Mr OLUSEGUN OMOTOSHO -VS- JAPAUL OIL & MARITIME SERVICES

IN THE NATIONAL INDUSTRIAL COURT OF NIGER\A

INTHE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

DATE: 12^TH March, 2020

SUIT NO. NICN/LA/574/2018

BETWEEN:

Mr OLUSEGUN OMOTOSHO —————————————CLAIMANT

AND

JAPAUL OIL & MARITIME SERVICES PLC ——————–DEFENDANT

REPRESENTATION:

Uduojie Esq. with O. Anjorin Esq and S. Fashanu for the claimant
A. Elebhose Esq. with I. P. Maduka Esq and A. J. Otobo Esq. for the defendant

JUDGMENT.

By a general form of complaint filed on the 18^th October 2018, the claimant sought the following reliefs from this court

1) The sum of N 1, 518,631.89 (One Million Five Hundred and Eighteen Thousand, six Hundred and Thirty One Naira and Eighty Nine Kobo) only, being the Claimant’s unpaid salaries for the months of May, June and July 2017.

2) The sum of N240,000.00 (Two Hundred and Forty Thousand Naira) only, being Relocation Allowance from logos State to Rivers State, outstanding and unpaid to the Claimant.

3) The sum of N 1, 156,000.00 (One Million One Hundred and Fifty six Thousand Naira) only, being Relocation Allowance from Rivers State to Lagos State, outstanding and unpaid to the claimant.

4) The sum of N207,666.70 (Two Hundred and Seven thousand Six Hundred and Sixty Six. Naira Seventy’ Kobo) only, being the Claimant’ s prorated Leave Allowance for the year 2017.

5) 12% interest (or as determined by the court per annum, on each of the above sums from the date of judgment until the judgment debt is fully liquidated.

6) An order of perpetual injunction restraining the defendant from deducting the sum of N400,000.00 ) Four Hundred Thousand Naira) only from the final entitlement of the Claimant, being the alleged net book value (NBV) of the second-hand Honda CRV official car already transferred to the claimant as the said vehicle has no net book value.

7) An order mandating the defendant to remit forthwith the sum of N2,314,890.00 (Two Million, Three Hundred and Fourteen Thousand, Eight Hundred and Ninety Naira) only to the Claimant’s Stanbic IBTC Pension Managers being the pension deductions and contributions for 17 months (seventeen months) up till the date of the claimant resignation from the employment of the Defendant.

8) An order mandating the defendant to deliver forthwith to the claimant, his Tax Clearance card or evidence of payment of the claimant tax obligation which tax the defendant faithfully deducted from the claimant salary throughout the period of the claimant’s employment with the defendant.

9) Nl,000,000.00 (One million Naira) only, cost of this action.

On the 21^st January 2019, the claimant applied and judgment was entered in favour of the claimant in the sum of N1, 550, 708.03k based on the admissions contained in the witness deposition of the defendant witness. The court thereafter directed the claimant to file an amended claim before the court. The claimant filed an amended claim on the 14/2/2019, wherein he claimed the following reliefs from the court:-

The sum of N455.590.56 (Four Hundred and Fifty Five Thousand, five Hundred and Ninety Naira and Fifty-Six Kobo) only, being the claimant” s unpaid salaries for the months of May, June and July 20 l 7.
The sum of N716,000.00 (Seven Hundred and Sixteen Thousand Naira) only, being Relocation Allowance from Rivers State to Lagos State, outstanding and unpaid to the Claimant.
12% interest (or as determined by the court) per annum, on judgment until the judgment debt is fully liquidated.
An order of perpetual injunction restraining the defendant from deducting the sum of N400,000.00 (Four Hundred Thousand Naira only from the final entitlement of the claimant being the alleged Net Book Value of the 2^nd hand Honda CRV official Car already transferred to the claimant as the said vehicle has no net book value.
An order mandating the defendant to remit forthwith the sum of N2,314,890.00 (Two Million, Three Hundred and Fourteen Thousand, Eight Hundred and Ninety Naira) only to the claimant’s Stanbic IBTC Pension Managers being the pension deductions and contributions for 17 (Seventeen months) up till the date of the claimant’s resignation from the employment of the defendant.
An order mandating the defendant to deliver forth-wit to the claimant, his Tax Clearance Card or evidence of payment of the claimant’s tax obligations which tax the defendant faithfully deducted from the claimant salary throughout the period of the claimant’s employment with the defendant.
Nl,000,000.00 (One Million Naira only) cost of this action.

In response to the amended statement of facts and claim, the defendant filed a defence to the amended statement of claim on the 4/3/2019, wherein the defendant denied the claims of the claimant. On the 23/4/2019 the claimant filed a reply to the amended statement of defence, thereby closing the pleadings.

Hearing in this matter commenced on the 21/5/2019, with the claimant testifying as CW1. The claimant adopted his witness depositions and went ahead to tender the following documents in evidence.

Offer of employment dated 2/12/14 marked as Exhibit C1
Letter of promotion marked as Exhibit C2
Transfer allowance policy HRD 0003 of 2015 Exhibit C3.
Salary review notice marked as Exhibit C4.
Letter of resignation marked as Exhibit C5.
Letter of acknowledgment of resignation marked as Exhibit C6.
E-mail messages print out marked as Exhibit C7a, b, c, d, and e.
Stanbic IBTC Retirement Savings Account marked as Exhibit C8.
Notice of reviewed pay roll for 2017 marked as Exhibit C9 and C9a.

10.Document of Japaul Oil and Marine Services PLC policies,
procedures and process marked as Exhibit C10.

The claimant was cross examined and the claimant closed their case.

The defendant opened their case on the 14/10/2019, Braima Abu testified as DW1. The witness adopted his witness deposition and testified that the documents pleaded in the defence processes were the same documents tendered by the claimant as Exhibits C1to C10. He stated that he would be relying on all the exhibits tendered by the claimant in this hearing. DW1 was cross examined and re-examined by the claimant counsel. Counsel adopted their final written address on the 28/1/2020.

BRIEF FACTS OF THE CASE

The claimant joined the employment of the defendant on the 6^th of January 2015 as Human Resources Manager. The claimant was later promoted to the position of Acting Head Japaul Shipping & Offshore Services Limited. The claimant was subsequently re-deployed to Port-Harcourt Rivers State, where he continued in the defendant employment until he resigned on the 29/6/2017. The claimant allege that his monthly salary is N506, 210.16 and the total for the months of May, June and July 2017 came to Nl,518,631.89 leaving an outstanding balance of N455,590.56k . The claimant allege that as part of his condition of service he was entitled to a brand new car but the defendant gave him a used Honda Accord CRV as a substitute for the new car. That as part of the condition of service he was entitled to retain the car on payment of the netbook value on leaving the defendant employment and that the Honda CRV given to him has no netbook value and therefore the defendant is not entitled to the N400,000 as its netbook value. Claimant allege that at the point of leaving the defendant employment, the defendant was owing him the sum of N716,000 as his relocation allowance from Lagos to Port-harcourt. The claimant also state that after exiting the employment his counsel wrote to the defendant stating that his 3 months areas of salary was N 1, 518,631.89. The claimant now seeks the reliefs stated in the amended statement of claims filed on the 14/2/2019.

The defendant has denied the claims of the claimant. The defendant state that there is nothing in the condition of service that entitles the claimant to the amount claimed as relocation allowance. That the total money owed the claimant as relocation allowance is N440,000.00k and not N716,000.00k as claimed. The defendant denies that the claimant was entitled to a brand new car. That the claimant was informed that he was to pay the sum of N400,000.00k at the point of exiting the company to be allowed to take ownership of the Honda CRV. That the claimant must return the car or pay the net book value of N400,000.00k to the defendant. The defendant also seeks the return of the defendant laptop given to the claimant which was to be returned at the point of exiting the defendant. The defendant also contends that the claimant tax deduction has been paid up to date and as regards the pension deduction, the deductions were remitted up to February 2016 that it is only the outstanding payment from March, 2016 to July 2017 that is outstanding which they will remit when funds are available. This is the case of the parties in this action.

DECISION OF THE COURT.

This court shall proceed by examining each head of claims in the reliefs sought by the claimant in this action.

On Relief No1.

In this relief, The claimant claim the sum of N455,590.56k as claimant unpaid salaries for the months of May, June and July 2017. I recall that the claimant had in his original writ claimed the sum of N1,518,631.89k being the unpaid salary for the months of May, June and July 2017. Judgment was entered in favour of the claimant based on admissions contained in the statement of defence on the 21/12/2019, in the sum of N1,550,708.03k. This ordinarily should have settled the issue of the arrears of salary for May, June and July 2017 as claimed since the sum admitted by the defendant was over and above what was claimed by the claimant in his original complaint. The court had directed that the claim be amended to reflect the reliefs that are going on for trial. The claimant now claims the sum of N455,590.56k as the unpaid salaries for the same May, June and July 2017. How the claimant arrived at this sum remains unclear to the court. There was no application to amend the claim on salary by the claimant in this action. In paragraph 13 of the claimant witness deposition, the claimant stated:

That by the downward review of my salary, conveyed to me by the defendant through the defendant’s letter dated 27^th February 2017, my monthly salary was N506,210.16 (Five Hundred and Six Thousand, Two Hundred and Ten Naira and Sixteen Kobo) and the total for the months of May, June and July 2017 came to Nl.518.631.89 (One Million, Five Hundred and Eighteen Thousand, Six Hundred and Thirty-One Naira, Eighty-Nine Kobo) only leaving an outstanding balance of N455.590.56k (Four Hundred and fifty-Five Thousand, Five Hundred and Ninety Naira and Fifty-Six Kobo) only.

Whatever mathematical formula used by the claimant to claim that a balance of N455.590.56k is still remaining has not been proved to this court. To be entitled to the above stated sum the claimant must plead facts that establish his entitlement to the above stated sum. There is no pleading in the statement of facts to support the evidence of the claimant’s entitlement to the above sum as stated in paragraph 13 and 17 of the claimant witness deposition. The law is trite and well settled that evidence led on facts not pleaded goes to no issue. See the case of Ali Abdul-Rahman V. Pastor Raphael Kadiri [2012] LPELR-8001 (CA), Sanni-Omotosho V. Obidairo [2014] LPELR-23006 (CA). The evidence in paragraph 13 and 17 of the claimant witness deposition must be disregarded and it shall be so treated in this judgment. In Exhibit C4 tendered by the claimant, it is very clear there that the salary of the claimant was reviewed downward in the course of the employment to N506,210.16k . The last paragraph of Exhibit C4 signed by the claimant is also very instructive, it states; ‘By signing and dating the letter below. I acknowledge that I have read and accepted the review of my salary as stated above and hereby agree to have no recourse against the company for the said review. By this understanding the claimant is barred from disputing the salary review at this stage. The three month salary of the reviewed figure would be the sum of Nl.518.631.89. Having obtained judgment on admission in the sum of N 1,550,708.03k on the 21/1/2019, there is no further claim on salary that can be sustained by the claimant in this action. The claimant counsel has sought to argue in his final written address that the reduction in the salary of the claimant was a deduction which S.5 of the labour Act prohibits and also relied on Article 8 of the Protection of Wages Convention 95 of 1949. This argument is misconceived. Deduction from the salaries of an employee is not the same thing like a reduction in salary. The issue in this case was not a situation of deduction from the claimant salary but reduction in salary as evidenced by Exhibit C2. Section 5 of the Labour Act and Article 8 of the Protection of Wages Convention 95 of 1949, relied upon prevents any deduction which is not authorised by law, and does not apply to cases of reduction in salary. The two statutes have no application whatsoever in the circumstances of this case. For the reasons stated above it is the decision of this court that the claimant has failed to offer proof of his entitlement to the sum claimed in this relief. This relief therefore fails and is hereby accordingly dismissed.

On Relief No 2.

In this relief, the claimant claims the sum of N716,000.0, being Relocation Allowance from Rivers State to Lagos State, outstanding and unpaid to the claimant. This claim is a special damages claim and as such facts establishing the claimant entitlement to this claim must be specifically pleaded and strictly proved. See the case of Osuji & Anor V. Isiocha [1989] LPELR-2815 (SC), where the Supreme Court emphasised that ‘special damages must not only be specifically pleaded with relevant particulars but must be strictly proved’. Throughout the entire gamut of the statement of facts filed on the 14/2/2019 along with the amended claim. the claimant did not plead any fact establishing his entitlement to the amount claimed in thia relief. There is also no evidence led in the witness deposition of the claimant in proof of this claim. Exhibit C3 a document of the defendant dealing with transfer allowance is also of no help in this regard as it merely states that the claimant is entitled to transfer allowance, but is silent on the quantum of the allowance in monetary terms. I have also examined Exhibit C6, the letter acknowledging the resignation of the claimant where the defendant states the claimant outstanding relocation allowance from Lagos to Port-harcourt to be N240,000 and also outstanding relocation allowance from Port-harcourt to Lagos to be N440,000 making a total of N680,000. This figure is very different from the sum claimed in this relief. This court cannot award this sum as a relief because it is different from the sum claimed by the claimant in this relief. The claimant has failed to offer the requisite proof to be entitled to the sum claimed in this relief. I am however not unmindful of the admission by the defendant in paragraph 7 and 8 of the defence to the amended statement of claim filed on the 4/3/2019, where the defendant very clearly and unequivocally admits that the amount it is owing the claimant as relocation allowance is N440, 000.00k. This admission is also confirmed in paragraph 9 and 10 of the witness deposition of DW1 Mr. Braimah Abu. The law is trite that a court can enter judgment on admission which is clear straight-forward and unequivocal. See the case of Steel Bell Nigeria Ltd & Ors V. NDIC & Ors. [2014]LPELR-23343 (CA). I have carefully considered the defendant pleadings as a whole and I am satisfied that the claimant is entitled to judgment in the sum admitted by the defendant. Accordingly judgment is entered in the sum of N440,000.00k as the sum which the claimant was entitled to as relocation allowance as admitted by the defendant.

On claim No 4.

Here the claimant seeks an order of perpetual injunction restraining the defendant from deducting the sum of N400,000 from his final entitlement as Net Book Value (NBV) of the Honda CRV given to him as his official car. The claimant contention on this issue is that as part of his condition of service, he was to be given a brand new car as an official car. That the internal memo dated 7/4/2015 is evidence of the promise of a new Hyundai Elantra car. The said memo was never tendered as an exhibit before the court. The evidence led or any allusion made to the said document would be discountenanced in this judgment. The claimant stated defendant instead gave him a second hand Honda CRV car. He testified that on the 5^th July 2017, the defendant staff one Mr. Onifade, wrote the defendant’s executive director operations based on information received from the defendant’s finance/ planning department which confirmed that that the NBV of the Honda CRV is zero. The claimant claims that the car effectively is his. I have carefully examined Exhibit C7d the e-mail sent from one Mr Adeola Onifade to the claimant, in Item B the claimant had made the following request.

‘ I would like the ownership of the second hand Honda CRV to be transferred to me as it was assigned to me in 2015 as a substitute for my official car’

In response to this request in Exhibit C7d, the defendant wrote;

‘In view of the fact that item 3.1 of his offer letter indicates that he would be provided with an official car, though the type not specified except in the attached memo, we recommend that he should be advised to pay the net book value NBV of the car and go with it’

From this communication, it is clear that the defendant had required the claimant to pay the net book value of the vehicle. The position of the claimant that the defendant had adjudged the vehicle to be without a net book value is far from the truth.

In paragraph 16, 17 and 18 of the statement of defence, the defendant pleaded and gave evidence in paragraph 17, 18, 19 and 20 of the witness deposition that the claimant was entitled to an official car, that he was never promised a brand new car in his letter of offer Exhibit C1, that the claimant was informed that he would pay the sum of N400.000.00k as the net book value of the Honda CRV when he is leaving the defendant employment for the car to be transferred to him. The defendant testified in paragraph 32 of his witness deposition, that the claimant must return the car to the defendant or pay the Net Book Value of the car in the sum of N400,000 for the car to be transferred to him. The evidence given by the defendant is very consistent as they have never wavered as evidenced by Exhibit C7d, in their demand that the claimant should pay the sum of N400,000.00k as the Net book Value of the Honda CRV car used by the claimant as his official car while in the employment of the defendant. From the evidence adduced on this issue, the claimant defiantly refused to pay the net book value of the car and wrongfully retained the car even though no property had passed to him in the Honda CRV. The claimant had a duty to return the car back to the defendant if he did not wish to pay for the car at the point of exiting the employment of the defendant. The claimant has failed woefully to convince the court to grant the remedy of injunction sought for in this action accordingly relief No 4 fails and it is hereby accordingly dismissed.

Having defiantly and wrongfully detained the defendant Honda CRV without paying the Net Book Value of N400,000.00k, the claimant is under a duty to pay the above stated sum. This court hereby grants the prayers of the defendant as contained in paragraph 32 of the witness deposition of the defendant. It is hereby ordered that the claimant shall pay the sum of N400,000.00k to the defendant being the Net Book Value of the Honda CRV car unlawfully retained by the claimant after exiting the employment of the defendant. This amount shall be set off from any sum the claimant may be entitled under this judgment.

On Relief No 5.

In this relief the claimant seeks an order mandating the defendant to , remit forthwith the sum of N2,314,890.00 only to the claimant’s Stanbic IBTC Pension Managers being the pension deductions and contributions for 17 (Seventeen months) up till the date of the claimant’s resignation from the employment of the defendant.

In proof of this relief, the claimant pleaded in paragraph 23 and 24 of the statement of facts and gave evidence in paragraph 22, 23, and 24 of the claimant witness deposition that the defendant made deductions from his salary for the purpose of pension for a period of 17 months while he was in the employment of the defendant. The claimant further testified that the defendant failed to remit the 18% pension deductions duly deducted monthly from his salary. The 10% compulsory contribution by the employer is N75,650.00 (Seventy-Five Thousand, Six Hundred and Fifty Naira) while his monthly contribution is N60, 520.00 (Sixty Thousand, five hundred and Twenty Naira) only. That the total unremitted amount is the sum of N2,314.890.00(Two Million Three Hundred and Fourteen Thousand, Eight hundred and ninety Naira) only.

The defendant did not dispute this evidence, rather the defendant in paragraph 27 of his witness deposition stated that the claimant’s pension deductions was paid up to February, 2016 since he assumed duty with the defendant on the 6^th day of January, 2015. The outstanding payments are the outstanding sums from March, 2016 to July, 2017. In the same vein, the inability to pay the pension deductions and remit the pension for the period between March, 2016 and July, 2017 was because of paucity of funds, which he was, as the former Head of Human Resources was aware of and the defendant shall make the necessary returns as soon as its finances improve. This evidence by the defendant is an admission of violation of the provisions of section 11(5) (a) & (b) of the Pension Reform Act 2004. The section requires that the monthly deduction made at source when the employer is paid his salary shall be remitted to the employee pension fund administrator not later than seven working days from the date the employee is paid his salary. This violation can only be remedied by and order directing the defendant to remit the pension contribution of the claimant for the period of March, 2016 to July, 2017. The claimant however did not state very clearly in his pleadings and in his evidence what his monthly emolument is, on which amount standing as his basic salary from which the sum 75, 650.00k and N60, 520.00k was being deducted as stated in paragraph 22 of his witness deposition. By the provisions of S. 102 of the Pension Reform Act 2004, the deductions are to be made from the monthly emolument which is made up of the sun of the basic salary, housing allowance and transport allowance. It is also in evidence that in-between the employment as shown on Exhibit C4, the salary of the claimant was reduced effective from February, 2016. This leaves the figure of N2, 314,890.00k being sought to be remitted to the claimant pension fund administrator by an order of this court very doubtful. In the absence of evidence to proof that the above sum is the correct sum, this court cannot make the order sought for in this relief. However since the duty to deduct and remit pension contribution is a statutory duty imposed by Section 11(5) (a) & (b) of the Pension Reform Act 2004, this court is vested with the inherent powers and jurisdiction to order the performance of this statutory duty by the defendant in this action. Accordingly, the defendant is hereby ordered to compute the pension contribution from the monthly emolument of the claimant including the period of March, 2016 to July, 2017and remit same to the pension fund administrator of the claimant within 30 days from the date of this judgment. The defendant shall file evidence of such remittance before this court.

On Relief No 6.

The claimant also seeks an order directing the defendant to deliver the claimant Tax Card or provide evidence of the remittance of the claimant tax obligation to the appropriate authorities during the period of the claimant employment with the defendant. The right of the claimant to have evidence of his tax returns is not disputed by the defendant. In paragraph 25 of the statement of facts and 27 of the witness deposition, the defendant admits that the claimant tax return has however been fully paid. This being the case, I hereby order the defendant to furnish the claimant with the evidence of the remittance of his tax deduction for the period of his employment with the defendant within 30 days from the date of this order.

The claim of 12% interest is without any justification in law. The claimant has not pleaded and led any evidence of his right to claim interest in accordance with the law. Interest can only be claimed in an action as of right, where it is contemplated by the agreement between the parties or under a mercantile custom or under a principle of equity such as the breach of a fiduciary duty. See the case of Afribank Nig. PLC V. Aminu Ishola Investment Limited. [2001]LPELR-10929- CA. See also the case of Ekwunife V. Wayne West Africa Ltd. [1989] 5 NWLR (Pt.122) 422 at 445. The claim of interest fails and is hereby accordingly dismissed.

Judgment is entered in the following terms:

1) The first relief fails and is hereby dismissed.

2) Judgement is entered in the sum N440,000.00k as the sum which the claimant was entitled to as relocation allowance.

3) Relief No 3 on the claim of interest fails and is hereby dismissed.

4) The order of perpetual injunction sought by the claimant is hereby refused. The claimant shall pay the sum of N400,000.00k to the defendant being the Net Book Value of the Honda CRV car unlawfully retained by the claimant after exiting the employment of the defendant. This amount shall be set off from any sum the claimant may be entitled under this judgment.

5) defendant is hereby ordered to compute the pension contribution from the monthly emolument of the claimant including the period of March, 2016 to July, 2017and remit same to the pension fund administrator of the claimant within 30 days from the date of this judgment. The defendant shall file evidence of such remittance before this court.

6) Parties are to bear their own cost.

Judgment is entered accordingly.

___________________________________

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)