IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN IN LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (DR.) I. J. ESSIEN
DATE: 16th May, 2019
SUIT NO: NICN/LA/515/2018
BETWEEN
TOLULOPE ADEOLUWA BADERO …………………….…….. Claimant
AND
MURPHY SHIPPING & COMMERCIAL SERVICES LIMITED
MOJISOLA AGBABIAKA
OJUOLAPE OSINAIKE
ADEOLA AGBABIAKA. ……… Defendants
KAMAR BAKRIN
OLASENI AGBABIAKA
ADEKUNLE Alli
REPRESENTATION:
- A. Owolabi Esq.
No representation for the Defendants
JUDGEMENT.
The claimant by a complaint dated and filed on the 12/10/2018 sought the following reliefs from this court:
- A declaration that the 1st defendant is in breach of the terms of the contract of employment dated the l lth day of February and 29th day of April, 2013 which it executed with the claimant.
- A declaration that the 2nd to the 7th defendants as the management team of the 1st defendant induced the 1st defendant to breach the terms of contract of employment dated the 11th day of February and the Business Development Personnel Agreement dated the 29th day of April, 2013 which it executed with the claimant.
- An order compelling the defendants to produce evidence of the remittance of all the sums purportedly deducted as taxes as at when due (PAYE) from the claimant’s emoluments from the years 2015 to 2018.
- An order compelling the defendants to produce evidence of the remittance of all sums purportedly deducted as pension as at when due from the claimant’s emoluments from the year 2015 to 2018.
- The sum of N132, 095. 50 (One hundred and thirty 1wo thousand, ninety five naira, fifty kobo) representing 50 percent of the unpaid salary for November 2017.
- The sum of N179, 435. 88 (one hundred and seventy-nine thousand, four hundred and thirty five naira eighty-eight kobo) as leave entitlement for the year 2017.
- The sum of N2, 972, 738.73 (two million, nine hundred and seventy two thousand, seven hundred and thirty eight naira, seventy three kobo) being the total outstanding commission on work done by the claimant during the period of her employment with the 1st defendant from years 2015 to 2017.
- The sum of N5, 000, 000 (five million naira) as general damages for breach of contract.
- Interest on the sum of N2, 972, 738.73 (Two million, nine hundred and seventy thousand, seven hundred and thirty eight naira, seventy three kobo) at the rate of 17% from the date of filing of this suit until final judgment is entered for the claimant and thereafter at the rate of 21 % per annum.
- Interest on the sum of N179,435. 88 (one hundred and seventy-nine thousand, four hundred and thirty-five naira, eighty-eight kobo) at the rate of 17% from the date of filing of this suit until final judgment is entered for the claimant and thereafter at the rate of 21 % per annum.
The defendants in this suit were served with the originating process on the suit 16/10/2018 but they failed to enter appearance or file a defence to this action. Hearing in this suit commenced on the 15/1/2019. The claimant testified as CW1and tendered the following documents in evidence:
- Letter of offer of employment dated 11/2/2013 exhibit C1.
- Business development personnel agreement exhibit C2.
- Letter of confirmation of appointment dated 21/2/2014 exhibit C3.
- Letter of resignation of appointment as Head Business Development Unit dated 11/11/2017 Exhibit C4.
- Letter of acceptance of resignation of appointment dated 17/11/2017, exhibit C5
The matter was adjourned to the 15/3/2019 for cross examination and defence. On that date the defendants still did not put up an appearance and a defence despite being served with hearing notices. The claimant addressed the court on the 15/3/2019 and the matter was adjourned for judgment.
BRIEF FACTS OF THE CASE.
The facts of this matter are that the claimant was employed by the defendant on the 11/2/2013 as the Business Development Manager. The claimant accepted the position and also entered into a Business Development Agreement dated the 29/4/2013. By the contract of employment the claimant remuneration was subject to sundry deductions for tax and pension. The claimant also allege that by the terms of the BDA the defendant was to pay the claimant 5% commissions as a marketer in addition to her regular monthly emoluments. The claimant alleges that the defendants defaulted in the payment of the agreed emolument and the 5% sales commission as agreed in the BDA. The claimant latter resigned her appointment with the defendant on the 14/11/2017. In response to the letter of resignation the 1st defendant in a letter dated 17/11/2017 accepted the letter of resignation and acknowledged the 1st defendant indebtedness to the claimant in the sum of N 5,001,904.93k. The claimant latter instituted this action against the defendants
ISSUES FOR DETERMINATION;
From the facts and circumstances of this case this court would consider the claims as endorsed on the statement of facts as the issue for determination in this suit.
ON CLAIAM NO 1, 2, 3and 4.
In claims 1 and 2 the claimant seeks a declaration that the first defendant is in breach of the terms of contract and that the 2nd to 7th defendant as the management team of the defendant induced the 1st defendant to breach the terms of contract of employment dated 11/2/2013, and the Business Development Agreement dated the 29/4/2013. The claimant gave evidence in paragraph 20, 21, 22, and 23 of his witness deposition that by the terms of the contract of employment as shown on exhibit C1, the 1st defendant made deductions of tax and contributory pension from the salaries and emoluments of the claimant which the 1st defendant withheld and failed to remit to the appropriate authorities and to the claimant Pension Fund Administrator (PFA). In exhibit C1 it is clearly stated in the first line of page two that ‘This salary is subject to deductions for tax and pension as required by Federal and State Laws.’ I have read through Exhibit C5. In the last paragraph of page 1 of the said exhibit, the 1st defendant wrote ‘Your unsettled salary would be paid into your bank account, while your unremitted pension will be remitted to your RSA in due course.’ This paragraph of exhibit C5 is an affirmation by the1st defendant that they indeed have not been remitting the deductions from the salaries of the claimant to the appropriate authority and to the claimant PFA. Be this as it may, the claimant however has not established by credible evidence the involvement of the 2nd to 7th defendant in the breach complained of. In paragraph 3 of the statement of facts and paragraph 6 of the witness deposition the claimant pleaded and gave evidence that the 2nd to 7th defendants are directors of the defendant and therefore constitute its management staff. Though this evidence was never contradicted it is however insufficient to establish the directory position of the 2nd to 7th defendant. The best evidence in this regard should have been the directors form CO7 containing the particulars of directors of the 1st defendant. The mere fact that the claimant has stated in his witness deposition that 2nd to 7th defendant constitute the management staff of the 1st defendant is not enough to establish their liability in the breach. This is particularly important in view of the fact that the claimant in this suit is claiming against the defendants jointly and severally. While it is trite that a company as an artificial entity must act through human agents the liability of the company for those acts of its officers cannot ordinarily call in the personal liability of the officers in the course of performing their duties on behalf of the 1st defendant as in this case. It must also be made clear here that it is not all management staff whose acts can bind the company. In the case of Orji V. Anyaso [1999] LPELR-57110 (CA)
The Court of Appeal held that it is not the act of every officer of a limited liability company that binds the company as a principal, it is those whose acts because of their position can be considered as the alta ego of the company. See also NNSC V. Hamajoda Sabana Co. Ltd. [1999] 3scnj (Pt.130)
The claimant has also not led any evidence in this case to establish the designations of the 2nd to the 7th defendant in their managerial capacity in order for the court to determine whether their act can bind the company. See the case of Ogbaji V. Arewa Textiles PLC [2000]11NWLR (Pt678) at 322. Pg. 337-338. In the absence of such evidence this court is unable to make a declaration that the management team constituted by the 2nd to 7th defendant induced the 1st defendant to commit a breach of contract of employment between the claimant and the defendant. The declaration sought for in this regard in the second relief is hereby refused and accordingly dismissed.
However in the light of the above analysis this court is satisfied that the 1st defendant alone did in fact breached the terms of the contract or employment entered into between the claimant and the 1st defendant. Accordingly this court hereby declares that the 1st defendant is in breach of the terms of the contract of employment dated the 11th day of February and 29th day of April, 2013 which it executed with the claimant following their refusal to remit the deductions of tax and pension contributions to the appropriate authority and the PFA of the claimant. Accordingly the 1st defendant is hereby ordered to file evidence of the remittance of all sums purportedly deducted as pension contribution and tax from the salary and emoluments of the claimant from the year 2015 to November 2017
In tandem with the above position taken by this court I hereby make the following orders;
(a) The defendants are ordered to file before this court the evidence of the remittance of all sums deducted as taxes as at when due from the claimant emolument from April 2013 to November 2017.
(b) The defendants are ordered to file the evidence of remittance of all sums deducted as pension as at when due from 2015 to November 2017 when the claimant ceased to be in the employment of the defendant.
ON CLAIM NO 5 & 6.
- Under this heads, the claimant claims the sum of N132, 095. 50k (one hundred and thirty two thousand, ninety five naira, fifty kobo) representing 50 percent of the unpaid salary for November 2017. And also the sum of N179, 435. 88k (One hundred and seventy-nine thousand, four hundred and thirty five naira, eighty-eight kobo) as leave entitlement for the year 2017. And
- The sum of N179, 435. 88 (One hundred and seventy-nine thousand, four hundred and thirty five naira eighty-eight kobo) as leave entitlement for the year 2017.
It is important to state that these heads of claims are in the nature of special damages. The law is trite and it is that for a party to succeed in a claim for special damages, such claim must be specifically pleaded and strictly proved. See the case of Salaudeen V. Oladele [2003]3 NWLR (Pt.806) at pg. 29.
I have carefully read through the pleadings of the claimant and the witness deposition of the claimant in this suit. Apart from merely stating these sums as part of his claims in this suit, the claimant did not offer any evidence oral or documentary to substantiate his entitlement to these sums. There was no oral evidence as to how he became entitled to these sums in the witness deposition which would have been sufficient to satisfy the requirement of proof in this circumstance as was the case in Salaudeen V. Oladele ‘supra’ This court cannot grant the reliefs. The reliefs are refused and accordingly dismissed.
ON CLAIM NO. 9 & 10.
In these relieves the claimant claims interest at the rate of 17% on the figures claimed on relieves No 5 and 6 earlier dismissed in this judgment. The law is that when a party claims interest in a suit as a matter of right, the fact of entitlement must be pleaded by the claimant and evidence led to establish same. It is only when the court is satisfied after reviewing the pleadings and the evidence that it may award same. The basis of the award of interest must be made manifest. It is not enough to merely say that the plaintiff is claiming interest. See S.A.E.P & U. V. UBA PLC [2010]17 NWLR (Pt. 1221). See also Chief Anthony Edosa V. First Bank of Nig. PLC [201 l] LPELR-8785 CA. see also UBA V. Sepok Nig. Ltd. [1998]12 NWLR (pt. 578) at 439.
The claim of interest in this suit by the claimant is standing on a faulty foundation. The claimant failed to establish the basis of the claim and no evidence was led to establish this as required by law. This notwithstanding the sums upon which the interest has been claimed having been dismissed for lack of proof, the interest claimed on those figures cannot be awarded by the court. These reliefs fail and are hereby dismissed.
ON CLAIM NO 7.
In this relief the claimant claims the sum of N2, 972, 738.73k, being the total outstanding commission on work done by the claimant during the period of her employment with the 1st defendant from years 2015 to 2017. Again this relief is a special damages claim. The law require strict proof of the entitlement to this sum. See the case of Salaudeen V. Oladele ‘supra.’ It is not in doubt that by exhibit C2, the claimant was entitled to 5% commission on all new business and or re-established business driven by the claimant, as well as share another 5% commission on all new business and or re-established business driven by the claimant with other marketers. By exhibit C2, Such commission was payable upon receipt of payment by client for services rendered and driven by the claimant and other marketers. This clause imposes a duty on the claimant to establish what was paid in by the 1st defendant clients so as to arrive at the figure the claimant claims under this relief. The claimant failed to plead facts and lead evidence to establish how he arrived at the figure he claims under this head. In a rather absurd and unexplained circumstances the claimant counsel ignored the figure stated in exhibit C5 which is greater than the figure claimed under this head as commission. Exhibit C5 equivocally amounts to admission of indebtedness to the claimant which the counsel would have prudently taken advantage of. In another very absurd circumstances the claimant counsel in the 2nd issue formulated for determination in page 6 of his final written address is asking the court to determine whether the claimant is not entitled to the sum admitted in exhibit C5. The question is, on what basis would the court determine this question when the claimant failed to claim this admitted sum as one of the reliefs in this action? The law is very well settled in this area. In the case of Ogbaji V. Arewa Textiles PLC ‘supra’ the Court of Appeal stated;
A court can only grant the relief sought by a party and any order made outside such prayer must be refused. There is no power in any court to grant a relief not claimed except they are orders that can properly be construed as consequential orders. A court of law is not a charitable institution and its duty in civil cases is to render unto everyone according to his proven claim. In the instant case, in the absence of any relief claiming general damages for the appellant’s failure to find a new employment, the award of N20,000.00 by the trial court for that reason wrong.
See also Akinbobola V. Plisson FiskoNig Ltd. [1991]1 NWLR (Pt.161)270, Kalio v. Kalio [1975]2 SC at 15.
This court would ignore the claimant’s call on the court to determine his entitlement to this unclaimed sum.
On the strength of the above adumbrated state of facts and the law it is the decision of this court that the claimant failed to proof his entitlement to the sum claimed in relief No 7 in this action. Accordingly the relief fails and is hereby dismissed. However, a window of opportunity still exist, if the claimant intends to pursue his rights on the admission of liability as contained in Exhibit C5, if the claimant has not already been paid by the defendant.
ON ISSUE NO 9.
In this relief the claimant claims N 5million naira as general damages for breach of contract. I have in this judgment held that that the 1st defendant was in breach of the contract of employment between the claimant and the 1st defendant for failure to remit tax deduction to the appropriate authority and pension contribution to the claimant Pension Fund Administrator. The content of exhibit C5 where the defendant stated ‘your unsettled salaries will be paid into your bank account, whilst your unremitted pensions will be remitted to your RSA in due course’ This is the evidence of this breach. The failure to remit the pension contribution of the claimant to enable the claimant access the funds after leaving the employment of the defendant must have caused some inconveniences to the claimant. This is an appropriate case in which this court can award damages to the claimant for the breach. This court hereby makes an order that the defendant should pay the claimant the sum of N200,000 as general damages
ON CLAIM NO 11
The claimant claims solicitors fees in this action. Apart from the fact that the facts, establishing the claim was never pleaded nor evidence led in proof of same, This is a claim that does not win the favour of the courts in Nigeria. In the case of Christopher Nwanji V. Coastal Services Nig. Ltd [2004] LPELR-2106, the court held The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. This relief must fail and it refused and accordingly dismissed.
On the whole this suit succeeds in part. Judgment is hereby entered in the following terms;
- It is hereby declared that the lst defendant is in breach of the terms of the contract of employment dated the l1th day of February and 29th day of April, 2013 which it executed with the claimant following their refusal to remit the deductions of tax and pension contributions to the appropriate authority and the PFA of the claimant. Accordingly;
(a) The defendants are ordered to file before this court the evidence of the remittance of all sums deducted as taxes as at when due from the claimant emolument from April 2013 to November 2017.
(b) The defendants are ordered to file the evidence of remittance of all sums deducted as pension as at when due from 2015 to November 2017 when the claimant ceased to be in the employment of the defendant.
- The defendant shall pay the claimant the sum of N200,000 as general damages for the breach of the contract of employment between the claimant and the 1st defendant
The orders made in this judgment and the monetary awards shall be satisfied with 30days from the date of this judgment, default of which shall it attract interest at the rate of 10%.
Judgment is hereby entered Accordingly.
___________________________________
HON. JUSTICE (Dr.) I. J. ESSIEN.
(presiding judge)
