LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Rev. John Uchenna -VS- The Incorporated Trustees of Christian

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO NICN/LA/116/2017

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

 DATE: 19th September 2019

BETWEEN:

REV. JOHN UCHENNA————————————————— Claimant

AND

THE INCORPORATED TRUSTEES OF

CHRISTIAN Penticostal Mission

International——————————————————– Defendant

REPRESENTATION:

  1. E, N. Nwandike Esq. for the claimant
  2. Ihenhen Esq. for the defendant

JUDGMENT

By a complaint dated and filed on the 15/3/2017 and by an amended statement of facts filed on the 20/8/2018 the claimant claimed the following reliefs from this court;

  1. Declarations of the honourable court that;
  2. The termination of Engagement/ Employment of the claimant by the defendant vide the letter of ‘RELIEF OF DUTY’ dated the November 3rd 2016, is wrongful and unlawful.
  3. The claimant is entitled to damages for the wrongful and unlawful termination of his engagement/employment by the defendant vide the said letter of ‘Relieve of Duty’ dated November 3rd  2016 and
  4. The claimant haven been engaged/employed by the defendant as a minister is entitled to all his accrued salaries, allowances and benefits as a ‘labourer is worthy of his labour’
  5. The sum of N 6,439,525.00k being;
  6. Salary arrears from 1st January 2010 to 31st December 2015 in the sum of N 5,383,525.00k.
  7. Salary Arrears from 1st January. 2016 to 30th November, 2016 in the sum of N1.056.000.00.
  8. 6years leave allowance in the sum of N575,000 at the rate of N 960,000 per year from 2010 to 2016.
  9. Ministerial property support allowance = N 500,000.00
  10.  Damages for wrongful and unlawful termination of employment in the sum of N 1, 000,000.00.
  11. Interest on the Judgment sum at the rate of 21% from 1st December, 2016, until final liquidation.
  12. Cost of the Action at N 500, 000.00.

In response to the originating process the defendant filed a statement of defence wherein in the defendant counter claimed against the claimant as follows;

  1. An order that the claimant is indebted to the defendant in the sum of Nl,152,000;00k (One million, one hundred and fifty two thousand
  2. An order that the claimant pays the defendant the said sum as in claim (a) above.

Hearing in this suit commenced on the 17/1/2019. The claimant in this action testified as CW1, adopted his witness deposition and tendered the following documents in evidence;

  1. Letter of appointment dated 15/3/99 Exhibit C1.
  2. Letter of confirmation of appointment dated 13/6/2003 Exhibit C2.
  3. Letter of appreciation dated 18/10/17 Exhibit C3.
  4. Notification of Ordination dated 30/1/10 Exhibit C4.
  5. Notification of increment in salary dated 15/11/2011 Exhibit C5.
  6. Letter of transfer Exhibit C6.
  7. Letter of Complaint of non payment of salary Exhibit C7.
  8. Letter of relief from duty dated 3/11/16 Exhibit C8.
  9. Solicitors letter of demand Exhibit C9.
  10. Defendant Solicitors letter of response dated 19/1/2017.
  11. CMP ministers handbook Exhibit C11.
  12. Another CMP ministers handbook Exhibit C12.

The claimant also tendered the following documents in evidence;

  1. Letter dated 29/8/16 marked Exhibit C13.
  2. Receipt of Remittance to CMP admitted and marked as Exhibit C14(1-100)
  3. Document of remittance of levies Exhibits C15 (a-m)
  4. CMP monthly statement of account Exhibit C16a and C16b.

During cross examination Exhibit C17a  and C17b,  a  document titled Gratuity payment and a photocopy of Stanbic IBTC bank cheque were tendered and admitted in evidence.

The claimant (CW1) was cross examined by the defence counsel and thereafter the claimant closed their case.

The defence opened their case on the 4/3/2019 with one Pastor Robert Onuoha, the administrative officer of the defendant testifying as the DW1 and the sole witness for the defendant. He adopted his witness deposition and went ahead to  tender Exhibit D1a and D1b which is the same as Exhibit C17a and C17b. The defence witness was crossed examined and the defence closed their case. The parties through their counsels adopted their final written address 18/6/2019.

BRIEF FACTS OF THE CASE

The claimant allege that he was employed as a minister by a letter dated 15/3/99 and has worked for a period of over 15years with the defendant The employment was confirmed in 2003. He allege that from January 2008, the claimant’s Salary was N60,000 per month (N 720,000 annually). From November, 2009, the claimant’s Salary/Allowance was N80,000 per month (N960,000.00 annually). The salary of the claimant from January, 2012, was N96,00O.00 monthly (1,152,000.00 annually). The claimant allege that from January 2010 till November, 2016, the claimant’s Salary has been partly paid and partly unpaid and gave a breakdown of the payment in paragraph 5 of his statement of facts. The claimant allege that from the breakdown the defendant was indebted to him in the sum of N 5,383,525 from January 2010 to Decimber 2015. The claimant allege that Letter dated March 13, 2016, the Defendant Transferred the Claimant from Christian Pentecostal Mission, Obadore Branch, Lagos to Christian Pentecostal Mission International Lagos office, as a result of his demand for payment of his Salary arrears. The claimant further allege that on the 29th  day of August, 2016, he sought audience with the state coordinator detailing him with the difficult situation, plight and hardship of his family arising from the failure of the defendant to pay the outstanding salaries for the outstanding years. Sequel to the meeting the claimant wrote the letter dated 29th day of August, 2016, and in response the defendant terminated his appointment vide the letter of relieve of duty dated November 3, 2016. The claimant allege that the defendant did not pay his Salary from January, 2016 to November, 2016, in the sum of Nl,056,000.00 at the rate of N 96,000.00 per month. The claimant also state that in addition to the various salary arreas, he is entitled to 6vears Leave allowance in the sum of N576.000 and ministers personal property support allowance of the sum of N500,000.00, He further allege that no notice of disagreement was given to him before the termination of his appointment with the defendant nor was he paid a salary in lieu of notice. He contends that the termination of his appointment was wrongful.

In his response the defendant denies owing the claimant the sum claimed and that the defendant was duly paid his salary as at when due and on being relieved of his appointment on the 18/11/2016.The defendant allege that the claimant was paid vide Stanbic IBTC bank cheque No 00003243 issued to the claimant in the sum of N 1,152,000.00 and that the claimant signed a document confirming that he was paid and that he has no further claims to make against the defendant. The defendant also allege that the claimant was  relieved of his post for truancy, insubordination, lack of respect for constituted authority, non of the pastors wanted to work with him, embezzlement or non accountabiliy of Church funds, failure to remit Church tithes and offerings etc etc. The defendant also allege that the sum of N 1,152,000  paid to the defendant was far  in excess of his entitlements, having not worked for fifteen (15) Years since his confirmation as provided for by the defendant’s handbook, the claimant was not entitled to the amount paid him. The defendant therefore counterclaims the sum of N 1,152,000.00. This is the facts of this case.

ISSUES FOR DETERMINATION.

From the facts and circumstances of this case four issues shall be formulated which shall effectively determine all the claims and counter claims in this suit thus;

  1. Whether the termination of the engagement/employment of the claimant by the defendant vide; the letter of ‘Relieve of Duty’ dated 3/11/2016, amounts to wrongful termination, consequence of which the claimant is entitled to the declaration sought and damages for breach of contract of employment.
  2. Whether the claimant has proofed his entitlement to the sum of N6,439,525.00 being arrears of salary from 1/1/2010 to  31/12/2015 in the sum of N5,383525.00 and salary arrears from 1/1/2016 to 30/11/2016 in the sum of N1,056,000.00.
  3. Whether the claimant is entitled to 6 years leave allowance of N576,000.00 at the rate of N960,000 per annum from 2010 to 2016.
  4. Whether the claimant is entitled to Minister Personal Property Support Allowance of N 500,000
  5. Whether the defendant is entitled to the refund of the sum of N1,152,000 paid as gratuity to the claimant which the defendant counterclaims.

These issues will effectively address all the claims and counter claims of the parties in this action.

 

ON ISSUE ONE

Whether the termination of the engagement/employment of the claimant by the defendant vide; the letter of ‘Relieve of Duty’ dated 3/11/2016, amounts to wrongful termination, consequence of which the claimant is entitled to the declaration sought and damages for breach of contract of employment.

On this issue, the claimant testified that he was employed on the 15/3/99 vide exhibit C1. His appointment was confirmed on the 13/6/2003 in Exhibit C2. On the 18/10/2007, he received exhibit C3 a letter of salary increment and  appreciation from the defendant and on the 30/1/2010 he was ordained a minister with a notification of salary increment in exhibit C4. His salary was again increased again vide exhibit C5. It is his further evidence that following the non-payment of his salary from January 2016, he wrote to the defendant on the 29/8/2016 in exhibit C7 complaining of the non-payment of his salary, this resulted in the defendant writing to him in exhibit C8 to relieve him of his appointment on the 3/11/2016. He testified in paragraph 17 and 18 of his witness deposition that no notice of termination or relieve from duty was given to him before the termination of his employment and no payment in lieu was made to him. He testified that he is entitled to at least 3months Notice. That termination of my employment without Notice or payment in lieu is wrongful and unlawful and he is entitled to damages against the defendant in the circumstances. The defendant testified in paragraph 11 of DW1  statement on oath that the termination of the claimant employment is not wrongful. And that it was rightfully done and that the claimant is not entitled to any damages.

I have carefully examined the evidence adduced by the parties in respect of the issue under consideration. First in exhibit C1 the letter of appointment dated 15/3/99, it is clearly stated ‘ if at any time you decide to leave the mission, at least three months notice should be given by you before leaving’. In exhibit C8 the letter of ‘Relief of Duty’ the defendant in paragraph 2 wrote ‘ I write to inform you that your services in this great ministry are no longer needed with immediate effect’,  The defendant in his reply on point of law has argued that the claimant has made a mountain out of a mole hill over the issue of 3 months notice or payment in lieu of notice, in that S. 11(5)(6) of the Labour Act which deals with the length of notice to terminate a contract of employment. The section provides;

Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act·

The defendant counsel argues and also justifies the termination without notice on the grounds that the defendant had stated in his handbook at page 15(2) last paragraph that; ‘entitlement of a relieved minister will depend on the gravity of his/her offence before he/she can be entitled to three (3) months basic salary in lieu of notice’ Counsel argued that as pleaded in paragraph 5 of the statement of defendant/counter claim, that the claimant was relieved of his post for truancy, insubordination lack of respect for constituted authority etcetera. The defendant by law is under a duty to proof this assertion. See section 131(1) of the Evidence Act 2011 as amended.  I must state here very clearly that no evidence was led by the defence to establish the allegation of truancy, insubordination lack of respect for constituted authority. Rather the claimant work was continually commended with salary increment in exhibit C3, C4 and C5. There is no evidence before this court of any query or reprimand made to the claimant in respect of the allegation stated above. Furthermore, the letter of relief from duty did not contain any allegation of truancy, insubordination lack of respect for constituted authority for which DW1wants this court to believe. It appear that DW1 Pastor Robert Onuoha was procured to lie under oath and to mislead this court as to the work of the claimant with the defendant. This is an act unbecoming of a pastor. Since there is no evidence of any allegation of improper conduct as alleged made out against the claimant the defendant cannot seek to rely of section S. 11(5)(6) of the Labour Act to justify their refusal to serve 3 months notice to relief the claimant of his employment with the defendant. The defendant cannot also seek to rely on section 11(5)(6) as there is no conduct attributable to the claimant that would have entitled the defendant to treat the contract as determined without notice.

I must also point out that the duty to give notice to terminate a contract of employment has always been a duty that is vested on the employer as well as on the employee. The length of such notice depends on the intention of the parties as can be gathered from their contract. Even where the contract is silent on the length of notice, the reasonable notice rule must always be applied. The Supreme Court in the case of Kasamotu V. Wemabod Estate Ltd. [1979]LPELR-1720 (SC) stated the position thus;

The law is that generally the length of notice required for the termination of contract of employment depends on the intention

of the parties as can or may be gathered from their contract and in the absence of any express provision, the court will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); …The law enjoins the employer to give reasonable notice to the employee.

See also the case of Re-African Association V. Allen [1910]1 KB. 396

I have carefully examined Exhibit C1, in that exhibit it is clearly stated that the claimant if he intends to leave the defendant employment must give the defendant 3 months’ notice. I have also examined the last paragraph of exhibit C12 ie the defendant’s hand book wherein it is clearly stated there that The entitlement of a relieve minister will depend on the gravity of his or her offence before he/she can be entitled to 3 months basic salary.  The irresistible conclusion that can be drawn from the exhibit C1 and C12 is that the parties intended that the contract of employment can be determined by either party upon the giving of three months notice. It is immaterial that this duty is  expressed in the letter  of appointment as one which obligation to observe is placed only on the claimant as an employee. The argument by the defendant counsel in his final address that since the letter of employment exhibit C1 and the ministers handbook did not state how the claimant can be disengaged and having not shown what right was breached by the defendant, the claimant cannot reasonably complain that the termination was wrongful is misconceived and without any authority in labour jurisprudence. To hold otherwise would amount to sanctioning an unfair contractual term which this court has the power to strike down. As I have noted earlier this duty at law is placed on either party to the contract of employment. It is also clear from the authority of   Kasamotu V. Wemabod Estate Ltd ‘supra’ that it is mandatory for the employer to serve notice to terminate on the employee not withstanding whether that is expressed in the contract of employment or not.

In the light of the above position, this court is satisfied that in as much as exhibit C8 was issued without first giving the claimant 3 months notice to terminate the contract as envisaged by the contract of employment, or salary in lieu of notice, it was in breach of the contract of employment between the claimant and the defendant. This court hereby holds that exhibit C8 is a breach of the contract of employment. According it is hereby declared that the termination of engagement/employment of the claimant by the defendant vide the letter of ‘Relief of Duty’. dated the 3/11/l6 is wrongful and unlawful.

 This leads us to the quantum of damages that the claimant can claim in this action by reason of the breach of contract for failure to give the requisite notice to terminate the contract of employment. The claimant herein claims the sum of N 1,000,000 as general damages. The law is well settled that where a contract of employment or service is terminable on notice and the employee whose employment is terminated has not been served with the requisite notice, what the employee could have earned during the period of notice is the requisite damages that the employee is entitled to. Osisanya V. Afribank PLC.[2007]vol 149 LRCN P. 1586. See also the case of International Drilling Co. Ltd. Vs. Ajijala [1979] 2 SC 115 at 129.

From the above authority it is the position of this court that the claimant is only entitled to the sum being three months salary in lieu of the notice. The claim of N1,000,000 must fail and is accordingly dismissed. From exhibit C5, the last salary of the claimant was N96,000.00 Therefore the claimant is entitled to the sum of N288,000.00k as damages. The defendant shall pay the above sum to the claimant for the breach of the contract of employment between the claimant and the defendant.

ON ISSUE 2.

Whether the claimant has proof his entitlement to the sum of N6,439,525.00 being arrears of salary from 1/1/2010 to  31/12/2015 in the sum of N5,38,3525.00 and salary arrears from 1/1/2016 to 30/11/2016 in the sum of N1,056,000.00.

In proof of his entitlement to this sum the claimant testified that from January 2008, the claimant’s salary was N60.000 per month (N 720.000 annually). From  November, 2009, the claimant’s salary/allowance was N80,000 per month (N960,000.00 annually). The Salary of the Claimant from January, 2012, was N96,000.00k monthly (N1,520,000.00.per annum). The defendant tendered exhibits C3, C4, C5, in proof of the fixed salary. The claimant in paragraph 7 of his witness deposition testified that from 2010 till November 2016 his salary has been partly paid and partly unpaid. He gave a breakdown of what was paid of his annual salary and what was unpaid. The break down showed that out of a total of N6,528,000 for the period mentioned above (ie salary arrears from 1st January, 2010 to 31st December, 2015 in the sum of N5,383,525.00  he was paid N 1,144,475.00 remaining a balance of N5,383,525.00, as arrears of unpaid salary. Also he was not paid salary arrears from 1st January, 2016 to 30th November, 2016 in the sum of N 1,056,000.00. ) These two periods were the period he worked as a minister in the defendant church at Badore in Ibeju Lekki and as a minister in the state office of the defendant. The claimant also testified that on the 29/8/2016, he wrote exhibit C7 to the head of the defendant intimating him that from February, 2016 to August, 2016 he was not paid his salary and also complaining about the difficulty he was passing through with his children out of school and his landlord threatening to throw his belongs out of their accommodation. The claimant testified that it was this letter that resulted in his being relieved of his appointment. The evidence adduced above was not controverted by the defendant. The law is that the court is under a duty to act on the unchallenged evidence of a party in a proceedings before the court. See the case of Mobil Producing Nig. Ultd. V. Udo [2008]LPELR 8440 CA. The defendant’s defence to this claim is that the defendant is not indebted to the claimant and that the claimant salary has been paid as at when due. In his written address the defendant counsel relied on paragraph 3(h)iv of the CPM ministers handbook tendered as exhibit C12 which provides;

A minister in a local church should collect his allowances from his local church as and when due. Where there is more than one minister in a local church, the senior minister in charge must ensure that ministers serving under him are paid their allowances while ministers serving in the state office shall be paid their allowances from the state headquarters. The national office shall not be liable to pay unclaimed accumulated allowances

The defendant has also relied on clause 3(i) of the handbook exhibit C12 and  argued that the mission maintains no fixed salary like civil servants.   

The defendant claimed that the claimant being a minister in a local branch church at Badore, Ibeju Lekki, he ought to be paid his salaries/allowances by the local church. During cross examination DW1 was asked whether he was the one responsible for payment of salary in the defendant his answer was no and that by the defendant handbook pastors in the various branches pay themselves first before remitting 10% of the tithe to the headquarters. Defence counsel contends that this fact is collaborated by exhibit C16b which are receipts evidencing payment of thanks giving offering, tithes 10% to the defendant headquarters.

I have carefully examined the evidence adduced with respect to this issue, first I must disagree with the position of the defence counsel. Contrary to his position, exhibit C16 a and b are evidence of monthly statement of account detailing receipts and expenditure of the defendant branch church superintended by the claimant. There is no record of remittance of 10 % of the income to the defendant headquarters as alleged by the defendant counsel neither is this stipulation contained in the handbook exhibit C12. Rather the handbook in clause 3h(ii) stipulates that ‘All allowances/salaries will be approved from the office of the General Overseer or National/International Coordinator’. Further to this stipulation clause 3h(iii) goes further to stipulate that ‘No local church member, Pastor and Evangelist shall not collect any fund or offering from the church for his/her personal purpose. The person should direct his/her request to the State Coordinator who in turn reports to the Nationat/lnt’l Coordinator’.

From this stipulation the evidence of DW1that by the defendant handbook pastors in the various branches pay themselves first before remitting 10% of the tithe to the headquarters cannot be true as no such stipulation is contained in the handbook. Also with the above stipulation it is clear that finances of the local churches were controlled by the State Co-ordinator and the National/Int’l Co-ordinator it does appear the claimant was not authorised to appropriate any fund of the local church for salary or any other expense without approval.

Furthermore, contrary to what is contained in clause 3(h) (i) of the hand book exhibit C12, that the mission maintains no fixed salary like civil servants, the defendant decided to fix the salary of the claimant. The defendant is deemed to have suspended that clause when the defendant in exhibit C3, C4, C5 addressed to the claimant decided to fix the salary of the claimant. I therefore cannot agree with the defendant that the claimant has no fixed salary while in the employ of the defendant.

I have also considered clause 3(iv) of Exhibit C12 quoted above. First it not in dispute that it is the headquarters of the defendant that supervises the branch church at Badore in Ibeju Lekki. It is not in dispute that it is the headquarters of the defendant that fixed and at various time increased the salary of the claimant. It is also not disputed that by clause 3h (ii) and (iii) it is the headquarters that control the finances of the defendant church. It is also in evidence that it was the headquarters of the defendant that appointed the claimant and ordained him to serve in the branch church at Badore, Ibeju Lekki. The defendant had a duty to ensure that the claimant was paid the fixed salary stated in exhibits C3, C4, C5 by the branch church. It is trite that the duty to remunerate a worker is that of the employer which in this case is the defendant. The branch churches of the defendant form part of the defendant church organisation and are also supervised and controlled by the defendant the stipulation that the branch churches was to pay the claimant salaries is nothing different or far from the fact that it is still the defendant headquarters that ultimately bears that burden since it is no-where stated in the staff handbook that the branch churches are independent of the headquarters of the defendant. I must quickly state here that the days where a clergyman service with the church was deemed gratuitous are gone. Where a clergyman contract of service with his church organisation has been reduced into a contract in writing it follows that such contract would necessarily be subject to all the trappings and legal principles associated with a contract of service and must be construed as such.

To show the consistency in neglect in payment of the claimant wages,             the claimant was transferred vide exhibit C6 to the CPM Lagos office. Clause 3(iv) provides that a minister serving in the state office shall be paid their allowances from the state office. From March 16, 2016 to November 2016 when the claimant was transferred to the state office, the defendant failed to even pay the claimant the fixed salary. The claimant testified in paragraph 14 that after his relief from duty the defendant failed to pay his salary from January 2016 to November 2016. The claimant wrote to defendant on the 29/8/2016 in exhibit C7 complaining of the non-payment of his salary from January 2016 this was the period the claimant was still working in the state office. It is this accumulated salaries at the rate of N96,000.00k  per month totalling N 1,056,000.00k that the claimant is also claiming under the issue under consideration. This evidence was never contradicted. The defendant claims that the claimant has been paid his salary as at when due but the defendant failed to provide evidence of such payment. The law is that he who asserts the affirmative of an issue must offer proof. See section 131(1) of the Evidence Act 2011 as amended. On the summary of the evidence adduced by the parties as regarding the issue under consideration here, this court holds that the claimant has been able to proof his entitlement to the sum of N6,439,525.00 being arrears of salary from 1/1/2010 to  31/12/2015 in the sum of N5,383525.00 and salary arrears from 1/1/2016 to 30/11/2016 in the sum of N1,056,000.00.It is therefore declared that the claimant is entitled to all his accrued salaries allowances. Accordingly Judgment is hereby entered in the sum of N6,439,525.00k in favour of the claimant against the defendant in this suit.

ISSUE 3.

Whether the claimant is entitled to 6 years leave allowance of N576,000.00 at the rate of N960,000 per annum from 2010 to 2016.

The claimant in this suit also claimed the sum of N 576,000.00k as 6 years leave allowance from 2010 to 2016 at the rate of N 960,000 per annum. Apart from the merely including this claim as one of the items of claim in its statement of facts, the claimant led no evidence in proof of his entitlement to the sum herein claimed. The handbook of the defendant in clause 3(f) only states the period of the annual vacation of the ministers of the churches of the defendant without stating what the allowance is. Also the letter of appointment exhibit C1 does not also state what the leave allowance should be. The defendant counsel in his final written address has argued that there is no agreement between the parties in respect to the payment of leave allowance and that it is not the duty of the court to make agreement for the parties nor to indulge in conjectures for one party but to interpret and declare agreement made by parties. I agree with the position stated by the defence counsel as stated above. This position is sanctioned by the decision of the of the Court of Appeal in the case of Cadbury Nig. PLC V. Oni [2012]LPELR-19821(CA) where the court held;

‘it is well settled principle that the onerous duty of the court is simply to interpret and enforce the agreement lawfully entered into by the parties, the court lacks the jurisdictional competence to make contract for the parties.’

See also Stag Engineering Company Ltd V. Sabalco Nigeria Ltd. &Anor [2008] LPELR-8485 (CA)

I have examined the handbook exhibit C12 and the letter of employment exhibit C1 and indeed all the exhibits tendered in this case I cannot find any evidence upon which to find that there was an agreement to pay the claimant leave allowance at the rate and in the sum claimed in the issue under consideration here. Accordingly the claim of the sum of N 576,000.00k as leave allowance must fail and it is accordingly dismissed.

ISSUE 4.

Whether the claimant is entitled to Minister Personal Property Support Allowance of N 500,000

The claimant also claims the above stated amount as Minister Personal Property Support Allowance. The claimant who testified as CW1 stated in his witness deposition in paragraph 15 that apart from the various salary arrears, he is entitle to Ministers Personal Property Support Allowance of the sum of N500,000 and relied on the CPM ministers handbook tendered as exhibit C12. He testified that in his solicitor’s letter of demand exhibit C9 he made a demand for the payment of the above claimed sum. In his further witness deposition filed on the 1/8/2017, he testified stated ‘I received the cheque for the sum of Nl, 152, 000. 00 being my gratuity assessed by the respondent, which payment did not include my accrued salaries, allowances and ministers personal property support as stipulated in the engagement letter, plus the modifications and the defendant’s handbooks’. He further stated ‘that at no time did I waived or abandoned my right to accrued salaries or allowances or minister’s personal property support as stipulated in the engagement rules. He testified that he has put in 15 years unbroken service in the employment of the defendant and therefore entitled to ministers personal property support as stipulated in the defendant’s handbook.

     In his final address the claimant counsel relied on exhibit C11 at page 15 paragraph b with the heading Ministers Personal Property. I think the claimant counsel intended to refer to page 8, paragraph 15 (b) of exhibit C12 because that is where the provision is made for Ministers Personal Property. Counsel argued that the claimant have put in more than the stipulated number of years which makes him qualified and entitled to the amount stated in paragraph (ix) on page 9 of exhibit C12. Counsel urged the court to grant the claim.

The defendant did not specifically lead any evidence to controvert the evidence led by the claimant in proof of this claim. The defendant defence to this claim is that the claimant admitted receiving a Stanbic IBTC bank cheque for the sum of N 1,152,000.00k in  in exhibit D1(b) and signed exhibit D1(a) in full and final settlement of all the claimants claims against the defendant, because in exhibit D1(b) it is stated that ‘by this therefore I have no further claims to make from the mission’ Counsel argued in his written address that the filling of this action together with the claim therein is nothing but an afterthought and act of gold digging which the court ought to halt. He cited the case of  Sunday Adegbite V. Taiwo Sarah Adegboro [2011] LPELR -3133(SC). By implication the defendant position is that by signing Exhibit D1(a) the claimant forfeited his rights to any further claims he might have had against the defendant.

I have carefully considered the evidence led with respect to this issue as well as the defence of the defendant. First the question is whether the sum paid vide exhibit D1(b) and the document signed i.e exhibit D1(a) can be a defence to all the claims of the claimant and thus bars the claimant from making further claims against the defendant. I must first of all consider exhibit D1(a). it is dated 18/11/16 and written by Christian Pentecostal Mission INT’L. administrative headquarters. It reads;

                        GRATUITY SETTLEMENNT

This is to certify that I John Uchenna Uzor have this day received my gratuity benefits from the Christian Pentecostal Mission International paid on 18th  November 2016. Bank cheque No 00003243 of Stanbic IBTC for the sum of N1,152,00.

By this therefore, I have no further claims(s) to make from the mission

Sign…….

From the content of this document it is very clear that this document relates to gratuity payment only. Any other interpretation of this document would mean importing into the document what was never contemplated. The law is that no oral evidence can contradict the content of a documentary evidence. In the case of Mr Ray Akanwa V. Hon. Sylvester Ogbara [2016]LPELR-41054 (CA). The Court of Appeal stated the principle thus;

A document speaks for itself. Oral testimony is inadmissible to vary, add to or take away from the content of a document under section 128 of the Evidence Act

See also the case of N.I.D.B. V. Olaloni Industries Ltd. [2002] 5 NWLR Pt. 761 pg. 523. See S. 128(1) of the Evidence Act 2011.

It is the position of this court that the argument by the defence counsel that by signing exhibit D 1(b) with the clause that the claimant has no further claim to make from the mission, in that he is not entitled to sue for his arreas of salary and ministers property allowance is to import into exhibit D1(a) what was never contemplated by the document and I so hold.

Returning back to the claim of the claimant the law is that a party who makes a claim of monetary entitlement which is in the nature of special damages is required to specifically plead facts establishing the claim and lead evidence in proof of same. In the case of Alhaji Otaru &Sons Ltd V. Idris 7Anor [1999]6 NWLR (Pt 606) P.330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded . See also the case of LCC V. Unachukwu [1978]3 SC.199 . The claimant was confirmed as a minister on the 13/6/2003 vide exhibit C2. From that period up to 3/11/2016, the claimant has put in over 13 years in the service of the defendant. Clause 3(b)(x) of the defendant handbook exhibit C12, dealing with ‘Ministers’ Personal Property’ which recognises the need for ministers to own properties of their own with the support of the defendant makes a minister who has put in 10 years of unbroken service in the defendant after confirmation to be entitle to the sum of N 500,000.00k.  the proviso to this clause states;

The fund shall be provided by the local church where the minister is serving PROVIDED ALWAYS that in the event that the local church is not capable to provide the fund. The state co-ordinator of the state where the minister is serving shall make provision of the support fund for the minister from the State purse.

On the strength of the above provision it is clear that the claimant was qualified to receive the minister’s property allowance having put in over 13 years as a confirmed minister in the service of the defendant mission. It is also clear that it was the duty of the state office controlled by the defendant to provide the fund in the event of the local church inability to provide the fund for the payment. And as earlier held in this judgment there can be no separation of the local church, the state office from the defendant’s international headquarters.  

The evidence adduced by the claimant in support of his entitlement to the sun claimed herein was never contradicted by the defendant. The law is trite and it is that un-contradicted evidence which is admissible, relevant, credible and not discredited by cross examination must be accepted and acted upon by the court. See the case of Egbunike & Anor V. African Continental Bank Ltd. [1995]LPELR-1039 (SC). See also Adejumo V.Ayantegbe [1989]3 NWLR (Pt 110) 417.

This court is bound to act on the un-contradicted evidence of the claimant in this suit. This court hereby holds that the claimant has proved his entitlement to the sum of N 500,000.00k claimed as minister personal property allowance. The defendant shall pay the above stated sum to the claimant.

 

ISSUE 5

Whether the defendant is entitled to the refund of the sum of N1,152,000 paid as gratuity to the claimant which the defendant is counter claiming from the defendant.

The defendant in this suit in their statement of defence/counter claim filed on the 28/3/2017 counter claim against the claimant and seeks (a) An order that the claimant is indebted to the defendant in the sum of N1,152,000.00k

(b) An order that the claimant pays the defendant the sum as stated above.

If I may recall this the sum paid to the claimant vide exhibit D1(a) and D1(b).

The claimant witness DW1, one pastor Robert Onuoha stated in paragraph 10 of his witness deposition that the claimant was paid Nl,152,000:00k (One million, one hundred and fifty two thousand naira) on being laid off an amount far in excess of his entitlements, having not worked for fifteen (15) years since his confirmation as provided for by the defendant handbook, the claimant was not entitled to the amount paid him. The defendant/counter claimant counsel in paragraph 5.16 of his final written address on one breath argued that by exhibit C17A & C7B sic (apparently intending to refer to exhibit D1(a) and D1(b) which the claimant received the gratis sum of N1,152,000.00k indicates that the defendant is not indebted to the claimant. On another breath counsel argues in paragraph 6.01of his final written address, that the said sum was erroneously or mistakenly paid to the claimant contrary to the provision of the defendant handbook. Whatever the defendant indeed intended this payment to be, the defendant by this evidence is blowing hot and cold. The defendant by this counter claim wants the gratis gift to be refunded back to the claimant this is very incongruous. I have already stated in this judgment that the payment in Exhibit D1(a) and D1(b) was nothing more than gratuity benefit of the claimant. It could not have been gratis gift payment. Even if it was gratis gift, one wonders why the defendant is seeking its refund by this counter claim. This not-withstanding, the question this court is concerned at this stage is whether the claimant was entitled to the gratuity payment.  The defendant counsel has argued that the claimant was erroneously paid the said sum because the claimant had not put in up to 15 years to be entitled to the sum by the claimant handbook exhibit C12. Counsel also argued that the claimant who testified as CW1 had admitted during cross examination that he had only worked for 13 years 6 months. The resolution of this question must lead us to the provision of clause 2 paragraph 3 of page 15 of the exhibit C12 i.e the claimant hand book. For the avoidance it is provided thus;

Upon the acceptance of the resignation, the minister shall be entitled to one (1) year basic salary provided he is a confirmed minister and has served for a minimum period of 15 years after confirmation. The National/International Co-ordinator shall determine the severance entitlement (if any) of a confirmed minister who has served for less than 15 Years after confirmation,

(underlining for emphasis)

 From the underlined portion of the above quoted hand book relied upon by the defendant counsel in paragraph 6.02 of defendant/counter claimant written address,  it is clear that a minister who has not served up to 15 years is still entitled to gratuity payment, not-withstanding that he has not put in 15 years. When the defendant decided to pay the claimant N 1, 152,000.00k vide exhibit D1(a) and D1(b) it is the belief of this court that it was what the National/International Co-ordinator of the defendant had assessed as the severance entitlement of the claimant who was a confirmed minister pursuant to the provision of the handbook quoted above. It would be very un-conscionable for the claimant to serve in the defendant organisation since 1999 when he was first employed to 2016 and be asked to walk away with empty hands. To now claim that payment from the claimant by way of counterclaim by the defendant is like giving a man his entitlement with a right hand and now turning around to use a bad left hand to attempt to take it back. In view of the above position it is the decision of this court that the defendant has woefully failed to discharge the evidential burden placed on him to proof his entitlement to the counter claim. Accordingly the counter claim fails and is hereby dismissed.

CONCLUSION.

In conclusion the claims of the claimant succeed in part. Judgement is hereby entered in favour of the claimant in the following terms.

1)    It is hereby declared that the termination of engagement/ employment of the claimant by the defendant vide the letter of ‘RELIEF OF DUTY’ dated the 3/11/2016, is wrongful and unlawful.

2)    The Claimant is entitled to damages for the wrongful and unlawful termination of his engagement/employment. Accordingly the defendant shall pay the claimant the sum of   N 288,000.00k as 3 months salary in lieu of notice as damages for breach of contract of employment between the claimant and the defendant.

3)    The defendant shall pay the claimant the sum of N6,439,525.00k being arears of salaries/allowances owed the claimant by the defendant while in the employment of the defendant.

4)    The defendant shall pay the claimant the sum of N 500,000 being Ministers Personal Property Allowance.

5)    The claim of N576,000.00k as 6 years leave allowance is hereby dismissed.

6)    The counter claim of the sum of N 1,152,000.00k by the defendant is hereby dismissed.

The monetary sum awarded in this judgment shall be paid within 30 days from the date of this judgment.

I make no order as to cost parties are to bear their respective cost.

Judgment is entered Accordingly

Sign ___________________________________

                  Hon Justice (Dr.) I. J. Essien

                         (Presiding Judge)

admin

Website:

Related Story