IN THE NATIONAL INDUSTRIAL CORT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO
DATED: 19TH JULY, 2019 SUIT NO: NICN/AK/21/2018
BETWEEN
MR. OLUSEGUN ADELEYE ……………. CLAIMANT
AND
MACMILLIAN NIG. PUBLISHERS LIMITED ……………. DEFENDANT
REPRESENTATION:
O. M. AFOLABI APPEARS FOR THE CLAIMANT
OPEYEMI ADEWALE APPEARS FOR THE DEFENDANT.
JUDGMENT
The claimant by a complaint before this Court on the 15th of March, 2018 claims against the defendant as follows:
The sum of N868,943.00k (Eight Hundred and Sixty Eight Thousand, Nine Hundred and Forty Three Naira) only being the entitlement of the claimant as follows:
10 Months Basic salary – (N18, 613 x 10) = N186,130
10 Months Housing Allowance (N9, 700 x 10) = N97,000
1 Month the salary in lieu of notice = N28,313
Cooperative Savings to date = N422,500
3 Months float (N45, 000 x 3) = N135,000
Total = N868,943
The sum of N5 million as general damages
The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, written statement on oath of the claimant, list of witness and documents to be relied upon. The defendant on their part filed a memorandum of appearance, statement of defence and all other accompanying processes on the 30th November, 2018.
The claimant’s case is that he was employed as an ASSISTANT SALE REPRESENTATIVE in the Akure office of the defendant vide a letter of Appointment dated 20th January, 2006.
He stated further that the condition of service between him and the defendant is as contained in the “Macmillan Nigeria Publishers Limited conditions of service” which came into operation on 1st January, 2002. The claimant stated that on the 25th March, 2014, the defendant terminated his appointment vide a letter with reference no. MNP/CFO/OJO/IB/2014, due to “re-organisation exercise going on in Macmillan Nigeria Publisher Limited” and in breach of his conditions of service, he also pleaded that he caused his solicitors to write a letter of demand to the defendant on his entitlements but to no effect.
The Claimant averred that under the conditions of service, employees are entitled to gratuity, depending on their years of service and the defendant is to pay one (1) month salary in lieu of notice upon the termination of his appointment, he is also claiming a sum of N45,000.00 per month as imprest for three months which he claimed the defendant is owing him at a sum total of N135,000.00.
In addition, the claimant asserted that the defendant organised a cooperative savings scheme for its employees, and a specific sum was deducted from his monthly salary, he stated that his last pay slip reflects that he has a sum of N407,500 outstanding to his credit as his cooperative savings, and an additional sum of N15,000 as deductions for January – March 2014, making a total of N422,500.
The Claimant pleaded that the defendant failed, refused and/or neglected to pay the claimant the agreed gratuity as contained in the contract of employment, and his total gratuity due is 10 months of his total emoluments for having served the defendant for 8 years. The total entitlement is calculated as follows:
10 Months Basic salary – (N18,613 x 10) = N186,130
10 Months Housing Allowance (N9, 700 x 10) = N97,000
1 Month salary in lieu of notice = N28,313
Cooperative Savings to date = N422,500
3 Months float (N45,000 x 3) = N135,000
Total = N868,943
He further averred that the failure of the defendant to pay him his entitlements resulted in great psychological trauma and economic loss for him and that many opportunities for him to invest suffered due to this.
WHEREOF the claim against the defendant as aforestated.
The defendant filed a memorandum of appearance and statement of defence on the 30th November, 2018. In its defence, the defendant admitted paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 but denied paragraphs 9, 11, 12, 14, 15, 16, 18, 19, 20, 21 and 30 of the statement of facts.
The defendant denied the claim for the sum of N45,000 (Forty five thousand naira) per month for 3 months as imprest/float, and stated that there was no agreement to that effect. The defendant also admitted that the claimant and some employees were laid off due to economic downturn and that they are owing the claimant his entitlements but denied the amount claimed by the claimant.
In conclusion, the defendant prays the Court to dismiss the suit in its entirety for being frivolous and unmeritorious.
The claimant in his reply to statement of defence re affirmed that there was an agreement between the parties that the claimant is to be paid a monthly float of N45,000.00k to cover the claimant’s expenses incurred in the employment and the defendant has been consistent in paying the float for years but defaulted in the 3 months prior to the termination of his appointment.
He stated that the cooperative saving scheme was organised by the defendant and the company was deducting N1,000.00k as monthly thrift cooperative savings from the claimant’s salary, and this is reflected in the pay slip of the claimant.
The claimant finally averred that the Statement of Defence lacks merit, is an abuse of Court process and should be dismissed with substantial cost.
The trial in this case commenced on the 29th of October, 2018, but the defendant was unrepresented despite the issuance of Hearing Notice on it, listing the case for Hearing. The claimant testified for himself as CW1, he adopted his sworn affidavit on oath, and tendered several documents which were admitted and marked Exhibits A1 – A9(a) and the case was adjourned for cross-examination of CW1 and later defence due to the absence of defendant’s Counsel. CW1 was later recalled on the 19th of February, 2019 on the application of the defendant after regularising its processes and was cross examined, the claimant thereafter closed his case.
The defence opened its case on the same 19th February, 2019 by calling one Ajayi Bamidele Ojo, a Field Sales Manager of Akure Branch of the defendant as DW1, he adopted his witness Statement on Oath, gave evidence and was cross-examined. The defence closed its case and the case was adjourned for the adoption of final address. Parties adopted their addresses on 27th of May, 2019, and the case was adjourned for judgment.
The defendant filed their final written address on the 2ndof April, 2019 wherein two (2) issues were formulated for consideration to wit:
Whether considering the facts, circumstances, and evidence led by the parties in this case, the Claimant has established that he is entitled to the sum of N868,943.00K (Eight Hundred and Sixty–Eight Thousand, Nine Hundred and Forty-Three Naira) as the amount the Defendant is owing him.
Whether from the evidence led by both parties, this Honourable Court can grant the Claimant the sum of N5,000,000.00k (Five Million Naira) as general damages.
On issue one, Opeyemi Adewale, Esq. of Counsel to the defendant stated that the Defendant in this case admitted that he is owing the claimant some entitlements but that it is not up to the tune of N868,943.00K (Eight Hundred and Sixty–Eight Thousand, Nine Hundred and Forty-Three Naira)being claimed by the claimant, he submitted that the claimant was unable to proof how he arrived at the said sum, positing that none of the documents tendered as exhibit was able to proof same.
The Counsel to the defendant submitted that the fundamental principle of law is that he who asserts must prove, and this the claimant has failed to do He cited Section 131 (I) of Evidence Act 2011, and OKUBULE VS OYABOLA (1990) 4 N.W.L.R. (PART 147) 723; amongst others cases. The Defendant’s Counsel urged the court to resolve issue one in favour of the Defendant.
On issue two, counsel submitted that it is trite that general damages may be awarded when there is evidence that a party so claiming has suffered damages. He stated that the law remains trite that in case of breach of contract, the principle upon which the award of damages is predicated is “restitution in integrum, id est.” (restoration of the Claimant condition he was before the breach occurred), it is never the object of award of damages in cases of breach of contract to give the Claimant a wind fall or restitution in opulentiam. He cited SAVANAH BANK OF NIG PLC VS OPANUBI (2004) 15 N.W.L.R. (PT 896) 437, and UNION BEVERAGES LTD VS OWOLABI (1998) 2 N.W.L.R. (PT 68) 128. The Defendant’s counsel further submitted that the claimant did not lead evidence in proof of the alleged special and general damages he is claiming, he therefore urged the court to resolve issue two in favour of the Defendant.
In conclusion, the defendant’s counsel urged the Court to hold that the Defendant is not owing the Claimant the sum of N868,943.00K (Eight Hundred and Sixty–Eight Thousand, Nine Hundred and Forty-Three Naira) and the Claimant is not entitled to the sum of N5,000,000 (Five Million Naira) as general damages.
The Claimant’s final written address dated 10th April, 2019 was filed on the 11th April, 2019 in which he formulated two issues for determination to wit:
Whether there is a wrongful termination of the claimant employment by the defendant.
Whether the claimant is entitled in law and fact to the reliefs sought and the sum of 5 million damages per the complaint issued on 15th day of March, 2018.
On issue one, Counsel to the claimant argued and placed reliance on Exhibits A1, A2 and A6. He submitted that the burden of establishing the wrongful termination/dismissal of the claimant’s employment rest squarely with him, citing KATTO VS CBN (2001) FWLR (Pt53) 188 @ page 200 paragraph G-H
O.M Afolabi of counsel to the claimant submitted that the import of this decision is that the claimant must plead the contract of service and prove the breach thereof. He went further to cite DENLOYE VS MEDICAL & DENTAL
PRACTITIONERS COMMITTEE (1968) INLR 306; and OLANIYAN VS UNILAG (1985) 3 NWLR (Pt 9) 599, and others.
Learned counsel submitted that by Exhibit A6 the claimant’s employment can only be terminated by notice or salary in lieu, and this was not done in this case. He asserted that DW1 under cross-examination was unable to debunk the assertion that the employment of the claimant was wrongfully terminated. The Counsel posited that the evidence of the DW1 reveals that he is not conversant with the rules guiding the employment, termination or any other affairs that relates to the defendant, stating that the claimant adequately pleaded that his employment can only be terminated by one month notice or salary in lieu. He stated further that the terms and conditions of a contract of service is the bedrock in the determination of any case involving termination of employment, citing UDOH V C.S.C. AKWA IBOM STATE 2014 PT 716 ALLFWLR CA 584. He stated that this was flouted by the defendant, he therefore urged the court to hold that the claimant’s termination was wrongful, illegal, null and void.
On issue two, Counsel submitted that the claimant is entitled in law and fact to the reliefs sought and the sum of N5 million damages as per the complaint and the statement of fact.
He submitted that once the court comes to the conclusion that the claimant was wrongfully dismissed/terminated, then it follows that the claimant is entitled to the reliefs sought. In awarding the reliefs, the court will have recourse to the condition of service Exhibit A6 and other Exhibits backing up the reliefs.
He cited the case of Udoh vs. C.S.C, Akwa Ibom State, supra, and argued that the contract of employment between the parties can only be lawfully terminated by 1 month notice/salary in lieu of notice, and the Claimant further led evidence that he served the defendant for a cumulative period of 8 years and is therefore entitled to gratuity.
The Claimant’s counsel stated that it is trite that where a contract of employment is terminable on notice, the damages will be equal to what the employee could have earned during the period of notice. He went further to submit that admitted facts needs no proof and cited N.B.C. PLC. V UBA PT 718 (2014) ALL FWLR SC 803, pointing that in the instant case, the defendant admitted they are owing the claimant.
Finally, Counsel submitted that the claimant has clearly established his claim to the entitlements before the court and there is no evidence in rebuttal. He urged this court to resolve issue two in favour of the claimant.
In conclusion, counsel urged the court to find in favour of the claimant and grant all his reliefs.
I have perused all the processes filed in this case and have listened to the witnesses called by both parties in proof of their case. I have also read the submissions of counsel in their final address and have thereafter formulated two issues that will best determine this case:
Whether or not the claimant is entitled to the payment of one month salary in lieu of notice and other entitlements by way of special damages.
Whether or not the claimant has succeeded in proofing his claim for N5 million as general damages.
The claimant’s case is that the termination of his employment by the defendant was wrongful in that he was not issued a month notice/ salary in lieu of notice, and that this runs contrary to the contract of employment between the parties i.e. Exhibit A6, he is also contending that under Exhibit A6, he is entitled to a certain amount as gratuity upon the termination of his employment, his cooperative savings with the defendant and other allowances. The defendant however contends that it was compelled to reduce its staff due to the economic downturn being experienced by the defendant and this resulted in the termination of the employment of the claimant, the defendant admitted owing the claimant his entitlements but disputed the amount claimed as special damages and maintained that the claimant is not entitled to any general damages.
It is trite, that when an employee complains of wrongful termination of his employment or is claiming any entitlements from his employer, he has the onus to prove same by leading evidence as follows:
He is to prove that he was employed by the Employer.
He must place before the court the terms and conditions of the contract of Employment.
Who can appoint and who can remove him and
In what circumstances the appointment can be determined by the employer and the breach of the terms of employment.
See the case of Okomu Oil Palm Co.Ltd v. Iserhienhrien [2001] 6 N.W.L.R. Pt.710 @ pg. 660.
In the instant case the fact that the claimant was an employee of the defendant is uncontroverted; it is also uncontroverted that the parties are in a Master/Servant relationship which can be determined with or without any reason or at any time by the parties; the letter of employment and terms and conditions of employment were tendered and admitted as i.e. Exhibits A1 and A6 before the court; on whether the contract of employment was properly determined or breached in any way, the claimant referred the court to clause 18 of Exhibit A6 which stated as follows:
“it is understood and recognised that the company or the employee may terminate an appointment giving the necessary notice without adducing any reason whatsoever. If at the company’s discretion, the employee is not required to work out his/her notice, he/she will receive the appropriate amount of his/her pay in lieu of notice. An employee who resigns without giving notice will not be allowed any leave or salary. An employee who resigns and give notice will be allowed leave due to him/her at the time of resignation but no leave allowance will be paid”
Further reading of clause 25 of Exhibit A6, reveals that:
Redundancy is caused by an excess of man power resulting in an involuntary and permanent loss of employment. The company will endeavour to avoid terminating the services of an employee on the ground of redundancy. However, where through force of circumstances, it is necessary to reduce work force the Management will consider such factors as efficiency, ability, diligence, reliability, fitness or work, loyalty and length of service before deciding who to lay off. Such employees will be given appropriate length of notice or salary in lieu.
In addition the claimant tendered Exhibit A2 which is the letter of termination of his appointment, which reads as follows:
TERMINATION OF APPOINTMENT
“Please be informed that due to the current reorganisation exercise going on in Macmillan Publishers Limited, Management has decided to terminate your appointment with effect from Monday 31st of March 2014.
The Accounts Department will be contacted to pay your entitlements. But if you have obtained any loan(s)from Mascoop Ltd, and have not fully settled the loan(s) the balance will be deducted from your entitlements before payment. In accordance with your terms of employment, you will be paid one month’s salary in lieu of notice with your entitlements.”
It is trite that admitted facts need no further proof see section 123 of the Evidence Act and Nwachukwu & ors v. Dimgba & ors [2009] LPELR-8414 (CA). The defendant in this case admitted owing the claimant his entitlements but kept silent on the amount it is owing, rather they sought to find solace in the assertion that the claimant is not entitled to the amount he is claiming. The court is therefore left with no other option but to examine the monetary claims and determine whether the claimant adduced enough evidence in proof of the claim.
An evaluation of all the above discloses that while the defendant exercised its right to determine the employment of the claimant pursuant to the provisions of Exhibit A6 highlighted above, it breached the express terms of the provisions in that clause as to issuance of “…necessary notice”, this position is reiterated by Exhibit A2 which is the letter of termination, wherein it was stated clearly that one month salary in lieu of notice will be paid to the claimant along with his entitlements. It is the position of the law that where an employee’s appointment is terminated, and the mode for termination of the employment is stipulated as notice or salary in lieu of notice, the payment in lieu should be made alongside the service of the letter of termination of appointment. Where the employer fails to do this he is liable for breach of the terms of employment see New Nigeria Bank Plc v. Solomon Owie [2010] LPELR 4591 (CA). It is unrefuted that the defendant in the instant case did not pay the one month salary in lieu of notice stated in Exhibit A2, and as such is in breach of the contract of employment and liable to pay the claimant one month salary in lieu of notice, Exhibit A3 is the last pay slip of the Claimant, and it is so stated therein that the last paid monthly net salary of the claimant is N26, 131.63K and his basic salary is N18,613.00k, the claimant in his statement of facts, claims the sum of N28,313 as his 1 month salary in lieu of notice and relied on his payslip, in Abiodun Joseph v. Fajemilehin O.O. & Anor [2012] LPELR-9849 (CA) the Court of Appeal held per Fasanmi, J.C.A thus:
“it is the law that where a party proves his claim to a larger sum than the sum pleaded, he will only be entitled to the lesser sum claimed and proved.”
I find that the claimant is only entitled to N26, 131.63K as one month salary in lieu of notice as disclosed in his pay slip. I so hold.
In proof of his claim for ten (10) months total emolument as gratuity for his service of Eight years (8) with the defendant, the claimant relied on Exhibit A6, and testified to this fact in consonance with clause 27 of Exhibit A6 which provides that gratuity for 8-9 year service with the defendant will amount to Ten (10) months of an employee’s total emoluments. The claimant having served the Defendant is entitled to Ten (10) months total emolument as gratuity, hence his claim in this regard succeeds as computed from Exhibit A3 i.e. his last pay slip as follows:
Basic salary (N18,613 x 10) = N186,130.00k
Housing Allowance (N9,700 x 10) = N97,000.00k
Total = 283,130.00k
The defendant is therefore liable to pay the Claimant a sum of N283,130 (two hundred and eighty three thousand, one hundred and thirty naira) as gratuity for his service. I so hold.
On the amount contributed and remitted to the defendant’s cooperative society, it is on record that when the claimant was cross examined by counsel for the defendant on whether the cooperative society is distinct from the defendant, he responded as follows:
The defendant and Macmillan Cooperative are one and the same
It can be seen in Exhibit A3 that deductions were made from the claimant’s salary to the cooperative savings and the sum total of his savings is also disclosed therein, whilst a look at Exhibit A6 reveals that the cooperative is recognised by the defendant and same is incorporated in clause 12 of Exhibit A6, where all staff are enjoined to join the cooperative society for loan requests. The defendant cannot therefore deny that the cooperative society is been operated by the company, having incorporated same in the conditions of service i.e. Exhibit A6. It is based on the above reasoning that I find that the claimant is entitled to be paid his savings in the defendant’s cooperative society computed at ₦407,500 plus N15,000.00k (deductions for January – March, 2014), at a total sum of N422,500.00 (Four Hundred and Twenty Two Thousand, Five Hundred Naira), less any unpaid loan from the defendant’s cooperative society I so hold.
The claim for N5 million as general damages however fails, as it is the position of the law that damages are not usually granted in employment cases as the quantum of damages available to an employee is the sum accruable to him at the time of termination of his appointment, see ONALAJA V. AFRICA PETROLEUM LTD supra, having awarded the claimant his entitlements, I find no merit in awarding him double compensation by way of general damages. I so hold.
It is noteworthy that the claim against the defendant for a sum of N45,000.00 per month to be paid as imprest/float, was unproven as no evidence was adduced on this claim and counsel to the claimant did not address the court on same. I find that this claim is deemed abandoned and is unproven. I so hold.
Finally, I hereby order as follows:
The defendant is to pay the claimant one month salary in lieu of notice in the sum of N26,131.63K (Twenty Six Thousand, One hundred and thirty One naira Sixty Three Kobo).
The defendant is to pay the claimant a sum of N283,130.00k (two hundred and eighty three thousand, one hundred and thirty naira) as gratuity.
The defendant is to pay the claimant his total savings of N422,500.00k (four hundred and twenty two thousand, five hundred naira) less any unpaid loan from the defendant’s cooperative society.
The claim for general damages fails
All monetary sum awarded in this judgment are to be paid within 30 days failure upon which it will attract 25% interest per annum.
A sum of N50,000.00k (fifty thousand naira) is hereby awarded as cost against the defendant to be paid to the claimant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
