IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON.JUSTICE K.I.AMADI.
Dated: September 26, 2018 SUIT NO: NICN/LA/24/2015
BETWEEN:
MR TAIWO AYILARA – CLAIMANT
AND
PLYCON NIGERIA LIMITED – DEFENDANT
Represntations
Temidayo Adeyemi with F. Abimbola,B. Lasabi andJ.Udochi for the claimant
Francis Akinlotan withI.Nwoye andL.Sorinola for the defendant
JUDGMENT.
INTRODUCTION
The Claimant commenced this action by a General Form of Complaint, Statement of Facts and frontloaded documents dated 9th day of February, 2015 and filed on the 10th day of February, 2015, seeking the following reliefs against the Defendant in this Suit:
(a) The sum of N467,825.38 (Four Hundred and Sixty-Seven Thousand, Eight Hundred and Twenty-five Naira, Thirty-Eight Kobo) being the aggregation of the sums wrongfully withheld from the Claimant upon the wrongful termination of his employment by the Defendant on 23rd January 2012.
(b) AN ORDER of exemplary and punitive damages against the Defendant and in favour of the Claimant.
(c) AN ORDER directing the Defendant to pay to the Claimant the cost of prosecuting this Suit in the sum of N190,000.00. In defence, the Defendant filed a statement of Defence dated 12th October, 2015. The Defendant thereafter filed a Reply to the statement of defence dated 2nd March, 2017.
Trial commenced on the 31st May, 2017, the Claimant testified for himself and tendered series of documents which were admitted and marked accordingly. He was cross-examined after which he closed his case.
The Defendant called two witnesses in the persons of Ms. Rose Ejeh and Ms. Helen Odigie through whom documents were tendered and they were admitted and marked accordingly. The Defendant likewise closed its case and parties filed their final written addresses.
The facts of this case according to the Claimant are that he was employed by the Defendant as a security guard from 2009 until his wrongful dismissal by the Defendant on 23rd January, 2012 on grounds of unruly behavior without ever being given opportunity to be heard. And that upon his wrongful termination his outstanding benefits were denied him by the defendant including one month salary in lieu of notice.
The Defendant however, stated that the Claimant’s termination was in accordance with the laid down process as the said Claimant carried assault on a staff of the Defendant upon which disciplinary committee was constituted which called Claimant and he admitted that he committed the offence against Ms. Rose Ejeh but pleaded for forgiveness. That the Claimant upon dismissal was called to collect his outstanding benefits but he refused.
In his final written address, Counsel for the Defendant formulated four issues for determination thus:
(i) Whether the Claimant, while in the employment of Defendant committed acts of indiscipline, unruly behavior and unlawful assault- beating of Ms. Rose Ejeh a staff of the Defendant.
(ii) Whether the acts of the Defendant, to wit: acts of in-discipline, unruly behavior and unlawful assault and beating of Ms. Rose Ejeh amount to gross misconduct and a breach of the Defendant’s Employee Relation Disciplinary Code, thereby making him liable to dismissal.
(iii) Whether Claimant is entitled to notice or salary in lieu of notice, in light of his gross misconduct and breach of the Defendant’s Employee Relations Disciplinary Code.
(iv) Whether the Claimant is entitled to the sum of N467, 825.38, particularized as follows:
- Gratuity N112,278.79
- Unpaid leave allowances N105,000.00
- Unpaid medical allowances N105,000.00
- One month salary in lieu of notice N41,584.74
- Outstanding leave allowance (6weeks) N62,377.11
- Unpaid salary for January, 2012 N41,584.74
In arguing issue one, counsel submitted that the Claimant did assault Ms. Rose Ejeh on 23rd January, 2012 which the Claimant admitted before the disciplinary panel. In view of that he was found guilty and dismissed. That before then the claimant has been issued a warning letter as in Exhibit DD because of his unethical conduct.
On issue (ii) Counsel submitted that the Claimant was liable for dismissal for his unruly conduct, unlawful assault and beating of Ms. Rose Ejeh which act breached the Defendant’s Employee Relation Disciplinary Code. Counsel referred to the case of UBN (Nig) Ltd. v Ogboh (1995) 2 NWLR (Pt. 380) 647 @669 paras F-G as to the meaning of gross misconduct.
Further, counsel argued that since the Claimant was furnished the opportunity to clear himself which he did and accepted guilty occasioning the panel’s recommendation for the punitive measure which the Defendant accepted and acted upon, the termination of the Claimant’s employment was proper and valid.
On issue three, Counsel submitted that the Claimant is not entitled to notice or salary in lieu thereof. Counsel argued that since the ground for the determination of Claimant’s employment is on ground of gross misconduct which amounts to the breach of Defendants Employment Relations Disciplinary Code. The said act Counsel submitted; struck at the root of the relationship to which the Defendant can repudiate the contract, consequently the Claimant is no longer entitled to a notice or one month’s salary in lieu of notice. Counsel referred the Court to the case of Alhaji Rasaki Abiola Ekunola v CBN & Anor (2013) NWLR (pt 1377) @ 268-269 where the S.C held that:
“one basic principle of master and servant relationship is that an employer can summarily dismiss/terminate the employment of his servant for gross misconduct where his dismissal is founded on allegation of gross misconduct the appellant is not entitled to any notice or salary in lieu of notice…”.
Counsel urged the Court to hold that the Claimant having committed gross misconduct is not entitled to a notice or salary in lieu of notice.
On issue four, Counsel submitted that the Claimant’s claim for the sum of N467, 825.38 as an aggregation of the sum wrongfully held of him by the Defendant upon his wrongful termination is unfounded. Counsel urged the court to dismiss this suit.
The Claimant in his own final written address raised two issues for determination thus:
- Whether the Claimant’s employment was wrongfully terminated.
- In the event that Issue I is answered in the affirmative, whether the Claimant is entitled to all the entitlements, amounts claimed and reliefs sought”.
In respect of issue 1, Counsel submitted that the Claimant’s Contract of Employment (Exhibit CA) has no provision for the termination of the Claimant’s employment; therefore the Labour Act CAP L1 LFN 2004 shall apply.
Counsel argued that the Claimant is a junior worker, that in section 91(1) of the Labour Act CAP L1 LFN 2004, a “worker” is defined as follows;
“worker” means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour…”
That in the case of Evans Bros (Nig.) Publishers Ltd. v. Idaiye (2003) 13 NWLR (Pt. 838) p. 564, the court referred to the provision of the Labour Act in determining who a worker is under the Act, where that court held thus:.
“By virtue of section 91(1) of the Labour Act… “worker” means any person who has entered into or works under a contract with an employer, whether the contract is for a manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour…”
Counsel submitted that flowing from the above provision, it is evident that the Claimant is covered and protected by the Labour Act and by section 11 of the said Labour Act CAP L1 LFN 2004, the claimant is entitled to a notice of at least two weeks or salary in lieu of notice.
Continuing further counsel argued further that Claimant deposed in paragraph 6 of the Claimant’s Witness Deposition on Oath that:
“he was shocked to receive from the Defendant on January 23, 2012, a letter dated 20th January, 2012 under the hand of its Human Resources Manager, Abiola Oke, purporting to terminate the appointment of the Claimant with immediate effect on the ground that the Defendant believes that the Claimant had breached the terms of his contract of employment for the reason of unruly behaviour of assault and fighting on the company premises”
Counsel submitted that it is worthy of note that at no point did the Defendant give the Claimant notice, neither did the Defendant give the Claimant salary in lieu of notice and this is unjust and an unfair labour practice.
Apart from the foregoing, counsel referred to the case of Comrade Odah v. Nigeria Labour Congress & Anor (2013) 33 NLLR 104 @ 169 where Hon Justice B.A. Adejumo, (PNICN), held that:
It follows that Claimant whose appointment was summarily determined without being called upon to make a representation on conduct considered inimical to the interest of the organization, could not have been said to have had fair hearing; and I so hold. Fair hearing connotes, amongst other things, that when a person is accused of any wrong doing, he must be afforded…
Counsel argued further also, that the letter of termination (Exhibit CD), was handed over to the Claimant on the 20th of January, 2012, purportedly terminating his employment effective from the 23rd of January, 2012, without prior notice about it. That the defence of unruly behaviour and assault of the 1st Defendant’s witness by the Claimant are all false, and unsubstantiated. That since the Claimant was not given any notice of termination and was not paid any salary in lieu of notice his employment was wrongfully terminated.
In respect of issue two, counsel submitted that the Claimant is entitled to all the entitlements, amount claimed and reliefs sought; in the sum of ₦467, 825.38 (Four Hundred and Sixty- Seven Thousand, Eight Hundred and Twenty- Five Naira, Thirty- Eight Kobo), which is the sum wrongfully withheld from him upon the wrongful termination of his employment on 23rd January 2012, counsel treated each item of claim seriatim and urged the court to grant the reliefs sought in this case.
COURT’S DECISION
I have read all the processes filed by the parties in this suit. I have equally reviewed the evidence led by them. The final written addresses of the parties including the reply on points of law of the defendant are hereby incorporated into this judgment and specific reference shall further be made to them where necessary. In my view issue 1 of the learned counsel for the claimant and issue iv as raised by the learned counsel for the defendant captured the issues in controversy in this suit, I therefore adopt them as mine, I shall consequently treat them in the resolution of this case as follow:
The first issue to be determined is whether the Claimant’s employment was wrongfully terminated.
The claimant was employed through exhibit CA. The said exhibit CA is silent on the issue of notice of termination. He was terminated through exhibit CD. The contents of the said exhibit CD are hereby reproduced:
20th January, 2012
Taiye Ayilara
10 Ereko Street,
Lagos Island,
Lagos.
Dear Taiye Ayilara,
TERMINATION OF APPOINTMENT
We write to inform you that your contract of employment with Plycon Nigeria Limited has been terminated effective today 23rd January, 2012.
We believe that you have breached the terms of your contract of employment in the following way:
- Unruly behavior, Assault and fighting on company premises.
You are therefore required to immediately hand over to the Human Resource Department all the Company property in your possession.
Yours Faithfully,
For: Plycon Limited
Abiola Oke
Human Resources
From the contents of this letter it is obvious that the claimant’s employment was terminated on the “believe” that he breached the terms of his employment for “Unruly behaviour-Assault and fighting on the company premises”
The law is settled that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court, see the case of Shell Petroleum Co. Ltd v Chief Victor Sunday Olanrewaju (2008) 18 NWLR (Part 1118) 1 at 19H to 20 A – B, and Olatunbosun v N.I.S.R. council (1988) 1 NSCC (1025) 1988 3 NWLR (Pt. 80) 25.
To prove the foregoing allegation the DW1 Miss Rose Ejeh; the alleged victim of the assault deposed in paragraphs 9 and 10 of her witness statement on oath thus:
9) That the claimant’s act of indiscipline and unruly behaviour of beating and assaulting me was the basis for the termination of his employment.
10) Further to paragraph 9 above, the claimant assaulted me and it took the intervention of other members of staff to rescue me, from the brutal assault occasioned on me by the claimant.
The DW1 further deposed to the fact that the defendant followed the laid down procedure in the employee handbook, the claimant was given an opportunity to defend himself before a panel set up for that purpose, which he did and he admitted the offence and was subsequently dismissed.
I have already noted that this DWI is the victim of the alleged assault, why was she economical with the details of the said assault on her, when was she assaulted? What provoked the assault? How was she assaulted that is to say; was she slapped, or given a head butt, or kicked or threatened? Who were members of the panel and when did they sit? Where is their report? And where is the employees’ handbook alluded to? All these questions were not answered by her account of the alleged assault.
Worse still, under cross examination, the witness denied any knowledge of the disciplinary panel that tried the claimant; Meaning that she did not appear before the said panel. The evidence of the DW2 is in line with that of the DW1 only that she gave the date of the alleged assault.
The claimant denied assaulting the DW1. He equally denied appearing before any panel.
It is trite that civil cases are decided on the preponderance of evidence and unless a plaintiff’s case is so patently incredible and unreasonable a trial court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates, see Wachukwu v. Owunwanne [2011] 14 NWLR (Pt. 1266) 1 at 36 – 37 G – C and Odofin & ors v. Mogaji & ors [1978] NSCC 275 at 277.
However, the law is firmly established that a party who alleges criminal malfeasance in a civil proceedings must prove it beyond reasonable doubt. See Akpunonu V Beakart (2000)3 NSCQR 186 at 191.
Assault, which can be a tort or a criminal act, is “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. It may also mean the act of putting another person in reasonable fear or apprehension of any immediate battery by means of an act amounting to an attempt or threat to commit battery.” See; First Bank of Nig. Plc. & Anor. V. Ernest G.A. Onukwugha (2005) 16 NWLR (Pt. 950) 120 at 152.
There are two primary defences of provocation and self defence against an accusation of assault. For the defence of provocation to avail an accused the following are to be established:
- a) there has to be grave and sudden provocation
- b) the act of the assault must have been done in the heat of passion before there was time for the passion to cool
- c) there must be retaliation not disproportionate to the provocation. When any or all these ingredients is or are missing, the defence of provocation will fail. SeeShalla v The State (2007) 18 NWLR (Pt. 1066) 40and Edoho v The State (2010) 14 NWLR (Pt.1214) 651.
From the authorities; evidence of wound or injury does not mean that the person wounded or injured was in fact assaulted. He may have initiated the assault or provoked the assault or the assault may have been in self defence.
Consequently, I find and hold that the defendant has failed to justify the termination of the claimant in this case based “Unruly behaviour-Assault and fighting on the company premises” as alleged. Since there is no dispute to the fact that the defendant did not serve the claimant with any notice of termination as required by section 11 of the Labour Act 2004, I hold that the termination of the employment of the claimant was wrongful.
I shall now deal with issue two by treating the claims seriatim as follows:
GRATUITY.
The Claimant claimed the sum of N112, 278.79 based on the National Joint Industrial Council’s Agreement on terms and conditions of service of all junior employees in the building and civil engineering industries in Nigeria (NJIC) agreement dated 30th November, 2011(exhibit CF-CF20). The learned counsel for the defendant argued that the said exhibit CF-CF20 did not apply to the Defendant, because the Defendant is not a party to the said agreement. Nor is the Defendant a member of any union that is a party to the said NJIC agreement.
Continuing counsel argued, that collective agreements negotiated and entered into by trade unions are unenforceable and non-justiceable, counsel referred to the cases of Ikpeazu v ACN (Ltd) (1965)1 NWLR 374, Foko v Foko (1968) NMLR; Adejumo v Ayantegbe (1989) 3 NWLR (Pt 110) 417.
Counsel submitted that there was not privity of contract between the Claimant and Defendant as the collective agreement is between Employers or Employers Association and Workers Union. That an individual employee not being a party thereto is prevented from enforcing it, counsel referred to the cases of Dunlop Pneumatic Tyre Co. Ltd. v Selfridge Ltd (1915) AC; and New Nigerian Bank v Egun (2011) 7 NWLR (Pt 771).
Continuing counsel argued further also that assuming but not conceding that the said NJIC agreement applied it was not applicable to the Claimant in view of the provision of Article 20 (iv) which states that payment of benefit shall be effective from January, 2012 which should be made once a year, Counsel submitted that the Claimant whose employment was terminated on the 23rd January is not entitled to the sum of N112, 278.79 gratuity claimed.
The learned counsel for the claimant on the other hand reproduced the provision of Article 3(A) of the NJIC Agreement which provides that;
“The terms of this Agreement shall apply to all employees in the Building and Civil Engineering Industry in Nigeria as defined by Act number 22 of 1978.”
Counsel argued that the claimant was a junior employee and that in National Union of Shop and Distributive Employees (NUSDE) v. The Steel and Engineering Workers Union of Nigeria [2013] 35 N.L.L.R (Pt.106) 606 the court held that:
“…before 2005, membership of trade unions was voluntary, incorporating as it were the right to associate or dissociate as the case may be. For junior staff, the rule was that membership was deemed with a right to “opt out”, while for senior staff they were not deemed to be members so has to voluntarily “opt in”.
Also in Nestoil v. NUPENG [2012] 29 N.L.L.R (Pt. 82) 90 this court held that:
“As far as our law is concerned, junior staff are deemed to be members of a union until they individually and in writing opt not to be.” Apart from the foregoing, in the case of The Management Compagnie Generale De Geophysique (Nig) Ltd v. Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) (Unreported- delivered at the National Industrial Court on 17th March, 2016), the Court held that:
“The argument that a collective agreement is a gentleman’s agreement is true of the common law dispensation which counsel to the appellant ought to know is no longer fashionable in the current dispensation. Section 254C of the 1999 Constitution, as amended, permits this Court to interpret and apply collective agreements. An agreement that can be interpreted and applied cannot thereby be just be a gentleman’s agreement. It must and does command a status higher than being a gentleman’s agreement to be tossed around as the appellant would want to do.”
From the foregoing it is very clear that the cases relied upon by the learned counsel for the defendant to hold that a collective agreement is a gentleman’s agreement and not enforceable were decided before the Constitution Third Alteration Act 2010 which clearly gave this court the powers and jurisdiction to interpret, apply or enforce collective agreements., Consequently I hold that the provisions of Exhibit CF-CF20 is enforceable and applicable to this case. Also the submission of the learned counsel for the claimant that a junior employee is automatically deemed to be a member of a trade union unless where he expressly opts out is the position of the law.
The other issue of the commencement of exhibit CF-CF20 being January 2012. It is clear that no particular date in January was fixed , since the claimant worked up to January 2012 he is entitled to the benefit derivable there from, consequently I grant that sum as prayed.
UNPAID LEAVE ALLOWANCE
The learned counsel for the defendant argued that the Claimant’s claim for the sum of N53, 000.00 as annual leave allowance that has accumulated to the sum of N105, 000.00 is false and misleading. Counsel submitted that the said amount as leave allowance was computed monthly and paid as part of Claimant’s monthly remunerations. That on termination of Claimant’s employment he was sent for, to come and collect the balance, that is for the month of January, 2012, but he refused. Counsel submitted further that the outstanding balance accruing to the Claimant is N1, 307.74. He urged this Honourable Court to so hold.
The learned counsel for the claimant on the other hand submitted that the failure to grant annual leave or pay leave allowance, is unjust and an unfair labour practice. Counsel referred to the case of Ogunyale & Ors. v. Globacom [ 2013] 30 N.L.L.R (Pt 85) 49, where the Court held that;
“The failure of an employer to allow an employee to go on annual leave, pay leave allowance and overtime allowance is a contravention of the provision of the Labour Act; it is unjust, exploitative and an unfair labour practice.
Counsel argued that there is no evidence whatsoever to show that the Claimant was invited by whatever means to collect the said balance of his leave allowance. That the Defendant has not kept to the terms of the contract of employment to pay the sum of ₦35,000 (Thirty Five Thousand Naira) per annum for three consecutive years which the Claimant is entitled to. Counsel urged this Honourable Court to hold, that the Defendant owed the Claimant the sum of ₦105,000.00 (One Hundred and Five Thousand Naira) as arrears of leave allowance for the period the Claimant was in employment with the Defendant.
From exhibit CA (Contract of Employment) the claimant is entitled toN35, 000 per annum as leave allowance. In exhibits CE and DC-DC7 (Pay slips) there is evidence that the defendant paid the claimant the sum of N1,307.74 per month as Leave Allowance. However, N1, 304.74 per month per annum will give N15,692.88 (1307.74 x 12= 15692.88) per annum, meaning that the claimant was under paid in the sum of N19,307.12 per annum, for three years will amount to N57,921.36,(19307.12 x 3=57,921.36) the claimant is entitled to this sum which is hereby granted to him.
UNPAID MEDICAL ALLOWANCES
The learned counsel for the Defendant submitted that the Claimant’s claim of N105, 000.00 as unpaid medical allowances is not correct as the contract of employment between the parties did not mention “Medical Allowance”. Rather what was contained in the contract of employment is “Medical Insurance” which the Claimant, his wife and daughter would access up to the sum of N35, 000.00 per annum. That the said sum of N35, 000.00 was meant to cover medical treatment for the Claimant should he fall ill. That it was not meant to be claimed by the Claimant and having registered the claim, his wife and child with a HMO he was no longer entitled to any cash payment under this head.
Counsel urged the Court to discountenance Claimants claim for medical allowance.
The learned counsel for the claimant on the other hand argued that the document purportedly showing the registration of the Claimant, his wife and child with the H.M.O, exhibit Df-Df3 is a computer generated document, and an unsigned document, and thus of no probative value.
That the document also failed certain conditions as provided for in Section 84 of the Evidence Act, 2011 in that there is no certificate of compliance with the provisions of section 84(2) of the Evidence Act aforesaid.
There is no doubt that the claimant was not paid any money in cash under this subhead. From exhibit CA (Contract of Employment) the claimant is entitled toN35, 000 per annum as “Medical claim”. The use of the word claim clearly defeats the argument of the learned counsel for the defendant that it was not meant to be paid to the claimant. Apart from that, exhibit DF-DF3 ought to be signed and it was not signed. It is trite that unsigned and undated document is worthless piece of paper that has no evidential value in law see the cases of Amaizu v Nzerube (1989) 4 NWLR (PT. 118) 755 and Salibawa v Habilat (1991) 7 NWLR (PT 174) 461. Consequently that exhibit DF-DF3 is hereby discountenanced.
Howeve,r in exhibit DC-DC7(pay slips), the claimant was paid the sum of N342.50 as medical allowance per month, meaning the sum of N4,110.00(342.50×12=4110) per annum instead of N35,000.00 per annum as contained in exhibit CA. He is entitled to the balance of N30,890 per annum for the three years will be N92,670(30,890 X 3=92,670), which is hereby granted.
ONE MONTH SALARY IN LIEU OF NOTICE
The learned counsel for the defendant argued that the Claimant is not entitled to one month salary in lieu of notice since his termination stemmed from gross misconduct. Counsel urged the court to hold that the Defendant is not indebted to the Claimant in the sum of N41, 584.74 as a month salary in lieu of notice.
The learned counsel for the claimant on the other hand argued that it is a settled principle of law that an employee is entitled to a notice or salary in lieu of notice before termination of his employment after having worked for a certain number of years. That the said salary in lieu of notice should be paid immediately at the point of termination as stated in the case of Com. Odah v. NLC[2013] 33 N.L.L.R (PT. 94) 104 NIC:
“Salary in lieu of notice must be paid contemporaneously with the time the appointment is terminated”.
Counsel urged this Honourable Court to hold that the Claimant is entitled to the sum of N41, 584. 74 (Forty-One Thousand, Five Hundred and Eighty-Four Naira, Seventy-Four Kobo) as salary in lieu of notice.
I have read exhibit CD (letter of termination) which has been reproduced above. It stated that the claimant’s employment has been terminated “effective today 23rd January 2012” . The defendant admitted that the claimant was not giving any notice or paid any money in lieu of notice. Since I have found and held that the alleged misconduct has not been proved, the claimant is entitled to notice or payment in lieu thereof. He was employed in 2009 and terminated in 2012 meaning 3 years. By the provision of section 11(2)(c) of the Labour Act 2004, the claimant is entitled to 2(two) weeks’ notice. I therefore grant him the sum of N20, 792.37 (N41, 584. 74 /2= N20, 792.37) being his salary for two weeks in lieu of notice.
OUTSTANDING LEAVE (6 WEEKS)
The learned counsel for the defendant argued that leave entitlement is utilizable in the material year, not to be rolled over. So it is baseless for the Claimant to claim 3 years leave outstanding as he neglected to collect same. That compulsory leave of employment cannot be monetized. That it comes in form of leave allowance and Defendant pays that regularly to the Claimant. Counsel submitted that Defendant does not owe the Claimant the sum of N62, 577.11 or any other sum as 6 weeks annual leave compensation.
The learned counsel for the Claimant on the other hand argued that the claimant was not allowed to enjoy his annual leave entitlement of two weeks per annum. That having been in the employment of the Defendant and working diligently from January 2009 to January 2012, he is entitled to be compensated for the total 6 weeks annual leave in the sum of N62, 377. 11 (Sixty-Two Thousand, Three Hundred and Seventy- Seven Naira, Eleven Kobo) being the equivalent of his last salary of N41, 584.74 (Forty-One Thousand, Five Hundred and Eighty-Four Naira, Seventy-Four Kobo). .
In exhibit CA (Contract of Employment) the claimant is entitled to paid leave period of 2(two) weeks. From the way it was couched there is no indication that unutilised period will be monetised, this is reinforced in view of the fact that the same exhibit CA made provision for leave allowance per annum, consequently, this claim is refused.
UNPAID JANUARY 2012 SALARY
The learned counsel for the defendant submitted that upon dismissal of the Claimant, the Defendant asked him to come and collect his January 2012 salary and other outstanding benefit but he refused. That the Defendant never intended to withhold his entitlement. The foregoing is an admission of the fact that the claimant is entitled to his salary for the month of January 2012 which I hereby grant in the sum of N31, 188.55 prorated using the sum N41, 584.74 per month.
It is important to note that the Defendant raised a preliminary objection dated and filed on 26th May, 2015 challenging the jurisdiction of this Court to entertain the matter on the ground that the Defendant as sued is a non-juristic person which cannot sue or be sued.
However, a look at exhibit CA(Letter of employment of the claimant), exhibit CD (Letter of termination), exhibits CB, CC, and CE (Pay slips) all show that the defendant employed the claimant in the name as sued in this case.
Worse still, the defendant did not attach any certificate of incorporation to show that the name as sued is not its incorporated name. Therefore having held itself out to the claimant in the name sued , it will not be allowed to benefit from its own wrong, see Eke v FRN (2013) All FWLR (pt 702) 1748 in view of that the preliminary objection is dismissed.
In sum I order as follows:
1). The defendant shall pay the claimant the sum of N112, 278.79 being his Gratuity.
2). The defendant shall pay the claimant the sum of N57,921.36 being his Leave Allowance
3). The defendant shall pay the claimant the sum of N92,670 being his Medical Allowance.
4) The defendant shall pay the claimant the sum of N20, 792.37 being his salary for two weeks in lieu of notice.
5). The defendant shall pay the claimant the sum of N31, 188.55 being his salary for the month of January 2012
6) The claim for outstanding leave (6weeks) is refused
7) The defendant shall pay the claimant the sum of N100,000.00(One Hundred Naira) only being the cost of this action.
The defendant shall pay all monetary awards in this judgment on or before the October 30, 2018 failing which they will attract 20% interest per annum until full liquidation.
Judgment is entered accordingly.
………………………………….
Hon. Justice K. I. Amadi, Ph.D.
Judge
