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/172/2015
DATE: NOV. 23, 2018
BETWEEN:
- BALA MOHAMMED YESUFU – CLAIMANT
AND
NIGERIAN BREWERIES PLC – DEFENDANT
REPRESENTATION:
Olufemi Oguntokun, Esq- for the Claimant;
Uche Ihediwa,Esq. (with Malachy Omeye Esq.) – for the Defendant
JUDGMENT
The Claimant commenced this Suit vide a General Form of Complaint dated and issued on 11th May 2015, accompanied with the requisite frontloaded court processes, against his former employer, seeking for recovery of amounts wrongfully deducted from his entitlements when he took early retirement from the Defendant organization, after attaining 20 years of meritorious service with the Defendant.
The Claimant’s endorsed reliefs are for:
“(a). The SUM of N5,331,715.00, being amount of money wrongfully deducted by the 1st Defendant (sic) from the sums due to the Claimant under the terms of the Claimant’s employment with the Defendant’s employment at the time of the Claimant (sic) retirement from the Defendant’s employment on June 6, 2013 plus interest at the rate of 3% from June 6, 2013 until the date of payment of the sum of N5,331,715.00 to the Claimant by the Defendant.
(b). The SUM of N12, 000,000.00 representing compensation for opportunities lost and other general damages suffered by the Claimant as a result of the wrongful deduction of the sum of N5, 331,715.00 from the sums due to the Claimant under the Claimant’s employment with the Defendant at the time of the Claimant retirement (sic) from the Defendant’s employment on June 6, 2013”.
After a delayed response, the Defendant entered appearance and filed defence processes through the law firm of J.T.B Legal Practitioners & Arbitrators, vide Memorandum of Appearance, Statement of Defence and other frontloaded defence processes, along with a Motion on Notice, to regularize the said processes filed and served out of the prescribed time, all dated and filed on 24th June 2015. This firm was later changed to the firm of Uche C. Ihediwa & Co. following the granting of the Application dated 7th October 2015.
The matter first came up before my Lords; O.O Oyewumi, J on 18th June 2015 and A.N Ubaka, J on 6th February 2017, and was later re-assigned to this court and came up for Mention on 30th January 2018. Trial commenced at the proceedings of 19th April 2018. The Claimant opened his case and testified for himself as Claimant’s Witness (CW). He adopted his Witness Statement on Oath of 11th May 2015 and tendered 5 sets of documents, admitted in evidence and marked as ‘Exhibits CB1-CB5’, described in the Claimant’s List of Documents dated 11th May 2015. He was cross-examined by the Defendant’s counsel and his case closed.
Gleaning from his pleadings and evidence at the trial, the case of the Claimant is that he joined the services of the Defendant as an Export Services Manager in 1992, vide a letter of employment dated 1st December 1992 (exh.CB1), and was promoted severally with high responsibilities for 21 years. That by a letter dated 17/5/2013 he gave the Defendant notice of his retirement, which the Defendant replied in its letter dated 24th May 2013 (exh. CB2), confirming that he had met the qualifying age of early retirement, having attained the minimum age of 50 years and served for not less than 20 years. The Defendant however, pointed that he gave only one (1) month out of six (6) months he ought to give, and that sum equivalent to his 5 months’ salary would be deducted from his computed entitlement. That the Defendant did the computation of his severance package and, indeed, deducted the sum of N5, 331,715.00 being deduction for 5 months salary in lieu of early Retirement Notice not served, as shown in the Defendant’s letter of 18th July 2013 (exh. CB3). And that despite his Solicitors letter to the Defendant June 16, 2014 (exh. CB4), the Defendant was adamant, but rather circulated a Memo dated 20th October 2014 (exh.CB5), in which the Defendant sought to re-affirm the Defendant Company’s policy on exit notice period. Claimant contended that the said Memo was done in reaction to objection to the deduction made in his entitlements following his notice of early retirement. To the Claimant, the ‘exit notice’ requirement of 6 months for early retirement was malicious and calculated to punish him for leaving the Defendant’s employment.
On the part of the Defendant, following the granting of the Motion on Notice dated and filed on 18th May 2018, substituting the earlier sole Defendant’s Witness (Niyi Alabi) with a new Witness (Kola Taiwo), the Defendant opened its defence at the proceedings of 16th July 2018. Kola Taiwo, the Defendant’s sole Witness (DW) adopted his Witness Statement on Oath deposed to on 21st May 2018, and tendered 5 sets of documents which were admitted in evidence and marked ‘Exhibits DB1-DB5’, described in the Defendant’s List of Documents dated 24th June 2015. DW was cross-examined and the Defendant’s case closed.
From the testimonies of the DW and the pleadings and documents tendered, the case of the Defendant is that it actually employed the Claimant and accepted his early retirement notice, processed and paid his entitlements , but legitimately deducted the sum equivalent to 5 months salary since the Claimant did not give up to 6 months’ required notice but gave only one month, making 5 months short of the required length of notice of exist for early retirement, which it clarified in the Memo dated 20th October 2014.
It is the Defendant’s contention that the deduction made was in good faith as the normal exit notice period has been 6 months as shown by letters of application for early retirement by other two other staff (exh.DB2-DB4), and that the said Memo (exh. CB5) circulated was done before the Claimant commenced his suit, contrary to the postulation by the Claimant that it was done in anticipation of his suit on the matter.
Both parties joined issues on the appropriate notice period required for early retirement from the services of the Defendant where other conditions are met by the employee. Both counsel filed their respective Final Written Addresses.
COUNSEL’S SUBMISSIONS
Submissions by Defendant’s Counsel:
Learned Defendant’s lead counsel, Uche C. Ihediwa Esq., in his Final Written Address dated 1st August 2018 and filed on 2nd August 2018, raised three (3) issues for determination, viz: (1). Whether this court has jurisdiction to entertain this action? (2)-What terms govern the employee/employer relationship of the parties in relation to retirement, and (3)-What was the Claimant entitled to on opting for early retirement?
On issue (1)- Whether this court has jurisdiction to entertain this action: Counsel submitted that the process before the court shows that contrary to the provisions of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners (RPC) 2007, counsel to the Claimant failed to affix his seal to the court processes as well as the pre-action letter (exh.CB4), with consequential effect, as held by the Supreme Court in A.P.C v. Yaki (unreported: SC/722/15 Judgment of which was delivered on 28/10/17), that failure to affix a lawyer’s seal to a filed process renders the process null and void. Counsel stated that the compulsory Stamp and Seal policy of the Nigerian Bar Association (NBA) took effect from 1st April 2015 and this Suit was filed on 11th May 2015, thereby falling within the take off period of the policy, with consequential effect on non-compliance.
Counsel further contended that it is trite that any defect in jurisdiction renders the action incompetent, and issue of jurisdiction can be raised at any stage of the proceedings, and urged the court to uphold same and dismiss the suit on that account. To buttress his submission, counsel cited and relied on a host of cases on jurisdictional challenge, such as: Madukolu v. Nkemdilim (1962)2NSCC 374; Mitsudau v. Chidari [2008] 16 NWLR (Pt.1114)553; Western Steel Works Ltd v. Iron & Steel Workers Union [1986] 3 NWLR (Pt. 30)617; Okafor v. AG Anambra State [1991]6 NWLR (Pt. 200)665; Achebe v. Nwosu [2003] 7 NWLR (Pt. 818)103; Nonye v. Anyichie [1992]2NWLR (Pt.101)110; Emesi v. Nwachukwu [1999] 3NWLR (Pt. 596)590; Olaniyi v. Aroyehun [1991]5NWLR (Pt.194)692; Sanusi v. Ayoola [1992]9 NWLR (Pt. 265)275.
On issue 2: What terms govern the employee/employer relationship of the parties in relation to retirement: Counsel submitted that it is common ground between the parties that beyond exh. CB1 (offer of employment), the Claimant worked for the Defendant until he took the option of early retirement on attaining the age of 50 years and working for 20 years. Counsel contended that the contract of the employment was not limited to the offer of employment, but also other oral and written documents, as well as the same term as applied to other workers, including circulars, internal memos, etc and relevant collective agreements. He cited and relied on: Fisher v. W.B Dick &Co ltd (1938)4ALL ER 467; Nigerian Airways v. Gbajumo [1992]5NWLR (Pt.244)735; AG Enugu State v.AVOP Plc [1995]6 NWLR (Pt.399)90; Paul Okoro v. Ogara & Ors. (1964)ENLR 99; Baba v.NCATC Zaria [1991]5 NWLR (Pt.192)388@413 and Learned Authors- Oladosu Ogunniyi: “Nigerian Labour and Employment in Perspective” (2nd Ed., Folio Publishers ltd) pp.44-45-; Akintunde Emiola: “Nigeria Labour Law” (4th Ed.)p.74.
Counsel made spirited efforts to distinguish between ‘termination’ and ‘retirement’, and contended that ‘terminate’ means ‘bring to an end’ and retire means ‘leave your job and stop working especially because you have reached a particular age’. Counsel further submitted that since by exh.DB1, the Claimant opted for early retirement, the said retirement came from the company policy (an implied term of the contract), which was reinforced by exh.CB5 (Nigeria Breweries Plc Memorandum dated 20/10/14), which has an opening statement: ‘To re-affirm the company policy on exit period…’
It is also counsel’s contention that exh.CB5 only drew attention to an existing policy’ which stipulates 6 months for retirement (early or compulsory). And to buttress the existence of the policy, exhs.DB2andDB4 were tendered, which were examples of staff that opted for early retirement after putting in 20 years of work and attaining 50 years, and that the exh. DB1 (Claimant’s Application for early Retirement) written by the Claimant is in all fours and has the same content with that of the two other co-employees that utilized the option of early retirement. Relying on Skye Bank v. Akinpelu [2010]9 NWLR (Pt.1225)285; Taiwo v. Adegbenro [2011] NWLR (Pt.1259) 562, counsel submitted that it amounts to admission by the Claimant who also in paragraph 6 of his Statement on Oath averred that he utilized the early retirement option after qualifying by attaining 50 years of age and served for not less than 20 years.
Counsel further argued that both parties are aware of existence of the policy and the Claimant ought to give the required 6 months notice and that he did not even give the three(3) months notice as provided in exh. CB1 tendered by the Claimant. Counsel also urged the court to discountenance the posturing by the Claimant that exh.CB5 was made in anticipation of the suit, arguing that the exh.CB5 was written by one J.E Opara, Head Employees Relations of the Defendant on 20/10/14, who by law , is not a ‘person interested’, and the circular was not re-issued when proceedings was pending or anticipated and the suit was commenced on 11/5/15 and the Claimant’s Notice/Application of early retirement (exh.DB1) was written on 17/5/13. To counsel, the correct position of law is that the rule of acts done in ‘anticipation of proceedings’ are inapplicable to servants of organizations who routinely make documents in line of duty. He cited and relied on Anyaebosi v. R.T Briscoe Nig. Ltd [1987]3 NWLR (Pt.59); Highgrade Maritime Services Ltd v.FBN Ltd [1992]1NWLR (Pt.167)290, wherein the apex court, per Karibi-Whyte JSC, held that: “where, however, the interest of the maker is purely official or as a servant without direct interest of a personal nature, there are decided cases that the document is not thereby excluded”.
On issue (3)-What was the Claimant entitled to on opting for early retirement: Counsel presented two options for consideration by the court in determining what the Claimant is entitled to. Counsel posited that, if the court holds that only exh. CB1 (offer of employment) regulates the contract of employment between the parties the applicable notice period for exit would be 3 months. And since the Defendant acknowledged one (1) month notice served by the Claimant, the Claimant would be entitled to payment of entitlement less than two (2) months shortfall of his notice. That would be N5, 331,715.00 (deducted for 5 months) – (N1, 066,343.00 per month x 2 months notice shortfall). On the other hand, according to counsel’s postulation, if the court agrees that the notice period for early is six (6) months, the entire claim would fail.
On the relief for the sum of N12, 000,000.00 as compensation for opportunities lost and for general damages claimed by the Claimant, counsel urged the court to treat same as abandoned claim and strike out the claim, since no evidence was led or sufficient particulars pleaded to support such claim. Counsel cited and relied on Registered Trustees B.C & S v. Edet [2016]5NWLR (Pt.1505)387; Akande v. Adisa [2012]15 NWLR (Pt.1324)538; Owosho v. Dada (1984)7NSCC 149; S.75 Evidence Act 2011.
Counsel finally urged the court to uphold his submissions and dismiss the suit with cost in favour of the Defendant.
Submissions by Claimant’s Counsel:
Learned Claimant’s counsel, Olufemi Oguntokun, Esq., in his Final Written Address dated and filed on 17th September 2018, raised a sole issue for determination- Whether the terms governing the length of notice required to terminate the Claimant’s contract of employment as at the date of exh. DD1 (sic) i.e 17th May 2013 are (sic) as contained in (a) Exh CD1 (sic) as alleged by the Claimant or (b) the undocumented and unidentified “age long” policy alleged by the Defendant? Canvassing argument on the sole issue, counsel contended that exh.CB1 constitutes the only valid documentary evidence of the employment contract between the parties, and same can no longer be denied by either party, since exh.CB1 is the only pleaded contract of employment in the suit, and the Defendant did not plead or furnish any other employment contract.
Counsel submitted that although the Defendant pleaded ‘age long’ policy that requires the Claimant to give it six (6) months notice, no evidence was led at the trial to establish same. Consequently, since no evidence was raised to sustain the said pleading which was not admitted by the Claimant, the averment is deemed abandoned. Counsel cited and relied on: UBA v. Astra Buildings (WA) Ltd (2010)41 NSCQR (PT2)1016; Buhari v. Obasanjo [2005] 2NWLR (Pt.910)241; Yesuf v. Oyetunde [1998]12 NWLR (Pt.579)483.
Counsel further contended that exhs.‘DB2andDB4’ are not appropriate document to establish the policy of ‘6 month notice for early retirement’, since they are separate letters written by individual employees, to which the Claimant is not privy to, and nothing was shown to establish that the individual contracts of such employees contain the same terms like the Claimant’s own. Counsel then urged the court to discountenance and expunge the exhs.‘DB2andDB4’, as being irrelevant to the issue in dispute. Counsel further contended that ‘exh. CB5’ is not admissible being document made by the Defendant as interested party in the suit when the suit was anticipated upon service of exh.CB4 (the Claimant’s Solicitors’ letter. Counsel urged the court to attach low evidential weight to exh.CB5, since it did not identify when the alleged policy of 6 months notice became operative but merely made reference to it. He cited and relied on S.83 (4) Evidence Act 2011; Magaji v. Ogele (2012) LPELR 9476.
On the whole, counsel urged the court to hold that on the basis of preponderance of evidence led at the trial, it is the offer of employment (exh.CB1) that governs the employment relationship between the parties, and which provides 3 month notice for termination, out of which the Claimant has given 1 month leaving a balance of two (2) months. Consequently, the Claimant would be entitled to the sum representing two months out of the five (months) deducted by the Defendant, which would amount to N3, 199,029.00.
On the preliminary jurisdictional issue raised on the alleged failure by the Claimant’s counsel to affix his Bar practice Stamp on the court processes and pre-action letter, as stipulated by Rule 10(1) RPC, counsel contended that the extant rule has not taken effect as at the time he wrote the pre-litigation letter and signed the court processes on this matter. He urged the court to take judicial notice of the Circular Ref. NJC/CIR/HOC/171dated 12th May 2015 issued by the Hon. Chief Justice of Nigeria which directed the Heads of Courts in Nigeria to ensure compliance with the NBA Stamp and Seal Policy with effect from 1st June 2015. Counsel argued that neither the pre-litigation letter nor the court processes on this suit were done after the commencement of the policy. Counsel pointed that exh.CB4 was written on 16th June 2014 while the court processes were signed and filed on 11th May 2015, all earlier than the commencement date of the policy on 1st June 2015.
Counsel finally urged the court to uphold his submissions and award judgment in favour of the Claimant.
At the resumed proceedings of 24th September 2018, both counsel adopted their respective Final Written Addresses. By way of adumbration, Defendant’s counsel stated that he has additional authority in support of his issue(1), viz: Yaki v.Bagudu [2015]18 NWLR (Pt.1491)288@299, to the effect that the NBA Stamp and Seal policy commenced on 1st April 2015 and this case was filed on 11th May 2015.
On his part, Claimant’s counsel stated that he would be relying on an additional authority of S.14 NIC Act 2006 to the effect that the court is empowered to determine such remedies as will completely determine the issues in dispute between the parties, given that the sum established by evidence at the trial is lower than the sum claimed. The matter was thereafter reserved for Judgment.
COURT’S DECISION
I have actively followed the proceedings and observed the Witnesses (CW and DW) testify, and noted their demeanors, as well as evaluated the evidence tendered as exhibits in the proceedings, and have 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 the parties they represent.
I will quickly dispense with the Defendant’s issue (1) challenging the court’s jurisdiction on alleged incompetency of the Claimant’s processes, due to the failure of the Claimant’s counsel to affix his NBA Stamp on his pre-litigation letter and court processes on this suit. It is not in doubt and thus, conceded by both counsel that the prescribed NBA Stamp for legal practitioners is required to be affixed on all legal correspondences and court processes prepared by counsel in Nigeria, pursuant to Rule 10(1) RPC 2007. The crux of the dispute is the exact date the policy commenced and its implication on the Claimant’s case for the failure to affix same. While the Defendant posited that the policy was flagged off on April 2015 before the commencement of the suit, the Claimant insisted that it was in June 2015, before he filed his processes in May 2015 and wrote the pre-litigation letter in October 2014.
To start with, I need to dispel the erroneous submission of learned Defendant’s counsel on the correct legal implication of failure to affix NBA stamp on requisite documents/processes, to the effect that the consequence of failure to affix the NBA Stamp, renders the court process and the suit incompetent. According to counsel in his Final Written Address (P.3, para.4.4): “This vexed issue has been interpreted severally by our superior courts. Recently in A.P.C vs. YAKI SC/722/15 decided 28/1017, it was held that failure to affix a lawyers (sic) seal to a filed process renders the process null and void. The apex court was interpreting the implication of Rule 10(1) in the Rules of Professional Conduct 2007”.
However, upon review of long line of judicial authorities and pronouncements on the subject, including the Yaki’s case relied on by the learned counsel, I have come to a settled view that the correct legal consequence for failure to affix the NBA stamp is not to render the process/suit a nullity but to make it voidable as irregularity, capable of being regularized, contrary to the submission of learned Defendant’s counsel.
Although the said Yaki’s case relied on by counsel was not reported, I took time to review a copy of the Judgment, which reveals that the Judgment did not hold the decision which learned counsel ascribed to it. In fact, the Supreme Court per Ngwuta JSC held that such failure amounts to irregularity that could be regularized by affixing the stamp and not to render the suit a nullity. In a concurring Judgment, Ogunbiyi JSC (now Rtd.), held thus:
“The refusal of the document by the registry is a sanction in itself and pending proper signature and affixing of stamp/seal as required by Rule (10)(1). The breach of the rule in my opinion should not be viewed as a substantive infraction but a mere irregularity which can be remedied… Contrary to our earlier release, failure to affix the stamp and seal does not render the process incompetent but irregular or voidable as the court rejected the argument that the effect of not affixing the stamp and seal is to render the legal document incompetent”.
Now back to the real issue concerning the date of commencement of the NBA stamp policy. A further research revealed that the April 1 2015 commencement date for the NBA Stamp policy was a Directive issued by the Nigerian Bar Association(NBA) (See: “The Nigeria Bar Association (NBA) Seal and Stamp Policy: Prospects and Constraints- www.legalnaija.com).
On the other hand, the Directive by the Chief Justice of Nigeria to the Heads of various Courts in Nigeria, vide Circular Ref. NJC/CIR/HOC/171 dated 12th May 2015 directed the commencement of the policy in all Courts in Nigeria to be 1st June 2015. A copy of the said Directive reads: “All Heads of Federal and State Courts shall establish procedures for implementation of the Stamp Policy and its full utilization within all jurisdictions with effect from 1st June 2015”.
From the foregoing analysis, I am left with no doubt that the implementation of the NBA Stamp policy in all Nigerian Courts took effect on 1st June 2015, and I am bound to take judicial notice of the Circular Ref. NJC/CIR/HOC/171 dated 12th May 2015, issued by the Honourable Chief Justice of Nigeria, to that effect. I so hold.
A cursory perusal of the filing endorsements of the court processes on this matter shows that it was filed on 11th May 2015 and the Claimant’s Solicitors letter (exh. CB4) was dated June 16 2014 and received on 18th June 2014. I find that neither the Claimant’s Solicitors’ pre-litigation letter nor the court processes with which the suit was commenced were issued on or after 1st June 2015 when the Stamp Policy took effect nationwide. There is also nothing on record, suggesting that the Stamp Policy was meant to operate retrospectively with retroactive effect. In the circumstance, I resolve the issue (1) against the Defendant’s counsel, and hold that the said Claimant’s processes and his counsel’s pre-litigation letter are not within the purview of the operation of the NBA Stamp Policy, and thus, it was not necessary that the Claimant’s counsel should affix his Bar practice Stamp therein. Accordingly, nothing affected adversely the competency of this suit. It is competent, I so hold.
Have gone thus far, I now proceed to consider the remaining issues raised by the respective parties’ counsel. Having disposed-off the issue (1), what are left are the Defendant’s two remaining issues (2) and (3), respectively viz: what terms govern the employee/employer relationship of the parties in relation to retirement, and what was the Claimant entitled to on opting for early retirement?, and the Claimant’s sole issue for determination: whether the terms governing the length of notice required to terminate the Claimant’s contract of employment as at the date of exh. DD1 (sic) i.e 17th May 2013 are (sic) as contained in (a) Exh CD1 (sic) as alleged by the Claimant or (b) the undocumented and unidentified “age long” policy alleged by the Defendant?
Flowing from an analytical review of the pleadings and judicious evaluation of the evidence led at the trial, with a dispassionate appraisal of the legal arguments canvassed on issues raised in both counsel’s respective Final Written Addresses, I find the following facts as undisputed common ground conceded between the parties:
- Claimant worked with the Defendant for over 20 years;
- Claimant gave one month notice to the Defendant for early voluntary retirement upon attaining age of 50 years and working for not less than 20 years ;
- Defendant approved the retirement but with caveat that since the Claimant did not give 6 months notice, his five (5) months’ salary would be deducted from his calculated severance entitlements;
- The Defendant deducted the Claimant’s five (5) months’ salary in the sum of N5, 331,715.00, calculated from his N1, 066,343.00 monthly salary.
What is however, in dispute and hotly contested between the parties is as to, what constitutes the required Notice period the Claimant ought to give to the Defendant when opting for the early retirement? While the Defendant based its assertion of 6 months’ notice on an ‘age long policy’ of the Defendant Company policy forming part of the contract of employment, the Claimant insisted that he is not bound by a practice which has no documentary basis in his contract of employment.
To my mind, all pending issues for determination would crystallize on this crux area of dispute between the parties, for effectual resolution. To that end, I have further reviewed the remaining issues raised by both counsel for the parties, subsumed and modified same to formulate an all encompassing sole issue, which reads: Whether the Claimant has proved his case of wrongful deduction of N5, 331,715.00 from his entitlements upon his early retirement from the Defendant Company and thus, entitled to the Reliefs he sought?
To resolve the issue, it is time to consider the Reliefs sought for by the Claimant. Relief (a) is for “ N5,331,715.00, being amount of money wrongfully deducted by the 1st Defendant (sic) from the sums due to the Claimant under the terms of the Claimant’s employment with the Defendant’s employment at the time of the Claimant (sic) retirement from the Defendant’s employment on June 6, 2013 plus interest at the rate of 3% from June 6, 2013 until the date of payment of the sum of N5,331,715.00 to the Claimant by the Defendant”.
The Claimant had testified of his over 20 years employment history with the Defendant, spanning from 1st December 1992 when he was employed as Export Services Manager, to 17th March 2013 when he gave a one-month notice opting for early Retirement to take effect June 6 2013, and the subsequent approval by the Defendant and payment of his entitlement but with deduction of 5 months’ salary due to alleged 5 months’ shortfall of the notification requirement for early retirement. Both parties are in agreement with this state of pleadings and evidence led at the trial as it concerns the deduction of the sum of N5, 331,715.00, of which I find as an express and unequivocal admission in civil litigation, in the light of the copious admissions also made in the pleadings of the Defendant and exh.CB3.
What amounts to ‘Admission’ has been clarified by the Supreme Court in Adusei v. Adebayo [2012] 3 NWLR (Pt. 1288) S.C. 534 (Adusei Case) to the effect that: ‘Admission is a statement, oral or written, expressed or implied, which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement’. The apex court further explained @ P. 558, Paras. B-C, that:
“Admission is a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”.
It is trite principle of judicial adjudication in adversarial jurisprudential system of ours, that unless declaratory relief is sought, once an admission is established, proof is no longer required as the burden of proof is automatically discharged, for the simple reason that ‘what is admitted need no further proof’. Judicial support has been laid in Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, Paras. F-G, wherein it was held that: “The rules governing affidavit evidence and pleadings is that when a fact(s) asserted, is not denied or controverted by the adverse party, who has a duty to do so, the same is deemed to be admitted by him (adverse party), and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of section 75 of the Evidence Act”. In the Adusei Case (supra) @ P. 558, paras.A-B, the Supreme Court restated the effect of admission in judicial proceedings, and held thus :”A crucial fact which is admitted needs no further proof and same would be taken as established”. See also: [Agbanelo v. U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534; Edokpolo & Co. Ltd. Ohenhen [1994] 7 NWLR (Pt.358) 511; Seismograph Services (Nig.) Ltd. v. Eyuafe (1976) 9 & 10 SC 135.
As the burden of proof in civil trial is not static but preponderates, (See: M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C; Section 136 (1)(2) Evidence Act 2011), the evidential burden for justification of the deduction of the said admitted sum of N5, 331,715.00 from the Claimant’s severance entitlements shifts to the Defendant. To that end, the Defendant joined issues with the Claimant and took the stand of justifying the deduction, contending that it was based on an ‘age long policy’ of the Defendant’s company to receive 6 months notice from a qualifying employee opting for early retirement. Upon evaluation of evidence laid at the trial, I find that the nearest evidence tendered by the Defendant to justifying the deduction is the Defendant’s Letter dated 24th May 2013 titled ‘Early Retirement’ (exh. CB2/DB3) acknowledging and accepting the Claimant’s Letter for Early Retirement dated 17th May 2013 (exh.DB1). The relevant portion of the exh.CB2/DB3 reads:
“Nigerian Breweries Plc Rc.613
Headquarter Iganmu House, Abebe Village Road, Iganmu
P.O Box 545 Lagos Tel: (01) 2717400-20 Fax: (01)2717442
Our Ref: HRD115/13-181
Date: 24th May 2013
Mr. Bala Mohammed Yesufu
No.42 Omoighodalo Street,
Ogudu GRA, Lagos State.
Dear Mr. Yesufu,
EARLY RETIREMENT
This is to acknowledge receipt of your letter dated 17th May 2013 and to confirm that having met the qualifying age for early retirement i.e minimum of 50 years of age and 20 years of service, your request to proceed on an early retirement from service of the Company has been accepted. It is noted that you gave only one (1) month out of the six (6) months mandatory notice period for early retirement. Please note that the balance of 5 months notice will be taken into account in computing your final entitlement.
Accordingly, your retirement will take effect at the close of business on Friday 7th June 2013 and your right to pension will be as from 8th June 2013.
The General Manager, Progress Trust Ltd, will be requested to calculate your gratuity and pension entitlements and we shall notify you as soon as details of these are available.
——–
Yours faithfully,
FOR: NIGERIAN BREWERIES PLC
Sgnd: Victor Famuyibo
Human Resource Director”.
By exh. CB3 (Final Statement of Account) dated 18th July 2013, the Defendant deducted the sum of N5, 331,715,00 and in note3 thereof, explained that it was “Deduction of 5 months’ salary in-lieu of Early Retirement Notice not served”. The Claimant through his Solicitors, Alfreds & Comforts, in a letter dated June16 2014 disputed the deduction and demanded “for the immediate payment of the unlawfully withheld Entitlements”, contending that the said letters (exh.CB3; CB2/DB3) “did not indicate the documented contractual and/or policy basis for your assertion which contradicts the provisions in our Client’s contractual arrangements with the Company and other relevant company policies in force and applicable to our Client’s employment as at the date of your said letters”.
The Defendant also contended and tendered evidence of similar applications by two other employees- Mr. Paul Harrison Olujimi and Mr. Adewale Makinde (exh.DB2andDB4) who also retired on the basis of 6 months’ notice and affirmed the practice. The Claimant nevertheless, vehemently disputed this piece of evidence as not sufficient evidence to extend the so called undocumented and non-binding ‘age long’ practice to him, more so, as the Claimant was not privy to or had access to the exh. DB2 and DB4, which are supposed to be in personnel files of the individual employees, and does not constitute policy document of the company. When asked under cross-examination by the Claimant’s counsel: “While the Claimant was in the employment, did the Claimant have access to the files of Mr. Paul Harrison Olujimi and Mr. Adewale?” DW answered: “No”.
It is my considered view that it would be stretching the evidence too far to use other employees’ application as a yardstick of determining the existence or non-existence of such important company policy. There is evidence on record that the Defendant Company has HR Policy document and Staff Hand book. See: ‘exh CB2’, where one of the items listed to be returned by the Claimant for processing of his entitlement is “Employee HandBook”. Under cross-examination, DW was asked by the Claimant’s counsel, “Does the Defendant have a document that confirms its HR Policies and Practices?” He answered: “Yes”.
I find it worrisome that none of these important employment relations documents (HR Policy document and Staff Hand book) that would assist to resolve this issue was tendered by either party, particularly the Defendant, who has the evidential burden to establish that the 6 months’ notice for early retirement is part of the Defendant Company’s policy.
What the Defendant rather did was to tender the Memo dated 20th October 2014 (exh.CB5), which seeks to show that the policy has been in existence, gleaning from the tenor of its opening paragraph, which reads: “To re-affirm the company policy on exit period, management has deemed it fit to re-state the information per employee cadre as follows”. It went ahead to prescribe 6 months for Retirement (early or compulsory) for Management cadre, which the Claimant belongs to.
However, the Claimant’s counsel took strong objection not only that there is no document evidencing the existence of the policy which the Memo seeks to ‘re-affirm/ restate’, but that the exh.CB5 was made in anticipation of the litigation, since the Claimant’s Solicitors’ letter of demand with threat of legal redress, preceded the Memo, which was issued subsequent to the said letter. The Claimant’s counsel urged the court to so hold and discountenance that piece of evidence already admitted. Defendant’s counsel opposed and argued that the maker of the Memo acted in official capacity and that it was not made in ‘anticipation of the proceedings’.
Upon examination of the exhibits on record, it is glaring that the Solicitors’ letter was dated June 16 2014 and received by the Defendant on June 18 2014. The Memo was issued and dated 20th October 2014 and the Suit was commenced on 11th May 2015. Much as the letter preceded the Memo, I do not see how that fact without more, impso facto, warrants invoking the provisions of the Evidence Act to declare the exh.CB5 inadmissible evidence being made in ‘anticipation of judicial proceedings’. I so hold.
Still on the existence or non-existence of the disputed 6 months early retirement notification policy, which exh. CB5 seeks to confirm i.e ‘re-affirm/ re-state. Learned Defendant’s counsel had contended that the corpus of employment legal relationship is not limited to only Contract of Employment, but also involves all other practices and directives issued from time to time in the course of employment. He relied on a number of judicial authorities and learned two Authors’ opinions, particularly that of learned Author, Oladosu Ogunniyi, Nigerian Labour and Employment in Perspective (2nd Ed., 2004: Folio Publishers Ltd) pp.44-45, who indicated that employment contractual relationship can be evidenced by ‘oral statements of terms and conditions….’ This is contrary to the submission of the Claimant’s counsel, that in absence of any documentary evidence on record, the only documentary contractual relationship between the parties is the Offer of Appointment letter dated 1st December 1992 (exh.CB1).
Much as I agree with the propositions by the learned Defendant’s counsel, that the corpus of employment legal relationship goes beyond only contract of employment in terms of ‘Offer of Appointment’, I however, take the view that for such practices and directives to constitute the corpus of employment legal relationship, such must be necessarily evidenced in writing in form of Memos, Circulars, Releases, Collective Agreement, Handbooks, HR Policy, Staff Manual, and other forms of corporate documentation at work place, bearing in mind, the legal challenge of establishing ‘oral’ transactions of a corporate body. See: Nelson C.S Ogbuanya, Essentials of Corporate Law Practice in Nigeria (2nd Ed. 2014: Novena Publishers Ltd) P.264-5(nature of company’s contract); Nigeria Dynamics Ltd v. Maimuda Ibrahim [2002] 8NWLR [Pt.768]CA63@103.
In the circumstance, I find that there is no evidence of a written policy of the Defendant Company on Early Retirement Notification prior to the Memo dated 20th October 2014 (exh.CB5). I also find as inappropriate, the introductory expression of ‘Re-affirm/Re-state’ in the said exh.CB5, since there was no prior written policy sought to be re-confirmed by exh.CB5. I also find that other than ‘exh CB5’ which merely seeks to‘re-state’ only the Notice Period for Early Retirement policy of the Defendant Company, nothing in writing was tendered in evidence, to show the said qualifying conditions for entitlement to the Early Retirement said to be upon an employee attaining 50 years of age and serving over 20 years.
I find that there is no comprehensive policy document maintained by the Defendant Company evidencing the key aspects of the Early Retirement Policy, such as Qualifying conditions, Notice period and severance Packages. The ‘exh.CB5’ is not helpful in this regard. It is this kind of anomaly that triggers needless litigation (as in the instant case), and capable of brewing industrial disharmony. It is therefore, my considered view that best practice of labour relations entails that such vital policy of a corporate organization of the size of the Defendant Company with retinue of workforce should not be left in doubt and hazy conjecture of its existence and practice, but should be unequivocally and clearly written in the major Employment Relations Documents, such as the HR Policy Document of the company as well as the Employee Handbook. Accordingly, I take this opportunity to direct the Defendant to take immediate steps to include and incorporate in the Defendant’s HR Policy and Employee Handbook the entitlement conditions and packages for Early Retirement as well as the Exit Notice Period as expressed in the Memo dated 20th October 2014, Ref.ERM.1222/2285 issued by the Head, Employee Relations. I so hold.
Both the counsel for the respective parties had conceded that the Offer of Employment letter dated 1st December 1992 (exh.CB1) constitutes the only documentary evidence of the employment relationship between the parties which made provision for Notice Period in the event of ‘Termination’ at the point of exit of the Claimant. Even though ‘Termination’ and ‘Retirement’ essentially differ, but both connote ‘Exit’. In the circumstances of this matter, I am inclined to resort to and call in aid the exhibit CB1 as the only relevant documentary evidence on the debated issue of Notice Period for exit of the Defendant by the Claimant. The vital portion of the exh. CB1 provides for three months’ notice for a staff that has stayed two years in service (the Claimant had stayed more than even twenty years). It reads: “You may terminate your employment at any time after two years’ service with the Company by giving three months’ notice in writing to the Company or three months’ salary in lieu of notice …”
From the records, as conceded by the parties in their respective pleadings, and established by exhs. ‘CB2/DB5, CB3 and CB5’, the Claimant gave only one (1) month’s notice for his exit. This is clearly two months short of the three (3) months stipulated by exh.CB1. By those exhibits and state of the pleadings, the Defendant deducted amount equivalent to five (5) months’ salary in the sum of N5, 331,715.00 at a monthly rate of N1, 066,343.00. Both counsel also conceded, particularly the Claimant’s Counsel, that the court can award less than the five (5) months deduction claimed, if it finds from available evidence, that the appropriate deduction should be two (2) months.
Again, I consider this proposition the dictate of justice in the circumstance of the matter. Accordingly, in line with the prescription of the S.14 NIC Act 2016, which enjoins the court to determine and award appropriate remedy for a party in deserving circumstance, I hereby award the sum of N3, 199,029.00 (three million one hundred and ninety nine thousand, twenty nine naira, being the three months’ salary wrongly deducted from the entitlement of the Claimant while exiting the services of the Defendant in June 2013. I so hold.
Relief (b) is for “N12, 000,000.00 representing compensation for opportunities lost and other general damages suffered by the Claimant as a result of the wrongful deduction of the sum of N5, 331,715.00 from the sums due to the Claimant under the Claimant’s employment with the Defendant at the time of the Claimant retirement (sic) from the Defendant’s employment on June 6, 2013”.
Learned Defendant’s counsel took heavy swipe against this relief, and urged the court to treat same as abandoned claim and strike it out, since no evidence was led or sufficient particulars pleaded to support such claim. Counsel laid reliance on Registered Trustees B.C & S v. Edet [2016]5NWLR (Pt.1505)387; Akande v. Adisa [2012]15 NWLR (Pt.1324)538; Owosho v. Dada (1984)7NSCC 149; S.75 Evidence Act 2011.
Upon review of the processes and evidence led at the trial, I find that beyond stating this relief at the Relief part of the pleadings, nothing more was said about it by the Claimant, not even a ‘lip-service’ was paid to it in the Final Written Address of the learned Claimant’s counsel. It is trite principle of adjudication that General damages are awardable perse upon breach. However, the couching of this relief seems to me, to be Special damages as it purports to suggest some other basis of anchoring the award for damages other than that the Defendant wrongly deducted the sum claimed. As Special damages ought to be pleaded with particulars and proved by credible evidence to be sustained, I find that there are no detailed particulars of the alleged “opportunities lost and other general damages suffered by the Claimant as a result of the wrongful deduction”, which would necessitate compensation of N12, 000,000.00, which the Claimant sought. In Johnson v. Mobil Prod. (Nig.) Unltd. [2010] 7 NWLR (Pt. 1194) C.A. 462 @ (P. 506, Paras. G-H, it was held that:
“Special damages must be specifically pleaded and strictly proved. In other words, a claim for special damages should be strictly pleaded, particularized and established by credible evidence”.
Having failed to take such desirable step in the proceedings, this relief fails. It is accordingly discountenanced and dismissed. I so hold.
For clarity and on the basis of the reasons so advanced in the body of the Judgment, the terms of the Judgment are as follows:
- The sum of N3, 199,029.00 (three million one hundred and ninety nine thousand, twenty nine naira), is hereby awarded in favour of the Claimant to be paid by the Defendant, being the sum representing three months’ salary wrongly deducted from the computed entitlements of the Claimant while exiting the services of the Defendant in June 2013.
- The Defendant is hereby directed to take immediate steps to include and incorporate in the Defendant’s HR Policy and Employee Handbook the entitlement conditions and packages for Early Retirement as well as the Exit Notice Period as expressed in the Memo dated 20th October 2014, Ref.ERM.1222/2285 issued by the Head, Employee Relations.
- The Claimant’s Reliefs (b) fails, and is hereby discountenanced and dismissed.
- The sum of money due and awarded in this Judgment shall be paid by the Defendant to the Claimant within One (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sum due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
HON. JUSTICE N.C.S OGBUANYA
JUDGE
23/11/18
