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National Industrial Court

Mr. Louis Oladapo Ogunmolawa -VS- C-I Associates Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 5thNovember 2019                    SUIT NO. NICN/LA/06/2019

 

BETWEEN

 

  1. LOUIS OLADAPO OGUNMOLAWA        …     CLAIMANT

 

AND

 

C-I ASSOCIATES LTD.                                     …     DEFENDANT

 

JUDGMENT

 

1             This suit was commenced on 9th January 2019. By his amended complaint dated 1st March 2019, the Claimant claimed against the Defendant as follows:

  1. The sum of N306, 000 [three hundred and six thousand naira] being the Claimant’s unpaid leave/vacation allowances for 3 years during the period of employment [2015-2018].

  1. The sum of N85, 000 [eighty-five thousand naira] being sum owed the Claimant for 2 years as unpaid 13th month allowance as per letter of employment.

  1. The sum of N318, 000 [three hundred and eighteen thousand naira] being the sum owed the Claimant as outstanding salary for 3 months [December 2017, August and September 2018] and balance sum for the part payment made on the salary for the month of July 2018.

  1. A declaration that the action of the Defendant in withholding the 3 months’ salary [December 2017, August and September 2018], the leave/vacation allowances for 3 years, the 13th month pay for 2 years is unlawful, unjust and amounts to unfair labour practices.

  1. The sum of N3, 000, 000.00 [three million naira] as general damages for unfair trade practices and for breach of contract of employment.

  1. The sum of N300, 000 [three hundred thousand naira] as cost of this action.

  1. The sum of N500, 000 [five hundred thousand naira] which represents the Claimant’s unremitted pension from the 31st day of May 2015 to the 31st day of September 2018 including the Defendant’s contribution and the deduction from the Claimant’s salaries.

  1. Interest thereon at 21% per annum from the day payment became due until judgment and thereafter at 15% per annum until the judgment debt is fully and finally liquidated.

The Claimant filed with the amended complaint his amended statement of facts, list of witnesses, amended statement on oath, verifying affidavit, list of documents and copies of the documents. Upon receipt of theamended originating processes, the Defendant filed its statement of defence and other defence processes dated 15th March 2019, to which the Claimant filed a reply, further statement on oath, list of additional documents and copies of the documents dated 1st April 2019. Trial commenced and was concluded on 20th May 2019. The Claimant testified for himself and tendered seven documents in proof of his claimwhich were marked exhibits 1 to 7. He was thereafter cross-examined. Mr. Charles Aide Iwobho, Managing Director of the Defendant, testified on behalf of the Defendant and tendered the Defendant’s handbook which was marked exhibit D1. He was cross-examined.

In compliance with the Rules of the Court, parties filed their final written addresses. On 31st October 2019,the date fixed for adoption of final written addresses, the Defendant was absent and unrepresented by counsel. Consequently, pursuant to Order 45 rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, the Defendant’s final written address was deemed to have been adopted. Thereafter, learned counsel for the Claimant adopted the Claimant’s final written address as his final argument in support of his case.

  1. In the final written address filed by the Defendant, learned counsel for the Defendant, Mr. WumiOkeremi, raised one issue for determination, to wit:

“Whether [the] Claimant is entitled to the reliefs sought in his claim before the Court?”

Learned counsel for the Claimant also formulated one issue for determination in the Claimant’s final written address, viz:

“Whether or not the Claimant has proved his case that the Claimant was a permanent staff of the company and was not a casual worker and is therefore entitled to all the rights and privileges available to a permanent staff?”

  1. As a preliminary point, learned counsel for the Defendant submitted that the Claimant’s evidence is not credible because it is replete with contradictions on significant issues and his testimony was negative when tested against documentary evidence that he tendered. Relying on Ajudua v. Nwogu No.2 [2004] 16 NWLR [pt.898] 78 at 88-9, he argued that in the face of such contradictions, the Court should refuse to pick and choose which of his evidence to believe; it should simply not believe any.

Canvassing the lone issue, Mr. Okeremireferred to section 131 of the Evidence Act, 2011 and submitted that a party asserting a fact must prove such facts by adducing credible evidence. The case of Hero v. Sheriff [2016] All FWLR [pt.861] 1309 at 1368 was cited in support. He referred to Claimant’s relief one and submitted that the burden of proof lies on the Claimant to show that exhibit 2 is the same as his confirmation letter. It was argued that going by the inability of the Claimant to give any credible evidence on this point, the Claimant has failed to discharge the onus of proof on him in order to succeed.

Learned counsel submitted that contrary to the Claimant’s claims, the Defendant’s position is that the Claimant is not entitled to the sum claimed because he was on 6 months’ probation which was hinged on performance; but exhibited poor performance at work and at site and in line with the handbook was not confirmed as a full staff. It was further argued that going by the provisions of the handbook, employment is not automatic as completion of the probationary period does not guarantee continued employment. He submitted that where words are clear and unambiguous, the Court should give effect to the ordinary meaning of the words and urged the Court to so hold.

Mr. Okeremi contended that the Claimant’s evidence that money was deducted from his account was discredited during cross-examination and thus the Claimant failed to discharge the requisite burden of proof. He submitted that a party seeking declaratory reliefs has the sole burden to adduce credible evidence to satisfy the Court of his entitlement to the relief and referred to W. B. P. v. A. T. & E. Co. Ltd [2017] All FWLR [pt.881] 1007 at 1032.Learned counsel argued that, assuming without conceding, that the Claimant is by law an employee of the Defendant, the Defendant gave lucid evidence that his salaries were not deducted for tax and pension purposes and was not cross-examined on that fact which implies an acceptance of his evidence as true. The case of Amadi v. Nwozu [1992] 5 NWLR [pt.241] 273 at 284 was cited in support. Counsel further argued that the Claimant was unable to establish by credible evidence that the Defendant’s action amounted to unfair trade practice, rather the Defendant demonstrated by credible evidence that during his employment, the Claimant was allowed to improve himself by opportunity of further studies but he rewarded the Defendant by immediate resignation after completion of his studies. He finally submitted that a claim for cost of action and Solicitor’s fees is in the realm of special damages which must be specially pleaded and strictly proved. He therefore urged the Court to dismiss the suit with substantial cost.

Responding to the preliminary issue, learned counsel for the Claimant, Mr. Ayodele Akinyemi, relying on the case of Nigerian Airways v. Gbajumo [1992] 5 NWLR [pt.244] 735 argued that the relationship of master and servant is characterized by a contract of service and payment of wages. He argued that the Defendant acknowledged that it owed the Claimant in exhibit 4 and the Claimant gave one month’s notice to the Defendant before quitting its employment. Relying on Telecommunications Ltd v. Mr. Olaore Olufemi Adegboyega [2017] 8 CLRN he submitted that an employer is deemed to have waived his rights if an employee is allowed to continue in his employment beyond the stipulated probationary period.

On the Claimant’s lone issue, Mr. Akinyemireferred to section 131 of the Evidence Act, 2011 and explained that there is documentary and oral evidence to show that the Claimant was paid salary on a monthly basis except for 3 months prior to his resignation. Relying on Mr. Davis Lorember v. Jaccee Property Nig. Ltd. & Anor. [2019] 1 NICLR 111-112, where it was held that a worker employed as a casual worker who served his employer for up to 3 years will be deemed a permanent worker entitled to all the rights and privileges of a permanent worker, he submitted that the issuance of employment letter, staff ID card, payment of salaries, salary increases show that the Claimant was a permanent staff. He argued that the Claimant is entitled to pursue his claims because he worked for 3 years and is deemed to be a permanent worker.

It was further argued that exhibit 2 did not refer to any staff handbook and that a document should be read as a whole and given its natural meaning. Relying on the case of Ogbonna v. A. G. Imo State [1992] 1 NWLR [pt.220] 647,he urged the Court to disregard the evidence of DW1 on the staff handbook same being an afterthought. Hecontended that the testimony of the defence witness on salary increase contradicts paragraph 3[j] of the statement of defence.

  1. I have carefully considered the submissions of learned counsel for the parties and reviewed the evidence before me and, in my respectful view, the issue for determination submitted by learned counsel for the Defendant is apposite and I hereby adopt it with a slight modification to wit:

“Whether the Claimant is entitled to the reliefs sought?

The law is trite that he who asserts must prove. See section 131 of the Evidence Act, 2011, which provides thus:

“[1]   Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

[2]    When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

See also the cases of United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [2018] 7 SC [pt.111] 164 at 212.

 

Thus, the burden of proof is on the Claimant to establish by credible evidence his entitlement to judgment on his claims. In doing this, he must specifically plead and provehis conditions of service which is the bedrock upon which an aggrieved employee must found his case. The conditions of service fix the rights and obligations of the parties and anaggrieved employee succeeds or fails upon the terms contained therein. See Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761and A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154.

 

Where the Claimant successfully discharges this burden, a prima facie case is made out and the burden shifts to the Defendant to adduce counter evidence to sustain its defence. Where, however, the Claimant fails to make out a prima facie case there will be nothing for the Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660at page 674 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [supra].

  1. The Claimant’s case is that he was in the employment of the Defendant for over 3 years, enjoyed salary increases and was issued with a staff identity card and therefore a staff of the Defendant and entitled to all the benefits of full staff. Contrariwise, the Defendant contends that the Claimant was on 6 months’ probation which was hinged on performance; but performed poorly and, in line with the staff handbook, was not confirmed as a full staff. The Claimant, in his evidence in chief, testified that he was employed by the Defendant as Assistant Architect by letter dated 20th April 2015 on a monthly salary of N85, 000 which was subsequently reviewed first to N90, 000 on 1st August 2016 and subsequently to N93, 500 on 1st January 2018. The letter of employment was admitted in evidence and marked exhibit 2. He stated that his employment was confirmed on 20th April 2015 by a confirmation letter of that date. The Claimant also claimed that he filled a pension scheme form and a stipulated amount was deducted from his salary and paid by the Defendant on his behalf. He equally stated that he was entitled to N102, 000 vacation allowance in line with his contract of employment which was not paid to him; in addition to his salaries for December 2017, August and September 2018. He claimed that he was owed N37, 500 being balance of July 2018 salary and 13th month salary in the sum of N85, 000 for 2016 and 2017. He stated that he made demands for payment of his salaries and benefits and the Chief Executive Officer of the Defendant promised in one of his emails to pay upon completion of a job but failed to pay. As a result, he caused his Solicitor to write to the Defendant, which letter was delivered by DHL courier service. The Solicitor’s letter, email correspondence and courier receipt were admitted in evidence and marked exhibits 3, 4 and 5 respectively. He stated that he resigned on 27th September 2018 after giving the Defendant one month’s notice via email on 28th August 2018. He claimed to have suffered psychological distress and incurred substantial expenses due to non-payment of his salaries and allowances and thus claimed as per his amended statement of facts. In his further statement on oath, hestated that he was a substantive staff of the Defendant since he completed his six months’ probation without complaints. He claimed that he worked with utmost diligence and proficiency and was issued with a staff identity card and complimentary card as an Architect. He denied receipt of any query or holding of any discussion with the Defendant’s Managing Director on account of his performance while in Defendant’s employment. He confirmed having a discussion with the Defendant’s Managing Director on his admission into Caleb University and he granted his request on condition that his studies would not adversely affect his work.He denied that his non-confirmation was due to his studies. He also denied the allegation of absenteeism and stated that he obtained approval for each absence by completing the ‘staff leave request form’. Under cross-examination, he admitted that he was not given a confirmation letter and that there was nothing in exhibit 2 to show that statutory deductions were made from his salary. He also confirmed that from his statement of account no deductions were made from his salary.

  1. The thrust of Mr. Akinyemi’s argument is that having worked for over 3 years, received salary increment and was issued a staff identity card and complimentary card as a full Architect, the Claimant is presumed to be a full staff of the Defendant. On the other hand, the Defendant insists that the Claimant did not meet the condition for confirmation and was not confirmed. Exhibit 2 is critical to this consideration.

The paragraph on probation states thus:

“You will be on probation for six [6] months, your performance will be appraised and if found satisfactory you will be confirmed as a full staff. During the probation period, either party could terminate the contract by giving one week’s notice or paying one week’s salary in lieu of notice.”

  1. Undoubtedly, the Claimant’s employment was for a probationary period of 6 months. It was the responsibility of the Defendant to appraise his performance at the end of the 6 months and decide whether to confirm him or terminate his employment. This was not done. The Claimant continued in the employment of the Defendant after the 6 months probationary period and continued to receive salary and on 1st February 2017 received a salary increase and yet another increase on 2nd March 2018. Additionally, the Claimant was issued a staff identity card with his designation as “Architect”, see exhibit 1. This position is different from his entry position of “Assistant Architect”. There is also unchallenged evidence that the Claimant was issued a complimentary card as “Architect”. These are not incidents of a probationary employment relationship.The Defendant appears to have accepted the Claimant as a full staff by conduct. The Defendant, however, thinks otherwise. Its witness, Mr. Charles Aide Iwobho, who also is the Managing Director, in his evidence in chief reiterated that the Claimant was offered temporary employment on 20th April 2015 as Assistant Architect subject to confirmation after 6 months. At the end of the probationary period the Claimant was to receive a performance evaluation but the Claimant exhibited poor performance, unsatisfactory quality of service, insubordination to Defendant’s staff and neglect of his official duties as a result of which his employment was not confirmed. This was discussed with the Claimant who pleaded for another opportunity which the company reluctantly obliged and in furtherance thereof the Defendant encouraged the Claimant to pursue a Bachelor’s degree at Caleb University with commitment that full salaries would be paid during the period of his studies and as a result his employment was not confirmed. He also stated that the Defendant did not increase the Claimant’s salary because he was not its permanent staff and the Claimant was equally not entitled to pension and tax deductions. Equally, not being a permanent staff, the Claimant was not entitled to annual vacation allowance and he informed the Claimant upon demand that any outstanding salary would be paid after deduction of the number of days he absconded from work. As part of the Claimant’s disloyalty, he executed a poor job for one of the Defendant’s clients and the Defendant absorbed the cost of N160, 000. He stated that upon completion of his B.SC program the Claimant stopped work without notice in September 2018. During cross-examination, he confirmed that he fired his employees for not delivering good quality work and gave the Claimant queries not commendation but did not bring it to Court. He stated that the provision under safety in exhibit 2 made reference to the Defendant’s manual and inside the manual is safety regulation. He admitted increasing the Claimant’s salary twice but that there were no deductions.

  1. I have carefully examined exhibit 2 and I am not persuaded that the reference to “Company’s safety manual” in the ‘safety’ clause refers to exhibit D1. There is nothing in that clause to justify that inference. As rightly submitted by learned counsel for the Claimant, a fundamental rule of construction of documents is that its several clauses must be interpreted harmoniously so that the various parts of the document are not brought in conflict with their natural meaning. Thus, in interpreting exhibit 2, due regard must be given to the entire document. See Raji v. Obafemi Awolowo University [2014] LPELR-22088[CA] at pages 39-40.

Assuming I am wrong, I have looked at exhibit D1 and there are no safety regulations therein. It is therefore improbable that reference to “Company’s safety manual” in clause 6 under “Safety” refers to exhibit D1 and I so hold.

In addition, there is no provision in exhibit D1 on what happens when an employee works beyond the probationary period. The passage quoted by Mr. Okeremi in paragraph 5[j] of the Defendant’s final written address is from page 4 of exhibit D1 under “Initial Performance Review” and provides thus:

“All new full time and part time employees will receive a written performance evaluation at the completion of the first 90 calendar days of employment. A written performance evaluation should be reviewed with the employee no later than ten [10] working days following the third month anniversary with the company. If upon evaluation the individual is found to be unable or unwilling to meet the job requirements, employment may be terminated. Please understand, however, that completion of the probationary period does not guarantee continued employment, as employment is always at will. You are free to terminate your employment at any time, with or without reason.”

By the Defendant’s showing, the Claimant was to receive a written performance evaluation after three months in its employment. There is nothing in the defence witness’ statement on oath to show that this written performance evaluation was given to the Claimant or that he did poorly. The defence witness merely stated in paragraphs 2[d] and [e] thus:

“[d]   Claimant during the six [6] months’ probation period exhibited poor performance at work, failed to render satisfactory quality of service both at the office and on site assignments, insubordination to my company’s staff, spent office time on private business thereby neglecting his official duties;

“[e]   Due to Claimant gross incompetence and lackadaisical attitude to work during the probation period, my company failed to confirm Claimant employment which was discussed with Claimant and which ordinarily should have led to Claimant’s termination of employment. Claimant pleaded with me as chief executive of Defendant to be given another opportunity which my company reluctantly obliged on terms;”

  1. It is settled law that parties are bound by the terms of their contract without any addition or subtraction. See Tonimas Nigeria Limited v. Nze Bernard Chigbu [2006] LPELR-11924[CA] at page 13. The Defendant is thus bound by exhibit D1 and cannot add or subtract therefrom. Strangely, in breach of the clear stipulation of exhibit D1, the defence witness claimed that he had a verbal discussion with the Claimant on his performance. This testimony must be taken with a pinch of salt. Faced with a similar situation in the case of Dr. N. E. Okoye & Anor. v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki-Tobi, J.S.C. [of blessed memory] had this to say:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

 

I dare to say that the evidence of the defence witness on the reason for non-confirmation of the Claimant is bare-faced lie and this Court cannot be blind to such a lie.

  1. The Court of Appeal in Raji v. Obafemi Awolowo University [supra] at pages 50 – 51,per Owoade, J.C.A., cited with approval the dictum of Akpabio, J.C.A in Obafemi Awolowo University v. Dr. Kola Onabanjo [1991] 5 NWLR [pt.193] 549 at 570 thus:

“By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppel by conduct” would operate to prevent the appellant, from alleging and treating him as if he was still on probation.”

The principle in both cases apply with equal force in this case. The Defendant retained the Claimant in its employment for about 35 months after expiration of his probation, paid his salary and increased it twice, issued him a staff identity card and a complimentary card as Architect. In my considered view, it is too late in the day to deny that the Claimant was a full staff of the Defendant.

Section 169 of the Evidence Act, 2011 provides:

“When one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief – neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”

By its conduct, there is an implied confirmation of the Claimant’s employment by the Defendant after the probationary period and I so hold.

  1. This leads me to a consideration of the claims of the Claimant. The first relief is for the sum of N306, 000 [three hundred and six thousand naira] being the Claimant’s unpaid leave/vacation allowances for 3 years during the period of employment [2015-2018]. Evidence in proof of this claim is in paragraphs 8 and 9 of the Claimant’s amended statement on oath and exhibit 2. The basis of the claim for vacation allowance is clause 2 of exhibit 2 which stipulates, inter alia:

                “Vacation Allowance    10% Annual Salary being N102,000.00k”

        This is a pre-determined sum by the Defendant and was not made subject to any conditions. There is uncontroverted evidence that the Claimant worked for about three years and was not paid the allowance. The defence witness in paragraph 2[l] of his statement on oath gave the reason for non-payment of the allowance. He said:

“Not being a permanent staff with my company, Claimant is not entitled to the sum of N102,000.00 annual vacation allowance as only confirmed staff of the company are beneficiaries to such allowances;”

In paragraphs 3[b] and 5[b], [c] and [d] of Defendant’s final written address, Mr. Okeremi submitted that the Claimant’s evidence of confirmation was negative when tested against documentary evidence; and that the defence witness gave evidence that the Claimant is not entitled to the relief not being a full staff. Clearly, there is an implied admission that the Claimant was not paid the vacation allowance. Also, the basis of refusal to pay the Claimant the allowance is that he was not a confirmed staff. I have found earlier in this judgment that having worked for the Defendant for about 35 months after expiration of his probationary period and received salary increment and an identity card as full Architect, the Claimant is in law a full staff of the Defendant and thus entitled to all the rights and benefits of a full staff. Accordingly, I find this claim proved.

  1. The second relief is for the sum of N85, 000 [eighty-five thousand naira] being sum owed the Claimant for 2 years as unpaid 13th month allowance as per letter of employment.Evidence in proof of this claim is paragraph 12 of the Claimant’s amended statement on oath and exhibit 2. Clause 2 of exhibit 2 which provides for 13th month pay which is 50% of one month’s salary, that is, N42, 500. Again, this provision is not made subject to any conditions. The Defendant merely denied this averment in paragraph 2 of its statement of defence. There is nothing in the statement of defence or defence witness’ statement on oath in disproof of this claim. The law is trite that mere denial of a pleading is not sufficient traverse of averment in the statement of facts. See United Bank for Africa Plc v. Alhaji Ibrahim Mustapha [2003] LPELR-6203[CA] at page 53. There is unchallenged evidence that the Claimant spent about three years with the Defendant. It is now firmly settled that when evidence is unchallenged, the burden of proof is discharged on minimal evidence. See United Bank for Africa Plc v. Alhaji Ibrahim Mustapha [supra] at page 54. In the circumstance, I find and hold that the Claimant has established by credible evidence his entitlement to 13th month pay for 2016 and 2017 in the sum of N85, 000.

  1. Relief 3 is for the sum of N318, 000 [three hundred and eighteen thousand naira] being the sum owed the Claimant as outstanding salary for 3 months [December 2017, August and September 2018] and balance sum for the part payment made on the salary for the month of July 2018. Evidence in proof of this claim is in paragraphs 10 and 11 of the Claimant’s amended statement on oath. The Defendant did not specifically deny paragraphs 10 and 11 of the amended statement of facts. It is settled law that mere denial of a pleading is not sufficient traverse of averment in the statement of facts. The implication is that the Claimant’s averment is unchallenged and the burden of proof is discharged on minimal evidence. See United Bank for Africa Plc v. Alhaji Ibrahim Mustapha [supra] at pages 53-54.The Claimant’s evidence is that he is owed salaries for December 2017, August and September 2018 and N37, 500 for the month of July 2018. This will amount to N314, 500 and not N318, 000 as claimed. It is the law that the Claimant is only entitled to what he has claimed and proved. See the case of C. G. G. [Nig.] Limited v. Anthony Augustine &Ors. [2010] LPELR-8592[CA] at pages 13-14. It is equally settled that this Court is imbued with power to grant the Claimant less than he claimed if the evidence proves a sum less than what he claimed. See the case of Mr. Essien Jacob Uko v. The Liquidator, Utuk Construction and Marketing Company Limited in Liquidation &Ors. [2011] LPELR-9120[CA] at page 11. From the evidence before me, I find as proved the Claimant’s claim for outstanding salaries in the sum of N314, 500.

  1. Relief 4 seeks a declaration that the action of the Defendant in withholding the 3 months’ salary [December 2017, August and September 2018], the leave/vacation allowances for 3 years, the 13th month pay for 2 years is unlawful, unjust and amounts to unfair labour practices.A declaratory relief is one which seeks the pronouncement of the Court on the status of a named matter, thing or situation. It is a discretionary relief and for the discretion of the Court to be exercised judicially and judiciously, it must be backed up by concrete evidence. That is to say, a Claimant who seeks a declaratory relief has the onerous burden of establishing his entitlement to the relief. Evidence which supports a legal right must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Yakubu Wondo& 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53and Nwagu v. Fadipe [2012] LPELR-7966[CA] at pages 16-17.

 

There is unchallenged evidence that the Claimant was employed by the Defendant on 20th April 2015 and worked with the Defendant until 27th September 2018. There is equally evidence that during this period the Defendant increased the Claimant’s salary twice. The Defendant did not specifically deny the averments in paragraphs 10 and 11 of the amended statement of facts on its refusal to pay the Claimant’s salaries and entitlements which, in my respectful view, amounts to admission of the correctness of the fact contained therein. See A. B. Manu & Company [Nigeria] Limited v. Costain [W.A.] Limited [1994] LPELR-14550[CA]at page 20, where Uwaifo, J.C.A. [as he then was] in his supporting judgment held that:

“A material averment should be effectively denied not by a general traverse or denial otherwise the plaintiff will have no duty to call evidence in support thereof as the averment will be deemed admitted.”

The Defendant’s defence is that the Claimant was not a full staff and as a result not entitled to the benefits. No explanation was offered for the failure to pay the Claimant’s salaries for December 2017, August and September 2018 or the 13th month for 2 years.Exhibit 2 provides for the right of the Claimant to salary, vacation allowance and 13th month’s pay. On the vacation allowance, the Defendant at page 8 of exhibit D1 on “Holidays, Vacation and other leave” stated inter alia that:

“Vacation is a time for you to rest and relax. As stated in your letter of employment, the company has provided paid vacation as one of the many ways in which we show our appreciation for your work, knowledge, skills and talents all of which contribute to make the company a leader in its field. All employees are entitled to leave.”

Speaking on the responsibility of parties to their agreement, Tsammani, J.C.A., in Incorporated Trustees of Nigerian Baptist Convention & 12Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, had this to say:

“Now, the general principle of law is that, parties are bound by their agreements….The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face …. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties.”

By section 15 of the Labour Act wages become due and payable at the end of each period for which the contract is expressed to subsist. Section 18[1] of the Labour Act provides that:

“Every worker shall be entitled after twelve months’ continuous service to a holiday with full pay….”

The right to salary at the end of the month and to a paid holiday after 12 months’ continuous service is a statutory right which has been incorporated into the Claimant’s contract of employment. The flagrant breach by the Defendant of its own terms certainly amounts to unfair labour practice and I so hold.

  1. Relief 5 is for the sum of N3, 000, 000.00 [three million naira] as general damages for unfair trade practices and for breach of contract of employment. This claim flows from relief 4 above. Where there is a wrong, there must be a remedy. See Ogbolosingha& Anor. v. Bayelsa State Independent Electoral Commission &Ors. [2015] LPELR-24353[SC] at page 43. This is the cornerstone of any system of justice. Having found that the withholding of the Claimant’s salary, vacation allowances for 3 years and 13th month pay for 2 years amounts to unfair labour practices, it goes without saying that there must be a remedy for this wrong.General damages are within the discretion of the Court to grant and are losses which flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31 and Dauda v. Lagos Building Investment Co. Ltd. & 3Ors. [2010] LPELR-4024[CA] at pages19-20.In the latter case, Galinje, J.C.A., held that:

“General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law.”

In the peculiar circumstances of this case, it is only reasonable that the Claimant should be entitled to general damages. This is because there is a deliberateness, a willfulness and a highhandedness on the part of the Defendant.

  1. The sixth relief is for the sum of N300, 000 [three hundred thousand naira] as cost of this action.Generally, cost follows events and a successful party is entitled to his cost. By Order 55 rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. The Claimant, in paragraphs 13, 14, 16 and 17 of his statement on oath, set out the steps he took to recover his entitlements. Subjecting the Claimant to litigation to recover his due leaves a sour taste in the mouth. In the circumstances, I find and hold that the Claimant is entitled to cost of this action. Order 55 rule 5 of the Rules of this Court provides:

“5.    In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.”

From the records in the file, Claimant paid N15, 100 as filing and service fees and it is on record that he has been in this Court on four occasions. In the circumstance, cost of N50, 000 is awarded in favour of the Claimant against the Defendant.

  1. Relief 7 is forthe sum of N500, 000 [five hundred thousand naira] which represents the Claimant’s unremitted pension from the 31st day of May 2015 to the 31st day of September 2018 including the Defendant’s contribution and the deduction from the Claimant’s salaries. The evidence in proof of this claim is in paragraph 7 of his amended statement on oath. It states:

“7.    That I filled a pension’s scheme form and a stipulated sum of money was paid by the company on my behalf as pension from my salary on a monthly basis and was alleged to have been remitted into my pension savings account while in the employment of the Defendant.”

The Defendant denies making deductions from the Claimant’s salary for pension or tax. In his submission, learned counsel for the Defendant argued that the Claimant’s evidence of deductions from his salary has been shown not to exist under cross-examination and that the contract of employment did not provide for pension deduction and remittance. Learned counsel for the Claimant did not counter this argument. It is settled law that where a party fails to counter any argument on an issue validly raised by the opponent, he is deemed to have conceded the issue. See Nwankwo &Ors. v. Yar’Adua&Ors. [2010] 3-5 S.C. [pt. III] 1 at 23 and Donbraye& Anor. v. Preyor&Ors. [2014] LPELR-22286[CA] at page 70. Invariably, the Claimant is deemed to have conceded that the contract of employment did not provide for deduction and remittance of pensions and that no deductions were made.

I have examined exhibits 2 and 6 which were relied on by the Claimant and I find as a fact that there is no provision for pension deduction and remittance in exhibit 2 and no deductions were made in exhibit 6 for either pension or PAYE. Under cross-examination by learned counsel for the Defendant, the Claimant confirmed that there is nothing in exhibit 2 to show that statutory deductions would be made from his salary and that no deduction was made.

Section 136[1] of the Evidence Act, 2011 provides that:

“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”

The Claimant has not discharged this burden. This relief accordingly fails and it is dismissed.

  1. The next relief is for interest thereon at 21% per annum from the day payment became due until judgment and thereafter at 15% per annum until the judgment debt is fully and finally liquidated.The basis of award of interest in a suit is settled. The power of the Court to award interest before judgment is based on statute, contract, common law or some equitable principles. The nature of pre-judgment interest makes it mandatory that facts in support thereof must be pleaded and evidence led to support the claim. See the cases of Olam [Nigeria] Limited v. Intercontinental Bank Limited [2009] LPELR-8275[CA] at pages 60-62and Guaranty Trust Bank Plc v. Pastor RibehChinedum Noble & Anor. [2019] 14 NWLR [pt. 1693] 389 at 417. There is no pleading and evidence in support of the claim for pre-judgment interest. There is a difference between pleading and reliefs claimed, one cannot be used for the other. See Matthew Iyeke& 25Ors. v. Petroleum Training Institute & Anor. [2019] 2 NWLR [pt.1656] 217 at 240. The claim for pre-judgment interest has not, therefore, been proved.

This Court is empowered by Order 47 rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award interest on any judgment sum. Having found for the Claimant in respect of some of the monetary claims, there is justification for award of post-judgment interest especially since the Defendant has retained the money in an unconscionable manner.

  1. On the whole, the Claimant’s claim succeeds in part. Judgment is entered in favour of the Claimant against the Defendant as follows:

  1. The sum of N306, 000 [three hundred and six thousand naira] being the Claimant’s unpaid vacation allowances for the period 2015-2018.

  1. The sum of N85, 000 [eighty-five thousand naira] being sum owed the Claimant for 2 years as unpaid 13th month allowance as per his letter of employment.

  1. The sum of N314, 500 [three hundred and fourteen thousand five hundred naira] being three months’ salary for December 2017, August and September 2018 and balance of July 2018 salary owed the Claimant by the Defendant.

  1. It is hereby declared that the action of the Defendant in withholding the Claimant’s salary for December 2017, August and September 2018; vacation allowances for 3 years, 13th month pay for 2 years amounts to unfair labour practices.

  1. N100, 000 [one hundred thousand naira] general damages is awarded in favour of the Claimant against the Defendant for unfair labour practices.

  1. Reliefs seven for the sum of N500, 000 [five hundred thousand naira] unremitted pension from the 31st day of May 2015 to the 31st day of September 2018 fails and it is hereby dismissed. Equally, relief 8 for award of pre-judgment interest fails and it is dismissed.

  1. Cost of N50, 000 is awarded in favour of the Claimant against the Defendant.

  1. The monetary award shall be paid within 30 days from the date of this judgment, failing which it shall attract interest at the rate of 10% per annum until the entire judgment sum is fully liquidated.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

5/11/19

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