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National Industrial Court

Mr. Daniel .S. Okwubuasi -VS- Pisces Power & Services Ltd.

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HODEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI

 WEDNESDAY, MAY 16, 2018

BETWEEN:                                                                                                SUIT NO: NICN/LA/335/2017

MR DANIEL. S. OKWUBUASI                                                                                           CLAIMANT

AND

PISCES POWER AND SERVICES LTD                                                                               – DEFENDANT

REPRESENTATION

C.M Ohamuo with Yewande Animashawn, for the claimant.

I.O Latunde Dada, for the defendant.

                                                                        JUDGMENT

By General Form of complaint and the accompanying originating processes dated and filed on   July 18, 2017, the claimant commenced this suit against the defendant and claimed for the following reliefs:

  1. An Order that the Claimant’s appointment was wrongfully terminated and that the said termination is null and void.
  2. An Order that the Claimant’s letter of termination dated 8th June, 2012 is null, void and of no effect.
  3. An Order that the Defendant pay the following to the Claimant:

3.1 Salary in the sum of N70,000 (Seventy Thousand Naira) for the month of June, 2012.

3.2 One month salary in lieu of notice in the sum of N70,000 ( Seventy Thousand Naira).

3.3 Gratuity in the sum of N672,000 (Six Hundred and Seventy Two Thousand Naira).

3.4 Special damages for medicals in the sum of N105, 000 (One Hundred and Five Thousand Naira).

3.5 Overtime allowances in the sum of N37,272,.28 (Thirty Seven Thousand Two    Hundred and Seventy Two Naira Twenty Eight Kobo).

3.6 National Housing Fund in the sum of N47,500 (Forty Seven Thousand Five Hundred Naira).

3.7 Leave bonus from 2009 to 2011 in the sum of N130,000 (One Hundred and Thirty Thousand Naira).

3.8 Leave allowance in the sum of N57,000 (Fifty Seven Thousand Naira) for 2012.

3.9 Unremitted pension to Stanbic IBTC totaling N244,930 (Two Hundred and Forty Four Thousand Nine Hundred and Thirty Naira).

  1. AN OREDER that the defendant pay an interest on the said amount in paragraph 3 above at the rate of 20% per annum per annum with effect from the date the matter is filed till date of judgment and thereafter at the rate of 10% per annum till final liquidation of the indebtedness.
  2. AN ORDER that the defendant pay the sum of N1, 000,000.00 (One Million Naira) being the cost for emotional suffering and the mental torture occasioned by the nature of the termination of the claimant’s employment by the defendant.
  3.  Costs and damages

Having been served with the originating process, the defendant entered appearance and filed statement of defence with the accompanying processes on August 15, 2017.

The claimant testified as CW by adopting his written statement on oath (EX CWE) and further statement on oath (EX. CWE) and tendered the following documents:

  1. Letter of offer of employment dated 22nd August 2008 (Exhibit CWA– A1)
  2. Claimant’s pay slips (Exhibit CWB – B6)
  3. Copies of overtime sheets (Exhibit CWC – C2).
  4. Letter of Termination dated 8th June 2012 (Exhibit CWD)
  5. Medical Bill in receipt of hospital bill (Exhibit CWF – F1)
  6. Statement of Acct with IBTC (Exhibit GNG – G2)
  7.   Letter of Appeal for legal assistance (Exhibits CWH – H1)

 During cross examination of the CW, the following documents were also tendered:

  1. Acknowledgment copy of letter of employment (Exhibit CWJ)
  2. Letter in response of query dated 30th April 2008 (Exhibit CWK)

The defendant opened its case on November 16th, 2017, where Chidi Nwoko, the defendant’s accountant, testified as the DW by adopting his written statement on oath (EX. DWA-A2).  The defendant through its witness tendered the following exhibits.

  1. Letter of offer of employment dated 22/05/08 (Exhibits DWB – B1)
  2. Query letter dated 22nd September 2008 (Exhibit DWD)
  3. Query letter dated 19th October 2010 (exhibit DWE)
  4. Query letter dated 27th June 2008 (exhibit DWC)
  5. Letter suspension dated 20th October 2010 (exhibit DWF – F2)
  6. Undated copy of gratuity sheet (exhibit DWG)
  7. Copy of pay off vouchers – (exhibit DWH)
  8. Wema Bank cheque numbered 0805387 dated 6th September 2010 – (exhibits DWI – I2)

During cross examination, the claimant’s counsel tendered the following documents through the DW:

  1. Letter of computation of terminal gratuity (Exhibit DWJ)
  2. Crown Flour Mills Hand Book – ( Exhibit DWK-K4)

At the close of the trial on November 16, 2017, parties were ordered to file and serve their respective written addresses, the defendant’s final written address is dated January 15, 2018 but filed on  January 16,2018, while the claimant’s final written address is dated and filed on February 12, 2018. The defendant’s reply on point of law is dated February 27, 2018 but filed on February 28, 2018.

                                                           THE CASE OF THE CLAIMANT

The case of claimant is that he was employed by the Defendant as welder technician on May 22, 2008 and he remained in the defendant’s employment for a period of four years.  According to the claimant, on the 8th day of June, 2012, he was sent to work for a client of the defendant, that on his completion of the assignment and return to the office, the claimant was issued a letter of termination of appointment on ground of gross misconduct (exhibit CWD) despite the fact that claimant did not receive any query prior to the dismissal. The claimant said that he demanded for explanation on the gross miss conduct leading to the termination of his employment from the defendant’s human resources manager but the HRM to the claimant that he was acting under instructions. To the claimant, his appointment was wrongfully terminated, hence this suit.

                                                         THE CASE OF THE DEFENDANT

In reaction, the defendant denied the claimant’s allegations, to the defendant, the claimant’s employment was not wrongfully terminated but was a result of gross miss conduct, that the claimant was issued with various warnings, reprimands and was also suspended from his duties, that as a result of various misconducts and inappropriate behavior of the claimant, his appointment was terminated.

                                                     THE SUBMISSION OF THE DEFENDANT

In its written address, the defendant submitted that the following for determination:

  1. Whether the claimant’s appointment was wrongfully terminated?
  2. Whether the claimant is entitled to all reliefs sought?

On whether the claimant’s appointment was wrongfully terminated, the claimant submitted that it is trite that the onus is on an employee who complains that his employment has been wrongfully terminated to place before the court the terms of the contract of employment with his employer and to prove in what manner the terms have been breached. That the terms and conditions of an employment are the bedrock upon which any claim premised on such employment must squarely rest. That without the contract and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract would be admissible at the trial and this will be fatal to the action. Citing LAWRENCE AZENABOR VS BAYERO UNIVERSITY KANO & ANOR (2009) 17 NWLR PART 1169, PAGE 96 AT PAGE 99. The defendant referred to Exhibits DWC, DWD, DWE and DWF-F1 and submitted that the claimant’s appointment was lawfully terminated, I,e the termination of the claimants appointment is in accordance with the terms and conditions spelt out in Exhibit CWA-A1. The defendant also said that from the contents of the letter of termination, (Exhibit CWD), the claimant’s appointment was terminated for GROSS MISCONDUCT. The defendant therefore contended that in master and servant relationship, misconduct is what the employer considers to be misconduct and determination of a particular conduct as misconduct is a prerogative of the master or employer. Citing PIONEER MILLING CO.LTD & ORS VS MR NANSING (2003) FWLR part 151 pages 1820 & 1834, FAKUNADE VS OAU TEACHING HOSPITAL (1993) 5 NWLR PART 291, and LAWRENCE AZENABOR VS BAYERO UNIVERSITY KANO & ANOR (SUPRA), where the court at page 102 head note 6 said “In a Master and Servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. What constitutes misconduct is not clearly spelt out but “gross misconduct” has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct in this sense is what the employer makes it out to be. It could be a series of disobedient actions, acts of insubordination, absenteeism, embezzlement, or some other conduct that would be considered detrimental to the corporate existence of an institution.

To the defendant, applying the above principle of law to the instant case and taking into consideration the contents of the Exhibits DWC, DWD, DWE AND DWF-F1, the appointment of the claimant was lawfully terminated for reason of gross misconduct and that receiving such number of letters of query and a letter of suspension within a period of four (4) years is in no doubt detrimental to the corporate existence of the defendant.

On the claimant’s averment at paragraphs 6 and 7 of the Reply to statement of defence that he never signed nor received the said queries and that his signatures on same were forged, the defendant argued that the claimant having alleged “forgery” of his signatures, which itself is an act of a criminal nature, the claimant has the burden of calling or leading evidence to establish forgery which he (claimant) failed woefully to do. It is submitted by the defendant that mere dissimilarity of two signatures is not conclusive evidence that they were not made the same person. Citing EZECHUKWU VS ONWUKA (2006) 2NWLR where the court held:” where there is a dispute as to signature, the duty of a court is to compare the same. By virtue of section 108 (1) of the Evidence Act, a trial Judge is entitled to examine a signature which is being denied and is in issue… “.  The defendant went on that Exhibits CWJ and CWK were tendered by the defendant through the claimant’s witness during cross examination to show the similarity in the signature on them and the ones on the queries. The defendant therefore urged this court to hold that the claimant signed for and received exhibits DWC, DWD, DWE and DWF-F1, and that the contents of same amount to gross misconduct which gave the defendant the right to terminate the claimant’s appointment. The defendant also urged this court to hold that claimant’s appointment was not wrongfully terminated and to resolve this issue in favour of the defendant.

On the second issue, i.e whether the claimant is entitled to all the reliefs sought, the defendant addressed the reliefs as set out seriatim under paragraph 3.8 of claimants statement of facts.

On reliefs 1 & 2, the defendant submitted that the claimant has not been able to establish a case of wrongful termination. The defendant then adopted all the submissions it made under issue NO 1 and urged this court not to grant these reliefs.  The defendant also submitted that reliefs N 3.1 and 3.2 are most unnecessary in that they formed part of the items for which a chaque was issued by the defendant which said cheque the claimant refused to accept from the defendant. The defendant then referred this court to the pay off voucher (Exhibit DWH) and (Exhibits DWI and I2 which is the cheque that was refused while urging this court not to grant these reliefs.

On relief 3.3 i.e claim for gratuity in the sum of N672, 000.00 (Six Hundred and Seventy Two Thousand Naira), it is the defendant’s contention that the evidence before the court is that the claimant worked for 4 years. That the defendant tendered the Gratuity sheet (DWG) to show that the claimant as at the time of the termination of his employment was not entitled to any gratuity. That the claimant under cross examination could not produce the hand book, and could not give details of former employees of the defendant that the claimant alleged had worked for four (4) years and were paid gratuity by the defendant. That the handbook of Crown Flour Mills limited (Exhibit DWK-K4) tendered by claimant through defendant’s witness has not in any way changed the position. The defendant therefore urged this court to dismiss the claim’s claim for gratuity.

On relief 3.4 (claim for special damages), the defendant submitted that it is trite law that special damages need to be specially and specifically pleaded and strictly proved. That based upon its special circumstance and character, strict proof is mandatory. That generally, where a party claims special damages the burden is on him to prove them to the last kobo and this must be done by credible evidence which must be anchored on concrete documentary evidence. Citing SPRING BANK PLC VS MR OJOTU SAMUEL ADEKUNLE (2011) NWLR (PT 1229) 581 at 585 and TEXACO NIGERIA PLC VS ALFRED G. ADEGBIIE KEHINDE. The defendant therefore contended that the claimant had failed to lead evidence to establish what he listed under special damages to wit: – Cost of treatment at victory special hospital and eye specialist centre. That under cross examination, the claimant admitted that there was no referral by the doctor in the staff clinic, which is the proper procedure that he ought to have followed. To the defendant, this claim for N105, 000.00 ought to be dismissed.

On relief 3.5 (claim for overtime allowance), the defendant’s submission is that this claim must also fail as it was not proved by the claimant.

Relief 3.6 is for refund of deductions made for the claimant for National Housing Fund. The defendant’s submission in this regard is that he claimant admitted during cross examination that he has not approached the appropriate government authority to find out whether or not the deductions made by the defendant has been remitted by the defendant, that  until he is able to establish this, the claimant cannot be entitled to this claim.

Reliefs 3.7 and 3.8 are for leave bonus leave allowance, to the defendant; these claims were also not specifically proved because the claimant had failed to link these claims to his letter of employment or to the handbook.

On relief 3.9 for unremitted pension to Stanbic IBTC, the defendant’s submission is that the claimant did not lead any concrete evidence to establish or substantiate his claims for these.

Relief 4 is for pre and post judgment interest at the rate of 20% and 10% respectively on all the amounts claimed in relief 3, the defendant urged this court  to reject it  in its totality for the reasons that:

  1.  It does not form part of the contract of employment
  2. It is the law that interest must not only be pleaded but also strictly proved.

Citing the cases of EKWUNIFE VS WAYNE (West Africa) ltd. (1985) 5 NWLR (pt 122) 422 and S.A.F.P & V & ORS VS UBA PLC (2010) 17 NWLR (pt 1221) 192 at 194-195, the defendant submitted that the claimant has not been able to establish his claim for interest.  It is the defendant’s submission that relief 5 must also fail because the claimant did not lead any evidence to establish any emotional suffering or mental torture occasioned by the termination of his employment.

In conclusion, the defendant urged this court to dismiss the claimant’s case in its entirety with substantial costs in favour of the defendant.

THE CLAIMANT’S OBJECTION TO THE ADMISSIBILITY OF CERTAIN DOCUMENTS

The claimant objected to the admissibility of the following documents tendered by the defendant in the course of trial:

  1.      Copy of the query letter dated 27/6/2008 –  Ex. DWC
  2. Copy of query letter dated 22/9/2008 – Ex. DWD
  3. Letter of suspension dated 20/10/2010 – Ex, DWF-F2
  4. Copy of Gratuity Sheet – Ex. DWG

The claimant argued that to be admissible, the documents sought to be tendered must be relevant, pleaded, listed and their copies frontloaded in accordance with the rules of this court. Citing Ltd. Torti v Ukpabi 1984 LER SC I1BI., Omega Bank (Nig) PLC v O.B.C 205 8 NWLR Pt. 928 547 at 582 para E-F. (S.C.). The claimant also argued that the court having admitted a document would then determine what weight or probative value to attach to the document. The claimant contended that he specifically denied that he ever received exhibits DWC, DWD and DWF-F2. The claimant also disowned the acknowledgment signatures on the said documents and invited the court to compare the purported signatures on those documents with the claimant’s verified and undisputed admitted signatures of the Claimant is in the court processes. The claimant further argued that it would be dangerous to compare the signatures in exhibit DWC, DWD and DWF-F1 with the alleged signature in Exhibit CWJ because they were all samples produced from the custody of the defendant and there was great opportunity for the defendant to tamper with the documents including the alleged signature on it. It is the claimant’s submission that exhibits DWC, DWD and DWF-F2 were produced by the defendants for the purpose of this suit, the claimant therefore urged this court to attach no weight to them having offended the provisions of section 83 (3) of the Evidence Act.

The claimant further contended that he pleaded in paragraph 8 of the reply to the defendant’s statement of defence and his evidence in chief that the only query he received in the course of the defendant’s employment is one dated 19/10/2010 (Exhibit DWE) and that his response to the query was handwritten.

With respect to Exhibit DWF-F2, the claimant argued that he deposed that he was never suspended with or without pay, that the issue of suspension was further laid to rest when DW1 under cross examination admitted that no salary of the Claimant was ever withheld as a result of suspension.

The claimant  urged this court to expunge Exhibit DWG from the record of the court because it was not front loaded and undated though on the defendant’s letter headed paper and that it offends section 83 (3) of the Evidence Act. The claimant further argued that the one front loaded by the claimant is exhibit DWJ dated 30/9/2008, that it is from Crown Flour Mills which DW1 testified that is a sister company to the defendant. That DW further testified under cross examination that at the relevant time it was exhibit DWJ and DWK that were used by the defendant as the conditions of service.

The claimant concluded that this court has the power to exclude any evidence once it is discovered that it was wrongly admitted. Citing UBA Plc v Ayinke (2000) 7 NWLR Pt 663 83 at 100 para B-C.

                                                  THE SUBMISSION OF THE CLAIAMNT

In his final written address, the claimant submitted the following issue for the determination of this court :-

                             Whether the claimant is entitled to the reliefs sought.

It is the claimant’s contention that defendant in its pleadings and evidence had admitted most of the reliefs sought by the claimant. That Paragraph 14 of the statement of defence, paragraphs 12, 13 and 14 of the Defendant’s witness statement on oath constitute clear admissions of liability in respect of the claims. That Exhibit DWH is the document tendered by the Defendant in support of their contention that they computed the entitlements and actually raised a cheque in favour of the Claimant. The Claimant contended that the amounts admitted and for which the Defendant allegedly raised a cheque is grossly below what the Claimant is entitled to. That the Defendant however did not admit the following reliefs as endorsed in the statement of facts:

  1. Relief 3.3 – Gratuity
  2. Relief 3.4 – Medical
  3. Relief 3.6 – National Housing Fund
  4. Relief 3.7 – leave bonus
  5. Relief 3.9 – Pension

The claimant went on that having admitted part of the claims of the claimant; the defendant cannot ask the court to dismiss the action. That Order 34 rule 4 of the NICN Civil Procedure Rules 2017 made provision for admissions made in pleadings and that the court is entitled to give judgment on same as no further evidence needs be called on the admitted fact. Citing BUNGE v GOVERNOR OF RIVERS STATE (2006) 12 NWLR (Pt 995) 573 at 599 Para H-A.

The claimant further stated that the defendant has argued in paragraph 4.01 of its final written address that the claimant was dismissed for gross misconduct, that the defence frontloaded various disputed queries which the claimant vehemently denied were issued to him, that the defendant further failed to show how the queries were related to the incident which happened on the day the claimant was allegedly dismissed and that no conduct of the claimant that amounted to gross misconduct was made known to him. The claimant therefore maintained that the said dismissal is wrongful and that the fact of dismissal does not excuse the defendant from paying the entitlements of the claimant earned while in employment as the defendant is bound by the terms of the letter of employment, the conditions of service, the gratuity sheet and statutory provisions on deduction and remittance of pension.

The claimant averred that relief 3.1 is for payment of salary for the month of June 2012, that the claimant had worked for 8 days in June 2012, that the defendant had admitted this claim and computed the salary in June 2012 to be N8,667 (Eight Thousand Six Hundred and Sixty Seven Naira). The Claimant therefore submitted that he accepted this amount.

On relief 3.1, the Claimant argued that the contract of employment (CWA-A1) specifically provides that either party may terminate the employment by giving one month notice or pay one month salary in lieu of notice, that the Defendant had exercised the right to terminate and as such the Claimant is entitled to the sum of N70,000 (Seventy Thousand Naira ) being one month salary. To the claimant, the defendant had admitted this claim too.

On relief 3.3 the claimant said he conceded that the Gratuity sheet, Exhibit DWJ, put payment of gratuity from 5 years upwards but the defendant had given compelling evidence that those who worked less than 5 years in the company were paid gratuity, that this is the evidence of the practice in the company. That the claimant under cross examination had mentioned the names of ex staff of the defendant who did not work up to five years but were paid gratuity. The claimant therefore urged this court to act on this unequivocal and compelling evidence and award gratuity as claimed.

On relief 3.4, the claimant said that he has tendered exhibit CWF-F1 which is the medical bill and receipt, that the injury was sustained in the course of employment, that the bill was given to the defendant, and that there was no evidence before the court to show that the Defendant treated the eye injury or paid for same. The claimant therefore submitted that it was not disputed that the claimant is entitled to reimbursement for medicals as he was not treated in the Defendant’s hospital and urged the court to award the claim for medical expenses.

On relief 3.5, it is contended by the claimant that the defendant admitted owing overtime to the tune of N51,135 (Fifty One Thousand Nine Hundred and Thirty Five Naira), the Claimant then invited this court to see paragraph 12 of DWA-A2 and exhibit DWH which according to him are clear admissions. That the DW1 under cross examination confirmed that the overtime for the relevant period was not paid, that the claimant actually claimed the sum of N37,272.28 as overtime but  DW1 who is the accountant of the defendant knows the correct amount which is stated in Exhibit DWA-A2, the claimant urged this court to award same.

The claimant said that he has abandoned relief 3.6 which is claim for National Housing Fund.

On relief 3.7, the claimant said that the defendant had contended that the company does not pay leave bonus or leave not enjoyed under any circumstances but Exhibit DWK proves that the defendant pays leave bonus, that Exhibit DWK made provision for payment of leave bonus and that the Defendant has not proffered any reason why the claimant should not be paid. The claimant therefore urged this court to award the sum of N130, 000 claimed as leave bonus.

On relief 3.8, it is submitted by the Claimant that the his leave allowance is the sum of N57, 000 (Fifty Seven Thousand Naira) per annum, that the Claimant had worked for 6 months in 2012, that if the period worked is prorated, the Claimant would be entitled to the sum of N28, 500 (Twenty Eight Thousand Five Hundred Naira) as leave allowance for 2012, urging this court to award same.

On relief 3.9, the claimant said that the defendant has denied owing pension, that Exhibit CWG-G2 (Stanbic IBTC Pension Statement of Account) shows that the following months’ pension was not remitted:- May 2008-December 2008, January 2009-June 2009, August 2010, June 2011-December 2011, January 2012-June 2012 and  that the total unremitted pension amounts to the sum of N244, 930 (Two Hundred and Forty Four Thousand Nine Hundred and Thirty Naira). The Claimant submitted that the said exhibit speaks for itself and that the Defendant cannot contradict the contents of same that the rate of pension deductions is as shown in exhibit CWB-B6. The Claimant further claims interest on the unremitted pension in accordance with the Pension Reform Act, the Claimant also said that he claims damages and costs of the action.

In conclusion, the Claimant said that he has been able to establish his entitlements to the reliefs claimed on the balance of probabilities that the Defendant admitted much of the reliefs sought and urged this court to take these admissions into consideration.

DEFENDANT’S REPLY  ON POINT OF LAW TO THE CLAIMANT’S FINAL WRITTEN ADDRESS The defendant filed a reply in response to some of the issues raised by the claimant in his final written address.

The defendant said that the claimant’s Counsel at paragraph 2.4 of his final written address placed so much emphasis on the weakness and inconsistencies in the testimony of DW1 and urged the court to disbelieve his evidence in its entirety, the defendant therefore submitted that this is not the correct position of the law, that it has been established by judicial authorities that civil cases are determined on preponderance of evidence and that the defendant is not bound to call evidence. Citing Ibiyeye v. Fojule (2006)3 NWLR (Part 968) page 640, Health Care Products (Nig) Ltd v. Bazza (2004) 3 NWLR (Part 861) page 582 and Atunina v. Ladenika (1998) 7 NWLR (Part 557) page 221 at 228-229, the defendant urged this Court to discontinuance all submissions/arguments made by claimant’s counsel in this regard as same are not in accordance with established principles of the law.

The defendant further stated that the claimant’s counsel under this paragraph distorted and misrepresented the facts to before the court, that under Cross-Examination, the claimant’s Witness (CW1) could not give the names or particulars of the former staff of the defendant who spent less than 5 (five) years and were paid gratuity as alleged by the claimant. The defendant therefore urged this court to discountenance this paragraph as same is based on distortion of facts.

The defendant also reproduced the claimant’s submission at paragraphs or clauses 3.2-3.3 of the claimant’s final written address as follows:

  ‘’The claimant specifically denied that he ever received Exhibits DWC, DWD AND DWF-F2. The Claimant disowned the acknowledged signatures on the said documents and invited the court to compare the signatures on those documents with his verified and admitted signatures. The undisputed admitted signature of the claimant is in the court processes. We would submit that it would be dangerous to compare the signatures in Exhibits DWC, DWD and DWF-F1 with the alleged signature in exhibit CWJ. ‘’

It is contended by the defendant that the above submission of the claimant has no basis in law. The defendant therefore urged this Court to follow the decision of the court in Ezechukwu Vs Onwuka (2006)2 NWLR (part 963) page 151 particularly at page 159, head note 8, where it was held as follows:

            ’’Where there is a dispute as to signature, the duty of the court is to compare same. A trial judge is entitled to examine a signature which is being denied and is in issue.’

It is further contended by the defendant that Exhibits DWC, DWD and DWF-F1 were tendered to assist the Court in comparing them with exhibit CWJ. The defendant therefore urged this Court to compare the signatures on the aforementioned exhibits and to hold that there is no difference or significant difference in the signature on the Exhibits.

In response to the claimant’s submission at paragraphs 5.0-5.2 that the defendant has  admitted  part of claimant’s claim, the defendant said that the question which begs to be answered is: “Why did the claimant not bring a motion for judgment based on the amount admitted by the Defendant?. Why did the claimant waste the precious judicial time by leading evidence to prove the entire claim or the part which has already been admitted?” The defendant therefore submitted that that the submissions and summary of fact contained in the claimant’s Final Written Address are calculated towards misrepresenting facts to the court, the defendant therefore urged this court to verify the facts from the records of the court.

The defendant finally submitted that the submissions of the claimant in paragraphs 6.0-6.10 were based on sentiments rather than on facts that were established during the trial of the case and that the position of the law is that the soundness or elegance of an address by counsel cannot in anyway save or cure the defects in evidence put forward by the claimant in a case; it is fact that speaks not sentiments or emotions. The defendant therefore urged this court to discountenance the submission of the claimant and to dismiss this case in its entirety.

                                                        COURT’S DECISIONS

Having painstakingly examined the claimant’s case and the defence put up by the defendant, it is my humble view that only two issues present themselves for determination in this case and they are:

  1. Whether the termination of the claimant’s appointment is wrongful.
  2. Whether the claimant is entitled to the reliefs sought.

Before I proceed to determine the merit of this case, let me first of all determine the objections to the admissibility of some of the documents tendered which the court advised the parties to raise in their respective final written addresses.  The claimant raised objection to the admissibility of the copies of query letters allegedly issued to him by the defendant, which query letters are dated 27/06/2008 i.e Ex. DWC and 27/09//2008 i.e Ex. DWD; letter of suspension dated 20/10/ 2010 Ex. DWF-F1 and a copy of gratuity sheet i.e Ex. DWG.

The defendant objected to the admissibility of the staff hand book, Exhibit DWK but did not incorporate the objection in to its final written address, I therefore deem same as abandoned by the defendant and I so hold.

It is the claimant’s contention at paragraph 3. 2 of his final written address that to be admissible, the document’s sought o be tendered must be relevant, pleaded, listed and their copies front loaded in accordance with the rules of this court, citing Torti V. Ulepabi (Supra). The claimant has denied receiving Exhibit DWC, DWD and DWF –F2 and disowned the acknowledgment signatures on them, the claimant then invited the court to compare the acknowledgment signatures on these documents with the admitted signature of the claimant on the court processes. The claimant also urged this court not to compare same with the claimant alleged signature on Exhibit CWJ because they all are samples produced from the custody of the defendant and there was great opportunity for the defendant to tamper with the documents including the acknowledgment signatures on them.  It is the claimant’s contention that Exhibits DWC, DWD and DWF –F1 were produced by the defendant for the purpose of this suit and that this court should not attache probative value to them as they offended S. 83(3) E.A. The claimant however admitted receiving only one query from the defendant in the course of his employment i.e Exhibit DWE to which he had responded vide.

On Exhibit DWF –F1, it is the claimant’s contention that he deposed on oath to the effect that he was never suspended with or without pay and that the DW further laid his issue to rest while under cross examination he submitted that the claimant’s salary was never withheld as a result of suspension.

The claimant further contended that Exhibit DWG was not front loaded, that is undated, that it offends the provision of S. 83(3) of the Evidence Act and therefore lacks probative value. The claimant therefore urged this court to exclude Exhibit DWG. Citing UBA PLC V. AYINWE (supra)

In reaction, the defendant urged this court to compare the claimant’s signatures on Exhibits DWC, DWD and DWF1 with the claimant’s signature on Exhibit CWJ, the defendant then argued that the submission of the claimant’s causel has no basis in Law and urged the court to follow Ezechukwu V. Onwuca (supra) where it was held that where there is a dispute as to signature, the duty of the court is to compare same.

It is trite that in resolving the issue of due execution of a document where the alleged maker denies his signature, the course or options available to the Court are: (i) To receive evidence from the attesting Magistrate if there is such an attestation, and if it is still possible to call the Magistrate. (ii) To hear evidence from a person familiar with the signature of the alleged signatory of who saw him write the signature. (iii) To compare the signature admitted by the alleged signatory to be his own with the one under contention under section 108 (1) of the Evidence Act. (iv) To direct the person to sign his signature for the purpose of enabling the Court to compare the signature alleged to have been written by him under section 108 (2) of the Evidence Act. See Adenle v. Olude (2002) 18 NWLR (Pt 799) 413 and Amadi v. Orisakwe (2005) 4 M.J.S.C. 152 at 162 to 163, (2005) ALL F.W.L.R. (pt 247) 1529.  I therefore agree with the claimant’s submission where he invited this court to compare the signature on those exhibits with his admitted and undisputed signatures on the court processes in the suit,

In the instance case, I have compared the claimant’s signatures on the statement of facts and the verifying affidavit, both dated 18/07/2016 from the record before me with the claimant’s acknowledgement signatures on Exhibits DWD, DWC and DWF1 and found that they are not the same. There is also no evidence before me to suggest that the claimant has more than one signature; more so, Exhibits DWF-F1 were altered which alteration in my humble view rendered their authenticity doubtful. There is also nothing before this court in form of claimant’s reply to Exhibits DWC and DWD which would serve as a proof that the claimant was actually served with those queries. In the circumstance, I find and hold that Exhibits DWC, DWD and DWF – F1 having not been proved to have been served on the claimant, are hereby discountenanced.

The defendant did not join issue in its reply to the claimant’s objection that Exhibit DWG was not front loaded, that it is undated and offends the provisions of S – 83 (3) E.A. I have carefully examined Exhibit DWG, as rightly argued by the claimant, it is undated, not front loaded but the claimant did not substantiate his argument that it was made during the pendency of this suit.  In any event, for the reasons that Exhibit DWG it is undated, not front loaded and in the absence of oral evidence as regards the date on which it was made, I find and hold that Exhibit DWG is not admissible and it is herby discountenanced.

The defendant sought to rely on Exhibit DWH (copy of pay off voucher) in which the defendant gave the entitlements of the claimant as at the time the claimant’s appointment was terminated. The claimant, in trying to prove his entitlement to overtime allowances, sought to rely on this exhibit. I think it is pertinent for me at this juncture to state that I have had a careful perusal of Exhibit DWH and I find that it belongs to the category of documents which must be dated and signed but it is not so. This being the case, I hold that Exhibit DWH is in admissible and it is accordingly hereby discountenanced. The law is that a document which ought to be signed and if not signed, is worthless and be discountenance. See Nwancho v. Elem (2004) All FWLR (Pt. 225) 107, Aiki v. IOdowu (200)All FWLR (Pt. 293) 361.

I shall now proceed to determine the merit of this case. The claimant’s relief one and two are improperly couched, relief one is for an order of this court that the claimant’s appointment was wrongfully terminated and that the said termination is null and void while relief two is for an order of this court that the claimant’s letter of termination dated 8th June, 2012 is null and void and of no effect. I do not think that this court can nullify the termination of the claimant’s appointment, nor can this court make an order that the claimants’ letter of termination is null, void and of no effect. I think Reliefs 1 and 2 should have been for declaratory order, however, even if they are so couched, I do not think they are grantable because the claimant’s appointment is without statutory flavor.  See Rivers Vegetable OilLtd. V. Mrs. Mercy Egbukole (2009) LPLR – 8379 (CA) p.23 para. B- F.

The claimants’ argument is that his appointment was wrongfully terminated.  The Law is that a claimant who seeks for a declaration that his appointment was wrongfully terminated has the onus of placing before the court the terms of his contract of employment with the employer and to prove in what manner the terms have been breached. See Azenabor v. Bayero University, Kano (2009) 17 NWLR (pt.1169) 96 C.A.

The claimant has averred at paragraph 15 of the statement of facts that his appointment was terminated on ground of gross misconduct and at paragraph18 the clamant averred that he made several efforts to know his actual offence by also meeting one Mr. Maruwa (the defendant’s HRM) who also asked the claimant whether he (Mr. Manuwa) has no right to sack him (the claimant), the claimant also pleaded and tendered Exhibit CWA-A1. The procedure for terminating the claimants’ employment is provided in the first paragraph of Exhibit CWA1 as follows:

“Termination

The employment may be terminated:

  1. By either party given the other one month notice in writing of intention to terminate.
  2. By the company without notice or payment in lieu of notice in the event of serious misconduct or persistent unpunctuality, neglect of duty or breach of any rules made by the company.”

To the claimant, his appointment was terminated for gross misconduct and he made efforts to know the actual offence he committed but proved abortive.

The Law is that an employer is not bound to give reasons for terminating the appointment of his employee; however where the employer give reason for the termination, the onus lies on the employer to establish the reason stated.  See Afribank (Nig.) PLC V. Osisanya (2000) 1 NWLR (pt. 642) 592 C.A.  The defendant terminated the claimants’ appointment vide Exhibit CWD on 08/06/2012 which read thus:

“We regret to inform you that your employment with Pisces Power and Services Limited has been terminated on 8th June 2012 for Gross Misconduct.”

No particulars of gross misconduct were stated in the said letter.  However, in paragraph 13 of its statement of defence, the defendant averred that the termination of the claimant’s appointment was not wrongful but was a result of gross misconduct and that the claimant was issued with various warnings, reprimands and was also suspended from his duties.The defendant also tendered Exhibit CWK i.e. claimant’s response to query dated 27/06/2008 Exhibit DWE, Exhibit DWC i.e. query dated 27th June 2008, Exhibit DWD i.e query dated 22/09/2008, Exhibit DWE i.e query dated 19/10/2010, Exhibit DWF i.e. letter of one month suspension dated 20/10/2010, Exhibit DWF1 i.e. claimant’s response to Exhibit DWE and DWF2 i.e. query dated 10/06/2011 to justify gross misconduct by the claimant.

It is on record that Exhibits DWC, DWD, and DWF-DWF1 have been discontented, what remain are Exhibits CWK and DWE.  It is not in dispute that the claimant’s appointment was terminated on 8th June, 2012 for gross misconduct. Can the defendant rely on these Exhibits to justify the termination of the claimant’s employment for gross misconduct as alleged in Exhibit CWD? I think the answer is no, I think by failing to take actions after all these  queries were issued, the last of which  was issued 19/10/2010, coupled with the fact that there is no evidence that the queries, except the one issued on 27/6/2008, where  responded to and the defendant did not take any disciplinary action against the claimant, this being the case, the defendant  is, in my humble view, which I find and hold, deemed to have condoned whatever wrong alleged to have been perpetrated by the claimant. The law is that where an employer is lax in disciplining an employee, that would be read as condoning the act of the employee and so the employer would lack the right to dismiss him afterwards. See Abdulrahman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & Anor (2013) 35 NLLR (Pt. 103) 40 NIC. In the instant case, the defendant, having failed to justify gross misconduct by the claimant,  I find and hold that the termination of the claimant’s employment is wrongful.

Relief 3.1 is for the sum of N70, 000.00 (Seventy Thousand Naira only) being the claimant’s unpaid salary for the month of June, 2012. The claimant’s appointment was terminated on 08/06/2012, vide Exhibit CWD, can the claimant claim salary for the whole month of June while he actually worked for eight days in the month?  I think the answer is no. In paragraph 12 of the defendant’s statement of defence, the defendant has admitted that the claimant had worked from 1st – 8th June, 20112 and I agree with the defendant in this regard, I find and hold that the defendant is only entitled to salary from 1st – 8th June, 2012 in terms of relief 3.1.

Relief 3.2 is for the sum of N70, 000.00 (Seventy Thousand Naira only) being one month salary in lieu of notice, the defendant had admitted the amount at paragraph 5 of its statement of defence and paragraph 12 of Exhibit  DWA – A2.  It is trite that facts admitted need no further proof, I therefore find that relief 3.2 is grantable and I so hold.

Relief 3.3 is for gratuity in the sum of N 672, 000.00 (Six Hundred and Seventy Two Thousand Naira only). The Law is that where an employee or former employee complaints that his employer is in breach of the conditions service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the anus of placing before the court, the staff condition of service or terms of contract of employment and to prove in what manner any of them were breached by employer.  See F.M.C Ltd. V. Ekpo (2004) NWLR (pt. 856) 100.  The claimant in the case has averred at paragraph 23 of the statement of facts and paragraph 23 of his statement on oath that he is entitled to be paid the above sum as gratuity by the defendant. The claimant said under cross examination that the defendant’s staff that were paid gratuity were free service managers and the claimant was not given staff hand book.  The claimant also tendered the defendant’s letter of computation of terminal gratuity, i.e Exhibit DWJ through the defendant’s witness.

The defendant’s contention in this regard is that the claimant is not entitled to be paid gratuity having not qualified for it.  From the contents’ of Exhibit DWJ which I carefully read, a staff that spent less than five years in the Defendant’s employment is not qualified for any form of gratuity.  The claimants ‘in this case was employed by the defendant on May 22nd 2008 and his appointment was terminated on June, 8th 2012, a period of four years and sixteen days, it is therefore my humble view which I find and hold in this regard that the claimant has not proved his entitlement to the payment of gratuity by the defendant. Relief 3.3 is accordingly not grantable, it fails and it is hereby dismissed.1 find and I so hold.

Relief 3.4 is for the sum of N105, 000.00(one hundred and five thousand naira) as special damages for the injury sustained by the claimant in the cause of employment.  The Law is that special damages must be proved with exactitude without space for speculation, estimation or fractions. See NEPA v. B.B.B Manufacturing Co. Ltd (2004) ALL FWLR (Pt. 198) 1175 at 1189 by the claimant.

The claimant in a bid to prove his entitlement to this relief, tendered Exhibit CWF i.e. the claimant’s medical bills for the treatment of eye burn and gave the particulars of same at paragraph 29 of his statement of facts.  The claimant also said at paragraph 27 of his statement on oath that he paid the said sum despite the fact that the hospital had sent a copy of the medical bill to the defendant.  On cross examination, the claimant stated that when he sustained the injury, he went to the defendant’s clinic but the doctor told him that they were not treating eye problem, when asked if he was referred to another hospital by the doctor, the claimant said that the doctor did not refer him to another hospital.

The defendant’s reaction to this claim is the claimant did not report any injury to the defendant and neither did he visit the clinic.

Given that the claimant is required by Law to prove this entitlement to his relief strictly, the claimant is expected to lead evidence to establish that the he sustained the alleged eye injury in the course of his employment with the defendant, that he reported the injury to the defendant, that the defendant had failed to do anything on it which necessitated the claimant to resort to another hospital for treatment, the claiamnt must specify the expenses incurred in the course of treating the said injury. The claimant did not do the above; the claimant only said he reported to the doctor at the defendant’s clinic but the doctor did not treat him nor did he refer the claimant to another hospital, the claimant is by law expected to lead evidence to prove this fact but he failed to do so. The law is settled that he who asserts must prove.  See Hillary Farm Ltd. &Ors. V. M. V. Malitra & Ors. (2007) LPELR 1365 (pp. 28 – 29) para G – A.

The claimant merely tendered CWF-F1, EX. CWF is the claimant’s medical bill from Victory Specialist Hospital, it bears the name of the claimant, it is headed “MEDICAL BILL FOR THE TREATMENT OF EYE BURN”, it was addressed to the defendant, it gave break down of the treatment as follows:

                                    Treatment given                      N60, 000.00

                                    Minor Operation                     N30, 000.00

                                    Pair of glass                             N15, 000.00

                                    Total                                        N105, 000.00

Exhibit CWF1 is the receipt issued by the Victory Specialist Hospital dated 05/12/2011; it bears the name of the claimant paying the above amount for treatment.  The claimant argument in this regard is that there is no evidence before this court to show that the defendant had treated the eye injury or paid for same and that it was not disputed that the claimant is entitled to reimbursement for medicals as he was not treated in the defendant’s hospital. With respect to the learned counsel for the claimant, I think this argument is untenable; the law is that special damages must be specifically claimed and strictly proved.  This proof is not subject to the claim being controverted or challenged.  See ISC Services Ltd. V. Genak Continental Ltd.&Anor. (2006) LPELR 7662 C.A.

The Defendant’s reaction to in this regard is that the claimant had failed to lead evidence to establish what he listed under special damages i.e. the cost of treatment at Victory Special Hospital and Eye Specialist Centre.

Having painstakingly examined Exhibit CWF –F1, it is my humble view that the claimant did not particularized and strictly proved the expenses he incurred in terating the eye injury he claimed to have sustained.  Exhibit CWF did not provide the details of how the claimant was diagnosed for the injury, the type operation conducted, the prescriptions made and the cost.  The Claimant ought to have led evidence to establish all these things. See Daniel Holdings V. U.B.A. PLC (2005) 11 MJSC 69 at 73. This being the case, I find and hold that relief 3.4 is not grantable; it fails and is hereby dismissed.

Relief 3.5 is for the sum of N37, 272.28 (Thirty Seven Thousand Two Hundred and Seventy Two Naira Twenty-Eight Kobo) as overtime allowances.  The claimant averred at paragraph 30 of the statement of facts that he was owed overtime allowances from January – May 2012 amounting to the above mention sum, and pleaded his pay slips for the November 2011 which the claimant says showed the rate of the over time.  The claimant did not lead evidence to prove the number of days and hours he run over time, the claimant merely pleaded and tendered copies of pay slips and says they show the rate at over time was paid. It is trite that when documents are front loaded, counsel are expected to indicate to the court the exact provisions of the documents they front loaded that grants them the entitlement they claim. See Dungus & Ors. V. ENL Consortium Ltd. (2015) 60 N.L.L.R (Pt. 208) 39. This being the case, I find and I hold that relief 3.5 is not grantable; it fails and is hereby dismissed.

Relief 3.6 is for NHF and the claimant have submitted at paragraph 6.6 of the written address there he had abandoned it; relief 3.6 is accordingly dismissed and I so hold.

Relief 3.7 is for leave bonus, in the sum of N130, 000 (One Hundred and Thirty Thousand Naira only) for 2009/2011 at the rate of N65, 000 (Sixty Five Thousand Naira only) per annum.  The claimant did not lead evidence to prove his entitlement to this relief, claimant merely claims for the sum and said in its final address that Exhibit DWK provides for payment of leave bonus.  Can the claimant merely rely on Exhibit DWK without indicating how he arrived at that figure from Exhibit DWK?  I think the answer is no. The claimant did not refer this court to the particular provision of Exhibit CWK which provides for the formula for calculating leave bonus and how he arrive at N65, 000 (Sixty Five Thousand Naira) per annum as leave bonus. This being the case, it is my humble view which I find and hold that relief 3.7 is not grantable; it fails and is hereby dismissed. See. Dungus v. ENL Consortium (supra)

Relief 3.8 is for leave allowance for the year 2012.  In the sum of N28, 500 ( Twenty Eight Thousand Five Hundred Naira Only), having worked for 6 months in 2012. The claimant did not however lead evidence to prove that his leave allowance is the sum of N57, 000 (Fifty Seven Thousand Naira) per annum, as he claimed. I therefore find and hold that relief 3.8 is not grantable and it hereby dismissed.

Relief 3.9 is for unremitted deductions for pension for the months of May 2008 – December 2008, January 2009 – June 2009, august 2009 – November 2009, August 2010, June 2011 –December 2011 and January2012 – June 2012, the total of which the claimant put at N 244, 930.00 (Two Hundred and Forty Four Thousand, Nine Hundred and Thirty Naira only).  The claimant tendered Exhibits CWG –G2 i.e. claimant’s statement of account with Stanbic IBTC and Exhibit CWB – B6 i.e. claimants pay slips for August 2008, January 2009, September 2009, February 2009, March 2009, June 2009 and July 2010 which the claimants said had shown the rate of the deductions made.  The claimant gave the breakdown of the deductions made from his salaries by the defendant which were not remitted to the claimant’s Pension Fund Administrator i.e. Stanbic IBTC Pension Managers.

I have carefully examined the contents of Exhibit CWG – G1 and discovered that no such remittances were made of the claimant’s pension.  This therefore shifts the evidential burden on the defendant to prove otherwise. See Afolabi V. Alaremu (2011) LPELR 8894 – C.A.  The Defendant at paragraph 17 of its statement of defence had denied this fact but did not adduce evidence to discharge this evidential burden.  The DW witness said under cross examination after looking at Exhibit CWG – G1, that there was no remittance by the defendant for May – December 2008, January – June 2009, August 2008, August 2010, June – September 2011.  It is therefore my humble opinion which I find and hold that the claimant has sufficiently proved his entitlement to relief 3.9.  The law is very settled that evidence not challenged or contradicted,  ought to be accepted by the court.  See NITEL Plc V Ayu (2009) ALI FWLR (pt.411) 904 at 907 p. 920 paras. G – H (SC).

Relief 4 is for pre and post judgment interest at the rate of 20% and 10% respectively on the amount claimed under relief 3, this court does not award pre judgment interest. See Mr. Kurt Severance V. Emerging Markets Telecommunication Services Limited (2012) 27 NLLR (pt.78) 374 NIC. The claim for 20% pre judgment interest is accordingly hereby dismissed.

Relief 5 is for the sum of N1, 000,000.00 (One Million Naira) being the cost for emotional suffering and mental torture occasioned by the nature of the claimant’s employment by the defendant. The claimant did not lead evidence to prove emotional suffering and mental torture, this relief therefore fails and is hereby dismissed.

Relief 6 is for cost and damages. The claimant did not state the amount he is applying for as cost. As for claim for damages, I do not think this relief is grantable because having granted relief 3.2 i.e. one month salary in lieu of notice, granting the claimant’s claim for damages will amount to double compensation whish the law frowns at. See British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276. This being the case, I find and hold that relief 6 fails and is hereby dismissed.

In sum, for all the reasons stated, the claimant’s case succeeds in part and only in terms of reliefs 3.1, 3.2 (in part) and 3.9 as indicated. For the avoidance of doubt, therefore, the claimant’s case succeeds in terms of the following orders which shall be complied with within 30 days of this judgment:

  1. The defendant shall pay to the sum of N8,667.00 (Eight Thousand Six Hundred and Sixty Seven Naira) as the claimant’s salary from 1st-8 th of  June 2012.
  2. The defendant shall pay to the claimant the sum of N70,000.00 (Seventy Thousand Naira) as the claimant’s one month salary in lieu of notice.
  3. The defendant shall remit to Stanbic IBTC the sum of N244,930.00 (Two Hundred and Forty Four Thousand, Nine Hundred and Thirty Naira) being the total pension contribution of the claimant deducted by the defendant but not remitted, which sum is to be credited into the claimant’s Retirement Savings Account (PEN 100471400809).
  4. Failing any of the above shall attract 10% interest per annum until fully paid.

Judgment is entered accordingly. I make no order for cost

                                           .……………………………………………

HON. JUSTICE MUSTAPHA TIJJANI.

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