IN THE NATIONAL INDUSTRIAL CORT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO
DATED: 19TH JULY, 2019 SUIT NO: NICN/AK/18/2018
BETWEEN
MR. OLUWAROTIMI FELIX ABOLARIN ……………. CLAIMANT
AND
MACMILLAN NIG. PUBLISHERS LIMITED ………….. DEFENDANT
REPRESENTATION:
O. M. AFOLABI APPEARS FOR THE CLAIMANT
OPEYEMI ADEWALE APPEARS FOR THE DEFENDANT
JUDGMENT
The claimant by a complaint before this Court on the 15th of March, 2018 claims against the defendant as follows:
The sum of N1,969,716.00k (One million, Nine Hundred And Sixty Nine Thousand, Seven Hundred And Sixteen Naira) only being the entitlement of the claimant as follows:
Basic salary (N26, 436 x 15) = N396, 540
Housing Allowance (N14, 242 x 15) = N213, 630
Transport Allowance (N13, 218 x 15) = N198, 270
Sub Total = N808, 440
A month in lieu of notice = N26, 436 = N26, 436
Cooperative Saving = N326, 400 = N326, 400
Grand Total = N1, 161,276
The sum of N5 million as general damages.
The Claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, written statement on oath, list of witness and documents to be relied upon. The Claimant also filed a further written statement on Oath on the 21st of January, 2019. The defendant on their part filed a memorandum of appearance, statement of defence and all other accompanying processes on the 30th November, 2018.
The claimant averred that he was employed as an INVOICING CLERK in the Ado-Ekiti Depot of the defendant vide a letter of Appointment dated 10th September, 2007 and his employment was confirmed vide a letter dated 23rd November, 2010. He stated further that the condition of service between him and the defendant is as contained in the “Macmillan Nigeria Publishers Limited Conditions of Service” which came into operation on 1st January, 2002. The claimant stated that on the 25th March, 2014, the defendant terminated his appointment vide a letter with reference no. MNP/CFO/OJO/IB/2014, due to “re-organisation exercise going on in Macmillan Nigeria Publisher Limited” and in breach of his conditions of service, he also pleaded that he caused his solicitor to write a letter of demand to the defendant on his entitlements but to no effect.
The Claimant added that under the conditions of service, employees are entitled to gratuity, depending on their years of service and one (1) month salary in lieu of notice, while a sum of N45,000.00 (Forty Five Thousand) per month is to be paid as imprest for three months at a sum total of N135,000.00 (One Hundred and Thirty Five Thousand Naira).
The claimant further asserted that the defendant organised a Cooperative Savings scheme for its employees, and a specific sum was deducted from his monthly salary, he pleaded further that his last pay slip reflects that he has a sum of N375,000.00 (Three Hundred and Seventy Five Thousand Naira) outstanding credit in his cooperative savings, to be paid by the defendant.
The claimant pleaded that the defendant failed, refused and/or neglected to pay him the agreed gratuity as contained in the contract of employment, and his total gratuity is 6 months emoluments calculated as follows:
Basic Salary (N18, 242 x 6 months)=N109, 452
Housing Allowances (N11, 005 x 6 months)= N66, 030
Transport Allowances (N8, 529 x 6 months)= N 51,174
A month in lieu of Notice= N18,242
Cooperative Savings= N375,000
Grand Total= N619,898.00
He further averred that the failure of the defendant to pay him his entitlements resulted in great psychological trauma and economic loss for him and that many opportunities for him to invest suffered due to this.
WHEREOF the claims against the defendant as aforestated.
The defendant filed a memorandum of appearance and statement of defence on the 30th of November, 2018. In its defence, the defendant admitted paragraphs 1, 2, 3, 4, 5, 6, 7, and 8 but denied paragraphs 9, 11, 12, 14, 15, 16, 18, 19, 20, 21 and 30 of the statement of facts.
The defendant denied the claim for the sum of N45,000 (Forty five thousand naira) per month for 3 months as imprest/float, and stated that there was no agreement to that effect.
The defendant admitted that the claimant and some employees were laid off due to economic downturn and that they are indeed owing the claimant his entitlements but, denied the amount claimed.
The defendant averred that it was the bad economic downturn being experienced by the defendant that is responsible for the inability to pay the claimant.
In conclusion, the defendant prays this Court to dismiss the Claimant’s suit in its entirety for being frivolous and unmeritorious.
The claimant in his reply to statement of defence re affirmed that there was an agreement that the defendant would pay the claimant a monthly float of N45,000.00 (Forty Five Thousand Naira) to cover the claimant’s expenses incurred in the employment and the defendant has been consistent in paying the float for years but defaulted in the 3 months prior to the termination of his appointment.
He averred that the cooperative saving scheme was organised by the defendant and the company was deducting N1,000 as monthly Thrift Cooperative Savings from his salary, and same is reflected on the pay slip of the claimant dated March 2014.
The claimant urged the court to hold that the Statement of Defence lacks merit, is an abuse of Court process and should be dismissed with substantial cost.
The trial in this case commenced on the 19th of February, 2019 with the claimant testifying for himself as CW1, he adopted his sworn statements on oath and tendered several documents which were admitted and marked Exhibits FB1 – FB10. He was later cross examined and thereafter closed his case.
On the same date, the defence opened its case by calling one Ajayi Bamidele Ojo, a field Sales Manager of Akure Branch of the defendant as DW1, he adopted his witness Statement on Oath, gave evidence and was cross-examined. The defence subsequently closed its case and the case was adjourned for the adoption of final written address. Parties adopted their addresses on 27th of May, 2019, and, the case was adjourned for judgment.
The defendant filed its final written address on the 2nd of April, 2019 wherein two (2) issues were formulated for consideration to wit:
Whether considering the facts, circumstances, and evidence led by the parties in this case, the Claimant has established that he is entitled to the sum of N1,161,276 (One Million, One Hundred and Sixty-One Thousand, Two Hundred and Seventy-Six Naira) as the amount the Defendant is owing him.
Whether from the evidence led by both parties, this Honourable Court can grant the Claimant the sum of N5,000,000 (Five Million Naira) as general damages.
On issue one, counsel for the Defendant submitted that the defendant admitted owing the Claimant his entitlements after the termination of his employment but denied the sum of N1,161,276.00K (One Million, One Hundred and Sixty-One Thousand, Two Hundred And Seventy-Six Naira) claimed by him. He thereafter stated that throughout the course of trial, the claimant was not able to proof how he arrived at the said sum and none of the exhibits tendered was able to proof same.
Opeyemi Adewale Esq. of counsel to the Defendant submitted that it is a fundamental principle of law that he who assert must prove, and this the claimant failed to do, he cited Section 131 (I) of Evidence Act 2011, OKUBULE VS OYABOLA (1990) 4 N.W.L.R. (PART 147) 723, amongst others. He urged the Court to resolve issue one in favour of the Defendant.
On issue two, counsel submitted that it is trite that general damages may be awarded when there is evidence that a party so claiming has suffered damages. He argued that the law remains that in a case of breach of contract, the principle upon which the award of damages is predicated is “restitution in integrum, id est.” (restoration of the Claimant to the condition he was before the breach occurred). It is never the object of an award of damages to give the Claimant a wind fall or restitution in opulentiam. He cited SAVANAH BANK OF NIG PLC VS OPANUBI (2004) 15 N.W.L.R. (PT 896) 437, and UNION BEVERAGES LTD VS OWOLABI (1998) 2 N.W.L.R. (PT 68) 128. Learned counsel stated that the claimant during the hearing of this suit failed to lead evidence to proof the alleged special and general damages claimed, he therefore urged the court to resolve issue two in favour of the Defendant.
In conclusion, the Defendant’s Counsel urged the Court to hold that the Defendant is not owing the Claimant the sum of N1, 161,276 (One Million, One Hundred and Sixty-One Thousand, Two Hundred and Seventy-Six Naira) and that he is also not entitled to the sum of N5,000,000 (Five Million Naira) as general damages.
The Claimant’s final written address dated 10th April, 2019 was filed on the 11th April, 2019, wherein counsel formulated two issues for determination to wit:
Whether there is a wrongful termination of the claimant employment by the defendant.
Whether the claimant is entitled in law and fact to the reliefs sought and the sum of 5 million damages per the complaint issued on 15th day of March, 2018.
On issue one, counsel placed reliance on Exhibits FB1, FB2, FB3, and FB10, he submitted that the burden of establishing the wrongful termination/dismissal of employment rest squarely with the claimant. He cited the supreme court case of KATTO VS CBN (2001) FWLR (Pt53) 188 @ page 200 paragraph G-H.
O. M Afolabi of counsel to the Claimant submitted that the import of this decision is that the claimant must plead the contract of service and prove the breach thereof which makes the termination of his employment wrongful or unlawful. He cited DENLOYE VS MEDICAL & DENTAL PRACTITIONERS COMMITTEE (1968) INLR 306 and OLANIYAN VS UNILAG (1985) 3 NWLR (Pt. 9) 599 amongst others.
He maintained that in all these cases, the court firmly established the test to determine whether the dismissal of an employee is improper or unlawful, and affirmed that the claimant in this case has satisfied these conditions.
Learned counsel submitted that by Exhibit FB10 the claimant’s employment can only be terminated by notice or salary in lieu, and this was not done in this case He asserted that DW1 under cross-examination was unable to debunk the assertion that the employment of the claimant was wrongfully terminated. The Counsel posited that the evidence of DW1 reveals that he is not conversant with the rules guiding the employment, termination or any other affairs that relates to the defendant, stating that the claimant adequately pleaded that his employment can only be terminated by one month notice or salary in lieu. He stated further that the terms and conditions of a contract of service is the bedrock for the determination of any case involving termination of employment, citing UDOH V C.S.C. AKWA IBOM STATE 2014 PT 716 ALLFWLR CA 584 and argued that this was flouted by the defendant, he therefore urged the court to hold that the claimant’s termination was wrongful, illegal, null and void.
On issue two, counsel submitted that the claimant is entitled in law and fact to the reliefs sought and the sum of N5 million (Five Million Naira) as damages.
He posited further that once the court comes to the conclusion that the claimant was wrongfully dismissed/terminated, then it follows that the claimant is entitled to the reliefs sought. In awarding the reliefs sought, the counsel maintained that the court will have recourse to the condition of service and the Exhibits backing up the reliefs.
Learned counsel stated that it is trite that admitted facts needs no further proof and cited N.B.C. PLC. V UBANI pt 718 (2014) ALL FWLR SC 803, submitting that in the instance case, the defendant admitted they are owing the claimant his entitlements. He urged the court to find in favour of the claimant and grant all his reliefs.
I have studied all the processes filed in this case and have listened to the witnesses called by both parties in proof of their case and the submissions of counsel in their final written addresses and have thereafter formulated two issues that will best determine this case:
Whether or not the claimant is entitled to the payment of one month salary in lieu of notice and other entitlements by way of special damages.
Whether or not the claimant has succeeded in proofing his claim for N5 million (Five Million Naira) as general damages.
The claimant’s case is that the termination of his employment by the defendant was wrongful in that he was not issued a month notice or paid a month salary in lieu of notice before the appointment was terminated, he claims that this runs contrary to the contract of employment between the parties i.e. Exhibit FB10. Claimant is also contending that under Exhibit FB10, he is entitled to his gratuity, Cooperative Savings and other allowances. The defendant however contends that it was compelled to reduce its staff due to the economic downturn being experienced by the company and this resulted in the termination of the employment of the claimant and other employees, the defendant agreed to owing the claimant his entitlements but disputed the amount claimed as special damages and maintained that the claimant is not entitled to general damages.
It is imperative to note before delving into the issues for determination, that the figures contained in the reliefs of the complaint is different from the figures in the statement of facts, while the reliefs in the complaint are as stated above, the amount claimed in the statement of facts are stated as follows:
Basic Salary (N18, 242 x 6 months)=N109, 452
Housing Allowances (N11, 005 x 6 months)= N66, 030
Transport Allowances (N8, 529 x 6 months)= N51, 174
A month in lieu of Notice= N18,242
Cooperative Savings= N375,000
Grand Total = N619,898.00k
However, in accordance with the position of the law, the statement of facts supersedes the complaint, in case of conflict between the two processes, see Jumbo & Ors V. Jumbo &Ors [2010] LPELR 8673 CA where it was held per Tijani Abdullahi JCA as follows:
“..the law is settled beyond dispute that a statement of claim supercedes a writ of summons. In the case of EZENWA V. OKO and OTHERS (2008) VOL .157 LRCN P, 230 at 243 it was held thus:
“It is settled law that the statement of claim supersedes the writ of summons and that what is claimed in the writ but omitted in the statement of claim is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the court though subject to the payment of appropriate filing fees where appropriate.”
Thus, I find and rely on the position of law to base the determination of the issues in this suit on the reliefs as stated in the statement of Facts. I so hold.
It is trite law, that when an employee complains of wrongful termination of his employment or is claiming any entitlements from an employer, he has the onus to prove same by leading evidence as follows:
He is to prove that he was employed by the Employer.
He must place before the court the terms and conditions of the contract of Employment.
Who can appoint and who can remove him and
In what circumstances the appointment can be determined by the employer and the breach of the terms of employment.
See Okomu Oil Palm Co.Ltd v. Iserhienhrien [2001] 6 N.W.L.R. Pt.710 @ pg. 660.
In the instant case ,the fact that the claimant was an employee of the defendant is uncontroverted; it is also uncontroverted that the parties are in a Master/Servant relationship which can be determined with or without any reason at any time by the parties; the letter of employment and terms and conditions of employment were tendered and admitted as Exhibits FB1 and FB10; on whether the contract of employment was properly determined or breached in any way, the claimant referred the court to clause 18 of Exhibit FB 10 which states as follows:
“it is understood and recognised that the company or the employee may terminate an appointment giving the necessary notice without adducing any reason whatsoever. If at the company’s discretion, the employee is not required to work out his/her notice, he/she will receive the appropriate amount of his/her pay in lieu of notice. An employee who resigns without giving notice will not be allowed any leave or salary. An employee who resigns and give notice will be allowed leave due to him/her at the time of resignation but no leave allowance will be paid”.
Further reading of clause 25 of Exhibit FB10 reveals that:
“Redundancy is caused by an excess of man power resulting in an involuntary and permanent loss of employment. The company will endeavour to avoid terminating the services of an employee on the ground of redundancy. However, where through force of circumstances, it is necessary to reduce work force the Management will consider such factors as efficiency, ability, diligence, reliability, fitness or work, loyalty and length of service before deciding who to lay off. Such employees will be given appropriate length of notice or salary in lieu”.
In furtherance of his case, the claimant tendered Exhibit FB2 which is the letter of termination of his appointment, which reads as follows:
TERMINATION OF APPOINTMENT
“Please be informed that due to the current reorganisation exercise going on in Macmillan Publishers Limited, Management has decided to terminate your appointment with effect from Monday 31st of March 2014.
The Accounts Department will be contacted to pay your entitlements. But if you have obtained any loan(s) from Mascoop Ltd, and have not fully settled the loan(s) the balance will be deducted from your entitlements before payment. In accordance with your terms of employment, you will be paid one month’s salary in lieu of notice with your entitlements.”
It is trite that admitted facts need no further proof, the defendant in this case has admitted owing the claimant his entitlements but kept silent on the amount it is owing the claimant, rather they sought to find solace in the assertion that the claimant is not entitled to the amount he is claiming. The court is therefore left with no other option but to examine the monetary claims and determine whether the claimant has adduced enough evidence in proof of the total sum claimed by him.
An evaluation of all the above discloses that while the defendant exercised its right to determine the employment of the claimant pursuant to the provisions of Exhibit FB10 highlighted above, the defendant breached the express terms of the provisions as to issuance of “…necessary notice”, this position is reiterated by Exhibit FB2 which is the letter of termination, wherein it was stated clearly that one month salary in lieu of notice will be paid to the claimant along with his entitlements. It is the position of the law that where an employee’s appointment is terminated, and the mode for termination of the employment is stipulated as notice or salary in lieu of notice, the payment in lieu should be made alongside the service of the letter of termination of appointment. Where the employer fails to do this he is liable for breach of the terms of employment see New Nigeria Bank Plc v. Solomon Owie [2010] LPELR 4591 (CA). It is unrefuted that the defendant in the instant case did not pay the one month salary stipulated in Exhibit FB2, and as such is in breach of the contract of employment and liable to pay the claimant one month salary in lieu of notice, Exhibit FB4 is the last pay slip of the Claimant, and it is so stated therein that the last paid monthly basic salary of the claimant is N18,242.00K (Eighteen Thousand Two Hundred And Forty Two Naira) and his net pay is N24,902.00k (Twenty Four Thousand Nine Hundred And Two Naira), the claimant is however claiming his basic salary in the sum of N18,242.00k (Eighteen Thousand Two Hundred And Forty Two Naira), in Abiodun Joseph v. Fajemilehin O.O. & Anor [2012] LPELR-9849 (CA) the Court of Appeal held per Fasanmi, J.C.A thus:
“it is the law that where a party proves his claim to a larger sum than the sum pleaded, he will only be entitled to the lesser sum claimed and proved.”
Therefore, I find that the Claimant is only entitled to N18,242.00K (Eighteen Thousand Two Hundred And Forty Two Naira) basic salary as one month salary in lieu of notice as captured in his Statement of Facts. I so hold.
In proof of his claim for six months total emolument as gratuity for his service of seven (7) years with the defendant, the claimant relied on Exhibit FB10, and testified to this stating that this is in accordance with Clause 27 of Exhibit FB10 which states that gratuity for 5-7 year service with the defendant will amount to six (6) months total emoluments. The claimant having served the Defendant for 7 years is entitled to six (6) months total emolument as gratuity, hence his claim in this regard succeeds. Exhibit FB4 i.e. his last pay slip discloses his monthly emolument, and the gratuity as contained in his Statement of Facts is calculated as follows:
Basic Salary (N18, 242 x 6 months)=N109, 452
Housing Allowances (N11, 005 x 6 months)= N66, 030
Transport Allowances (N8, 529 x 6 months)= N51, 174
Grand Total = N226,656
The claimant is therefore entitled to a total sum of N226,656.00 (Two Hundred And Twenty-Six Thousand, Six Hundred And Fifty Six Naira) as gratuity for service rendered to the defendant. I so hold.
On the amount contributed and remitted to the defendant’s cooperative society, it is on record that when the claimant was cross examined by counsel for the defendant on whether the cooperative society is distinct from the defendant, he responded as follows:
“The defendant and Macmillan Cooperative are one and the same”
Also from Exhibit FB4, it is clear that deductions were made from the claimant’s salary to the cooperative savings and the total savings was stated, Exhibit FB10 further reveals that the cooperative enjoyed recognition by the defendant as same is incorporated in clause 12 of Exhibit FB10, where all staff are enjoined to join the cooperative society for loan requests. The defendant cannot deny that the cooperative society is been operated by the company, having incorporated same in the conditions of service i.e. Exhibit FB10. Moreover the defendant did not deny the claimant’s entitlement to his cooperative savings. It is based on the above reasoning that I find that the claimant is entitled to be paid his savings in the defendant’s cooperative society computed at N326,400.00 (Three Hundred And Twenty Six Thousand Four Hundred Naira) less any unpaid loan by the defendant. I so hold.
The claim for N5 million (Five Million Naira) as general damages however fails, as it is the position of the law that damages are not usually granted in employment cases as the quantum of damages available to an employee is the sum accruable to him at the time of termination of his appointment, see ONALAJA V. AFRICA PETROLEUM LTD supra, having awarded the claimant his entitlements, I find no merit in awarding him double compensation by way of general damages. I so hold.
It is noteworthy that the claim against the defendant includes a sum of N45,000.00 (Forty Five Thousand Naira)per month to be paid as imprest, and the claimant pleaded that he is being owed the 3 months imprest/float, at a sum total of N135,000.00 (One Hundred And Thirty Five Thousand Naira), however, no cogent evidence was adduced on this claim and counsel to the claimant did not refer to same in his final address. I find that this issue is deemed abandoned and unproven. I so hold.
Finally, I hereby order as follows:
The defendant is to pay the claimant one month salary in lieu of notice for the termination of his appointment in the sum of N18,242.00K (Eighteen Thousand, Two Hundred and Forty Two Naira).
The defendant is to pay the claimant a sum of N226,656.00k (Two Hundred And Twenty-Six Thousand, Six Hundred and Fifty Six Naira) as gratuity.
The defendant is to pay the claimant his total savings of N326,400.00k (Three Hundred and Twenty Six Thousand Four Hundred Naira) less any unpaid loan from the defendant’s Cooperative Society.
The claim for general damages fails.
All monetary sum awarded in this judgment are to be paid within 30 days failure upon which it will attract 25% interest per annum.
A sum of N50,000.00k (Fifty Thousand Naira) is hereby awarded as cost against the defendant to be paid to the claimant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
