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National Industrial Court

Mr. Sojibola Dickson Osanyibi -VS-United Geophysical (Nigeria)

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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: 2ndMay 2019                             SUIT NO. NICN/LA/560/2018

 

BETWEEN

 

  1. SOJIBOLA DICKSON OSANYINBI … CLAIMANT

 

AND

 

UNITED GEOPHYSICAL [NIGERIA] LIMITED…               DEFENDANT

       

REPRESENTATION:

 

Francis Izuagie Esq. for the Claimant

Margaret Akpoyoware [Mrs.] with OffojebeChidinma for the Defendant.

 

JUDGMENT

 

  1. By a General Form of Complaints dated5th November 2018, the Claimant claimed against the Defendant for:

 

  1. An order for the payment by the Defendant of all outstanding salary [arrears], severance benefits, Housing Fund deduction, Pensions deduction and tax deductions accruable to the Claimant in the following manner:

 

  1. Salary Outstanding for February & March 2015 and April to October 2015 a total of N284,772.64

 

  1. National Housing Fund unaccountable deductions from 2007 to 2015 a total of N76,063.20

 

  • Unremitted Withholding Tax deductions from 2001 to 2007 a total of N479,325.60

 

  1. Unremitted Pay as You Earn [P.A.Y.E] deductions from 2008 to 2015 a total of N1,633,483.08

 

  1. Unremitted Pension Fund deductions from 2007 to 2011; 2013 to 2015 a total of N465,219.02

 

  1. End of Prospect pay-off for six [6] Prospects [i.e. Shell Robo, Olua, Amadioha, Oguali, Imo River and Ohuru-Oza 3D Prospects] from 2000 to 2007 at 25% annual daily pay, a total of N1,672,372.20

 

  • End of Prospect pay-off for four [4] Prospects[i.e. Chevron OML53 [Imo State], NPDC OML65 [Ughelli, Delta State], New Cross OPL283 [Eku, Delta State] and Pan Ocean [Ologbo, Edo State] from 2008 to 2015 at 25% annual pay, a total of N3,556,192.00

 

Grand Total                        N8, 167,427.74

 

  1. An order for the payment of N2,000,000.00 [two million naira] only as general damages.

 

  1. An order of this Honourable Court directing the Defendant to pay outstanding salaries, unaccountable deductions of National Housing Fund, unremitted withholding tax deductions, unremitted Pay as You Earn [P.A.Y.E] deductions, unremitted Pension Fund deductions and End of Prospect pay-off for all the prospects due and payable to the Claimant as stated above.

 

  1. An order for cost of this suit against the Defendant.

 

The Claimant filed with the complaint a statement of fact, list of witness, statement on oath, list of documents and copies of the documents. The originating processes were served on the Defendant on 6thNovember 2018. The Defendant entered an appearance and filed its defence processes on 27th November 2018. The Claimant filed a reply to the statement of defence and accompanying statement on oath on 14th January 2019. Trial commenced on 15th January 2019. The Claimant adopted his statements on oath dated 5th November 2018 and 14th January 2019as his evidence in the suit and tendered 14 exhibits, exhibits 1 to 14. Exhibit 1 is letter of appointment as Community Affair Manager dated 14thDecember1999, exhibit 2 is appointment as Relief Community Affair Manager dated 14th February 2013,exhibit 3 is email acknowledgement of the Claimant’s resignation dated 10th November 2015, exhibit 4 is Claimant’s Solicitors debit note dated 10th July 2018. Exhibits 5, a – eare copies of the Claimant’s pay advice. Exhibit 6 is Defendant’s letter dated 27th February 2017 in response to Claimant’s Solicitors’ lettersdated 21st February 2017 and 22nd February 2017. Exhibit 7 is Claimant’s Solicitors’ final demand notice dated 20th November 2017, exhibit 8 is Defendant’s letter dated 25th January 2011 titled 10% annual increase; exhibit 9 is Defendant’s letter dated 2ndNovember 2011 titled merit increase and exhibit 10 is Claimant’s letter of resignation. Exhibit 11 is Defendant’s acceptance of Claimant’s resignation. Exhibits 12 and 12A are Claimant’s Solicitors’ letters dated 21st February 2017 and 22nd February 2017. Exhibit 13 is Defendant’s letter dated 25thFebruary 2013 titled merit increase. Exhibit 14 is Defendant’s senior staff conditions of service. The case was thereafter adjourned to 4th February 2019 for cross-examination anddefence. On 4th February 2019, the Claimant was cross-examined and the Defendant opened its defence by calling Mr. FridayOteikwu, the Legal Officer. Mr. Oteikwu adopted his statement on oath dated 27th November 2018 and tendered 7 exhibits, exhibits DW1A to DW1G. Exhibit DW1A is pension remittance for September to December 2007 and January 2008. Exhibit DW1B is pension remittance for February to December 2008 and January to March 2009. Exhibit DW1C is pension remittance for May – June 2012, August to December 2012.Exhibit DW1D is pension remittance for January 2013 to December 2013. Exhibit DW1E is National Housing Fund remittance for 2012, exhibit DW1F is National Housing Fund remittance for 2013. Exhibit DW1G is P.A.Y.E receipts.The Defendant’s witness was cross-examined and the case was thereafter adjourned for adoption of final written addresses. On 27th March 2019, learned Counsel for the Defendant, Mrs. Akpoyoware, adopted the Defendant’s final written address dated and filed on 26th February 2019 and reply on points of law filed on 19th March 2019 and urged the Court to dismiss the suit. Learned Counsel for the Claimant, Mr. Izuagie, adopted the Claimant’s final written address dated and filed on 13th March 2019 as his final argument in support of the Claimant’s claim and urged the Court to discountenance paragraphs a, b, d and g of the reply on points of law.The matter was consequently set down for judgment.

 

COURT’S DECISION

 

  1. I have carefully considered the processes together with the exhibits andfinal written addresses filed by the parties. Parties agree that the Claimant was employed by the Defendant in December 1999 as Contract Community Affair Manager, exhibit 1. The Claimant was offered permanent employment status and made the Relief Community Affair Manager in February 2013, a position he occupied until his resignation on 15th October 2015, exhibits 2 and 10. The Defendant accepted his resignation by letter dated 16th October 2015, exhibit 11. The Claimant’s case is that he is owed nine months’ salaries and end of prospects pay-off for 10 prospects, unremitted pension, P.A.Y.E, withholding tax and National Housing Fund deductions in the sum of N8, 167,427.74. The Defendant admitted liability for eight months’ salary arrears in the sum of N264, 772.64 butdenied liability for the rest of the claim. Specifically, the Defendant denied allegations of non-remittance of Claimant’s pension, National Housing Fund and P.A.Y.E deductions and averred that the Claimant is not entitled to end of prospects pay-off and withholding tax. The Defendant submitted four issues for determination namely, whether the Claimant has successfully proved his case? Issue two is whether the Claimant is entitled to the cost of litigation? Issue three is whether the Claimant is entitled to damages; and issue four is what [is] the appropriate order the Court should make in this case? On his part, the Claimant formulated two issues to wit, whether from the respective evidence of the parties, the Claimant is entitled to the reliefs sought in the writ of summons and statement of fact; and whether on the strength of the voluntary acknowledgment to pay the Claimant’s pay off and other benefits as contained in exhibit 3 can be deemed by the Honourable Court as the usual practice of the Defendant? Arguing issue one, which is whether the Claimant has successfully proved his case; learned Counsel for the Defendant submitted that the Claimant failed to lead evidence of non-remittance of the deductions madeand of his entitlement to end of prospect pay-off and as a result not entitled to judgment. She contended that he who asserts must prove and referred to Gbenga &Ors. v. Total Data Limited [2014] 51 NLLR [pt.172] 721.It was argued that the burden of proof is still on the Claimant and has not shifted to the Defendant. This notwithstanding, she contended that the Defendant presented evidence showing remittance of the taxes to the appropriate authorities and thus entitled to judgment. On end of prospects pay-off, the Defendant contended that it is a mere fabrication of the Claimant not within the contemplation of the parties or provided for in the senior staff conditions of service, exhibit 14. It was further argued that the failure of the Claimant to produce his pension and housing fund statements of account pursuant to a notice to produce means that he is concealing facts and as a result, this Court should find in favour of the Defendant. On issue two, the Defendant submitted that the Claimant’s claim for professional fees should be discountenanced as he led no evidence to prove that the sum of N750, 000 has been paid and referred to Fadaka v. Air Nigeria Development Limited [2014] 51 NLLR [pt.171] 533, Ihekwoaba v. ACB Ltd. [1998] 10 NWLR [pt.571] at 610-611 and Christopher Nwanji v. Coastal Services Nig. Limited [2004] 11 NWLR [pt.885] 552 at 569.On N2,000,000 general damages, it was submitted that a party is entitled to damages for wrong suffered and the award is subject to the discretion of the Court,Nigeria Breweries Plc v. Balogun [2014] 45 NLLR [pt.143] 220was cited in support. Learned Counsel argued that the Claimant suffered no wrong and is not entitled to award of damages. She urged the Court to dismiss the suit for being frivolous, vexatious and a gross abuse of Court process.

 

  1. Canvassing Claimant’s issue one, learned Counsel explained that the Claimant instituted this action because the Defendant refused to pay his salary arrears, pay off and other benefits; and that having admitted in exhibit 3 that the Claimant’s pay off and other benefits were being ‘worked on’, the Defendant cannot now deny that he is so entitled. He contended that exhibit 3 contains a fact which this Court should take judicial notice of pursuant to section 122 of the Evidence Act, 2011. It was further argued that evidence procured during cross-examination is admissible and referred to Haruna &Ors. v. K.S.H.A &Ors. [2010] 7 NWLR [pt.1194] 604. Accordingly, he urged the Court to accept the Claimant’s explanation during cross examination of what ‘end of prospect bonus’ is. It was also argued that the documents tendered as exhibits DW1A to DW1G were not pleaded and parties are bound by their pleading and matters not pleaded cannot be proved, Overseas Construction Co. [Nig.] Ltd v. Creek Enterprises Ltd. [1985] 2 NWLR [pt.13] 407 was cited in support. He contended that the Defendant did not produce evidence of remittance of the Claimant’s National Housing Fund deductions for 2007 to 2015, pension deductions for January 2007 to August 2007, April 2009 to December 2010, March 2011 to May 2012, July 2012 and January 2014 to October 2015; withholding tax for January 2000 to June 2004, January 2005 to January 2010 and no cogent reason was adduced for the non-remittance and referred the Court to section 11 of the Pension Reform Act 2004. He argued that the evidence of the Defendant’s sole witness is hearsay evidence because he joined the Defendant in 2012 and did not explain the source of his information in compliance with the Evidence Act. It was submitted that in the matter of taking evidence be it oral or written, the deposition of witnesses is part of evidence and the law of evidence cannot be swept aside or ignored and referred to ACN v. Nyako&Ors. [2013] All FWLR 424. The Court was urged to expunge his evidence. It was further submitted that paragraphs 4 to 21 of the statement of facts are unchallenged and that general traverse is not sufficient to deny specific allegations of facts; Law and Practice of the National Industrial Court, page 125 by Bamidele Aturu and Onah v. NLC [2013] 33 NLLR [pt.94] 104 were cited in support. He urged the Court to accept the Claimant’s evidence as correct and exercise its’ discretion in favour of the Claimant and grant his reliefs as claimed because the Defendant’s act is unreasonable, mala fide, unjustifiable and absolutely unwarranted and referred to Omenka v. Morrison [2000] 13 NWLR [pt.683] 147 and Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi [1978)] 2 SC 79. On the burden of proof, he submitted that a civil case is decided on balance of probabilities and referred to Mogaji v. Madam RabiatuOdofin&Ors. [1978] 3 SC 91-98 on definition of balance of probabilities. In determining which evidence is heavier, he argued, the Court will naturally have regard to the following: whether the evidence is admissible; whether it is relevant; whether it is credible; whether it is conclusive; whether it is more probable than that given by the other party and whether it is free from contradictions. On issue two, learned Counsel explained that it is common ground that the Claimant was employed, worked with the Defendant for about 16 years and resigned his appointment in October 2015. Continuing, he explained that the Defendant in exhibit 3 alluded to the fact that the Claimant’s pay off and other benefits were being worked on and he would be contacted in due course. He referred to section 20 of the Evidence Act 2011 on admission. He argued that it is the custom of the Defendant to pay off its staff who voluntarily resigns his appointment depending on the number of years of service and this practice is known to the entire staff and relied on exhibit 3 in proof of this custom.He contended that a worker is entitled to his wages and facts admitted require no proof in any civil proceeding, and relied on section 123 of the Evidence Act, 2011 and Godwin Oghwe v. Zapata Marine Services [Nig.] Ltd. [1976] 6 ECSLR 268 where the Court relied on proof of an “accepted practice of the company known to the workmen”. It was submitted that the right of a worker to pay-off and other benefits is automatically incorporated into the contract of employment, whether express or not, as long as the worker is not found wanting in his duties. It was further submitted that a Court of law is not competent to resolve conflicting affidavit evidence without calling oral evidence, but where the Court has enough documentary evidence at its disposal, it can suo motu resolve conflicting affidavit evidence by resorting to documentary evidence. Exhibit 3 is the documentary evidence necessary to resolve conflicting affidavit evidence, he added and referred to Magnusson v. Koiki [1991] 4 NWLR [pt.183] 119 andEzegbu v. F.A.T.B. Ltd [1992] 1 NWLR [pt.220] 699. On the claim for general damages, he submitted that a party is entitled to damages for wrong suffered. The damages to be awarded as general damages for a wrong suffered are subject to the discretion of the Court and referred to Nigeria Breweries Plc v. Balogun [2014] 45 NLLR [pt.143] 220 and urged the Court to enter judgment in favour of the Claimant. By way of reply on points of law, learned Counsel for the Defendant contended that Claimant’s argument that its witness evidence is hearsay is misconceived and referred to Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. [1985] 7 SC 1. She argued that parties are bound by the terms of their contract and the only benefits the Claimant is entitled to are those provided for in the contract of service and relied on Ishero v. Julius Berger Nigeria Plc [2008] 6 NWLR [pt.1084] 582 at 609. Finally, she submitted that the Claimant should succeed on the strength of his case and not on the weakness of the defence and referred to BI Communication Nigeria Ltd. v. Kanebi [2014] 49 NLLR [pt.163] 543.

 

  1. I have reviewed the issues for determination formulated by both parties in their final written addresses and I do not think all of them can be taken together. The fundamental issue that calls for determination in this case is whether, having regard to the totality of the evidence, the Claimant is entitled to judgment? Thelaw is fairly settled that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist,see sections 131[1] and 133[1] of the Evidence Act 2011 and the cases of George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [2018] 7 SC [pt.111] 164 at 212 and Chemiron International Limited v. StabiliniVisinoni Limited [2018] 17 NWLR [pt. 1647] 62 at 78-79.

The burden is therefore on the Claimant to adduce prima facie evidence in support of his case. Where a prima facie case is made out, the burden shifts to the Defendant to adduce counter evidence to sustain its defence. Where the Claimant is unable to make out a prima facie case, then there will be nothing for the Defendant to rebut and the case will be dismissed as not having been proved. See Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [supra]. The Claimant’s claimscan be broken down into four sub-claims: one is a claim for arrears of salary; second is a claim for end of prospects pay-off and the third is non-remittance of statutory deductions from the Claimant’s salary. The fourth is an ancillary claim for general damages and cost of the action. I intend to treat theseclaims in this order. Parties arein agreement that the Claimant is owed salaries. The point of disagreement is with respect to the number of months. While the Claimant averred that he is owed salaries for nine months in the sum of N284, 772.64, the Defendant admitted owing the Claimant salaries for eight months in the sum of N264, 772.64, see exhibit 6 and paragraphs 12 and 20[a] of the statement of defence. Facts admitted require no further proof, see section 123 of the Evidence Act, 2011 and Adeokin Records & Anor. v. Musical Copyright Society of Nigeria [Ltd/Gte] [2018] 7 SC [pt.11] 40 at 54. The Claimant did not dispute this figure and did not proffer any evidence in proof of the balance of N20, 000, see paragraph 14 of the statement of facts and paragraph 7 of Claimant’s reply to statement of defence.I therefore accept the evidence of the Defendant on the arrears of salaryand hold that the sum of N264, 772.64 is due and owed to the Claimant as arrears of salaries.

 

  1. The next is his claim for end of prospects pay-off for 10 prospects in the aggregate sum of N5, 228,564.20. The evidence in proof of this claim is in paragraphs 9, 11, 18, 19 and 20 of the Claimant’s statement on oath [which is a reproduction of paragraphs 8, 10, 17, 18 and 19 of the statement of facts] and exhibits 1,2, 3, 10 and 14. For clarity, paragraphs 9, 11, 18 and 19 are reproduced below.

 

“9.    That through my resignation letter, I particularly informed the Defendant to make available to me, my salary arrears; other severance benefits that must have accrued to me over the years; my pension remittance advice and Tax Clearance Certificate for the past fifteen [15] years.”

 

“11.  That one Mr. Kolawole Agbaje, the Personnel Manager in the Defendant’s organization vide e-mail on 10th day of November 2015 wrote to me to acknowledge the receipt of my resignation letter and further stated therein that my pay off and other benefits are being worked on and I shall be contacted in due course. The e-mail correspondence dated 10th November 2015 and other relevant e-mail correspondences in respect of this subject matter shall be relied upon as exhibit in this suit.”

 

“18.  That throughout my appointment as the Community Affair Manager with the Defendant from year 2000 to 2007, I was entitled to End of Prospect Pay off for six [6] prospect at the rate of 25% annual daily pay, which is calculated by [Claimant’s daily pay, multiply by 30 days divided 25%, multiply by 12 months]. The Defendant is yet to pay the end of prospect pay off accruable to me.”

 

“19.  That throughout my appointment as the Community Affair Manager with the Defendant from year 2008 to 2015, I was entitled to End of Prospect Pay off for four [4] prospect at the rate of 25% annual daily pay, which is calculated by [Claimant’s daily pay, multiply by 30 days divided 25%, multiply by 12 months]. The Defendant is yet to pay the end of prospect pay off accruable to me.”

 

Let me quickly observe that the “other relevant e-mail correspondences in respect of this subject matter” referred to in paragraph 11 of the Claimant’s statement on oath were not produced in evidence. Exhibit 1 is the Claimant’s letter of employment as contract staff, which position he held from 2000 to 2013 when he was given permanent employment and made Relief Community Affair Manager by letter dated 14th February 2013, exhibit 2. Paragraph 3 of exhibit 1 clearly states “As previously discussed with you, our service contracts do not attract any terminal benefits, paid leaves or per diems. All these have been taken into consideration in arriving at the contract fee.” Exhibit 2 did not specify any terms. Article 18 of exhibit 14, the senior staff conditions of service, provides for notice period for resignation or termination of appointment. Article 19 deals with pension and provides:

 

“When a staff leaves company service, either by resignation or termination or redundancy, the applicable terminal benefit entitlement of staff shall be in accordance with the provisions of the Pensions Reform Act 2004 which the company and staff shall begin implementing upon signing this [sic] conditions of service. There shall be no other terminal benefit except as provided under these conditions of service.” [underlining mine]

 

Pension Reform Act 2004 has been repealed and replaced with Pension Reform Act 2014. Section 7[2] of the Act provides that:

 

“Where an employee voluntarily retires, disengages or is disengaged from employment as provided for under section 16[2] and [5] of this Act, the employee may with the approval of the Commission, withdraw an amount of money not exceeding 25 percent of the total amount credited to his retirement savings account, provided that such withdrawals shall only be made after four months of such retirement or cessation of employment and the employee does not secure another employment.”

 

The Defendant denied paragraphs 17 and 18 of the statement of facts in paragraph 16 of the statement of defence and for ease of reference it is set out here:

 

“16.  The Defendant vehemently denies paragraphs 17 and 18 of the statement of facts and put [sic] the Claimant to the strictest proof of same. The Defendant is not under any obligation to pay any prospect pay off or any such allowances to the Claimant.”

 

This averment is repeated in paragraph 17 of the Defendant’s witness statement on oath. In paragraph 8 of his reply to the statement of defence, the Claimant merely averred that:

 

“8.    Contrary to facts stated in paragraphs 16 and 17 of the Statement of Defence, the Defendant has deliberately failed to comply with all relevant statutes concerning the employment of the Claimant including remitting pension deductions and contribution. The Claimant shall vehemently rely on his letter of resignation dated 15th October 2015 and the e-mail from the Defendant dated 10th November 2015.”

 

Clearly, the onus of proof of this claim rests on the Claimant. The Defendant denied the existence of such benefit and put him to the strictest proof. The Claimant’s evidence in proof of this claim, apart from hisipsidixit in paragraphs 18 and 19 of his statement on oath, is exhibits 3 and 10. What are the facts in exhibits 3 and 10 relevant to this consideration? Paragraph 3 of exhibit 3 states “As requested, your payoff and other benefits are being worked on and you shall be contacted in due course about them.” Earlier, the Claimant had written in paragraph 3 of exhibit 10, “Meanwhile, I wish to remind you that I earnestly await my salary arrears and other severance benefit that must have accrued to me over the years.” The question is, are these facts sufficient proof of this claim? I do not think so. First, it is axiomatic that the contract of service is the bedrock upon which an aggrieved employee must found his case; he succeeds or fails upon the terms or conditions contained therein. A Court of law cannot go outside the terms mutually agreed in deciding the rights and obligations of the parties, see A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154.The documents setting out the terms and conditions of the Claimant’s employment are exhibits 1, 2 and 14. Exhibits 1 and 2 are his letters of employment and exhibit 14 is the senior staff conditions of service. While exhibit 1 clearly states that terminal benefit is not payable to the Claimant, exhibit 2 is silent on the issue of terminal benefit. Up till 14th February 2013, the Claimant was a contract staff and operated under exhibit 1 and thus cannot lay claim to any terminal benefit or end of prospects pay-off which has been expressly excluded from his contract of employment. Paragraph 3 of exhibit 1 puts this issue beyond disputation. It provides: “As previously discussed with you, our service contracts do not attract any terminal benefits, paid leaves or per diems. All these have been taken into consideration in arriving at the contract fee.” It is settled law that once a document is tendered and accepted in evidence, no extrinsic evidence is admissible to contradict the contents of that document except in circumstances spelt out in section 128 of the Evidence Act, 2011. See African Petroleum Plc & Anor. v. Otunba Johnson Olaniyan Farayola [2009] LPELR-8902[CA] 15-16 and Emmanuel Olamide Larmie v. Data Processing Maintenance & Services Ltd. [2005] LPELR-1756[SC] 17.It is an elementary rule of interpretation of documentary evidence that if a document has one distinct meaning in reference to the circumstances of the case, it should be construed accordingly, and evidence to show that the author intended to express some other meaning is not admissible, see section 129[6] of the Evidence Act, 2011.Accordingly, the claim for end of prospects pay off while the Claimant was a contract staff is unfounded and must be discountenanced. Upon issuance of exhibit 2 on 14th February 2013, the Claimant became a full staff of the Defendant with attendant benefits. The terms of his employment from this point were regulated by exhibits 2 and 14. Nowhere in exhibits 2 and 14 is provision made for end of prospects pay off. The only provision relevant to this issue is Article 19 of exhibit 14 which has been reproduced above. It provides that when a staff leaves company service, either by resignation or termination or redundancy, the applicable terminal benefit entitlement of staff shall be in accordance with the provisions of the Pensions Reform Act 2004. There shall be no other terminal benefit except as provided under these conditions of service. No other provision was made for terminal benefits in exhibit 14 or any of the exhibits before this Court. The Claimant relied heavily on exhibit 3. I have critically examined exhibit 3, it was written after exhibit 11. Exhibit 11 is the Defendant’s acceptance of the Claimant’s resignation, exhibit 10. Exhibit 11 was signed by the Defendant’s Managing Director, who by section 64[b] of the Companies and Allied Matters Act, 1990 as amended, has the authority of the Board of Directors to bind the Defendant. Exhibit 11 made no admissions or promises. Exhibit 3 apart from being a private communication of a staff does not have any semblance of authorization by the Defendant. Mr. Kolawole Agbaje who wrote exhibit 3 must be shown to have the authority of the Defendant before exhibit 3 can bind the Defendant. Mr. Kolawole Agbaje was not called as a witness and there is nothing before me to show that he is not accessible. Section 66[1][a] of the Companies and Allied Matters Act, 1990 as amended provides:

 

“[1]   Except as provided in section 65 of this Act, the acts of any officer or agent of a company shall not be deemed to be the acts of the company, unless –

 

[a]    the company, acting through its members in general meeting, board of directors, or managing director, shall have expressly or impliedly authorized such officer or agent to act in the matter;”

 

There is no evidence of such authorization whether expressly or by implication. Section 65 of the Companies and Allied Matters Act, 1990 as amended provides, inter alia:

 

“Any act of the members in general meeting, the board of directors, or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civilly liable therefor to the same extent as if it were a natural person:”

 

Article 3 of exhibit 14 clearly limits the ability of employees to bind the company. It provides:

 

“The staff recognizes that the business of managing the company and its operations is vested solely in the company and nothing in these conditions of service shall be interpreted as reducing this responsibility and it is further understood that such rights of the company include but is not limited to the following:

 

[1]    Company’s management functions such as decisions on the selection, direction, training, advancement, transfer and discipline of any staff;

 

[2]    The determination of the method and manner of operations;

 

[3]    Issues pertaining to introduction of operations and technical improvements;

 

[4]    The decision to modify, extend, curtail or cease operations; and any other decisions,

 

[5]    Any other decisions which might normally be considered as within the jurisdiction of company management.”

 

Flowing from the clear provisions of exhibit 14 and section 66[1][a] of the Companies and Allied Matters Act, 1990 as amended, I come to the conclusion that Mr. Kolawole Agbaje, author of exhibit 3, did not have the authority to bind the Defendant and exhibit 3 is not binding on the Defendant as to create a basis for the claim for end of prospects pay off. Assuming I am wrong, the next question is, can exhibit 3 vary the express terms of the Claimant’s contract of employment? I do not think so. Earlier in this judgment I posited that the Claimant’s employment is regulated by exhibits 1, 2 and 14. None of these documents makes provision for end of prospects pay off. The Claimant has not tendered any other document giving him the right to claim under this head.He relies solely on exhibit 3 in proof of this claim. It is trite that where there is a dispute between parties to a written agreement on any point, the only reliable evidence to resolve the dispute is the written contract. The reason being that where the intention of parties to a contract are clearly expressed in a document or documents, the Court cannot go outside the document[s] in search of another documentnot forming part of the intention of the parties. See Union Bank of Nigeria Plc v. Alhaji Adams Ajabule& Anor. [2011] LPELR-8239[SC] 39 and Christaben Group Ltd. & Anor. v. Mr. A. I. Oni [2008] LPELR-5157[CA] 29. Secondly, it is impossible to vary the terms of an expired contract. The Claimant’s contract of employment was terminated upon receipt of his letter of resignation by the Defendant on 15th October 2015, see The West African Examinations Council v. Felix IwarueOshionebo [2006] 12 NWLR [pt.994] 258 at 272 and Chief Akindele Ojo Sunday v. Oyedele Samuel Olugbenga & 4Ors. [2008] LPELR-4995[CA] 10-11. Having expired, exhibit 3 is incapable of resurrecting a dead contract. More fundamentally, it is elementary law that where a contract is in writing, any agreement which seeks to vary the original agreement must be in writing duly signed by the parties. See F. K. Construction Limited & Anor. v. Nigeria Deposit Insurance Corporation & Anor. [2013] LPELR-20827[CA] 41. There is no such agreement in writing, but even if exhibit 3 is to be regarded as an agreement in writing, the Claimant has not furnished any consideration for the variation, seeAugustine Abba v. Shell Petroleum Development Company of Nigeria Limited [2013] LPELR-20338[SC] 33. Finally, it is noteworthy that all correspondence between the Defendant and the Claimant while in the Defendant’s employment were signed by either the Managing Director or Deputy Managing Director, see exhibits 1, 2, 8, 9, 11 and 13. It is therefore incongruous that a letter varying an important term of the Claimant’s contract of employment would be signed by a Personnel Manager. In the circumstance, it is my considered opinionand I so hold, that exhibit 3 does not operate to vary the Claimant’s contract of employment. The Claimant argued that exhibit 3 contains a fact which this Court should take judicial notice of and referred to section 122 of the Evidence Act 2011 and the case of Godwin Oghwe v. Zapata Marine Services [Nig.] Ltd. [1976] 6 ECSLR 268. Section 122[2] of the Evidence Act 2011 provides for facts which the Court should take judicial notice of and the fact contained in exhibit 3 is not one of them. Section 122[2][l] of the Act provides that the Court may take judicial notice of all general customs, rules and principles which have been held to have the force of law in any Court established by or under the Constitution and all customs which have been duly certified to and recorded in any such court. The Claimant did not give evidence of any custom in the Defendant’s industry or the course of dealing between the Defendant and its employees on end of prospects pay off. The question of custom only arose in the submission of learned Counsel. A custom could be proved or sustained if it is shown by facts given in evidence or judicially noticed, see Mrs. S. A. Kareem &Ors. v. David O. Ogunde& Anor. [1972] LPELR-1663[SC] 13. There is no such evidence and there is nothing before me on the basis of which I can take judicial notice of this custom. The case of Godwin Oghwe v. Zapata Marine Services [Nig.] Ltd. [supra] relied on by the Claimant did not decide that end of prospects pay-off is a custom in the Defendant’s industry. Section 122[4] of the Evidence Act, 2011 provides that if the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces such book or document, as it may consider necessary to enable it to do so. TheClaimant did not provide any document to substantiate this custom or practice of the Defendant. He did not call any witness whether from the Defendant or any other oil service company to prove this practice. Theresult is that there is no proof of the claim for end of prospects pay off; and it is accordingly dismissed.

 

  1. This leads meto the claim for non-remittance of statutory deductions from the Claimant’s salary.The Claimant’s evidence is in paragraphs 9, 12, 14, 16 and 22 of his statement on oath and exhibit 5, a-e. Exhibit 5, a-e is selected Claimant’s pay advice over a period from 2007 to 2014 showing various deductions from the Claimant’s salary. From exhibit 5, a-e, the Defendant deducted various sums of money from the Claimant’s monthly salary for P.A.Y.E., N.H.F and PENFUND. The Defendantdid not deny making these deductions but averred in paragraphs 15 and 20[c] and [d] of its statement of defence that it remitted the sums deducted from the Claimant’s salary to the appropriate government agencies. It is trite law that he who asserts the affirmative of any fact must prove, see section 136 of the Evidence Act 2011 and the cases of O. O. Imana v. Madam Jarin Robinson [1979] 3-4 SC 1 at 6 and Niger Delta Development Commission v. Nigeria Liquified Natural Gas Limited [2010] LPELR-4596[CA] 86-87.The Defendant made the deductions from the Claimant’s salary, made the remittance and keeps the records. So, it should explain to the Court what it did. The Claimant cannot be required to do this. Thus, the burden of proving that the sums deducted from the Claimant’s monthly salary and remittances made rests squarely on the Defendant, see section 136[2] of the Evidence Act, 2011 which provides:

 

“In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”

 

In discharging this burden, the Defendant tendered exhibits DW1A to DW1G. I have reviewed exhibits DW1A to DW1Gand observe that the Defendant made partial remittanceof monies deducted from the Claimant’s monthly salary. First, the Defendant paid the Claimant’s pensionsfor September to December 2007, January to December 2008, January to March 2009, January and February 2011, May, June, August to December 2012 and January to December 2013. There is no evidence of remittance for April to December 2009, January to December 2010, March to December 2011, January to April and July 2012 and year 2014, a period of about 48months, see exhibits DW1A to DW1D.Secondly, National Housing Fund was remitted for only 19 months: January to March, May to July, September to December 2012 [10 months]; and January to September 2013 [9 months], see exhibits DW1E and DW1F.Thirdly, although there is evidence of payment of P.A.Y.E. for 2000, 2002, February, March, November and December 2010, January to March, October to December 2011, an unspecified month in 2011; January, March, May to August, October and December 2012; February 2013; there was no pay roll attached to these payments to indicate what was paid for each staff, see exhibit DW1G. In addition, the only payroll attached to exhibit DW1G relates to withholding tax deductions from the Claimant’s salary for January to March 2004. There is no other evidence to show how much was deducted as withholding tax and how much was paid on behalf of the Claimant. There is equally no evidence of any deductionsor remittances of pension, National Housing Fund and P.A.Y.E for 2015. From paragraph 24[v] of the Claimant’s statement on oath and exhibit 6 it is clear that the Claimant’s salary for February and March 2015 was reduced to N72, 386.32 per month and subsequently to N20,000 per month from April to September 2015. The Claimant’s testimony in paragraph 22 of his statement on oath is not sufficient proof of deductions for 2015.There is no corroborating documentary evidence. Accordingly, I find as a fact that while deductions were made regularly for pension, National Housing Fund and P.A.Y.E, remittances were not regular. The Claimant is owed several months of unremitted pensions, National Housing Fund and P.A.Y.E. These deductions are not monies due to the Defendant and cannot be retained by the Defendant. Section 11[3], [6] and [7] of the Pension Reform Act, 2014 provides:

“[3]   The Employer shall –

 

[a]    deduct at source the monthly contribution of the employee; and

 

[b]    not later than 7 working days from the day the employee is paid his salary, remit an amount comprising the employee’s contribution under paragraph [a] of this subsection and the employer’s contribution to the Pension Fund Custodian specified by the Pension Fund Administrator of the employee.

 

“[6]   An employer who fails to deduct or remit the contributions within the time stipulated in subsection [3][b] of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission.”

 

“[7]   The penalty referred to in subsection [6] of this section shall not be less than 2 per cent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owed to the employee’s retirement savings account, as the case may be.”

 

In addition, section 40[2] of the Personal Income Tax [Amendment] Act, 2011 provides that “A person in whose name a taxable person is chargeable to tax shall be answerable for all matters within his competence which are required to be done by virtue of this section for the assessment of the income of the taxable person and payment of any tax charged thereon.” Section 74[1] of the Act imposes a penalty for failure to remit deducted tax. Therefore, the Defendant has no right to keep back monies deducted from the Claimant’s monthly salaries. In Chemical and Non-metallic Products Senior Staff Association v. Benue Cement Company Plc [2005] 2 NLLR [pt.6] 446 at 470, this Court held:

 

“The law treats the issue of salaries with such sacredness that except expressly permitted by law or the worker, no employer is permitted to make any deduction from a worker’s salary. See section 5 of the Labour Act Cap 198 LFN 1990. So, when deductions are enjoined for a purpose, it is only fair that that purpose is met.”

 

It is sad when an employer statutorily authorized to make deductions from an employee’s salary refuses to apply the deductions to meet the intended purposes. At the end of the day, it is the employee that stands to lose and he can, therefore, justifiably complain of non-remittance. To this extent, the Claimant is entitled, on demand, to evidence of remittance of statutory deductions made on his salary and to tax clearance certificate. I therefore find in favour of the Claimant and direct the Defendant to compute and paythe Claimant’s unremitted pension and National Housing Fund deductions to his retirement savings account and National Housing Fund account respectively, the P.A.Y.E. deductions shall be remitted to the relevant State governments where the Claimant worked and a tax clearance certificate obtained for each year of remittance. The cost of procuring the tax clearance certificate shall be borne by the Defendant.

 

  1. This leads me to the ancillary claim for N2, 000,000 general damages and cost of the action, Claimant’s reliefs [b] and [d]. To substantiate the claim for general damages, the Claimant tendered his Solicitors’ debit note for N750, 000, exhibit 4. The Defendant impugned the claim for damages and submitted that to be entitled to damages, a party must suffer a wrong and referred to Nigeria Breweries Plc v. Balogun [2014] 45 NLLR [pt.143] 220. The Defendant contended that the Claimant has not suffered any wrong and as a result he is not entitled to award of damages. It was also argued that the Claimant did not prove payment of the legal fee and so not entitled to the sum of N750, 000. The cases of Fadaka v. Air Nigeria Development Limited [2014] 51 NLLR [pt.171] 533, Ihekwoaba v. ACB Ltd. [1998] 10 NWLR [pt.571] at 610-611 and Christopher Nwanji v. Coastal Services Nig. Limited [2004] 11 NWLR [pt.885] 552 at 569 were cited in support. In response, learned Counsel for the Claimant, in paragraph 4.1.e page 15 of the Claimant’s final written address submitted that the Claimantis entitled to general damages on the strength of the Defendant’s refusal to pay the Claimant’s arrears of salary and other benefits more than three years after his resignation.While it has been posited in Simon UzodinmaIhekwoaba& Anor. v. African Continental Bank Ltd. & 4Ors. [1998] 10 NWLR [pt.571] 590 at 610-611that the issue of damages as an aspect of Solicitor’s fees is not one that lends itself to support in this country, the circumstances of this case lends itself to award of damages. First, exhibit 4 was tendered without objection and the Claimant was not cross-examined on whether or not the amount claimed on the debit note had been paid. The Claimant averred in paragraph 23 of his statement on oath:

 

“That due to the deliberate refusal and gross unwillingness to pay me on the part of the Defendant, I have been forced to incur unnecessary expenses by retaining the services of Solicitors, the D’Alpha& Knight Solicitors and for the prosecution of this case, my Solicitors have raised a bill of N750, 000 and the said bill shall be relied on as exhibit in this suit.”

 

This averment is a reproduction of paragraph 22 of the statement of facts which was not controverted. The Defendant merely stated in paragraph 20 of its statement of defence, and I quote:

 

“In answer to paragraph 22 of the statement of facts the Defendant states that it is not liable to the Claimant for the cost of this suit.”

 

The Defendant admitted its indebtedness to the Claimant for arrears of salaries and its failure to remit some statutory deductions.In spite of the admission and assurances in exhibit 6, the Defendant refused to pay the arrears of salary and remit the statutory deductions. An employee’s salary is not a gift but an entitlement. The pension, National Housing Fund and P.A.Y.E. deductions are Claimant’s monies in the Defendant’s custody and the Defendant’s refusal to pay the arrears of salary and remit the statutory deductions several years after the Claimant’s resignation is unjustifiable and wrongfuland makes it liable in damages.Where there is a wrong there must be a remedy, see Madam AdunolaAdejumo& 2Ors. v. Mr. OludayoOlawaiye [2014] LPELR-22997[SC] at page 28 and Michael Ogbolosingha& Anor. v. Bayelsa State Independent Electoral Commission &Ors. [2015] LPELR-24353[SC] at page 43. The Claimant was subjected to much stress and expense to get the Defendant to perform its contractual and statutory duty. Consequently, I hold that the Claimant is entitled to award of general damages. General damages are within the discretion of the Court to grant. They 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 Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at page 54. Accordingly, I award the sum of N200, 000 general damages against the Defendant. On cost of the action, costs normally follow the event. A successful party in any event is entitled to his costs, see MoshoodAdelakun v. NurudeenOruku [2006] LPELR-7681[CA] 28. Order 55 rule 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 provides:

 

“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.”

 

Taking into consideration the conduct of the Defendant, exhibits 4, 6, 7, 12 and 12Aand the processes filed by the Claimant cost of N75, 000 [seventy five thousand naira] is awarded in favour of the Claimant against the Defendant. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] 34-35.

 

  1. Before I conclude, I would like to comment on some issues raised by learned Counsel for the parties. Contrary to the submission of learned Counsel in paragraph 4.0 [c] and [d] of the Claimant’s final written address, entitlement to end of prospects pay off or severance benefit is not dependent on the employee’s hard work or absence of queries, but on contract. It is also not correct, as urged by learned Counsel for the Claimant, that the right of a worker to pay off and other benefits is automatically incorporated into the contract of employment. The right to terminal benefits is a function of agreement by the parties. Where there is no agreement, terminal benefit is not payable. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] 12 NWLR [pt.995] 518 at 542. Where the conditions of service did not provide for end of prospects pay off or severance benefit, and there is no evidence of customs and practice in the industry, as in this case, it will not be granted. On whether the evidence of the Defendant’s witness is hearsay evidence, the law is trite that evidence acquired by a witness in the course of his employment is not only relevant but admissible and will not be discountenanced or rejected as hearsay. An employee of the Defendant conversant with the facts like the legal officer can give evidence in this matter notwithstanding that he was employed in 2012, several years after the Claimant had been employed. See Kate Enterprises Limited v. Daewoo Nigeria Limited [1985] 7 SC 1 at 14-15, Alhaji Aminu Ishola v. SocieteGenerale Bank [Nig.] Limited [1997] LPELR-1547[SC] 25 and Standard Trust Bank Ltd. v. Interdrill Nigeria Ltd. & Anor. [2006] LPELR-9848[CA] 27. Further, the submission of learned Counsel for the Claimant that the documents tendered as exhibits DW1A to DW1G were not pleaded is misconceived. The facts relating to exhibits DW1A to DW1G were pleaded in paragraphs 15 and 20c of the statement of defence. It is the law that parties are to plead facts and not evidence, see OmacOlis Nigeria Limited &Ors. v. Elder Samson OlusholaEgbadeyi& Anor. [2014] LPELR-24112[CA] 28. In addition, exhibits DW1A to DW1G were tendered and admitted without objection, and no objection can be taken about their admissibility now, see Kate Enterprises Limited v. Daewoo Nigeria Limited [supra] at page 12.Finally, contrary to the Defendant’s submissionin paragraph 4.1.1 page 7 of its final written address, there is no presumption of law that failure of the Claimant to produce documents pursuant to a notice to produceimplies that he is concealing facts. A party served with a notice to produce is not under any obligation to produce the document. The service of a notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question, see Comrade Iduh Lawrence Onah v. Nigeria Labour Congress & Anor.  [2013] 33 NLLR [pt.94] 104 at 159-160.

 

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

 

  1. The Defendant shall pay to the Claimant the sum N264, 772.64 being his outstanding salary.

 

  1. The Defendant shallcompute and pay into the Claimant’s pension and National Housing Fund accounts all unremitted pension and National Housing Fund deductions and its contributions within thirty [30] days from today.

 

  1. The Defendant shall pay all outstanding P.A.Y.E. deductions from the Claimant’s salary to the relevant State governments and process at its cost the Claimant’s tax clearance certificates.

 

  1. The Defendant shall pay to the Claimant general damages in the sum of N200, 000.00 [two hundred thousand naira].

 

  1. Cost of N75, 000 [seventy five thousand naira] is awarded in favour of the Claimant against the Defendant.

 

  1. The claims for end of prospects pay off and withholding tax are hereby dismissed.

 

  1. This judgment shall be implemented within 30 [thirty] days from today, failing which the monetary awards shall attract interest at the rate of 10% per annum from 2ndJune 2019 until it is fully liquidated.

 

Judgement is entered accordingly.

 

 

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

2/5/19

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