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National Industrial Court

Mr. Wilfred Azeakpono Obi -VS- TATA Africa Service Nigeria Limited

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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: 29th April 2019                          SUIT NO. NICN/LA/64/2017

 

BETWEEN

 

  1. WILFRED AZEAKPONO OBI        …             CLAIMANT

 

AND

 

TATA AFRICA SERVICES[NIGERIA]LIMITED…               DEFENDANT

       

REPRESENTATION:

 

OdionAkhuetie Esq. with OderindeOluwatoyinfor the Claimant

Ibenegbu Harrison Ebuka Esq. with Ugochukwu Unegbu Esq. for the Defendant.

JUDGMENT

 

  1. By “writ of summons” dated9th February 2017, the Claimant claimed against the Defendant for:

  1. An order directing the Defendant to pay to the Claimant the sum of N1,500,00.00 [one million five hundred thousand naira] only being money due to Claimant on commission in respect of vehicles [100 numbers of Tata Ace Refuse Collection Mini Trucks] sold for the Defendant by the Claimant as particularly specified below:

Commission of N1,500,00.00 [one million five hundred thousand naira] only payable on vehicles sold by the Claimant to the Lagos State Government through Lagos State Waste Management Authority worth the sum of N199,500,000.00 [one hundred and ninety nine million, five hundred thousand naira] only.

  1. An order directing the Defendant to pay to the Claimant the sum of N1,536,826.20 [one million five hundred and thirty sixthousand, eight hundred and twenty six naira, twenty kobo] only which represent[s] the retirement emolument due to Claimant for his service to the Defendant from 4th November 2008 to 15th June 2015.

  1. A declaration that the purported refusal by the Defendant to pay the Claimant the sum of N1,500,000.00 [one million five hundred thousand naira] only which represent[s] the commission due to Claimant on the total contract sum of N199,500,000.00 [one hundred and ninety nine million, five hundred thousand naira] secured by the Claimant from the Lagos State Government in favour of the Defendant and N1,536,826.20 [one million five hundred and thirty six thousand, eight hundred and twenty six naira, twenty kobo] only which is the retirement emolument due to Claimant from 4th November 2008 to 15th June 2015 is a breach of contract, illegal and unlawful.

  1. An order directing the Defendant to pay the sum of N500, 000.00 [five hundred thousand naira] as damages.

  1. And cost for the prosecution of this case.

The Claimant filed with the ‘writ of summons’ a statement of claim,list of witness, statement on oath, verifying affidavit, list of documents and copies of the documents. The originating processes were served on the Defendant on 2ndMarch 2017. The Defendant entered a conditional appearance and filed its defence processes on 20th September 2017. Trial commenced on 16th January 2019. The Claimant adopted his statement on oath dated 9th February 2016[sic] as his evidence in the suit and tendered 9 exhibits, exhibits 1 to 9. Exhibit 1 is letter ofresignation dated 29thApril 2015, exhibit 2 is photocopy of staff identity card, exhibit 3 is copy of acceptance of resignation, exhibit 4 is a copy of contract award document. Exhibit 5 is copies of invoices to Lagos State Ministry of Environment. Exhibit 6 is a copy of payment certificate by Lagos State Waste Management Authority in respect of purchase of 100 mini trucks. Exhibit 7 is a copy of Claimant’s pay slip for May 2015, exhibit 8 is Defendant’s employee handbook February 2014 version and exhibit 9 is copies of Claimant’s Solicitors’ letters to the Defendant dated 8th April 2016 and 21st June 2016. The Claimant was cross-examined and the case was thereafter adjourned to 14th February 2019 for the defence. On 14th February 2019, the Defendant opened its defence by calling Mrs. Florence Ubah, the Senior HR and Admin Officer. Mrs. Ubahadopted her statement on oath dated 20th September 2017 and tendered 8 exhibits, exhibits DW1A to DW1H. Exhibit DW1A is Claimant’s letter of employment, exhibit DW1B is copy of Claimant’s June 2015 pay slip with certificate of compliance pursuant to section 84 of the Evidence Act 2011. Exhibit DW1C is copy of Defendant’s sales handbook, exhibit DW1D is copy of Defendant’s statement of account for Lagos State Waste Management Authority. Exhibit DW1E is copy of acceptance of Claimant’s resignation, exhibit DW1F is Claimant’s letter of resignation. Exhibit DW1G is copy of notice of meeting between the Defendant and Workers’ union and exhibit DW1H is a communique issued at the end of the meeting. The case was thereafter adjourned for adoption of final written addresses. On 26th March 2019, learned Counsel for the Defendant, Mr. Ibenegbu, adopted the Defendant’s final written address dated 25th February 2019 and filed on 26th February 2019 and urged the Court to dismiss the claims of the Claimant in its entirety. Learned Counsel for the Claimant, Mr. Akhuetie, adopted the Claimant’s written address dated and filed on 14th March 2019 as his final argument in support of the Claimant’s claim and urged the Court to enter judgment for the Claimant. The matter was consequently set down for judgment.

 

COURT’S DECISION

  1. I have carefully read the processes filed in this suit together with the exhibits and considered the submissions of learned Counsel for the parties. The facts as elicited from the evidence before the Court is that the Claimant was employed by the Defendant as Sales Manager effective from 20thNovember 2008, exhibit DW1A. Paragraph 5 of exhibit DW1A provides that “other terms and conditions of employment will be made available to you on resumption.”A Sales Handbook, exhibit DW1C and Employee Handbook dated February 2014, exhibit 8were subsequently delivered to him. The Claimant evidently had a good working relationship with the Defendantand enjoyed some incentives including payment of commissions. He voluntarily resigned his employment on 29th April 2015, exhibits 1 and DW1F which became effective on 15th June 2015, exhibits 3 and DW1E. In his letter of resignation, the Claimant expressed hopethat he would be paid his commission on sale of 100 Tata Ace Refuse Collection Mini Trucksto Lagos State Waste Management Authority. In its acceptance of the Claimant’s resignation, the Defendant was silent on the issue of commission but wrote “You shall receive any severance payment in accordance with the company policy.” Having waited in vain for payment of the commission and severance benefit, by his Solicitors’ letter dated 8th April 2016, the Claimant demanded for the sums of N1, 500,000.00 [one million five hundred thousand naira] as his commission and N1, 536,826.20 [one million five hundred and thirty six thousand, eight hundred and twenty six naira, twenty kobo] as his retirement emolument [which for the purpose of this judgment will be described as end of service benefit]. This was followed with another letter dated 21st June 2016 setting out the same claims, exhibit 9. The Defendant received these letters but did not respond to it.The Claimant commenced this action due to the Defendant’s refusal to pay the commission and his end of service benefit. The Defendant joined issues with the Claimant and contended that sales commission was team based and shared amongst the entire sales structure including management who initiated the sales and no commission was declared in respect of sale of 100 Tata Ace Refuse Collection Mini Trucksto Lagos State Waste Management Authority. At any rate, the Defendant contended that payment of commission was not part of the Claimant’s contract of employment. The Defendant also denied liability for N1, 536,826.20 [one million five hundred and thirty six thousand, eight hundred and twenty six naira, twenty kobo] on the ground that at the time of his resignation the Defendant had no policy on payment of retirement benefits to any of its staff. The Defendant submitted three issues for determination, while the Claimant formulated six issues. Arguing issue one, which is whether the Claimant who resigned his appointment with the Defendant on 29th April 2015 and ceased to be the employee of the Defendant on 15th June 2015 is entitled to retirement emolument to the tune of N1, 536, 826.20 or indeed any other sum having left the employment of the Defendant before the agreement to pay end-of-service emolument was made between the Defendant and AUTOBATE and SEWUN on 21st January 2016; learned Counsel for the Defendant submitted that the Defendant did not havea policy for payment of retirement benefit or end of service emolument to its employees when the Claimant resigned his appointment. He explained that discussions for payment of end of service emolument with the workers unions had been on since 2010 and the agreement was signed on 21st January 2016. He argued that the Employee handbook, exhibit 8, was not binding because it was not signed and was not intended to create a legal relation between the Defendant and its employees. He further argued that the Employee Handbook is just a policy guideline while discussions with the workers’ unions continued. Responding learned Counsel for the Claimant in his issue three submitted that the Claimant is entitled to the sum of N1, 536,826.20 retirement emolument for his service to the Defendant from 20th November 2008 to 15th June 2015; and that the Defendant’s handbook makes provisions for the method by which retirement benefits are paid to employees. He contended that the fact that the Claimant was in the employment of the Defendant for over six years is undisputed and admitted facts need no proof. He explained that the Claimant is in the category of 5years to 9years with a monthly salary of N204, 677.62. He submitted that the Defendant is bound by the provision of the Employee Handbook and referred to NUHDSW v. WHASSA N EUREST [NIG] LTD [2005] 2 N.L.L.R. It was argued that the Employee Handbook also provided that the agreement shall be in force for two years until a new one is signed and was in force on 15th June 2015 when the Claimant effectively resigned.

  1. Canvassing issue two, which is whether from the totality of the evidence adduced by the Claimant during the trial of this matter, the Claimant has been able to prove that the Defendant agreed orally or by document to pay him the sum of N1, 500,000.00 [one million, five hundred thousand naira] only as commission on the total amount of sale of the 100 units of TATA Ace Refuse Collection Mini Trucks by the Defendant to the Lagos State Government through Lagos State Waste Management Authority for the sum of N199, 500, 000.00 [one hundred and ninety-nine million five hundred thousand naira]; learned Counsel for the Defendant argued that the Claimant in his evidence made no reference to how he came about the N1, 500,000 as commission and could not point to any document showing agreement by the Defendant to pay the amount to him. He submitted that the Claimant’s evidence in this regard goes to no issue and should be discountenanced and expunged from the record as same was unsubstantiated by credible evidence. Contrariwise, he submitted that the Defendant’s witness stated in paragraph 11 of her statement on oath that the Claimant’s letter of employment, exhibit DW1A, did not provide for payment of N1, 500,000 commissionto the Claimant for sale of 100 units of TATA Ace Refuse Collection Mini Trucks and there is also nowhere the Defendant agreed to pay the Claimant 15% commission for introducing a customer. He contended that the Defendant’s policy on payment of sales commission and other allowances is contained on page 3 of the Sales Handbook, exhibit DW1C, and provides for payment of commission to the sales team and makes commission payable only after meeting the minimum target stated therein. It was also argued that the certificate of payment tendered by the Claimant does not hold water as it does not show that the sum of N9, 975,000.00 has been paid to the Defendant and referred to exhibit DW1D, the Defendant’s internally generated statement of account of the transaction.In response, learned Counsel for the Claimant, arguing Claimant’s issues one and two on the commission, submitted that by virtue of the provision of the company sales handbook, exhibit DW1C, specifically page 3, paragraph 4 and page4, tables 1-4, the commissionsharing formula was succinctly enumerated and enables the Claimant to lay claim to the stated commission. He explained that DW1’s evidence that the expected target was not achieved to attract payment of commission was not substantiated and should be discountenanced. He reviewed page 4 of the sales handbook and submitted that the Claimant exceeded the minimum target and entitled to 20% or 25% commission. It was further submitted that although the sharing of commission is team based the provision specified what commission each employee would get and that the Claimant’s accrued commission as Sales Manager was calculated using this template. He contended that the argument that Lagos State Government still has an outstanding sum to pay on the contract and as a result the Claimant is not entitled to commission holds no water, as the Claimant is entitled to payment of his commission whether the Defendant has been fully settled or not and referred to IncarNig. Ltd v. Erabor [2005] 3 N.L.L.R Pt 8. On the Defendant’s issue three,which is whether the Claimant is an independent contractor or under a contract of employment considering the nature of the Claimant’s employment with the Defendant before his resignation, learned Counsel for the Defendant submitted that the Claimant was an employee of the Defendant in charge of Government/Institution and everything he did while in the Defendant’s employment was within the purview of his contract of employment. He urged the Court to discountenance the Claimant’s evidence as it is grossly insufficient to establish that the Defendant agreed to pay him 15% of the total amount of sales upon introduction of a customer.

  1. The facts of this case are straightforward and the issues for determination raised by the parties can be subsumed into one issue, that is, whether the Claimant has proved his case on a preponderance of evidence to entitle him to judgment? It is trite law 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 Engr. 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,therefore,is 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 case essentially is that he is entitled to commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks to Lagos State Waste Management Authority and to end of service benefit. In proof of these assertions, he gave evidence of his employment and resignation, oral agreement for payment of commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks and the fact that the transaction was consummated and tendered as exhibitshis letter of resignation, acceptance of his resignation, evidence of award of the contract and delivery of the trucks and the Defendant’s employee handbook, particularly page 35[sic] on end of service benefit. The Claimant, in my view, has discharged the initial burden of proof, which nowshifts to the Defendant. I must observe here that paragraph 8 of the Claimant’s statement on oath which is a reproduction of paragraph 8 of his statement of facts is critical to this consideration. Therein the Claimant stated that there was an agreement between him and the Defendant to pay him 15% of total amount of sales if he introduced a customer. While denying the agreement to pay commission in paragraphs 4 and 7 of the statement of defence which is reproduced in paragraphs 8 and 11 of the Defendant’s witness statement on oath, the Defendant averred in paragraph 4 that “the Defendant created juicy incentives and other allowances for the Claimant in the discharge of his duties, but did not commit to the payment of commission.” It is noteworthy that nowhere in the statement of defence and statement on oathare these‘juicy incentives’ explained. The existence of the ‘juicy incentives’ speaks volumes and, in my respectful view, corroborativeof the Claimant’s evidenceon agreement to pay him 15% commission on that transaction. One can equallyinfer from that paragraph that the Claimant was treated well above other sales officers of the Defendant.Paragraphs 8 and 11 of the Defendant’s witness’ statement on oath arealso contradicted by exhibit DW1C, the sales handbook. Paragraph 4 number 3 page 3 of exhibit DW1C puts the issue of payment of commission beyond contention. It clearly states that commission is payable to members of the sales team and this is in addition to theirmonthly salaries. This fact is further buttressed in paragraph 12 of DW1’s statement on oath which is reproduced here:

“12.  That the Defendant will at the trial of this suit show that Defendant’s policy in relation to commission and other allowances is articulated in page 3 of the sales handbook which provides that commission will only be paid in exceptional situations where projected targets have been met and surpassed; and in any event, commission where applicable, was to be team based and shared amongst the entire sales structure including management who initiated the sales and no commission was declared in respect of the sales to the Lagos State Waste Management Authority.”

Clearly, DW1 is an inconsistent witness speaking from the two sides of her mouth. In one breadth she denied that the Claimant is entitled to commission, in another breadth she declared that commission is payable but team based. This gives the impression that the Defendant has something to hide and DW1 is not a witness of truth. In the words of Niki-Tobi, J.S.C. [of blessed memory] in Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28,an affidavit evidence is not sacrosanct. It is not above the evaluation of the Courts. Like oral evidence, a Court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the Court, there are instances when such affidavit evidence clearly tell a lie and the Courts cannot be blind to such a lie.Paragraphs 8 and 11 of DW1’s statement on oath are outright falsehood and I so hold.

  1. Page 3 of exhibit DW1C sets out the percentage of commission payable to the sales team. Sale of one unit of CVBU attracts 0.5% commission on the sale price less VAT price, while sale of one unit of PCBU attracts a commission of 0.6%. Page 4 sets out how the commission will be shared amongst the team members. For meeting the minimum monthly targets for CVBU and PCBU, the Sales Manager gets 20% and 25% respectively. In further proof of his claim for commission, the Claimant tendered exhibits 1 and 9, his letter of resignation and his Solicitors’ letters to the Defendant. In exhibit 1 reference was made to ‘my accrued commission’. This accrued commission was elaborated in exhibit 9 and put at N1, 500,000. The Defendant received both exhibits 1 and 9, exhibit 9 consists of two letters written by the Claimant’s Solicitors; but did not refute the Claimant’s claim to commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks to Lagos State Waste Management Authority and the sum of N1, 500,000 claimed in the letters. While exhibit 3, acceptance of the Claimant’s resignation, was silent on the issue of the Claimant’s commission, the Defendant did not bother to respond to exhibit 9. The law is settled that in business and mercantile transactions where in the ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means to dispute the facts that he did not agree. Where there is silence in circumstances in which a reply is obviously expected an irrebuttable presumption of admission by conduct is raised. See Sunil Vaswani & Anor. v. C. A. Candide Johnson Esq. [2000] 11 NWLR [pt. 679] 582 at 589. From the facts and circumstances of this case, a reply to exhibit 9 was necessary. The letters are clear and specific on the Claimant’s demands. Although the Defendant replied to exhibit 1 through exhibit 3, it was silent on the Claimant’s claim for commission on the 100 units of Tata Ace Refuse Collection Mini Trucks. It did not respond to exhibit 9 at all. Silence in these circumstances implies admission of the claim for N1, 500, 000 commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks. See Sunil Vaswani & Anor. v. C. A. Candide Johnson Esq. [supra].It is amazing that the Defendant received two letters from a law firm making specific monetary demands and ignored it. A prudent businessman would have repliedthe letters whether to agree that commission is payable and explain that the amount claimed is higher or deny liability completely. The Defendant did neither. By its silence, therefore, the Defendant is presumed to have admitted the correctness of the Claimant’s claim and cannot now deny liabilityfor the sum of N1, 500,000. Paragraphs 8, 11, 12 and 15 of DW1’s statement on oath are mere afterthought designed to hoodwink the Court and I so hold. Consequently, I find and hold that the Claimant has proved his claim for payment of commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks to Lagos State Waste Management Authority and entitled to the sum of N1, 500,000. On the issue of outstanding payment of N9, 975,000 on the trucks, I am of the view that the non-payment of the purchase price or full purchase price is not a bar to recovery of the Claimant’s commission. In a unanimous decision of the Supreme Court in George Erabor v. Incar Nigeria Limited [1975] 4 SC 1 at 8, Dr. T. O. Elias, C.J.N. [as he then was] posited that:

“It would, of course, have been otherwise if, before termination of the contractual relationship between the appellant and the respondent company, there had been a firm contract of sale of fiat cars between the company and the Ministry of Defence, leaving only the question of a final settlement and payment for the vehicles already sold. The appellant would in that case have been entitled to claim commission on such a sale even though he had before its conclusion ceased to be employed by the respondent.”

Clearly, therefore, the basis of entitlement to commission is a firm contract of sale through the instrumentality of the Claimant, not the fact of full payment of the purchase price.In addition, the fact that the Claimant was an employee of the Defendant does not dis-entitle him to commission as commission is an incentive paid to salesmen to boost sales. It is usually paid in addition to salary. This fact is also borne out by exhibit DW1C. See George Erabor v. Incar Nigeria Limited [supra] where Dr. T. O. Elias, C.J.N. [as he then was] held that:

“It seems to us that, in the absence of any express provision in the contracts between the salesman and his employers, the salesman’s entitlement to commission should be confined to the period of employment and any other period that may be specifically agreed between the parties.”

I must also add that the absence of express provision for payment of commission in the letter of employment, exhibit DW1A, is not a bar to recovery of commission. Exhibit DW1A specifically provides that other terms and conditions of employment will be made available to the Claimant. The sales handbook, exhibit DW1C, was given to the Claimant in furtherance of exhibit DW1A and makes detail provision for payment of commission.

  1. The next issue relates to payment of retirement emolument or end of service benefits. End of service benefits are also called terminal benefits and are sums of money which a party entitled to it has earned. They are sums accruable to an employee at the end of his service with the employer. They are easily assessed from the terms and conditions of the contract of employment. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] 12 NWLR [pt.995] 518 at 542. The Claimant’s evidence in proof of this claim is in paragraphs 15, 16, 17, 18 and 19 of his statement on oath. He averred that as a retired staff of the Defendant he is entitled to retirement emolument in the aggregate sum of N1, 536,826.20. He set out his monthly net income as N204, 677.62 and the basis of computation of the end of service benefits, see paragraph 18 of the statement on oath. The Defendant’s employee handbook is exhibit 8. Paragraph 2 page 34 of exhibit 8 sets out the basis of computation of end of service benefits. The opening statement is instructive and gives a lie to paragraphs 16 and 17 of DW1’s statement on oath and argument of learned Counsel for the Defendant. It states:

“After several meetings and deliberations with the employee representatives, it is agreed that end-of-service benefit shall be paid to employees at the end of their work life with TANSL as follows;

  5-9 years 6 weeks pay per each year served
TASNL 10-12 years 7weeks pay per each year served
  12 years & above 8 weeks [total emolument]

Note: Content of total emolument in the industry comprises monthly basic salary, housing allowance, transport allowance and meal allowance. The calculation of End-of-service benefit shall include a provision to the effect that any service below one [1] year at the terminal year shall be pro-rated. This agreement shall subsist for two [2] years until a new one is signed.”

Clearly, the Defendant made detail provision for payment of end of service benefits. This fact was corroborated in exhibit 3, acceptance of resignation. Paragraph 2 of exhibit 3 reads: “You shall receive any severance payment in accordance with the company policy.” This reinforces the fact that the Defendant had a policy on payment of severance benefits at the time the Claimant resigned his employment. Page 2, paragraph 2 of exhibit 8 on applicability of the handbook states that the employee handbook is applicable to all employees of Tata Africa Services [Nigeria] Ltd in Nigeria. The Defendant argued that exhibit 8 was not binding because it was not signed and was not intended to create a legal relation between the Defendant and its employees. It was further argued that the employee handbook is just a policy guideline while discussions with the workers’ unions continued. This argument is self-defeating. Paragraph 5 of exhibit DW1A states: “Other terms and conditions of employment will be made available to you on resumption.” There is also internal evidence in exhibit 8 to the effect that it was operational at the point of distribution to the employees and intended to regulate the relationship between the Defendant and its employees. The first evidence is on page 2, paragraph 2 reproduced above. The next is the note to paragraph 2 page 34 which reads: “This agreement shall subsist for two [2] years until a new one is signed.”There is a noteon page 4 of exhibit DW1C to the following effect:

“Any sales personnel may be summarily dismissed or terminated in cases of theft, gross insubordination, disclosure of official information, not meeting sales targets, or any other terminable offences as contained in the Company’s handbook.”

Added to this is a further note: “Please note that other terms and conditions of services are contained in the Company’s Handbook, which shall be made available to all members of staff as soon as it is ready.” Exhibit DW1C was issued to the Claimant in 2009. This, in my firm view, showsthat there was an agreement between the Defendant and the Claimant on payment of end of service benefits.

  1. It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto.See Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25.It is also settled law that once a document is tendered and accepted in evidence, no extrinsic evidence is admissible to contradict the contents of the 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. In my considered opinion, the terms and conditions of the Claimant’s employment are contained in exhibits DW1A, DW1C and 8. Parties to a written contract are mutually bound by the terms contained therein and the Court has a duty to enforce the terms when called upon to do so, see Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] at page 30 and Dr. Adeosun Oluseyi Olalekan v. Management Board, University of Maiduguri Teaching Hospital [2012] LPELR-20099[CA] at 44. The rule of interpretation of documentary evidence is 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. Exhibits DW1G and DW1H, the notice of meeting and communique issued at the end of the meeting, do not derogate from the fact that exhibit 8 was in force when the Claimant resigned in 2015. By the express provision of exhibit 8, it was to subsist for two years until a new one is signed. It is my respectful view and I so hold that exhibit DW1H is the new agreement contemplated in paragraph 2 page 34 of exhibit 8 and does not take away the Claimant’s right to claim under exhibit 8 which was still in force when he resigned.On the Defendant’s argument that exhibit 8 was not signed and was not intended to create legal relations between the Defendant and its employees, it must be noted that the duty of the Judge is to interpret the contract between parties in the light of their manifest intentions as conveyed by the language of the written document. It is not the business of the Judge to speculate on what the parties wished or intended to say. See Emmanuel Olamide Larmie v. Data Processing Maintenance & Services Ltd. [supra] at page 31. It is also the law that where there was an original contract of employment and terms and conditions of service are later introduced, the rights of the parties must be interpreted in terms of the original contract as modified by the new conditions of service, see University of Uyo&Ors. v. Dr. Edet P. Akpan [2013] LPELR-19995[CA] 43. Exhibit DW1A must be read as modified by exhibits DW1C and 8. Finally, on this point, there is nothing in exhibit 8 to show that the signature of the Defendant or the Claimant was required to make it operational or enforceable. Learned Counsel did not direct the Court to any clause in exhibit 8 which makesthe signature of both parties or either of them a condition precedent to enforceability or suspended its operation. At any rate the employee handbook is the employer’s document often unilaterally imposed on the employee [as in the instant case] and does not require the signature of the employer or employee to be enforceable. The presence or absence of signature of the parties or either of them does not invalidate the handbook or render it inoperable. See page 4 of exhibit DW1C and Nigerian Employment and Labour Relations Law and Practice by ChiomaKanuAgomo, page 55.Once issued by the employer to its employees and there is nothing in the handbook suspending its applicabilityor making the employee’s signature necessary it automatically regulates the relationship between the parties.Furthermore, it is the law that where documentary evidence supports oral evidence, oral evidence becomes more credible, see Julius Berger Nigeria Plc v. Godfry Nwagwu [supra] at 538. Exhibits DW1A, DW1C, 8 and 9 clearly support the Claimant’s claims for commission and end of service benefits and render his oral testimony more credible. In the circumstance, I hold that the Claimant has established his claim for payment of ‘retirement emolument’.On the sum of N1, 536,826.20 claimed by the Claimant, I must again observe that this claim is contained in exhibit 9 which was tendered without objection and the Claimant was not cross-examined on it. It is safe to conclude that exhibit 9 is undisputed and I am bound to accept the content thereof as correct, see Wale Olasehinde v. The State [2019] 1 NWLR [pt.1654] 555 at 575, where Augie, J.S.C. held “…when a witness is not cross-examined on a material fact, it is settled that the Court can take his silence as an acceptance that the party concerned does not dispute that fact.”Exhibit 9 is clear and specific on the amount claimedby the Claimant and the Defendant ought in the circumstances to have promptly denied liability if either the computation is wrong or the claim was undeserving. It did not. There is therefore an irrebuttable presumption in favour of the Claimant that the Defendant admits the correctness of the sum claimed. See Sunil Vaswani & Anor. v. C. A. Candide Johnson Esq. [supra]. Accordingly, I find and hold that the Claimant is entitled to the sum of N1, 536,826.20 end of service benefit. Equally, I find and hold that the refusal of the Defendant to pay the Claimant his commission and end of service benefit without explanation nearly four years after his resignation is in breach of the terms of the contract of employment and unlawful. It is a settled principle of law that 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 refusal of the Defendant to pay the Claimant’s commission and end of service benefit in spite of its own clear stipulations in exhibits 8 and DW1C is reprehensible and unbecoming of a company of the stature of the Defendant and makes it liable in damages.The Claimant was deprived of his entitlements after six and half years of meritorious service to the Defendant without reasonable cause and put through much stress and expense to recover it. 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 are 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 N100, 000 [one hundred thousand naira] general damages against the Defendant. On cost of the action, costsnormally follow the event. A successful party 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 age of the case, the Defendant’s conduct and the fact that the Claimant was forced to employ a Counsel to recover his earned benefits, the processes filed by the Claimant including Solicitors’ letters to the Defendant 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 Claimant’s issue four, that is, whether exhibit DW1H, the communique on the agreement reached between the Defendant and representatives of the workers’unions after the Claimant’s resignation violatesOrder 45 rule 2[2][f]&[g]National Industrial Court of Nigeria[Civil Procedure]Rules, 2017 and section 1 of the Evidence Act, 2011. With all due respect to learned Counsel, this issue and the argument in support represent a clear misapprehension of Order 45 rule 2[2][f]&[g]of the Rules of this Court. First, Order 45 rule 2[2][f]&[g]relates to content of final written addressesand not to evidence. In addition, section 1 of the Evidence Act, 2011 provides that:

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such facts as are hereafter declared to be relevant, and of no others.”

This section was read out of context. It allows evidence of facts in issue or relevant facts to be given in any proceeding. The question is, is exhibit DW1H relevant to a fact in issue in this case? My answer is in the affirmative. One of the issues before this Court is whether the Claimant is entitled to end of service benefit. To prove that the Claimant is not entitled to end of service benefit, the Defendant tendered exhibit DW1H. Evidence necessary to rebut the evidence given by the adversary on a fact in issue cannot, with all due respect, be described as extraneous and irrelevant. See section 4 of the Evidence Act, 2011 which provides that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or different times and places. See also section 7[a] and [b] of the Evidence Act, 2011. This issue is resolved against the Claimant.

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

  1. The Defendant is directed to pay to the Claimant the sum N1, 500,00.00 [one million five hundred thousand naira] only being money due to the Claimant as commission on sale of 100 units of Tata Ace Refuse Collection Mini Trucks to Lagos State Government through Lagos State Waste Management Authority worth N199, 500,000.00 [one hundred and ninety nine million, five hundred thousand naira] only.

  1. The Defendant is directed to pay to the Claimant the sum of N1,536,826.20 [one million five hundred and thirty sixthousand, eight hundred and twenty six naira, twenty kobo] only being Claimant’s end of service benefits.

  1. It is hereby declared that the refusal of the Defendant to pay the Claimant’s commission and end of service benefits is in breach of the contract of employment and unlawful.

  1. The Defendant shall pay to the Claimant general damages in the sum of N100, 000.00 [one hundred thousand naira].

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

  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 29th May 2019 until it is fully liquidated.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

29/4/19

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