OLANIYAN JOB ADEOLA -VS- FUNTOLA NIG. LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 9^TH JULY, 2019

SUIT NO: NICN/AK/04/2018

BETWEEN

OLANIYAN JOB ADEOLA …… CLAIMANT

AND

FUNTOLA NIG. LTD …… DEFENDANT

REPRESENTATION:

CALEB JOSEPH HOLDING THE BRIEF OF S. O. BALOGUN APPEARS

FOR THE CLAIMANT

TEMILOLUWA OGUNMOYERO FOR THE DEFENDANT

JUDGMENT

The claimant by a complaint before this court on the 26^th January, 2018 claims against the defendant as follows:

An order of court directing the defendant to pay all monies owed to claimant by the defendant, i.e. (i.) outstanding salaries calculated at Five Hundred And Eight Thousand, Two Hundred Naira Only (N508,200); (ii.) feeding allowances and site expenses – Two Hundred And Thirty-Nine Thousand, One Hundred And Ten Naira (N239,110); (iii.) time card – One Hundred And Forty Five Thousand Naira (N145,000) and (iv.) pension – Four Hundred And Seventy-Eight Thousand, Two Hundred Naira Only (N478,200). All totalling One Million, Four Hundred And Forty-Three Thousand, Ten Naira Only (N1,443,010.00k).

General damages in the sum of Two Million Naira Only (N2,000,000).

Cost of this suit.

Claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witness and documents to be relied upon.

The claimant’s case is that he was employed as Site Engineer vide a letter dated 8^th day of July, 2014 and was placed on an annual salary of Six Hundred Thousand Naira (N600,000.00). He averred that his responsibilities as a Site Engineer includes; control of the site, overseeing all site activities inclusive of staff welfare and any challenge on site.

Claimant averred that upon his appointment he was enrolled with Stanbic IBTC Pension Managers on contributory pension. He is therefore claiming his accrued pension from July 2014 to November 2017 at a total sum of Four Hundred And Seventy-Eight Thousand, Two Hundred Naira only (N478,200.00k).

He also averred that as Site Engineer of the defendant, he is entitled to some accrued allowances from the defendant.

The claimant stated that by a letter dated 18^th of December, 2017, he resigned his appointment with the defendant and claimed his outstanding salaries and allowances, he also stated that the defendant is capable of paying his salaries, allowances and pension but chose not to pay.

In conclusion, the claimant averred that the action of the defendant has affected his standard of living and portrayed him as an irresponsible husband, and as a consequence of the defendant’s action, he had missed several investment opportunities.

WHEREOF he claims against the Defendant as aforestated.

On the 10^th day of June, 2018, the defendant filed a Memorandum of Conditional Appearance, Statement of Defence, Witness Statement On Oath, List of Witness and documents.

The defendant denied being a custodian of the claimant’s pension funds, or owing the claimant the sum claimed by him as allowances. The defendant stated that all the entitlements of the claimant are as contained in his letter of offer of appointment and that asides this, a three bed-room apartment was paid for by the defendant as the claimant’s official accommodation while he was with the defendant.

The defendant admitted that the delay in the payment of its staff at a point was due to the economic downturn, and the defendant had since been regular with the payment of staff salaries.

The defendant denied the claim for pension for September 2017 to November 2017 by the claimant, because the claimant resigned his appointment with the defendant on the 3^rd day of August, 2017. The defendant urged the court to dismiss the case of the claimant as same is frivolous, gold digging and abuse of court process.

The trial in this case commenced on 6^th of November, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath and tendered several documents which were admitted and marked Exhibits JA1 – JA11 and was cross examined. Three other witnesses tendered the statements of Account of the claimant based on the subpoena, they are; Francis Olufemi of Union Bank Plc as CW2 and Joel Oseafiame of Stanbic IBTC Pensions Manager Ltd as CW3 and Adeitan Donald Adedamola of Zenith Bank as CW4. The subpoenaed statement of Account were also admitted and marked Exhibits JA12-JA15.

The defendant opened its defence on the 11^th February, 2019 by calling one Funmilayo O. Joseph, the Managing Director of the defendant as DW1. He adopted his witness statement on oath and tendered the claimant’s letter of resignation which was marked as Exhibit FN1. He was duly cross-examined and the defence thereafter closed its case. The parties later filed their final written addresses and the case was adjourned for the adoption of the addresses.

On the 11^th of April, 2019, the defendant’s counsel adopted his final Written Address dated 13^th March, 2019 and filed on 14^th March, 2019 at the hearing. In his address he formulated a sole issue for determination to wit:

“Has the claimant adduced enough cogent, credible evidence enough for the court to grant his claim by paragraph 34 of the claimant’s statement of claim.”

On this issue, J. I. Adeyanju Esq. of counsel for the defendant submitted that the Claimant bears the onus to prove that he is entitled to all the reliefs he is praying for, based on the principle of law that he who asserts must prove.

Counsel submitted that the claimant resigned voluntarily from the service of the defendant on the 3^rd day of August 2017 not 18^th of December, 2017 as claimed and submitted that it is the law that an employee has the unfettered right to resign from his employment at any time. He cited the case of Benson V Onitiri, (1960) NSCC 52 and asserted that in the instant case, the letter of resignation written by the claimant to the defendant in August 2017 terminated his relationship with the defendant. He pointed out that the claimant admitted under cross-examination that he voluntarily sent a letter of resignation dated 3^rd day of August, 2017 to the defendant and same was tendered and admitted as Exhibit FN1 during the trial, learned counsel submitted that the claimant did not controvert this evidence.

Furthermore, counsel submitted that the Claimant in complying with the requirement of the law tendered Exhibit JA1, his letter of appointment dated 8^th July 2014, containing the conditions of his employment and entitlements. Defence counsel therefore argued that the bogus claims by the claimant for feeding allowances, reimbursement for expenses incurred on site, out station allowance are not contained in the letter of appointment, he therefore urged the court to ignore these claims as enumerated by the claimant. Learned counsel however conceded that the claimant is entitled to six (6) months’ salary and the pension up to the month of July 2017.

In conclusion, counsel urged the court to dismiss the other claims of the claimant except for the arrears of salary and the Pension claims admitted by the defendant

L. Saliu of counsel for the claimant adopted his final written address dated 31^stMarch, 2019, at the hearing. He formulated a lone issue for determination to wit:

“whether the claimant is entitled to the reliefs sought”

Learned counsel submitted that the law is settled that whenever there is a wrong, there must be a legal remedy “ubi jus ibi remedium”. He submitted further that the claimant has established through the witnesses called and the evidence on record that the defendant is owing the claimant salaries for the month of December 2016-May 2017 amounting to three hundred and fifteen thousand naira (N315,000.00k) at N52,000 x 6 months, he stated that this fact was admitted by DW1. He is also claiming arrears of salaries for September 2017- November 2017 at N64,000.00k (Sixty Four Thousand Naira) monthly, totaling N192,000 which has remained unpaid and arrears of his contributory pensions which has remained unremitted to claimant’s pension account.

Counsel posited that the defendant in its feeble attempt to defend the non-payment of his salaries claimed that the company is also being owed by some of her clients and failed to take cognizance of the fact that an employee is entitled to adequate remuneration and/or pension during the period of his employment under the labour law.

He stated that the Claimant has been living from hand to mouth as a result of the deprivation of his entitlement by the defendant, hence the claimant is seeking for general damages of Two Million Naira (N2,000,000.00) from the defendant.

Learned counsel argued that evidence abounds to buttress the assertion that the claimant was in the services of the defendant up untill December 2017.

In conclusion, counsel submitted that the attitude/conduct of the defendant is oppressive and malicious and he therefore urged the court to grant the reliefs of claimant as prayed.

Having thoroughly read the processes filed by both counsel in this suit, I have distilled one sole issue for determination to wit;

“Whether or not the claimant is entitled to his claims”

In a claim for arrears of salary, the law is that claim for salaries are in the nature of special damages. The Court of Appeal per Tsammani, J.C.A. in the case of Adekunle v. UBA Plc. [2016] LPELR-41124 (CA) held thus;

“The law is that, claims for salaries, allowances, bonuses, emoluments, etc are in the nature of special damages. Like in all claims for special damages, they need to be pleaded with particulars and evidence led thereon before they could be granted. In other words, such claims need be strictly proved……”

The claimant claimed that the defendant owes him his salary for the period of December 2016 to May 2017 and September 2017 to November 2017. The defendant on the other hand admitted that truly at a point there was a delay in the payment of salary of its staff and they are owing the clamant salaries from the period of December 2016 – July 2017

The law is settled that admitted facts no further proof. See sec 123 of the Evidence Act 2011 see also Alhassan & Ors v. Ishaku & Ors [2016] LPELR- 40083 (SC)

It is on record that the claimant’s last paid salary was N52,000.00k (Fifty Two Thousand Naira) as of November, 2015, but paid in July, 2017 see Exhibit JA9. In addition, the claimants salary for the period of December 2016-May 2017, from his reliefs was confirmed as N52,000.00 (Fifty Two Thousand Naira) per month, the claimant is therefore entitled to arrears of salary calculated as follows;

Arrears of salary from December 2016- May 2017= N52,000.00k x 6 = N315,000.00k and the claimant is therefore entitled to the sum of N315,000.0k as his arrears of salary for the month of December 2016-May 2017. I so hold.

The other leg of this claim is for arrears of salary from September 2017-November 2017. Exhibit FN1 is a letter of resignation dated 3^rd August, 2017 handwritten by the claimant of which its authenticity was not denied by the claimant, it was the claimant’s case that the defendant begged him not to resign and so he continued working with them till he tendered another resignation letter on the 18^th of December, 2017 vide exhibit JA 10, the defendant on its own part argued that the claimant ceased to be a staff of the defendant as at August 2017, and as such, they do not owe him salaries for the period of September 2017-November 2017.

It is the position of the law that a notice of resignation takes effect from the date it is received by the employer or his agent. See the case W.A.E.C v. Oshionebo [2006] 12 NWLR (Pt.994) 258. It is trite that the power to resign is absolute while there is no discretion to refuse to accept a notice of resignation.

In the instant suit, the claimant’s contention that the defendant asked him to return to work after he tendered his resignation letter is not supported by the evidence available, mainly because the notice of resignation was effectively communicated to the defendant and the communication of same immediately terminated the employment between the parties. The only way there could have been a continuation of the employment is if the defendant issued the claimant another letter of offer of employment or started paying his salaries thereafter, thereby implying a continuation of the employment relationship. There is however no record of this before the court. I find therefore that this leg of the claim fails. I so hold.

On the issue of feeding allowances and site expenses of Two Hundred And Thirty-Nine Thousand, One Hundred And Ten Naira (N239,110.00k) and the claim for One Hundred And Forty Five Thousand Naira (N145,000) for time card, being sought by the claimant as his allowances and site expenses, the defendant denied this claim stating that the allowances are not contained in his employment letter and thus should be ignored by this court.

Exhibit JA1 tendered by the claimant, is the offer of employment letter, indeed no reference was made to any feeding allowances or site expenses in that exhibit. The claimant relied on Exhibit JA4 i-xx as the daily expense report sheet prepared by him for the defendant. It is to be noted that whatever the defendant was paying the claimant outside the terms stated in his offer of employment which are not embodied in the contract of employment are incidentals and must be proved specially, as there is no evidence of the approval of these expenses by the defendant, they cannot be enforced against the defendant and they remained unproven. See Adekunle v. UBA Plc. Supra. I find therefore that this claim fails. I so hold.

The claimant is also claiming a sum of Four Hundred And Seventy-Eight Thousand, Two Hundred Naira (N478,200.00k) as his accrued pension, in proof thereof the claimant tendered Exhibit JA11 and gave a detailed analysis of how his pension was deducted from his salaries and the amount to be remitted to his pension account. He also relied on Exhibits JA8, JA14, Exhibits JA9, JA12 and his pension statement of account Exhibit JA13 as evidence of the deductions and the non-remittance by the defendant to his pension account. The defendant on the other hand admitted that indeed they owe the claimant his pension but denied the sum of N478, 200.00k (Four Hundred and Seventy Eight Thousand Two Hundred Naira) claimed by him.

It is trite that admitted facts need no further proof. In the analysis of the accrued pension sum owed by the defendant, the claimant included the months of September 2017 – November 2017. I have held that the claimant ceased to work for the defendant in August 2017 and as such cannot claim pensions for September – November 2017. Therefore in calculating the accrued pension, the months of September – November 2017 will be deducted from the amount claimed by the claimant, and calculated as follows;

Pension as at July 2014-November 2017 = N478, 200

Accrued pension for Sep.17-Nov.17 = N37,800.00k

N478, 200.00k – N37,800.00k = N440, 400.00K

Total accrued pension= N440, 400.00K

I find therefore that the claimant is entitled to the sum of N440,400.00k as his accrued pension due from the defendant and to be paid to the claimant. I so hold.

Relief 2 is for general damages in the sum of Two Million Naira Only (N2,000,000). This claim fails, as it is the position of the law that the quantum of damages available to an employee is the sum accruable to him at the time of the termination of his appointment. See ONALAJA V. AFRICA PETROLEUM LTD supra having awarded the claimant his entitlements.

I find no merit in awarding him double compensation by way of general damages. I so hold.

For the avoidance of doubt, I hereby order and declare as follows:

The claimant is entitled to the sum of N315,000.00k (Three Hundred and Fifteen Thousand Naira) as his arrears of salary for the months of December 2016 – May 2017 from the defendant.

The claimant is entitled to the sum of N440,400.00k (Four Hundred and Forty Thousand Four Hundred Naira) as his accrued pension that was unremitted, and to be paid by the defendant.