IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 16th day of July, 2019 SUIT NO: NICN/PHC/03/2017
BETWEEN
- PATRICK NWINE—————————————CLAIMANT
AND
BAPS SERVICES NIGERIA LIMITED ————————DEFENDANT
Representations:
D.U. Ejesu with M.A.Oseghe, T. Anoruewhom for the Claimant.
James Nwanyanwu with Fidelis Mbadugbafor the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 24th of January, 2018 along with an affidavit of verification, statement of claim, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.
The suit was originally before the late Justice A. Ibrahim before it was transferred to this court sometime in October 2018.
Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:
Order for sum of N11,536,935.19 being the Claimant’s terminal entitlement to be paid to the Claimant, which breakdown is as follows:.
- Leave pay/Allowance for 2013 and 2014 50875.00 x 12 =610,500 x 20% = N122,100.00.
- Salary Arrears for 5 months and last salary for January 2016- N575,722.42.
- Stanbic IBTC unremitted pension fund N1,319,739.56 + 77,896.4= N 1,397,63 5.96.
- Gratuity earning — 2½ months gross salary for every completed year of service monthly gross salary N 4,457,995.
- Redundancy benefit N4,457.995.
- Long service award – N134,284.07.
- Three (3) month’s salary in lieu of notice outstanding salary — N312,861.21.
- Long service award (15 Years) 21 inches Tv N30,000.00 Video CD N30,000.00
- Leaveallowancefor 2014 63594×12= 763128×20% = N 152,625.60
Total Entitlements N 11,536,935.19
- An order for the sum of N2,000,000.00 for special and general damages for the trauma, delay and controversies that has cause the Claimant extraneous expenses assuage her (sic) losses.
- An order of the sum of (1,000,000.00) only as legal fees pay (sic) to Daniel I.G Ahiakwo Esq. of the firm of Tonnie& Jonnie, Legal Practitioners and Notary Public, No. 34 Aba Road, Port Harcourt Rivers State.
In reaction to the claims, the Defendant entered appearance on the 12th of February, 2018 and filed a statement of defence that was accompanied by list of witnesses, witness statement on oath, list of documents and copies of the said documents.
In opening his case, the Claimant himself, Patrick Nwine, was the sole witness as CW1 and he adopted his witness statement on oath marked as C1. Through him, 15 documents were tendered in evidence and admitted as Exhibit C2 – C15 with exhibits C5 and C7 – C15 being admitted under protest with the grounds of objection to be addressed in the final written addresses and considered in this judgment.
Arising from the statement of fact and witness statement on oath of the Claimant, thecase of the Claimant is that he is a former employee of the Defendant who employed him on probation on 21st January 1999 and confirmed him on 28th July 1999. He was formerly a junior staff but gained promotion as a senior staff on the 30th of June, 2011. His employment was however terminated via a letter of disengagement dated the 12th December 2015 after a period of seventeen years. Upon the said termination, the Defendant wrongly computed his terminal benefit. He prepared the correct computation to the tune of N11, 536,935.19, presented and demanded payment but he was not paid by the Defendant. He posited that upon the wrong computation and failure to make payment, he and other affected employees approached the Defendant but the Defendnat refused to act. They then proceeded to the Federal Ministry of Labourto complain and the Defendant was asked to come with the condition of service but they never did. They made the same complaint at the Public Complaints Commission where the Defendant was represented by the accountant. Claimant posited that the recommendation of the Public Complaints Commission did not take into account the plight of the Complainant and same was rejected hence this suit.
Upon cross examination of CW1, he posited that the Defendant is a member of SEWUN but that the Defendant is not a signatory to a communiqué issued by SEWUN. He admitted he was not the only staff that was disengaged and that the disengaged staff petitioned Public Complaints Commission. He added that the parties were invited to an arbitration wherein their case was presented. He agreed also that a decision was reached at the Public Complaints Commission. He admitted that he was coerced into collecting N1.6 million naira after the decision reached at Public Complaints Commission. He admitted that he cashed the money. He also posited that the NJIC agreement was adopted by the Defendant by the payroll. He stated that the 1.6 million he received is not his final entitlement.
Upon the discharge of CW1, claimant closed his case, while the Defendant opened theirs with the calling of Festus Chimezie as DW1. The said DW1 adopted his witness statement on oath as D1 and through him, three documents were tendered and admitted in evidence as D2 (a) and (b), D3 and D4(a) and (b).
Arising from the statement of defence and witness statement on oath, the case for the Defendant is that while the facts relating to the employments are admitted, the Defendant which carried on business formerly as BEWAC Automotive Products Limited was a company with a core business object of buying and selling Isuzu and Nisan vehicles and maintaining after sales service, changed its name to Baps Service Limited in 1998. However with the influx of second hand vehicles into the Nigeria auto market, sale of brand new vehicles declined drastically over time. The Defendant posited that the Company thenset up water factory but as a result of corrupt and unwholesome practices by the then management, the Defendant suffered accumulated losses of about N56.3m (Fifty six million, three hundred thousand Naira) as at 31st December 2012 and it led the Defendants to dismiss the management staff including the Claimant.
The Defendant further posited that some of the disengaged staff led by the Claimant approached the Public Complaints Commission,who gave an award and directed that the Defendants pay the Claimant and other petitioners. They added that the Claimant collected N1,652,177.82 which he duly acknowledged on the 13th of April 2017. The Defendant posited that the claims in the Claimant’s statement of claim is fictitious, frivolous, gold digging and exploitative having being concluded by arbitration panel duly constituted at the instance of the claimant and award given and same having being complied with.
Upon cross examination, DW1posited that he is not aware that the Claimant has rejected the award by the Public Complaints Commission and that the last salary of the Claimant is N104,000. He stated that the PCC told him to pay the Claimant for 4 or 5 month but paragraph 16 of the witness statement on oath states 2 months. He posited that he can’t say off hand what the basic pay is. But upon reading exhibit C9, he posited that the gross pay is N75,575 for 2013 and N63,594 for 2014. He also stated that he got the record of pension from the company file. He posited that the Claimant was employed in 1999 and added that Exhibit C11 does not apply to the Claimant.
Upon discharge of DW1, the Defendant closed their case and matter was adjourned for adoption of final addresses.
The Defendant filed their final written address on the 3rd of June, 2019 and adopted same on the 19th of June 2019.
Arising from the said final address, counsel to the Defendant, James Nwanyanwu Esq. formulated three issues for determination to wit:
- Whether the Claimant proved his claim to be entitled to the reliefs sought considering the award of the Public Complaints Commission Tribunal and the cheque issued in Exhibit D4A & B which same was collected by the Clamant?
- Whether the award of the Public Complaints Commission Tribunal did not consider the issues in this suit?
- Whether the Claimant rejected the award of Public Complaints Commission Tribunal?
In arguing issue one, counsel contended that the Claimant did not file any reply to the statement of defence filed by the Defendant on the 12th December, 2018, therefore all the averment thereof are not contradicted and it is an elementary principle of law that any allegation of fact unless traversed is deemed admitted. He cited the case of Julius A. Omole V. Colodense Ng. Plc (2010) LPELR — 4778 (C.A) and Oshodi V. Eyifunmi (2000) 13NWLR (Pt. 654) 298.
Counsel also posited that the burden of proof in a suit or proceedings lie on that person who would fail if no evidence at all were given on either side i.e. on one who alleges and not on him who denies. Counsel cited Section 132 of the Evidence Act, 2011 and the cases of Umeojiako V. Ezenamuo (1990) NWLR Pt. 126 page 253 and Ugbo V. Aurime (1993) 2NWLR (Pt. 273) page 101.
Upon the foregoing, counsel narrated facts of the case as averred in the statement of defence and contended that the Claimant did not tender the petition filed before the Public Complaints Commission (Exhibit D2a) which comprises all the issues before this court. He added that the Claimant neither mentioned nor tendered the award of the Public Complaints Commission Tribunal because these facts are unfavorable to him in this proceeding and accordingly urged the Court to invoke Section 167 (d) of the Evidence Act 2011 in respect of same.
Counsel stated that based on the decision/award and directive of the Commission, the Defendant prepared all the final entitlement/benefit of all the Complainants as directed by the Public Complaints Commission Tribunal including that of the Claimant as shown in Exhibit D4A with his cheque as shown in Exhibit D4B and presented same to the Public Complaints Commission and same was confirmed by them before the Claimant and other of his cohorts started collecting their respective payments as full and final settlement of their entitlement from the Defendant. He added that the Claimant collected his own letter and endorsed as shown on the face of Exhibit D4A, collected the cheque Exhibit D4B and immediately cashed same without complaining.
Counsel added that the Claimant did not raise the issue of rejection in his pleading to state the mode of the said rejection and to enable the Defendant respond to same. He added that it is trite that any evidence raised during cross-examination that is not in the pleading goes to no issue. He cited the cases of Akaninwo V. Nsirim (2008) 9 NWLR (Pt. 1093) 439; Eze V. Ene (2017) 12 NWLR (Pt. 1579) 313; Nwawuba V. Enemuo (1998) 19NSCC (Pt. 1) 930 and Slee Transport V. OluwaSegun (1971) 8 NSCC 470
Counsel further posited that litigation as well as arbitration, conciliation or even mediation is mechanism of dispute resolution and the Claimant having benefitted from the Commission’s decision and cashed same, wants to use the Court process to reap double portion while the Court is a Court of law and equity and equity frowns against double portion. Counsel cited the case of Polyvalent Nig. Ltd. &Ors V. Akin Akinbote (2010) 8 NWLR (Pt. 1197) 515 and Section 169 Evidence Act 2011.
Counsel further contended that assuming but not conceding that the Claimant objected to the award, having accepted Exhibits D4A and B, the Claimant by his conduct is estopped from bringing up this suit. He cited the case of TemecoEng Co. Ltd. V. S.B.N Ltd. (1995) 5 NWLR (Pt. 397) P; Menakaya V. Menakaya (1996) 9 NWLR (Pt. 472) 256.
Counsel added that aside from the argument on the award,the Claimant has not proved his case as the court is not entitled to assume or speculate anything as it leads to a miscarriage of justice. He cited the case of UTB of NIS V FideliaOzoemena (2007) 3NWLR (Pt. 1022) page 448.
In addition, counsel contended that Exhibit 5C is not applicable to the Claimant and he failed to lead evidence to prove same. Counsel added that the pay slip tendered by the Claimant was made for the purpose of this suit and caught up by section 83 of the Evidence Act.
Counsel added that the document titled supervisor’s payroll for month of June 2011 does not possess the signature, date, stamp of the company nor the Board showing authorization. He added that the same fate befalls the documents dated 25th January, 2015, 31st August, 2014, 31st May, 2013, documents titled Computation of Terminal Benefit Proper of Mr. P.N. Nwine Exhibit 10C, also a document dated 9/12/2004 a memo, which has nothing on it to show that it was approved by the Board, 2/8/04, Circular letter from the Steel and Engineering Works Union of Nigeria (SEWUN) dated 4t December, 2012, 30 November 2012 from SEWUN; Memorandum of Agreement between AABTEAEN and SEWUN dated 30/1//20 12 Exhibit 14C — there is nothing anywhere to show that the management and Board of the Defendant approved, adopted or ratified these documents to entitle anyone the Claimant inclusive to claim thereunder.
Counsel added with regards to long service award that the Claimant was not nominated for such award and cannot lay claim while in respect of Exhibit C16, paragraph 4.4 shows that what it contains is only a recommendation which there is no proof of approval by the Board. Counsel added that Exhibit C7 did not comply with section 84.
With regards to claim for unremitted pension contribution, counsel posited that same is addressed by paragraph 9 of Exhibit D2B and has since been paid. He added that there is nothing in Exhibit C9, C10, C11A and B, C 13, C 14, C15 and C16 showing that the Board approved any of the claims in them.
With regards to claim of special and general damages, counsel contended that the law is trite that a party who claims special damages must specifically plead and particularize the items of special damages and strictly prove them in order to succeed. He cited the cases of Incar Nig. Ltd. V. Adegboye (1985) 2 NWLR (Pt. 8) 453, Kalu V. Mbuko (1988) 3 NWLR (Pt. 80) 86, Osuji V. Isiocha (1989) 3 NWLR (Pt. 111) 623; Ibrahim V. Obaje (2018) All FWLR (Pt. 97) SC 1682 and submitted that the Claimant did not state what are the items of his special damages let alone proving it.
In arguing issue 2 and 3 together, counsel restated the most of what was submitted while arguing issue one and contended in addition that there is no Nigerian case law authority on the point that an award is bad simply because it was unfavorable to any of the parties’ plight, after that party voluntarily participated and benefited from it. He added that there is also no authority that contemplates that an award is bad because of the weakness of party’s representation/representative at an arbitral proceeding which party did not complain about during the proceeding.
Counsel further posited that what gives a decision of an arbitral panel validity is the voluntary submission of the parties to the arbitration as it is trite that when parties submit their dispute genuinely to a body (in this case the PCC) and after hearing the parties gave a decision, neither side can resile from it and the decision has the same effect as the decision of the Court. He cited the case of Taylor Woodrow (Nig) Ltd V. S.E. GMBH (1993) 4 NWLR (Pt. 286) 127, Nwade V. Onwumere (1985) NSCE (Pt. 1) 347.
He added that Claimant did not reject the award because the arbitrator misconducteditself and neither did the Claimant show nor prove something radically wrong and vicious in the proceedings at the Public Complaints Commission which should weigh on this Court to set aside the award. He cited the case of Baker Marine Nig. Ltd V. Chevron Nig. Ltd (2000) 12 NWLR (Pt. 681) P. 393.
He also added that the Claimant did not state that the Commission acted beyond its power or scope of the submission to arbitration; or that the arbitral proceedings or award was improperly procured. In view of these, counsel submitted that on the authorities of Sections 29 and 30 of Arbitration and Conciliation Act 2004, Araka V. Ejeagwu (2000)15 NWLR (Pt. 692)684; Kano state Urban Dev. Board V. Fnaz Construction Co. Ltd (1990)4 NWLR (Pt. 142)3, the award is valid and binding on the parties.
Counsel concluded that the Claimant is not entitled to any relief in this suit and urged the court to dismiss same.
Reacting to the final address of the Defendant, the Claimant on the 13th of June 2019 filed his final written address which was adopted on the 19th of June, 2019.
Arising from the said final address, counsel to the Claimant, D.U. EjesuEsq, formulated two issues for determination to wit:
1). WHAT IS THE BASIS OF COMPLAINT BY THE CLAIMANT BEFORE THE PUBLIC COMPLAINTS COMMISSION (EXHIBIT D3) WHICH WAS REJECTED BY THE CLAIMANT? HAS THE COMPLAINT BEEN FULLY RESOLVED?
2). FROM THE EXISTING RULES AND REGULATIONS OF CONTRACT OF EMPLOYMENT BY THE DEFENDANT; HAS THE CLAIMANT BEEN FULLY PAID HIS ENTITLEMENTS?
In arguing issue one, counsel contended that the sole challenge put forward by the Defendant, as shown in paragraphs 4, 12 and 13 of the Statement of Defence, are that they paid according to the award by the Public Complaints Commission which award the Claimant rejected. He added that the defence is not sustainable because the Public Complaints Commission has not fully addressed the basis of the complaint, namely, ‘COMPLAINT AGAINST NON – PAYMENT OF DUE TERMINAL ENTITLEMENTS’.
Counsel stated further that the court should ask the defendant that: “Since the Claimant has rejected the supposed Award by the Commission, what are the options available to him?” Or rather, “are the awards or recommendations of the Commission subject to review or appeal?”
Counsel added that the non – payment of the Terminal Benefits and Entitlements of the Claimant is still in issue and can only be resolved by this Honourable Court.
Counsel also contended that the Public Complaints Commission is not a Judicial Body but an Administrative Organ and therefore has limited jurisdiction and powers which makes its decisions or actions subject to judicial control and directives.
He added that the decisions of the Public Compliant Commission are not binding and enforceable and urged the court to resolve the issue in favour of the Claimant.
With regards to issue two, counsel posited that the issues between the Claimant and the Defendant are founded on Contract of Employment. He cited Section 7 of the Labour Act. Counsel also referred the court to exhibit C2,C3, C6, C12, C15. Counsel added that Claimant has not been fully paid his entitlements and the issues have not been resolved.
Counsel restated the claims and related them to the Exhibits before the court and cited the cases of S. S. C. LTD VS. AFROPAK (NIG) LTD (2008) VOL. 164 LRCN PAGE 36 AT PAGE 49 and ATIVIE VS. KABELMETAL NIG. LTD (2008) VOL. 164 LRCN PAGE 36 AT PAGE 49 both on the meaning of contract of employment and the entitlement of an employee who has proved his case.
Counsel concluded by urging the court to grant the claims of the Claimant
By way of reply on point of law filed on the 18th of June, 2019, counsel to the Defendant responded to the final address of the Claimant. While I reckon that a large portion of the reply were based on facts asserted by counsel to the Claimant and an elongation of argument earlier made, I have made effort to pick up few issues relating to law as counsel contended that Address of counsel no matter how beautifully written cannot take the place of evidence or pleading, he cited the case of Ucha V. Elechi (2012) 13 NWLR (Pt. 13417) P. 330 Ishiola V. Ajiboye (1998) 1 NWLR (Pt. 532)71, Chukwujekwu V. Olalere (1992 2 NWLR (Pt. 221) 86.
With regards to section 11(2) of the Public Complaint Commission Act cited by counsel to the Claimant on the position that the Public Complaint Commission is not a judicial body, counsel to the Defendant contended that the submission is a misconception. He cited the case of Commerce Assurance Ltd. V. Alli (1992) 4 SCNJ 145 and concluded by urging the court to dismiss the suit.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted in evidence.
I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law of the Defendant, the sole issue for the determination of this suit is to wit:
Whether or not the parties have resolved the issue of non-payment of due terminal entitlement in view of the recommendation of the Public Complaints Commission and if not, whether the Claimant is entitled to the reliefs sought before this court.
Before resolving the sole issue, I must posit that I reckon that counsel to the Defendant has abandoned his objection to the admissibility of exhibits C5 and C7 – C15 tendered in evidence through CW1 and admitted under protest. Counsel was directed to address his objections in the final written address for same to be determined in this judgment but perhaps choose to forgo his objection having not proffered the address. To that end, the said documents are hereby properly admitted in evidence.
I then turn to the sole issue for determination which is formulated in view of the contention between the parties to the effect that while the Claimant contends that he computed certain sum as his terminal entitlement which he alleges the defendant has refused to pay, the Defendant is contending that the Claimant has been paid his terminal entitlement after the dispute between the claimant and the Defendant was resolved by way of arbitration presided over by the Public Complaints Commission and the award made by the Commission has been complied with by payment of the agreed entitlement to the Claimant.
I must also state from the onset that while the sole issue is in two phases, the second phase is dependent on the first. In other words, I shall first determine whether or not a dispute in respect of non-payment of terminal entitlement was presented before the Public Complaints Commission and whether a decision was reached in respect of same which the parties subjected themselves toand whether the decision became binding and final. This is in view of the defence put up by the Defendant. Where there is such finding, it would be needless to further entertain the claims of the Claimant which are clearly claims for terminal entitlements.
The pertinence of resolving the first phase of the issue is predicated on the principle that parties are free to resolve disputes between themselves and once that is done, they should not use the court to renew an already resolved conflict.
Having said that, it must be added that upon the parties amicably resolving their dispute without any form of vitiating element in the process and the outcome, the parties will be estopped from resiling from what was agreed. This is captured under the principle of estoppel which is statutorily provided insection 169 of the Evidence Act, 2011 which stipulates that:
“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 representatives 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.”
The foregoing provision has been given judicial recognition in a plethora of authorities including the case of UNIILORIN & ORS V. ODULEYE (2006) LPELR-11708(CA) where the court held that:
“Parties cannot be allowed to approbate and reprobate at the same time. See the cases of: OGUALAJI v. ATTORNEY GENERAL OF RIVERS STATE & ANOR. (1997) 5 SCNJ 240 where it was held inter alia that by operation of the rule of estoppel a man is not allowed to blow hot and cold. He cannot affirm at one time and deny at the other, or approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turn around to say to that person’s disadvantage that the state of affairs which he had presented does not exist at all or as represented by him…”Per MuhammadSaifullahiMuntaka-Coomassie,J.C.A (as he then was) (Pp. 14-19, paras. B-D)
In the light of the forgoing authorities, I take into account the fact that the Claimant narrated how his employment which started in 1999 via exhibit C2 and C3 was terminated by the Defendant when he was served with the notice of disengagement on the 12th of December, 2015 i.e. Exhibit C4. I reckon from the letter that the termination was to take effect on the 31st of January, 2016. Meaning the Claimant had well over a month notice of the termination of his employment. I also reckon that upon the termination, the Claimant contended that he was owed certain terminal entitlements by the Defendant including leave allowance, salary arrears, unremitted pension contribution, gratuity earning, redundancy benefit and long service award put at N11, 536, 935.19. He, along with other aggrieved staff who perhaps werealso not paid terminal entitlement, demanded the computed sum from the Defendant without success, upon which he and the other disengaged staff approached the Public Complaints Commission (PCC) to resolve the matter relating to non-payment of terminal entitlement. Claimant did not tender any document relating to what transpired at the Public Complaints Commission, but simply averred that the Complainants (which included himself), had weak representation and that the PCC “arrived at a recommendation which did not take into account the plight of the Complainant and same was rejected by them as they refused to endorse the said recommendation”.
It is upon the foregoing account that the Defendant presented its defence to the effect that the PCC made an award to the effect that the Defendant should pay the Complainants certain sum of monies including the Claimant. That they had since complied with the award by writing a letter to the Claimant, issuing him a cheque in respect of the agreed sum and the Claimant had since cashed the cheque.
The Defendant tendered Exhibit D2(a) and (b) which comprises the letter written to the Defendant by the PCC dated the 3rd of November, 2016 with the caption ‘RE: LETTER OF COMPLAINT AGAINST NON-PAYMENT OF TERMINAL ENTITLEMENT’. The two paragraphs in the said letter reads:
With reference to the case conference held on the 20th of September, 2016 and your letters dated 19th and 29th of September, 2016 respectively in connection with the above subject matter, I am directed to forward herewith the attached response from the Complainants for your information and necessary action in preparation for the next case conference.
Please accept the highest regards of the Honourable Commissioner.
Attached to the said letter was a letter written to the Commissioner of the PCC from the lawyers representing the Complainants which included the Claimant. The attached letter is dated the 1st of November, 2016 and captioned ‘RE: OUR COMPLAINTS AGAINST NON-PAYMENT OF DUE TERMINAL ENTITLEMENT’. In addition, the complaint itself which is dated the 10th of October, 2016 was written and signed by Patrick Nwine(the Claimant) for the Disengaged Staff of the Baps Services Ltd.
The effect of exhibit D2(a) and (b) is that it proves that: i, the matter presented before the PCC by the Claimant and other disengaged staff was for NON-PAYMENT OF DUE TERMINAL ENTITLEMENT; ii, The PCC gave both parties opportunities to present their case in respect of the issue; iii, the Claimant was actively involved in the proceeding having written and signed the complaint on behalf of the disengaged staff.
In addition to the foregoing, the Defendant tendered Exhibit D3 which is a letter dated the 28th of March 2017 written to the Defendant by the PCC and containing the recommendation made by the Hon. Commissioner of the PCC. The said letter reads:
Dear Sir,
ATTEN: NICHEM SERVICES (COMPANY SECRETARY)
RE: LETTER OF COMPLAINT AGAINST NON-PAYMENT OF DUE TERMINAL ENTITLEMENTS
Sequel to the peaceful resolution of the above subject matter, I am directed to forward to you the recommendation of the Honorable Commission as follows:
That the Commission is satisfied with the final Computation of complainants’ entitlement i.e.
- The last salary before they were disengaged
b, Five Months salary arrears
- 1eave allowance calculated on I0% of salary as per letter of employment
- Unremitted pension employer/employee contribution and interest at 22.6% as Presented and submitted by the respondent (RAPS SERVICES) to the commission.
- That the company properties (Laptop and car) in Mr. Samuel Aghaje’s possession Should be returned to the Company.
- This Commission wishes to appeal on compassionate grounds that Mr, Samuel Agbaje, the erstwhile acting General Manager should on return of the said items, The company should consider the wear and tear occasioned by passage of time and weather and allow him take possession of the vehicle.
- That the company should prepare cheques for the payment of their final Entitlements/benefits for presentation to Complainants at the Public Complaints Commission in line with the policy of the Commission.
Please accept the highest regards of the Honorable Commissioner.
Signed.
IkonneNnaemeka
For Honorable Commissioner.
I have taken a dispassionate view of the foregoing, it is apparent that what was made by the PCC was a recommendation and not an award per se. Upon the recommendation, the Claimant and his colleagues who initiated the proceeding at the PCC have the opportunity and right to reject the recommendation for whatever ground including lack of adequate representation or dissatisfaction with the recommendation as a whole as unsatisfactory.
From the facts and evidence before this court, neither the Claimant nor his colleagues made such rejection nor challenged the recommendation. In fact, the Defendant further tendered exhibit D4 (a) and (b) which comprises of the letter written to the Claimant by the Defendant dated the 13th of April, 2017, about 15 days after the recommendation was made,informing the Claimant that in reference to the letter of disengagement written to him dated the 12th of December, 2015, he is forwarded a cheque in the sum of N1,652, 177.82 being payment of his final entitlement. The breakdown of the sum was also clearly indicated on the said letter and repeats the conclusion ‘Total Final Entitlement’.
By the agreement of the defendant to pay and the Claimant’s acceptance of same as total final entitlement, the Claimant having benefitted from the agreement cannot be allowed both in law and equity to resile from it.
In addition, Claimant was asked to sign the duplicate copy of the letter; firstly in acknowledgement of the receipt of the mentioned cheque and secondly, in acceptance of his final entitlement as calculated and agreed at the Public Complaints Commission (PCC) in full and final settlement of his entitlement from the Company.
On the face of the said letter, the Claimant signed on the 6th of October, 2017. He also signed on a copy of the annexed cheque and stated that the original is collected.
During cross examination, the Claimant was asked whether he was issued with the cheque of N1.6million based on the decision of the PCC. He answered that he was coerced into collecting the money. He was also asked if he cashed the cheque to which he answered ‘yes’.
The Claimant did not state in his statement of fact that he received the said sum, rather he lied before this court through his pleading and paragraph 27 of his statement on oath that he rejected the recommendation.
In view of the foregoing, there is no gainsaying that the parties have themselves resolved the dispute in respect of the Non-Payment of Terminal Entitlement upon the Claimant having accepted the sum of N1,652,177.82 as his full and final terminal entitlement. The original cause of action is regarded as having been mutually terminated by the acceptance and could not therefore be resurrected by resorting to the court.
I am not oblivious of the arguments made by counsel to the Claimant that the Claimant rejected the award and that the PCC is not a judicial body and wrongly citing section 11(2) of the Public Complaints Commission Act.
In this regards I must firstly state that it is most unprofessional and a disservice to the legal profession for counsel to continue to toe such line of argument after the Claimant had admitted that he cashed the cheque he collected and without any form of evidence proving that the recommendation of the PCC was rejected. Secondly, the appropriate section of the PCC Act intended to be cited is section 12 (2) which states that:
The provisions of this Act are in addition to and do not in any manner derogate from the provisions of any other laws guaranteeing liberty of access to courts of law for redress.
Counsel used the provision to contend that the decision of the PCC is not binding and enforceable.
In view of the contention, I must state that the wordings of the said provisions are clear and unambiguous as it states nothing about the bindingness or otherwise of the decision or recommendation of the PCC. In addition, what the provision implies is that parties who approach the PCC are not precluded from approaching any other court for redress. That however is either before they approach the PCC or while their case is pending before the PCC, or after same is concluded and they are not satisfied with the decision and they validly reject same.
In the instant case, the issue between the Claimant and the Defendant have been resolved, the Claimant has claimed the benefit of the resolution but wants to use this court to renew an already resolved conflict.
Consequently, it is in the interest of justice, equity and good conscience that the Claimant should be estopped from using the court to reap in double portion or fraudulently deny what he willingly agreed and accepted as his full and final entitlement.
In view of the foregoing, the first phase of the sole issue has been resolved to the effect that the parties have resolved the issue of non-payment of due terminal entitlement based on the recommendation of the Public Complaints Commission and in view the compliance with the said recommendation by the defendant, the Defendant is discharged from further liability.
For the sake of emphasis, the court in ENEJE & ORS V. OCHIAKA & ORS (2014) LPELR-24060(CA) posited that:
“where parties settle or compromise pending proceedings whether before, at or during trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration, and the implications are that: (a) It puts an end to the proceedings for they are thereby spent and exhausted; (b) It precludes the parties from taking any further steps in the action, except when they have provided for liberty to apply to enforce the agreed terms; and (c) It superseded the original cause of action altogether, that compromise must henceforth regulate the relationship and entitlement of parties in regard to the subject matter.”Per IgnatiusIgweAgube ,J.C.A (P. 40, paras. A-F).
Upon the discharge of the Defendant from further liability, it will be a waste of precious judicial time to further indulge the claims made by the Claimant which are for the same terminal entitlement. The implication of which is that the sole issue is wholly resolved against the Claimant and in favour of the Defendant as the resolution of the first phase of the sole issue means that the Claimant is not entitled to the claims made before this court.
That said, in the final analysis, the case of the Claimant is devoid of any iota of merit. It is frivolous, gold digging and a waste of precious judicial time. Same is accordingly dismissed in its entirety.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.
