Muhammed Musa -VS- 1. NORTHERN CABLE PROCESSING

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 26^th SEPTEMBER, 2018 – NICN/ABJ/38/2016

BETWEEN:

MOHAMMED MUSA – CLAIMANT

AND

NORTHERN CABLE PROCESSING
AND MANUFACTURING COMPANY
LIMITED (NOCACO)
MR NICO VAN – GRIEKEN DEFENDANTS
(MD NOCACO)
MR MUHAMMED ADAMU
(AGM NOCACO)

REPRESENTATION : Claimant present , Defendants absent.

B.O Ediga for the Claimant.

G.O Ogenyi for the Claimant, holding the brief of Andrew Chatta.

JUDGMENT

This suit was commenced by a writ dated 29^th January, 2016 in which the following reliefs were sought:

A Declaration that the gratuity calculated and formulated by the Defendants sometimes in the year 2003 for the Claimant is against the stipulated terms and conditions of service of the Defendants and therefore null and void and of no effect.
A Declaration that the gratuity calculated formulated and paid to the Claimant, which the Defendants probated and reprobated is null and void and of no effect whatsoever.
An Order of this Honourable Court that the terms and conditions of service of the Defendants’ Company which reflects that of the Pension Act be maintained.
A Declaration that MEMO NO: PER 1.00/AB/JO dated30th June, 2006 emanating from the Defendants and which excluded the Claimant from benefits of his full gratuity from the commencement of his employment from 2^nd October, 1996 to 2^nd October, 2015 is void and inconsistent with the extant laws of the land especially the provisions of the Pension Act which is a reflection of the terms and conditions of service of the Defendants.
An Order of this Honourable Court directing the full and prompt payment by the Defendants of complete and adequate benefits and gratuity and all allowances accruing to the Claimant from 12^th January, 1993 to 14^th August, 2015 and which is calculated at ₦11,950,094.00. The Defendants may pay the amount with costs to the Claimant or Claimant’s legal practitioner within the time allowed for appearance and that upon such payment the proceedings shall terminate.
General and immediate damages of ₦3,000,000.00.
An Order of this Honourable Court for the payment of cost of this litigation to the Claimant by the Defendants which is ₦2,000,00.00.
An Order of this Honourable Court directing the Defendants to tender an unreserved apology to the Claimant in any National Daily Newspaper for the embarrassment the Defendant’s action caused to the Claimant in the eyes of the Public, in his quest to claim what rightly belongs to him.
Any Order(s) or further Order(s) of this Honourable Court may deem fit so to make in the interest of Justice and in the circumstances thereinafter.

The Claimant equally filed a Statement of Claim, Witness Statement on Oath along with Documents to be relied on.

THE CLAIMANT’S CASE

The Claimant’s case as set out in the Statement of Claim is that the Claimant was an employee of the 1^st Defendant, (a registered and incorporated limited liability Company) residing at No 1 Angwan Rafin Guza Road, Kawo New Extension Kaduna, Kaduna state. That the 1^st Defendant deals with manufacturing of electricity cables and with its address at Maichibi road, Industrial Estate, Kaduna south, Kaduna State.

According to the Claimant, he was employed as Officer 1 (driver) on 12^th January, 1993 and sometime in April, 2003 and after he was promoted to Senior staff cadre, the 1^st Defendant increased his salary per month and appropriated a gratuity to him having attended more than 12 years in their service and stated that he was bound by the terms and conditions of service of the 1^st Defendant’s Company for Junior, Intermediate and Senior staff position.

The Claimant averred that in June, 2006, he and other staff of the Defendant’s Company appealed to the 1^st Defendant in view of the unlawful appropriation of gratuity to them during the existence of their employment, and thereafter urged the 1^st Defendant to re-visit its decision. That the 1^st Defendant upon receipt of the letter issued an inter-office MEMO thereby ending the illegality of giving staff gratuity before the end of their service but deliberately and illegally excluded the Claimant and some other staff hitherto affected by the 1^st Defendant’s action.

The Claimant stated that in July, 2007 after efforts to correct the aforementioned anomalies failed, he and other staff sought the help of their Union/Association: (Precision Electrical Related Equipment Senior Staff Association (PERESSA), NOCACO Branch Kaduna with a view to intervene and resolve the impending problems, but to no avail.

According to the Claimant, in August 2015 he notified the 1^st Defendant of his decision to resign his appointment with the Company and that a letter dated 14^th August, 2015 signed by Muhammed Adamu (3^rd Defendant) who is the Acting General Manager asked him to handover Company’s property in his possession and proceed to finance department for the computation of his gratuity. That he did this and was given computation letter of his terminal benefits with the amount as ₦2,518,187.00 through a letter jointly signed by the 3^rd Defendant and one Mohammed H. Yero (former Finance Manager, now retired). The Claimant stated that when he perused carefully, he realised that he was being under paid his gratuity as he discovered differences with his own calculation because the computation ought to have been made from the date of employment which is 12^th January, 1991 and not from 1^st April, 2003 after he was promoted to a Senior staff.

The Claimant maintained that he had served the Defendant meritoriously for more than 24 years until he willingly resigned in 2015. That the Defendants refused and failed to amicably resolve the issue with the Claimant, he then engaged the services of Anamah Nwobia and Co, legal practitioner who sent a letter of demand for proper computation and adequate payment of his gratuity on 11^th January, 2016. The Claimant stated that the 1^st Defendant received it on 12^th January, 2016 but were adamant and failed to respond as requested by his Solicitor and that the Defendants failed to reply the letter or settle the outstanding balance of payable gratuity to the Claimant. And that the Defendants are unwilling to abide by the terms and conditions of service of the 1^st Defendant which is a reflection of the Pension Act.

In the Witness Statement on Oath, the Claimant further averred that the Defendants wrongly calculated and computed his payable gratuity as ₦2,518,187.00 from 1^st April, 2003 to 30^th June, 2015 (12 years) calculated from the date of promotion to Senior cadre, instead of ₦13,840,607.00 calculated from the date of his 1^st appointment which is 1^st January, 1991 to 14^th August, 2015 (24 years).

The Defendant’s entered appearance and then filed a joint Statement of Defence and Witness Statement on Oath alongside Documents to be relied on.

THE CASE OF THE DEFENDANTS

It is the Defendants’ case that the 2^nd and 3^rd Defendants are mere employees of the 1^st Defendant and governed by its terms and conditions of employment like the Claimant. The 2^nd and 3^rd Defendants maintained that they are not the makers of the 1^st Defendant’s terms and conditions of employment as they are no Directors or Shareholders in the 1^st Defendant. And that as such they only apply the rules and regulations of the 1^st Defendant in the processing and payment of the Claimant’s entitlements during and after his exit from the services of the 1^st Defendant just like any other staff.

In answer to paragraphs 7.14 of the Statement of Claim, the Defendants averred that before the enactment of the Pension Administration Act, 2004, the 1^st Defendant used to be governed and operated under two (2) policies to wit; Junior/Intermediate staff conditions of service and Senior staff conditions of service and that while the Junior/Intermediate staff condition of service governs the affairs of Junior staff, the Senior staff condition of service governs the Senior and Management staff affairs with the Company.

The Defendants averred that by the provisions of the conditions of service, the Junior/Intermediate manual of service provided for payment of gratuity to a staff who retires at that level while there is no provision for payment of gratuity in the Senior staff manual of employment.

According to the Defendants, it was on the basis of assisting the Junior staff who get promoted from Intermediate cadre to Senior staff cadre, that it decided to pay such staff their gratuity before joining the Senior staff cadre where he would not be entitled to gratuity. And that this policy to collect the gratuity was at the discretion of the staff who migrates to the Senior staff cadre by promotion while anybody who is not interested was never compelled to collect same.

The Defendant averred that in 2003, the Claimant was promoted to Senior staff cadre and in line with the Company’s policy in that regard, he voluntarily applied to the 1^st Defendant for payment of his gratuity which was accordingly paid to him in the sum of ₦217,729.33 (Two Hundred and Seventeen Thousand, Seven Hundred and Twenty Nine naira, Thirty Three kobo). And that in order to clear the ambiguity and complaints created by these policies of payment of gratuity, the 1^st Defendant decided to amend the Junior/Intermediate staff conditions of service and Senior staff conditions of service by unifying both on issues of payment of gratuity.

The Defendants’ stated that sequel to the above, the manuals of employment were amended in 2006 to the effect that gratuity shall only be paid at the end of service year to the Company for both Junior and Senior staff while those who have already collected their gratuity upon elevation from Intermediate to senior cadre shall have their number of years put in calculated from the year they were promoted.

The Defendant further stated that it shall also be contended at the trial that the Certificates of Long Service (annexures 2, 5, 6 and 7) have nothing to do with the accounting and computation of terminal benefit of the Claimants as the Claimant has been fully paid off in line with the 1^st Defendant’s terms and conditions.

Subsequently, the case proceeded to hearing wherein the Claimant called 3 witnesses and tendered Exhibits in support of his case. The Defendants on their part, called a sole witness and tendered their Exhibits through him. Parties then filed their final written addresses at the close of hearing.

FINAL WRITTEN ADDRESS OF PARTIES

In the Defendants’ joint final written address, a sole issue was formulated for determination viz:

Whether in the circumstances of this case and having regard to the available evidence, if it will be proper, fair and just to compute, calculate and pay gratuity to the Claimant from January 1993 to August 2015 having applied and collected same between 1993 to 2003 and another one between 2004 to 2015.

In the arguments, Counsel for the Defendants submitted that it is trite law that when an employee or party complains of breach of contract of service or employment, he has the onus to:

Place before the Court the terms of employment or service.
Prove the manner in which the term and condition of his contract were breached by the employer.

Counsel then stated that the terms of contract of service form the bedrock of any dispute or case where such term and conditions are alleged to have been breached citing S.P.D.C LTD V. ANTHONY NWABUEZE (2014) ALL FWLR PT. 724 Page 117 2 130 para D and UNION BANK OF NIGERIA PLC V. OJO – OZOGI (1994) 3 NWLR, (PT. 333) page 385.

Counsel then went on to state that from the evidence adduced by the Defendants, that it has been established that the Claimant was a confirmed staff of the 1^st Defendant who rose in rank from Intermediate staff cadre to Senior staff cadre before his resignation in the year 2015 in an employment that is covered by terms and conditions of service, particularly the procedure for payment of gratuity at the end of service year. And that when the Claimant was promoted in 2003 from Intermediate cadre to Senior cadre, he applied for his gratuity and was duly paid as evidenced in Exhibit DA, DA1 and DA2 and respectively backed by the Intermediate staff conditions of service.

Counsel stated that the relevant provision dealing with payment for gratuity at that level is contained in page 11 clause 25 of Exhibit B. And that the clamour and demand of staff including the Claimant prompted the 1^st Defendant to amend the provisions on gratuity under clause 62 of Exhibit B and clause 53 of Exhibit C all culminating in the issuance of Exhibit D3.

Counsel submitted that based on Exhibit D3, staff like the Claimant who had willingly collected their gratuity before the amendment shall have their gratuity calculated from the year of elevation if they are still in service and staff on Senior cadre not hitherto entitled to gratuity also became qualified to be paid and that is why the Claimant was again paid another gratuity.

Counsel then stated that the Claimant argued that the payment he voluntarily applied for and collected 12 years before his resignation was wrongly paid to him but he however failed to return the money or challenge the procedure in any Court of the law at that time, and that it is pertinent that where a party has benefited from a contract, he cannot be allowed both in law and equity to contend its genuineness or legality.

Counsel maintained that the evidence adduced by the Claimant is an afterthought and that his decision to collect his gratuity 12 years ago and contesting same today amounts to approbating and reprobating which is not allowed in law and equity. Counsel stated that the Claimant cannot claim that he was forced or wrongfully paid his gratuity at Intermediate cadre since he read Exhibits B, C and D3 and also wrote Exhibit DA freely. That the Claimant cannot therefore be heard to deny and repudiate the conditions of service.

Counsel then concluded by submitting that the Claimant misconstrued the provisions of Section 1 of the Pension Act, 2004 and that the failure to challenge the purported breach of contract if there was any and not going to Court within 6 years from the accrual of the alleged Cause of Action in 2003 offends the relevant provision of Statute of Limitation Act, 2004.

In the Claimants’ final written address, 3 issues were formulated for determination viz:

Whether in the circumstances of this case and from the available evidence before this Honourable Court the terms and condition of service should regulate the relationship of the Claimant and the 1^st Defendant.
Whether the purported application by the Claimant for payment of his gratuity after his promotion was written under duress and overwhelming undue influence of the Defendants.
Whether in the interest of justice, fairness and equity the Claimant is entitled to the full payment of his gratuity and the total number of years spent in the services of the 1^st Defendant should be used in the computation of his gratuity.

In the arguments on issue one, Counsel submitted that the terms and conditions of service should be the fundamental instrument that determine the relationship of the Claimant and the 1^st Defendant and that the payment of the gratuity to the Claimant in 2003 when he was promoted was an outright violation of the terms and conditions of service of the 1^st Defendant’s Exhibit B and C.

Counsel stated that while Exhibit E is silent on the issue of gratuity, Exhibit D provided for it in paragraph 25 on page 11 and that the Claimant does not fall within the category of those to be paid gratuity under this provision because he was just promoted in 2003. Counsel maintained that there is no evidence before the Court either by Exhibit D and E or any internal memo that promoted staff of the Company including the Claimant should be paid gratuity while still in service and so the payment of gratuity to the Claimant in 2005 when he was promoted was done in error and total violation of the terms and conditions of service of the 1^st Defendant.

On the second issue, Counsel submitted that the Claimant wrote Exhibit DA the application for payment of his gratuity in duress and under an overwhelming undue influence of the 1^st Defendant. That the 1^st Defendant’s decision to pay gratuity to promoted staff including the Claimant was a unilateral decision of the management of the 1^st Defendant and the Claimant’s consent was not sought neither had he any option to accept or not to accept for fear of being fired. But to register his displeasure on this obnoxious and draconian policy, he and some of his colleagues affected passionately appealed to the management to reconsider the decision and consequent upon this, the management stopped the payment of gratuity to staff after promotion and admitted that the policy had actually created ambiguity.

On the third issue, Counsel submitted that the Claimant is entitled to full payment of his gratuity and the basis of computation of the gratuity is 24 years and 7 months making the full payment the balance of ₦11,950,094.00 as he had been paid ₦2,518,187.00 in 2003 when he was promoted and ₦1,390,512.96 in 2015 during his exit from the services of the 1^st Defendant.

Counsel stated that the total service gratuity is calculated based on this formula: Basic salary + Housing allowance + Transport allowance + Lunch allowance × Number of years in service × Number of weeks divided by 4.33 less indebtedness. That Exhibit E is the computation of gratuity of the Claimant by the 1^st Defendant while Exhibit F contains the computation of the Claimant and these documents agree on the formula above but however, the area of disagreement that forms the basis of this action is in the number of years and weeks. That the 1^st Defendant put 12 years 7 weeks whiles the Claimant calculated 24.7 years 9 weeks. Counsel maintained that the 1^st Defendant was unjust in its calculation and that the Claimant does not contest the fact that the sum of ₦2,518,187.00 was paid to him but that his contention is that his gratuity should be calculated based on the number of years and weeks of service then the amount paid earlier deducted from it.

Counsel further maintained that the calculation of the 1^st Defendant is mathematically unfounded because the remainder of the gratuity can only be gotten when a subtraction is made from what was paid before from the total figure. Counsel then urged the Court to grant the Claimant’s claim in the interest of justice, fairness and equity.

FACTS OF THE CASE AND COURT’S DECISION

It is a fact that the Claimant was employed by the 1^st Defendant in January 1993 as a driver. In April, 2003 he was promoted to Senior staff cadre after he had attained 12 years in the service of the 1^st Defendant and a gratuity in the sum of ₦217,729.33 (Two hundred and seventeen thousand, seven hundred and twenty nine naira, thirty three kobo) was paid to him based on his application to be so paid as shown in exhibit DA an application for Junior grade entitlement of 22^nd April, 2003 and DA 1 and 2 both of 23^rd April, 2003.
By the inter-office memo in Exhibit E dated 14^th August, 2015, the 1^st Defendant acknowledged the Claimant’s letter of voluntary resignation dated 12^th August, 2015. And by the same Exhibit E the Defendant’s acceptance and approval of same was conveyed to the Claimant
By Exhibit E1 the 1^st Defendant’s document headed “COMPUTATION OF TERMINAL BENEFITS FOR MOHAMMED MUSA” the Claimant’s total number of years was put 24 years 7 months and 2 days. The payable gratuity was put at ₦2,518,187.
The Exhibit E1 also showed a total indebtedness due to NOCACO LTD (1^st Defendant) but I do not find any other evidence that the Defendant was owing the Claimant housing loan or salah advance and these amounts of ₦1,381,800.00 and ₦25,000 are not counter claimed against the Claimant.
The 1^st Defendant’s former policy of paying gratuity or Junior grade entitlement upon elevation to Senior cadre together with the practice of paying gratuity again upon resignation of the employee was changed by the 1^st Defendant, it was written to all staff on payment of gratuity; it reads:

“The payment of gratuity to all staff will from 1^st July, 2006 be done at the time of retirement. With this circular, the earlier system where by Intermediate staff promoted to Senior cadre do collect their gratuity will be stopped.

And for the avoidance of doubt, staff who had earlier on collected their gratuity when promoted to Senior staff from Intermediate category shall not be affected by this circular but shall be appropriately paid whatever remains of their gratuity at the end of their service to the Company”

As a matter of fact and law the above policy in Exhibit D3 did not in itself conform with the provisions of the Pensions Reform Act, 2004 in force in the year 2006 when Exhibit D3 was issued. That Act created a Contributory Pension Scheme. Exhibit D3 is on terminal benefits of the 1^st Defendants employees by way of gratuity and nothing more.

In the premises of the above findings of fact, regarding the claims of the Claimant, in the first head for declaration that the 2003 gratuity is null and void cannot stand as it cannot be said to be against the terms and conditions of service in Exhibit C particularly clause 25 at page 11 which the Claimant relies on for purpose of clarity, it reads:

“Where an employee leaves the service of the Company either by resignation or by termination other than dismissal, abandonment of employment or redundancy, he shall be paid gratuity (based on basic salary) for uninterrupted services based on rates as are applicable at the time of leaving the Company services”

Strictly speaking, looking at Exhibit DA, what the Claimant applied for upon his elevation to Senior cadre was not called gratuity but application for Junior grade entitlement. It could not therefore be called a gratuity per se, even if both parties loosely referred to it as such. The key point to be noted was that the monies paid to the Claimant in 2003 was not paid at the time of his leaving the Company. For this reason that act of payment to the Claimant cannot be declared to be against the said terms and conditions of service. I so hold.

By the same reasoning from above regarding the second head of claim, the sum of ₦2,518,187.00 which I found the 1^st Defendant came up with in Exhibit E1 is not void.

Regarding the 3^rd head of claim, I have already found as a matter of fact and law that the provision on gratuity in the terms and condition and that of the Pension Act are not one and the same. This claim equally fails.

Regarding the 4^th head of claim, I find and do hold that the inter-office memo in Exhibit D3 cannot be faulted, this being a case of master and servant. The 1^st Defendant being the master retains every right to determine its policy regarding the payment of gratuity. I hold that it does not lie in the mouth of the Claimant to state how much the 1^st Defendant should pay to it as in this case, the amount of ₦11,950,094.00 without pleading the particulars of how that sum came about. In these premises I hold that the 4^th and 5^th heads of claim must fail.

So also the claim for General and Immediate damages in the 6^th head of claim. The claim for cost of litigation is not proved and the 7^th head of claim is equally refused.

On the whole, I do not see what the Defendants had done to the Claimant that warrants an apology. It is common that disputes must naturally and necessarily arise in the affairs of men, in their dealings with themselves and once these disputes have been resolved at a place of hearing these disputes such as this, it is not in all cases that the Court after concluding the matter would order that one of the parties apologize to the other. I find and do hold that this is one of such cases where no apologies are needed. The claim in the 8^th head of claim must similarly fail.

Finally, in the bid to eliminate any doubt the Defendants are to pay to the Claimant the sum of ₦2,518,187 as stated in Exhibit E1 within 14 days of this judgment, if he has not been paid, failing which interest shall begin to run thereafter at the rate of 21% per annum till the Claimant is paid.

Judgment is entered accordingly.

_____________________________

HON. JUSTICE E. D. E. ISELE

JUDGE