Mr. Emmanuel Oshogwemoh -VS- Lino Laboratories Ltd & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGER\A

INTHE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

DATE: 30^th JANUARY, 2020

SUIT NO. NICN/LA/457/2018

BETWEEN

EMMANUEL OSHOGWEMOH )—————————- CLA\MANT

AND

LINO LABORATORIES LTD )

LIVINUS OBIDIKE )—————————–DEFENDANTS

REPRESENTATION:

A Oluonye Esq. For the claimant.

Ikechukwu Onodi Esq. with A. Akujieze Esq. for the defendant.

JUDGMENT.

By a complaint dated and filed on the 4/9/2018, the claimant sought the following relieves from the court against the defendants;

The sum of N 799, 564. 00 (Seven Hundred and Ninety-nine Thousand, Five Hundred and Sixty-four Nair a) being total unpaid salaries with interest thereon at the rate of 21% per annum from May 31, 2017 until judgment and interest at the rate of 21% per annum from the date of judgment until final liquidation of the debt

The sum of N581 000. 00 (Fifty-eight Thousand Naira) being payment in lieu of notice of termination of claimant’s employment.

The sum of N195, 000. 00 (One Hundred and Ninety-five Thousand Naira) being the total sum deducted from the Claimant’s salaries as pension contribution from November 15, 2016 to November 30, 2017 when the claimant’s employment was terminated without previous notice.

Cost of this action.

In response to the complaint which was duely served on the defendants, the defendants filed a joint statement of defence on the 9/10/2018 wherein they denied the claims of the claimant. The claimant filed a reply to the statement of defence on the 2/11/2018. Hearing in this suit, commenced on the 13/5/2019. The 1^st claimant testified as CWI, adopted his witness deposition dated 4/9/2018 and 2/11/2018 and went ahead to tender the following documents in evidence;

Offer of appointment dated 17/10/2016 admitted and marked Exhibit C1
Letter of termination dated 30/11/2017, marked as Exhibit C2
Letter of demand for outstanding salaries dated 4/1/2018, marked as Exhibit C3
Claimant Solicitor letter of demand dated 19/2/2018, marked as Exhibit C4.
Lino laboratory 1^st, 2^nd, and 3^rd quarter sales report, marked as Exhibit C5.
Claimant Sigma Pension Retirement document, admitted and marked Exhibit C6.
Certificate of product movement within ECOWAS, admitted and marked Exhibit C7.

The claimant closed his case. The defence opened their defence on the 7/10/2019. One Mr Dike Awa the accountant of the 1^st defendant testified un-behalf of the defendants. He adopted his witness deposition dated the 9/10/2018 and went on to tender the following documents in evidence;

The Lino Laboratory petty cash voucher, admitted and marked as Exhibit D7 a to u.
The claimant’s detail of job responsibility/duties, admitted and marked as Exhibit D8
Letter of offer of provisional appointment, admitted and marked as Exhibit D9.

The defence closed their defence and the matter was adjourned to the 4/12/2019 for the adoption of final written address of parties. The parties through their counsel adopted their final written addresses and the matter was adjourned to today for judgment.

BRIEF FACTS OF THE CASE.

The claimant was offered an employment as sales/marketing manager vide a letter dated 17/10/2016 by the 1^st defendant. The claimant allege that as part of his condition of service he was to be given an official vehicle which the 1^st defendant failed to so do, resulting in his use of his personal vehicle for which he was promised a weekly fuelling allowance of N 50,000 which was only given to him a few times. The claimant allege that his salary was never paid in full. The 1^st defendant deducted N15,000 representing 7.5% mandatory pension contribution from his monthly salary which were never remitted to his retirement savings account with Sigma Pension Fund. The claimant allege that due to his refusal to conceal information from Lagos State Tax Authorities, The 1^st defendant abruptly terminated his appointment vide a letter dated 30^th November 2017. This was without giving the requisite notice to terminate the employment as envisaged by the terms of the contract. The 1^st defendant also failed to pay one month salary in lieu of notice and the arrears of salary owed the claimant. The claimant formally demanded the payment of the outstanding salaries but the1^st defendant has failed to make the payment.

The defendant’s case is that they deny the allegation that the claimant had a private vehicle and that the claimant was refunded his transport expenses on weekly basis. The defendant allege that the claimant performance was abysmally low resulting in the non-confirmation of the appointment by the defendants even after the extension of the probationary period. Eventually the claimant was termination of his appointment. The defendants allege that the claimant never met his set target that was why he was not confirmed. The defendant also deny the fact that 7.5% of the claimant monthly salary of N58,000 was N15, 000 rather it is N4,350.00k. The defendants deny owing the claimant the sum of N 1,052,564.00. the defendant also deny that there is any privity of contract between the 2^nd defendant and the claimant. This in a nutshell is the facts in issue in this action.

From the facts and circumstances of this case, This court is called upon to determine from the evidence adduced in the course of hearing, whether the claimant has been able to offer evidence in proof of his claims. This court will consider the claims seriatim.

ON CLAIM NO. 1

The claimant here claims the sum of N 799, 564. 00 (Seven Hundred and Ninety-nine Thousand, Five Hundred and Sixty-four Nair a) being total unpaid salaries with interest thereon at the rate of 21% per annum from May 31, 2017 until judgment and at the interest rate of 21% per annum from the date of judgment until final liquidation of the debt.

The claimant in proof of his employment status tendered Exhibit C1, the offer of provisional appointment dated 17/10/2016, in the offer the salary of the claimant is stated to be N 58,000.00k per month. The claimant also tendered Exhibit C3 dated 4/1/2018 wherein the claimant demanded outstanding salaries from May, to November 2017 in the sum of N799,564.00k and a further sum of N58,000 as one month salary in lieu of notice. In the letter of termination of the claimant employment dated 30/11/2017, tendered as Exhibit C2, the defendant wrote;

‘Your basic Salary in lieu of notice in accordance to the terms of your engagement as well as the arrears of your remunerations up to and including November 2017 which amounts to N857.564.00k (Eight Hundred and Fifty Seven Thousand, Five Hundred and Sixty Four Naira Only) shall be paid to you as soon as possible hopefully during Year 2018’.

It is the combination of the arrears of salary and the one month salary in lieu of notice that makes the sum of N 857,564.00k admitted, acknowledged and undertaken by the defendant to pay to the claimant as stated in Exhibit C2. The defendant counsel in his final address admits in paragraph 2.04 argues that Exhibit C 2 commits the 1^st defendant to the claimant in the total sum of N857,564.00k. His further argument in paragraph 2.11 that the admission in Exhibit C2 is an informal admission since it is not an admission in pleadings is without any legal authority. Admission of a party to a proceeding may be made in any document which may be pleading or any other document tendered in a judicial proceeding before the court which suggest any inference as to any fact in issue or relevant fact. See section 20 of the Evidence Act. See also UBA. V. Jargaba [2007]LPELR-3399 (SC). The defendant cannot deny the content of Exhibit C2. It is clear that the said Exhibit C2 constitutes a clear admission by the defendant to pay the sum stated therein to the claimant. In the light of the evidence adduced in proof of this issue it is the position of this court that the claimant has satisfied the burden of proof of his entitlement of the sum of N 799, 564. 00, being total unpaid salaries for the months of May to November 2017.

As regards the interest the claimant claims interest on the sum awarded as judgment at the rate of 21% per annum from May 31, 2017 until judgment and also at the interest the rate of 21% per annum from the date of judgment until final liquidation of the debt.

Apart from the mere claim of this interest in the reliefs of the claimant no evidence was led by the claimant to establish his right to the interest claim. The position of the law is well settled on how a litigant may claim interest in an action. Interest may be claimed as of right where it is contemplated by the agreement between the parties or under a mercantile custom. In the case of Daniel Holdings Ltd. V. United Bank for Africa [2005]LPELR-922(SC) the Supreme court reiterated this position when it held ‘interest may be claimed as a right where it is contemplated by agreement between the parties, or under a mercantile custom or under a principle of equity such as a breach of a fiduciary relationship’. In the case of London Chatham &Dover Railway V. S.E. Railway [1893] AC 429 at p. 434. The court held that where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such entitlement in the statement of claim.

I have carefully examined the statement of facts in this action there is nowhere the claimant pleaded fact which establish his entitlement to the 21% interest claimed in this action. Furthermore, the nature of the contract of employment as evidenced by Exhibit C1 i.e. the letter of offer of appointment did not, for all intent and purpose contemplate that in the event of failure to pay the agreed salary as at when due, the claimant shall be entitled to interest on the unpaid arrears of salary. For this reason the claim of pre judgment interest must fail and it is hereby dismissed.

On the grant of 21% post judgment interest, the position is that, this can only be granted at the utmost discretion of the court. See Order 47 Rule 7. This being the case a party cannot claim a post judgment interest as of right. The claim of this interest must fail and it is herby dismissed.

ON CLAIM NO. 2 ,

The claimant is also claiming in relief No. 2 the sum of N58,000.00 as one month salary in lieu of notice.

In his evidence in chief, the claimant testified that on the 30/11/2017 while the defendant was still owing him arrears of salary, he was served with a letter of termination tendered as Exhibit C2. In the letter of termination the defendant agreed to pay the claimant one month salary in lieu of notice in accordance with the terms of the letter of offer of provisional appointment tendered as Exhibit C1. The one month salary i.e N58,000.00k when added to the outstanding salaries N799,564.00 makes a total of N857,564.00k which the defendant has admitted as due to the claimant in Exhibit C2. I find that the defendant has admitted that he did not serve the claimant the requisite notice to terminate the contract of employment and therefore admits to the right of the claimant to be paid the sum of N58,000.00k as one month salary in lieu of notice. This court hereby enters Judgment in the Sum of N58,000.00k as claimed in this relief in favour of the claimant against the defendant.

ON CLAIM NO. 3

Here the claimant claims the sum of N 195, 000. 00 (One Hundred and Ninety-five Thousand Naira) being the total sum deducted from the claimant’s salaries as pension contribution from November 15, 2016 to November 30, 2017, when the claimant’s employment was terminated without previous notice.

The claimant case is that from the date of his employment up until the date of termination, the defendants deducted the sum of N15,000. 00k (Fifteen Thousand Naira) from his salaries every month as pension contributions albeit, nothing was remitted to his retirement savings account supplied to the 1^st defendant. The claimant in his final written address stated that pursuant to section 9(1) of the Pension Act 2004 the claimant was deducting 7.5% from his monthly emolument, which is stated in Exhibit C1 as N200,000.00k, which the defendant was not remitting to his retirement savings account with Sigma Pensions Limited. The particulars of the retirement savings account were tendered as Exhibit C6. The defendant has stated in his witness deposition that 7.5% which is the statutory percentage of deduction for pension from the claimant salary of N58,000.00k, translates into N4, 350.00k and not the N15,00 as claimed. I do not agree with the position stated by the defendant above. This is so because section 9 (1) of the Pension Act, dealing with rate of contribution to the scheme stipulates that the deduction is to be made from the monthly emolument of the employee. Also monthly emoluments has been defined in section 102 of the Pension Reform Act to mean ‘ a total sum of basic salary, housing allowance and transport allowance’. It is therefore a misconception by the defendant that the 7.5% was to be calculated on the basic salary of N58,000.00k. it is clear from Exhibit C1, that the monthly emolument of the claimant was N200,000.00k. The claimant is right to have based his claim on 7.5% of N200,000.00k .

Again this leads us to the amount which ought to have been deducted. If the claimant has worked from 15/11/2016 to 30/11/2017, that would have made 12 months of work with the defendant. N15,000.00k deducted for 12 months would have made it N180,000.000. I think that the total deduction ought to have been N180,000.00k. The law is that the court may give judgment for any part of his claim proved to the satisfaction of the court. See the case of Mba Orie & Anor. V. UBA & Anor. [1976]LPELR-2761 (SC) the Supreme Court stated ‘ It is a settelrd rule of law and practice that a party is entitled to judgment for any part of his claim proved to the satisfaction of the court’ (per Obaseki JSC. P.9 paras F-G) . On the strength of the above cited authority it is the position of this court that from the evidence adduced, the claimant has been able to show that his total deduction ought to be N180,000.00k Accordingly Judgment is hereby entered in the sum of N180,000.00 being the total sum deductible from the claimant salaries as pension contribution from November 15, 2016 to November 15, 2017.

In the course of writing the judgment, I considered Exhibits C5, D7, and D9 tendered in the course of the proceedings, these exhibits do not really add anything to the resolution of the issues dealt with in this judgment.

On the whole this action succeeds Judgment is hereby entered in favour of the claimant against the defendants in the following terms;

(1) The defendant shall pay the claimant the sum of N 799, 564. 00, being total unpaid salaries for the months of May to November 2017.

(2) The claim of 21% pre-judgment, and 21% post judgement interest on the above sum are hereby dismissed.

(3) The defendant shall pay the Sum of N58,000.00k being one month salary in lieu of notice to the claimant.

(4) The defendant shall pay the sum of N180,000.00 being the total sum deductible from the claimant’ monthly emoluments as pension contribution from November 15, 2016 to November 15, 2017, when the claimant was in the employment of the defendant.

(5) Cost of this action is assessed at N100,000

The sums ordered to be paid in this judgment shall be paid within 14 days from the date of this judgment failure of which it shall attract interest at the rate of 5%, until the liquidation of the judgment debt.

Judgment is entered accordingly.

_________________________________

HON. JUSTICE (Dr.) I. J. ESSIEN.

(Presiding Judge)