we discussed Notore Chemical Industries Plc’s (Notore) ability to pay Mr. Ayo Balogun any outstanding amount due him as his gratuity payment. While we understand Mr. Balogun’s concerns at the delay, I however explained the gas challenges that the company previously faced, the fact that we believe that we have overcome that challenge as of January 2015and circumstances that may have led to Mr. Balogun feeling entitled to the gratuity.

While Notore may intend to pay Mr. Balogun his gratuity, we would request for some time to enable the company to begin to effect it. To this end, kindly request that Mr. Balogun give the company three months to begin payment of any outstanding that may be due to him.

Yours faithfully

For: Notore Chemical Industries Plc

(sgnd) Dapo A. Otunba

Group General Counsel”

I find the exh. CB6as admission by the Defendant of liability to pay the balance given the tenor of this letter by the Defendant in response to the demand for payment of the outstanding balance of the part payment of the full gratuity entitlement, earlier calculated and agreed to, and part payment of 50% made by the Defendant.I so hold.

In Popoola v. Babatunde [2012] 7 NWLR (Pt. 1299) C.A 302 @ P 331, para. B, it was held that what is admitted need no further proof. See also: Adebiyi v. Umar[2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, para. G-H,where the court held that “by virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.

I also find the defence of mistake in payment raised by the Defendant in the proceedings as an afterthought, which only arose in the course of defending the suit. There is no evidence on record, of any prior information or dispute as to entitlement to pay the whole or balance of the calculated gratuity payment prior to institution of this matter. The opinion credited to external advice which prompted the defence of ‘mistaken payment’ is not justified and established, and thus, cannot override the obligation to pay outstanding balance by the Defendant. I so hold. In the circumstance, I find that the Claimant is entitled to the balance of the said outstanding gratuity payment in the sum of N20, 525,999.60 (twenty million, five hundred and twenty five thousand, nine hundred and ninety nine naira, sixty kobo).

On issue (4)-Whether the principle of estoppel by conduct applies in the circumstance of the case: This issue was raised suomotu by the court and both counsel addressed the court on the applicability of the principle of estoppel by conduct in the circumstance of the case. Again, divergent views emerged between the counsel for the respective parties. While Defendant’s counsel contended that estoppel did not arise, as there is no detriment/injury suffered by the Claimant by the earlier representation by the Defendant’s principal officers concerning the entitlement and calculation of gratuity payment for the Claimant, on the other hand, Claimant’s counsel holds the view that in deed the principle of estoppel by conduct applies and should be upheld in favour of the Claimant’s case.

Judicial enunciation of the operation of the doctrine of estoppel by conduct has been laid in AfribankNig Ltd v. Anuebunwa [2012]4NWLR (Pt.1291) CA 560 @ Pp. 574-575, paras. F-A, wherein the court held thus:

“The principle of estoppel by conduct is that if one party has by his word or conduct made to the other a promise or assurance which intended to affect the legal relation between them and to be acted upon accordingly, then, once the other party has taken him at his word, and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration”.

Similarly, in AG.,Nasarawa State v. AG., Plateau State [2012]10NWLR (Pt.1309)SC 419 “Pp.449, paras.E-F, P.450 para.C, the Supreme Court held that:

“The doctrine of estoppel by contract is a bar that prevents a person from denying a term, fact or performance arising from a contract that the person has entered into. In the instant case, estoppel operated against the defendant. The defendant was stopped from backing out from the terms of agreement in exhibit NAS4”.

In my considered view, from the totality of the circumstances of the Claimant’s claims, I find that the doctrine of estoppel by conduct applies to prevent the Defendant from resilingin payment of the balance sum of the Claimant’s gratuity payment, of which it has committed to pay the Claimant. I so hold.

Having gone thus far, it is time to consider the Reliefs sought for by the Claimant. Relief (1) is for an Order for immediate payment of the sum of twenty million, five hundred and twenty-five thousand, nine hundred and ninety nine naira, sixty kobo (N20,525,999.60k) being the amount outstanding from the debt owed the Claimant which the Defendant has refused and failed to repay despite repeated demands since 2013.Having made a finding that the Claimant was entitled to payment of the Gratuity payment as earlier calculated and part-payment made by the Defendant, and the balance outstanding should be paid by the Defendant to the Claimant, this Relief(1) succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the outstanding balance of the sum of N20,525,999.60k( twenty million, five hundred and twenty-five thousand, nine hundred and ninety nine naira, sixty kobo) owed to the Claimant as balance of his gratuity payment due to him since 2013. I so hold.

Relief (2) is for payment of Interest at the rate of 21% per annum on the above outstanding sum of twenty million, five hundred and twenty-five thousand, and nine hundred and ninety-nine naira, sixty kobo (N20, 525,999.60k) from 1^st October 2013 till date of Judgment in this suit and thereafter at the rate of 6% per month from date of judgment until total and final liquidation.From the tenor of this relief, it claims for pre-judgment and post-judgment interest. On the pre-judgment interest claim, the Defendant’s counsel had vehemently opposed this relief on ground that no material was presented by Claimant in proof of entitlement to the interest award.

I had held in Alh.SalehBuba v. Adamawa State University Consultancy Services Ltd (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on May 17 2018), and recently in Valentine Nkomadu v. Zenith Bank (Unreported Suit No. NICN/LA/206/2015, Judgment of which was delivered on May 9 2019)thatwherethe Claimant fails to make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages, which is required to not only be specifically pleaded but to also provide sufficient evidence to ground its award, the claim for pre-judgment interest cannot be sustained. In Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, the Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I find that the claim for pre-judgment interest has not been proved with necessary materials to sustain its award. Accordingly this segment of Relief (2) fails, and is hereby refused and dismissed. I so hold.

On the post-judgment award of interest, this is guided by the Rules of the Court and based on the discretion of the court upon review of the circumstances of the case. I also find the Claimant’s fixing of the post-Judgment interest rate as presumptuous, speculative and role-swapping. Accordingly, the part of Relief (2) also fails. Same is hereby discountenanced and dismissed. I so hold.

Relief (3) is asking for the sum of five million naira (N5, 000,000.00) as Solicitors Fee.Defendant’s counsel stoutly opposed same as unmeritorious. I have reviewed same and find that beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost of solicitors’ fees, which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial.Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.

I am however not unmindful that the matter was commenced since 2015, and has been diligently prosecuted by the Claimant, inclusive of defence to Counter-Claim. On that note, I will at the later stage of this Judgment consider and award cost pursuant to Or. 55 R.1&4 NICN (CP) Rules 2017.I so hold.

DECISION ON THE COUNTER-CLAIM

The Defendant had set up a Counter-Claim against the Defendant in its pleading dated 5^th November 2015 and filed on 10^th November 2015, seeking for the following Reliefs: “

(a) The sum of N20,525,999.60 being gratuity payment made to the Claimant/Defendant to Counter-Claim in error

(b) Cost of this action “

The Claimant vigorously opposed the Counter-Claim and filed a Defence to the Counter-Claim as part of his Reply pleading dated and filed on 31^st May 2017. Both counsel raised sole legal issue on the Counter-Claim. A segment of the Defendant’s issue (1) dealing with the Counter-Claim states: “In the event that the claimant is not entitled to any monetary payment as gratuity, whether the claimant is liable to refund to the Defendant the N20, 525,999.60k paid by the Defendant as gratuity?” On the other hand, theClaimant’s issue (b) deals with the Counter-Claim. It states: Whether the Defendant proved its Counter-Claim?

I have reviewed this issue relating to the counter-claim. I find that although a counter-claim is a separate and independent action, nevertheless, the success of this counter-claim depended on the failure of the main suit by the Claimant, as the Defendant did not lay separate evidence to establish the success of the counter-claim. The counter-claim was based on alleged error of gratuity entitlement payment, said to be advised by external adviser of the Defendant. I find that this assertion was not properly established and justified and thus can’t anchor a counter-claim, as it has already failed in the main claim. I so hold.

I also find that the monetary demand in the counter-claim merely arose at the proceedings of this suit, as there was no evidence of the previous demand or any demand at all or any dispute between the parties regarding refund of the already paid part-payment of the gratuity payment to the Claimant. When DW (who doubled as CW in the Counter-Claim) was asked under cross-examination by the counsel for the Claimant/Defendant to the counter-claim: “Apart from the Statement of Defence and Counter-Claim filed in this suit has the Defendant ever requested for the refund of the 50% of the gratuity already paid by the Defendant?”. DW answered: “No”.

From the findings in the main suit, the Claimant is not only entitled to the payment of gratuity payment but also is entitled to payment of the outstanding 50% balance. Consequently, I find that there is no liability on the part of the Claimant to refund the already collected sum, of which by doctrine of estoppel by conduct, the Defendant is estopped from demanding at this stage, having made representations to the Claimant and indeed actually commenced payment of the calculated sum done by responsible officer(s) of the Defendant, of which liability to pay the balance the Defendant expressly agreed to in exh. CB3 (Defendant’s letter of 25^th March 2015). This representation also constitutes admission of the debt by the Defendant, and it is liable and has been so held and directed to pay the said outstanding balance sum to the Claimant. In the circumstance, the Relief (a) of the counter-claim fails and is hereby dismissed.

Relief (b) is for ‘Cost of this action’. I guess this ‘action’ presupposes the counter-claim and not the whole suit (main suit and counter-claim). I however, find no supporting averments in the counter-claim or evidence led to support this mere assertion in the relief portion of the counter-claim, without any iota of explanation of how such cost arose with need for payment thereof, as it ranks as special damages claimed as substantive relief. It therefore fails, and is accordingly dismissed. I so hold.

On the whole, I find that the Counter-Claim lacks merit. It is hereby dismissed in its entirety. I so hold.

For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

Relief (1) succeeds. The Defendant is hereby ordered to pay the Claimant the outstanding balance of the sum of N20,525,999.60k(twenty million, five hundred and twenty-five thousand, nine hundred and ninety nine naira, sixty kobo) owed to the Claimant as balance of his gratuity payment due to him since 2013.
Reliefs (2) and (3) are not successful, same fail and are hereby discountenanced and dismissed.
Cost of N1, 000,000.00 (one million naira) is hereby awarded in favour of the Claimant payable by the Defendant, pursuant to Or. 55 Rules 1& 4 of the NICN (Civil Procedure) Rules 2017.
The Counter-Claim fails as lacking in merit. Same is hereby dismissed.
The above sums shall be payable to the Claimant by the Defendant within 1 (one) month of this Judgment, failing which it attracts 10% interest rate per annum until fully liquidated.

Judgment is entered accordingly.

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HON. JUSTICE N.C.S OGBUANYA

JUDGE

02/12/19