IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 10^th October 2023                                  SUIT NO: NICN/ABJ/91/2021

           

Between:

 

Mr. Ugwunna Enyinnaya Wogu                                                 -                       Claimant      

 

And

 

Colenco Consulting Nig. Limited                                               -                  Defendant

 

Representation:

Chris Wogu for the Claimant

Abdulrahman Abubakar for the Defendant

 

JUDGMENT

The Claimant instituted this suit on 23^rd March 2021 to claim the following reliefs against the Defendant:

1.      The sum of N688,355.99 being 30% of the Claimant’s salary illegally deducted by the Defendants for a period of 7 months.

2.      The sum of N1,967,331.46 being the total sum of the Claimant’s unpaid salaries for a period of 6 months the Defendants purported to have suspended same while it continued to assign duties and responsibilities to him.

3.      The sum of N468,168 being the Claimant’s unpaid annual leave entitlements for the years 2019 and 2020 during which period he performed his duties.

4.      The sum of N983,665.71 being the Claimant’s unpaid contract guaranteed 13^th month salary for the years 2018, 2019 and 2020.

5.      The sum of N79,983.50 being the refund to the Claimant for expenses incurred on site in January 2018 which remains outstanding.

6.      The sum of N450,000 being the total sum expended by the Claimant while traveling to various destinations prospecting for contracts on behalf of and on the instruction of the Defendant.

7.      The Claimant is entitled to the sum of N327,888.57 being one month salary in lieu of notice of termination of his appointment by the Defendant contrary to the contract agreement.

8.      The Claimant is entitled to refund of legal fees spent on his solicitors for legal representation in this suit in the sum of N750,000.

 

The Defendants filed its statement of defence on 15^th July 2021 and it included a counter claim against the Claimant. The reliefs sought in the counter claim are as follows:

1.      An Order directing the Defendant to counter claim to refund the sum of N345,000 to the counter Claimant being bonus paid to the Defendant to counter claim.

2.      The company property which include:

a.      The identity card issued by the counter Claimant to the Defendant to counter claim.

b.      A project Hilux vehicle from Niger Delta Power Holding Company.

c.      Alternatively, the market price of a Hilux.

3.      The sum of N2,000,000.00 as cost of this suit.

 

Both parties called a witness each in proof of their claims.

 

CLAIMANT’S CASE

The Claimant testified himself and tendered some documents in evidence. The evidence adduced by the Claimant is to the effect that he was employed by the Defendant as a Senior Technical Officer vide a contract agreement dated 1^st February 2007. He was stationed in Calabar but was regularly sent to other states on official duties. In September 2019, the Defendant unilaterally reduced his salary by 30% for a period of 7 months, that is from September 2019 to March 2020, which total sum is N688,355.99 contrary to the contract agreement. Then on 22^nd April 2020, the Defendant suspended the payment of his salary for a period of 6 months, that is from April to September 2020, without consultation but in that period, the Defendant continued to assign duties to him. The total sum of salary withheld in the period is the sum of N1,967,331.46. His annual leave entitlements for the years 2019 and 2020 in the sum of N468,168.00 were not paid to him. This was contrary to clause 3 of the remuneration package in the contract agreement. His entitlement to 13^th month salary for the years 2018, 2019 and 2020 were also denied him by the Defendant contrary to the contract agreement. The total amount of his 13^th month salaries for the said years is the sum of N983,665.71.

 

As site engineer, he is entitled to refund of expenses incurred in the management of the site in January 2018 as shown in the excel sheet from his laptop in the sum of N79,983.50. This sum has not been paid to him. Between February and December 2019, he incurred expenses in prospecting for contracts on the instruction of the Defendant. He undertook trips to Umuahia in Abia State, Warri in Delta State, Eket in Akwa Ibom State and Portharcourt in Rivers State to the tune of N450,000 as cost from transportation, hotel accommodation and feeding expenses. In an email dated 2^nd September 2020, the Defendant gave him notice of termination of his employment with effect from 30^th September 2020. This breached clause 7 of the contract agreement. The Claimant said he deserve one month salary in lieu of notice in the sum of N327,888.57. He engaged the law firm of Chris Wogu & Co to represent him in this suit and he was billed the sum of N750,000. He has made part payment of N250,000 and has a balance of N500,000 to pay.

 

In the Claimant’s further evidence, which was adduced in respect of his reply to the statement of defence, the Claimant stated further that it is the practice that whenever a project is completed or terminated, they move to a new project site or operate from home pending when a new project is available. The office was not shut down in February 2019 but closed due to the upcoming presidential election. Having terminated 9^th mile [Enugu] project and the residence vacated, he was requested to move the items to Abuja by ABC Hauls. SMS and emails show that activities resumed after this date. During the period of salary suspension, he was instructed to undertake official duties by the Managing Director, Mr. Sandeep Bhowmick. He carried out the instructions, one of which was the instruction to him on 3^rd June 2020 to visit the hydro site project Obudu. This is not the first time the staff of the Defendant were owed salaries. In 2002, the Defendant owed staff 6 months salaries due to indebtedness but when new projects were won, all salaries and allowances were paid to all staff. He did not have any oral discussion with the Defendant or anybody to waive his entitlement to 13^th month annual salary which is provided in the contract agreement. The January 2018 claims for site expenses, which he presented to the Defendant, is not fictitious. His previous expenses of January to December 2016 were treated and refunded. Additional expenses incurred from February 2018 to July 2018 have not been refunded. He had direct instruction from the Defendant to embark on the journeys to prospect for contracts for the company.

 

The documents admitted in evidence and marked Exhibits A, B, C, D1 to D7, E, F, G, H, J and K were tendered by the Claimant. In cross examination by counsel for the Defendant, the Claimant said his employment with the Defendant was terminated on 30/9/2020. The notice of termination is dated 2/9/2020 but sent to him on 3/9/2020 through his email. He was not paid his salary for the month of September 2020. Lockdown was in May but he cannot remember when the lockdown was called off. There was an email to him and other staff on 22/4/2022 which contain that their staff salary will be reduced by 30%. He did not protest because that was not the first time they will have a salary review. He did not receive 13^th month salary in 2018, 2019 and 2020. He did not protest. At times, there was upward review of their salaries. He did not protest when there was an increase. Between February and August 2019, he was paid his full salaries. He did not protest because he was earning his pay. From September 2019 to March 2020, his salary was reduced by 30% and he did not protest. He is entitled to annual leave. He did not apply for annual leave in 2019 and 2020. He undertakes whatever instruction he is given including scouting for projects and going for payments when they are owed.

 

The witness for the Defendant [DW1] is one Yahaya Ahmad. He said he is the Finance and Admin Officer of the Defendant. His testimony is that the Claimant was employed by the Defendant and the Claimant was often sent to other states on official duties subject to availability of project and the Claimant’s job description. The Defendant never unilaterally reduce the Claimant’s salary by 30% for a period of 7 months. In September 2019, an email dated 20^th September 2019 was sent to all staff, including the Claimant, that the Defendant was carrying out a downward review of salary for every staff by 30% due to unavailability of running projects. In February 2019, the Defendant informed all site staff, including the Claimant, that the office would be closed on 16^th February 2019; to return all Defendant’s properties to Abuja and for all site staff to vacate their official accommodation and relocate to their homes. The Claimant informed the Defendant vide an email of 12^th February 2019 that the instructions have been complied with. During the period the Claimant was instructed to stay at home, from February 2019 to August 2019, the Claimant was paid his salary in full.

 

The Claimant and all the staff did not object to or protest the salary review when it was communicated to them. The Claimant gladly accepted the 70% salary from the Defendant during the period. On several occasions when the Defendant experienced financial boom, the Defendant, without notice to the Claimant and outside the terms of the contract agreement, reviewed the Claimant’s salary upwards and the Claimant had never rejected or protested the upward review of his salary. The Defendant did not breach agreement when it suspended the Claimant’s salary from April 2020 to September 2020. The Defendant also did not assign any duties to the Claimant within the period. The Claimant was informed of the suspension of his salary in email dated 22^nd April 2020 and the suspension of salary was informed by the unavailability of projects in Nigeria and the global pandemic which led to complete lockdown of economic activities in Nigeria. The Claimant was aware of the situation as there was complete lockdown and all workers in Nigeria were made to stay at home. The Claimant did not protest against the suspension of his salary. The Claimant was not assigned any responsibility during the period of suspension of his salary.

 

The Claimant is not entitled to payment of any leave allowance whether in 2019 or 2020 because in 2019, there was an instruction via email from the Defendant that all site staff to stay at home and in 2020, the lockdown made everybody stay at home. The Claimant admitted that the downward review of his salary in his email of 1^st September 2020 sent to the Defendant. The Claimant is not entitled to 13^th month salary because the Defendant ceased to pay 13^th month salary since 2017. In 2017, the Federal Inland Revenue Service raised objection to the payment of 13^th month salary as it was making computation of an accurate tax audit for a calendar year difficult. This informed the need to rationalize the payments to 12 months and advised for a review by the Defendant. Thus, there was joint oral and official resolution between the Defendant and the staff where it was unanimously agreed that the 13^th month salary be incorporated into the salary of the staff by spreading it into 12 months of the year. This was accepted by all staff including the Claimant.

 

The expenses the Claimant claimed to have incurred at the management site in January 2018 are fictitious figures. The Claimant was always reimbursed for all expenses incurred on behalf of the Defendant as documented in the petty cash ledger. The Defendant adopted a petty cash ledger system to prevent fictitious and arbitrary claims by staff. The Claimant was immediately reimbursed for expenses he incurred on behalf of the Defendant. Prospecting for contracts is not part of the Claimant’s job description. Where the Claimant does that, it was done in his private capacity and not as part of his job description. The notice of termination was validly issued and there was substantial compliance with the provision of the law. The Claimant’s appointment was validly terminated. The Defendant did not employ the law firm of Chris Wogu & Co and it is not responsible for payment of their legal fees. The Defendant, as policy, do not give out bonus to staff unless the staff is personally involved in prospecting for contract for the Defendant. In January 2017, the Defendant observed that bonus of N345,000.00 was wrongfully paid to the Claimant. The Claimant is in possession of the Defendant’s properties, which are the staff identity card and a Hilux vehicle, which the Claimant has refused to return.

 

DEFENCE

DW1 tendered 7 documents in evidence which were admitted in evidence as Exhibits L, M, N, O, P, Q and R. In cross examination by counsel for the Claimant, DW1 said Bonus payment of N345,000.00 did not reflect in Exhibit C and Exhibit G is not the memo he referred to in paragraph 10 of his deposition. Exhibit D4 is from the MD to the Claimant and Exhibit H is from the Claimant to MD. Exhibit H is the feedback to Exhibit D4. Exhibit D5 emanated from the Claimant to the MD and the subject is refund for site expenses. He cannot say much about Exhibit D5. They repaired the vehicle several times.

 

Let me mention also that the Claimant [defendant to counter claim] filed a defence to the counter claim and he adduced evidence in defence of the counter claim. The Claimant’s defence is that it is not true that the Defendant [counter claimant] does not pay bonuses to staff except where such staff is personally involved in prospecting for contracts. The counter claimant pays bonus from time to time to deserving staff. The Defendant to counter claim said he was paid his salary for March 2017 together with a bonus into his account. He was personally sent by the counter claimant to Portharcourt, Warri, Eket and Umuahia to prospect for jobs in September, October, November and December 2019 and January 2020. It is not true that he was paid bonus of N345,000.00 by the counter claimant on 25^th January 2017. His salary and allowances were usually paid into his bank account since 2004. His statement of account shows that no such payment was made into his account on 25^th January 2017. For all his contributions to the growth of the counter claimant, he deserves to be paid bonus of N345,000.00. The project vehicle was in a state of disrepair to the knowledge of the counter claimant and was deliberately left to rot. The counter claimant never responded to his emails on the vehicle. The vehicle is available for recovery and repairs by the counter claimant and the identity card issued to him is available to be handed over to the counter claimant. The counter claimant is responsible for the events that led to this suit, as such, it is not entitled to its claim for cost of N2,000,000.00.

 

I have read the various final written addresses of counsels. I do not see any reason to rehash their contents here. However, arguments proffered by counsels in their respective written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.

 

COURT DECISION

Both parties have claims against each other in this suit. I will consider and determine the claims the parties one after the other, starting with those of the Claimant.

 

THE CLAIMANT’S CLAIMS

All the claims of the Claimant are monetary claims. I will examine each of the claims to see if he has proved all or any of them. Before I go further, let me observe that reliefs 1, 2, 3, 4 and 7 are claims based on the Claimant’s salary and allowance. Strangely, the Claimant did not plead the amount of his monthly salary or even his cumulative annual salary. He did not also mention it in his evidence. Although the Claimant tendered his contract agreement in evidence, he didn’t plead the amount of salary agreed therein. I have seen in the agreement, Exhibit A, where the Claimant’s annual and monthly salary were specified. However, the Defendant pleaded and produced evidence to show that the Claimant’s salary, as agreed in Exhibit A, has changed a number of times in 2010, 2011, 2012 and 2014 as a result of increase of the Claimant’s salary. See paragraph 10 of the statement of defence and Exhibits N1, N2, N3 and N4. The Claimant did not traverse the averments in paragraph 10 of the statement of defence in his reply. This implies an admission of the averments of the Defendant. The Claimant also confirmed the fact in cross examination when he said that at times, there was upward review of staff salaries.

 

The last of the evidence of increment in the Claimant’s salary is Exhibit N1 dated 31^st January 2014. The Claimant’s monthly salary was increased to the sum of N283,190.25. Exhibit C is the Claimant’s statement of account for January 2017. On 26^th January 2017, the Claimant was paid the sum of N273,371.00 as “monthly salary for January 2017” by the Defendant. There is no other evidence of the amount of Claimant’s monthly salary after January 2017.

 

Now, reliefs 1, 2, 4 and 7 are to be determined on the basis of the amount of the Claimant’s monthly salaries in the years 2019 and 2020. It is rather unfortunate that the Claimant, who claims payment of salaries for some months in the years 2019 and 2020, failed to plead and prove the amount of his monthly salaries in those years. This court has not been told the amount of the Claimant’s monthly salaries prevailing as at the time the claims in reliefs 1, 2, 4 and 7 arose. This default or omission by the Claimant affects the success of the claims negatively. It is difficult to grant the specific sums claimed by the Claimant in reliefs 1, 2, 4 and 7 without evidence showing or establishing the exact amount of the Claimant’s salaries in the months whose salaries he claims.

 

That apart, let me consider the extent to which the Claimant has proved the claims on other aspects.

 

In reliefs 1 and 2, the Claimant claims the sum of N688,355.99 being 30% deducted by the defendants from his salary for a period of 7 months and the sum of N1,967,331.46 being the total sum of salary not paid to him for 6 months by the Defendant. In his evidence, the Claimant said in September 2019, the Defendant unilaterally reduced his salary by 30% for a period of 7 months, that is from September 2019 to March 2020, which total sum is N688,355.99 contrary to the contract agreement. Then on 22^nd April 2020, the Defendant suspended the payment of his salary for a period of 6 months, that is from April to September 2020, without consultation; but in that period, the Defendant continued to assign duties to him. The total unpaid salary in the period is the sum of N1,967,331.46.

 

The Defendant did not deny reducing the Claimant’s salary by 30% for 7 months or not paying salaries to the Claimant for 6 months. In the evidence of DW1, it was explained that the reduction of the Claimant’s salary by 30% was not unilateral. In September 2019, an email dated 20^th September 2019 was sent to all staff, including the Claimant; that the Defendant was carrying out a downward review of salary for every staff by 30% due to unavailability of running projects. The Claimant and all the staff did not object to or protest the salary review when it was communicated to them. The Claimant gladly accepted the 70% salary from the Defendant during the period. It was also averred that suspension of the Claimant’s salary from April 2020 to September 2020 was not a breach of agreement. The Claimant was informed of the suspension of his salary in an email dated 22^nd April 2020 and the suspension of salary was informed by the unavailability of projects in Nigeria and the global pandemic which led to complete lockdown of economic activities in Nigeria. The Claimant did not protest against the suspension of his salary and he was not assigned any responsibility during the period of suspension of his salary.

 

It is therefore not in dispute that the Defendant reduced the Claimant’s salary by 30% for the months of September 2019 to March 2020 and also suspended payment of salary to the Claimant from the months of April 2020 to September 2020. The Defendant gave reasons to justify the reduction of the Claimant’s salary and the subsequent suspension of the Claimant’s salary, which acts, according to the Defendant, was applied to all staff and not peculiar to the Claimant alone.

 

The Claimant relied principally on the contract agreement in his claims for payment of his salaries in reliefs 1 and 2. The agreement is Exhibit A. At page 2 of the agreement, one of the contract terms under remuneration package is payment of salary to the Claimant. See also Schedule B of Exhibit A. The agreement specified the amount payable to the Claimant as monthly salary.

 

Now, when the Claimant claims payment of the 30% deductions from his salaries for the months of September 2019 to March 2020, he seems to contend that the terms of the agreement on his salary is sacrosanct and could not be varied by reduction of his salary. That is the reason the Claimant claims payment of the 30% deductions from his salaries.

 

The Defendant averred that on several occasions, the Defendant, without notice to the Claimant and outside the terms of the contract agreement, reviewed the Claimant’s salary upwards and the Claimant had never rejected or protested the upward review of his salary. The letters informing the Claimant of the various increases in his salaries are Exhibits N1, N2, N3 and N4. The Claimant did not traverse these averments of the Defendant and he confirmed in cross examination that the Defendant increased his salary. The parties are therefore in agreement that the Claimant’s salary in Exhibit A has been varied by way of upward review or increment a number of times by the Defendant without complaint by the Claimant. The Defendant always communicates the upward review of the salary to the Claimant through letters and the Claimant had accepted the increases and received the increased salaries for years without complaining.

 

I have also not seen any term in Exhibit A which prohibits or which provides that the agreed amount of salary cannot be increased or reduced. It was this latitude that permitted the Defendant to increase the salary of the Claimant. The Defendant who increased the Claimant’s salary can also reduce what it increased, provided that the reduction did not go below the agreed monthly salary in Exhibit A. The salary in Exhibit A is the agreement which is binding on the parties. Any review cannot be less than the amount agreed in Exhibit A. Once the monthly salary after the reduction is still above the agreed salary, the Defendant cannot be blamed for the reduction. The Claimant has not shown that the 30% reduction from his monthly salary made his monthly salary less than the salary in Exhibit A. He has accordingly failed to show that the 30% reduction was in breach of the agreement.

 

In any event, the Defendant has explained why it reduced the Claimant’s monthly salary by 30% from the months of September 2019 to March 2020. The email to the Claimant informing him of the reduction of his salary is Exhibit D1 dated 20/9/2019. The Claimant was informed that the Defendant has decided to reduce salary by 30% from September 2019 and the reason is that there was non-availability of running projects and the situation in the company is getting unbearable. The Defendant also pleaded the fact in paragraph 5 of the statement of defence that the reason for the salary reduction was the unavailability of running projects. The Claimant did not dispute this fact by his failure to traverse the averments in paragraph 5 of the statement of defence in his reply. Thus, the Claimant admitted that the Defendant had financial hardships at the time. It is therefore clear that the Defendant did not reduce the salary whimsically or deliberately. It had good and dire reason to do so.

 

In the result, I cannot fault the reduction in the Claimant’s salary by 30%. It was within the discretion of the Defendant to reduce the amount it added to the Claimant’s salary outside the agreed amount in Exhibit A. Since the reduction did not leave the Claimant’s salary less than the agreed monthly salary in Exhibit A, the Claimant is not entitled to payment of the 30% amount deducted from his monthly salaries from September 2019 to March 2020.

 

Having said that the Defendant can reduce the Claimant’s salary is a different thing from non-payment of salary to the Claimant at all. The Defendant suspended payment of salaries to the Claimant from April 2020 to September 2020. The Claimant was still an employee of the Defendant in the months of April 2020 to September 2020. His employment was only terminated on 30^th September 2020.

 

I have seen the email of 22/4/2020, Exhibit D2, suspending payment of salary to the Claimant. The Defendant explained therein the financial difficulties it was facing and the reason for suspending payment of salary. It seems to be true, from the evidence of the Claimant, that the Defendant had such financial difficulties at the time. Now, in the face of such difficulties, why merely suspend payment of salaries to staff but allowed the employments to subsist? It would have been more prudent for the Defendant who could no longer pay salaries to staff to terminate the employment of the staff on grounds of redundancy rather than merely suspending payment of salaries to the staff. Suspending payment of salary merely leaves the unpaid salaries to be in arrears with the intention to pay the salaries when the financial position of the company improves. In the period that salary was suspended, the employment of the staff subsisted. For the Defendant to have let the Claimant’s employment subsist till September 2020 puts a responsibility on the Defendant to pay all the arrears of the Claimant’s salaries in the period his salary was suspended up to the date of termination of his employment.

 

The Defendant contended that within the period of suspension of salary, it did not assign any duty to the Claimant but the Claimant has said he was working for the Defendant in the period. The fact that the Defendant did not assign duties to the Claimant in the period does not absolve it from the responsibility of paying salaries to the Claimant. The fact remains that the Claimant was an employee in the Defendant within the period. Therefore, the Defendant’s decision not to assign any duties to the Claimant in the period cannot deny the Claimant his entitlement to his salaries as an employee. In so far as the Claimant remains in the employment, whether he was assigned duties to perform or not, he is entitled to his salaries.

 

It was my earlier finding in this judgment that the Claimant did not prove the amount of his monthly salary. Therefore, the Claimant failed to prove that the sum of N1,967,331.46 which he claims in relief 2 is the sum total of his salary for the months of April 2020 to September 2020. Nevertheless, this does not mean that the Claimant is not entitled to payment of salaries owed to him for the months of April 2020 to September 2020. It is my view in this judgment and I so hold, that the Claimant is entitled to be paid what is due to him as salary for the months of April 2020 to September 2020 at the amount of monthly salary paid to him preceding the suspension of his salary.

 

The Claimant also claims payment of his annual leave entitlements for the years 2019 and 2020 in the sum of N468,168.00. This is in relief 3. In his evidence, the Claimant said his annual leave entitlements for the years 2019 and 2020 in the sum of N468,168.00 were not paid to him. He contended that this was contrary to clause 3 of the remuneration package in the contract agreement. In cross examination, the Claimant said he is entitled to annual leave but he did not apply for annual leave in 2019 and 2020. In defence, the Defendant averred that the Claimant is not entitled to payment of any leave allowance whether in 2019 or 2020 because in 2019, there was an instruction via email from the Defendant that all site staff should stay at home and in 2020, the lockdown made everybody stay at home.

 

The Claimant relied on the contract agreement, Exhibit A, in this claim. He said the non-payment of his leave entitlements was contrary to clause 3 of the remuneration package in the contract agreement. Annual leave entitlement of the Claimant is provided in Clause 3 of page 1 of Exhibit A under the sub-head “remuneration package”. The annual leave entitlement is “18 days and a leave allowance which is in accordance with the company’s general policy”. I have also seen the Claimant’s other allowances in Schedule B of Exhibit A which include leave allowance in the sum of N90,000.00 and the explanatory note opposite the allowance explained that the allowance “will be paid when going on leave and in proportion to the number of leave days taken”.

 

Without a doubt, one of the Claimant’s allowances in Exhibit A is annual leave entitlement or allowance. The leave days is specified. The amount of the leave allowance is specified and the condition for payment of the allowance is specified. In view of the provisions of Exhibit A on annual leave entitlements of the Claimant, the main entitlement of the Claimant is the 18 working days leave. The leave allowance is ancillary to taking the leave and it is paid when going on leave. Thus, the question is whether the Claimant went on leave in 2019 and 2020 as to be entitled to payment of leave allowance.

 

The Claimant merely said his annual leave entitlements for the years 2019 and 2020 in the sum of N468,168.00 were not paid to him. He did not show that he took leave or went on leave in 2019 and 2020 but in cross examination, the Claimant said he did not apply for annual leave in 2019 and 2020. According to the Defendant, the Claimant did not go on leave in 2019 and 2020 because in 2019 and 2020, all staff were at home. From the evidence of the parties, it is clear that the Claimant did not go on leave in 2019 and 2020. In Exhibit A, leave allowance is not paid unless leave is taken. Leave allowance is paid to staff going on leave. The Claimant who did not go on leave in 2019 and 2020, before his employment was terminated, is not entitled to be paid leave allowance for the said years.

 

Furthermore, the Claimant who claims payment of his annual leave entitlements for two years in the total sum of N468,168.00 did not specify the amount of his leave allowance or entitlement for each year and he did not show or explain how the leave allowances for two years amounted to the sum of N468,168.00. The amount of leave allowance in Exhibit A is the sum of N90,000.00. The amount claimed by the Claimant is way above the amount in Exhibit A and there is no evidence to explain how the leave allowances being claimed by the Claimant amounted to the sum he claims. In view of the foregoing, I find that the Claimant did not prove his claim in relief 3.

 

There is also the Claimant’s claim for 13^th month salary for the years 2018, 2019 and 2020. This claim is in relief 4. To substantiate this claim, the Claimant said in his evidence that his entitlement to 13^th month salary for the years 2018, 2019 and 2020 were also denied him by the Defendant contrary to the contract agreement. He said the total amount of his 13^th month salaries for the said years is the sum of N983,665.71. In his further evidence, the Claimant said he did not have any oral discussion with the Defendant or anybody to waive his entitlement to 13^th month annual salary which is provided in the contract agreement.

 

In defence of this claim, the Defendant’s witness said the Claimant is not entitled to 13^th month salary because the Defendant ceased to pay 13^th month salary since 2017. In 2017, the Federal Inland Revenue Service raised objection to the payment of 13^th month salary as it was making computation of an accurate tax audit for a calendar year difficult. This informed the need to rationalize the payments to 12 months and advised for a review by the Defendant. DW1 also said there was a joint oral and official resolution between the Defendant and its staff where it was unanimously agreed that the 13^th month salary be incorporated into the salary of the staff by spreading it into 12 months of the year. This was accepted by all staff including the Claimant.

 

I find from the evidence of the parties that 13^th month salary was being paid to the Claimant until 2017 when it was stopped. Although the Claimant said he was not paid at all in 2018, 2019 and 2020, the Defendant said the Claimant was still being paid in these periods only that the amount meant as 13^th month was spread into and paid alongside monthly salaries for the 12 months in the year. The Defendant said this was done with agreement of the staff and accepted by the staff, including the Claimant.

 

The Claimant also relied on the contract agreement in this claim. He said non-payment of 13^th month salary to him in 2018, 2019 and 2020 was contrary to the contract agreement. In Exhibit A, 13^th month salary [bonus] is one of the allowances of the Claimant in the sum of N124,500.00 and in the explanatory note on the allowance, it is paid in bulk in the month of November every year. From this provision of the contract, 13^th month salary is an allowance or bonus which is paid gratuitously to staff by the Defendant outside the earned monthly salaries. The Claimant did not controvert the averment of the Defendant that the payment was stopped because of the objection by the Federal Inland Revenue Service and that the 13^th month payment has been rationalized into the monthly salary payments to staff and the Claimant after 2017. Without further waste of time on this claim, I will dismiss it for lacking in merit.

 

The Claimant also claims for payment of sums he expended on behalf of the Defendant. In relief 5, he claims the sum of N79,983.50 being expenses incurred on site in January 2018 and in relief 6 he claims the sum of N450,000.00 as expenses incurred while traveling to various destinations prospecting for contracts on behalf of and on the instruction of the Defendant. In his evidence, the Claimant as site engineer, he is entitled to refund of expenses incurred in the management of the site in January 2018 as shown in the excel sheet from his laptop in the sum of N79,983.50. This sum has not been paid to him. He also said between February and December 2019, he incurred expenses in prospecting for contracts on the instruction of the Defendant. He undertook trips to Umuahia in Abia State, Warri in Delta State, Eket in Akwa Ibom State and Portharcourt in Rivers State to the tune of N450,000.00 as cost of transportation, hotel accommodation and feeding expenses.

 

The defence of the Defendant to the claims is that the expenses the Claimant claimed to have incurred at the management site in January 2018 are fictitious figures and the Claimant was always reimbursed for all expenses incurred on behalf of the Defendant as documented in the petty cash ledger. The Claimant was immediately reimbursed for expenses he incurred on behalf of the Defendant and that prospecting for contracts is not part of the Claimant’s job description but where the Claimant does that, it was done in his private capacity and not as part of his job description. The Defendant had said two things- First is that the Claimant was not owed for any expenses as he was always reimbursed and the second is that the Claimant’s job description does not include prospecting for contracts. In other words, the Defendant contends that the Claimant is not entitled to the claim in reliefs 5 and 6.

 

In the Claimant’s further evidence, he said the January 2018 claims for site expenses, which he presented to the Defendant, is not fictitious. His previous expenses of January to December 2016 were treated and refunded. Additional expenses incurred from February 2018 to July 2018 have not been refunded. He also said he had direct instruction from the Defendant to embark on the journeys to prospect for contracts for the company.

 

It is observed that the sums of N79,983.50 and N450,000.00 claimed by the Claimant are allegedly for expenses he incurred on the site of the Defendant and in traveling to prospect for contracts on behalf of the Defendant. In his evidence, he said the sum he claims in relief 6 accrued from cost of transportation, hotel accommodation and feeding expenses. The claims in reliefs 5 and 6 to recover expenses are claims in special damages. The law is trite that claims in special damages must be specifically pleaded, particularized and strictly proved by evidence. This was held by the supreme court in VITAL INVESTMENT LTD. vs. CAP PLC [2022] 4 NWLR [Pt. 1820] 205; NWANGWU vs. FIRST BANK OF NIGERIA PLC [2022] 1 NWLR [Pt. 1812] 427 at 450. Thus, an award of special damages, unlike general damages, is not based on the discretion of the court but on credible evidence adduced before the court which strictly proves the Claimant’s entitlement to the award. See AIR LIQUID NIG. PLC vs. NNAM [2011] 9 NWLR [Pt. 1251] 61 at 82. Accordingly, it is the duty of the Claimant who seeks special damages to specifically plead the special damages, set out the particulars and then strictly prove same with concrete and credible evidence to establish the quantity or assessment of the special damages sought. In other words, the Claimant must not only state the estimated amount of the special damages, he must go beyond to specifically explain how he arrived at the figure or the amount claimed. See NWANGWU vs. FIRST BANK OF NIGERIA PLC [SUPRA] at 451; MTN NIG. COMMUNICATIONS LTD vs. A.C.F.S. LTD [2016] 1 NWLR [Pt. 1493] 339 at 356.

 

In this case, the Claimant merely said he incurred expenses amounting to N79,983.50 for site expenses and another one amounting to N450,000.00 for traveling to Umuahia, Warri, Eket and Portharcourt. He also said the money covered cost of transportation, hotel accommodation and feeding. The Claimant failed however to particularize in his pleadings or to prove by evidence what constituted the expenses amounting to N79,983.50 and N450,000.

 

For the expenses of N79,983.50, the Claimant said they were incurred in the management of the site in January 2018 and he relied on what he called an excel sheet from his laptop. The said excel sheet is Exhibit E running to 13 pages. The several entries in the exhibit were not pleaded. When the Claimant said the excel sheet is from his laptop, it implies that the document was produced by the Claimant. The excel sheet produced by the Claimant is not the evidence required to prove that the Claimant actually incurred expenses in January 2018 as alleged. Again, the Claimant failed to plead and particularize the alleged expenses incurred in January 2018 in his pleadings. Merely tendering the excel sheet does not excuse the Claimant from the duty of pleading and particularizing the expenses allegedly made on behalf of the Defendant in his pleadings. In my view, the evidential value of Exhibit E on the claim in relief 5 is quite minimal and cannot therefore sustain the claim. With regard to the claim for the sum of N450,000.00, the sum was allegedly expended on trips to some states and for specific purposes. The Claimant failed to plead and prove the amount expended on each of the trips and the specific purposes. The Claimant also failed to produce before the court, receipts showing the alleged expenditures amounting to the sum of N450,000.00.

 

The Claimant’s claim for refund of expenses must be premised on proper and verifiable index, supported by specific, credible, cogent and convincing evidence to prove the claim. A claim in special damages succeeds only in respect of proved claims and not on estimated or speculative claims. See U.B.N. PLC vs. NWANKWO [2019] 3 NWLR [Pt. 1660] 474 at 487. Accordingly, I find that the Claimant failed to prove the sums he claims in reliefs 5 and 6 as expenses incurred on behalf of the Defendant. 

 

Another aspect of the Claimant’s case is his claim for payment of one month salary in lieu of notice. It is his case that in an email dated 2^nd September 2020, the Defendant gave him notice of termination of his employment with effect from 30^th September 2020. The Claimant said this breached clause 7 of the contract agreement and that he deserve one month salary in lieu of notice in the sum of N327,888.57. On this basis, the Claimant sought in relief 7 that he is entitled to the sum of N327,888.57 being one month salary in lieu of notice of termination of his appointment by the Defendant. In the evidence of DW1, it was asserted that the notice of termination was validly issued and the Claimant’s appointment was validly terminated. It was also stated that there was substantial compliance with the provision of the law.

 

The notice of termination of the Claimant’s employment is Exhibit B dated 2^nd September 2020. It informed the Claimant that his employment terminated with effect from 30^th September 2020 and the reason for the termination is that there is no available project to assign to the Claimant. The Claimant now contends that the notice of termination breached clause 7 of the contract agreement, hence, he is entitled to one month salary in lieu of notice which he said is the sum of N327,888.57. I have earlier held in this judgment that the Claimant did not prove the amount of his monthly salaries in the year 2019 and 2020. Therefore, the Claimant has not proved that his monthly salary as at the time of termination of his employment was the sum of N327,888.57 which he now wants to be paid as salary in lieu of notice.

 

The Claimant alleged that clause 7 of the contract agreement, Exhibit A, was breached in the notice of termination given to him. His case is that the notice of termination given to him was less than one month’s notice. I have seen clause 7 of page 1 of Exhibit A. It provides that both parties may terminate the contract by giving one month notice in writing except in case of disciplinary action. Did the notice of termination given by the Defendant in breach of this term of the contract? While the Claimant said the notice of termination was less than one month’s notice, the Defendant said the notice of termination was validly issued.

 

The notice was given on 2^nd September 2020 stating that the Claimant’s employment terminated on 30^th September 2020. Is this notice sufficient as one month notice? In the calculation of a month, the calculation starts from a particular day in a month in which an event occurred to lapse on the day in the following month which makes a total of the days in the previous month. This was the decision of the court of appeal in CHIME vs. ATTORNEY GENERAL, FEDERATION (2008) All FWLR (Pt. 439) 550 at 567 to 569, while considering the definition of calendar month in the Interpretation Act. It was held thus:

“In computing time therefore, by calendar months, the time must be reckoned by looking at the calendar and not by counting days.

 

Applying the above principle, the period will be as follows:

1.     The month of September has 30 days. Therefore, from 10 September 2001 – 9 October 2001= 1 month.”

 

From the above definition of a calendar month and the illustration given by the Court of Appeal, a month counting from 2^nd September will lapse on 1^st October. Thus, where the days given in a notice are less than the total days of the month of issuance, then the notice is not a month notice. In this case, the termination notice was given to the Claimant on 2^nd September 2020 terminating the Claimant’s employment with effect from 30^th September 2020. The notice is less than a month’s notice. In my view, to amount to a month’s notice, the notice period, which started to count from 3^rd September 2020, should have extended to 2^nd October 2020. Clearly, the notice of termination given to the Claimant was not up to one month’s notice. The notice given to the Claimant is clearly in breach of clause 7 at page 1 of the contract agreement.

 

The Claimant did not seek any claim from this court to declare the termination of his employment to be wrongful on the basis of the inadequate notice. Rather, he straightaway sought to be paid one month’s salary in lieu of notice. In fact, what he said in his evidence is that he “deserves one month salary in lieu of notice”. I have set out the provisions of the agreement which require one month notice to terminate the contract. The provision clearly did not include the payment of salary in lieu of notice. Thus, the claim of the Claimant to be paid one month salary in lieu of notice is not based on the terms and conditions of the contract in Exhibit A.

 

I examined the submissions in the final written address of the Claimant to see whether the counsel for the Claimant mentioned the term of the employment or law where the Claimant’s claim for salary in lieu of notice was based.  Counsel for the Claimant referred to the authorities of Chukwuma vs. Shell and CBN vs. Archibong. It was held in these cases that salary in lieu of notice must be paid where notice is not given to terminate the employment otherwise, the termination will be wrongful. I have also examined the provisions of the Labour Act, particularly section 11 thereof, which provides for payment of salary in lieu of notice upon termination of employment without notice or with inadequate notice.

 

It is therefore clear that, notwithstanding that the terms of the contract did not provide for payment of salary in lieu of notice, the law requires payment of salary in lieu of notice where notice was not given. The result is that the Claimant is entitled to be paid salary in lieu of the inadequate notice of termination given to him. The issue however is the amount mentioned by the Claimant as the salary to be paid in lieu of notice. This sum was not proved. It however does not mean that the Claimant is not entitled to be paid what he ought to be paid as salary in lieu of notice.

 

The last claim of the Claimant is his claim in relief 8 where he sought to be paid the sum of N750,000.00 as refund of the professional fees he was charged by his counsel to prosecute this suit. In his evidence, the Claimant said he engaged the law firm of Chris Wogu & Co to represent him in this suit and he was billed the sum of N750,000.00. He has made part payment of N250,000.00 and has a balance of N500,000 to pay. For this reason, the Claimant sought this court to make the order in relief 8 mandating the Defendant to pay him refund him the sum of N750,000.00 his lawyers charged him to prosecute this suit. In defence of this claim, the Defendant averred that the Defendant did not employ the law firm of Chris Wogu & Co and it is not responsible for payment of their legal fees.

 

I agree with the Defendant that it should not be the one to pay the professional fees the Claimant agreed to pay to his counsel for representing the Claimant in this suit. It was the Claimant’s decision to employ the law firm of Chris Wogu & Co and the agreement to pay the sum of N750,000.00 as professional fee was reached in the absence of the Defendant. The Defendant cannot be made to bear the burden of the Claimant’s agreement with his counsel. This claim lacks legal basis and it will be refused.

 

Having carefully considered the claims of the Claimant, I find that he has proved that he is entitled to his claim for unpaid salaries and salary in lieu of notice but not in the sum claimed by him in reliefs 2 and 7. All other reliefs, specifically reliefs 1, 3, 4, 5, 6 and 8, were not proved and they are hereby dismissed.

 

Section 14 of the National Industrial Court Act 2006 empowers this court to grant any remedy a party in a suit may be entitled to in respect of any claim properly brought before the court. In other words, even where the claim sought by a party is not proved in the exact terms as claimed, this court can grant the part of the claim that was proved by the party. Pursuant to this provision, I shall grant reliefs 2 and 7 on these terms-

1.      The Defendant is ordered to calculate and pay to the Claimant his salaries for the months of April 2020 to September 2020 in the amount of the last monthly salary paid to the Claimant in March 2020 before the suspension of the Claimant’s salary.

2.      The Defendant is ordered to pay to the Claimant one month salary in lieu of notice of termination of his employment in the same amount of the salary paid to the Claimant for the month of September 2020.

3.      The sums due payable to the Claimant in orders 1 and 2 above musts be computed and paid to the Claimant within 30 days from today.

              

THE COUNTER CLAIM:

I have earlier set out the reliefs sought by the Defendant, now counter claimant, in its counter claim. It is necessary to repeat them at this point. They are:

1.      An Order directing the defendant to counter claim to refund the sum of N345,000 to the counter claimant being bonus paid to the defendant to counter claim.

2.      The company properties which include-

a.      The identity card issued by the counter claimant to the defendant to counter claim.

b.      A project Hilux vehicle from Niger Delta Power Holding Company.

c.       Alternatively, the market price of an Hilux.

3.      The sum of N2,000,000 as cost of this suit.

 

The evidence of DW1 in proof of the counter claim is that in January 2017, the counter claimant observed that bonus of N345,000.00 was wrongfully paid to the Defendant to counter claim. DW1 also said the Defendant to counter claim is in possession of the counter claimant’s properties, which are the staff identity card and a Hilux vehicle, which the Defendant to counter claim has refused to return. In defence of the counter claim, the Defendant to counter claim admitted that the project vehicle, which was in state of disrepair to the knowledge of the counter claimant, is available for recovery and repairs by the counter claimant and that the identity card issued to him is available to be handed over to the counter claimant. But for the issue of bonus paid to him in January 2017, the Defendant to counter claim said he was not paid bonus of N345,000.00 by the counter claimant on 25^th January 2017. His salary and allowances were usually paid into his bank account since 2004. His statement of account shows that no such payment was made into his account on 25^th January 2017.

 

From the evidence of the Defendant to counter claim, he has admitted to be in possession of the counter claimant’s project Hilux vehicle and identity card. That is to say the Defendant to counter claim concedes to reliefs 2 [a] and [b] of the counter claim. The Defendant to counter claim however disputes the counter claim for refund the sum of N345,000.00 allegedly wrongfully paid to him in January 2017 as bonus. The Defendant to counter claim said he is usually paid through his bank account and no such amount of money was paid to him in January 2017. He tendered his January 2017 statement of account from Guaranty Trust Bank in evidence. It is Exhibit C. The burden of proof of relief 1 sought in the counter claim is therefore on the counter claimant to prove these facts concurrently- that the money was paid to the Defendant to counter claim in January 2017, that the Defendant to counter claim received the money, and that the payment was wrongful or in error.

 

The counter claimant pleaded a computer printout of the bonuses paid to staff and it was tendered in evidence by DW1. It is Exhibit R. The counter claimant shaded the column in the exhibit which relates to the Defendant to counter claim to indicate the alleged bonus paid to the Defendant to counter claim. The shaded column shows the sum of N345,000.00. The date is 25^th January 2017. The purpose is bonus. The recipient is the Defendant to counter claim and the account number is 0024557215.

 

I have seen the computer printout relied upon by the counter claimant. It does not establish that the money was actually paid to the Defendant to counter claim. The print out is not the evidence needed to show that the money in question was paid to the Defendant to counter claim. Again, from the computer printout, the money was supposed to be paid into the Claimant’s account number 0024557215 on 25^th January 2017. The evidence needed to prove the payment is a bank transaction showing that the money was paid into the specified account. Exhibit C is the statement of the Defendant to counter claim’s account number 0024557215 in GTB. The sum of N345,000.00 was not paid into the account on 25^th January 2017 or on any other day thereafter up to till 30^th January 2017.

 

From the evidence of the parties, the counter claimant has failed to prove that the sum of N345,000.00 was paid to or received by the Defendant to counter claimant in January 2017 as alleged. The claim in relief 1 of the counter claim is accordingly not proved. In the result, relief 1 of the counter claim is dismissed. The same order applies to relief 3 seeking for cost of litigation.

 

Having considered the counter claim, only relief 2 [a] and [b] succeed and they are granted. The Defendant to counter claim is ordered to return the project Hilux vehicle and identity card to the counter claimant forthwith, not later than 30 days from today.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge