IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MAY 20, 2019 SUIT NO. NICN/LA/57/2014
BETWEEN
Mr Onwuka Josiah – Claimant
AND
Industrial Cartons Ltd – Defendant
REPRESENTATION
N. D. Nkire, for the claimant.
Segun Ololade, with Miss Victoria Manager, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 6th February 2014 vide a complaint, statement of claim, list of witnesses, statement on oath, list of documents and copies of the documents. By the statement of claim, the claimant is praying for the following reliefs:
(1) The sum of N10,000,000.00 (Ten Million Naira only) being his gratuity, pension and retirement benefits having served the defendant for over 36 productive years meritoriously.
(2) 10% interest on the judgment debt from the date of judgment until liquidation of the judgment debt.
(3) Cost of the suit.
2. In reaction, the defendant entered formal appearance and then filed its statement of defence, list of witness, statement on oath, list of documents and copies of the documents. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C5. Exhibit D1 was also tendered through the claimant. For the defendant, Okunola Davies Onifade, HR Director of the defendant testified as DW and tendered Exhibit D2. At the close of trial, parties filed and served their respective final written addresses. The defendant’s final written address was filed on 26th February 2019. The claimant’s was filed on 30th April 2019. The defendant’s reply on points of law was filed on 13th May 2019.
THE CASE BEFORE THE COURT
3. The claimant alleges that he was employed by the defendant in 1971 and spent 36 years in the service of the defendant, leaving the service of the defendant as an Assistant Maintenance Engineer. That in 2006 or thereabout the defendant introduced an agreement that was not executed by the parties wherein the defendant tried to refer him as a contract staff but the claimant bluntly refused and consulted his lawyers who wrote to the defendant. That the defendant had been plotting to rip him off his gratuity and pension by introducing funny agreement and trying severally to coerce him into executing knowing fully well that he spends over 36 years in the defendant’s service and so is entitled to gratuity and pension.
4. To the defendant, however, the claimant was in its employment and payroll from 16th April 1971 until the claimant voluntarily resigned his appointment with effect from 30th April 1990 and consequent upon which the defendant paid him his full and final entitlement in the sum of N15,725. That the claimant upon receiving his entitlement applied for contract jobs with his business name, MOKS SONS ENTERPRISES, and the defendant gave him contract jobs which he accepted under his business name. However, that the contract of employment between them did not contain terms as to payment of gratuity, pension and retirement benefits and the claimant cannot impose or imply those terms.
THE SUBMISSIONS OF THE DEFENDANT
5. The defendant submitted a sole issue for determination: whether the claimant has proved his claims against the defendant. The defendant answered in the negative since he who asserts must prove, citing section 131 of the Evidence Act, Adams v. LSDPC [2005] 5 NWLR (Pt. 656) 291 at 296, Longe v. FBN Plc [2006] NWLR (Pt. 967) 228 and Daodu v. NNPC [1998] 2 NWLR (Pt. 538) 355. That there is no evidence showing how the claimant arrived at his N10,000,000 claim and even under cross-examination, the claimant could not give any explanation on how he arrived at the sum. That none of the exhibits tendered by the claimant shows how he arrived at the sum. That this lack of proof goes with reliefs (2) and (3) on interest and cost. In any event, that the claimant’s case did not even disclose any cause of action as the defendant vide Exhibit D1 paid the claimant N15,200 as gratuity. Lastly, that there are no material facts in the statement of facts that support the reliefs claimed by the claimant; just as there is no evidence that will warrant the Court to grant the claimant’s reliefs, urging the Court to so hold. In conclusion, the defendant urged the Court to dismiss this suit with substantial cost.
THE SUBMISSIONS OF THE CLAIMANT
6. The claimant submitted two issues for determination:
(1) Whether the claimant has satisfied the conditions to entitle him to receive terminal benefits having served the defendant for over 36 years.
(2) Whether in the circumstances of this case Exhibit D2 qualifies as contract of employment between the claimant and the defendant.
7. The claimant treated issue (1) under two heads: pension and gratuity. For pension, the claimant referred to Hindustan Antibiotics Ltd v. Industrial Tribunal [1967] 1 LLJ 114 at 129, which defined pension, and then submitted that it is expedient for the claimant being a retiree to be entitled to be paid pension once he satisfies the laid down conditions of serving continuously for not less than 15 years and is up to 45 years of age at retirement (section 3 of the Pensions Act and Achimugu v. Minister of FCT [1998] 11 NWLR (Pt. 574) 467), which conditions the claimant satisfied and so is entitled to be paid the said pension. The claimant the referred to the cross-examination of DW who admitted that the claimant was employed sometime in 1971 and left in 2007/2008 and so was in service for 36 years; and also Exhibits C2 and C3, which buttress this fact. That the Court should note that throughout his employment with the defendant, no accusation of misconduct was leveled against him. That the only qualification for pension is long continuous service, which service need not be meritorious, referring to section 24 of the Pensions Act. And that pension is sacrosanct and same cannot be liable to be withheld except for the purpose of satisfying a debt, referring to section 18 of the Pension Act and Boston Deep Fishing Ice Co. v. Ansell (1888) ChD 339. The claimant then submitted that he has satisfied the conditions for payment of pension and gratuity required by law, urging the Court to so hold.
8. On gratuity, the claimant submitted that the cessation of service after an officer has served for a minimum of 10 years but less than 15 years and qualifies an employee only for gratuity, a legitimate claim that an employee can make, citing Adebule v. West African Breweries Ltd [1971] 2 NCLR 363. That an employee who is dismissed for misconduct loses his right to gratuity but in the instant case, the reverse is the case as the claimant has no single allegation of misconduct leveled against him throughout his service to the defendant, citing Irem v. Obubra District Council [1960] FSC 24 at 27.
9. Regarding issue (2), the claimant submitted that he tendered Exhibits C3, C4 and C5 as evidence of his long meritorious service, which cannot be awarded to a non-staff. But that to rely on Exhibit D2 as a contract of employment between the parties will work an undeserved hardship on the claimant. That Exhibit D2 is only an employment form showing personal data of the claimant with the defendant, which does not translate to a contract of employment. Te claimant ten urged the Court to hold that Exhibit D2 does not qualify as a contract of employment and so cannot be relied upon to define the relationship of service between him and the defendant, citing ABU, Zaria v. Molokwu [2003] 9 NWLR (Pt. 825) 265 and Okenwa v. Military Governor, Imo State [1996] 6 NWLR (Pt. 455) 394. Also that the Court should hold that despite the incident that took place between the claimant and the defendant as shown in Exhibit D1, the relationship between the parties continued as they could not reach a conclusive agreement as to whether their relationship ended in 1990. Rather despite notice to produce given by the claimant to the defendant in paragraph 5 of the claimant’s witness statement on oath, the defendant refused and neglected to produce the said agreement because same did not support their case. That Exhibits C2, C3 and C4 clearly show that Exhibit D1 is of no relevance and has been overtaken by events that subsequently took place between the parties. The claimant concluded by urging the Court to enter judgment in his favour.
THE DEFENDANT’S REPLY ON POINTS OF LAW
10. On the claimant’s reference to sections 3, 12 and 24 of the Pensions act, the defendant submitted that these sections have no bearing to the case before the Court. That a party pleads a document either by pleading its effect as a fact, so that the document will then be tendered as some evidence of that fact or the precise purport for which the document is being relied upon will be stated, citing Onyia v. Union Bank Ltd [1993] 5 NWLR (Pt. 296) 698 at 705. That in the instant case, the claimant did not plead or make reference by raising facts on the provision of the Pension Reform Act in the claimant’s statement of claim and so cannot at this stage do so as address of counsel cannot be a substitute for evidence, citing Vassilev v. Paas Industry Ltd [2000] AFWLR (Pt. 19) 418. The defendant then urged the Court to dismiss this suit with substantial cost.
COURT’S DECISION
11. After a careful consideration of the processes filed and the submissions of the parties, the claimant’s case is a claim for monetary sums: N10 Million being his gratuity, pension and retirement benefits having served the defendant for over 36 productive years meritoriously; 10% interest on the judgment debt from the date of judgment until liquidation of the judgment debt; and cost of the suit. See 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), which held per Aba Aji, JCA (as she then was) that “the claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved…” As claims for special damages, they are not to be inferred or awarded because it appears that the defendant admitted them; they must be claimed specially and proved strictly with credible evidence and they must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). 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 summarized what the claimant needs to do in order to succeed in a claim for special damages in these words:
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.
12. The particulars of special damages are to be supplied in the pleadings. It was the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 that said that:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
I looked through the claimant’s pleadings and found no particulars for the claim for special damages. The claim for gratuity, pension and retirements benefits are often hinged on the claimant’s salary given that these heads of claims are calculated by reference to the claimant’s salary. In the claimant’s statement of claim, the claimant did not plead his salary. So how did he come by the N10 Million he claims? The Court is not told. What part of the N10 Million is attributable to gratuity, pension and retirement benefits? Once again, the Court is not told. All the claimant stated in paragraph 10 of his statement of claim is that the defendant realized that he, the claimant, is entitled to pension and gratuity having spent 36 years in the service of the defendant. He repeated in paragraph 13 that he is entitled to gratuity and severance package. He earlier in paragraph 9 of same statement of claim averred that the defendant has been plotting to rip off his gratuity and pension. All of these are not the particulars needed to prove the claim for N10 Million as special damages given the authority of NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). I so find and hold.
13. Once the particulars of the special damages claimed are not supplied in the pleadings, the claimant has no case in the first place for which the defendant is required to answer. The law is that pleadings without evidence goes to no issue; and the converse is also true – evidence without pleadings goes to no issue. See Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585 and The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. It follows thus that counsel’ submission, no matter how brilliant is no substitute for pleadings and evidence. See Okwejiminor v. Gbakeji & anor [2008] LPELR-2537(SC), Lewis & Peat Ltd v. Akhimen [1976] SC 157 at 160, Niger Construction v. Okugbeni [1987] 4 NWLR (Pt. 67) 787 at 792, Igwe v. AICS [1994] 8 NWLR (Pt. 363) 459 at 481, Salawu Yoye v. Olubode & ors [1974] 10 SC 209 at 215, Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC) and Adam v. Shaibu & ors [2016] LPELR-40179(CA).
14. And it is not the duty of the Court to fix defective pleadings. As His Lordship Tur, JCA puts it in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA), a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. The claims for monetary sums by the claimant must, therefore, fail and so are hereby dismissed.
15. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
