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National Industrial Court

Mr Gabriel Aghuno -vs- John Holt Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: MAY 15, 2018

 

SUIT NO. NICN/LA/349/2013

 

BETWEEN

Mr Gabriel Aghuno-Claimant

 

AND

John Holt Plc                                                         -Defendant

 

REPRESENTATION

  1. R. Fatunde, with Mrs Oluwatoyin Adegbite, Miss C. O. Ogbo, Mrs C. O. Idowu, Mrs Oluwakemi Ayodele, C. A. Ariyo, Miss A. R. Shodiya and O. S. Ogunsusi, for the claimant.
  2. B. Onu, for the defendant.

 

JUDGMENT

  1. On 5th July 2013, the claimant took up a complaint (together with stamenent of facts, list of witnesses, witness statement on oath, list and copies of the documents to be relied upon at the trial) against the defendant. By the statement of facts, the claimant is praying for the following reliefs:
  • Payment by the defendant to the claimant the sum of N5,842,457.77 being balance of his severance and gratuity package (after deduction of the part payment of N1,863,776,15.00 and the value of assets) with the sum claimed due and payable from 16 October 2009 when the defendant advised the claimant to proceed on immediate retirement.
  • Payment by the defendant to the complainant interests at the rate of 30% per annum on the N5,842,457,77 from 16 October 2009 to the date of judgment thereafter, interests at the prevailing bank rate until full and final payment of the judgment sum thus fully liquidated.

 

  1. The defendant entered formal appearance and filed its statement of defence, list of witnesses, written statement on oath, list and copies of the documents to be relied upon at the trial. In reaction, the claimant filed a reply to the statement of defence, an additional written statement on oath, list of additional documents and copies of the additional documents. By order of Court made on 23rd June 2016, the defendant amended its statement of defence. This amended statement of defence was filed together with a list of and documents to be relied upon at the trial, list of witnesses and written statements on oath of the witnesses. This necessitated the claimant filing his amended reply to the amended statement of facts, claimant’s additional written statement on oath, list of additional documents and the additional documents. At the trial, the claimant testified for himself as CW and tendered Exhibits C1 to C13. The defendant on its part called two witnesses: Mrs Cheta Mandu, who was the Human Resource Manager of the defendant testified as DW1, while Okeje Ameche Boyi, Finance Director of the defendant, testified as DW2. For the defendant, Exhibits D1 to D8 were tendered.

 

THE CASE OF THE CLAIMANT

  1. The claimant is a retiree of the defendant, having worked for the defendant and rose to become Senior Executive, the position he was retired as vide a letter of 16th October 2009. That contrary to the undertaking of the defendant vide the letter of 16th October 2009, it was in February 2010 that the defendant paid N307,591.00 as six months salary and allowances in lieu of notice; with another N1,556,185.15 paid on 25th April 2010 though what it stood for was not indicated to the claimant. That the claimant protested the haphazard payment of his severance and gratuity package, despite which the defendant still failed to pay the outstanding sum of N5,842,457.77 that had been due to him since 16th October 2009 when he was asked to proceed on retirement, hence the instant suit.

 

THE CASE OF THE DEFENDANT

  1. The defendant wholly denies the claim of the claimant. To the defendant, the claimant was retired as a Senior Executive in October 2009; and the claimant’s full and final entitlements and gratuity (including the claimant’s six months’ salary in lieu of notice), the claimant’s indebtedness to the defendant were computed by the defendant in accordance with the Company Policy (referring to Exhibit D1, which is the computation of the claimant’s gratuity and entitlement as well as the indebtedness of the claimant to the defendant, an indebtedness the claimant admits). The claimant was then paid in two cheques amounting to N1,863,776.15. That the claimant being a Senior Executive was a cadre above General Manager (GM) in the defendant and so Exhibit D2(b) was used in the computation of the claimant’s full and final entitlements and gratuity. Exhibit D2(b) is the defendant’s Policy of the computation of gratuity for GMs and above and was the extant and applicable policy as at the date of the retirement of the claimant; it replaced Exhibit D8 in respect of payment of the gratuity for the qualifying staff. That under cross-examination, the claimant admitted that the defendant had paid the claimant’s salaries and emoluments up to 16th October 2009, which is the date of the claimant’s retirement from the defendant. That Exhibit D2(b), which was used in the computation of the gratuity of the claimant, was also used to compute the gratuity of other qualified staff of the defendant, such as Mr. Tony Uwoghiren, who retired as a Senior Executive from the defendant just as the claimant and contemporaneously with the claimant. To the defendant, senior staff from GM and above such as the claimant are not members of the Shop and Distributive Trade Senior Staff Association (SHOPDIS),membership of which is restricted to staff of the defendant from Deputy General Manager down to Admin Assistant, referring to Exhibit D7. That the claimant after collecting two cheques (Exhibits D3 and D4) from the defendantrepresenting the claimant’s full and final entitlement and gratuity, less the indebtednessof the claimant to the defendant, turned around to institute this case against the defendant.

 

THE DEFENDANT’S SUBMISSIONS

  1. The defendant submitted a sole issue for determination, namely: in view of the pleadings and evidence adduced at the hearing of this suit has the claimant not failed to prove his claims? To the defendant, the claimant has failed to prove his claim. That by section 131 of the Evidence Act 2011, he who desires that the Court should give judgment in his favour, must give evidence in proof his claim; citing also CPC v. INEC[2011] 18 NWLR (Pt.1279) 493 at 539-540. That the claimant claimed the alleged sum of N5,842,452.77purportedly as balance of his alleged severance and gratuity but the claimant led no evidence to establish how the purported sum of N5,842,457.77was arrived at. That there is nothing in the pleadings or the evidence that showed the computation of this sum of N5,842,457.77 at all;the alleged sum of N5,842,457.77 is, therefore, wholly speculative and inane. That it is trite law that the Court must only act on proven facts and not speculation or arbitrary conjectures, citingNwofor v. Obiefuna [2011] 1 NWLR (Pt. 1227) 305 andBida v. Abubakar [2011] 5 NWLR (Pt. 1239) 130. That during cross-examination, the claimant claimed that he did not know what his basic salary was but admitted that the defendant paid his salaries and allowances up till 16th October 2009 when he retired. That the claimant also admitted being paid by the defendant his two cheques as full and final settlement of his entitlement and gratuity from the defendant after the deduction of the claimant’s indebtedness to the defendant, referring to Exhibits D3 and D4. That ExhibitC1(b) being the retirement letter of the claimant stated that the claimant’s retirement benefit would be paid based on the company policy of the defendant. That Exhibit D2(b) is the company policy of the defendant for the payment of gratuity for General Managers and above. The claimant was a Senior Executive being a cadre above a General Manager.That the defendant’s pleadings and evidence during the hearing established the fact that the defendant relied on the company policy, Exhibit D2(b), to calculate the retirement benefits entitlements and gratuity of the claimant since the claimant was a Senior Executive,a rank above a General Manager.Exhibit D1 made on 22nd April 2010 (for which the defendant promptly issued Exhibit D3 on same date) is the calculation of the claimant’s final retirement benefit and gratuity, less the claimant’s indebtedness to the defendant.That the defendant had thus settled the retirement benefits and gratuity of the claimant after establishing the basis of the computation.That DW2, the Finance Director of the defendant who is a maker of the document, testified that Exhibit D1 is the document that indicates that D3 and D4 representsthe full and final payment to the claimant of the claimant’s severance retirement benefits and gratuity; andthe claimant admitted receiving the said cheques and payments from the defendant.

 

  1. The defendant went on that the claimant’s claim that he is a member of the Shop and Distribution Trade Senior Staff Association (SHOPDIS) is false and untenable. That Exhibit D7 which is the same with Exhibit C11 clearly states that membership of SHOPDIS by the employees of the defendant is restricted to employees of the defendant from Deputy General Manager down to Admin Assistant. That the claimant was a senior executive,that is, a cadre above that of a General Manager and so was manifestly ineligible for membership of SHOPDIS.That the claimant’s claim to being a member of SHOPDIS in order to prop up a bogus claim of severance payment or gratuity, therefore, fails flat on its face. That Exhibit D5, which is identical to Exhibit C3, is a letter of the claimant to the defendant admitting that the claimant, as a senior executive, was not a member of any trade union. That the claimant cannot, therefore, be seen to approbate and reprobate;the claimant is thus not a member of SHOPDIS. That the claimant having made admissions via Exhibits D5 and C3 that he being a senior executive was not a member of a trade union cannot now claim to be a member of a trade union (SHOPDIS), citing section 24 of the Evidence Act. That it is preposterous and unsupportable for the claimant having admitted that he is not a member of a union such as SHOPDIS since he is a senior executive to turn around to claim membership of a union such as SHOPDIS for the purpose of giving a lame support to his fictitious claim for a bogus severance payment or gratuity. That this Court ought not to allow this grave wrong doing, citing Eyo v. Onuoha [2011]11 NWLR (Pt. 1257) 1 at 21 and 26,Odunsi v. Pereira[1972] 1 SC 52,Elias v. Omo Bare[1982] 5 SC 25,Odulaja v. Haddad[1973] 11 SC 357,Imana v. Robinson[1979] 3-4 SC 1 and Archibong v. Ita[2004] 2NWLR (Pt. 858) 590.

 

  1. The defendant continued that the pleadings and evidence of the parties established that Mr. Tony Uwoghiren retired as asenior executive of the defendant just as the claimant, and was paid his retirement benefits and gratuity based on identical company policy of the defendant, Exhibit D2(b), which he accepted with peace. That the claimant’s reference to Exhibit C10, that is the claimant’s pay slip to indicate membership of SHOPDIS is misconceived. That Exhibit C10 does not show any deduction for SHOPDIS. That Exhibit C10 shows deduction to JMAN (John Holt Managers Association). That the claim that JMAN is affiliated to SHOPDIS is not supported by any evidence whatsoever. In any event, that being affiliated to SHOPDIS does not mean being identical with SHOPDIS; JMAN and SHOPDIS are independent bodies with distinct membership and constitutions. In any case, that members of JMAN who are of the rank of Deputy General Manager down to Admin Assistant are eligible for membership of SHOPDIS, but members of JMAN who are of the cadre of General Manager and above including Senior Executive as in the case of claimant cannot be members of SHOPDIS, referring to Exhibits D7 and C11. The defendant then referred to Nig. Seafarers Collaborating Union v. NUPENG &anor[2013] 31 NLLR (Pt.88) 84 and NCSU v. ASCNSN (2004) 1 NLLR (Pt. 3) 439 on the right of the worker to decide which union to belong to within the limits of the Trade Unions Act Cap T14 LFN 2004. That the reliance of the claimant on a phoney membership of SHOPDIS as a basis of computation or calculation of his retirement benefits of gratuity is false and untenable.That the claimant has been unable to establish that he is a member of SHOPDIS and so his claim is fictitious and untenable. Furthermore, that the claimant’s reliance on Exhibit C13 being a communique between SHOPDIS and the defendant to prop up his specious claim is misconceived. That a communique cannot serve as abinding agreement to compel the defendant to pay any money to the claimant and the claimant is not a member of SHOPDIS.

 

  1. The defendant proceeded that the claimant’s claim for interest of 30% per annum on the alleged or purported sum of N5,842,457.77 from 16th October 2009 to the date of judgment cannot be supported. That the claimant has not led any evidence in support of his claim of interest on a purported sum that is not even available to him, citing RMAFC v. UES Ltd[2013] 34 NLLR (Pt. 102) 715 CA and Hausa v. FBN Plc[2006] 9 NWLR (Pt. 671) 64. That the claimant led no evidence in proof of his purported claim for alleged interest and no agreement or custom or statute warrants any alleged interest. That the claimant’s main claim for further gratuity being untenable and unproved cannot stand and so any claim for interest thereon cannot also stand as one cannot put something on nothing and expect it to stand, citingUAC v. Mcfoy; as well asFUTA v. Ajidalun [2012] NWLR (Pt.1321) 583 at 605. In conclusion, the defendant urged the Court to discountenance and dismiss the claimant’s claim with substantial cost.

 

THE CLAIMANT’S SUBMISSIONS

  1. The claimant on his part submitted three issues, issues (1) and (2) strictly speaking being merely a rephrasing of same issue, for determination, namely:
  • Whether from the entire facts and circumstances of the pleadings and evidence adduced in this matter the claimant has made out a case that entitles him to judgment for the various claims as stated and claimed herein.

And/or;

  • Whether the claimant is entitled to the full payment of his gratuity and as such a remedy from the Honourable Court in accordance with the claims as stated and endorsed.
  • Whether the defendant’s evasive, inconsistent pleading and final written address is on material facts which is also inconsistent with their evidence is enough and sufficient to defeat and deprive the claimant from his claims.

 

  1. On issue (1)/(2), the claimant submitted that the cause of action in this suit is on account of the failure and refusal of the defendant to pay the claimant his severance packages, referring to paragraph 23 of the statement of facts. To the claimant, going by the provisions of sections 131, 132, 133 and 134 of the Evidence Act 2011 as well as the various documents tendered by the claimant, he (the claimant) has made a case that entitles him to judgment given that he proved all the averments in the statement of facts and the reply to the amended statement of defence. The claimant then recounted how the defendant did not pay his retirement benefits as due; and that what little was paid was actually paid not contemporaneously with his retirement, a fact that goes counter to good labour practice. That even when his solicitor wrote vide Exhibit C4 asking for the balance of his retirement benefits, the defendant did not accede to his request. That all the defendant did was to replyExhibit C4 with by a letter dated 03 August 2010, Exhibit C5(a), partly admitting the indebtedness whilst being clever by half at the same time and also requested that the Claimant submit his calculations for consideration. That the claimant replied Exhibit C5(a) by a letter dated 4 August2010, Exhibit C5(b), wherehedid as the defendant requested attaching the required calculations for consideration by the defendant. That the defendant replied Exhibit C5(b) by a letter dated 09 August 2010, Exhibit C5(c), where the defendant failed and refused to address the details of the enclosures attached by the claimant in Exhibit C5(b). The claimant then referred to the evidence of DW1, Cheta Madu,which runs thus:“Yes the claimant was paid twice by two cheques. Yes the first cheque was vide Exhibit D4 and the second vide Exhibit D3. I do not think there is any document before the Court indicating that Exhibits D4 and D3 represent the full and final payment to the claimant”.To the claimant, it is further interesting that for a case of this nature the defendant failed and refused to produce and tender one document made before and/or about 16 October 2009 when Exhibit C1(b) was made. That the defendant’s computation of the claimant’s retirement benefit made on 22 April 2010 (marked D1) several months after the claimant’s immediate retirement can only be an afterthought quickly cooked up only after the defendant commenced instalmental payment of gratuity.

 

  1. The claimant then referred the Court to his calculation as per the attachment to Exhibit C5(b) dated 4th August 2010, which to him was done and tailored after Exhibits C2(a) and C2(b). On the defendant’s argument that given the state of the pleadings of the claimant, the claimant did not prove his case, the claimant submitted that the defendant should not be taken serious as the submission lacks substance and merits since in paragraphs 2-22 of his statements of facts the claimantpleaded the material facts, and gave particulars and the intendments of certain documents especially Exhibits C2(a), C2(b) and C5(b), of his case and also tendered material evidence that support his claims in accordance with the provision of Order 30 Rules 3, 4 and 11 National Industrial Court of Nigeria (Civil Procedure) Rules 2017. That a party need not plead evidence. On the basis of Exhibit C2(a) and C2(b), the claimant submitted that he is entitled to judgment. Despite acknowledging that Exhibit C13 is a communique and may not be the basis of a binding agreement, the claimant prayed the Court to consider its content as it is also a collective agreement that binds all the parties involved, citing Abalogu v. SPDC[2003] 45 WRN 1;[2003] 13 NWLR (Pt. 837) 308 at 337.

 

  1. The claimant also relied on Exhibits C12 and C12(a), which to him were respectively wrongly titled implementation of agreement on gratuity andcomputation of gratuity benefits. Both exhibits was addressed by the Shop and Distributive Trade Senior Staff Association to the defendant. That there is no evidence that the defendant joined issues with the Shop andDistributive Trade Senior Staff Association. In this regard, that the defendant simply admitted the contents of the documents, citing Gwani v. Ebule[1990] 5 NWLR (Pt. 149) 201 at 217, which held thus:“silence in circumstances in which a reply is obviously expected raises an irrebutable presumption of admission by conduct or representation. In the instant case, failure of the appellant to reply to the respondent’s solicitor demanding payment for the labour he supplied from the appellant constituted an admission of liability by the appellant and lent credence to the respondent’s side of the case”. That it is too late in the day for the defendant to deny the contents and implementations of the contents of the documents marked C2(a), C2(b) and C5(b) in the face of the documents marked C12 and C12(a).

 

  1. To the claimant, the defendant’s claim that there was a change in policy in the computation of the claimant’s gratuity and severance package cannot hold water. That in the defendant’s witness’ evidence-in-chief-and cross-examination they did not make a case that the change in policy in the computation of the payment of the claimant’s gratuity calculation from that of Mr. C. Azike and Mr. S. N. Inyama was ever communicated to the claimant whilst still in service;thus the defendant cannot approbate and reprobate on the retirement gratuity calculation of any of the three Senior Executives being the claimant, Mr. C. Azike and Mr. S. N. Inyama. That they all retired as Senior Executive and DW1 confirmed this as correct position. That the fact of the defendant’s act of installment payment of the claimant’s gratuity and severance package only means that the defendant did not proceed in good faith and not ready to do equity in addressing the claimant’s severance package, referring toNigerian Society of Engineers v. Ozah[2015] 6 NWLR (Pt. 1454) 76 at 98-99 andPopoola v. AG Kwara State[2012] 17 WRN 33 at 53-54.

 

  1. That the defendant in its pleadings stated that the claimant is not a member of the Shop and Distributive Trade Senior Staff Association thus not entitled to any benefits that should accrue to members of the association. To the claimant, this position is amusing. That one would wonders why the defendant did not raise an eyebrow to the claimant’s membership of the Shop and distributive Trade Senior Staff Association while the claimant was a staff of the defendant with the defendant deducting the dues for John Holt Managers Association paid to Shop and Distributive Trade Senior Staff Association an affiliate of a trade union at source from the claimant’s salary from month to month. That whilst in the defendant’s service the defendant company gave its consent to the claimant to join the association, was a party and had been privy to the claimant’s membership of the association and while the claimant was in the employment of the defendant as well as being a bonafide member of the Shop and Distributive Trade Senior Staff Association. The claimant continued that the defendant did not at any time raise an objection, whetherexpressed or implied, but participated in all deliberation involving membership of the Shop and distributive Trade Senior Staff Association in its employment and in the course of the membership, the defendant deducted the claimant’s contribution that is check-off dues to the Shop and Distributive Trade Senior Staff Association at source from month to month and from year till October 2009 when the defendant asked the claimant to retire immediately. The Shop and Distributive Trade Senior Staff Association wrote letters to the defendant,referring to Exhibits C12 and C12(a), and also met and entered into agreement (Exhibit C13) for and on behalf of their members and their welfares. That at no point did the defendant raisethe issue of the eligibility of the claimant as a member of Shop and Distributive Trade Senior Staff Association. That on this note, the defendant is estopped from taking a contrary position at this stage as to the claimant’s membership of the Shop and Distributive Trade Senior Staff Association.

 

  1. The claimant reiterated that it is a notorious fact that the defendant asked the claimant to proceed on retirement;rather than pay the gratuity and severance immediately in accordance with law and labour practice, the defendant breached that principle of law to act contemporaneously by enclosing/including/exchange a bank draft of the claimant’s gratuity in the letter of retirement,Exhibit C1(b), referring toNigerian society of Engineers v. Ozah[2015] 6 NWLR (Pt. 1454) 76 at 98-99. That once the Court finds that the defendant breached that principle of law to act contemporaneously when they failed and refused to enclose/include/exchange a bank draft of the claimant’s gratuity in the letter of retirement,Exhibit C1(b), the averments in the statement of defence are of no moment. Indeed, that the entire defence amounts to a sham that should collapse. That the defence is one that is crafted and contrived to waste the time of the Court, which should, therefore, be rejected. That the defendant’s decision not to enclose/include/exchange a bank draft of the claimant’s gratuity in the letter of retirement was because they have mischief, shock and surprises in stock for the claimant.

 

  1. The claimant further submitted that he has made a case that he is also entitled to payment of interest on the principal claim as stated and endorsed in paragraph 23(ii) of the statement of facts. that although the defendant denied the claimant’s relief for claim for interest the denial is of no moment, it was a sham and weak denial. In any event, that a court of equity will usually in the exercise of its consequential powers award interests even where it is not claimed by the party entitled to it, citing Kano Textiles Printers Plc v Tukur[1999] 2 NWLR (Pt. 589) 78 at 84. The claimant thus in urging the Court to grant the relief for payments of interests submitted that from the state of pleadings and the evidence adduced the parties herein have a fiduciary relationship which now includes payment of sum of money outstanding for the claimant’s gratuity and severance deliberately withheld as a bank draft in full and final settlement/payment for that purpose was not enclosed contemporaneously in exchange for the claimant’s gratuity in the letter of retirement Exhibit C1(b).Accordingly, the claimant urged the Court to enter judgment in his favour against the defendant for all the heads of claims.

 

  1. For issue (3), the claimant submitted that it is trite that a party should succeed on its claim on account of the strength of its case. However, that where there are weaknesses in the adversary’s case that support the case of’ a party such weakness will be utilised. In this regard, the claimant submitted that there is no defence and/or credible defence to the case of the claimant. That most of the amended statement of defence of the defendant were in the realm of general traverse which offends the provision of Order 30 Rule 6(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. That the claimant in issue (1)/(2) discharged the onus of proof as require by the law. What accordingly followed as supporting submissions were merely a rehashing of earlier submissions of the claimant.

 

  1. That in paragraph 13 of the amended statement of defence the defendant placed heavy reliance on a document dated 14 September 2007, Exhibit D2(b), as the defendant’s policy utilised in calculating the claimant’s gratuity. To the claimant, the document is not admissible in evidence and should be expunged from the Court’s record and/or discountenance for the following reasons. That on the face of the document there is no suggestion that the document emanates from the defendant, a Public Liability Company. The document is a suspect and corrupt as to form part of this proceeding as the maker of the document was not called neither was it tendered through the maker a person who could not be identified. The document does not bear any stamp, seal of the defendant. The date on the document is not legible. The document was not signed neither executed by a member of staff of the defendant company that could be identified. If the document was on the letter head of the defendant the situation would have been slightly different. The claimant went on that should the Court overrule the claimant on the admissibility of Exhibit D2(b), then the document should carry no evidential weight andvalue at all so as to be considered and utilised.

 

  1. Regarding Exhibit D8, the defendant’s Human Resource Management Policies and Procedure, that all employees of the defendant usually get a copy and the new employee usually acknowledges it. That in the course of trial the claimant was emphatic when under cross-examination he stated that “I have not seen Exhibit D2(b) before. So I cannot say that it represents the defendant’s policy talked about in Exhibit C1(b)“. That the defendant through DW1, Cheta Madu, one of the defendant’s Human Resources Managers between 2005-2016, corroborated the claimant’s evidence on Exhibit D2(b) and admitted that it was never brought to the attention of the claimant when she stated on oath that “I do not know if Exhibit D2(b) was given to the claimant”. That if Exhibit D2(b) was that relevant and crucial in the determination of the claimant’s gratuity computation why was it not brought to the attention of the claimant whilst still in the service of the defendant? Considering the objection of the claimant, the claimant submitted that Exhibit D2(b) did not exist and was hurriedly manufactured, packaged and made for the purpose of this proceedings to defeat the claimant’s claims. To this extent and in addition to previous objections on the admissibility and/or weight to be attached to Exhibit D2(b), that Exhibit D2(b) offends section 83(3) of the Evidence Act 2011, citing also UTC Nig Plc v. Lawal[2014] 5 NWLR (Pt. 1400) 222 at 239 and.245. The claimant included by urging that judgment should be entered in his favour on all heads of claims against the defendant especially as the defendant did not put up any credible case to displace the claimant pleadings and the various categories of credible, cogent unchallenged and uncontradicted evidence of the claimant. That the defendant case and evidence are full of lies and misrepresentation, there are circumstances were the defendant case and evidence was at variance with the contents of documents authored and published by them such as the pay slip on membership of trade union, check-off dues,referring to Exhibit C10, the retirement gratuity calculations of Mr. C. Azike and Mr. S. N. Inyama, Exhibits C2(a) and C2(b), which were also utilise in arriving at the production of Exhibit C5(b) as the basis for the calculation of the claimant’s gratuity and severance.

 

THE DEFENDANT’S REPLY ON POINTS OF LAW

  1. In replying on points of law, the defendant first described the claimant’s final written address as“lamentably a skewed regurgitation of the pleadings plus a garbled and specious reconstruction of the evidence placed before the Court, with sophistry and invective”. That contrary to the claimant’s final written address, the combined reading of sections 131 to 134 of the Evidence Act 2011 show clearly that the claimant had woefully failed to prove his claim. That it is not enough to conjure or arbitrarily claim bogus figures or sums of money; the claimant must establish by credible evidence how he is entitled to the sums of money he claims. The defendant then referred to Ggbemishola Fatai Adewale v. John Holt Plc unreported Suit No. NICN/LA/272/2014 (which is impari materia with this suit), the judgment of which was delivered on 27th September 2016, where the claim of the claimant failed because the claimant did not plead how he became entitled to the sum claimed, and id not show how the sums claimed were calculated. The defendant then reiterated that the claimant succeeds on the strength of hid case, not on the weakness of the defence, citing Cargill Ventures Ltd v. Coastal Serv. (Nig.) Ltd[2012] 9NWLR (Pt. 1304) 60 CA,Obasi Bros Co. Ltd v. M.B.A. Secs Ltd [2005]2 SC (Pt. I) 51 at 56; [2005]9 NWLR (Pt. 929) 117 and Daniel Holdings Ltd v. UBA Plc [2005] 7 SC 18 at 22-44; [2005] 13 NWLR (Pt. 943) 533. That the claimant neither pleaded the particulars of his claim nor the basis upon which he arrived at his alleged figures. That it is trite law that evidence purportedly given in respect of unpleaded facts goes to no issue and should be discountenanced by the Court.

 

  1. The defendant went on that contrary to the claimant’s submission, it is good labour practice to pay a retiring employee his entitlement subject to the settling of all outstanding indebtedness of the retiring employee. It is, therefore, reasonable to make an initial payment pending the final reconciliation of accounts and to pay any outstanding money upon the final reconciliation of accounts. That this is what the defendant did vide Exhibit D4, which is the first cheque the defendant issued to the claimant after the claimant’s retirement, while Exhibit D3 is the second and last cheque the defendant issued to the claimant after the claimant’s retirement. That Exhibit D3 was issued on 22nd April 2010, the same day the final reconciliation of accounts and computation of the claimant’s retirement benefit was concluded, referring to Exhibit D1 issued on 22nd April 2010, which is the defendant’s calculation of the claimant’s retirement benefit.

 

  1. That contrary to the claimant’s submission, the reference to and reliance on Exhibits C2(a) and C2(b), purportedly being the retirement computation of one Mr C. Azike and one Mr S.N. Inyama respectively, is grossly misconceived. That the claimant admitted that the said Mr C. Azike and Mr S.N. Iyama retired in 2002 and 2001 respectively several years before the claimant retired and several years before the commencement of the defendant’s Gratuity Policy for General Managers dated 14/09/2007, which is Exhibit D2(b). That the claimant retired under a different condition of service from that of the said Mr Azike and Mr Inyama and so cannot claim a non-existent condition of gratuity payment.Furthermore, Exhibits C2(a) and C2(b) are inadmissible documents with no probative value. That none of the makers of the documents, Exhibits C2(a) and C2(b), identified the documents or were called as witnesses; as such Exhibits C2(a) and C2(b) should be rejected as contrary to section 83 of the Evidence Act 2011. That no explanation was given for the non-production of any of the makers of the documents. That it is safe to hold that the evidence of the makers of the documents would be unfavourable to the claimant who made no attempt to invite the makers of the documents or apply for witness summons to be issued accordingly, citing section 167 of the Evidence Act 2011.

 

  1. Furthermore, that contrary to the claimant’s submission, the reference to and reliance on Exhibits C12 and C12(a), that is, the purported letters by the Shop and Distributive Trade Senior Staff Association (SHOPDIS) dated 7th November 2008 and 2nd June 2009purportedly addressed to the defendant, is misconceived and grossly in error. That in Exhibit C3 which is the same as Exhibit D5, that is the claimant’s letter dated 29th April 2010 to the defendant, the claimant admitted that he is not a member of a union as he was a senior executive of the defendant that is a cadre of above that of a General Manager.That the claimant not being a member of any union cannot now procure the Shop and Distributive Trade Senior Staff Association (SHOPDIS) to purportedly write on his behalf as if he was a member of SHOPDIS. That the clamant cannot approbate and reprobate. That the claimant is estopped from falsifying the facts in view of his clear and voluntary admission, referring to sections 20, 24 and 27 of the Evidence Act 2011.Therefore, that the purported letters from SHOPDIS to the defendant, that is, Exhibits C12 andC12(a) are irrelevant and misconceived as SHOPDIS lacks the capacity or competence to write on behalf of the claimant who is not a member of SHOPDIS. That one cannot put something on nothing and expect it to stand, citingUAC v. Macfoy[1962] AC 152;[1961] 3All ER1160. Furthermore, that contrary to the claimant’s submission, the alleged non-reply to the purported letters from SHOPDIS, Exhibits C12 and C12(a), is certainly not an admission by the defendant as there is no evidence that the defendant received the purported letter or that the letters were delivered to the defendant.Moreover, that the makers of Exhibits C12 and C12(a) did not identify the documents and were not called as witnesses. To the defendant then, before any reply to a letter is due there must be evidence and proof of the delivery of the letters, Exhibits C12 and Exhibit C12(a), to the defendant from whom a reply is expected. That there is no evidence or proof that the delivery of Exhibit C12 or C12(a) to the defendant.That the non-identification of Exhibits C12 and C12(a) by the makers of the documents and the fact that the makers of the documents were not called as witnesses, renders them inadmissible and of no probative value, citing sections 83 and 167 of the Evidence Act. The defendant then urged the Court to reject and discard Exhibits C12 and C12(a) as being inadmissible and of no probative value.

 

  1. Furthermore, that Exhibit D7 (which is the same as Exhibit C8) is an agreement between the management of the defendant, JMAN and SHOPDIS dated 12th October 2009 and it clearly stipulates and confirms that only employees of the defendant from the category of Deputy General Manager down to Admin Assistant are eligible for membershipof SHOPDIS.The claimant being a Senior Executive, that is, a category above a General Manager, is clearly not qualified and is ineligible to be a member of SHOPDIS. That the claimant who is not a member of SHOPDIS cannot claim to be a member of SHOPDIS to get the unjustified and phoney financial benefits from the defendant. That with the rejection of Exhibits C2(a), C2(b), C12 and C12(a), the case ofthe claimant collapses.

 

  1. The defendant continued that contrary to the claimant’s submission, Exhibit D2(b), the defendant’s Gratuity Policy for General Managers and above, is an internal document of the defendant and it is not mandatory that the logo of the defendant must be the document. That Exhibit D2(b) clearly states that the document is for the defendant, referring to the heading of Exhibit D2(b).

 

  1. Additionally, that contrary to the claimant’s submission, there is no mention in the pleadings or evidence of Trade Union Congress or of John Holt Managers Association (JMAN), and Shop and Distributive Trade Senior Staff Association (SHOPDIS) being an affiliate of Trade Union Congress. That counsel for the claimant deviously manufactured and smuggled this strange, false and misleading evidence into the claimant’s final written address, referring to paragraphs 3.38 and 3.39 of the claimants final written address, Ayorinde v. Sogunro [2012] 11 NWLR (Pt. 1312) 460 at 501,Cargill Ventures Ltd(supra) held at page 83, Ucha v. Elechi [2012] 13 NWLR (Pt. 1317) 330 at 361 and BFT Group Corp v. BPE[2012] 18 NWLR (Pt. 1332) 209 at 244. The defendant then urged the Court to expunge this extraneous and false story inserted in the claimant’s final written address as being unethical and unacceptable.That this shows the desperation of the claimant to pull wool over the eyes of the Court and pervert the course of justice.

 

  1. Further still, that contrary to the claimant’s submission, there is no discrepancy in the evidence of DW1 and DW2. Moreover, that if a witness is unable to remember any fact, that fact may be supplied by another witness.Furthermore, the claimant’s final written address contains invective against DW2 without any justification whatsoever, which is most unfair. That if the testimony of a witness is unable to be challenged successfully that should not warrant abusive language against the witness as in this case, referring to paragraphs 3.40(i) and (ii), 3.41, 3.42 and 3.43 of the claimant’s final written address. That DW2 is a man of honour and spoke the truth in his testimony, urging the Court to expunge the offensive paragraphs of the claimant’s final written address from the records.

 

  1. Lastly, that contrary to the claimant’s submission, the claimant cannot impose a fiduciary relationship on the defendant where none exists in a vain attempt to claim interest on a non-existent monetary claim. That the cases cited by the claimant are wholly irrelevant and misleading, citing Anuka Comm Bank v. Olua [2000] 12NWLR (Pt. 682) 641 at 661. That the claimant has been unable to prove or substantiate his claim and has no shred of credible evidence. In conclusion, the defendant urged the Court to uphold the defence of the defendant and dismiss the claims and final written address of the claimant with substantial costs.

 

COURT’S DECISION

  1. The claimant’s case is a simple case of the demand of N5,842,457.77 being balance of his severance and gratuity package, having been paid N1,863,776,15.00 as part-payment. The claimant will succeed only if he shows an entitlement to this sum and how he came by the quantum of the sum. The claimant acknowledged that he was paid N1,863,776,15.00 but belatedly; while to the defendant, this is all that the claimant is entitled to having deducted his indebtedness to the defendant. It is having to have delayed in paying him his entitlement belatedly that the claimant brands as an act against labour practice, although no where in the pleadings of the claimant is his case one of unfair labour practice in the strict sense of the phrase. The closest one gets to this is that the defendant “breached the agreement, custom and practice” where the claimant ought to have been paid his gratuity and other entitlements “fully and finally immediately he was retired” i.e. on 16th October 2009. See paragraph 23 of the statement of facts. It is for this that the claimant is in Court. Has the claimant then proved his case? This remains the question. The claimant thinks he has; the defendant thinks not. Before addressing the issue, however, I need to clarify a thing or two.

 

  1. The defendant in responding to the claimant’s final written address filed a reply on points of law, which reply on points of law went beyond the pale in a number of respects, raising issues for the very first time in a manner that meant that the claimant had no chance whatsoever of reacting to them. For instance, it was in the reply on points of law that the defendant for the very first time argued that Exhibits C2(a) and C2(b) are inadmissible documents with no probative value on the grounds that: none of the makers of the said exhibits identified the documents or were called as witnesses contrary to section 83 of the Evidence Act 2011; and no explanation was given for the non-production of any of the makers of the documents, as such it is safe to hold that the evidence of the makers of the documents would be unfavourable to the claimant who made no attempt to invite the makers of the documents or apply for witness summons to be issued accordingly, citing section 167 of the Evidence Act 2011. Also raised for the first time is the submission by the defendant that the makers of Exhibits C12 and C12(a) did not identify the documents and were not called as witnesses; as such, Exhibits C12 and C12(a) are inadmissible and of no probative value given sections 83 and 167 of the Evidence Act 2011. Further raised for the first time is the call by the defendant that the Court should expunge all paragraphs of the claimant’s pleadings that are offensive, abusive, scandalous, intemperate and malicious in language and content. I must state that a reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). It is accordingly uncalled for the defendant to raise for the very first time the issues it did in the reply on points of law thus depriving the claimant the opportunity of reacting to them. At the trial of this case, in particular at the hearing of 31st January 2017, this Court after admitting the documents frontloaded by the parties, intimated the parties that they are at liberty to raise in their final written addresses issues relating to the evidential value of the exhibits particularly Exhibit C13, which is a communique. The least expected of the defendant is to have raised in its final written address its objection to the admissibility of Exhibits C2(a), C2(b), C12 and C12(a) just so that the claimant can have the opportunity of reacting. The defendant did not do this; instead it was in the reply on points of law that the defendant raised for the first time these issues. Since this goes against the law relating to what a reply on points of law should contain, I shall as appropriate discountenance the defendant’s reply on points of law to the extent that it raised for the first time issues that should have been raised in the final written address but were not.

 

  1. Another point I need to make is that in paragraph 3.13 of his final written address, the claimant referred to “paragraphs 6.10 and 6.11 above” ostensibly of his final written address; and in paragraph 3.35 of same final written address, the claimant similarly referred to “paragraphs 6.14 to 6.16 above”, once again ostensibly of his final written address. The problem is that there are no paragraphs 6.10, 6.11, 6.14, 6.15 and 6.16 in the claimant’s final written address. So of which document are these paragraphs referable to? I do not know.

 

  1. The claimant had submitted that Exhibit D2(b) dated 14th September 2007 and tendered by thedefendant as its policy in calculating the claimant’s gratuity is not admissible and should be expunged from the Court’s record and/or discountenance. The reasons adduced by the claimant are: that on the face of the document there is no suggestion that the document emanates from the defendant, a Public Liability Company;the document is suspect and corrupt as to form part of this proceeding given that the maker of the document was not called neither was it tendered through the maker, a person who could not be identified;the document does not bear any stamp, seal of the defendant;the date on the document is not legible;the document was not signed neither executed by a member of staff of the defendant company that could be identified; and thatif the document was on the letter head of the defendant the situation would have been slightly different. All these reasons given by the claimant are not just untenable and unsustainable but I think were just proffered just so that the claimant’s counsel is seen as defending his client. To start with, Exhibit D2(b) is part of Exhibit D2(a), a memo dated 13th September 2007 from the Human Resources Manager to the Managing Director (MD). The last sentence of Exhibit D2(a) states: “Please find attached Gratuity policy for General Managers and above for your signature”. Exhibit D2(b) titled, “Gratuity Policy for General Managers and Above” was then attached. The Court merely marked the two exhibits separately for easy identification and reference only. Exhibit D2(b) is then signed and dated “14 09 07”. The claimant himself in his submission indicated that Exhibit D2(b) is dated 14th September 2007 despite submitting that the date on the exhibit is not legible, a case of speaking from both sides of the mouth. It is worrying then that the claimant would argue that Exhibit D2(b) is not dated. Because Exhibit D2(b) is attached to Exhibit D2(a), a memo of the defendant, there is no need for it to be on any letter headed paper or carry the stamp or seal of the defendant. Internal memos are not sealed. The argument of the claimant that there is no suggestion that Exhibit D2(b) emanated from the defendant and as such is suspect and corrupt is accordingly meant to mislead this Court. The claimant complained that Exhibit D2(b) was not tendered through the maker. It is ironic that the claimant would raise an issue such as this. In relying all through his submissions on Exhibits C2(a) and C2(b), documents evidencing calculations of the retirement gratuity of persons other than the claimant (Mr C. Azike and Mr S. N. Iyama who respectively retired in 2002 and 2001, to be specific), did the claimant tender these exhibits through the persons to whom they relate i.e. Mr C. Azike and Mr S. N. Iyama? Did the claimant call Mr C. Azike and Mr S. N. Iyama as witnesses? I am of course not unmindful of Omega Bank (Nig.) Ltd v. OBC Ltd [2005] LPELR-2636(SC); [2005] 8 NWLR (Pt. 928) 547 and Justus Nwabuoku & ors v. Francis [2006] LPELR-2082(SC); [2006] 5 SC (Pt. III) 103, which held that documentary evidence can be admitted in the absence of the maker, although the Court may attach no probative value to it since admissibility and weight are two different things. The claimant complained that the signer of Exhibit D2(b) cannot be identified. I stated earlier that Exhibit D2(b) is an attachment to Exhibit D2(a), a memo addressed to the MD calling for his signature. Is there any doubt then that the signature therein is the MD’s? The submission of the claimant that Exhibit D2(b) is suspect and corrupt, and did not exist and was hurriedly manufactured, packaged and made for the purpose of this proceedings to defeat the claimant’s claims conjures up criminality on the part of the defendant, requiring proof beyond reasonable doubt. This the claimant did not do appealing instead to sentiments. As it is, therefore, Exhibit D2(b) is admissible and will be used as such. I so find and hold.

 

  1. The claimant commenced arguing his case with a proposition of law, one that is unheard of. Even after acknowledging that he who assets has the burden to prove, the claimant would say that his case is simple and has no ambiguity and/or issues; but that where there is an ambiguity and/or issue the defendant takes responsibility and the ambiguity and/or issues (if any) can only be resolved in favour of the claimant against the defendant. The assertion that his case is simple is the claimant’s and is correct to the extent that the claimant is claiming the balance of his retirement benefits. Given, however, the state of the claimant’s final written address, did the claimant make his claim any simple? I doubt it. Having thus complicated his own case, as would be seen in this judgment, how can the ambiguity resulting therefrom be resolved in favour of the claimant when the duty to prove his case is his? Is the claimant tactically shifting the burden of proof from himself unto the defendant? The claimant should know that the duty to prove remains his, not the defendant’s; and a claimant succeeds on the strength of his case, not the weakness of the defence.

 

  1. Like I pointed out earlier, the major plank of the claimant’s grouse against the defendant is twofold: that when he was retired by the defendant, the defendant did not immediately pay him his severance benefits, which delay is against labour practice; and secondly, that even when he was belatedly paid, he was not paid in full, leaving an outstanding balance of N5,842,457.77. The defendant on its part claims to have paid the claimant in full his final entitlements. In proof of his claim, the claimant contended that the request in Exhibit C5(a) by the defendant for the claimant to submit his calculation of his due entitlement and the defendant’s words which run thus: “Might I request that these calculations are submitted as a matter of urgency for our consideration”, signifies that the defendant admitted that although it asked the claimant to retire immediately on 16 October 2009 it failed and refused to pay him by a single bank cheque or bank cheques provided he was paid once and for all his severance in exchange for the letter of retirement. To the claimant, once Exhibit C5(a) was not emphatic and speak with confidence that the defendant has made full and final payment to the claimant it follows that the defendant has something up their sleeves to hide and whatever defence put up by the defendant that full and final payment was made without a correspondence to that effect, the claimant must be held to have made out his claim. That this is on the further grounds that any defence put up by the defendant can only be an afterthought. That the claimant finds support and his case made out when under cross-examination he stated that the computation of his entitlement was not made available immediately after his retirement. This is the submission of the claimant in proof of his claim for N5,842,457.77, a claim that is for special damages.

 

  1. I already indicated that a claimant wins his case on the strength of his case, not on the weakness of the defence. The claimant cannot shift the burden of proof by concentrating on the weakness of the defence or basing his case on conjectures and inferences as the claimant is doing here. It is for the claimant to prove that he is entitled to the reliefs he claims, not for the defendant to disprove the claims. The duty to disprove the claims only arises if the claimant proves his claims. The argument of the claimant that Exhibit C5(a) is a part admission by the defendant of its indebtedness to him is worrying. A document, by law, must be read in its totality. The statement, “Might I request that these calculations are submitted as a matter of urgency for our consideration” quoted by the claimant, aside from omitting the word “some” before the word “urgency” (the actually words used are: “Might I request that these calculations are submitted as a matter of some urgency for our consideration”) were completely taken out of their context by the claimant. In the paragraph preceding these words, the defendant had stated thus:

…you refer to an amount calculated by each of your clients as to each one’s calculation of an amount due together with a demand for payment of same. You cannot seriously consider that this company would countenance any such payment, even should it be due, without examination of the calculation.

Now, how on earth can a defendant writing this be said to have part-admitted indebtedness? The claimant accused the defendant of being clever by half. If there is anyone who is being clever by half, it must be the claimant. Exhibit C5(a) is not evidence of any part admission on the part of the defendant; if anything, it denies defendant’s liability. I so find and hold.

 

  1. The argument of the claimant that paragraphs 2-22 of his statement of facts and the particulars of material facts he gave therein plus reference to certain documents especially Exhibits C2(a), C2(b) and C5(b),are sufficient to dispel the argument of the defendant that given the state of the claimant’s pleadings he did not prove his case, is patronizing to say the least. What the claimant is claiming is a claim for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) is never inferred, is exceptional and so must be claimed specially and proved strictly, andthe fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. So the thought of the claimant that the defendant in the instant case admitted liability does not relieve the claimant of the onerous task of specially and strictly proving his claims in this suit. What the claimant calls particulars as per paragraphs 6, 14, 17, 19 and 22 of his statement of facts are not sufficient to meet the requirements of particulars for a claim of special damages as enjoined by NNPC v. Clifco Nigeria Ltd. For instance, in paragraph 6 of his statement of facts, the claimant simply stated as particulars that he was entitled to his current basic salary, allowances, repatriation allowances, retirement benefits, 6 months salaries in lieu of notice up to and as at 16th October 2009. Now, no where in his pleadings are the exact amounts of each of these heads of claims pleaded, and the instrument that entitled him to the said claims. What is the claimant’s actual basic salary? What is his actual repatriation allowances? What is his actual retirement benefit? The claimant referred to Exhibits C2(a), C2(b) and C5(b). Exhibit C5(b) is a creation of the claimant himself. It cannot be the instrument entitling the claimant to any of the claims he makes. A claimant cannot say I am enticed to X amount as salary and turn around to say that that is the proof that he so entitled. Exhibits C2(a) and C2(b) are calculations of the retirement gratuity of persons other than the claimant. A claimant must found his action on his own right, not on the right of another. And the pleading in paragraph 17(ii) of the statement of facts to the effect that “the defendant did not join issues or deny the claimant’s claims and entitlements to N5,842,457.77 in the areas of payment in lieu of notice for 6 months being N1,745,000.00 and the sum of N4,097,457.77, being balance of gratuity for 15 years” does not indicated how the quantum of these sums were arrived at by the claimant.

 

  1. Accordingly, statements by the claimant such as that the claimant has 5 years to retire, the decision by the defendant not to pay the claimant’s severance packages promptly and fully, the defendant’s handling of the claimant’s retirement was most callous, the defendant did not have any plan to make payment to the claimant at all (paragraph 14 of the statement of facts); the defendant’s calculations are against the terms and spirit of its letter of retirement, the defendant did not join issues or deny the claimant’s claims and entitlement to N5,842,457.77, Mr David Parmley is of “doubtful imagination credentials”, the threats of Mr David Parmley (paragraph 17 of the statement of facts); the defendant acted deliberately and wickedly without human feelings (paragraph 19 of the statement of facts); and it is the defendant’s stock in trade to mete out inhuman treatment on their staff and former staff, the petition by Mr Martin O. Nwabuwa to the House of Representatives and the failure of Mr Parmley and the defendant to reply to letter of the claimant’s counsel (paragraph 22 of the statement of facts), all cannot be said to be the type of particulars needed as enjoined by NNPC v. Clifco Nigeria Ltd to prove a claim for N5,842,457.77 as outstanding retirement benefits. I so find and hold.

 

  1. The labour principles (already highlighted in this judgment) necessary for the claimant to succeed in his claims as the claims are claims for special damages have been sufficiently expounded by this Court in previous cases; and the claimant referred to none. For instance, inOtunba Gabriel Oladipo Abijo v. Promasidor (Nigeria) Limited unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2016, this Court held as follows:

This Court has severally held that it is an instrument (a law, circular or collective agreement) that confers entitlements in labour relations. See Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NIC/12/2000 the judgment of which was delivered on 30th March 2006, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 the judgment of which was delivered on 8th May 2007, Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor unreported Suit No. NIC/1/2007 delivered on July 4, 2007 and Oyo State v.  Alhaji Apapa & ors [2008] 11 NLLR (Pt. 29) 284.

 

  1. And in Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court had indicated that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement; andan entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. This Court went on that minutes of meetings cannot generate the kind of entitlement that the claimants pleaded becauseminutes of meetings do not approximate to a collective agreement. In PENGASSAN v. Mobil Nig. Unltd [2013] 32 NLLR (Pt. 92) 243 NIC, this Court had actually wondered aloud whether minutes of meetings including communiqués can approximate to a collective agreement and doubted it. In like manner, this Court held that a proposal, in law, cannot be binding; and this remains so even if the proposals were agreed to in the minutes of meeting.

 

  1. What all this means is that in the instant case Exhibit C13, a communique signed on 3rd July 2009 between the Shop and Distributive Trade Senior Staff Association (SHOPDIS) and the defendant cannot be the basis of any entitlement claimed by the claimant in the instant case. The same is true of the complaint of SHOPDIS as to the wrong implementation of the agreement on gratuity and computation of same as per Exhibits C12 and C12(a). Referring to Exhibits C12 and C12(a), the claimant in the instant case submitted that both exhibits were wrongly titled. Both exhibits were written by SHOPDIS. The claimant is not SHOPDIS. So how can the claimant submit that the two exhibits are wrongly titled? In any event, the rule is that documents speak for themselves. It is not open to the claimant to say what the proper title of the two exhibits are when he is not even the author of the said documents. This Court in Dungus proceeded to hold that because the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grant them the entitlements they claim,merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient; and thatcounsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. See also Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017.

 

  1. The claimant seems to think and indeed argued that because his other colleagues, Mr. C. Azike and Mr. S. N. Inyama, who retired from the defendants as Senior Executives, were paid as perExhibits C2(a) and C2(b), his severance benefit must also be paid as such, hence his calculation as per Exhibit C5(b). The claimant acknowledged that his gratuity calculation in Exhibit C5(b) was done and tailored after Exhibits C2(a) and C2(b). The claimant, however, forgot that in labour relations, a claimant must found his action on his own right and entitlement, not on the right or entitlement of another. SeeStephen Ayaogu& ors v. Mobil Producing Nigeria Unlimited& anor unreported Suit No. NICN/LA/NICN/38/2010, the judgment of which was delivered on 27th October 2017, which held thus: “…save for a case of unfair labour practice…a claimant can only found his case on the strength of his right and entitlement, not on that of another person”. Even in cases of unfair labour practice, the claimant must first plead and show/prove his own entitlement and the instrument that bestows the entitlement before making comparison with another’s entitlement. I indicated earlier that the closest to making a case of unfair labour practice is the claimant’s pleading in paragraph 23 of his statement of facts to the effect that the defendant “breached the agreement, custom and practice” where the claimant ought to have been paid his gratuity and other entitlements “fully and finally immediately he was retired” i.e. on 16th October 2009. See also paragraph 6(ii) and (iii) of the statement of facts where the claimant pleaded the custom and general practice of contemporaneity of payment of severance benefits with the retirement itself. In consequence, it was only in paragraph 3.23 of his final written address that the claimant talked about his cause of action bordering on “unfavourable labour practice carried out by the Defendant…”. The final written address is not pleadings. Evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. InSenior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 the judgment of which was delivered on 8th May 2007, this Court held thus: “A litigant, without more, cannot build a case on the right of another. The litigant must build the case on his/her own right”. See further Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018.

 

  1. The reference to custom and general practice in paragraphs 6 and 23 of the statement of facts is of course without proof. In James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016, this Court summarized the law thus:

The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.

In the instant case, the evidence of custom and general practice is the evidence of the claimant himself. This is not sufficient to prove the custom and general practice that the claimant relies on. The said beneficiaries of Exhibits C2(a) and C2(b) were not called as witnesses to authenticate the said custom and general practice. Exhibits C2(a) and C2(b) themselves cannot be the proof of the said custom and general practice. These two exhibits relate to persons who respectively retired in 2002 and 2001 several years before the claimant retired in 2009. The defendant tendered Exhibit D2(b) dated 14th September 2007 as the document that changed the policy of gratuity for the category of staff into which the claimant fell. The claimant’s evidence of custom and general practice is accordingly insufficient evidence to tilt the balance in his favour. I so find and hold.

 

  1. There was this issue of Exhibit C11, an agreement of 12th October 2009 between The Management of the defendant, John Holt Managers Association of Nigeria (JMAN) and Shop and Distributive Trade Senior Staff Association (SHOPDIS) and Exhibit C9, the Rules and Constitution of SHOPDIS. Aside from the pleading in paragraphs 4 and 5 of the amended reply to the statement of defence, and supported by paragraphs 2, 4 and 5 of the claimant’s additional written statement on oath, wherein the claimant averred that he is a member of SHOPDIS, the only other evidence that the claimant relied on for this is Exhibit C10, his pay slip for April 2009 showing a deduction paid to JMAN. Is JMAN a trade union? JMAN is the association of managers of the defendant separate and distinct from SHOPDIS. The agreement of 12th October 2009 (Exhibit C11) is between three parties: the defendant, JMAN and SHOPDIS. If JMAN and SHOPDIS were one and the same as the claimant argues, there would have been no need for the tripartite agreement of 12th October 2009, Exhibit C11. Exhibit C8, wherein JMAN sought to reactivate its membership of SHOPDIS does not meet the requirement of “opting in” individually and in writing that is the prerequisite to being a member of a senior staff association such as SHOPDIS in the instant case. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016,Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017 and Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. There is no documentary evidence from the claimant that he as an individual and in writing opted to join SHOPDIS since he was a senior staff of the defendant. In any event, the agreement of 12th October 2009 is to the effect that as a management staff, the claimant cannot join SHOPDIS, something frowned on under section 3(3) of the Trade Unions Act (TUA) LFN 2004. The argument of the claimant that he is at liberty to join any association of his choice under section 40 of the 1999 Constitution is correct, but when this relates to trade unionism, it must be within the confines of the law. See Osawe v. Registrar of Trade Unions [1985] 1 NWLR 755 SC.

 

  1. The further argument of theclaimant that by his pleadings and his pay slip of April 2009 (Exhibit C10), he showed that he is a member of John Holt Plc Managers Association (JMAN) and that he pays dues deducted from source and DW1 under cross-examination stated that John Holt Plc Managers Association (JMAN) is an affiliate of a labour union seems blind to the fact that an employer does not confer membership of a trade union on an employee; and that the admission of an employer of the trade union membership of an employee does not by itself confer trade union membership of the employee. See Aghata N. Onuorah v. Access Bank Plc,Samson Kehinde Akindoyin v. UBN Plc, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc,, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc,Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plcand Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited (all supra). It is not the evidence of DW1 that can establish that JMAN is an affiliate of SHOPDIS – something more concrete than that is required. The status of a trade union is conferred by law (as being listed in the Third Schedule to the TUA) or conferred as a result of registration by the Registrar of Trade Unions. Affiliation of a body to a trade union requires at the very least the written recognition as such of the Registrar of Trade Unions. Deductions of dues from the claimant’s salary, which was paid to JMAN is not the same thing as deductions of check-off dues for onward payment to SHOPDIS as the claimant seems to think. JMAN is not a trade union and so cannot be paid check-off dues, which is one of the incidents of trade unionism. Meanwhile, I agree with the defendant that contrary to the claimant’s submission in paragraphs 3.38 and 3.39 of the claimant’s final written address, there is no mention in the pleadings or evidence of Trade Union Congress (TUC), or JMAN and SHOPDIS being an affiliate of TUC; and that counsel for the claimant deviously manufactured and smuggled this strange, false and misleading evidence into the said final written address.

 

  1. Yet still, the claimant argued that whilst in the defendant’s service the defendant company gave its consent to the claimant to join the association, was a party and had been privy to the claimant’s membership of the association and while the claimant was in the employment of the defendant as well as being a bonafide member of the Shop and Distributive Trade Senior Staff Association. This argument only betrays the claimant’s lack of understanding of the very import of trade unionism in the workplace. To start with, an employer (the defendant in this case) cannot consent to an employee joining a trade union. That will amount to interference, which the law frowns at. See Panya Anigboro v. Sea Trucks Nigeria Ltd [1995] 6 NWLR (Pt. 299) 35 at 62. Secondly, an employer cannot be a party to the trade union that an employee is a member of. It is logically impossible as employers have their separate associations. See Part C of the Third Schedule to the TUA for the list of employers associations. Lastly, an employer cannot be privy (party) to the claimant’s membership of a trade union. This, once again, will be interference or logically impossible. The claimant also argued that the defendant did not at any other time raise an objection whetherexpressed or implied, but participated in all deliberation involving membership of SHOPDIS in its employment. If this is true, then it would be unlawful of the defendant since the law is that an employer cannot interfere in whatsoever manner in the running of a trade union. See Panya Anigboro v. Sea Trucks Nigeria Ltd. That the claimant can raise arguments such as these means only one thing: the claimant does not even know what it takes to be a member of a trade union; as such he could not have been a member of any. I note here Exhibit C3 dated 29th April 2010, a letter written by the claimant to the defendant. In it, the claimant acknowledged that he as a senior executive cannot have the calculation of his retirement gratuity “based on union agreement since it was said that employees on General manager grade and above are not members of the union”. Having thus acknowledged that he not a member of the union, it s surprising that the claimant in his submissions claim to be a union member.

 

  1. I indicated earlier that a major plank of the claimant’s case is that when he was retired by the defendant, the defendant did not immediately pay him his severance benefits, which delay is against labour practice. In furtherance of this argument, the claimant contended that once the Court finds that the defendant breached that principle of law to act contemporaneously when they failed and refused to enclose/include/exchange a bank draft of the claimant’s gratuity in the letter of retirement,Exhibit C1(b), the averments in the statement of defence are of no moment. Indeed, that the entire defence amounts to a sham that should collapse. That the defence is one that is crafted and contrived to waste the time of the Court, which should, therefore, be rejected. The claimant went on that the defendant’s decision not to enclose/include/exchange a bank draft of the claimant’s gratuity in the letter of retirement was because they have mischief, shock and surprises in stock for the claimant. I can only state two things here: even if the defence of the defendant falls or fails because it did not act contemporaneously in failing/refusing to enclose/include/exchange a bank draft of the claimant’s gratuity in the letter of retirement, this will not absolve the claimant of the duty to prove his claims; and secondly, the reference to mischief on the part of the defendant is to play the emotional or sentimental card, which is most pronounced in paragraphs 4.01 to 4.07, the concluding part, of the claimant’s final written address – and sentiments and emotions have no place in court proceedings. See Babawuro Usman v. The State [2014] LPELR-22879(SC) per the concurring judgment of Rhodes-Vivour, JSC and James Adekunle Owulade v. Nigerian Agip Oil Co. Ltd (supra). Neither are cases won by rhetorics as the claimant seems to have done, making questions and not proffering answers.

 

  1. The law is that evidence without pleading goes to no issue. See Geneva v. Afribank Nigeria Plc [2013] LPELR-20662(SC). As The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129 puts it, evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. Alternatively put, pleadings cannot constitute evidence; as averments in pleadings on which no evidence is adduced are deemed to have been abandoned for mere averments without proof of facts pleadings do not constitute proof of such facts unless such facts are admitted. See Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585. The converse is also true. Evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. By Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence; and Adam v. Shaibu & ors [2016] LPELR-40179(CA) held that no matter how brilliant a written or oral address by Counsel may be attractive, that cannot take the place of solid evidence before the Court. From the state of the claimant’s pleadings and the evidence before the Court, the claimant did not prove his entitlement to N5,842,457.77 as balance of his severance and gratuity package, or how he even came by the quantum of the said sum. As His Lordship Tur, JCA puts it in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA), a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. I agree with the defendant that like in Mr Gbemisola Fatai Adele v. John Holt Plc unreported Suit No. NICN/LA/272/2014, the judgment of which was delivered on 27th September 2016, a case similar in reliefs with the instant case, and in which A. R. Fatunde (with Mrs O. Adegbite) were counsel for the claimant, the claimant did not plead the relevant facts needed to prove his case; neither did the claimant show to this Court how he came by the quantum of the sum of N5,842,457.77 that he claims as balance of his severance and gratuity package. On the whole, I totally agree with the defendant’s description of the claimant’s final written address that it is“lamentably a skewed regurgitation of the pleadings plus a garbled and specious reconstruction of the evidence placed before the Court, with sophistry and invective”. No other description could have been more apt.

 

  1. The claimant’s case accordingly fails and is hereby dismissed. Cost of this suit is put at Three Hundred Thousand Naira (N300,000.00) only payable by the claimant to the defendant within 30 days of this judgment, failing which it shall attract interest at the rate of 10% per annum until fully paid.

 

  1. Judgment is entered accordingly.

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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