IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE ELIZABETH A. OJI, PhD
DATE: THURSDAY 25TH NOVEMBER 2021 SUIT NO: NICN/LA/385/2017
BETWEEN
ADELABU SHOLA RASHEED CLAIMANT
AND
COMFORT VEGETABLE OILS LTD DEFENDANT
Representation:
Ibrahim C. Adamu for the Claimant
Defendant was represented up to Defence stage and became unrepresented.
JUDGMENT
Introduction and Claim:
1. On 11th of August, 2017, the Claimant filed this suit via the General Form of Complaint, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents all dated the same 11th of August, 2017 and copies of the documents to be relied on by Claimant at the trial. The Claimant claims against the Defendant as follows;
(a) AN ORDER of the Honourable Court that the purported termination of the Claimant’s employment by the Defendant in its letter dated the 27th day of May, 2015 is wrongful and a breach of the terms of the Claimant’s contract of employment.
(b) AN ORDER of the Honourable Court for the payment of the sum of N2, 346, 810.00 (Two Million Three Hundred and Forty Six Thousand Eight Hundred and Ten Naira Only) by the Defendant to the Claimant being his entitlement up to the 27th day of May, 2015 when the Claimant’s appointment was wrongfully terminated by the Defendant.
(c) N5, 000, 000.00 (Five Million Naira) compensation for any loss the Claimant will suffer in the future as a result of wrongful and abrupt termination of his employment by the Defendant.
(d) The sum N1, 000, 000.00 (One Million Naira) being the cost of filing this suit through solicitors.
2. In response to the Claims, the Defendant filed his Statement of Defence and counter-claim dated 29th August, 2017 together with a list of Defendant’s witnesses and Defendant’s witness statement on oath, list of documents and copies of documents to be relied on at the trial. The Claimant filed a Reply to the statement of defence and defence to the counter claim on the 29th November, 2017 accompanied by an additional written statement on oath of the Claimant.
3. Trial commenced in the suit on 21st of June, 2018 and the Claimant concluded his case on the same day. The Claimant gave evidence for himself as CW, by adopting his witness statement on oath deposed to on the 11th of August, 2017. The Claimant was thereafter cross-examined. During the examination in chief, the Claimant tendered in evidence the following documents:
1 Exhibit C1 Letter of termination of employment
2 Exhibit C2 Letter dated 29th day of July 2015 (re-
termination of appointment
3 Exhibit C3 Letter dated 19th day of July 2015 (payment of
final entitlement)
4 Exhibit C4 Letter dated 25/8/15 (Re: payment of
final entitlement)
5 Exhibit C5 Letter of demand for entitlement dated 15th
day of September 2015
6 Exhibit C6 Letter of Offer of appointment
7 Exhibit C7 Letter of confirmation of appointment
8 Exhibit C8 Staff conditions of services.
4. From 21st June 2018 when the Claimant closed his case, the case was called up six times for the Defence to open its case. When the Defendant failed to open its case, the Court on 6th July 2021 foreclosed the case of the Defendant. The Court thereupon ordered the parties to file their final written addresses. The Defendant did not file any final written address, whereupon the Claimant filed his final written address. The Claimant adopted his Final Written Address on the 10th day of November 2021 and the Court adjourned for judgment.
Case of the Claimant
5. The Claimant was employed by a letter of employment dated 18th March 2008 by the Sobola Omo Ventures Limited as factory manager and was later posted to Comfort Vegetables Oils Ltd (the Defendant) with headquarter at KM. 10, LASU – Idimu Road, Akesan, Lagos. He worked for the Defendant as factory manager from 3rd April, 2008 till 27th May, 2015 when his appointment was terminated by the Defendant. The case of the Claimant is that his appointment was wrongfully terminated without giving him the mandatory query to enable him explain his own side of the story as required by law and the principle of fair hearing. The Claimant further states that the Defendant did not give him one month’s notice or payment of one month’s salary in lieu of notice as stipulated in his condition of service (letter of appointment dated 18th March 2008). On 27th May, 2015 when the premises of the company was sealed up by the Igando Area Local Government; the Defendant did not investigate the reasons or basis for the seal up before the Claimant’s appointment was abruptly terminated by the Defendant. The Claimant states that he performed all his duties judiciously and without blemish, yet the Defendant has failed or refused to pay him his entitlements despite repeated demands. The Claimant tabulated his due entitlements as follows:
(i) One month salary in lieu of notice = N155,000.00
(ii) Three months salaries = N465,000.00
(iii) Five months outstanding annual leave = N775,000.00 m
(iv) (P.A.Y.E.) tax deduction if not remitted = N951,000.00
TOTAL =N2, 346,810.00
The Claimant also states that the Defendant’s letter dated the 25th August, 2015 was an afterthought designed to prevent him from getting his entitlements; and that he never mismanaged the Defendant’s fund or was he ever found wanting as claimed by the Defendant in its letter dated 25th August, 2015.
6. The Claimant in his Final Written Address raised a sole issue for determination:
· Whether on the pleadings and evidence adduced in this suit, the Claimant is entitled to the reliefs sought before this Honourable Court.
The Claimant, in his argument via his Counsel argued that failure of the Defendant to adhere to the terms and conditions in exhibits C6, C7, and C8 is fatal to the case of the Defendant since parties are bound by the terms of contract of employment without any extrinsic matters. Claimant relied on several cases on this point; including the case of Abayomi V. Saap-Tech (Nig.) Ltd. (2020) 1 NWLR Pt. 1706 Pg. 453 at 493. The Claimant accepts that the burden of proving wrongful termination lies on him and submits that by tendering exhibits C1, C6, C7, and C8; he has been able to prove that the Claimant did not comply with exhibit C6. The Claimant also argues that the Defendant failed to prove gross misconduct against him. He argues that having given reason for terminating him; the reason must be proved satisfactorily before the Court. The Claimant submits that failure to prove this before the Court amounts to wrongful termination of his appointment. The Claimant relied on the case of Institute of Health Abu Hospital Management Board v. Anyip (2011) 12 NWLR (Pt. 1260) S. C. 1 at 19. The Claimant further submits that he is entitled to damages as sought since his evidence was not discredited during cross examination. The Claimant also submits that the statement of defence and counter-claim be discountenanced since the Defendant has failed to adduce evidence.
DECISION
7. The Defendant had every opportunity to defend this case. Upon service of the originating process, it entered appearance on 22nd August 2017 and filed its statement of defence on 29th August 2017. On 11th October 2017 when the matter was first called up, Defendant was represented by Olakunle Olabinjo Esq. Mr. Olabinjo represented the Defendant diligently without missing a single date until the 3rd of August 2018 when he filed a Notice of Withdrawal as Counsel supported by an affidavit; also attaching Counsel’s letter to the Defendant. Mr. Olabinjo also attended the Court to inform the Court of his withdrawal and to hand over the file to the incoming Counsel. At the next date PK Akano appeared on behalf of the Defendant and asked for time to enable him study the file and to commence the defence. Thereafter, no Counsel appeared on behalf of the Defendant. The Defendant was served hearing notices for defence and was foreclosed after many adjournments. Parties were ordered to file their final written addresses. Defendant failed to file any address and on 10th November 2021, Claimant adopted his final written address and the matter was adjourned for judgment.
8. I read carefully and considered the processes filed, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the lone witness called at the trial. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set a lone issue down for determination:
· Whether the Claimant is entitled to his claim.
9. This lone issue is appropriate as it is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm v. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the Court the terms of the employment and to prove in what manner the said terms were breached by the employer.
10. The Claimant by evidence which was not controverted proved that he was employed by the Defendant. This was done via exhibits C6 and C7; being letter of offer of appointment dated 18th March 2008 and letter of confirmation dated 20th January 2009. It is also not controverted that the Claimant was terminated vide exhibit C1 with immediate effect. The Claimant has alleged that the termination is wrongful in not following the terms of his employment. The terms of Claimant’s employment in relation to the termination of the relationship can be found in exhibit C6 and C8. Exhibit C6, the offer of appointment states that:
On completion of the probationary period and employment thereafter confirmed, the contract may be terminated by giving a month notice in writing or payment of one-month salary in lieu of notice”.
Exhibit C8 also provides for “Withdrawal/Termination of Appointment” as follows:
WITHDRAWAL/TERMINATION OF APPOINTMENT
5.1 The company reserve the right to withdraw or terminate the appointment of any staff if such is found to be unproductive, misfit or indiscipline or found guilty of cross-misconduct(Sic).
5.2 If any staff wishes to leave the company, he/she is expected to resign his/her appointment giving one month notice or one month salary in lieu of notice.
11. The above paragraphs of exhibit C6 and C8 provide for the giving of one month notice of termination or one month salary in lieu of notice. However, where a staff is found to be unproductive, misfit or indicipline(sic) or found guilty of cross(sic) misconduct, the company has the right to withdraw or terminate the appointment of the staff. No notice period is provided for such cases. For such cases on discipline, paragraph 14.1 provides that:
14.1 Any staff that gets three queries and receive warning letters, would result in his/her salary being withheld. Any other query after the warning letter will lead to termination of appointment.
Paragraph 14.4 proceeds to list acts constituting misconducts as:
14.4.1 Careless handling of machinery/equipment and company
properties.
14.4.2 Disobedient to Manager/Management’s instructions or
directives.
14.4.3 Acts of confrontation with customers, manager or staff of
the company.
14.4.4 Apparent refusals to carry out official duties/assignments.
14.4.5 Stealing of company properties.
14.4.6 Irregular attendance to work.
14.4.7 Irregularities in financial record.
14.4.8 Financial unfaithfulness or misappropriation of funds.
14.4.9 Any contraventions of the above code of conduct.
12. In terminating the employment of the Claimant via exhibit C1, the Defendant made it with immediate effect; thus not complying with the term as provided in exhibit C6 for one month notice or one month salary in lieu of notice. In the said exhibit C1, the Defendant referred to allegation of gross misconduct, negligence of duty, wanton disrespect for constituted authority and insubordination etc. However, there is no evidence of issuance of a query by the Defendant as required by exhibit C8 – the staff conditions of service. In the circumstance, I find that the Defendant breached the Claimant’s terms and conditions of service, in not giving one month’s notice of termination. Assuming the termination was intended to be a dismissal, yet, it did not comply with the Staff Conditions of Service. In the circumstance, I find and hold that the purported termination of the Claimant by the Defendant in its letter dated 27th day of May, 2015 is wrongful and a breach of the terms of the Claimant’s employment.
13. In relief two, the Claimant seeks an order for the payment of the sum of N2, 346,810.00 (Two million Three Hundred and Forty Six Thousand, Eight Hundred and Ten Naira Only) by the Defendant to him being his entitlement up to the 27th day of May, 2015 when his appointment was wrongfully terminated by the Defendant. In his evidence, Claimant stated that in his letter dated 29th July, 2015 addressed to the Defendant, the reminder dated 19th August, 2015 and also the letter from his Counsel dated 15th September, 2015 he clearly stated his entitlements up to the time or period when his appointment was wrongfully terminated to be:-
(i) One month salary in lieu of notice = N155,000.00
(ii) Three months salaries = N465,000.00
(iii) Five months outstanding annual leave = N775,000.00
(iv) (P.A.Y.E.) tax deduction if not remitted = N951,000.00
TOTAL =N2, 346,810.00
14. From the evidence before the Court, there is no challenge to the sum stated to be the Claimant’s one month salary. This amount was contained in exhibit C2 written by the Claimant to the Defendant. After exhibit C3 reminding the Defendant of the payment of his final entitlement; the Defendant wrote exhibit C4. The Defendant did not deny that Claimant’s salary is as he stated. The Defendant did not deny the entitlements but rather referred the Claimant to paragraphs 5:1 and 5:4 of exhibit C8. Paragraph 5:1 has already been reproduced in this judgment. I have already found that that paragraph was breached as it did not comply with paragraph 14 on DISCIPLINE. No query or disciplinary procedure is shown to have been commenced against the Defendant to justify the withdrawal without notice. Paragraph 5:4 also referred to by the Defendant in exhibit C4 (Defendant’s letter) provides that:
5.4 Staff shall be entitled to the following benefit on withdrawal or resignation of appointment from the services of the company.
From 5 – 10 years (Junior & Intermediate Staff six months salary. Senior Staff three months salary)
From 10 – 15 years (Junior & Intermediate Staff one year salary. Senior Staff six months salary)
From 15 – 20 years (Junior & Intermediate Staff two years salary. Senior Staff one year salary)
N/B: Junior and Intermediate Staff salary from N up to N30,000.00. Senior Staff Above N30,000.00).
15. The two paragraphs referred to by the Defendant in exhibit C4 do not exculpate the Defendant from giving the sought one month notice or salary in lieu. By referring the Claimant to paragraph 5.4 of exhibit C8, the Defendant concedes that exhibit C8 is binding on both parties. Claimant’s second head of entitlement is for three months’ salary as he has served in the Defendant from 5 – 10 years. Evidence shows the Claimant was employed in March as Factory Manager in 2008 and terminated in May 2015 placing him under category 5 – 10 years. Having found that the Claimant was wrongfully terminated, he is also entitled to what he would have received; had he been properly terminated. I thus find and hold that the Claimant has established his entitlement to the one month salary in lieu of notice of N155,000.00. I also find that the Claimant has also established his entitlement to three months’ salary under category one in exhibit C8 paragraph 5.4. This amounts to N465,000.00 which the Claimant is claiming. I hold that he is entitled to the claimed N465,000.00.
16. Exhibit C8 at paragraph 7.3 provides that every staff that has successfully competed one year working period with the company is entitled to an annual leave period yearly. In exhibit C2, the Claimant wrote to the Defendant stating his entitlement to 5 months leave. He stated thus:
…I have outstanding leave of five months, since about two months had been resolved out of the total number of seven months I was entitled to in more than seven years of my stay there.”
This fact was never disputed either by evidence during cross examination or Defendant’s letter in response to the Claimant (exhibit C4). The outstanding annual leave sought is for Five (5) Months amounting to the sum of Seven Hundred and Seventy-Five Thousand Naira (N775, 000.00). Thus far, this evidence in respect thereof remain uncontroverted. I therefore hold that the Claimant is entitled to the sum of N775,000.00 representing Claimant’s leave allowance for five months.
17. With respect to the PAYE tax deduction of Nine Hundred and Fifty-One Thousand, Eight Hundred and Ten Naira (N951, 810.00), the Claimant asked for a refund of the said sum if it was not remitted to the Lagos State Government. Counsel argued that as the Defendant never provided any evidence to show that the tax deducted has been remitted and the non-remittance claim was not discredited during cross examination, the Claimant is entitled to be refunded the Nine Hundred and Fifty-One Thousand, Eight Hundred and Ten Naira (N951, 810.00) for (P.A.Y.E.) tax deduction as money had and received. However, the Claimant has not shown how he becomes entitled to the refund of the tax; assuming it was never remitted to the Lagos State Government. The tax deducted now belongs to the Lagos State Government who is entitled to have it remitted to them. I do not find that the Claimant is entitled to such refund. Though Counsel in his written address made the case of Claimant needing proof of the remittance for purposes of tax clearance; that fact is not part of the evidence of the Claimant; nor part of the reliefs sought. The law is trite that Counsel's summation and final address does not have the force of evidence, and it cannot be substituted for legal evidence. A bare statement from the Bar does not have the force of legal evidence by which a burden of proving a fact in issue is discharged - Agugua v. State (2017) LPELR-42021(SC).
18. The Claimant also claims for the sum of N5,000,000.00 (Five Million Naira only) being damages or compensation for any loss the Claimant will suffer in the future as a result of wrongful and abrupt termination of his appointment by the Defendant. This relief is not grantable as this Court cannot begin to imagine what loss the Claimant might suffer in future. This relief is not ascertainable and therefore refused.
19. On the relief for the sum of N1, 000,000.00 (One Million Naira Only) being the cost of filling this suit through solicitors; there is no evidence before this Court upon which this relief is hinged. It is therefore declined.
20. For the avoidance of doubt, this suit succeeds in part; as follows:
· I hold that the purported termination of the Claimant by the Defendant in its letter dated 27th day of May, 2015 is wrongful and a breach of the terms of the Claimant’s employment.
· I hereby Order the Defendant to pay to the Claimant the sum of N1,395,810 (One Million Three Hundred and Ninety Five Thousand Eight Hundred and Ten Naira) only, being his entitlement up to the 27th day of May, 2015 when the Claimant’s appointment was wrongfully terminated by the Defendant. The adjudged sum is made up of the following:
(i) One month salary in lieu of notice = N155,000.00
(ii) Three months salaries as end employment benefit = N465,000.00
(iii) Five months outstanding annual leave = N775,000.00
N1,395,810.00
· The said sum granted in this judgment is to be paid not later than sixty days from today, failure at which interest will accrue at the rate of 20% per annum.
Judgment is entered accordingly.
…………………………………….
Hon. Justice Elizabeth A. Oji PhD
