IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI
DATE: THURSDAY 5TH MAY 2022
SUIT NO: NICN/LA/226/2018
MRS PATRICIA EKWURIBE CLAIMANT
DURO SOLEYE HOSPITALS LTD DEFENDANT
D. E. Daniel for the Claimant
Adams A. Attah for the Defendant
Introduction and Claim:
1. On 10th April, 2018, 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 on Oath, Verifying Affidavit, List of documents; all dated the same 10th April, 2018 and copies of the documents to be relied on by Claimant at the trial of this suit. The Claimant claims against the Defendant as follows:
a. A DECLARATION that the Defendant’s refusal to explain to the claimant of how it arrived at the sum of Six Hundred and Eight Thousand Naira(N608,000,00) only as the claimant’s over 30 years end of service benefit and/or gratuity, the issuance to the claimant of a bad cheque, i.e., the dishonoured check of 28th August, 2015, the piece meal payment to the Claimant of the said sum of Six Hundred and Eight Thousand Naira (N608, 000, 00) Only and the refusal of the Defendant to allow the Defendant and her spouse access to free medical treatment for a period of One year after the Defendant’s retirement as provided for and/or undertaken by the Defendant constitutes unfair labour practices against the Claimant which have resulted in severe economic and financial loss to the Claimant.
b. A DECLARATION that the Claimant is entitled to the payment of her long Service Awards for 25 and 30 years respectively as expressly stated in the Defendant’s Employees Handbook and in line with the long-standing custom/practice of the Defendant.
c. AN ORDER of this Honourable court directing the Defendant to pay to the Claimant the sum of Five Million naira (N5, 000, 000.00) only for the unfair labour practices perpetrated by the Defendant against the Claimant which said practices have resulted in severe economic and financial loss to the Claimant. The particulars of unfair labour practices pleaded are hereby adopted.
d. AN ORDER directing the Defendant to pay the sum of Two Hundred and Twenty Eight Thousand (N228, 000.00) Naira to the claimant being the balance of the sum of Six Hundred and eight thousand (N608, 000.00) naira allegedly stated by the Defendant as the claimant’s gratuity.
e. AN ORDER directing the Defendant to pay the sum of One Hundred and Eighty Three Thousand, Three Hundred naira (N183, 300.00) to the claimant as the claimant’s Long Service Awards for 25 and 30 years respectively.
f. AN ORDER directing the Defendant to pay the sum of Two Million Naira (N2, 000,000.00) only to the Claimant as legal and/or solicitors’ fee in respect of this suit.
g. AN ORDER directing the Defendant to pay the sum of Two Million Naira (N2, 000, 000.00) only as general damages.
h. 21% interest on the judgment sum from the date of judgment to the date of satisfaction of the judgment sum.
i. AND such order(s) as this Honourable Court may deem fit to make in the circumstance
2. In response to the Claims, the Defendant filed its defence dated 7th June, 2018; together with a list of Defendant’s witness and Defendant’s Witness Statement on Oath deposed to by Mr. Alamu Peter Olubisi, list of documents and copies of documents to be relied on at the trial. Trial commenced in the suit on 3rd October 2018 and was concluded on 26th October 2021. The Claimant gave evidence for herself by adopting her Witness Statements on Oath deposed to on the 10th April, 2018 and 3rd September 2018. The Claimant was thereafter cross-examined. During the examination in chief, the Claimant tendered in evidence ten documents admitted as Exhibits C1 - C10; as follows:
1. Letter titled “Re: Retirement” dated 29th June, 2015 Exhibit C1
2. ECOBANK Cheque dated 28th August, 2015 together with the attached Deposit Slip dated 28th August, 2015 - Exhibit C2
3. Defendant’s Employees Handbook Exhibit C3
4. Letter titled, “Long Service Award” dated 26th January, 2006 - Exhibit C4
5. Claimant’s solicitor’s letter dated 28th February, 2017 - Exhibit C5
6. Claimant’s solicitor’s letters dated 13th March, 2018 in response to letter of 14/3/18 - Exhibit C6
7. Defendant’s letter of 5th March, 2018 - Exhibit C7
8. Defendant’s letter of 14th March, 2018 - Exhibit C8
9. Claimant’s solicitor’s letters dated 13th March, 2018 in response to letter of 5/3/18 - Exhibit C6
10. Claimant’s letter of 23/5/2017 - Exhibit C10
3. The Defendant’s witness Mr. Alamu Peter Olubisi gave evidence as DW by adopting his witness statement on oath on the 7th June, 2018 and was cross-examined accordingly. The Defendant tendered Exhibits D1 –D8 as follows:
1. Consultation History - Exhibit D1
2. Petty Cash Vouchers - Exhibit D2
3. Query dated 23/12/97 - Exhibit D3
4. Warning/Sanction dated 7/10/13 Exhibit D4
5. Appraisal Exercise dated 9/104 Exhibit D5
6. Query dated 8/1/15 Exhibit D6
7. Query, Reply to Query and Administrative Minutes on Response – Exhibit
8. Management Resolution Exhibit D8
4. At the end of trial, the Court ordered for the parties to file their respective final addresses. The Final Written Addresses were adopted on 3rd March 2022 and the Court adjourned for judgment.
CASE OF THE CLAIMANT
5. The Claimant’s case is that she was employed by the Defendant as a Nurse and worked for the Defendant for a period of thirty (30) years. The Claimant’s employment was regulated by the Defendant’s Employees’ Handbook, and the long-standing custom/practice of the Defendant. By the letter dated 26th June, 2006 and the letter dated 29th June, 2015, respectively, the Claimant was strongly commended and applauded by the Defendant in glowing terms for her “exemplary services” and “positive contributions” to the Defendant during the years. By the letter dated 29th June, 2015, the Defendant disengaged the services of the Claimant on the ground, which the Defendant referred to as redundancy and promised to pay the Claimant’s end-of-service benefits immediately or as soon as possible. Consequently, the Defendant’s account officer wrote the sum of Six Hundred and Eight Thousand naira (N608, 000.00) only on a piece of paper as the Claimant’s gratuity and/or end-of-service benefits without explanation on how the Defendant arrived at the said amount. However, a cheque of Two Hundred Thousand Naira (N200,000) was issued by the Defendant (about two months after the Claimant’s employment was disengaged) as part payment of the said sum of N608, 000.00 (Six Hundred Eight Thousand Naira). The Cheque was refused and/or dishonoured by the Bank as the Defendant had no funds in the said account. Instead of the said moneys being paid to the Claimant in full and at once, the Defendant started paying the Claimant in piece meal from that moment, and by year 2018, the Defendant was yet to pay up the balance of the amount the Defendant had purportedly referred to as the Claimant’s end-of-service entitlement. The Claimant claimed that the attitude of the Defendant towards the Claimant constitute unfair labour practice and caused the Claimant mental trauma because the Claimant was always coming to demand for her entitlement from Abeokuta. The Claimant states that she is entitled to long Service Awards for 25 and 30 years respectively. She also states that the Defendant denied her and her spouse free medical treatment for a period of one year after her retirement as provided in the Defendant’s handbook .
THE DEFENDANT’S CASE
6. It is the case of the Defendant that the Claimant was involved in the calculation of her end of service entitlement. That the Claimant did not object to the mode of payment of the said entitlement until a letter was written by Claimant’s Counsel to the Defendant. That the Claimant is estopped from claiming that she was not aware of the way and manner the Defendant arrived at the calculation of her end of service entitlement and the mode of payment. That its act of piecemeal payment cannot constitute unfair labour practice since the Claimant consented to that mode of payment. The Defendant states that it granted the Claimant and her spouse full access to free medical service for one year with effect from the date of the Claimant’s disengagement as a privilege borne out of its policy of due compassion for its employees. The Defendant states that its letter did not expressly mention ("Full end of the service benefit and/or gratuity, long service Award'') as claimed by the Claimant in her Statement of Claim. That it had paid the Claimant the sum of N443, 000 (Four Hundred and Forty Three Thousand Naira Only) based on Claimant’s consent. On the cheque issued to the Claimant by the Defendant, the Defendant states that its Account Officer personally met the Claimant and urged her not to present the Cheque anymore as it intended to pay the Claimant via electronic transfer. The Claimant mischievously and with intent to tarnish the Defendant’s image, proceeded to the bank with the said Cheque and thereafter refused to return the cheque to the Defendant.
CLAIMANT REPLY TO STATEMENT OF DEFENCE
7. In Reply to the Defendant’s Defence, the Claimant states that she never, at any time, conceded to a piece meal payment of her end of service entitlements, and that the attempt by the Defendant to rely on estoppels to justify its refusal to pay her entitlements; is an unsavoury labour practice, unconscionable act and inequitable. She further states that the Defendant’s purported abolition of the Long Service Awards in 2010 by a purported Resolution dated 2013 is a ruse as the Defendant never served such purported amendment/resolution on her; nor was she communicated the said amendment.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
8. The Defendant in its Final Written Address raised a sole issue for determination:
· Whether the Claimant is entitled to the reliefs sought before the Court in view of the contradictory evidence before the Court?
9. The Defendant argued that the Claimant claimed that it paid her the sum of N380,000 since 2015 and the subsequent version in her Reply to Statement of Defence stated that the Defendant paid her the sum of N290,000,00 did not add up to aid the Court to grant the Claimant’s relief and as such, the Claimant has failed to prove her case as required by section 131 (1:) of the Evidence Act 2011. The Defendant further argues that the Claimant was aware and consented to how the end of service years was calculated and that there was no time that the Claimant objected to the mode of payment. The Defendant submits that the Claimant is estopped from taking advantage of this suit in claiming otherwise. The Defendant argues that the Claimant was aware of the fact that the Defendant’s long service award had been abolished by Management Resolution on Terminal Benefits, Benefits and Service Awards (Addendum to the Company Employee Handbook) dated 17th July, 2013 and urge the Court to dismiss the Claimant’s relief based on the Notice abolishing the said policy. On the issue of N2,000,000.00 claimed as legal fees, the Defendant argues that the Claimant failed to furnish the Court with evidence or receipt issued by the Lawyer to the Claimant showing the payment of the said legal fee. The Defendant also contests the sum claimed as general damages on the basis that the Claimant failed to lead competent and compelling evidence to prove same.
SUBMISSONS ON BEHALF OF CLAIMANT
10. The Claimant in her Final Written Address raised three issues for determination:
i. Whether in the circumstances of this case, the sum of Six Hundred and eight thousand (N608, 000.00) naira only was all that the Claimant was entitled to as end-of-service benefit?
ii. Whether it was not wrongful for the Defendant to have subjected the Claimant to a piece meal payment of the purported end-of-service benefit?
iii. Whether in the circumstances, the Claimant has not discharged the burden of proof placed on her to be entitled to the reliefs sought?
11. On Issue one; “whether in the circumstances of this case, the sum of Six Hundred and eight thousand (N608, 000.00) naira only was all that the Claimant was entitled to as end-of-service benefit? The Claimant argued that the Defendant had failed to present credible or concrete evidence before the Court on how the Defendant arrived at the sum of Six Hundred and eight thousand (N608, 000.00) naira as her end of service entitlement. The Claimant argued that it is Defendant’s case that she was disengaged on the basis of redundancy; that during cross examination, the Defendant’s sole witness admitted that an employee whose employment is determined on the ground of redundancy is entitled to the payment of redundancy benefits at disengagement. The Claimant submits that having stated that she was disengaged on the ground of redundancy; she is entitled to redundancy payment/benefit. The Claimant relied on the case of Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria v. Management of Transaltic Nigeria Limited Suit NO. NIC/14/87 delivered on Friday, 26th February, 1988. On reliance on exhibit D1 as proof of access to medical treatment by the Claimant, the Claimant argues that Exhibit D1 is a computer generated document which was not signed, nor certified as required by the Section 84 of the Evidence Act. The Claimant submits that exhibit D1 is wrongly admitted and should be expunged from the records of this Court.
12. On issue two; “whether it was not wrongful for the Defendant to have subjected the Claimant to a piece meal payment of the purported end-of-service benefit? The Claimant argues that the Defendant could not prove its claim that she consented to the piece meal payment of her entitlement. On issue three; “whether in the circumstances, the Claimant has not discharged the burden of proof placed on her to be entitled to the reliefs sought? The Claimant submits that the Defendant treated her unfairly and that it amounts to unfair labour practice. The Claimant submits that she has proved her case to be entitled to the reliefs sought. That she is entitled to the cost of engaging solicitors in prosecuting this suit by relying on Merchant Bank Mountain Company (2000)FWLR (PT.9)1587 AT 1593 paras G-H. The Claimant also submits that there are species of damages which has been accrued from the wrong complained and she is entitled to be compensated.
13. The Defendant in its Reply on Points of Law argued with respect to exhibit D8 that the DW under cross examination stated that the said notice was communicated to the Heads of the various departments and also pasted on the company notice board. On the Claimant’s claim in challenging her disengagement on redundancy, the Defendant replied that it is more of an academic exercise as it was not pleaded by the Claimant. In respect of argument on Exhibit D1 whether it was signed or not, the Defendant replied that Claimant's contention therein is unfounded and vexatious on grounds that the issue of signature was not raised and therefore the submission is irrelevant.
14. I read carefully and considered the processes filed in this suit, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all these, I set a lone issue down for determination:
· Whether the Claimant is entitled to the reliefs she seeks in this suit.
15. Parties are agreed on the staff status of the Claimant for ‘thirty years’. Exhibit C1 – letter of retirement from the Defendant to the Claimant, acknowledges this fact when it recognised the positive contribution of the Claimant to the organisation since joining the establishment ‘about thirty years’ ago. Parties are also agreed that the sum of N608,000.00 was computed as being the Claimant’s end of service entitlement. However, the Claimant’s grouse, which is sought in relief one; is that the Defendant refused to explain to her how it arrived at the sum of Six Hundred and Eight Thousand Naira(N608,000,00) only as her benefit/or gratuity. The Claimant gave evidence in her paragraph 7 of the Statement of Facts that the Defendant’s Account Officer wrote the sum of N608,000.00 in a piece of paper and gave to her as her gratuity in 2015 without explaining to her how he came about that figure. It is the Defendant’s case in its paragraph 21 of its evidence that its Account Officer explained to the Claimant the percentage adopted to calculate her gratuity and it was on that basis that the Defendant initiated the payments. The Claimant concedes that various sums were paid to her, and seeks for the outstanding balance as part of her reliefs in this suit. The Claimant has not made a case for any other form of computation based on her contract of employment or the Employees’ Handbook or any other document. The Claimant has not shown any right to any other form of computation to arrive at any other sum. If no parameters were agreed by parties to compute Claimant’s end of service entitlement, and none has been suggested by the Claimant to the Court, the Court would have no basis to make the determination sought by the Claimant.
16. On the issue of the Defendant’s cheque issued to the Claimant which failed to be cashed, it is an offence for which the Claimant is free to file a criminal complaint. Again, it is not for this Court to delve into the circumstances of the issuance of the cheque and the consequences for the parties. The Claimant also complained of the piecemeal payment of her said gratuity as constituting unfair labour practice. The Claimant did not lead evidence to show the manner stated in her contract for the payment of the gratuity. There is no evidence stating any form of objection to the payment of the gratuity piecemeal. I would agree with the Defendant; that the Claimant is “caught in the web of estoppel by conduct by not objecting to all the payments and/or series of payments made by the Defendant to her in piecemeal some time in 2015 to 6th December 2017”. With the analysis stated in paragraphs 15 and 16 of this judgment, I find that the Claimant has not established her entitlement to her first relief.
17. In her relief two, the Claimant claims for a declaration that she is entitled to the payment of her long Service Awards for 25 and 30 years respectively as expressly stated in the Defendant’s Employees Handbook and in line with the long-standing custom/practice of the Defendant. In proof of this relief, she tendered exhibit C3 - the Employees Handbook of the Defendant. The Claimant gave evidence that she was paid long service award at age 20, but the Defendant refused to pay her for ages 25 and 30. Paragraph 4.10 of Exhibit C3 is titled “Long Service Awards” and provides that “as a recognition of loyalty and devotion to duties, the hospital will give employees who have served well and continuously, a long service award for five, ten, fifteen, twenty, twenty-five and thirty years only”. The Defendant’s case, by paragraph 26 of its statement of Defence is that by Exhibit D8, it abolished long service awards in 2010. The Claimant stated that she never knew of Exhibit D8, that it never existed, and is not applicable to her. I have considered the said exhibit D8. It purports to be Management Resolution on Terminal Benefits, Statutory Benefits and Long Service Awards as Addendum to the Company Employee Handbook. It is dated 17th July 2013 and stated to be a fallout of a meeting held on 2nd July 2013. This document is clearly at variance with the DW’s evidence that the Long Service Award was abolished in 2010. Further, exhibit D8 was not addressed to anybody or meant to be brought to the notice of anyone. There is nothing showing what exhibit D8 was intended to serve. I find exhibit D8 highly unreliable as a document that should show a change in the Defendant’s Policy. Assuming the document is anything to go by (which it is not), there is no evidence that it was brought to the attention of the Claimant by any means. I find that at the point of the determination of the contract of employment of the Claimant, the entire Employees’ Handbook (exhibit C3) was still applicable to the Claimant. The Claimant is therefore entitled to her second relief. I hereby declare that the Claimant is entitled to the payment of her long Service Awards for 25 and 30 years respectively as expressly stated in the Defendant’s Employees Handbook and in line with the long-standing custom/practice of the Defendant.
18. I decline to make the Order sought in relief 3 as the Claimant has not established that the acts complained of constitute unfair labour practice.
19. Claimant’s fourth relief is for “AN ORDER directing the Defendant to pay the sum of Two Hundred and Twenty Eight Thousand (N228, 000.00) Naira to the Claimant being the balance of the sum of Six Hundred and Eight Thousand (N608, 000.00) Naira allegedly stated by the Defendant as the Claimant’s gratuity”. The Defendant did not deny that it computed the sum of Six Hundred and Eight Thousand (N608, 000.00) Naira as the Claimant’s entitlement. However, the Defendant alleges an inconsistency in the Claimant’s evidence in that in paragraph 13 of her statement of claim she stated that the Defendant paid her the sum of N380,000.00 since 2015; while in her Reply to the Defendant’s statement of defence, she listed sums which added to N390,000.00. I have considered the evidence of the Claimant in this respect. I note the inconsistency which the Claimant cleared during cross examination when she responded that “N380,000.00 is what the Defendant has paid me so far”. The Defendant was unable to establish the payment of any higher amount as out of the sum of Four hundred and Forty three thousand naira (N443,000.00) which it alleged at paragraph 19 of DW’s evidence that it had given to the Claimant from the gratuity of N608,000.00, the Defendant’s evidence before the Court (exhibit D2(A-E) only shows the sum of N55,000.00 as the sum given to the Claimant; in addition to the N200,000.00 admitted by the Claimant, bringing it to a total of N255,000.00. I therefore find that the Claimant has established her entitlement to this relief. The Defendant is Ordered to pay the sum of Two Hundred and Twenty Eight Thousand (N228, 000.00) Naira to the Claimant being the balance of the sum of Six Hundred and Eight Thousand (N608, 000.00) Naira stated by the Defendant as the Claimant’s gratuity.
20. The Claimant’s Fifth relief is for “AN ORDER directing the Defendant to pay the sum of One Hundred and Eighty Three Thousand, Three Hundred naira (N183, 300.00) to the claimant as the claimant’s Long Service Awards for 25 and 30 years respectively. I have already found that the Claimant is entitled to the Long Service Awards in line with the Defendant’s Employees’ Handbook which I found still subsists. The Defendant in response to this claim for the sum of N183,300.00 as her long service award for 25years and 30years respectively, did not challenge the said sum; nor the manner it was arrived at, as shown in Claimant’s evidence at paragraphs 17 and 18 of the Claimant’s Statement on Oath. Rather, the Defendant challenged its Employees’ Handbook. Having already found that the Employees’ Handbook still subsists and applies to the Claimant; and the Defendant having not challenged the amount claimed as Long Service Award, I find that the Claimant is entitled to this relief. The Defendant is ordered to pay the sum of One Hundred and Eighty Three Thousand, Three Hundred naira (N183, 300.00) to the Claimant as the Claimant’s Long Service Awards for 25 and 30 years respectively.
21. The sixth and seventh reliefs are declined for lack of proof. For the avoidance of doubt, only the second, fourth, and fifth reliefs (B, D and E) succeeds. The Claimant has spent time and money to prosecute this suit. Having succeeded in the main reliefs, cost of this action is set at N300,000.00 to be paid to the Claimant by the Defendant. All the adjudged sums are to be paid not later than 30 days; failure at which interest will accrue at the rate of 20% per annum.
Judgment is entered accordingly.
Hon. Justice Elizabeth A. Oji PhD