MR. BOMA FYNE IPALIBO -VS- BLAID CONSTRUCTION LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 17^th day of July, 2019

SUIT NO: NICN/PHC/14/2018

BETWEEN

BOMA FYNE IPALIBO CLAIMANT

AND

BLAID CONSTRUCTION LIMITED DEFENDANT

Representations:

T.O. Monday for the Claimant.

M. Odje for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint originally filed on the 2^nd of December, 2018 along with an affidavit of verification, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial. The Complaint along with statement of fact was however amended on the 10^th of May, 2019.

Arising from the Amended Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

A declaration that the claimant’s employment was wrongfully terminated.
An order of the court that the defendant pay to the claimant the sum of N165,000.00(One Hundred and Sixty Five Thousand Naira) being salary for each of the months of February, March and April 2016 until the initiation of this action against the defendant and 10% interest rate per annum from the date of alleged termination of employment until judgment is delivered.
An order of the court that the defendant pay to the claimant the sum of N574,658.19 (Five Hundred and Seventy Four Thousand, Six Hundred and Fifty Eight Naira, Nineteen Kobo) being accrued money for claimant’s loss in pension contribution; expected Employer’s pension contribution and penalty for late payment of pension and 10% interest rate per annum from the date of alleged termination of employment until judgment is delivered.
An order of the court that the defendant pay to the claimant the sum of N2,000,000.00 (Two Million Naira) being redundancy severance package for the claimant having worked with the defendant for the period in view.
A declaration that the claimant is entitled to the lien over the Toyota Hilux vehicle RBC 39 XA
An order of the court that the defendant pay to the claimant, the sum of N3,009,000.00(Three Million, Nine Thousand Naira) being and representing the sum of money spent on repairs and maintenance of the Toyota Hilux vehicles RBC 38 XA and RBC 39 XA.
In the alternative to paragraph 6 above: The ownership of the Toyota Hilux vehicle RBC 39 XA
An order of the court that the defendant pay to the claimant the sum of N12,564,474.62,(Twelve Million, Five Hundred and Sixty Four Thousand, Four Hundred and Seventy Four Naira, Sixty Two Kobo) being 5% (five percent) discretional benefit promised, offered, accepted worked for by the claimant from the defendant company for the N251,289,492(Two hundred And Fifty One Million, Two Hundred and Eighty Nine Thousand, Four Hundred and Ninety Two), Idu/Centro Stampa Works project supervised, managed and completed by the claimant.
The sum of N20,000,000.00 (Twenty Million Naira) being general damages for the unjust psychological and emotional trauma and inconvenience suffered by the claimant as a result of the defendant’s acts.
21% interest rate per annum on the judgment sum until the same is fully liquidated.

Reacting to the original complaint and statement of facts, the Defendant on the 27^th of February 2018 entered conditional appearance and filed notice of preliminary objection which was withdrawn later in the course of proceedings. The Defendant on the 23^rd of March, 2018 then filed another preliminary objection along with statement of defence and counter-claim, witness statement on oath, list of witnesses, list of documents and copies of the said documents. However, the Defendant amended the said statement of defence and Counter-claim on the 21^st of March, 2019.

Throughout the course of proceeding, the Defendant neither moved nor adopted the preliminary objection filed on the 23^rd of March, 2018 and same is considered abandoned.

In opening his case, the Claimant called two witnesses i.e. himself and one Kayode Oguntuase who were called as CW1 and CW2 and both adopted their witness statements on oaths marked as C1(a) and C1(b) in respect of CW1 and C2(a) in respect of CW2. Thorough CW1, 8 documents were tendered and admitted in evidence as Exhibits C2-C9 with exhibits C6 – C9 being admitted under protest.

Arising from the amended statement of fact and witness statements on oath, the case of the Claimant is that he was employed by the Defendant via a letter dated the 12^th of March, 2014 to commence work on the 1^st of April, 2014. He was employed as a civil engineer. His salary upon employment was N150,000 but later increased to N165,000 from June 2015 until January, 2016. He claimed that he served diligently by supervising several projects saving the Defendant millions of naira but his employment was later terminated upon his receiving a letter on the 12^th of April 2016, the said letter being dated 4^th April 2015. The Claimant approached the Defendant on the 13^th of April 2016 to complain of the error in the termination of his employment by the defendant but all attempts at reaching the management of the defendant for explanations proved abortive. Claimant posited that he was owed salaries for the months of February, March and April 2016. He added that he holds a retirement savings account with Stanbic IBTC Pension Managers where the necessary pension contributions from the defendant and deductions from the claimant’s salary ought to be paid in accordance with section 11 of the Pension Reform Act. 2014 but that the Defendant failed to make such contributions for the month of April, 2014 to December, 2014, January, 2015 to December, 2015 and January, 2016 to May, 2016. He added that the failure to make such contribution has also attracted penalties which the Defendant is liable to pay. Claimant further averred that sometime in April 2014, he was offered a Toyota Hilux vehicle with the registration number RBC 38 XA with the understanding and agreement that the claimant will take care of maintenance and repairs while the defendant will fuel the vehicle and that he could become the owner after three years. He posited that the vehicle was due for scrap and the Defendant changed it to another Toyota Hilux Vehicle with registration number RBC 39 XA. He computed the sums of monies expended on the said vehicle in the total sum of N3,009,000.00. He added that the Defendant initiated the termination of his employment so as to deny him the said vehicle. He added that he also worked on a project which cost N251,289,492 which the Defendant assured him of a 5% commission as a long standing policy of the Defendant. He averred that he worked extra hours into the night on the project and in the course of same the Hilux vehicle got involved in a mob attack on the Claimant which was reported to the Police station at Life Camp. Claimant averred that he is not the only one who has been tricked into not paying entitlement as same was done to one Kayode Oguntuase. He added that the Defendant used the police to carry out their ill plans of denying the claimant of his outstanding and unpaid salaries, unpaid contributory pension and recovery of the vehicle.

Upon cross examination of CW1, he posited that he received the termination letter sometime in January, 2016 as against the 12^th of April mentioned in his statement of fact because he had the facts mixed up. He admitted they were about 5 people that were laid off and he doesn’t know why he was laid off. He posited that he does not accept 4^th April 2016 as his date of termination of employment because he still received salary in February, 2016. He stated that he is currently searching for a job and that he is holding on to the Defendant’s property because he was invited to Abuja from Port Harcourt for the job which after the termination the Defendant failed to pay him his unpaid salaries to enable him return to Port-Harcourt while in respect of the Hilux, he spent all he made in maintaining it. He admitted he didn’t meet the three years condition of owning the vehicle. He added that he used 2 vehicles within his stay and spent about N3.7 million on the vehicles but he has no documents to back it up. He also stated that the 5% commission was between himself and the MD he posited that he reported the mob to the police. He posited he never took instruction from Haruna Momoh and would be surprised to know he is not the Owner nor a director of the Defendant. He stated the Defendant never paid pension deductions until this case came up and that the 2% he is asking for is in the Pension Act.

Upon cross examination of CW2, he stated that he is not in court due to the malice he has with the Defendant and posited that he was thrown out, arrested and detained for threatening the life of a staff and breach of trust. He posited that he was not taken to court or told the amount of money misappropriated and he did not sue either. He posited that he doesn’t have pictures of projects completed and he also does not have proof of 5% commission. He posited that Mr. Muyiwa filed an action in court that he has been used and dumped. He posited the use of the Defendant’s address was an oversight and he did not abscond from employment.

Upon re-examination, CW2 posited that the 5% Commission was verbal and not written.

Upon the discharge of CW2, Claimant closed his case while the Defendant opened theirs by calling one witness in person of Barbara Ufuoma Manuel as DW1 who adopted her witness statement on oath which was marked as D1. Through the said DW1, four documents were tendered and admitted in evidence as Exhibits D2 – D5 with D5 being admitted under protest for the grounds of objection to be addressed in the final written addresses.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that the Claimant expressly admitted the receipt of notice of Defendant’s termination of his employment from Defendant, on the 12th day of April, 2016, one week after Defendant actually terminated Claimant’s employment, vide a letter from Defendant inadvertently dated 4th April, 2015 in error by Defendant. the Defendant posited that Claimant performed below average in carrying out the duties of his employment with low productivity making it unprofitable for Defendant Company’s business to retain his services in the face of economic difficulties and making Claimant, one of the few, that their ‘Appointments’, as employees ought to be terminated in the circumstances and that the Claimant was paid one month salary in lieu of notice. They added that the termination was as a result of down turn in business opportunities and activities and that they do not owe the claimant any outstanding salary or any sum of monies called by any name. the Defendant further averred that the employment of four of its employees were terminated on the same date along with the Claimant with two out of the four returning the official vehicle which was eventually given to them as parting gifts . They added that all of Claimant’s entitlements have been fully paid and deductions done as at when due and communicated to Claimant through Defendant’s response letter to Claimant’s counsel and that the Defendant does not have a 5% policy or any other policy between itself and its staff or former staff and no such discussion on any contract ensued between Claimant and Defendant. The Defendant added that it was 7 months after the termination of Claimant’s employment that their lawyer lodged a complaint with the police for fraudulent conversion, criminal conduct and theft of properties belonging to the Defendant by the Claimant.

Upon cross examination of DW1, she posited that she was aware of the Claimant’s employment and was picked for Idu project due to time frame and nature and that he worked beyond the normal working hours including Saturdays. She posited that she is aware that there are statutory benefits after confirmation in the staff handbook but that they are yet to put the staff handbook together. She added that since there is no handbook yet, there is no specific statutory benefit. She posited that the Claimant during his employment along with other Engineers help with Quantity Surveying issues. She added that the Claimant carried out his job well but had issues such as following procedure, being confrontational and had a temper which slows down work. She added that she is not aware if Claimant was offered 5% for Idu project and also cannot remember if the Claimant was ever queried. She posited that all staff were not paid for February, March and April as the Company was shut down for those months. She posited that the Defendant made contributory pension cumulatively but she is not aware of a 2% penalty. She also stated that the vehicles given to the Claimant were new.

Upon discharge of DW1, case of the Defendant was closed and matter was adjourned for adoption of final written addresses and the Defendant on the 3^rd of June, 2019 filed their final written address which was adopted on the 25^th of July, 2019 and wherein Counsel to the Defendant, E. M. Odje Esq., formulated a sole issue for determination to wit:

Whether the Termination of Claimant’s employment by Defendant was in accordance with the terms of employment and conditions of service in Exhibit C2.

In arguing the sole issue, counsel argued that having regard to the evidence on record in this case, both parties are bound by the letter of offer of employment, that is, Exhibit C2 and the terms spelt out and contained therein. He added that it is settled law, that where the terms of a written contract of service such as in the instant case as shown in Exhibit C2 are clear and unambiguous, the parties are bound by those terms and they cannot move out of them in search for more favourable terms. He cited the case of CBN v. Archibong (2001) 10 NWLR (Pt. 721) Page 492 at 507 and A.R. Momoh v. CBN (2012) 1 NILR, Vol. 1 Page 4 at 61.

Counsel posited that in view of the clause on termination, the Defendant could not be faulted in the termination of the Claimant’s employment because there was no breach of procedure in the way and manner the Claimant’s appointment was terminated he added that the Defendant did not derail from the terms of contract of employment.

Counsel added that the Court in construing the relationship between the Claimant and the Defendant must confine itself to the main words and meaning which can be derived from the contract and in this case, from the provisions of Exhibit C2. He cited the cases of Friday Abalogu v. SPDC Ltd (2003) 13 NWLR (Pt. 837) page 3Q at 333, Union Bank of Nigeria Limited. v. Prof Ozigi (1994) 3 NWLR (Part 333) page 385 at 403 and Dantata v. Dantata (2002) 4 NWLR (Part 756) Page 144 at 162.

Counsel added that, it is trite law that, when an employee complains that his employment has been wrongfully terminated, he has the onus first to place before the court the terms of the contract of employment and secondly to prove in what manner the said terms have been breached by his employer. He cited the cases of Okomu Oil Palm Co. Ltd. v. Iserhierirhien (2001) 6 NWLR at Pg. 660, (2001) 3SC 140 at 45and Amode v Amode (1990) 5 NWLR (Pt. 150) Pg. 356 at 370.

He added that the relationship between the Claimant and the Defendant is purely that of a Master/Servant nature regulated by the provisions in the said Letter of offer of Employment, Exhibit C2. Counsel cited the cases of Afrotec v. MIA (2000) 15 NWLR (Pt. 692) at 730,(2000) 82 LRCN page 3459 at 3512 and Bookshop House Ltd v. Stanley Consultant Ltd. (1986) 3 NWLR (part 26) page 87 at 97.

Counsel also added that at common law a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all and in consonance with this reason or principle, the courts rarely orders for specific performance of employment so as not to create a situation whereby an employee will be foisted upon an unwilling employer, just as conversely, no employer could be allowed to prevent an employee from seeking for greener pastures elsewhere as was decided in Obo v. Com. Of Educ, Bendel State (2001) 2 NWLR (Pt. 698) at 625 and Araromi Rubber Estates Ltd v. Orogun (1999) 1 NWLR (Pt 586) Pg. 302.

Counsel also added that the Claimant admitted the fact that he was served with the Defendants letter of employment on the 12^th of April 2016 and a cheque of one month payment in lieu of notice in paragraph 6 of his statement of fact. He added that 4^th April, 2015 instead of 4^th April, 2016 goes to no issue as the Claimant received the letter.

He also contended that in a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual, termination of an employment by the employer cannot be wrongful, unless it is in breach of contract. Whatever other reason there might have been for the termination of the employment, the termination cannot be said to be wrongful. He cited the case of Katto vs. CBN (Supra) at Pg. 7.

With regards to 5% Commission, counsel posited it is trite law that where a contract is in writing any agreement which seeks to vary the original agreement must itself be in writing. He cited the case of CBN v. lgwillo (2012) 1 NILR Vol 1 at Pg. 7-8. He added that Claimant tried albeit, unsuccessfully to vary the contract of employment and the terms therein, to amend a written agreement orally. He added that the evidence on record does not support the reliefs of the Claimant in paragraphs 8—13 of his deposition on Oath.

With regards to salaries, Counsel contended that Claimant had already waived his right at that time, together with the other staff of the Defendant when they accepted Defendant’s plea and explanation that it was facing hard times or of times being difficult and hard.

Counsel pointed out what he considers as contradictory evidence of the Claimant including the failure to present evidence of mob attack while nothing happened to him; the failure to present the CTC of court proceeding in respect of the damaging of the vehicle by the mob; that if the vehicle is truly damaged, then why would the Claimant be claiming lien over the same vehicle. He added that the testimony of Tunde Oguntunase is of a tainted witness and also failure to tender the pension slip. Counsel added that the failure to return the vehicle and the 1 bedroom flat at a going rent price of over half a million is also a breach of exhibit C2.

Counsel concluded by urging the court to dismiss the Claimant’s suit and to grant their claims as stated in the counterclaim and to make an order about Defendant’s properties still being detained, seized and held illegally by the Claimant more than 3 years after Claimant’s employment was validly terminated by Defendant in accordance with Exhibit C2.

In reaction to the final address of the Defendant, claimant filed his final address on the 25^th of June, 2019 and same was adopted on the 25^th of July 2019.

Arising from the said final address, counsel to the Claimant T.O. Monday Esq., formulated two issues to wit:

Whether the Claimant is entitled to the relief sought.
Whether the Defendant proved their counter-claim.

In arguing issue one, counsel contended with regards to salaries that the Defendant’s witness admitted that salaries were not paid to staff for the months of February, March and April and the Claimant through his statement that his salaries for those months were not paid, hence it is established without further proof.

With regards to Pension Contribution, counsel contended that the payment of pension is an express part of the terms of employment and also a provision of law applicable to the Defendant. He added that the pension contribution as a compulsory payment was however speculated by the Defendant when it was stated that the Claimant shall be entitled to all statutory and discretionary benefits. He also posited that the Claimant tendered a pension analysis stating the money paid by the Defendant only after the termination of his employment and was spread to “over the period of his service with the Defendant.

Counsel contended that the Pension Reform Act of 2014 in Section 11 (7) has fixed nothing less than 2 percent as penalty for failure of employers to make pension contribution.

With regards to Redundancy, counsel referred to the letter of dismissal and paragraphs 8 and 12 of the statement of defence and argued that the excuses the Defendant has stated as reasons for the termination are on all fours with the statutory provision under the Labour Act CAP L1 at Section 20(3). Counsel added that the benefit under the said section is enjoyed by the Claimant under the statutory benefit stated in the Contract of employment. Counsel contended that the Defendant failed to negotiate with the Claimant to arrive at a reasonable redundancy allowance.

With regards to lien over the properties of the Defendant, Counsel provided the definition of lien according to Black’s Law Dictionary, fifth edition and posited that the Claimant holds a lien over the Toyota Hilux RBC 38 XA following the offer of the vehicle by the Defendant and having spent the sum of N3,009,000.00 (Three Million Nine Hundred Thousand Naira) specially pleaded in his statement of claim, due to the decommissioned value of the vehicle the Claimant spent the said sum which the Defendant cannot dispute or estimate.

He contended that the Defendant violated the agreement for the vehicle by wrongfully terminating the Claimant’s employment before the required time of 3 years for him to own the vehicle and demands the vehicle to be returned after all expenses made on repairs. He posited that the law is that a man should not be allowed to take advantage of his own wrong. He cited the case of ADEDEJI V. NBN LTD. (1989)1NWLR (pt. 96)124-253.

Counsel also added that the ingredients of a valid contract are trite in law and that an oral agreement was reached by the Claimant and the Defendant’s management in the persons of Mrs. Helen Momoh (CEO) and Mr. Chadwick Manuel (General manager) where the Claimant was informed of a 5% commission on projects commenced and completed by employees and such provision is stated in the Company’s employee handbook while the Defendant has argued in denial, the existence of such agreement. He cited the case of J. E. Oshevire Ltd. v. Tripoli Motors (1997) 5 NWLR (pt.507) pg. 113; also see UTC (Nig.) Plc. v. Philips (2012) 6 NWLR (pt. 1)5) pg.163, paras. 0 — H.

Counsel added that where there is a disagreement as to the oral agreement between the parties, the court can infer to the existence of an agreement by the conduct of the parties. He added that the Claimant’s conduct at the period carrying out the execution of the project made him to work extra days and extra hours far into the night without any additional pay or wages and that the Defendant’s witness agrees to during cross-examination on the 17th of May, 2019. He added that the Defendant deceived the Claimant to believe and rely on the content of a non-existent handbook and such action of the Defendant results to fraud. See the case of Salami v. Wema Bank (Nig.) Plc (2010) 10 NWLR (pt.1190) pg. 341.

With regards to issue two, counsel posited that the law is well settled that a counter-claim is a distinct action that ought to be proved distinctly.

With regards to the claim for 18,000,000.00 (Eighteen Million Naira) for loss of revenue owing to the seizure of the Defendant’s property, Counsel contended that the Defendant violated the agreement for the vehicle by wrongfully terminating the Claimant’s employment before the required time of 3 years for him to own the vehicle and demands the vehicle to be returned after all expenses made on repairs.

Counsel added that the law is well settled that loss of revenue is a special damage and special damages must be proved strictly. He cited the case of NIMA v. Marine Associates Inc. & Anor (2008) LPELR — 4583. CA.

With regards to claim of N2,200,000.00 (Two Million Two Hundred Thousand Naira), counsel posited that this court lacks jurisdiction to entertain the said matter because it is a tenancy matter. Counsel added that by the pleadings, the Claimant came into the property as a result of his employment and this type of tenant is referred to as a service tenant. Counsel posited that the matter of tenancy must commence at the Magistrate court and the sum claimed is a mesne profit which is not proved assuming the court has jurisdiction.

Counsel added that the Defendant cannot also contend that the property was seized when the Claimant lawfully entered the property and there is no notice to terminate the tenancy.

Counsel urged the court to hold that this claim was not proved. He added that the law is well settled that the damages are not granted for the asking but with credible evidence.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted in evidence.

I have also taken into account reliefs sought vis-à-vis the submissions of learned Counsel to both parties in their respective final written addresses.

In consideration of the forgoing, I find it apposite to determine the substantive suit of the Claimant before addressing the counter-claim made by the Defendant and arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for the determination of the substantive suit is to wit:

Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.

Before addressing the sole issue, I find it apposite to state that the Defendant was asked to address the ground of objection to the admissibility of exhibit C6 – C9 in their final written address but counsel has failed to do same. Consequently, he is considered to have abandoned the said objection and the said Exhibits C6 – C9 are accordingly admitted in evidence.

With regards to Exhibit D5, which was tendered by the Defendant and objected to by counsel to the Claimant, counsel also failed to address the objection in the final address and same is considered abandoned. The said exhibit D5 is accordingly admitted in evidence.

I then turn to the sole issue which in resolving, I find it apposite to first ascertain the nature of employment that ensued between the parties in order to determine the implication of the actions of the parties under the said employment relation. In this regard, the court in UJAM V. INSTITUTE OF MANAGEMENT & TECHNOLOGY & ORS. (2007) 2 NWLR (Pt.1019) held that:

“…It has been made clear by Amaizu, JCA, in the case of Nigerian Gas Co. Ltd. v. Dudusola (2005) 18 NWLR (Pt. 957) 292; 321 that there are three types of employer/employee relationship in this country with different consequences namely:

(1) Under the common law where in the absence of written contract, each party could abrogate the contract on week’s or month’s notice or on payment of wages for a week or month or whatever was the agreed period for payment of wages.

(2) Where there is a written contract of employment between an employer and an employee. In such a case the court has a duty to determine the rights of the parties under the written contract.

(3)(i) Public servants – their employment is provided for in the statute plus conditions and service agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599.

(ii) Public servants in the nations civil service as in the case of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.”Per MIKA’ILU, J.C.A.(P.29, paras.A-F)

In view of the forgoing, authority, there is no doubt that the employment relationship between the Claimant and the Defendant falls within the second category. Which is the employment guided by a written contract of employment otherwise regarded as master-servant employment. Having said that, it is noteworthy that the court posited that that in such category of employment, the court has a duty to determine the rights of the parties under the written contract. The rationale behind the determination of the rights of parties within the written contract is because the parties are bound by those terms and the court is not to look outside the said contract. This position was restated in the case of UNION BANK OF NIGERIA PLC v. SOARES (2012) LPELR-8018(CA) where the court held that:

“Generally speaking, in a contract of employment,… parties are bound by the terms of the contract particularly where the terms of the contract are clear and unambiguous. Courts are not allowed to make or rewrite agreements between the parties. The only duty of the court is to interpret those clauses written in the contractual document. Where however, the terms of the contract are not clear and unambiguous, the court of law can move out of them and invoke the general rules of contract applicable to the nature of the contract of service. See Osakwe v. Nigeria Paper Mills Ltd. (1998) 10 NWLR. (pt.568) 1; Calabar Cement Company Ltd. v. Daniel (1991) 4 NWLR. (pt.188) 750; Niger Dams Authority v. Chief Lajide (1976) 5 SC 207; Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (pt.9) 599; IDC v. Ajijala (1976) 2 SC 115.” Per OKORO, J.C.A. (P.20, Paras.B-F).

In another breathe, the court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) held that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G).

It is in the light of the foregoing that I shall consider the reliefs sought by the Claimant particularly as it relates to declaring the termination of his employment wrongful before considering other reliefs sought.

In view of the fact that the Claimant sought a declaratory relief with regards to the termination of his employment, I must add from the on-set that the law places a burden on him to discharge by proving with cogent and credible evidence that he is entitled to the declaratory relief. In this regard, the court in the case of Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, para.G (SC) held that:

“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. See Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.

In view of the foregoing, the law is also clear on what the Claimant must present before the court in discharging the burden placed on him where the Claimant wants the court to declare that the termination of his employment was wrongful. In this regard, the court in WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 held that:

“Therefore, an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employee to prove any such breach – this principle finds support in a long line of judicial authorities the likes of (1) AMODU VS. AMODE (1990) 5 NWLR (PT.150) 356, (2) IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT.357) 379 (3) KATTO VS. C.B.N. (1999) 6 NWLR (PT.607) 390 and (4) IBAMA VS. S.P.D.C. (2005) VOL 132 LRCN 2585; (2005) 17 NWLR (Pt.954) 364.” Per ADEREMI, J.C.A. (P.16, Paras.C-F)

Having said that, I shall consider each of the reliefs sought by the Claimant vis-à-vis the facts of the case and evidence placed before the court by both parties.

With regards to relief one which is for the declaration that the claimant’s employment was wrongfully terminated, the facts surrounding this claim is that the Claimant posited that he was served with a letter of termination of employment on the 12^th of April 2016, although the date on the said letter is 4^th of April, 2015. He added that the Defendant did not give him a month notice but a cheque for one month salary in lieu of notice which he received along with the said latter. He posited that from 13^th of April 2016, he was refused entry despite the error on the termination letter. He also considers the termination malicious because other staff employed by the Defendant after him were still in employment and that makes his own termination contrary to section 20 of the Labour Act.

By way of evidence, Claimant tendered exhibit C2 which is his letter of offer of employment dated the 12^th of March, 2014 and Exhibit C3 which is the letter of Termination of Appointment dated the 4^th of April, 2015.

The Defendant in reaction posited that while the termination of the Claimant’s employment was not wrongful having paid him the required one month salary in lieu of notice, the letter of termination was inadvertently dated the 4^th of April 2015. They also posited that they do not owe the Claimant any further explanation in respect to the termination of his employment other than that stated in his letter of employment and the Defendant does not require the Claimant’s permission to retain nor recruit any worker at any time.

In view of the foregoing, I reckon the argument of counsel to the Claimant that the reason stated in the letter of termination amounted to the Claimant being rendered redundant and that the Defendant ought to negotiate redundancy allowance as it is a pre-condition for termination of employment by redundancy.

Counsel to the Defendant on the contrary contended that the Defendant cannot be faulted on the termination having complied with Exhibit C2 which is the letter of offer of employment and that the Claimant has failed to show how the termination was wrongful.

I have in consideration of all the foregoing with regards to the termination of the Claimant’s employment taken a look at exhibit C2 which is the bedrock of the relationship between both parties and which the court is bound to take into account in the determination of whether the termination was wrongful or not.

Upon considering the said Exhibit C2, the offer of employment, I find that the provision on termination states that:

“it is the company’s desire to have staff commit a minimum of three unbroken years of service with the company, however, upon confirmation, you or the employer may terminate this employment at any time by giving ONE-MONTH written Notice or one-month salary in lieu of notice to the other party. Notwithstanding the forgoing, the employer may terminate this agreement immediately upon established breach of contract or gross misconduct. Upon termination or separation, any property of the company in your possession must be returned including money, property, equipment, etc.”

Having done that, I then turn to the letter of termination which is as tendered in evidence by the Claimant as Exhibit C3. Arising from the said letter, I find that Paragraph one states that:

“We regret to inform you that due to the prevailing difficult situation in the country, we cannot continue to retain your services. Therefore, your appointment with us as an engineer is hereby terminated.”

In addition, I find that Paragraph four states further that:

“Kindly find attached a cheque for the sum of N165,000.00(one hundred and sixty five thousand naira) only representing your one month salary in lieu of notice”

In view of the foregoing, there is no gainsaying that the Defendant through exhibit C3 acted within the provision of the offer of employment (Exhibit C2) which requires a party willing to terminate the employment relationship to give either a month notice or pay salary in lieu of notice. Also, it is not in dispute that the Claimant accepted the cheque for the said salary in lieu of notice. I must state that Exhibit C3 was rightly inadvertently dated the 4^th of April, 2015 as against 4^th April 2016 since the Claimant carried on his employment relationship with the Defendant far beyond 4^th April, 2015. The question that arises is what is the effect of the payment of salary in lieu of notice in compliance with the letter of offer of employment. The answer to this was provided by the court in Layade v. Panalpina World Trans. Nig. Ltd (1996) 6 NWLR (Pt.456) 544 where the court succinctly held that:

“The giving of the agreed or specified period of notice or paying of salary in lieu thereof prevents the termination from being wrongful and actionable” PER ADIO, J.S.C. (P. 23, Paras. B-C).

What the foregoing means in essence is that this court cannot declare the termination of the employment of the Claimant as wrongful in view of the fact that he has been paid his salary in lieu of notice.

I must also add that the issue of redundancy as canvassed by the counsel to the Claimant does not arise as the wordings of the letter of termination is clear and unambiguous. The Claimant was not declared redundant, his employment was terminated and nothing more. The fact that the Defendant stated a reason which is that the termination is due to prevailing difficult situation in the country does not subject the reason to scrutiny. This is because the Defendant as an employer is not obligated to give reason at all in a master and servant employment where same can be terminated by either party. The court held in the case of Ativie v. Kabelmetal (Nig.) Ltd. (2008) 10 NWLR (Pt.1095) 399 that:

”An employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour.” Per AKINTAN, J.S.C. (P.21, Para.A) .

In related terms, the court in SIMEON v. COLLEGE OF EDUCATION, EKIADOLOR BENIN (2014) LPELR-23320(CA) held that:

“Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. As long as he acts within the terms of his employment, the terms of his employment or motive for doing so is irrelevant. A servant as in this case, who complains that his employment has been wrongfully terminated must found his claim on the contract of service and show what manner the wrong was done. It therefore is not the duty of the employer as defendant to prove that the termination was not wrongful. See: IDONIBOYE-OBU V. NNPC (2003) 2 NWLR (PT. 805) NWLR (PT. 805) 589.” Per EKPE, J.C.A. (P. 43, paras. C-F)

In addition to the forgoing, it must be stated that the Defendant is not under an obligation to prove the prevailing difficult situation which made them consider the termination of the Claimant’s employment. In this wise, the Supreme Court in the case of Ihezukwu v. University of Jos (1990) NWLR (Pt.146) 598 posited that:

“Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.” PER WALI J.S.C. (P.21, paras.D-E)

Consequent upon the foregoing, it is clear to all and sundry that the Claimant has failed to prove that the Defendant was in breach of Exhibit C2 which is his letter of employment and the document regulating his contract of employment. Having failed to do so, it is without hesitation that relief 1 is accordingly refused.

Directly dependent on the declaration sought in relief 1 is the claim made in relief 4 which is for an order for the sum of N2,000,000.00 being redundancy severance package. The claim for the said sum is predicated on the notion held by the Claimant that he was declared redundant and should have been invited for negotiation by the Defendant in accordance with section 20 (3) of the Labour Act.

Without much ado about nothing, I have found as evidently clear in the letter of termination of employment tendered by the Claimant himself as Exhibit C3 that his employment was terminated not that he was placed on redundancy nor declared redundant. It is clear that the Defendant by virtue of exhibit C2 has a right to bring the relationship to an end in either of the four modes permissible by law i.e. termination, retirement, redundancy and summary dismissal. The Defendant chose the path of termination by serving the Claimant with Exhibit C3 and by so doing, the Claimant has failed to prove with the aid of cogent and compelling evidence how he is entitled to redundancy benefits not covered by the terms of his employment.

Consequently, the said relief 4 has no basis upon which to be considered nor granted and same is accordingly dismissed.

I then turn to relief 2 which is a claim for unpaid salaries for the months of February, March and April, 2016 until the initiation of this suit at the rate of N165,000 per month and 10% interest per annum from the date of the termination of employment until judgment is delivered.

In proof of the claim, Claimant tendered Exhibit C9 which is his FCMB statement of account. Wherein the Claimant last received payment of the sum of N165,000.00 on the 19^th of April, 2016. Before that, there was the payment by the Defendant into the said account of the sum of N142,803.53 on the 26^th of January, 2016. There was no payment into the account by the Defendant for the months of February and March.

The reaction of the Defendant to this claim is that the Claimant is not owed outstanding salaries or any sum of monies called by any name.

Upon cross examination of the DW1, when she was asked whether salaries were paid for the months of February, March and April, she posited that all staff were not paid for those months as the Company was shut down for those months.

It is upon the culmination of the foregoing evidence that I shall determine whether or not the Claimant is owed salaries. Foremost however, I must state that the Claimant cannot seek for salaries until the initiation of this action as stated in relief 2 since his employment had been terminated in April, 2016. That said, I must point out that salaries are paid for work done as long as the employer provides the work. In other words, the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936. According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’ instead of salary and defines wages thus:

“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

In view of the foregoing meaning of wages (salary), it is clear that same is payable by an employer for work done however, in the instant case, the Defendant is positing that the Company was shut down and that is the sole reason why the Claimant was not paid. Not that the Claimant was absent from work. Whatever the reason for the shut-down maybe, the variation must be put into account and documented in view of the fact that the employment relationship is regulated by a contract. In this regard, I have taken a look at exhibit C2 which is the letter of offer of employment and considered the paragraph on salary where I find no exemptions for the payment of salaries on days or months when the Defendant is shut-down for whatever reason. This consequently, means that the Claimant is entitled to his salary in the absence of such justification for his denial within the letter of offer of employment. Also, if the Defendant is alleging that the Claimant waived his salary, the burden is on the Defendant to prove same.

The foregoing finding notwithstanding, I must add that the Claimant is only entitled to salaries for the months of February and March which are the months wherein no payments were made into the account of the Claimant by the Defendant. however, I do not find the basis upon which interest is to be paid on the said salaries.

For the sake of clarity, relief 2 is granted to the effect that this court makes an order that the Defendant should pay to the Claimant the sum of N330,000.00 (three hundred and thirty thousand naira) being the salaries for the months of February and March, 2016.

I then turn to relief 3 which is for the payment of the sum of N574,658.19 being accrued money for Claimant’s loss in pension contribution; expected Employer’s pension contribution and penalty for late payment of the pension and 10% interest on the said sum from date of termination until judgment is delivered.

The facts relating to the said claim is that the Claimant contended that the Defendant failed to make the necessary pension deduction and contribution from the month of April, 2014 to December, 2014, therefore making the claimant to lose the sum of N128,266.00 being 18% expected contribution of N229,500.00, the sum of N4,590.00 representing 2% penalty on late payment of the claimant’s monthly contributions, less Defendant’s late contribution of N105,823.97 made in the month of May, 2016.

Same for the month of January, 2015 to December, 2015, therefore making the claimant to lose the sum of N294,922.16 being 18% expected contribution of N335,250.00, the sum of N6,705.00 representing 2% penalty on late payment of the claimant’s monthly contributions, less defendant’s late contribution of N47,032.84 made in the month of May, 2016, and from the month of January, 2016 to May, 2016, therefore making the claimant to lose the sum of N151,470.00 being 18% expected contribution of N148,500.00, the sum of N2,970.00 representing 2% penalty on late payment of the claimant’s monthly contributions.

Claimant added that the defendant’s late contributions made in the month of May, 2016 did not cover the months of January to May 2016.

In proof of his claim, Claimant tendered Exhibit C6(a) which is the Stanbic IBTC Contribution detail of the Claimant as at 6^th of May, 2019 and Exhibit C6(b) which is a tabulated pension payment analysis prepared by the claimant.

The Defendant in reaction to the claim posited that the Claimant’s entitlements have been fully paid and deductions done as at when due and communicated to the Claimant through his lawyer.

By way of argument, counsel to the Claimant contended that the payment of pension is an express part of the terms of employment and the law applicable to the Defendant as it was speculated by the Defendant when it was stated that the Claimant shall be entitled to all statutory and discretionary benefits. He added that by section 11 (7) of the Pension Reform Act, 2014, there is not less than 2% penalty for failure of employers to make pension contribution.

In view of all the foregoing, I have taken a look at the evidence tendered before the court in relation to the claim. I have also considered the provision of the law cited by the Claimant. In this regard, there is no gainsaying that the payment of pension is regulated by law which is the Pension Reform Act, 2014. Also, the amount claimed by the Claimant as his pension contribution is a specific claim which must not only be specifically pleaded but also strictly proved. See the case of Egom v. Eno (2008) 11 NWLR (Pt.1098).

What I mean by the foregoing is that it is an intertwine of law and contract of employment that would determine whether the Claimant is entitled to the claims made in respect of his claim on pension contribution. I would start with the provision of the law which is as provided in the Pension Reforms Act 2014 which by section 1 applies to employees in an organization with more than 5 employees. The Claimant has not stated the number of employees in the Defendant’s organization but same is taken as proved in view of fact that the Defendant did not contend not to be subject to the Act. In addition, the Act introduced a contributory Pension Scheme where the employer is obligated to deduct from source and also pay into a designated Retirement savings Account. To this effect, section 11(5) of the Act provides that:

11(5) The employer shall:

deduct at source, the monthly contribution of the employee in his employment; and
not later than 7 working days from the day the employee is paid his salary, remit an amount comprising the employee’s contribution under paragraph (a) of this subsection and the employer’s contribution to the custodian specified by the pension fund administrator of the employee to the exclusive order of such pension fund administrator;

The rate to be contributed is also regulated by the Act as section 9 provides to the effect that in cases other than Public Service of the Federation and Federal Capital Territory and the Military, the contribution shall be:

(i) a minimum of seven and a half per cent by the employer, and

(ii) a minimum of seven and a half per cent by the employee.

Let me state in view of the foregoing that the Claimant has made the computation of his claims for the pension contribution based on 18 percent. This I find to be at variance with the provision of the Act. Although the employer can make contributions above the minimum stated under the Act, however, for the Claimant to claim based on a higher percentage, it must be clear that there exist such agreement through the contract of employment or any other means between the Claimant and the Defendant that the contribution to be made is based on such percentage on the part of the employer and the employee.

Exhibit C2 which is the letter of employment tendered by the Claimant does not contain such term as to percentage for the pension contribution hence, it is uncertain where the Claimant got the 18% basis of computation from as that is not what the law predicates as a benchmark.

With regards to time of remittance which the Act stipulates to be not later than 7 working days from the day the employee is paid his salary, I find that the provision which prescribes the implication on late payment of pension contribution to be as cited by counsel to the Claimant. The said section 11(7) provides thus:

“Any employer who fails to remit the contributions within the time prescribed in subsection (5) (b) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission provided that the penalty shall not be less than 2 per cent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owing to the employees retirement savings account as the case may be.”

I have taken a look at exhibit C6(a) and I am convinced that indeed the Defendant did not make the remittance of the Claimant’s pension contribution within 7 days of payment of his salaries. It is on that basis that the Claimant wants the court to grant the minimum 2% of the total contribution that remains unpaid for each month. However, counsel to the claimant perhaps failed to appreciate the part of the provision which states that the penalty is to be prescribed by the Commission. The ‘commission’ being the National Pension Commission according to section 102 of the Act. The effect is that it is after the Commission assesses the penalty which may be more or fixed at the 2% with an exact amount imposed on the Defendant, then it becomes actionable,

Consequent upon the consideration of the provision of the law in relation to the evidence before the court, I find that the claimant has failed to strictly prove the basis for the computation of the loss arising from his pension contribution and relief 3 which is for the said claim is accordingly refused.

I then turn to relief 5 which is for a declaration that the Claimant is entitled to a lien over the Toyota Hilux vehicle RBC 39 XA.

The claim being a declaratory relief is to be earned on the strength of the case of the Claimant and not the weakness of the case of the Defence. The court in OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that:

“It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 23, paras. F-G).

That said, the facts relating to the claim is that the Claimant posited that the Defendant first gave him a Toyota Hilux vehicle with registration number RBC 38 XA and later replaced it with a Toyota Hilux vehicle with registration number RBC 39 XA and issued a policy by way of internal memo in April 2014 that the Claimant will become owner of the vehicle after its use and maintenance for 3 years. The Claimant contended that the Defendant purposefully terminated his employment so as to deny him the vehicle. Claimant tendered exhibit C7 which is an Internal Memo dated 3^rd April, 2014 after he had expended some monies on maintenance of the vehicle.

Reacting to the Claim, the Defendant posited that the Claimant did not achieve the stipulated 3 years which will entitle him to ownership as he fell short of 8 months. They added that two other employees whose employment were terminated before the stipulated three years returned the vehicle given to them while the Claimant refused to do same.

In view of the foregoing facts I have taken a look at the said Exhibit C7 which is quite faint with most of the content being illegible. However, with some effort, I find that paragraph 6 states that:

“After 3(three) years for the Hilux and 4 (four) years of being used by an employee, the vehicle will be transferred to the employee who has been using the car, thereby making it their personal property.”

Upon a consideration of the foregoing paragraph, I find it apposite to state that the words in the said paragraph of exhibit C7 which regulates the affairs of the parties with respect to the vehicle is clear and unambiguous and the duty of the court is merely to give effect to same. The court in Amasike v. Registrar-Gen., C.A.C. (2006) 3 NWLR (Pt.968) Pg. 462 posited that:

“The duty of a court is to interpret the words the author of a document has used. Consequently, where in their ordinary meaning, the provision of a document are clear and unambiguous, effect should be given to such provisions. See Plateau Investment and Property Development Company Ltd. v. Philip Ebhota & Ors. (2001) 4 NWLR (Pt. 704) 495 at 518 para. C. City Engineering (Nig.) Ltd. v. Nigeria Airports Authority (1999) 11 NWLR (Pt.625) 76; A.-G., Bendel State v. A.-G., Fed. (1982) 3 NCLR 1 Per PETER-ODILI, J.C.A (as she then was) (Pp. 53-54, paras. E-C).

Consequent upon the forgoing and in conjunction with the provision of Exhibit C2 which requires the Claimant to return the properties of the Defendant upon termination, it is without doubt that the Claimant is not entitled to keep the vehicle belonging to the Defendant having not used the said vehicle for four years and having had his employment terminated before a three years period.

Having said that, I find it apposite to determine relief 6 which is a claim for the sum of N3,009,000.00 which the Claimant contends is the sum he expended on the vehicle before concluding on whether the Claimant is entitled to a lien on the said vehicle. This is in view of the meaning of lien as provided by the court in the case of Afrotec Tech. Servo (Nig.) Ltd. V. MIA & Sons Ltd (2000) 15 NWLR (Pt.692) 730 where the court held that:

“A legal lien was described in Halsbury’s Laws of England, Vol 28 (4th Edition) paragraph 702 thus:

In its primary or legal sense, ‘lien’ means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied. In the primary sense, it is given by law and not by contract.

Apart from lien which the law gives, there is lien by contract which is right to detain goods as security. In Halsbury’s Law of England (4th Edition) Vol 28 paragraph 73, the nature and formation of such lien is described thus:

Lien in its proper sense is a right which law gives, but it is useful to speak of lien by contract, and numerous instances of a right to detain goods as security depends for their effect on the validity, scope and construction of the governing contract.” Per Ayoola, J.S.C. (Pp.84-85, Paras.F-C).

In the instant case, the contract of employment does not in itself grant the Claimant lien over the Defendant’s property especially in view of Exhibit C2 and C7. This means the Claimant is claiming a legal lien in and not lien by contract. The legal lien is in view of the fact that the Claimant is contending that the Defendant is indebted to him in the sum of N3,009,000.00 which he expended on the vehicle given to him and which the Defendant now demands its return.

In proof of the claim, the Claimant tendered exhibit C4 which is a tabulated expenditure covering items purchased and description of repairs carried out on the said vehicle through the months of May to December 2014 and January to December, 2015. The Claimant put the total at N3,009,000.00.

Upon a consideration of the claim made by the Claimant, I must foremost state that the nature of the Claim is special damages being expenses incurred. For the sake of repetition, the burden is on the Claimant to plead and prove the claim. The court in UDOFIA v. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS. (2011) LPELR-4055(CA) held that:

“…it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly.” Per OREDOLA, J.C.A. (P.9, Para.F).

Upon a consideration of the foregoing requirement, what I find Exhibit C7 to be is a list, prepared by the Claimant, containing the several amounts expended on several items purchased for use in maintenance of the vehicle, including charges by mechanics, without a single receipt for any of the listed item to prove that same was indeed purchased and fixed unto the vehicle. The question which arises upon such finding is whether the said list alone qualifies as strict proof? The answer is certainly in the negative.

This is notwithstanding the fact that the Claimant has not stated whether by Exhibit C7, the amount expended on the vehicle will become a debt when he is returning the vehicle to the Defendant. In other words, after the Claimant proves the expenses strictly, he must also prove that by Exhibit C7, there is such agreement between the Claimant and the Defendant that the expenses incurred on the vehicle shall become a debt payable by the Defendant to the Claimant which shall upon failure to be paid, earn him a lien over the said vehicle.

In the absence of proof of the expenditure and the basis upon which the expenditure is a debt payable by the Defendant, relief 6 fails and is accordingly refused.

Consequent upon the failure of relief 6, it is axiomatic that the Claimant is not entitled to the declaration that he is entitled to lien over the Toyota Hilux Vehicle. Relief 5 therefore also fails and same is accordingly refused.

Without much ado, the alternative relief sought in relief 7 for the ownership of the Toyota Hilux vehicle RBC 39 XA, is also baseless in view of Exhibit C2 and C7, consequently, the alternative relief woefully fails and is accordingly dismissed. I must consequent upon the failure of the reliefs, order the Claimant to return the said vehicle in accordance with the terms of the contract of employment- Exhibit C2 which express provision was earlier referred to.

Relief 8 is for the sum of N12,564,474.62,(Twelve Million, Five Hundred and Sixty four thousand, four Hundred and Seventy Four Naira, Sixty Two Kobo) being 5% (five percent) discretional benefit promised, offered, accepted worked for by the claimant from the defendant company for the N251,289,492(Two hundred And Fifty One Million, Two Hundred and Eighty Nine Thousand, Four Hundred and Ninety Two), Idu/Centro Stampa Works project supervised, managed and completed by the claimant.

The highlight of the fact relating to the Claim is that the Claimant stated that the Defendant was awarded a contract in the sum of N251,289,492 which was to be completed within 8 weeks. He added that he was specifically chosen for the project and that he was assured a commission of 5% of the total sum which amounted to N12,564,474.62. He added that the Defendant by its representative assured him that the Defendant has a long standing policy of giving the 5% as incentive.

The Claimant tendered Exhibit C8 (a) and (b) which are copies of drawings and bill of quantity and photographs for a project at Mabushi.

In reaction, the Defendant posited that it does not have a 5% policy or any other agreement or policy, silent or non-silent between the Defendant and the Claimant and any of its staff.

In view of the foregoing, there is no gainsaying that there is no written agreement between the Claimant and the Defendant over the claim of 5%. There is also no proof before the court to establish the cost of the awarded contract upon which Claimant is claiming 5%.

I am in view of the foregoing mindful of the assertion made by the claimant upon his cross examination that the 5% commission was orally made. I am also aware of the testimony of DW1 during cross examination that the Claimant was picked for the Idu project and that the job was difficult due to the time frame and that the Claimant worked beyond the normal working hours. She however posited that the Defendant has no Handbook yet. She denied that the company made oral agreement and deliberately fails to commit to the agreement.

I find that the claim for the sum of is dependent on an oral contract which the court in JEGEDE v. MAYOR ENGINEERING COMPANY LIMITED (2013) LPELR-20284(CA) described thus:

“As regards oral contracts, the Lower Court relied on Chesire & Fifoot: Law of Contract, 9th Ed., as follows – A contract may be made wholly by word of mouth or wholly in writing, or partly by word of mouth and partly in writing, if the contract is wholly by word of mouth, its contents are a matter of evidence normally submitted to a judge sitting as a jury. It must be found as a fact exactly what it was that the parties said.” Per AUGIE, J.C.A. (P. 23, Paras. E-G).

While it is not in doubt that an agreement can be orally made, the question is whose responsibility is it to prove the existence of such agreement. In this regard, the court in Odutola v. Papersack Ltd (2007) Vol.1 M.J.S.C.. 129 at 145 Paras. A – B (SC) held that:

“…where a party alleges the existence of an oral agreement, which is a unique method and procedure, he must give credible evidence as to the modalities of such agreement. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt.” Per Tobi, JSC. (Pp. 24-25, Paras. G-E).

In view of the denial of the existence of any such oral agreement and the failure to find a basis of the agreement in the contract of employment since the Defendant has no handbook which captures a 5% commission on project, I must say that the circumstances of the case do not lend credence to the fact that an oral agreement was reached for 5% commission on a project sum and the Claimant, who is the party alleging the existence of the oral agreement has failed to prove or provide evidence of its existence to a hilt.

Consequently, relief 8 which is for the order of the court that the Defendant pays to the Claimant the sum of N12,564,474.62, being 5% (five percent) of project sum of N251,289,492 awarded to the Defendant is accordingly refused for lack of proof.

I then turn to relief 9 which is for the sum of N20,000,000.00 (Twenty Million Naira) being general damages for the unjust psychological and emotional trauma and inconvenience suffered by the claimant as a result of the defendant’s acts.

With regards to general damages, the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) held that:

“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B).

In similar terms, the court in the case of UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) held that:

“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E).

In view of the foregoing authorities, there is no gainsaying that the Claimant has complained of several acts of the Defendants from wrongful termination, to failure to pay salaries for certain months, to failure to remit pension contribution as at when due and to demand failure to pay expenses incurred on maintenance of vehicle and payment of 5% commission.

In consideration of all the complaints however, vis-à-vis the evidence placed before the court, the ones with merit is that related to failure to pay salaries for certain months which is determined in favour of the Claimant and to a certain extent, the failure to remit pension as at when due in view of the fact that the Defendant remitted the Claimant’s pension contribution in one day.

Consequent upon the forgoing, the Claimant can be said to be entitled to general damages. However, upon a general consideration of the entire suit, particularly in view of the Claimant’s act of seizing the Defendant’s vehicle and refusal to vacate the premises given to him for the sake of his employment, the Claimant cannot be said to be deserving of the discretion of the court in the award of general damages. The Claimant must reckon that this court is a court of law and equity and he who comes to equity must come with clean hands. The equitable doctrine was restated in the case of LADY UGWUDIYA CLARALEE IROBUNDA v. ALOZIE IROEZI & ANOR (2018) LPELR-44576(CA) where the Court of Appeal, Per Ita George Mbaba ,J.C.A stated that:

“…the law is that he who comes to equity must come clean, doing so with hands/mindset. See Jack Vs A.G. & Comm. For Justice Rivers State (2013) LPELR – 22867 (CA); Aikabeli Vs AP PLC (2004) LPELR – 12510 (CA). See also PDP & Ors Vs Ezeonwuka (2017) LPELR – 42563 (SC), where the Supreme Court held: “Equity, acting in personam, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it for justice must do justice and must not come to the temple of justice with dirty hands. Per Eko JSC.” (P.31, paras. A-C).

Upon the consideration of the iniquitous act of the Claimant, he is undeserving of the award of general damages and same is accordingly refused.

Relief 10 is for 21% interest rate per annum on the judgment sum until the same is fully liquidated.

The said relief is dependent on whether any monetary claim has been awarded in favour of the Claimant. where such is the case, the grant of the relief is then predicated on the discretion of the court as Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017 stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.

In view of the foregoing provision, the benchmark set by the rule is 10% while that which the Claimant has sought for is 21%.

In view of the forgoing, relief 10 is granted to the effect that

The orders made by this court, in this suit, in respect of monies to be paid to the Claimant by the Defendant, are to be complied with within 30 days of the delivery of this judgment after which they shall attract 10% interest per annum until the judgment sum is fully liquidated.

That said, the final analysis of the substantive suit is that the sole issue formulated is resolved in favour of the Claimant in the extent to which reliefs 2 and 10 have been granted while same is resolved against the Claimant to the extent which other reliefs sought have failed.

The case of the Claimant therefore has merit only to the extent of the granted reliefs, while it lacks merit with regards to other reliefs that are not granted and are accordingly dismissed.

Judgment is accordingly entered in respect of the substantive suit.

I then turn to the counter-Claim which is needless to state that it is an independent suit. In this regard, the court in Zenith Bank & Anor. v. Ekereuwem & Anor (2011) LPELR-5121 CA, held that:

“It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”.

As an independent claim, the Defendant claims against the Claimant as follows:

The sum of =N=18,000,000.00 (Eighteen Million Naira) specifically against the Claimant for the loss of revenue owing to Claimant’s unauthorized and illegal seizure and failure to return the official Toyota Hilux Vehicle marked RBC 39 XA and value thereto.
The sum of =N=2, 200,000.00 (Two million, Two Hundred Thousand Naira) only being general damages owing to Claimant’s seizure of possession of Defendant’s a (sic) 1 Bedroom Flat attached to Claimant’s employment after more than 2 years since the termination of his employment and at a going market rent value of =N=1,100,000.00 (One Million, One Hundred Naira) only, as yearly rent due to Claimant’s bad faith in the circumstances and seizure of Defendant’s above said properties.

The facts relating to the counter-claim are as narrated in the substantive suit. For emphasis however, the Defendant/Counter-Claimant is contending that the Claimant has upon the termination of his employment seized the properties of the Defendant i.e. Toyota Hilux with registration number PBC 39 XA and a 1 Bedroom Flat attached to Claimant’s employment. Defendant therefore wants the claimant to pay the sum of N18,000,000.00 for loss of revenue arising from the said seizure of the vehicle and a sum of N2,200,000.00 as general damages for the Claimant’s seizure of the said properties.

While I reckon all the arguments made in respect of the said vehicle in the substantive suit, I must reiterate for the sake of the Counter-claim that the Claimant have contended and failed in the substantive suit that he is entitled to a lien over the said vehicle. In other words, the Claimant is not entitled to keep the said vehicle and ought to have returned same to the Defendant upon the termination of his employment in accordance with the terms of the contract of employment.

With respect to the claim for general damages on the property of the Defendant occupied by the Claimant, counsel to the Claimant argued that the matter is not within the jurisdiction of this court in view of the fact that the Claimant is a service tenant and if the court finds that it has jurisdiction, then the claim being a mesne profit is not proved.

Having said that, I find that upon a consideration of the contentions between the Defendant and the Claimant, the resolutions made in the substantive suit and the re-evaluation of the evidence before this court, the sole issue for the determination of the counter claim is to wit:

Whether or not the Defendant/Counter-Claimant is entitled to the reliefs sought.

The foregoing formulated issue is to be resolved by considering each of the counter claims of the Defendant and it is the law that the burden of proving the counter claim is on the Defendant as the court held in the case of AFOLAYAN v. ARIYO & ANOR (2014) LPELR-22775(CA) that:

“…The burden of proof of the counter claim is therefore on the counter claimant in the same manner as required in any civil claim i.e. on the preponderance of evidence.” Per AKEJU, J.C.A. (Pp. 39-40, paras. F-B)

Having said that, I turn to considering relief 1 which is for the sum of N18,000,000.00 as loss of revenue owing to the seizure of the Toyota Hilux vehicle by the Claimant. The said claim is without doubt within the realm of special damages which must be specifically proved. The Court in the case of Ya’u v. Dikwa (2001) 8 NWLR (Pt.714)127 held that:

“For example, if on the facts of a case an item of specific loss is adjudged general damages, this would be wrong. For such a loss is clearly an item of special damages, which has crystalized before the trial and is required to be strictly proved. A claim for loss of use arising in a suit on negligence, unlawful damage to chattel or property, such as a vehicle, as in this case, is one for special damages. It must be specifically pleaded and strictly proved before an award can be made on it by a trial court.” Per NZEAKO, J.C.A. (Pp. 33-34, paras. G-A).

In the consideration of the counter claim, the question that arises is how did the Defendant come about the sum as a loss? In answering the foregoing question, I have re-evaluated the evidence placed before this court by the Defendant. D2 is a copy of memorandum and articles of association of the Defendant, Exhibit D3 is a letter dated the 3^rd of June, 2016 written by lawyers to the Claimant and addressed to the manager of the Defendant, Exhibit D4 is a letter dated the 3^rd of July, 2017 written by the Defendant and addressed to the lawyers of the Claimant in respect of unlawful retention of accommodation by the Claimant while Exhibit D5 is a disclaimer on one Kayode Oguntuase.

Upon the evaluation, I find that there is no iota of evidence in proof of how the loss arising from the seizure of the Toyota Hilux vehicle amounted to the sum of N18,000,000.00. Neither did the Defendant prove that the value of the vehicle is at the said sum.

Consequently, the said relief 1 fails for lack of proof and same is accordingly refused.

With regards to relief two, I reckon the significance of addressing the contention relating to the jurisdiction of this court to entertain the relief in view of the fact that the Claimant has become a service tenant of the Defendant.

That notwithstanding, I must mention that a carful perusal of the relief shows that the Defendant did not specifically claim for mesne profit and neither did the Defendant ask the court for an order of possession over the property he is occupying. Rather, what the Defendant sought for was general damages for the Claimant’s seizure of the properties although the general damages is computed by the defendant on a market rent value of the property. Consequently, the issue of jurisdiction of this court does not arise.

If the claims were to be for possession and mesne profit, it would have been apposite for this court to ascertain whether or not it has jurisdiction guided by the decision of the Supreme Court in the case of SULE V. NIGERIA COTTON BOARD (1985) 2 NWLR (PT 5) 17. Although counsel to the Claimant did not specify the legal basis for the contention that this court has no jurisdiction other than the vague assertion that for tenancy matter to commence, it has to be before a Magistrate court. Counsel cited no authority whatsoever and stated no law that confers exclusive jurisdiction on the Magistrates court especially where the tenancy is connected to employment matter.

That notwithstanding, I find it apposite to state that, the instant case in respect of the counter claim is distinguishable from the circumstance of the case in SULE V. NIGERIA COTTON BOARD (supra) which is the locus classicus on the position of the law to the effect that an employee who occupies a property provided by the employer, becomes a service tenant upon the termination of the employment. The point of distinction is that in the case of SULE V. NIGERIA COTTON BOARD (supra), the Defendant (Nigerian Cotton Board) counter-claimed by asking for order of possession and mesne profit on the property occupied by the Claimant (Sule). That is not what is before this court in the instant case.

As a matter of fact and as far as the facts of the case before this court is concerned, there are no details in respect of the property as to where it is located in order for the court to determine what law is applicable and whether the said law ousts the jurisdiction of this court over the said property.

In view of the foregoing, the said relief 2 is considered within the realm of general damages rather than claim for order of possession or mesne profit and general damages requires no specific proof. To this end, the court in EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) held that:

Notwithstanding the fact that general damages require no proof, the Defendant tendered exhibit D4 in proof of the fact that the Defendant wrote a letter dated the 3^rd of July, 2017 to the lawyers of the Claimant to inform the lawyers that the Claimant has refused to vacate and handover the keys of the property he occupies by virtue of his employment which had been terminated. They requested the lawyers to advise the Claimant to either vacate the premises or as is proper or pay the going rent of N1,100,000.00 for two years.

The Defendant posited that the Claimant still occupies the premises till date and causing the Defendant to suffer economic loss due to the claimant’s reckless action of the seizing and holding unto the properties.

In view of the foregoing, I find that the Claimant’s act runs contrary to exhibit C2 which requires the Claimant to return any property in his possession to the Defendant upon the termination of his employment.

Consequent upon the forgoing, I find the Defendant to have been wronged by the Claimant in seizing the properties of the Defendant and consequently considers the Defendant entitled to general damages in the sum of N500,000.00

For sake of clarity, this court makes an order:

The Claimant is ordered to pay to the Defendant the sum of N500,000 (Five Hundred Thousand naira) as general damages for the seizure of the Defendant’s properties after the termination of the Claimant’s employment.

The said sum of N500,000 (Five Hundred Thousand naira) as general damages must be paid within 30 days of the delivery of this judgment, failure upon which same shall attract 10% interest per annum.

In the final analysis, the sole issue formulated in the determination of the counter claim is resolved partly in favour of the Defendant/Counter-Claimant in the extent to which relief 2 is granted.

Consequently, the counter claim is meritorious in the same extent to which relief 2 is granted, while it lacks merit with regards to the refused claim which is accordingly dismissed.

Judgment is accordingly entered in respect of the counter claim.

Parties should bear their respective costs as I make no order as to same.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.