Mr. Kayode Tijani -VS- Mr. Folarin R.A. Williams

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: JULY 9, 2019

SUIT NO. NICN/LA/130/2015

BETWEEN

Mr Kayode Tijani- Claimant

AND

Mr Folarin R. A. Williams (Jr)

(For himself and on behalf of Chief Rotimi Williams Chambers)-Defendant

REPRESENTATION

Issa A. Adedokun, for the claimant.

E. E. Asia, with O. F. Ojo, C. Okon Okpo and Ms J. O. Oguejiofor, for the defendant.

JUDGMENT

INTRODUCTION

1. This suit was originally heard by Hon Justice Dele Peters of this Court before it was transferred to this Court. The claimant filed this action on 16th April 2015 vide a complaint, statement of facts, list of witness, written statement on oath, list of documents and copies of the documents. By paragraph 17 of the statement of facts, the claimant is praying for the following reliefs:

(a) An order of this Honourable Court declaring the purported termination of the claimant’s employment by the defendant through a letter dated 21st July 2014 as unlawful, wrongful and in breach of contractual agreement between the parties.

(b) A total sum of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) only being the claimant’s arrears of salaries for July 2014 and other entitlements due and payable by the defendant to the claimant before the termination of his employment for work done and services rendered as defendant’s employee at his request.

PARTICULARS OF CLAIM

S/NO PARTICULARS AMOUNT (N)

(b)i. Salary and other benefits for the month of July 2014 from

1st to 21st July (three weeks) based on the claimant’s

June 2014 salary payment slip:

(a) Basic Salary………………………………………N19,262.50

(b) Housing …………………………………………….7,717.50

(d) Others ……………………………………………….8,360.63

(e) Adjustment …………………………………………..4,659.38

Total ……………………………………………………43,150.01 x 3 wks

4 wks 32,362.50

(b)ii. Three Months Salary in lieu of notice at N19,262.50 per

month i.e. N19,262.50 x 3 57,787.50

(b)iii. Performance Incentive Bonus from part of 2nd Quarter 2010

to 4th Quarter 2011 at N175,500.00 per annum making

N43,875.00 per quarter i.e.

(a) Part of 2nd Qter to 4th Qter 2010 at

N43,875.00x2Y2 = 109,687.50

(b)1st Qter to 4th Qter 2011 at N43,875.00 x 4 = 175,500.00

Total 285,187.50

Less (-) Part payment of per. Incentive Bonus for

the part of 2d Qter 2010 to 4th Qter 2011 used

to offset part of the loan in November 2012 = 153,562.50 131,625.00

(b)iv. Performance Incentive Bonus or Bonus for the year 2012 at

N175,500.00 for four quarters in the year. 175,500.00

(b)v. Performance Incentive Bonus or Bonus for the year 2013 at

N175,500.00 for fourquarters in the year. 175,500.00

(b)vi. Performance Incentive Bonus or Bonus for six months and

three weeks worked for the year 2014 at N43,875.00 per quarter

(a) 1st Qter to 2nd Qter 2014 at N43,875.00 x 2 = 87,750.00

(b) Three Weeks in July 2014 i.e.

N43,875.00 ÷ 3mths ÷ 4wks x 3wks = 10,968.75 98,718.75

Sub-Total N671 ,493.75

Less outstanding loan as at June 2014 N163,759.35

Total Balance Due For Payment N507,734.40

2. The defendant entered appearance and in reaction filed the statement of defence and counterclaim, list of witnesses, statements on oath of the witnesses, list of documents and copies of the documents. To these, the claimant filed his reply to the statement of defence and defence to the counterclaim and an additional written statement on oath of the claimant. The defendant with leave of Court later amended his defence processes and filed the 1st amended statement of defence and counterclaim on 31st October 2018.The claimant in reaction relied on the consequential amended reply to the 1st amended statement of defence and defence to counterclaim filed on 16th November 2018. In his counterclaim, the defendant counterclaimed as follows:

(a) The sum of N52,746.67 (Fifty-Two Thousand, Seven Hundred and Forty-Eight Naira, Sixty-Seven Kobo) being the outstanding loan the claimant took from the defendant.

PARTICULARS OF CLAIM

(i) Salary for 15 working days in July 2014 in the sum of N28,141.32 (Twenty-Eight Thousand, One Hundred and Forty-One Naira, Fifty-One Kobo); and

(ii) Three months’ salary in lieu of notice in the sum of N82,869. 39 (N19,262.50 x 3) (Eighty-Two Thousand, Eight Hundred and Sixty-Nine Naira, Thirty-Nine Kobo).

Total = N85,835.01 (Eighty-Five Thousand, Eight Hundred and Thirty-Five Naira, One Kobo)

LESS

(iii) Outstanding loan to the claimant in the sum of N163,759.38 (One Hundred and Sixty-Three Thousand, Seven Hundred and Fifty-Nine Naira, Thirty-Eight Kobo).

BALANCE DUE TO THE CLAIMANT

(iv) The sum of N52,748.67 (Fifty-Two Thousand, Seven Hundred and Forty-Eight Naira, Sixty-Seven Kobo)

(b) The sum of N1,000,000.00 as general damages

3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C7. For the defendant, Folorunsho Fadairo, Business Manager and Legal Administrator of Chief Rotimi Williams Chambers, testified as DW1 and tendered Exhibits D1 to D3 (Exhibit D1 in fact had earlier been tendered through CW), while Ojo Michael Kayode, a Senior Accountant of the defendant, testified as DW2. At the close of trial, parties filed and served their respective final written addresses. The defendant’s was filed on 21st February 2019, while the claimant’s was filed on 2nd April 2019. The defendant’s reply on points of law was filed on 15th April 2019.

THE CASE BEFORE THE COURT

4. The claimant’s case is that he was offered an appointment by the defendant as a Secretary in his Lagos Head Office on 19th May 2010 which offer he accepted. By the terms of the letter of appointment dated 19th May 2010, he was:

(a) placed on a basic salary of N220,500.00 per annum i.e. N 18,375.00 per month

(b) entitled to housing allowance of N88,200.00 per annum i.e N7,350.00 per month

(d) entitled to lunch allowance of N84,000.00 per annum i.e N7,000.00 per month

(e)entitled to performance incentive bonus of N175,500.00 per annum payable quarterly i.e. N43,875.00 per quarter.

That his basic salary and other entitlements were subsequently increased by the defendant which development put his basic salary as at June 2014 at N19,262.50 per month, housing allowance at the same time was N7,717.50 per month, and lunch allowance at the similar time was put at N3,150.00 per month.

5. That by a letter dated 21st July 2014 the defendant terminated his employment, which was a breach of fundamental terms of the contract between him and the defendant and so is wrongful as he was required to have been given either three months’ notice or paid three (3) months salary in lieu of notice upon his successful service of required probationary period of three months after his appointment. It is for this that the claimant instituted this suit seeking the reliefs in paragraph 17(a) to (c) of his statement of facts.

6. To the defendant, the claimant misrepresented facts regarding his age at the time of his employment. Upon discovery of the misrepresentation, the claimant’s employment was terminated on 21st July 2014.That the contract of employment makes provision for the payment of the Performance Incentive Bonus (PIB) to employees, which is contingent upon the quality of an employee’s performance during a specified period. That PIB was, however, phased out in 2012 in favour of discretionary increase in salary. Consequently, the claimants monthly salary was increased from N35,725.00 to N43,150.01. That the phasing out of the PIB was communicated to the claimant and the claimant was the one that took the minutes of the meeting wherein the decision to phase out the PIB was taken. That the claimant benefited from the increase In salary when the PIB was phased out.That the claimant has admitted that he took a loan of N500,000 from the defendant in November 2012. Subsequently, the claimant’s PIB for 2 quarter of 2010 to 4th quarter 2011, which is assessed at the discretion of management, was assessed at 50% in the sum of N153,562.50. The said sum was used to offset part of the loan leaving the sum of N346,437.50 owed to the defendant. That the claimant was aware of this fact.

7. That the interest outstanding on the remaining loan was N17,32188 i.e. 5% of N346,437.50 making the total sum of N363,759.38 due to the defendant. That during the employment of the claimant and in line with the agreement with him on the loan, the sum of N10,000.00 was deducted monthly from the claimant’s salary between November 2012 and June 2014 for the purpose of offsetting the loan leaving the sum of N163,759.35 as outstanding to be paid to the defendant. The defendantclaims that the claimant was entitled to the sum of N28,047.51 being 15 working days salary for July 2014 and N57,7759 being three months salary In lieu of notice but avers that the said amounts were used to offset the outstanding loan of N163,759,35 owed to the defendant leaving a balance of N52,74867 as outstanding loan in favour of the defendant.The defendant avers that the claimant is not entitled to PIB for the years 2012, 2013 and 2014 as same had been phased out. The defendant thus counterclaims against the claimant as per his counterclaim.

8. The claimant denies the defendant’s allegation of phasing out of his performance incentive bonus or that he agreed to the phasing out of same or received or signed any document to that effect. The claimant terms the salary increment effected by the defendant to his salary as normal salary increment and also maintains that the defendant lacks legal right to withhold his three months’ salary in lieu of notice to service his loan when the defendant’s indebtedness to him is in excess of his loan obligation to the Law Firm.

THE SUBMISSIONS OF THE DEFENDANT

9. The defendant submitted two issues for determination, namely:

(1) Whether the claimant has proved his case to be entitled to the reliefs sought.

(2) Whether the defendant has proved his case to be entitled to the reliefs sought.

10. On issue (i), the defendant submitted that the claimant by the evidence adduced is not entitled to the reliefs sought. In the first place, that the claimant has erroneously stated that he is entitled to performance incentive bonus (PIB) from the 2nd quarter of 2012 to 2014 from the defendant. That PIB is bonus paid to employees of the defendant’s firm based on the quality of work rendered by the employee upon assessment by the defendant’s management. That the claimant failed to lead evidence that the defendant’s management assessed him to be entitled to the amount claimed. That the evidence before the Court shows that PIB was phased out in 2011 in favour of discretionary increase in salary, referring toExhibit D2, a letter dated 6 January 2012, which atpage 4 under the section, ‘Performance Evaluation and Bonuses’ clearly reads thus: “Last year saw the phasing out of the performance incentive bonus scheme…” That the phasing out of PIB in favour of discretionary increase in salary was also orally communicated to all staff in chambers including the claimant in a meeting sometime In January 2012 wherein the staff at the meeting accepted the change individually and collectively in line with the terms stated in the letter of employment of the claimant that the terms of employment was subject to variation from time to time.That the defendant led evidence in the course of the trial that the claimant was the one that took the minutes of the meeting wherein the PIB was phased out. This fact has not been controverted by the claimant. That it is settled law that facts that are uncontroverted must be taken as true, citingDanladi v. TSHA[2015] 2 NWLR (Pt.1442) 103 at 118 to 119. The defendant went on that as a result of the phasing out of the P1B, the claimant’s monthly salary was increased from N35,725.00 (which he was entitled to under the contract of employment) to N43,150.00. Therefore, it is an afterthought for the claimant to be claiming that he was still entitled to the PIB when same has been phased out and he benefited as a result of the phasing out of the policy.That the minutes of the above meeting where PIB was phased out was taken by the claimant and the copy of said minutes remains in the possession of the claimant. That it is thus surprising that the claimant would claim to be entitled to PIB even after the state of affairs of the chambers regarding PIB was communicated both expressly and orally to members of staff in chambers. That the claimant having benefited from the phasing out of the PIB with notice cannot approbate and reprobate, citingSowemImo v. Awobajo[1999] 7 NWLR (Pt.611) – the page is not supplied.

11. The defendant continued that the fact of phasing out of PIB was clearly known to the claimant upon termination of his employment. In Exhibit D3, which is an internal memo from the claimant to Omolara Akinlade, the then practice manager/legal administrator of the chambers, the claimant computed his terminal entitlements thus:

(1) July 2014 salary to an including Monday 21st July 2014 = N28,141.32

(2) Three (3) months; salary in lieu of notice as indicated in the letter of appointment dated 19th May 2010 – copy attached page 2 = N82,869.39.

(3) Balance of 50% of outstanding PIB up to an including 4th quarter 2011 – see attached = N153,562.50.

(4) Discretionary bonus for year 2012

(5) Discretionary bonus for year 2013

Total

Less outstanding loan = N163,759.58

Balance due for payment.

12. That it is evident from the breakdown above that the claimant was well aware of the phasing out of PIB in the year 2011. Thatas seen in numbers(4) and (5) with respect to 2012 and 2013, the claimant rightly did not call it PIB. That the knowledge of the claimant of the phasing out of PIB is clearly established by the internal memo. Furthermore, that the claimant contradicted himself by denying having knowledge of the phasing out of PIB as it can clearly be seen from the content of the said internal memo that he was well aware of the phasing out of PIB;he cannot thus be found to be claiming PIB in his reliefs. He cannot approbate and reprobate, citingAG, Rivers State v. AG Akwa Ibom State[2011] 8 NWLR (Pt.1248)31 andSalisu v Mobolaji[2016] 15NWLR (Pt.1535)242 at 286.

13. That in a desperate attempt to create a cause of action which did not exist and to deny knowledge of the phasing out of PIB, the claimant ‘created’ Exhibit C5, which is purportedly a memo written on 21st July 2015 on computation of terminal benefits. That the said memo was never sent to the defendant but was formulated for the action. Under cross-examination, that the claimant admitted preparing another memo Exhibit D3 on the same day.That part of Exhibit D3 was tendered through him as Exhibit C8. Apart from the fact that the claimant could not show that the doctored Exhibit C5 was actually sent to the defendant on the same day the content of the exhibit when juxtaposed with Exhibit D3, which the claimant admitted, shows clearly that the claimant knew the effect of Exhibit D3 as it relates to the phasing out of PIB. That Exhibit C5 was, therefore, a concoction to surreptitiously ‘cure’ the effect of Exhibit D3. That a court of law cannot lend its aid to this sort of sharp practices and deliberate lies orchestrated to create a phantom cause of action; and it is not possible that the two memos were prepared and sent to the defendant the same day. That this is obviously why no reference was made to it n the claimant’s claim.

14. The defendant denied receipt of Exhibit C5, no fact was pleaded and no evidence led to controvert it. That in view of the contents of Exhibit D3 and the doctored Exhibit C5, the most plausible deduction from the circumstances of this case is that the claimant was aware of the phasing out of PIB and had accepted it until he decided to formulate a cause of action,Accordingly, the claimant’s evidence that the PIB was not changed to his knowledge is unbelievable and should be discountenanced. That the Court cannotalso rely on the claimant’s oral evidence in view of Exhibit D3, citing Kayili v. Yilbuk[2015] 7 NWLR (Pt. 1457) 23 and Ekweozor v. Reg. Trustees, SACN[2014] 16 NWLR (Pt.1434) 433 at 434. That the claimant’s argument that the PIB was not changed by a letter or in writing is of no moment when, as argued above, he has demonstrated that he knew about it. In any event, that the claimant testified under cross-examination that there was also no writing or documentary evidence of the increase in salary he received which was an amendment of his terms of employment stated in Exhibit C1. That assuming but not conceding that PIB was not changed in writing, this clearly established that by the conduct of the parties the terms of employment could be changed and it was not mandatory that it had to be in writing.

15. Secondly, that assuming but not conceding the fact that the claimant is entitled to PIB, such bonus is given to staff of the chambers on a discretionary basis, Such bonus is computed based on the performance of the staff. There is no fixed amount for such bonus. Whether or not a staff is entitled to PIB and even where such staff is found to be entitled to PIB, computation of the said PIB is done by the accounts department of the chambers on the order of the management of the firm upon assessment. Hence, the claimant cannot fix an amount as PIB to which he is entitled to. Such PIB where he is found to be entitled is decided by management as well as the amount he is entitled to.Furthermore, that the contract of employment clearly makes PIB contingent upon the quality of an employee’s work in the service of the chambers, referring toparagraph 3 of Exhibit C1, which states as follows: “You will be eligible to receive Performance Incentive Bonus up to N175,500.00 per annum payable quarterly DEPENDING UPON THE QUALITY OF YOUR PERFORMANCES AS ASSESSED DURING THE PERIOD”. That the claimant failed to show that he was assessed by the management and was found to be entitled to the sum of N175,500 yearly for 2010, 2011, 2012 and 2013, In fact, That Exhibit D3 shows that the claimant was aware that he was not entitled to any PIB for the periods of year 2012 and year 2013. That under cross-examination, the claimant admitted being the author of Exhibit D3.

16. To the defendant, the claimant cannot unilaterally make such decision on his own. Hence, the amount sought by the claimant in his claim as his entitlement for PIB is speculative, which the Court cannot take, citing Mathew v. Otabor[2015] 14 NWLR (Pt. 1479) 360 at 388. That the claimant failed to prove his case to be entitled to the relief sought. That the claimant’s claim of N507,734.40 as arrears of salary for July 2014 and other entitlements is baseless;his particulars of claim which entail the breakdown of how he reached the said sum is grossly false and miscalculated. His claim of N32,36250 as salary for the month of July 2014 is miscalculated, That the claimant was paid the sum of N8,047.51 being the 15 working days salary for July 2014.

17. The claimant also claimed three months’ salary in lieu of notice in the sum of N57,787.50 whereas the sum of N57,787,59 being his threemonths’ salary in lieu of notice was used to offset his outstanding loan to the defendant. The claimant’s claim of PIB is thus erroneous, speculative and utterly baseless; as such, the claimant is not entitled to any of the reliefs sought. The defendant then urged the Court to resolve this issue in favour of the defendant and against the claimant.

18. Issues (2) is whether the defendant has proved his case to be entitled to the reliefs sought. To the defendant, it is an undisputed fact that the claimant took a loan of N500,000 in November 2012 from the defendant. Subsequently, the claimant’s PIB for the 2nd quarter of 2010 to 4th quarter of 2011 was assessed at 50% in the sum of N153,562.50. The said sum was used to offset part of the loan leaving the sum of N346,437.50 due to the defendant. That as previously emphasized, assessment for the purpose of PIB was done by the management of the chambers. The discretion lies with the management to determine whether a staff is entitled to PlB or not and where a staff is found to be entitled, the percentage of his entitlement to PlB was at the discretion of the management after taking into consideration the performance of the staff during the said period.Flowing from this, that it would be impracticable for the claimant to unilaterally assess himself and claim to be entitled to 100% bonus whereas during the period his performance was assessed and reflected 50%. That the 50% of the PIB was used to offset his outstanding loan balance to the defendant and he accepted same without any complaint or request for balance of 50% PIB whatsoever. That he cannot subsequently claim to be entitled to a balance of 50% PIB upon termination of employment, an issue which he didn’t raise at the time of the payment of his 50% PIB to him.

19. That upon offsetting N153,562.50 (which is 50% of PIB of the claimant) from the loan of N500,000 taken by the claimant, the balance was N346,437.50. That the interest outstanding on the balance sum was N17,321.88 i.e. 5% of N346,437.50 summing up the loan balance to N363,759.38. That during the employment of the claimant, the sum of N10,000 was deducted from the claimant’s salary between November 2012 and June 2014 for the purpose of offsetting the outstanding loan in line with the agreement with the claimant upon collecting the loan sum. Upon such deductions within the said periods, the outstanding balance of the loan was left at N163,759.35.

20. That the defendant is not and has never disputed the fact that the claimant is entitled to three months salary in lieu of notice. It is for this reason that the sum of N57,787.59 being three months salary in lieu of notice and N28,047.51 being the 15 working days salary for July 2014 was used to offset the outstanding loan of N163,759.35 leaving a balance of N52,746,67 as outstanding loan in favour of the defendant. To the defendant, the claimant’s statement in paragraph 8 of his statement of facts contending that the failure of the defendant to give the claimant the requisite three months’ notice or pay him three months’ salary in lieu of notice upon termination of his employment is false. That Exhibit C3, which is the letter of termination of the claimant’s employment, reads in its last paragraph thus: “Finally, the accountant is by a copy of this letter advised to pay all you, entitlement (if any) to you. We wish you success in your future endeavours”. That the entitlements referred to hereare the three months salary in lieu of notice in the sum of N57,787,59 and N28,047.51 being the 15 working days salary for July 2014 which was rightly used to offset the outstanding loan of N163,759,35 leaving a balance of N52,748.67 as outstanding loan in favour of the defendant. Citing Fagbuaro v. Akinbami[2015] 6NWLR (Pt. 1455) 358 as to particularizing and proving by credible and convincing evidence the reliefs a party seeks, the defendant submitted that he has clearly complied by leading cogent and credible evidence to the fact that the claimant has a balance of N52,74867 outstanding in favour of the defendant. That having given the claimant a loan in good faith, the defendant should be entitled to the balance of said loan from the claimant, the sum of N1,000,000.000 being general damage and the cost of this action. That an employer having given an employee a loan on specified terms should not be made to suffer a disadvantage because of the employee’s inability to pay the loan sum in full and final satisfaction of the debt owed to him, urging the Court to resolve this issue in favour of the defendant. In conclusion, the defendant urged the Court to dismiss the claimant’ claims and grant the counterclaim.

THE SUBMISSIONS OF THE CLAIMANT

21. The claimant submitted three issues for determination, namely:

(1) Whether having regard to the evidence adduced by the claimant in proof of his claim, this Honourable Court can rightly hold the termination of the claimant’s employment by the defendant as wrongful having contravened the terms and conditions of contract between both parties contained in Exhibit C1.

(2) If the first issue is answered in the positive, whether the claimant can rightly be held to have satisfactorily proved his claim of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) being his arrears of salary and other entitlements accrued to him from the defendant before the said termination of his employment.

(3) Whether the defendant’s counterclaim is entitled to succeed having regard to the evidence adduced by the defendant in proof of same.

22. On issue (1), the claimant submitted that that the law is trite that in a master and servant relationship without statutory flavour where the terms and conditions regulating the contract of employment between an employer and employee has been reduced into writing (such as the terms and conditions of contract of employment between the claimant and the defendant in this suit contained in Exhibit C1), parties to the contract shall be bound by same, citing Union Bank of Nigeria v. Ogboh[1996] 2 NWLR (Pt. 380) 647 at 664 andObama v. SPDC[2005] V.123 LRCN 259. That paragraph 8 of Exhibit C1 is clear on how the claimant’s employment was to be determined by virtue of its content, which provides as follows:

Probation and Termination

You will be required to serve a probationary period of three (3) months during which time no notice is required for termination of this appointment on either side. After the probationary period, this appointment shall only be terminated by three (3) months notice or three (3) months’ salary in lieu of notice on either side.

That the defendant’s termination of the claimant’s appointment as a Secretary by Exhibit C3 dated 21st July 2014 clearly shows that the termination came after the claimant had completed his probationary period of three (3) months in the defendant’s employment in 2010 which required that the claimant ought to have been given by the defendant three months’ prior notice or three months salary in lieu of notice before the termination, none of which was given to him whatsoever.

23. The claimant went on that he pleaded facts of his entitlements to three months notice or three months salary in lieu in paragraph 8 of his statement of facts and led evidence on same in his evidence on oath; and thathe was not contradicted on this fact during his cross-examination.That the burden of proof of compliance with the provision of paragraph 8 of Exhibit C1 now shifts to the defendant, citing section 133(1) and (2) of the Evidence Act 2011. That the defendant failed to discharge at the trial the burden to show his compliance with the provision in terminating the claimant’s appointment. That although the relationship between the claimant and the defendant is that of master and servant relationship under which the defendant could have hired and fired the claimant without assigning any reason for the termination but must give employee reasonable notice which is normally expressed in condition of service, citingOgunsanmi v. C. F. Furniture (WA) Co. Ltd [1961] All NLR 862 andJames v. Thomas H. Kent & Co. Ltd[1951] 1 KB 661 at 556. The claimant then submitted that granted that the defendant has not erred in law for not stating the reason for termination of the claimant’s employment in the letter of termination dated 21st July 2014 tendered as Exhibit C3, the court is humbly should declare the defendant’s failure to give the claimant’s three months’ notice or three months’ salary in lieu of notice as an infringement of paragraph 8 of Exhibit C1, citingObama v. SPDC (supra).Also, that the law is trite that where an employer in a contract of master and servant relationship raises specific acts of misconduct on the employee as the reason for termination of the employment, the onus is on the employer to discharge the burden of proving the misconduct, citingOgunsanmi v. C. F. Furniture (WA) Co. Ltd(supra). That the defendant has not raised any reason or misconduct on the part of the claimant as the reason for termination of his employment by Exhibit C3, urging the Courtto hold that no reason whatsoever existed as at 21st July 2014 for laying the claimant off the defendant’s employment, and his employment was not terminated as a result of any misconduct whatsoever committed by him before 21st July 2014.

24. The claimant continued that notwithstanding the foregoing, the defendant strangely and curiously came at the trial to raise in paragraphs 4 and 5 of his 1st amended statement of defence and counterclaim filed on 31st October 2018, that is, after about four years of the termination of the claimant’s employment, that his employment was terminated on the basis of misrepresentation of age at the time of his employment. This, to the claimant, is an afterthought on the part of the defendant to justify the wrongful termination of the claimant’s employment; and that the defendant has also failed to discharge the burden to prove the allegation of misrepresentation on the part of the defendant beyond reasonable doubt or by credible evidence. He has also failed to show that the claimant was confronted with the allegation of his misrepresentation of his age or found guilty of same while he was in his employment. The claimant then urged the Court to hold the termination of the claimant’s employment by the defendant as wrongful having done it in contravention of provision No. 8 of the contract of employment tendered as Exhibit C1; and urging the Court to answer issue (1) in the positive and grant relief (a) of the claimant’s relief in his statement of facts.

25. For issue (2), the claimant submitted that the law is settled that in a master and servant relationship under which the claimant and defendant’s relationship falls, in the event of unlawful or wrongful termination of the servant’s employment as in the claimant’s employment in this suit, the servant will only be entitled to damages based on the trite position of law that the Court will not impose a willing servant on an unwilling master even if the master did not follow the normal procedure in bringing the contract to an end as done by the defendant to the claimant through Exhibit C3, citingOdinkenmere v. Impresit Barolors Nig. Ltd[1995] 8 NWLR (incomplete citation), UBN v. Ogboh(supra) and Obama v. SPDC (supra). That where an employee’s employment has been found to have been wrongfully terminated, the law is trite that such employee is only entitled to damages. That the measure of damages for wrongful termination of employment is that such employee is only entitled to salaries and benefits he would have earned within the period of notice as contained in the contract of employment between parties. Such recoverable damages are usually salaries and entitlements that is due to the servant within the period that a notice ought to have been given. It may also include legitimate allowances, commission, bonus, pension and gratuity already due to the employee at the time the appointment was wrongfully terminated, citingIbama v. SPDC (supra),P. Z. & Co. Ltd v. A. J. Ogedengbe[1972] 3 SC 101,G. B. Ollivant Nig Ltd v. O. B. Agbabiaka[1972] SC 137 andOdin Kenmore v. Impresit Barolari Nig Ltd (supra) at 52.

26. The claimant proceeded that a careful consideration of the claimant’s claim of a total sum of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) on the various heads of his claim of entitlements, the evidence adduced in proof of same vis-à-vis the above principles of law shall reveal that he has made out a good case for the claims under the terms of contract of employment between the claimant and the defendant as contained in the letter of employment admitted as Exhibit C1. That the claimant’s entitlements as vivid from Exhibit C1 from the defendant were as follows:

(a) Basic Salary – N18,375.00 per month;

(b) Housing Allowance – N7,350.00 per month;

(d) Lunch Allowance – N3000.00 per month; and

(e) Performance Incentive Bonus of N175,500.00 per annum payable quarter at N43,875.00 per quarter.

27. That although increment was subsequently effected by the defendant in respect of the amount agreed to be paid via Exhibit C1 by the defendant to the claimant in respect of basic salary, housing allowance and lunch allowance, these heads of benefit were never expunged or phased out by the defendant at any point in time. That when the terms of contract have been reduced to or recorded in writing either by requirement of law or agreement of the parties, as in the letter of appointment (Exhibit C1), the writing becomes in general the exclusive record thereof and no evidence may be given to prove that terms of the transaction except the document itself or the secondary evidence of its content.In the same vein, that the law is settled that where parties reduced their transaction in writing, oral or extrinsic evidence is not admissible to add to, vary, subtract from or contradict the written terms of contraction, citingAgbarem v. Minra[2008] 2 NWLR (Pt. 1701) 378 and Olowu v. Buullong Stock Ltd [2018] 1 NWLR (Pt. 1601) 354.That the law is trite that in construing the relationship of the parties in any contract, the Court should confine itself to the plain words and meaning which can be derived from the provisions containing the rights provided therein, citingIbamav. SPDC (supra) at 2588 andSule v. Nig Cotton Board [1985] 6 SC 62.

28. On the foregoing premises, the claimant submitted that to determine whether the claimant is entitled to the sum of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) being claimed by him against the defendant as his total accrued entitlements before and up to 21st July 2014 when his employment was terminated, the Court has to look at the Exhibit C1 to see whether the entitlements or benefits are guaranteed by them and the amount so guaranteed save where both parties are adidem that increase had occurred to such entitlement or benefit.That the claimant by paragraph 5 and 6 pleaded the facts that he was entitled to Basic Salary, Housing Allowance, Transport Allowance, Lunch Allowance and Performance Incentive Bonus under Exhibit C1 including the amount of the entitlements. That paragraph 6 of the statement of facts was admitted by the ‘claimant’, which fact needs no further proof. The claimant then urged the Court to hold that he is entitled to the amount stated to be Basic Salary, Housing Allowance and Lunch Allowance. That the claimant also by his written statement on oath led evidence on the amount he was entitled to as July 2014 salary and other benefits for the month of July, three (3) months salary in lieu of notice and performance incentive bonus for the years 2012, 2013 and 2014 respectively. That it is also not in dispute between both parties having regard to paragraph 15, and 16 of the statement of facts and paragraph 17 of the 1st amended statement of defence and counterclaim that as at July 2014, the claimant was indebted to the defendant to the tune of N163,759.35 on the loan granted him.

29. The claimant continued that in paragraph 15 of his statement of facts, he stated that his performance incentive bonus for the years 2010-2011 were not paid in full. Evidence was also led by him on this point at the trial. That an arithmetic computation of the claimant’s claim of entitlements from the defendant as at July 2014 when he was laid off of his employment as done hereunder vis-à-vis Exhibit C1, which formed the enabling provision for the claim, and other evidence before the Court supports his claim of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) as particularized in relief (b).

30. To the claimant, the defendant in a bid to escape liability for payment of performance incentive bonus to the claimant as agreed upon in Exhibit C1 introduced in their pleading two contradictory situations without explaining the path he wants the Court to thread. First, thatby paragraph 6 of his 1st amended statement of claim, the defendant said that Exhibit C1 makes payment of performance incentive bonus contingent upon the quality of claimant’s performance as assessed in view of the provision in the exhibit which states as follows:“you will be eligible to receive performance incentive bonus up to N175,500.00 per annum payable quarterly depending upon quality of your performance as assessed during the period”. To the claimant, this provision of Exhibit C1 is clear to the effect that the claimant is entitled to performance of incentive bonus of N175,500.00 per annum. That the onus is on the defendant to show that based on his assessment of the quality of performance of the claimant, he was not entitled to N175,500.00 per annum since he is the one contending that the claimant is not entitled to receive same in full, citingsection 132 of the Evidence Act 2011.That the defendant never tendered any evidence of assessment of the claimant’s performance from 2010 to 2014. In fact, that DW1 and DW2 in their evidence during cross-examination confirmed that there was no any assessment of the claimant’s performance of any period.They even said that the claimant was never found guilty of any misconduct or anomaly to rob him of his entitlement to performance incentive bonus in the sum of N175,500.00 per annum. That in view of the defendant’s failure to discharge the onus on him to prove so, the claimant urged the Court to hold that the claimant’s claim of his entitlement to performance incentive bonus of N175,500.00 per annum from 2010 to July 2014 is in order.

31. Secondly, thatthe defendant subsequently in his pleading somersaulted to the position that performance incentive bonus has been phased out and replaced by discretionary (1) increase in salary.That the defendant’s assertion to this effect is contained in paragraphs 8, 9, 10 and 11 of the statement of defence and counterclaim. To the claimant, Exhibit C1, having provided for payment of performance bonus clause, cannot be orally phased out at post retreat or at any meeting because the law is trite that oral evidence cannot be used to vary the content of a written contract, referring toOlowu v. Building Stock Ltd (supra).That Exhibit C1 is the pivot which the claimant must found his case and he succeeds or fails upon the terms thereof. That in determining the respective rights and obligations of both parties where the contract of employment has been reduced into writing as in Exhibit C1, the Court will not look into any matter outside the terms stipulated and agreed therein between the parties to the contract, citing Western Nigeria Development Corporation v. Abimbola [1966] 4 NSCC 172 andIbamav. SPDC(supra) at 2602. That no post retreat communiqué phasing out performance incentive bonus was specifically address to the claimant while in the defendant’s employment. That the post retreat communiqué tendered as Exhibit D2 is worthless, same having not been signed by the defendant or his accredited agent.That the minutes of the meeting where performance incentive bonus of the Claimant was purportedly phased out having not been tendered, the Court is urged to hold that holding of any meeting to that effect was not proved. Exhibit D2 written at the point of terminating the claimant’s employment cannot be the basis of phasing out of the performance incentive bonus of the claimant or evidence of what information the defendant ought to have communicated to him since 2012. That the Court should hold that the claimant has proved his entitlement to performance incentive bonus in line with the provision of Exhibit C1 while the defendant has failed to prove that same could be legally phased out or has been phased out or replaced by discretionary bonus whatsoever.

32. That the defendant has failed to explain the path he wants the Court to thread in either of the above two conflicting positions being maintained by him. That is, whether payment of performance incentive bonus is contingent on assessment of quality of performance of the defendant’s employee or same has been phased out for discretionary bonus. That this contradictory position of the defendant cannot be the basis for waiving or expunging the right to performance incentive bonus of N175,500.00 per annum already accrued to the claimant since 2010 per Exhibit C1, referring toIbamav. SPDC(supra).The claimant then urged the Court to sustain is claim of entitlement to performance incentive bonus from the defendant between 2010 and 2014, which forms the basis of part of the amount claimed by him before the Court.

33. Regarding issue (3), the claimant submitted that the defendant has the onus to prove his counterclaim; and he succeeds on the strength of his own case and not on the weakness of the claimant’s case.The claimant then adopted his argument on issue (2) in support of his position that the defendant’s counterclaim is bound to fail.On the counterclaim claiming a sum of N52,748.67 (Fifty Two Thousand , Seven Hundred and Forty-Eight Naira, Sixty-Seven Kobo) being the outstanding balance of the loan the claimant took from the defendant, the claimant submitted that this Court lacks jurisdiction to recover loan on behalf of a party. That the Court under its enabling statute is only set up to determine industrial matters or rights and liability of employer and employee, urging the Court to strike out leg (a) of the counterclaim.

34. In alternative, that the claimant having shown abovethat the termination of his employment by the defendant was wrongful, and that he worked for 21 days in the defendant’s employment in the year 2014 and that he was entitled to be paid performance incentive bonus of N175,500.00 per annum from second quarter for 2010 to July 2014 upon his establishment that same having been guaranteed by Exhibit C1 could not be validly phased out or has been phased out, the sum of N52,748.67 arrived at as the liability of the claimant to the defendant is inaccurate, incorrect and untrue having been arrived at upon a calculation based onsalary for 15 working days in July 2014 instead of 21 days which evidence before the Court shows the claimant worked for the defendant in July 2014, andexclusion of payment of balance of performance incentive bonus for the years 2010 and 2011 to the claimant by the defendant as well as payment to him of 2012, 2013 and up to July 2014 performance incentive bonus. That if all these payments have been included in the defendant’s calculation, he would have arrived at the conclusion that less than N163,759.35k indebtedness of the claimant to the defendant, the defendant is still indebted to the claimant to the tune of N507,734.40k in respect of his accrued entitlements at the time of the termination of his appointment, that is, July 21, 2014, urging the Court to dismiss leg (a) of the defendant’s counterclaim.

35. As regards leg (b) of the counterclaim, the claimant submitted that the defendant’s case, not being an action in tort, the Court has no jurisdiction to award general damages of any sum in his favour against the claimant let alone the award of N1,000,000.00. The defendant has not in his pleading and evidence before the Court made out any case to justify his entitlement to N1,000,000.00 general damages against the claimant, urging the Court to hold that the defendant’s prayer for N1,000,000.00 general damages is baseless, frivolous and unfounded. That having shown that the defendant’s counterclaim is not entitled to succeed, the Court should not award cost of any form in the defendant’s favour. In conclusion, the claimant urged the Court to grant his reliefs while the defendant’s counterclaim should be dismissed with substantial cost in favour of the claimant.

THE DEFENDANT’S REPLY ON POINTS OF LAW

36. The defendant’s reply on points of law was merely re-argument of the submissions it earlier made. I shall accordingly only highlight the submissions that are actually replies on points of law. On entitlement to Performance Incentive Bonus (PIB), the defendant submitted that the claimant in arguing on this claim attempted to shift the burden of proof in civil cases. That contrary to his argument, on the basis of the description of PIB in the terms of employment, it is the claimant that has the duty to prove that he was assessed 100% to be entitled to the claim. The law is settled that he who asserts must prove. It is the claimant who claims to be entitled to 100% PIB; he, therefore, has the duty to show that he was assessed to be entitled to 100% by the management of the defendant in line with the terms of employment. That it is clearly illogical to claim 100% PIB when by the terms of employment it is the management that determines the percentage. That the claimant never complained as far back as 2011 that he was wrongly assessed by the defendant. This much was admitted during cross-examination thus:“No there was no time I complained that I was incorrectly assessed for my P1B before the termination of my employment”.

37. On variation of the terms of employment, the defendant submitted that the claimant’s argument that there was no variation of Exhibit C1 is misconceived. That it is a known fact that contracts entered into by parties are not set in stone; they may subsequently be modified or varied either in whole or in part depending on the circumstances in each case. That Exhibits D2, D3 and the oral testimony of the defendant’s witnesses as well as the admission of the claimant under cross-examination are consistent with the fact that the contract between the parties in relation to PIB and salary was modified.That the law is settled that in construing the contract between parties, the Court must consider all documents relating to the contract, citingFGN v. lnterstella Comms. Ltd[2015] 9NWLR(Pt. 1463)1CA,REAN Ltd v. Aswani Textile Ind. Ltd[1991] 2 NWLR(Pt.176)639 andCBN v.Igwilo[2007] 14NWLR(Pt.1054)393. The defendant also referred the Court to section 7(2) of the Labour Act bordering on variation of contract of employment. The section provides that if there is a change in the terms of the contract of employment, the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and where a copy of said written statement is not given to the employee, the employer shall ensure that the employee has reasonable opportunities of reading it in the course of his employment or it is made reasonably accessible to the employee in some other way.On this basis, that the obligation of employers in the event of change of terms of employment is to bring it to the notice of the employees. That the real question before the Court is whether or not the claimant had notice of the change. That in Exhibit D3, the claimant admitted PIB had been phased out and under cross-examination, admitted that there has been variation of the contract orally and that he had no objections at the time. This clearly establishes that the claimant had notice of the change in the firm’s policy. That the claimant is, therefore, estopped in law from denying a state of facts which he formally asserted expressly and by conduct, citingMabamije v. Otto[2016] 13 NWLR(Pt.1529) 191. That the claimant cannot be allowed to approbate and reprobate at the same time, citingAG, Rivers State v. AG, Akwa Ibom State [2011] 8NWLR (incomplete citation) andSalisu v. Mobolaji[2016] 15 NWLR (Pt.1535)242.

38. That by virtue of section 7(2) of the Labour Act, there is no requirement that the claimant must sign another agreement to vary the terms of the contract so long as the change is duly communicated to him. That the defendant completely adhered to the above provisions by ensuring that the phasing out of PIB was communicated to the claimant both expressly in writing by Exhibit D2 and orally at a meeting in the chambers wherein the claimant was present. That the evidence of the defendant’s two witnesses to the effect that the claimant took the minutes of the meeting was unshakable in cross-examination.To the defendant, it is unconscionable and against equity, which is the hallmark of this Court, for the Court to allow the claimant to argue that there was no variation simply because there was no subsequent signed term when from evidence, he was well aware of the change. This would amount to hanging on the dry bones of legal technicalities which must bow to section 15 of the National Industrial Court (NIC) Act.

39. Furthermore, that the evidence of the defendant with respect to variation of the contract of employment is more believable because, as rightly noted by the Court in the record of proceedings, the claimant was evasive during cross-examination and had to be made to answer questions clearly. The law is trite that the evidence of an evasive witness is suspicious and consequently has no probative value. That when the Court places the evidence of both parties on an imaginary scale, it would be clear that the evidence of the defendant is more consistent and believable, citingMogagi &ors v.Odofin &ors[1978] 4 SC 91 at 93-95.

40. On jurisdiction of the Court on recovery of loan arising from employment relationship, the defendant submitted that the claimant’s argument that the Court lacks jurisdiction to entertain the counterclaim bordering on the recovery of the outstanding loan sum owed by the claimant to the defendant and that the claim for N1 Million is tortious, is misconceived. Indeed, that there are various reported and unreported cases wherein this Court has exercised its jurisdiction on matters bordering on loan arising from employment relationship, citingMr Adebayo Gbolahan Adepoju v. Coscharis GroupunreportedSuit No. NICN/LA/409/2014, Ms Kate Iyamak v. FBN Plc unreported Suit No. NICN/LA/367/2012 and Mrs Kikelomo Kola-Fasanu v. Prestige Assurance Plc unreported Suit No. NICN/LA/25/2016, a case bordering on loan recovery.That the counterclaim arose from the employment relationship between the parties and it is an answer to the substantive claim of the claimant. It is, therefore, within the jurisdiction of the Court. That to argue that the defendant ought to have approached another Court to make the claim defies logic and common sense. The defendant then submitted that this Court is properly vested with jurisdiction on all matters arising from and relating to employment relationships. That this position is consistent with the powers of this Court under section 14 of the NIC Act.

41. Secondly, that the claim that the claimant worked for 21 days is contrary to the terms of employment between the parties. By Exhibit C1 the claimant is meant to work from Monday to Friday and these are the recognised working days in Nigeria. That there was no evidence that the claimant worked outside these days. That the number of working days between 1st and 21st July 2014 is l5days, urging theCourt to so hold. In conclusion, the defendant prayed the Court to dismiss the claimant’s claims and grant all the reliefs sought by the defendant.

COURT’S DECISION

42. I careful considered the processes filed and the submissions of the parties. I start off with the defendant’s reply on points of law, which like I indicated earlier is in the main re-argument of the submissions the defendant earlier made and an attempt to bring in points that the defendant omitted to make in the earlier submissions. A reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points raising from the opposing brief. 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. It is not a form to engage in arguments at large. 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), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). Accordingly, save for what is highlighted earlier as reply on points of law, all others are hereby discountenanced for purposes of this judgment.

43. The claimant raised in his final address the jurisdiction of this Court to entertain the defendant’s counterclaim, which prays for the sum of N52,748.67 as the outstanding balance of the loan the claimant took from the defendant, arguing in the process that this Court lacks jurisdiction to recover loan on behalf of a party. Like the defendant pointed out in his reply on points of law, the loan inured to the claimant in virtue of his employment. Exhibit C2, the June 2014 pay-slip of the claimant, shows a loan balance of N163,759.38. And this Court has in several cases assumed jurisdiction over counterclaims relating to employment loans. See, for instance, Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014, the judgment of which was delivered on 16th February 2018, Mrs Kikelomo Kola-Fasanu v. Prestige Assurance Plc unreported Suit No. NICN/LA/25/2016, the judgment of which was delivered on 25th April 2018 and 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. The argument of the claimant that this Court has no jurisdiction to recover employment loans is accordingly misplaced and so is hereby rejected. I hold that this Court has the jurisdiction.

44. The claimant had contended that the post retreat communiqué tendered as Exhibit D2 is worthless, same having not been signed by the defendant or his accredited agent. Exhibit D2 is a letter dated January 6, 2012 signed by Folarin R. A. Williams, Managing Partner. The salutation is, “Dear OA”. In the first paragraph, it stipulates thus: “…In October 2011, a Post Retreat Communique was issued. Annexure 1 (pp. i-v)…” Attached to this letter is the Annexure 1 titled, “Post-Retreat Communique”. It is not signed though at page iv room is made for the Managing Partner to sign. This Communique, as Exhibit D2 itself indicated, was issued in October 2011. So if Exhibit D2 dated 6th January 2012 has a Communique attached to it, a Communique of October 2011, yet the Communique remained unsigned, I am not certain that the said Communique is not an afterthought. The signature on Exhibit D2 endorsed there on 6th January 2012 cannot supply the date of the Communique of October 2011. I find, therefore, that the communique is an unsigned document. As an unsigned document, it is worthless and void. See Fasehun & ors v. AG, Federation [2006] LPELR-5567(CA); [2006] 6 NWLR (Pt. 975) 141 and Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-40094(CA). I shall accordingly discountenance the Communique for purposes of this judgment.

45. In like manner, Exhibits C5 and D3 both dated 21st July 2014 and showing the computation of the terminal benefits/entitlements of the claimant are self-generated and so cannot be proof of any entitlement to the sums so specified in the exhibits. Some other evidence is needed by the claimant to prove his entitlement to the sums he claims. They shall accordingly be discountenanced as proof of any entitlement inuring to the claimant. See Mr Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment of which was delivered on 20th May 2019, Peter Yinkore & 73 ors v. Neconde Energy Limited & anor unreported Suit No. NICN/LA/611/2012, the judgment of which was delivered on 12th February 2019 at paragraph 107, Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC andBarrister Jerome Lucky Simon v. Barrister Moses Okosun unreported Suit No. NICN/LA/78/2016, the judgment of which was delivered on 25th April 2018. The claimant in the instant case cannot thus rely on Exhibits C5 and D3 as proof of any entitlement to the sums he claims. I so find and hold. There is, however, a staff debtor’s account prepared by the defendant attached to Exhibit D3 in terms of the loan of N500,000 the claimant took from the defendant and particulars of repayment of the loan made by the claimant to the defendant. It has the defendant’s stamp on it and is dated 21/07/14. It shall be used as such in this case.

46. The claimant’s case centers on two issues: that the termination of his employment was “unlawful, wrongful and in breach of contractual agreement between both parties” (relief a); and a claim for “N507,734.40…being [his] arrears of salary for July 2014 and other entitlements due and payable by the defendant to [him] before the termination of his employment for work done and services rendered as defendant’s employee at his request” (relief b). Relief (b) is thus a claim for special damages. See 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017. The third relief, relief (c), is a consequential relief, which prays for cost. The defendant’s counterclaim for the sum of “N52,748.67…being the outstanding balance on the loan the claimant took from the Defendant” is also a claim for special damages. The counterclaims for general damages and cost are also consequential reliefs.

47. I take first the issue of unlawful and wrongful termination. Exhibit C3 dated 21st July 2014 is the letter of termination of the claimant’s employment by the defendant. In the first paragraph, it states of the claimant that “…the management of the firm has decided to terminate your appointment forthwith”. A termination forthwith is a termination with immediate effect; and a termination with immediate effect is a termination without notice. A termination without notice is a wrongful termination. The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd [1997] (Pt. 484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA); [2001] 2 NWLR (Pt. 697) 424. And the Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9 – 10 SC (Reprint) 254 held that “… even where…the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee”. See also Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018.

48. Exhibit C1, the letter of appointment as Secretary dated 19th May 2010 puts the probationary period of the claimant at 3 months. This means that the claimant as at 21st July 2014 when his employment was terminated was no longer on probation. As a confirmed staff, Exhibit C1 states that the termination of the claimant’s employment must be with 3 months’ notice or 3 months’ salary in lieu of notice. There is no evidence before the Court that the defendant gave the claimant 3 months’ notice before terminating his appointment. Exhibit C3 terminated his appointment forthwith, which I already held is termination with immediate effect and so is one without notice. Was the claimant paid 3 months’ salary in lieu of notice? Exhibit C3 in the last paragraph merely stated that: “Finally, the accountant is by a copy of this letter advised to pay your entitlement (if any) to you. We wish you success in your future endeavours”. There is nothing in Exhibit C3 stating that 3 months salary in lieu of notice will be paid to the claimant. The defendant’s argument that this is implied in the phrase, “the accountant is by a copy of this letter advised to pay your entitlement” is discounted by the next phrase, “(if any)”. The attempt to explain this through oral evidence cannot help the defendant as parol evidence cannot alter the words of any document save in the circumstances permitted by law, none of which was brought to the attention of this Court.

49. A similar scenario presented itself in Yunus Adewale Adefowope v. MTN Nigerian Communications Ltd unreported Suit No. NICN/LA/492/2016, the judgment of which was delivered on 15th May 2019. In that case, the statement in the document in issue was even: “adequate payment in lieu of the applicable notice of this termination shall be paid to you”. I held it not to meet the legal requirement of payment in lieu of notice, which is that payment must be made contemporaneously with the termination. I relied onChukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512, paragraphs 61 and 62 of Madam Oyesola Ogunleye v. Sterling Bank Plc unreported Suit No. NICN/LA/430/2014, the judgment of which was delivered on 24th May 2018 and paragraph 47 of Mr Dawodu Azeez v. 3 Peat Investment Limited unreported Suit No. NICN/LA/628/2014, the judgment of which was delivered on 16th July 2018. The defendant argued that he used the claimants’ 3 months salary in lieu of notice to offset the loan he took from the defendant. Even if this were the case, the termination is still wrongful for the fact that the said 3 months’ salary in lieu of notice was not paid contemporaneously with the termination. What all of this, therefore, means is that the termination of the claimant’s employment was wrongful on the twin grounds of not giving 3 months’ notice and failure to pay the 3 months’ salary in lieu of notice contemporaneously with the termination. I so find and hold. The subsequent argument of the defendant that the claimant misrepresented his age when he was employed is an afterthought as Exhibit C3, which terminated the appointment of the claimant, made no reference whatsoever to that fact. I so find and hold.

50. Having thus made a finding that the termination of the claimant’s employment was wrongful on two grounds i.e. in not giving 3 months’ notice; and in not paying the 3 months’ salary contemporaneously with the termination, the claimant is entitled to damages for the wrongful termination, the measure of which by case law authorities is what is payable in lieu of notice. See Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85, Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018, Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018 and Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018. Exhibit C2, the June 2014 salary pay-slip of the claimant puts his monthly salary as N28,854.52. If this sum is multiplied by 3 months, what we have is N86,563.56 as the 3 months’ salary payable to the claimant in lieu of notice. Ordinarily, this is the sum the claimant ought to be entitled to; but in relief (b)ii, the claimant calculated three months salary in lieu of notice at N19,262.50 per month (using his basic salary even when Exhibit C1 did not delimit payment in lieu of salary to basic salary) i.e. N19,262.50 x 3 = N57,787.50. The law is that a claimant gets only that which he claims, or less, but certainly not more that what he claims. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd[2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. This means that the claimant’s claim for three months’ salary in lieu of notice succeeds but at N57,787.50 only. I so find and hold.

51. The remaining claims of the claimant are the claims for special damages, claims that must be strictly proved with concert evidence. See 7UP Bottling Company Plc v. Augustus(supra) and NNPC v. Clifco Nigeria Ltd(supra). In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court indicated what the claimant must do to succeed in monetary claims:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.

The claimant’s claim for special damages comprises of claims for salary and other benefits for the month of July 2014, the month his appointment was terminated; 3 months’ salary in lieu of notice, I have already treated; and performance incentive bonus (PIB).

52. For the salary of July 2014, the claimant is claiming N32,362.50 as three weeks pay since his appointment was terminated on 21st July 2014 vide Exhibit C3. Implicit in this is the fact that the claimant worked for the defendant up to and including the 21st of July 2014. By Honika Sawmill (Nig.) Ltd v. Hoff [1992] 4 NWLR (Pt. 238) 673 CA at 679:

As between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was.

Going by this authority, the claimant has shown that he was in the service of the defendant up to 21st July 2014. It is for the defendant to show that it paid the claimant his due salary for the month of July 2014. The argument of the defendant is that he assessed the entitlement of the claimant for this head of claim at N28,141.32 and used same to feed the claimant’s repayment for the loan he took. In reaching this sum, the defendant took a baseline of 15 days as the days the claimant worked discounting the weekend in the process. The claimant, however, used 3 weeks as the baseline in his calculation counting also the weekends, hence the N32,362.50 he claims under this head. This claimant’s position accords with the labour laws where weekends are counted in computing working time and salary; and this remains so despite that Exhibit C1 puts the working days to be Mondays to Fridays. N32,362.50 is accordingly the claimant’s salary for the month of July 2014, which the defendant is obliged to pay to the claimant. I so find and hold.

53. This leaves out the claim for PIB. To prove his entitlement to this, the claimant referred to Exhibit C1, which provides that: “You will be eligible to receive Performance Incentive Bonus up to N175,500 per annum payable quarterly depending upon the quality of your performance as assessed during the period”. The defendants answer to this is that the prerequisites needed for this clause to apply are non-existent e.g. no assessment has been shown by the defendant, and that eligibility suggests that there is no absolute obligation to pay. In any event, that the defendant phased out the PIB. When the claimant argued that the burden of proof that the defendant assessed the claimant and found him wanting is on the defendant, the answer of the defendant was that the claimant is trying to shift the burden of proof in civil cases. That contrary to his argument, on the basis of the description of PIB in the terms of employment, it is the claimant that has the duty to prove that he was assessed 100% to be entitled to the claim. That the law is settled that he who asserts must prove. That it is the claimant who claims to be entitled to 100% PIB; he, therefore, has the duty to show that he was assessed to be entitled to 100% by the management of the defendant in line with the terms of employment.

54. Exhibit C1 shows the claimant to be eligible to PIB at N175,500 per annum. The evidence of the defendant that PIB has been phased out in 2011 is unsupported by any documentary evidence. At least DW2 acknowledged this under cross-examination when he testified that he does not know if there is any document before the Court evidencing the phase out of PIB. DW1 on his part testified under cross-examination that there was no letter informing the claimant of the phasing out of PIB. DW1’s evidence that the claimant was informed at a meeting, which minutes are with the claimant is just unbelievable. First, the meeting was said by DW1 to have held in 2012. It is inconceivable that up to 2014 when the claimant’s appointment was terminated, the defendant did not ask for the said minutes of the meeting. Secondly, when Exhibit C3 terminated the claimant’s appointment, he was asked by the defendant to return all Chambers’ property in his possession. Exhibit C4 dated 21st July 2014 showed that “Administrative Staff Minutes Book” was part of the properties the claimant returned to the defendant. I do not accordingly believe the evidence of DW1 and DW2 on this score.

55. The additional evidence of DW2 under cross-examination that the payment of PIB to the claimant before 2011 was at the discretion of the defendant is not in tandem with Exhibit C1, which grants the claimant an entitlement in that regard. Given Exhibit C1, I find for the claimant that he has in virtue of Exhibit C1 an entitlement to PIB in the sum of N175,500 per annum payable quarterly. It is for the defendant to show that the claimant was not eligible for this sum within the terms of Exhibit C1; and this, the defendant failed to do. The claimant acknowledged that the part of PIB paid to him in the period 2nd quarter of 2010 to 4th quarter of 2011 was used to offset the loan he took. The balance of what is due to the claimant for the period up to 4th quarter of 2011 is thus N131,625.00. No PIB was paid to the claimant for the periods 2012, 2013 and the 6 months and 3 weeks he worked in 2014. Respectively for these periods, the claimant is entitled to N175,500 + N175,500 + N98,781.75, which if added to N131,625 gives a total PIB entitlement of N581,406.75. This is the sum that the claimant is entitled to as PIB under reliefs (b)iii, (b)iv, (b)v and (b)vi. I so find and hold. Add N581,406.75 to N57,787.50 and N32,362.50, and what we get as the total sum due to the claimant from the defendant in terms of this suit is N671,556.75, not N671,493.75 as claimed. Since the law, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd (supra), is that I cannot grant more than what the claimant claims, I take N671,493.75 as what the claimant is entitled to in terms of his claims. I so hold.

56. The claimant acknowledged a balance of indebtedness to the defendant in the sum of N163,759.35. Exhibit C2, the June 2014 pay-slip of the claimant confirms this. If this sum is subtracted from N671,493.75, what we have as balance is N507,734.40. This is the sum that the defendant must pay to the claimant in terms of this case. I so hold. This means that the defendant has no counterclaim against the claimant. The counterclaim of the defendant accordingly fails and so is hereby dismissed.

57. On the whole, and for the reasons given the claimant’s case succeeds. In consequence, I make the following orders:

(1) It is declared that the termination of the claimant’s employment by the defendant through a letter dated 21st July 2014 is wrongful and in breach of contractual agreement between both parties.

(2) The defendant shall pay to the claimant the sum of N507,734.40 (Five Hundred and Seven Thousand, Seven Hundred and Thirty-Four Naira, Forty Kobo) being the claimant’s arrears of salary for July 2014 and other entitlements due and payable by the defendant to the claimant before the termination of his employment for work done and services rendered as defendant’s employee at his request.

(3) Cost of this suit is put at N300,000 (Three Hundred Thousand Naira) only payable by the defendant to the claimant.

(4) All sums payable under orders (2) and (3) are to be paid within 30 days of this judgment; failing which they shall attract 10% simple interest per annum until fully liquidated.

58. Judgment is entered accordingly.

……………………………………

Hon. Justice B. B. Kanyip, PhD