LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

MR FRIDAY WEKPA VS NET GLOBAL SYSTEM AND TECHNICAL SERVICES

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP:  JUSTICE I.S. GALADIMA

 

Dated: 26th November, 2018               

Suit No. NICN/YEN/110/2016

 

Between:

 

MR FRIDAY WEKPA                                              

                  

CLAIMANT

 

And

 

NET GLOBAL SYSTEM AND TECHNICAL SERVICES LTD

         

DEFENDANT

 

Representation:

  1. E. Wosu – Claimant’s Counsel
  2. S. Ottos – Defendant’s Counsel.

 

JUDGMENT

The Claimant commenced this suit on the 10th of  June 2016 by a complaint in which three reliefs are sought as follows:

  1. An award of this Court for the sum of five million naira (N5,000,000) in favour of the Claimant against the Defendant being damages for using the Claimant as a slave employee/worker and in a  manner relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters.
  2. An award of this Court for the sum of five million naira (N 5,000,000) in favour of the Claimant against the Defendant for failing and refusing to contribute to pension fund to the Claimant.
  3. An award of this Court with interest at the current rate on the sum of ninety thousand naira (N 90,000) being payment of salary in lieu of notice in favour of the Claimant against the Defendant from the 28th day of May, 2015 to the final determination of this matter.

The Complaint was filed alongside all the necessary originating processes. On the 15th of February 2016, the Claimant testified as a sole witness (CW1) in prove of same. The Defendant entered a conditional appearance, filed a Statement of Defence on 12th July, 2016 and called into evidence the testimony of one witness (DW1) Sado Akhere-Ugbesia.

FACTS OF THE CASE:

The Claimant was an employee of the Defendant from 10th January 2009, to May 28th 2015, when his employment was terminated. Before this termination, his employment was confirmed after the initial probationary period, his salary increased, and a Retirement Savings Account purportedly opened for him in 2015. The Claimant’s case is that the Defendant deducted monies from his salary as pension “without anything to show for it”. The Defendant’s defence is that no monies were deducted as pension contributions until June 2014, and the Claimant did not return the forms for the Pension Scheme till May 2015 resulting in the delay in remitting the deductions.

THE CLAIMANT’S CASE:

After pleadings had been settled, hearing began with the opening of the Claimant’s case on the 15th of February, 2018 with the adoption of his deposition filed 10th June 2016 on the same day as the originating processes. Six exhibits were tendered numbered Exhibits C1 to C6. He was duly cross-examined by the Defendant’s Counsel on the 12th of April, 2018 and closed his case on the same date. The documents tendered by the Claimant are as follows:

  1. Exhibit C1 – employment letter dated 10/1/2009.
  2. Exhibit C2 –confirmation letter dated 1/7/2009.
  3. Exhibit C3 – commendation letter dated 26/8/2011.
  4. Exhibit C4 – salary increase letter dated 20/3/2014.
  5. Exhibit C5 – termination letter dated 28/5/2015.
  6. Exhibit C6– Claimant solicitor’s letter to the defendant requesting reinstatement dated 29/6/2015.

 

THE DEFENDANT’S CASE:

The Defendant opened its case on 23rd of May 2018 with the testimony of DW1, who relied on his deposition of 12/7/2016, and testified under oath while tendering a total of 7 documents lettered as follows: Exhibits D1(a) and D1(b) —First Bank tellers dated 3/7/2015 and 20/8/2015 respectively; Exhibits D2(a) and D2(b)—letters written to Zenith Bank dated 25/2/2014 and 27/2/2015 respectively; and Exhibit D3—which is a letter from NLPC Pension Fund Administrators Ltd dated 7/4/2015, which was tendered through the Defense Witness during his cross-examination by the Claimant’s Counsel.

DEFENDANT’S FINAL SUBMISSIONS:

At the end of hearing on 23/5/2018, the parties filed their final addresses and adopted same on 26/11/2018.

 

The Court recessed and delivered judgment on the same 26/11/2018.

 

Meanwhile, the Claimant’s Counsel filed his written address on 2/7/2018 upon the expiration of the 21 days granted the Defendant to file his. The Defendant’s Counsel filed his written address on 26/9/2018 out of time and thus sought the leave of this Court to regularize which was accordingly granted. The Defendant again, further filed a reply on points of law on the 15/11/2018.

 

In the Defendant Counsel’s final written address three issues were raised for determination thus:

  1. Whether the Claimant has proved that the Defendant engaged the services of the Claimant as a slave worker or in any unfair labour practice as alleged by the Claimant?
  2.  Whether the Claimant has proved that the Defendant neglected to pay pension fund contributions for the Claimant?
  3. Whether the Claimant has proved that the Defendant refused to pay one month’s salary in lieu of notice of termination of Claimant’s employment amounting to N90,000?

 

On issue one, learned Counsel for the Defendant submitted that the Claimant must plead and prove that he was employed under conditions of slavery, which he failed to do, because there is no evidence before the Court showing that the Claimant was forced to work, or that his salaries were inadequate compared to other workers performing the same services for the Defendant or elsewhere. He buttressed further citing section 132 of the Evidence Act 2011, and Stodie Ventures Ltd v Alamieyeseigha (2016) 4 NWLR (pt 1302) 271 at 288  to the effect that the burden of proof in this case rests squarely on the Claimant. See also Yahaya v Dankwanbo (2016) 7 NWLR (pt 1511) 284 at 315. It was contended further that in this instant case, the Claimant voluntarily applied for employment with the Defendant. He was paid salaries and leave allowances and when the said employment was terminated he sought for reinstatement, showing that the Claimant has failed to prove that he was a slave worker as alleged in this suit. I was urged to resolve this issue one against the Claimant and hold that he has failed to prove the facts entitling him to the first relief in this action.

Regarding issue two, learned Counsel argued that the Claimant failed to plead or lead evidence about the exact amount of money that was deducted from his paid salaries as pension contributions and the period of time the monies were deducted. Also, Counsel submitted that the Claimant did not challenge the averments in the statement of defence and DW1’s evidence that the Defendant notified all employees in June 2014 to fill forms for pension scheme by which deductions will be made from salaries. This Claimant accordingly returned his forms in May 2015 following which the Defendant remitted the deductions from June 2014 to May 2015 as shown in exhibit D1. Citing the case of Adelakun v Oruku (2006) 11 NWLR (pt 992) 625 at 643-4, it was stated that the Court is entitled to rely on such unchallenged and uncontroverted evidence.

Arguing issue three, it was opined that the Defendant admits that the Claimant is entitled to one month salary in lieu of termination notice. However, Counsel pointed out that contrary to the instructions in the termination letter for the Claimant to return all the Defendant’s properties in his possession and collect his terminal benefits from the Finance department, under cross-examination, the Claimant purportedly admitted that he was still in possession of his employment identity card and he did not go to collect his terminal benefits. It was argued that the Claimant has disclosed no cause of action against the Defendant as he did not prove that he was refused the payment of his one month salary and the evidence of the Claimant is not credible because it was not corroborated. The decisions in the cases of Okoli Dim v Enemuo (2009) 10 NWLR (pt 1149) 353, and Okunade v Olawale (2014) 10 NWLR (pt 1415) 207 at 273 were relied upon.

Concluding, Counsel stated that the Claimant has not led credible evidence to prove on the balance of probability all the reliefs sought, and urged the court to dismiss the entire suit with substantial cost.

CLAIMANT’S FINAL SUBMISSIONS:

The Claimant’s Counsel raised one issue for determination thus: whether the Claimant has not proved his claims and whether the Defendant has defended this suit to warrant the refusal of the reliefs sought by the Claimant?

On this sole issue, Learned Counsel for the Claimant said the Defendant in paragraphs 3, 4, and 7 of the statement of defence admitted the facts in paragraphs 2—17 of the statement of facts, and these admitted facts require no further proof in conformity with the decision in Dantata v Mohammed (2012) 14 NWLR (pt 1319) 122 at 159-160. The synopsis of these “admitted facts” includes the strenuous nature of the job the Claimant handled while with the Defendant and the latter’s detachment of the assistants working with him. It was argued further that the Claimant is entitled to be compensated for this strain in line with section 3 (1) of the Workmen’s Compensation Act which provides that:

“if in an employment personal injury by accident arising out of, and in the course of the employment is caused to a workman, his employer shall subject as hereinafter mentioned be liable to pay for compensation in accordance with the provisions of this Act”

Two English authorities, R v Industrial Injuries Commissioner (1966) 2 QB 31, Benson v Lancashire Railway Corporation (1904) 2 KB 242, were cited in support of the above assertion.

Furthermore, Counsel contended that in the course of the Claimant’s employment for the over six years, the Defendant was deducting money from the Claimant’s salary. Furthermore, it was argued that exhibit D2 is an admission of paragraph 49 of the statement of facts, and also supportive of the fact that the Claimant was denied two years working leave in contravention of section 18 of the Labour Act, and international best practices in labour, employment and industrial related matters domesticated and ratified in Nigeria.

 It was further submitted that the Claimant is entitled to be paid the sum of N90,000 being his monthly salary in lieu of a month’s notice, having pleaded and proved this liquidated money demand as admitted by both of the parties to this suit – see S.P.D.C.N v Oruambo (2012) 5 NWLR (pt 1294) 617-8. Additionally, Counsel submitted that the facts averred about the Claimant’s ill health while he was working, were never challenged, and instead of allowing the Claimant proceed on sick leave, his employment was terminated as a result of “unsatisfactory performances so far” thereby contradicting the contents of the Defendant’s commendation letter, where the Claimant was hailed to have performed satisfactorily. The case of Emenike v PDP (2012) 5 NWLR (pt 1294) 555 at 586 was cited to further strengthen his argument to the effect that a party who has tendered a document which is admitted is bound by it and cannot disassociate himself from same. Finally, Counsel submitted that the Claimant has proven his case sufficiently to justify the judgment of this Court in his favour.

DEFENDANT’S REPLY:

In response on points of law, the Defendant’s Counsel stated that the Claimant can only succeed on the strength of his case and not on the weakness of the Defendant’s. He stressed that being a civil claim, the burden fell on the Claimant to establish his claims by sufficient evidence. He quoted S. 133 of the Evidence Act 2011 in his support and relied on the case of AYORINDE V. SOGUNRO. Accordingly therefore, the Claimant has the evidential burden to prove he is entitled to the N5,000,000.00 sought in his reliefs.

The Defense Counsel went on to rehash the arguments already contained in his final address rather than eliciting legal points worth noting and finally urged this Court to dismiss this suit.

COURT’S DECISION

It is my considered view having perused through the final submissions of both parties’ Counsel, that the sole issue for determination in this case is whether the Claimant is entitled to the reliefs he seeks in this case?

The following facts have been admitted by the parties to this suit. The Defendant employed the Claimant on 10th January 2009 and terminated his employment on 28th May 2015 as a result of “unsatisfactory job performance”. From the pleadings and evidence before me, I find that there existed a master and servant relationship between the parties. It is from this hitherto relationship, that the Claimant anchored the reliefs he claims.

Canvassing for the grant of the first relief in this case, the Learned Counsel for the Claimant contended that from the statement of facts and evidence of the Claimant, the Defendant in the second paragraph of exhibit C3, designated the Claimant to “coordinate activities in same capacity as above with a team of NGS staff” without providing necessary assistants as requested for which caused the Claimant severe strain. That by the strenuous nature of the job and coupled with the fact of no leave from work, eventually led to the Claimant’s breakdown and eventual ill health. Claimant’s Counsel maintained that the Defendant ought to compensate the Claimant in view of the provision of Section 3(1) of the Workmen Compensation Act. In other words, the first claim in this suit is anchored on the assertion that the Claimant was subjected to unfair labour practice whilst in the Defendant’s service.

To support this relief, evidence of being denied leave for two years, and job strain were averred by the Claimants. He believes that it was his complaint of stress and complaint that was the reason for the termination of his employment. In arguing the entitlement of the Claimant in this regard, his Counsel Mr. Benneth Wosu identified two sets of facts that make the Defendant accordingly liable in damages. The first fact is that the strain and eventual ill health of the Claimant qualify as a workplace injury under the Workmen Compensation Act. The second set of facts is accordingly, the denial of leave for two years which amounts to unfair labour practice under the Labour Act.

To begin with, the legislation cited by Counsel that is, the Workmen Compensation Act, was repealed by Section 72 of the Employees’ Compensation Act 2010. The long title of the Act clearly describes it as an Act to repeal the Workmen Compensation Act and to make provisions for any death, injury, disease or disability arising out of or in the course of employment.

Also, from the statement of facts, the strain on the Claimant begun in February 2015 when his workload became heavier as a result of the sack of two of his team members. The law in force at that time was the Employees’ Compensation Act which came into force in 2010. In the same vein, section 6(1) of the Interpretation Act, provides that the repeal of an enactment shall not:

  1. a)Revive anything not in force or existing at the time when the repeal takes effect…
  2. b)——
  3. c)——
  4. d)——
  5. e)——

It is therefore clear from the foregoing provision that the claim for compensation for injury cannot ordinarily be sustained since it is founded on an Act that was already repealed and non extant. See Goldmark Nig Ltd v Ibafon Co. Ltd (2012) 10 NWLR (pt 1308) 291 at 339.

In the instant case also, the Claimant asserted that the Defendant engaged in unfair labour practice necessitating his first relief. While it is true that section 254C(1)(f) of the 1999 Constitution of Nigeria(as amended) vests the National Industrial Court of Nigeria with jurisdiction in cases relating to unfair labour practices or international best practices in labour, employment and industrial related matters, under Nigerian law there is no statutory definition of what unfair labour practice means. Thus, as the Claimant has resorted to this court to award a relief arising from the internal practice of his ex-employer, it is my sacred duty to examine the Defendant’s conducts to determine its fairness or otherwise.

It is important to point out at this juncture that despite the wide powers granted this court by virtue of the third alteration act to the Constitution, in respect of a master and servant employment, the existing contracts between the parties are conclusive of the fairness or otherwise of the labour practices encountered during the course of their employment relationship. This position is anchored on the principle that where a contract is in writing, the parties are bound by its terms and conditions – see Olaniyan v UNILAG(1985) 2 NWLR (pt 9) 599; NEPA v Ango (2001) 15 NWLR (pt 737) 627 at 649-650 .

In the instant case where the Claimant seeks to ground his relief by claiming the Defendant’s conduct is a violation of the letters of the Labour Act, any relief sought accordingly shall fail because it is only where the acts, conducts or practices of the Defendant violates the terms of the contract of employment that this Court shall become seised with the jurisdiction to determine its fairness or appropriateness which must only be examined through the lens of whether the Defendant is in breach of the contract of employment or not. S.P.D.C.N Ltd v Nwawka (2001) 10 NWLR(pt 720) 64 enabled the Supreme Court to perfectly explain this principle, as follows – when parties make a contract they make their own law, to which they are subject and which creates their rights and obligations binding them and to which the general law only gives recognition or force.

Exhibit C1 – the contract of employment, neither makes provision for assistants to work with the Claimant, nor stipulates the Claimant’s leave period. There is ample reason to believe that the Claimant signed for this consensually. There is no evidence before this Court to suggest that the Claimant was forced to accept these terms and conditions. The law is clear that a party who enters into an agreement with his eyes and mind wide open is bound by the agreement. The Court too shall be bound by the agreement and will interpret same in the interest of justice – see Idoniboye-Obu v NNPC (2003) 2 NWLR (pt 805) 589 at 630.  

More so, the averment that the Claimant was denied leave was specifically denied by the Defendant who in paragraphs 12 and 13 of the statement of defence averred that the Claimant usually refused to proceed on leave in order to enjoy overtime benefits, and his leave entitlements were paid to him accordingly. Exhibit D2 was tendered in evidence to prove these averments. With the Claimant asserting he was not granted leave, and the Defendant denying the assertion and averring he was paid leave entitlements, the begging question would be – was the Claimant denied leave or not?

The Defendant wants the Court to believe that leaves were offered to the Claimant who rather chose the overtime entitlement benefits than proceeding on leave holidays. Having pleaded this fact and tendered exhibit D2, the burden of disproving this shifted to the Claimant who unfortunately did not provide any evidence to discharge the burden of proving that he was not denied leave. See section 136 of the Evidence Act 2011, and Amadi v Amadi (2017) 7 NWLR (pt 1563) 108 at 150-1.

From the foregone reasons and more, the Claimant’s prayer for N5,000,000 as general damages against the Defendant for purportedly using him as a slave employee/worker and in such manner relating to or connected with unfair labour practice or international best practices in labour, is refused simply because of the Claimant’s inability to sufficiently prove that he is entitled to this.

The Claimant  also claimed the sum of N 5,000,000 against the Defendant for failing to contribute to his pension fund. For ease of reference, I will reproduce the relevant paragraphs 19 and 20 in the statement of facts, where this fact was pleaded;

19—the Defendant deducted the Claimant’s salary/money in the form of pension without anything to show for it.

20—it was only in 2015 that the Defendant agreed to contribute 2015 (05/08/2015) when the Defendant paid eleven 11 months pension contribution fund. The payment was made after the Claimant was relieved of his appointment/ employment.

The Defendant denied both paragraphs and responded that it did not deduct any pension contributions until June 2014, and the monthly contributions from the Claimant from June 2014 to May 2015 were remitted to the pension fund administrator through exhibit D1A and D1B dated 6th July 2015 and 20th August 2015 respectively.

I believe that the law is settled on this point that he who asserts must prove. In this case, it is the Claimant who asserts that the Defendant deducted pension contributions from the Claimant’s salaries. He also claims five million Naira as relief from this Court as damages for the Defendant’s failure to contribute to the Claimant’s pension fund. The exact time frame within which monies were deducted was not provided for in paragraph 19 of the statement of facts. The Claimant did not tender any evidence to show any deductions by the Defendant before June 2014. A party gets what he has proved and is not entitled to what he has not proved; see Orianzi v A.G. Rivers State (2017) 6 NWLR (pt 1561) 224 at 264, 279 and Agi v PDP (2017) 17 NWLR (pt 1595) 386 at 454.

I find that the Claimant has been unable to prove that he is entitled to his second relief. Accordingly, claim number 2 is also hereby refused.

The third claim in this action is for the award of N 90,000 being payment in lieu of notice of termination of employment and interest from the 28th May 2015 to the final resolution of this matter. The defendant admitted in paragraph 14 and 15 that “the said amount will be paid to the Claimant…but the Claimant has refused to take steps to collect the amount”. This amount of N90,000 having been admitted by the Defendant require no further proof of and is taken as an admitted fact. See Order 30 (6)(1) of the National Industrial Court of  Nigeria (Civil Procedure) Rules, 2017, B.E.G.H. Ltd v U.H.S. & L. Ltd (2011) 7 NWLR (pt 1246) 246 at 285.

The claim for the sum of N 90,000 being payment in lieu of notice of termination of employment is hereby granted.

The claim of interest from 28th May 2015 to the date final judgment is given, makes it a pre-judgment interest and the law is that although in any civil proceedings, a court has the power to award interests on a sum claimed between the date the cause of action arose till the date of judgment but, for such interest to be awarded it has to be pleaded by the Claimant and the particulars set out in the originating process, which in the instant case will be the originating complaint, the statement of facts and the deposition. See Petgas Res. Ltd v Mbanefo (2007) 6 NWLR (pt 1031) 545 at 558-9.

On the principles guiding award of pre-judgment interest, the Supreme Court in NPA v  Aminu Ibrahim & Co. (2018) 12 NWLR (pt 1632) 62 at 87-8 F-A, held as follows:

“The law is well settled that before a pre-judgment interest can be justifiably awarded, a plaintiff often pleads that he is entitled to such interest and also where he pleads it, he must prove the basis for his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on principle of equity…it is however valid law that a court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment.” emphasis mine.

See also Petgas Res. Ltd v Mbanefo (supra) at 562 G-H .

In paragraph 41 of the statement of facts it was averred thus: “The Claimant claims the sum of  N90, 000.00 salary in lieu of notice with interest at the current rate from 28-05-2015 till when this matter would be finally determined.” The Claimant justified his entitlement to this interest in paragraph 43 of his pleadings on the basis of it being a liquidated sum which should attract interest. Frankly, he fell short of the requirement to prove his claim for pre-judgment interest as of right that is when it is contemplated by the parties’ agreement, or mercantile custom or principle of equity such as breach of fiduciary duty.

However, I find that the instant case is an appropriate one to award pre-judgment interest upon the sum of N90,000, even though it was not sufficiently pleaded and proved, because such interest in the instant case is like damages naturally accruing from the Defendant’s failure to pay the sum involved at the time of the Claimant’s dismissal.

The Defendant in paragraph 14 of its defence averred thus:

“The Defendant has instructed that the Claimant should be paid one month’s salary of N 90, 000.00 in lieu of notice, and the said amount will be paid to the Claimant. This fact was made known to the Claimant in the statement of defence filed in suit no. NICN/YEN/69/2015 and duly served on the Claimant but (he) the Claimant has refused to take any steps to collect the said amount from the Defendant.”

From the above averment, it is clear that the Defendant acknowledged the indebtedness of N90, 000. 00 since May 2015 and has failed to pay the Claimant this debt. It has numerously been held that the payment of salary in lieu of notice of termination must be paid at the same time the letter terminating employment is given to an employee. See  Chukwuma v S.P.D.C. (1993) 4 NWLR (pt 289) 536-7. In view of the decision in the above cited case, the fact that this Claimant refused to make any steps or efforts to collect his money, is of no moment whatsoever because the sum of N90,000.00 ought to have been paid to the Claimant not later than the 28th of May 2015, when his employment was terminated. 

Consequently, I hold that the Claimant is entitled to 10% pre-judgment interest per annum on the sum of N 90,000 from the 28th of May 2015 till today, 26th of November, 2018 which is the date of this here judgment.

For clarity, this Court makes the following Orders and awards these sums only to the Claimant against the Defendant thus:

  1. Order to pay the sum of N 90,000.00 being one month’s salary in lieu of notice of termination of employment;
  2. 10% pre-judgment interest per annum on the sum of N 90,000.00 from the 28th May 2015 till the 26th of November, 2018, the date of this here judgment.
  3. 10% post judgment interest on the entire sum per annum until final payment.
  4. Order the Defendant to pay this Claimant, within 14 days of this judgment i.e. N27,000 (for three years) and N4,500.00 from May 2018 to November 2018 making a total of N31,500.00 plus N90,000.00 = N117,500.00 only until final payment.
  5. Cost of this action assessed at N50,000.00 to the Claimant.

This suit succeeds in part only and I so pronounce

Delivered in Owerri this 26th day of November, 2018.

 

………………………………………………………………………….

 Justice Ibrahim S. Galadima

Presiding Judge.

admin

Website:

Related Story