MR. CHARLES IFEANYI CHINDA -vs- DEC OIL &GAS NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 28^th day of January, 2020 SUIT NO: NICN/PH/25/2018

BETWEEN

CHARLES IFEANYI CHINDA————————- CLAIMANT

AND

DEC OIL &GAS NIGERIA LIMITED ———————— DEFENDANT

Representations:

F.F. Sada with Ikechukwu Emmanuel for the Claimant.

S.O. Isiaka for the Defendants.

Judgment.

This suit was commenced by way of a General Form of Complaint filed on the 21^st of February, 2018 along with an affidavit of verification, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial. The statement of fact was however amended on the 3^rdof July, 2019.

Arising from the Amended Statement of fact, the Claimant’s claims against the Defendant are:

i)A Declaration that the Claimant is entitled to full terminal benefits having served meritoriously as Defendant’s employee for the period commencing 21/11/2005 and ending 31/11/2015.
ii)The sum of N2,558,619.00 (Two Million, Five Hundred and Fifty-eight Thousand, Six Hundred and Nineteen Naira) being outstanding terminal benefit owed and payable to the Claimant on account of his long term service as Defendant’s employee.

iii) An Order of Court compelling the Defendant to refund the sum of N2,410,571.40 (Two Million, Four Hundred and ten Thousand, Five Hundred and Seventy One Naira, Forty Kobo) to the Claimant being the contributory pension deducted from Claimant’s salary from November, 2011 to December 2015.

iv)An order of Court compelling the Defendant to pay the sum of N180,000.00 being the total sum illegally deducted from Claimant’s salary for the months of June, July and August 2011.

v)The sum of N5,000,000.00 general damages for anguish, hardship and embarrassment caused by Defendant’s failure to honour its contractual obligations to the Claimant.

In reaction to the claims, the Defendant filed memorandum of conditional appearance on the 22^nd of January, 2019 while on the 6^th of February, 2019, the Defendant filed a statement of defence along with list of witnesses and witness statement on oath.

The Defendant also filed an amended statement of defence on the 17^th of June, 2019 also with a list of witness, amended witness statement on oath, amended list of documents and copies of the said documents.

Trial commenced in this suit on the 7^th of April, 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness for the Claimant as CW1 and he adopted his witness statements on oath marked as C1(a), C1(b) and C1(c). Through the said CW1, 18 documents were tendered in evidence and admitted asexhibits C2 – C19 with Exhibits C16 – C19 admitted under protest.

Arising from theamended statement of facts and witness statements on oath, the case for the Claimant is that Pursuant to a letter dated 15/12/2000, the Claimant was offered a job as Accounts Clerk by the Defendant on a six-month probationary period after which same was confirmed by the Defendant via a letter dated 15/6/01. The Claimant further avers that in November 2005, the defendant declared his position redundant thereby laying him off and paid the relevant redundancy benefits but barely a week after that, the Defendant offered him another appointment as Accounts Supervisor on 21/11/2005. He added that by mutual and implied conduct, the parties continued to treat the contract of employment as continuing after the initial one year without a formal letter of renewal. The Claimant averred that he wrote to the Defendant to seek for formal renewal of their contract of employment but the Defendant refused and ignored the demand and thus continued to treat the contract of employmentas having been converted into a permanent contract of employment by its conduct. Claimant averred further that the Defendant from 2011 deducted a substantial amount of money every month from the claimant’s salary and allegedly paid same to a pension manager called IEI Anchor Pension Managers Limited while also slashing the Claimant’s salary by 40% for the months of June, July and August 2011. Claimant added that he was later promoted to the post of Senior Accounts supervisor before he was disengaged on 30/11/15 upon which he observed that his terminal benefits were erroneously or mischievously computed on a basis other than that used for calculating terminal benefits of senior staff of the defendant and thereby shortchanged. Claimant also averred that upon enquiries at IEI Anchor Pension Managers Limited, the claimant discovered that between November 2011 and November 2015 the Defendant ought to have remitted the sum of N1,188,000.00but failed to do same.

Upon cross examination, CW1 stated that by exhibit C5, the kind of employment he had was contract employment and the duration is one year which was renewed but not in writing. CW1 admitted he was paid based on exhibit C10 and that he protested same by exhibit C11 which led to a meeting with the Defendant. CW1 also admitted that Exhibit C14 was not referred to in C5 and that clauses 5-55 of Exhibit C14 relates to him while he insisted that the computation used in paying him was wrong.

Upon the recall of CW1, he stated under cross examination that he was employed as contract staff but it is not true that he remained one. He admitted not being a member of PENGASSAN while contending that the collective agreement applies to all staff and denied that his letter of appointment states the terms and condition of his employment. CW1 also admitted that he signed Exhibit C18 because he accepted it while admitting not being the maker of C17(a)- (f).

Upon the discharge of CW1, the claimant closed his case while the Defendant opened theirs. In doing so, the Defendant called one witnesses in person of Steve Olisa as DW1 who adopted his statement on oath which was marked as D1. Through the said DW1, two documents were tendered in evidence and admitted as Exhibits D2(a) – (d) and D3 while Exhibit D3 was admitted under protest.

Arising from the Amended statement of defence and witness statements on oath, the case of the Defendant is that during the employment of the Claimant, the Defendant met all of its obligations under the contract of employment including those prescribed by statute and when there was financial crisis in the company which compelled Defendant to reorganize its operations including downward review of salaries of its employees, the affected employees including Claimant were notified and they accepted the revised salary. The Defendant averred that at the time Claimant’s employment was terminated, his terminal benefit was N1,933,000.00 (One Million, Nine Hundred and Thirty-three Thousand Naira) and not N2,558,619.00 (Two Million, Five Hundred and Fifty-eight Thousand, Six Hundred and Nineteen Naira) while the unremitted pension is N1,134,000.00 and not N2,410,571.40 as claimed. The Defendants avers in admission that its own part of the pension contribution was not remitted due to the Defendant’s financial crisis but they are ready to remit same now while adding that the computation made of the Claimant’s terminal benefit was not in error as the Claimant was a contract staff and not a member of PENGASSAN.

Upon cross examination, DW1 stated that PENGASSAN staff were paid based on Collective Agreement and there were initially two of such PENGASSAN Staff but now there is none. DW1 admitted that there is no written letter or document reviewing the one year contract given to the Claimant and that the Claimant worked for 10 years without any documentation. He admitted further that the amount paid as terminal benefit was paid by transfer and no mention of terminal benefit was made in Exhibit C2(a). DW1 admitted that N1,134,000 was not remitted as pension contribution and same has not been paid while adding that the 10years of service was taken into account in computing the Claimant’s terminal benefit.

Upon discharge of DW1, The Defendant closed their case and matter was adjourned for adoption of final addresses.

The Defendant filed their final written address on the 15^th of October, 2019 and arising from the said final address, counsel to the Defendant, SaidiIsiaka Esq. formulated a lone issue for determination to wit:

whether the claimant has proved his case and is entitled to the reliefs sought in this suit.

In arguing the lone issue, counsel submitted that the Claimant has totally failed to prove his case against the Defendant, and he is therefore not entitled to the Judgment of this Honourable Court. Counsel added that the law is settled that the burden of proof in civil proceeding rests on the person who desires the Court to give judgment in his favour in respect of any legal right, which is the subject of dispute between the parties. Counsel cited sections 131 and 132 of the Evidence Act 2011 and the case of SUNDAY EZEHI OKORIE v. IGNATIUS UNAKALAMBA & ANOR (2013) LPELR – 22508 (CA) PAGE 40-42.

Counsel thereon argued that the claimant’s case for payment of his entitlements is not based on Exhibit C5 but Exhibit CA16 (Collective Bargaining Agreement) and that it is noteworthy, that the Collective Bargaining Agreement (CBA), was not incorporated by Exhibit CA5 or any other document, regulating the employment of Claimant. Counsel added that the law is settled that what regulates the relationship between an employer and employee is the service agreement or the contract of service. Counsel also submitted that a collective agreement on its own, is not binding on an individual employee and the employer, unless such a collective agreement is incorporated into the contract of service or adopted as part of the contract or condition of service. He cited the case of UBN PLC v. SOARES (2012) 11 NWLR (Pt.1312) page 550; P.568, paragraphs A – B.

Counsel argued that the Claimant was a contract staff, and not a permanent staff of Defendant and also, not a member of PENGASSAN, as per Exhibit D2A – D2D, therefore, he cannot take a benefit of Exhibit C16-(CBA). He added that the claim of entitlement to terminal benefit, is based on speculation, and not on any legal basis and cited the case of ZABUSKY v. ISREAL AIRCRAFT IND (2008) 2 NWLR (Pt. 1070) C.A 109 PAGE 133, PARAGRAPHS E-G 137 PARAGRAPH D)

With respect to the claim of N180,000.00 (One Hundred and Eighty Thousand Naira) allegedly deducted from Claimant’s salary in June, July and August in 2011, counsel submitted that a period of six(6) years have passed before this case was filed, claiming for the said amount and by the provisions of Limitation Law (Cap.80) of Laws of Rivers State of Nigeria 1999 Vol.4, the claimant ought to have sought legal redress within five (5) years, after the refusal of Defendant to respond to the Claimant’s demand and the implication of same is that the claim in that respect is statute barred. He cited the case of SAVANNAH BANK OF NIGERIA LTD. v. PAN ATLANTIC (1987)1 NWLR (Pt.49)212; (1897) NSCC VOL.19 (Pt. 167).

With respect to the claim of N2,410,571.40 (Two Million, Four Hundred and Ten Thousand, Five Hundred and Seventy-one Naira, Forty Kobo) being the sum not remitted to Claimant’s pension managers, Counsel posited that the Defendant has admitted the claim of non-remittance, but disputes the computation of interest by claimant in paragraph 28 of the Statement of Claim.

He added that the claim for interest in this regard, is in the realm of special damages and requires to be specifically pleaded and proved. he cited the case of DUMEZ (NIG) LIMITED v. OGBOLI (1972) 1 ALL NLR 244; OSUJI v. ISIOCHA (1989 3 NWLR (Pt .111) 623 AND JABER v. BASMA (1952) 14 WACA 140.

With regards to claim of damages, Counsel submitted that the claimant is not entitled to the award of damages as Defendant has not been shown to have committed any wrongful act in law against Claimant to warrant the award of damages.

Counsel concluded by urging the Court to dismiss the Claimant’s case.

Reacting to the Defendant’s final address, the Claimant filed his final address on the 21^st of November, 2019 wherein counsel to the Claimant, F.F. Sada, Esq. formulated four issues for determination to wit:

Whether the claimant was a permanent staff of the defendant.
Whether the provisions of Exhibit C16, the Collective Bargaining Agreement, was incorporated into the claimant’s contract of employment and thus applicable in the calculation of his entitlements.
Whether the claimant has adduced credible evidence to prove his entitlement to the outstanding terminal benefit of N2,558,619 (Two Million Five Hundred and Fifty-eight Thousand Six Hundred; Nineteen Naira); deducted salaries of N180,000.00; and unremitted pension funds of N2,410,571.40 (Two Million Four Hundred and Ten Thousand Five Hundred and Seventy-One Naira Forty Kobo)
Whether the claimant is entitled to the sum of N5,000,000 general damages for anguish, hardship and embarrassment caused by the Defendant’s failure to honour its contractual obligations to the claimant.

In arguing issue one, counsel submitted that the law is that where an employment is not expressly renewed but the employee continues in the employment of his employer, such employment has been converted into a permanent one. Counsel cited the case of MR. CASMIR ONUCHUKWU V. PETROLEUM PRODUCTS PRICING REGULATORY AGENCY- SUIT NO. NICN/ABJ/373/2017 delivered on 2/5/2019.

Counsel added that in the instant case, the claimant continued to work for the defendant for ten (10) consecutive years and continued to receive monthly salaries, enjoyed the benefits of salary reviews, leave allowances, and the pension arrangement all of which means that the claimant’s contract for one year was converted to a permanent one by operation of law.

In arguing issue two, counsel cited the case of THE RECTOR, KWARA STATE POLYTECHNIC V. OLA ADEFILA [2007] 15 NWLR (Pt. 1056) 42 at 91 to contend that the case of the claimant is that the defendant, by its conduct, incorporated the terms and conditions of Exhibit C16, a collective bargaining agreement, into his contract of employment and cannot be allowed to resile from same; and thus, Exhibit C16 is applicable in the calculation of his entitlements.

Counsel referred to paragraphs 20 of the statement of fact and paragraph 7 of the Amended Reply to Statement of Defenceand added that the claimant gave as an example, the names of six persons to whom the defendant applied the provisions of Exhibit C16 even though they were not members of PENGASSAN.

Counsel also referred the court to paragraph 2 of exhibit D3 which he considers to be a material contradiction with regards to the application of exhibit C16 in computation of terminal benefit. Counsel cited the case of OGBOMO V. OGBOMO (2014) JLP 42365 (CA).

Counsel added that from the evidence before the court, the defendant adopted Exhibit C16, the CBA as being applicable to the claimant, expressly, by signing Exhibit C16 and by implication havingfurnishing the claimant with a copy of the CBA. He added that it is also adopted by conduct, in consistently applying the provisions of the CBA to all members of staff, whether they are members of PENGASSAN or not.

With regards to issue three, counsel posited that the defendant’s computations of his terminal benefits are substantially in line with Exhibit C16 but that the difference between the Claimant’s computation and that of the defendant is in the figure of the End of Service Pay. Counsel posited that whereas, by the provisions of Clause 54 (e) (ii) of Exhibit C16, the claimant was entitled to N3,600,000.00 (Three Million Six Hundred Thousand Naira) as End of Service Pay, being two months’ gross pay per completed year of service, the defendant paid into the claimant’s bank account the sum of N1,350,000.00 (One Million Three Hundred and Fifty Thousand Naira) only as End of Service Pay, leaving an outstanding sum of N2,250,000.00 (Two Million Two Hundred and Fifty Thousand Naira).

Counsel added that the difference of N308,619 between N2,250,000.00 outstanding terminal benefit clearly proven by the claimant and the claim of N2,558, 619 outstanding terminal benefit as per the Statement of Facts is attributable to the fact that the amount for “Ex Gratia” is not specifically given in the relevant Clauses 53, 54 and 56 of Exhibit C16 and urged the court to hold that the claimant has proven by credible evidence, his entitlement to the outstanding terminal benefit of N2,558,619.

With regards to claim for N180,000 deducted from the claimant’s salary already earned for the months of June, July and August 2011, counsel posited that it was done by the defendant, without any consultation with the claimant and without the claimant’s consent. He referred to Exhibit C7 and added that the said exhibit was dated October 31, 2011, whereas the salary cut was made retroactively, affecting the claimant’s salaries already earned before October and the defendant does not deny this claim.

With regards to claim for unremitted pension, counsel submitted that defendant admits to having failed to remit to the pension fund the sum of N1,134,000 which it deducted from the claimant’s salaries and facts admitted need no further proof. He cited section 123 of the Evidence Act and the case of DAUDA V. LAGOS BUILDING AND INVESTMENT CO. LTD. (2012) All FWLR (PT. 625) 380, 389 paras. C-D.

Counsel added that the claimant pleaded and deposed to the fact that the pension fund has a Return on Investment rate of 40.50% and to prove this, the claimant tendered Exhibit C15.

Counsel posited that 40% of the sum of N1,134,000 admitted by the defendant is N453,600 and the defendant is liable to pay the claimant N453,600 in addition to the sum of N1,134,000 admitted by the defendant makes a total of N1,587,600.

In arguing issue four, counsel submitted that general damages are those damages which the law implies in every breach and every violation of a legal right and that it is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. He cited the case of MRS. ABOSEDE DAUDA V. LAGOS BUILDING INVESTMENT CO. LTD & 3 ORS. (2012) ALL FWLR (PT. 625) 380, 393-394 paras. G-A.

Counsel added thereon that the claimant had the legal right to his deducted salaries, pension fund and his terminal benefits but the defendant violated this right. The value of the deducted salaries is N180,000, pension fund, over N1,587,600 and the terminal benefits, over N2,250,000.00. he argued that the defendant’s failure to pay the claimant the above sums as and when due has resulted in the loss to the claimant of the use of his money in the sum of over N 4,017,600 (Four Million Seventeen Thousand Six Hundred Naira) to which he had been entitled since 2015 when his employment was terminated by the defendant therefore the Claimant is entitled to general damages.

Counsel proffered arguments in response to the Defendant’s final address and concluded that the standard of proof which the law fixes on the claimant is to prove his case on the balance of probability or on the preponderance of evidence and urged the court to grant the claimant’s reliefs as proven on the balance of probability and preponderance of evidence.

By way of reply on point of law filed on the 4^th of December, 2019, counsel to the Defendant contended that the counsel to the Claimant failed to supply copy of unreported case cited.

Counsel added that the law is settled that where terms of contract are embodied in written document, extrinsic evidence is excluded to vary, subtract or contradict the terms of the written agreement. See Section 128 of the Evidence Act.

Counsel also cited the case of OLANUDU v. TEMIYE (2002) FWLR (Pt. 120) 1634 C.A. and submitted that evidence adduced which is at variance with the pleadings, goes to no issue.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:

Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.

Before resolving the sole issue, it is expedient to address the status of the exhibits admitted under protest. I must also add at this point that the document referred to by counsel to both parties as exhibit C14 (the Collective Agreement) is actually marked as C15 by this court.

In addressing the exhibits admitted under protest, foremost is exhibit C16 which is a copy of Pension Account summary of the Claimant with IEI Anchor Pensions. Counsel to the Defendant objected to the admissibility of same on ground that same failed to comply with section 84 of the Evidence Act as there is no certificate of compliance while counsel to the Claimant responded that there are two ways of compliance.

In view of the foregoing, I have taken a look at the said exhibit C16 and find that same is an online statement that was computer generated which the Evidence Act rightly requires certain conditions to be fulfilled before its admissibility.

The said section 84 reads thus:

“84(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in subsection (1) of this section are-

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to carried on over that period, whether for profit or not, by any body, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

In considering the foregoing provision, I have taken a look at paragraph 9 of the reply to the statement of defence filed on the 3^rd of July, 2019 and find therein that the Claimant deposed to facts relating to the how the said exhibit C16 was printed from the website of IEI Anchor Pension and the computer used in printing same as well as the state of the computer at the time of printing.

The foregoing is without a doubt substantial compliance with the requirement of the provisions of the Evidence Act which renders the objection of counsel to the Defendant immaterialand same is accordingly overruled. The said exhibit C16 is accordingly admitted in evidence.

With regards to Exhibit C17 (a) – (f), C18 and C19 tendered through CW1, counsel to the Defendant objected to the admissibility of same on the basis of the fact that the documents are photocopies without foundation being laid to tender them and thatthe documents are not relevant to the suit and that CW1 is neither the maker nor recipient of the said documents.

Counsel to the Claimant responded that foundation has been laid for the documents in paragraphs 6 and 7 of amended reply to the statement of defence and added that the said documents are relevant and argued that Exhibits C17 are tendered to establish the fact that the other members of staff who are not members of PENGASSAN had their terminal benefits calculated on the basis of Collective Bargaining Agreement as a custom of the defendant while exhibit C18 is a document which outlines the duties of the Claimant while Exhibit C19 buttresses the fact that the Claimant carried out the duty of computation of terminal benefits of a disengaged staff.

In view of the foregoing, I have taken a look at the said exhibits C17(a)-(f) and find that the said documents are letters of redundancy addressed by the Defendant to five different employees of the Defendant which does not include the Claimant. The said documents were not addressed to nor written by the Claimant.Although, I reckon that the essence of tendering the said documents is that the Claimant averred in paragraph 7 of the reply to the statement of defence that Claimant shall rely on the termination letters and cheques of disengaged members of staff wherein the terms of the collective bargaining agreement were applied and notice was thereby given to the Defendant to produce the original.

That said, I am not oblivious of the provision of section 83 (1) of the Evidence Act which requires the maker of a document to tender same and in the same vein, I am also mindful that the same section 83 (2) gives the court discretion in admitting such documents not tendered by their makers in deserving circumstances.

In addition to the foregoing, section 12 (2) (b) of the National Industrial Court Act gives this court discretion to depart from the provisions of the Evidence Act in the interest of justice.

Upon a consideration of the circumstance leading to the tendering of the said documents in the instant case, I find it apposite to exercise discretion in admitting the said documents despite the fact that they are not tendered by their makers and despite being photocopies. The objection of counsel to the Defendant is accordingly overruled and the said exhibits C17(a)-(f) are accordingly admitted in evidence.

With regards to Exhibit C18, I find that the said document is titled Account Supervisor Job Responsibility Form dated 24/12/2008 and signed by the Claimant as the staff whose job responsibility is detailed therein. The said document is relevant in view of the fact that the content of the said document relates to the responsibilities required of the Claimant as an employee of the Defendant.

Exhibit C19 is also an internal memo addressed to three staff of the Defendant including the Claimant and I reckon the facts averred in paragraph 6 of the reply to the statement of defence in relation to the said document making same relevant to the facts in issue.

With regards to the fact that Exhibits C18 and C19 are photocopies, I reckon that by the general provision of the Evidence Act, an original document is legally regarded as primary evidence while the photocopy tendered is the secondary. In that light, section 85 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered. In the instant case, the Claimant gave notice to the Defendant to produce the original of the copies of the said documents which they failed to do.

In view of the foregoing, exhibitsC18 and C19 are considered relevant and they are accordingly admitted in evidence.

With regards to Exhibit D3 which was also admitted under protest upon being tendered through DW1. The said Exhibit D3 is a copy of the witness statement on oath of DW1 which was earlier filed by the Defendant on 6/2/2019.

Counsel to the Defendant objected that same is not admissible in view of the fact that the said witness statement on oath is abandoned and no longer part of the record of this court. counsel to the Claimant placed reliance of section 223 and 232 of the evidence Act to contend that same can be considered by this court as a previous document.

In view of the foregoing contention, I have taken cognizance of the said Exhibit D3 and find that same is a witness statement on oath deposed to by DW1 and filed before this court on the 6^th of February, 2019. DW1 has also identified the said document as such. I have also taken a look at the sections of the Evidence Act as cited by learned Counsel to the Claimant and find it apposite to reproduce the provision of section 232 of the Evidence Act which provides that:

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him;

Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it deems fit”.

In view of the foregoing provision, it is clear that Exhibit D3 as the initial witness statement on oath of DW1 filed by the Defendant qualifies as a previous statement reduced into writing and this Court is empowered to inspect such document and make use of same as deemed fit.

In the light of the foregoing, the said Exhibit D3 is considered relevant and admissible and same is accordingly admitted in evidence.

That said, I turn to the sole issue for determination of this suit which is Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.

I must say that this sole issue is borne out of the fact that the Claimant is not in anyway challenging the termination of his employment with the Defendant. What the Claimant is simply claiming for is the remainder of the sum paid to him as terminal benefit upon the termination of his employment and a deduction made from his salary for three months in the year 2011 and also the monies which ought to have been paid by the Defendant as pension contribution from November 2011 to December, 2015.

It is consequent upon the foregoing that it is expedient to go straight to considering whether or not the Claimant is entitled to the said reliefs.

I find it apposite to state that the first relief sought by the Claimant is a declaratory relief and it is settled that a claimant earns a declaratory relief on the strength of his case and not on the weakness of the defence.

In this regard, the court in P.D.P v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 546 – 547 Paras. D – A (CA)held that:

“In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The plaintiff has the bounding duty to satisfy the court by evidence, and not through admission in the pleading of the defendant, that he is entitled to the declaration sought. The court has a discretion to grant a declaration or refuse same. The outcome will depend on how cogent and strong the claimants case is. In other words, courts do not make a declaration of right on admissions. See Bello v. Eweka (1981) SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 87; Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506; Igbinovia v. U.B.T.H. (2000) 8 NWLR (Pt. 667) 53; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) 736.” Per. Adekeye JCA.

In view of the foregoing authority, the declaratory relief sought by the Claimant is for:

“A Declaration that the Claimant is entitled to full terminal benefits having served meritoriously as Defendant’s employee for the period commencing 21/11/2005 and ending 31/11/2015.”

The highlight of facts surrounding the claim is that the Claimant contends that upon being served his letter of termination, he realized that the terminal benefit computed for him was not in accordance with the Collective Bargaining Agreement executed between the Defendant and PENGASSAN which is the document the Defendant usually uses in computing terminal benefits. He contended further that he was shortchanged in the sum of N2,558,619. In clearer terms, the Claimant contended via his reply to the statement of defence that the sum put at N1,350.000 as end of service Pay in his letter of termination of employment was supposed to be N3,600,000 if computed in accordance with clause 54(c) of the Collective Bargaining Agreement.

In reaction to the Claim, the Defendant contended that the Claimant was a contract staff and not a regular staff of the Defendant nor a member of PENGASSAN from whose salary check off dues are deducted hence he is not beneficiary of the Collective Bargaining Agreement. The Defendant added that the computation of the sum of N1,933,000 as Claimant’s terminal benefit was not an error.

In proof of the Claim, Claimant tendered exhibit C5 which is his letter of employment issued 15/12/2005 and exhibit C6 (a) – (e) which are letters of salary review and the last of which was issued on 29^th of August 2013 to put the salary of the Claimant at N180,000 per month. Claimant also tendered exhibit C9 which is the letter issued to the Claimant to re-designate his position as Senior Accounts Supervisor and exhibit C19 which is the letter of termination dated the 27^th of November, 2015, Exhibit C11 was a letter written by the Claimant to the Defendant dated the 19^th of February 2016. The letter was to remind the Defendant that his terminal benefit has not been paid since his employment was terminated in November, 2015. Exhibit C12 was a second letter written by the Claimant to the Defendant informing the Defendant that he had a privileged audience with the top management and he was assured that the unusual error in his letter of termination would be corrected and that a fresh letter was not issued nor the correct amount paid to him. The said letter is dated 31^st May, 2016 while Exhibit C13 and C14 are the letters of demand for the payment of the balance of terminal benefits written by the Claimant’s lawyer to the Defendant and dated 28^th June, 2016. Claimant also tendered Exhibit C15, a copy of the Collective Bargaining Agreement between the Defendant and PENGASSAN dated simply as ‘2012’.

In view of the fact that the Claimant’s claim for terminal benefit is predicated on a collective agreement, I must foremost state that the earlier position of the law on binding nature of collective agreement is as stated in the case of Texaco (Nig.) Plc v. Kehinde (2001) 6 NWLR (Pt.708)224 where the court held that:

In UBN Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 at 298-299, UWAIFO, J.C.A. as he then was, stated the legal status of collective agreements inter alia as follows: “Collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable…” Per ONNOGHEN, J.C.A. (P. 42, paras. D-G)

However, the subsequent position of the law is that a collective agreement can be enforceable if same is incorporated into the employment contract either expressly or by implication. This position was stated in the case of THE RECTOR, KWARA STATE POLYTECHNIC & ORS. V. MR. OLA ADEFILA & ORS.(2006) LPELR-8248(CA) where the court held that:

“Where a collective agreement is embodied or incorporated in the conditions of a contract of service whether expressly or by implication, it will be binding on the parties. See Adekeye, JCA in Daodu v. U.B.A. Plc (2004) 9 NWLR (Pt. 878) Pg. 276 at 293.”Per OGUNWUMIJU, J.C.A. (dissenting). (Pp.95-97, D-D)

The court in the same case went further to make exposition on how the incorporation can be done by implication when it held that:

“It has been held that if parties follow a certain course of action plainly because of the existence of a collective agreement, such as commencing to pay wages at new rates, that provision of the collective agreement will be considered as incorporated in the contract of employment. See Sadar v. Ridehalgh (1931) 1 Ch. 301 at 303 per Romer, J. The decision is in line with estoppel, the rule of evidence, which precludes a person from denying what he has either expressly or by implication admitted. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 143-144” Per AGUBE, J.C.A. (Pp.59-60, Paras.E-C).

In view of the foregoing authority and upon evaluation of the evidence before the court, it is expedient to ascertain whether or not the terminal benefit payable to the Claimant arises from the letter of employment or the collective agreement and whether the said collective agreement is binding between the Defendant and the Claimant so as to earn the Claimant terminal benefits as stated therein.

In that wise, I find that the Claimant’s letter of appointment (Exhibit C5) makes no provision for terminal benefits and makes no reference to the collective agreement (Exhibit C15) as the document from which the terminal benefits of the Claimant will be computed.

That notwithstanding, I reckon the argument of counsel to the Claimant that the Defendant had usually applied the said collective agreement in paying terminal benefits even for employee who are not members of PENGASSAN. In an attempt to establish the said practice, the Claimant tendered exhibits C17(a) – (f) which are letters of redundancy issued to six different employees of the Defendant. With regards to the said exhibits, I reckon that they do not in themselves establish that the terms of the collective agreement was followed. Although, the said letters all contain ‘end of service pay’ as part of the computation of terminal benefit for the employees.

In the case of the Claimant’s letter of disengagementspecifically, which was tendered as exhibit C10, 5 items were listed to form the computation of terminal benefits as follows:

“Salary arrears 358,000.00

End of Service Pay 1,350,000.00

Ex-Gratia 120,000.00

Long Service Award 100,000.00

Notice Pay 100,000.00

Sub Total 2,028,000.00

Less Outstanding IOU 95,000.00

Grand Total N1,933,000.00”

Counsel to the Claimant in view of the foregoing also contended that the foregoing listed items were provided for in the Collective Agreement and having paid other items stated in the collective agreement in their specified sum, the Defendant ought to pay the same sum stated in the Collective agreement for ‘End of Service Pay’.

In view of the foregoing, I must state that I have taken a look at clause 54 of the Collective Agreement tendered as Exhibit C15 and I find therein that the clause provides that:

“An employee whose appointment is terminated/or resigned shall be entitled to the following:

Salary earned up to and including last day worked.
Accrued vacation and vacation benefits/allowance
Job related bonuses earned, up to last day at work
Any other allowance accrued to the employee shall be prorated
The company shall pay an end of service gratuity as follows:
1-4 years of service 1(one) month gross pay per completed year of service
5 years and above of service 2 (two) months gross pay per completed year of service”

Counsel stated also that the long service award paid to the Claimant is also as stated in Clause 59(2) and upon a consideration of the Collective Agreement, I find that Clause 59(2) rightly provides for Long Service Award and the clause puts 10 years (service) at N100,000.00 which is rightly the sum stated in the termination letter of the Claimant.

In addition, Counsel also argued that the ‘Notice Pay’ is in line with Clause 53(c) and upon a consideration of the said clause, I find that the clause provides that:

“for those whose appointment has been confirmed, one month notice or one month basic salary in lieu of notice” . In this regard, I find that the basic salary of the Claimant as stated in his last salary review which was tendered as Exhibit C6(e) was put at N100,000 and that was in tandem with what was paid to the Claimant via his letter of termination of employment.

The foregoing indicates clearly that the collective agreement tendered as Exhibit C15 was intended to be applicable and was actually applied to the relationship between the Defendant and the Claimant and this is notwithstanding the controversy of whether the Claimant is a member of PENGASSAN or not.

Moreso, the said Collective Agreement in question was executed between the Defendant and the PENGASSAN, while the Claimant was without a doubt an employee of the Defendant.

In addition to the foregoing, I reckon the contention surrounding exhibit D3 which was the initial witness statement on oath of DW1 (Steve Olisa) filed on the 6^th of February, 2019 which was tendered through the said DW1 by counsel to the Claimant.

In view of the purpose for which the said document was tendered, i.e. for this court to examine same and find whether there is indeed a contradiction between what the DW1 initially wrote and what was later presented before the court as defence, I have indeed taken a look at the said previous statement and find rightly so that DW1 in paragraph 6 of the said D3 had initially written that:

“The claimant’s terminal benefit was calculated in accordance with the applicable collective bargaining agreement in force in the defendant’s company at the material time of the termination of the claimant’s employment.”

Notwithstanding the fact that the said witness statement on oath (exhibit D3) was not adopted by DW1, I must state that the proviso to section 232 of the Evidence Act, 2011 permits the court to make use of previous statement in writing for the purposes of trial as it deems fit and in doing so, I find that the foregoing paragraph as a previous statement in writing contradicts the current position of the Defendant before this court to the effect that the Defendant is contending that the Collective Agreement is not applicable to the Claimant because he is not a regular staff nor a member of PENGASSAN.

I must state that a consideration of all the foregoing circumstance of the case clearly indicates that the Defendant had by implication incorporated the Collective Agreement (Exhibit C15) into the contract of employment of the Claimant and same must be followed to the letter. This position is concretised by the fact that the letter of employment issued to the Claimant does not make provision for the computation of the Claimant’s terminal benefit and the Defendant has not presented any other document applicable to the Claimant other than the Collective Agreement wherefrom the computation of terminal benefits stated in the termination letter of the Claimant was derived.

I must also state that I am not unaware of the issue relating to the failure of the Defendant to issue a letter of renewal of employment to the Claimant after the expiration of the one year stated in his letter of employment (exhibit C5). I must state in this regard that it is not in doubt that the Claimant worked for the Defendant from 15/12/2005 to when he was issued letter of termination on 27/11/2015. This fact alone makes the issue of renewal of his employment irrelevant as it is clear to all and sundry that the Claimant continued in the employment of the Defendant for 10 years.

In the light of the foregoing, I must state that the Claimant has established on the strength of his own case that he is entitled to terminal benefit as stated in the Collective Agreement tendered as Exhibit C15.

Consequently, the Claimant is entitled to relief one and this court makes a Declaration to the effect that the Claimant is entitled to full terminal benefits having served as Defendant’s employee for the period commencing 21/11/2005 and ending 31/11/2015.

Relief 2 is a claim for the sum of N2,558,619.00 (Two Million, Five Hundred and Fifty-eight Thousand, Six Hundred and Nineteen Naira) being outstanding terminal benefit owed and payable to the Claimant on account of his long term service as Defendant’s employee.

While it is without a doubt that the considerationof the foregoing claim is dependent on the grant of relief one, the said claim is for a specific sum arising from the computation made in the letter of termination of the Claimant’s employment issued to him by the Defendant. While the Claimant puts the claim in the sum of N2,558,619.00 as what was short changed in the computation, by way of specifics, Claimant stated through his reply to the statement of Defence that by Clause 54 (e) of the Collective Agreement, he is entitled to 2 months gross pay per completed year of service. by the letter of employment tendered and as Exhibit C5 and his letter of termination of employment, he worked for 10 years and his last gross salary is N180,000 as established by exhibit C6(e).

Upon multiplying N180,000 by 2 which is equal to N360,000, his End of Service Pay having worked for 10 years, ought to be N3,600,000. However, he was paid N1,350,000.00.

By mathematical computation, N1,350,000.00deducted from N3,600,000 will give a balance of N2,250,000 and not the sum of N2,558,619 as claimed by the Claimant.

Although I reckon the address of counsel to the Claimant in attempt to explain how the sum of N308,619 which made the claim come to sum of N2,558,000 that the difference is attributable to the fact that the amount for “Ex Gratia” is not specifically given in the relevant Clauses 53, 54 and 56 of the Collective Agreement. However, I must state that there are no facts stated in pleadings before this court in relation to ex gratia payment, hence the claim for ex gratia goes to no issue.

It must also be reckoned that address cannot take the place of facts before the court. In ALHAJI ISA TAFIDA & ANOR v. ALHAJI YARO GARBA (2013) LPELR-22076(CA) the court held that: “Counsel’s address no matter how eloquent and brilliant cannot take the place of pleadings.” Per AGUBE, J.C.A. (P. 79, paras. B-C)

In the light of the foregoing, it is established that the Claimant having been declared to be entitled to terminal benefit under the Collective Agreement, is entitled to end of service pay in accordance with the computation stated in the said Collective Agreement which by computation as considered above is the sum of N3,600,000. With the Defendant having paid N1,350,000.00, it leaves a balance of N2,250,000.00 to be paid to the Claimant.

The sum of N2,250,000.00 is not the exact sum claimed by the Claimant.However, this court has discretion to grant less than what is claimed in view of the fact that the Claimant has proved how the sum is derived and that he is deserving of same. In this regard, the court in Ajibi v. Olaewe [2003] 8 NWLR (Pt.822) pg. 237 held that:

“…the court is not a charitable institution – to give a party a relief not claimed by him. This principle is engrained both in the rule and practice of pleadings and that of fair hearing. However, depending on the extent of proof, a court can award less than what is claimed – but no more than it. See Ekpenyong v. Nyong (1975) 2 SC 71; Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128; Okon v. Administrator-General, Cross River State (1992) 6 NWLR (Pt.248) 473; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668; Lewis & Peat NRI Ltd. v. Akhimien (1976) 7 SC 157; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266.” Per ADEKEYE, J.C.A.(Pp. 51-52, Paras. E-B).

In view of the foregoing, the Claimant is entitled to the sum of N2,250,000.00 as end of service pay and the relief is consequently granted to the effect that this court makes an Order that the Defendant pays to the Claimant the sum of N2,250,000.00 (Two Million, Two Hundred and Fifty Thousand Naira) being outstanding terminal benefit owed and payable to the Claimant on account of his long term service as Defendant’s employee.

Relief 3 is a claim for an Order of Court compelling the Defendant to refund the sum of N2,410,571.40 (Two Million, Four Hundred and ten Thousand, Five Hundred and Seventy One Naira, Forty Kobo) to the Claimant being the contributory pension deducted from Claimant’s salary from November, 2011 to December 2015.

The foregoing claim arises from the fact that the Claimant alleges that the Defendant failed to remit his contributory pension to the Pension Managers from November, 2011 to December, 2015. Claimant put the sum that ought to have been remitted to be the sum of N1,188,000.00 (One Million One Hundred and Eighty-eight Thousand Naira) and added that based on the previous returns on investment, the sum of ought to have yielded 40.50% Returns which makes the total claim of N2,410,571.40 (Two Million Four Hundred and Ten Thousand Five Hundred and Seventy-one Naira Forty Kobo).

In attempt to prove of the Claim, the Claimant tendered exhibit C16 which is the online printout of the Claimant’s pension details with IEI Anchor Pension.

The said Exhibit C16 details the Claimant’s name and Pension Number. It stated that the account summary was as at 16^th April, 2016 and that the investment value was N633,947.90 while the total contribution is N451,125.00 with a growth of N182,822.90.

The said document did not state from when to when the said contribution was made and from when to when was not made. It also does not state how much is contributed monthly so as to ascertain specifically how the Claimant arrived at the sum of N1,188,000.00 as what the Defendant ought to have contributed between the months of November 2011 to December, 2015.

The foregoing notwithstanding, the Defendant in reacting to the claim, admitted via paragraph 2(f) of the statement of Defencethat:

“At the time of the termination of Claimant’s employment, the Defendant was in deep financial crisis which practically brought its operations to a stand-still, and as a result it (Defendant) was unable to remit its own part of Claimant’s accrued pension remittance of N1,134,000.00 to his (Claimant’s) pension managers. However, Defendant is now ready to remit the same.”

In view of the foregoing admission and to the extent to which it was made, it must be said that facts admitted need no proof. The court in CHUKWU & ORS v. AKPELU(2013) LPELR-21864(SC) held that:

“The established principle of law is well founded and settled that facts admitted need no proof. See the case of Narinder Trust Ltd. v. N.I.C.M.B. Ltd. (2001) FWLR 1546 at 1558 and Nwankwo v. Nkwankwo (1995) 5 NWLR (pt 894) 158. This court had also held in the case of Olufusoye&Ors. v. Olorunfemi (1989) 1 NWLR (pt. 95) 26 that an admitted fact is no longer a fact in issue. The same principle was enunciated in Bunge v. Governor Rivers State (2006) 12 NWLR (Pt. 995) 573 where it was held at page 600 that: “When a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted.” Per OGUNBIYI, J.S.C.

That said, I must posit that the interest of 40.50% claimed on the unremitted contributory pension is misplaced in view of the fact that the said interest was not a specifically stated interest and neither was it fixed. In this regard, the court in UBN PLC v. IRONBAR(2010) LPELR-5057(CA) made clear exposition on the grant of interest when it held that:

“I will start with a definition of the term “Interest” and what explanation or definition of the term can be better than the one provided by the Apex Court: “In financial transaction the word interest connotes a compensation allowed by law or fixed by the parties for the use or forebearance of borrowed money. In other words it is the cost of using credit or fund of another…” See Veepee Industry Ltd V. Coco Industry Ltd (2008) 13 NWLR (Pt 1105) page 486 at 490. See also NDIC V. ECOBANK (Nig) Ltd (2003)11 NWLR (Pt 830) 93 at 107 (CA). Where no interest is fixed by law or the parties it is to be implied by a custom to that effect in the transaction between the parties. See Barclays Bank V. Abubakar (1977) 10 SC 13 at 23.Aforka V. ACB Ltd (1994) 3 NWLR (Pt 331) 217 at 224-225″Per NGWUTA, J.C.A.(P. 30, paras. A-E).

In the instant case, the claim for 40.50% interest is not one contemplated by law nor fixed by parties, hence same cannot be granted. However, upon the admission of the Defendant of failure to remit the sum of N1,134,000.00 as contributory pension of the Claimant and the expression of readiness to remit same, I find it apposite to grant relief 3 in the extent to which this court makes an Order compelling the Defendant to remit the sum of N1,134,000.00 (One Million, One Hundred and Thirty-Four Thousand Naira) being the unremitted contributory pension for the Claimant, to the Claimant’s Pension Managers.

I then turn to relief 4 which is for an order of Court compelling the Defendant to pay the sum of N180,000.00 being the total sum illegally deducted from Claimant’s salary for the months of June, July and August 2011.

The highlight of facts relating to this claim is that the Claimant alleged that for the months of June, July and August 2011, the Defendant without any consultation or consent purportedly issued an internal memo dated October 31/10/11 to its Financial Controller directing the latter to slash Claimant’s salary by 40% and same amounted to the sum of N180,000.00

Claimant tendered exhibit C7 which is the internal memo dated the 31^st of October, 2011 and address to the Financial Controller with the subject ‘Salary Cut’. The said exhibit C7 states that:

“With reference to the memo of July 21,2011on the above subject matter.

Please take this memo as your authority to effect a 40% cut on the gross salary of all staff with effect from June 1,2011.

Note that this will remain in place until our financial situation improves.”

Claimant also tendered Exhibit C8 which is a letter addressed to the MD of the Defendant dated the 14^th of November, 2011. The said letter was a response and request by employees of the Defendant including the Claimant, for a meeting over the 40% salary cut.

Reacting to the Claim, the Defendant in one limb contended thatthe claim for the deducted salary is statute barred and this ground was argued by counsel to the Defendant in the final address.

In another limb, the Defendant contended that:

“When there was financial crisis in the company which compelled Defendant to reorganize its operations including downward review of salaries of its employees, the affected employees including Claimant were notified. Those affected (including Claimant) accepted the revised salary, after initial protest and continued to work for Defendant until his employment was terminated on 30/11/2015.”

In view of the first limb, I find it apposite to state, without much ado, that while it is long settled that claims for arrears of salary for work done cannot be statute barred, it is recently posited generally that claims arising from contract of service are not caught by statute of limitation. The Supreme Court in the most recent case of N.R.M.A & FC v. Johnson [2019]2NWLR (Pt. 1656) SC247 held that:

“Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondent’s claim is on service contract. Thus, the appellants are not covered by the provisions of the Public Officers Protection Act” Per Ariwoola JSC @ p.270, para. F.

Consequent upon the foregoing, the argument of counsel to the Defendant on the relief being statute barred is baseless and same is accordingly discountenanced.

I then turn to the second limb and in this regard, I have taken a look at the internal memo to find that rightly so, the directive to cut the Claimant’s salary came after the work had been done for the months of June, July and August, 2011. Although the internal memo makes reference to an earlier memo, the said earlier memo was also in the month of July while the salary cut was to retroactively take effect in 1^stJune, 2011.

In addition, the said memo was addressed to the Financial Controller and not to the Claimant to seek his consent nor to notify him in making a cut from his salary and the Defendant did not present before this court such consent or notice.

I must also mention that the Defendant did not deny cutting the salary of the Claimant. Rather, the Defendant posited that the Claimant eventually accepted it after an initial protest.

I find it apposite to state that the Defendant reserves the right to review the salary of its employee either upwards or downwards. However, in exercising that right, particularly where the review is to be downwards, in the spirit of fair play, such review must be communicated in advance to the Claimant in other for the Claimant to determine whether the review of the salary which is an integral part of terms of employment is acceptable. Such acceptance should also be put down in writing so as not to renege.

In the instant case, the Defendant is found to have retroactively cut the salary of the Claimant after he had worked for same.

I must also state that arising from exhibit C6(d), I find that the salary of the Claimant was N150,000.00 from 1^st February, 2010 and remained so as at June, July and August 2011 when the salary cut took effect. I also find that 40% of the said N150,000 is N60,000 which makes the sum of N180,000 for the 3 months of June, July and August,2011.

Consequent upon theforegoing and particularly in view of the failure of the Defendant to deny the salary cut of the Claimant in the manner it was done, I find it apposite to grant relief 4 to the effect that this court makes an order compelling the Defendant to pay the sum of N180,000.00 being the total sum illegally deducted from Claimant’s salary for the months of June, July and August 2011.

Relief 5 is for the sum of N5,000,000.00 general damages for anguish, hardship and embarrassment caused by Defendant’s failure to honour its contractual obligations to the Claimant.

While the sum claimed as general damages is not required to be specifically pleaded and proved as it has no mathematical exactitude, the grant of same would still be predicated on whether the Claimant has been wronged and the wrong must have been established. In the case of FIRST BANK OF NIGERIA PLC v. OLALEYE (2012) LPELR-20096(CA) the court with regards to general damages held that:

“The principle guiding the award of damages is that damages will flow from the wrong suffered by a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the Defendant. The relief claimed in such situations has no mathematical exactitude. However, since there is no parameter or yardstick for the Court to use in the award of general damages, such a discretion ought to be exercised judicially and judiciously and also to be considered as what the reasonable man would see as adequate loss or inconvenience flowing naturally from the act of the Defendant. See UNIPETROL NIG. PLC VS.ADIREYE WEST AFRICA LTD. (2005) 14 NWLR (PT.946) 563.Also the case of ROCKONOH PROPERTIES CO. LTD. VS.NIGERIAN TELECOMMUNICATION PLC (2001) 14 NWLR (PT.733) 468.” Per EKPE, J.C.A (Pp 16-17,Paras F-C)

In other words, the court in AP PLC. V. ABRORISADE & ANOR (2013) LPELR-20362(CA) posited that:

“General Damages unlike specific damages are not quantifiable, it is purely at the discretion of the trial Court which heard all the parties and is in a better position to easily determined what would amount to a reasonable compensation to a party entitled to such an award. See Framo Nig. Ltd. v. ShaibuDawodu (1993) 3 NWLR (pt. 281) 372.” Per ABOKI, J.C.A(P. 37, paras. E-F)

Consequent upon the foregoing authorities and upon a general consideration of the entirety of the instant case, particularly the fact that the Claimant was shortchanged in the payment of his end of service pay and had his salary cut without prior notice and his pension contribution was withheld without being notified of the reason for doing so leading the Claimant to obtain legal service and eventually approaching the court for remedy, it is without a doubt that the Claimant was wronged and deserves to be assuaged although not in the sum claimed.

Consequent upon the foregoing, this court awards the claimant the sum of N300,000.00 as general damages.

In the light of the foregoing, the sole issue formulated is resolved in fovour of the Claimant and against the Defendant.

In the final analysis, it is without a doubt that the Claims of the Claimant against the Defendant is meritorious in the extent to which same has been accordingly granted.

Judgment is hereby entered.

I make no Order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE