IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date:
Thursday, 8th January 2025 SUIT NO. NICN/LA/225/2020
BETWEEN
ADEKANMI OLUSEGUN
ADEWALE … CLAIMANT
AND
PHARMA
ETHICS LIMITED … DEFENDANT
JUDGMENT
1. The Claimant commenced this suit on 21st
July 2020, and sought:
2. After receipt of the originating process, the
Defendant entered an appearance and filed a statement of defence, which was
regularised on 11th January 2021. The Claimant filed a reply to the statement
of defence on 13th October 2020. The Defendant subsequently filed a
counterclaim on 18th January,2021, counterclaiming against the Claimant for:
a.
An
order directing the Claimant to pay the Defendant the sum of N3,274,800.00 [three million, two hundred
and seventy-four thousand, eight hundred naira], being the aggregate cost of
medical products/drugs supplied by the Claimant to some Hospitals and Medical Centres
on behalf of the Defendant, which sum remains unremitted to the Defendant to
date.
b.
An
order directing the Claimant to pay the Defendant/Counterclaimant the sum of N826,100 [eight hundred and twenty-six
thousand, one hundred naira], being the aggregate cost of medical products and
drugs supplied to some pharmaceutical companies and shops on behalf of the Defendant,
which sums remain unremitted to date.
c.
Interest
at the rate of 10% on the judgment sum upon entering judgment for the
Defendant/Counterclaimant until the full and final payment of the judgment sum.
3. The Claimant filed a defence to the
counterclaim, which was regularised on 22nd July 2021. The trial began on 2nd
February 2022 and concluded on 24th May 2023. The Claimant testified to support
his claims and presented 15 exhibits. The case was then adjourned to 29th June
2022, for the continuation of the trial and further adjourned to 17th January
2023. During the resumed hearing, the Claimant submitted two additional
exhibits, prompting another adjournment to 8th February 2023, for
cross-examination and defence. On 8th February 2023, the Claimant presented yet
another exhibit and was cross-examined. Following this, the case was adjourned
until 24th May 2023 for the defence. On that date, the Defendant’s witness gave
testimony, presented nine exhibits, and was cross-examined. Subsequently, the
case was adjourned to adopt final written addresses. The parties exchanged
their final written addresses; however, when the case came up for adoption on
27th November 2025, the Defendant’s counsel was absent. As a result, the
Defendant’s final written address and reply on points of law were deemed
adopted under Order Rule 45, Rule 7 of the National Industrial Court of Nigeria
[Civil Procedure] Rules, 2017. Afterward, the Claimant’s counsel adopted the
Claimant’s final written address, and the case was set for judgment.
Facts of the case
4. The Claimant was employed by the Defendant
and states that upon starting his job, he was denied contributory pension
benefits until 2014. After that, when the Defendant finally began making
pension remittances, these were underpaid until his termination in June 2020.
The Claimant reported that he had an accident on 30th December 2014, while
traveling for the Christmas break, and was hospitalised from December 2014 to
January 2016. During this time, he continued to work for the Defendant, who
also acknowledged this by continuing to commend him. However, the Defendant
refused to pay his salary during this period, despite repeated requests. He
claims that the Defendant abandoned him and, although they promised to cover
his medical expenses, they paid only N300,000.
As a result, he had to cover his medical expenses of N2,229,000 personally. Additionally, the Claimant stated that the
Defendant made unauthorised deductions from his salary and refused to reimburse
his field expenses or pay his leave bonus. On 18th June 2020, the Defendant
terminated his employment. Due to the Defendant's conduct, the Claimant
developed psychological and emotional trauma, which prompted him to file this
suit. The Defendant has denied liability and has counterclaimed against the
Claimant.
Summary
of addresses of the parties
5. Learned counsel the Defendant raised seven
issues for determination in the final written address filed on 8th June
2023:
a. Whether
the Claimant is entitled to the sum of N1,104,000.00,
being the claimed sum for unpaid salaries between January 2015 and January 2016,
while the Claimant was hospitalised and recuperating from an accident.
b. Whether
the Claimant is entitled to the sum of N1,221,686.00,
being the claimed sum for unpaid pensions, short-payment of pensions, and
unpaid leave bonuses.
c. Whether
the Claimant is entitled to the sum of N1,560,000.00,
being the claimed sum of unpaid field expenses for seven years: 2013, 2014,
2016, 2017, 2018, 2019, and 2020.
d. Whether
the Claimant is entitled to the sum of N2,229,000.00,
being the claimed sum, as the cost of hospital bills incurred by the Claimant
upon being hospitalised after his accident.
e. Whether
the Claimant is entitled to the sum of N550,000.00,
being the claimed sum for illegal salary deductions from July 2019 to May 2020.
f. Whether
the Claimant is entitled to the sum of N3,000,000.00
[three million naira], being the claimed sum for general damages as a result of
emotional and economic strain caused by the illegal actions of the Defendant.
g. Whether
the Claimant is entitled to the sum of N800,000.00
cost of legal services incurred for this action.
6. In
addressing issue one, counsel provided a brief overview of the Claimant’s
employment history, the accident he experienced, and his subsequent hospitalisation.
Counsel argued that, since the accident occurred on 30th December 2014, and the
Defendant had closed for the year on 23rd December 2014, the Claimant was excused
entirely from duty during that period. Therefore, he is not entitled to a
salary for the time he was hospitalised, as he did not provide any services.
Additionally, the Claimant has not demonstrated that his employment contract
includes provisions for such remuneration, nor has he established his
entitlement to the sum of N1,104,000.00.
The case of Ibama v. Shell Petroleum Development Company of Nigeria Limited
[2005] 10 SC 62 at 75 was cited to support this argument. The Court was
urged to resolve issue one against the Claimant. Regarding issue two, counsel
contended that the Claimant improperly combined three monetary claims without
specifying the particulars of each claim. Furthermore, it is unclear how he
arrived at the total amount claimed, which makes it presumptuous, despite the
document from IBTC Pension Managers, Exhibit 5. Counsel asserted that, in any
case, the Defendant did not default on the remittance of the Claimant's
pension, and the leave bonuses have already been paid. The cases of Abubakar
v. Chuks [2007] 12 SC 13 and Nwabuoku v. Onwordi [2006] 5 SC [Pt III]
103 at 115 were cited in support of this position. The Court was urged to
dismiss the Claimant's IBTC Pension Managers document due to its lack of
probative value. Counsel concluded that the Claimant’s claim for the sum of N1,221,686.00 is unsupported by evidence
and urged the Court to resolve this issue against the Claimant.
7. In
addressing issue three, counsel argued that the Claimant has failed to prove
non-payment of his field expenses based on the evidence presented to the Court.
Counsel contended that the Claimant’s testimony regarding the claim contains
inconsistencies, which means the Court cannot selectively interpret the
evidence, potentially leading to presumptions. The case of Consolidated
Breweries Plc & Anor v. Aisowieren [2002] FWLR [Pt 116] 959 at 987-988
was cited to support this argument. The Court was urged to rule against the
Claimant on this issue. Regarding issue four, counsel contends that the
Defendant is not responsible for covering the Claimant’s medical expenses, as
the Defendant has already provided N300,000.00
support. Furthermore, such payments are not specified in the employment
contract. Counsel also argued that the Claimant has failed to justify the N2,229,000.00 being claimed, referencing
the cases of Onuh & Ors v. Idu & Ors [2002] FWLR [Pt 94] 66 at 79-80
and Ugwu & Anor v. Araraume & Anor [2007] 6 SC [Pt I] 88 at 155.
The Court was urged to dismiss this claim and to resolve the issue in favour of
the Defendant.
8. In
addressing issue five, counsel acknowledged that the Defendant deducted two
months' salary from the Claimant in 2020 due to the economic impact of the
Covid-19 pandemic. Counsel also argued that the Claimant failed to provide
adequate evidence to support his claim of a deduction of N450,000.00. Consequently, counsel contended that the documentary
evidence presented by the Claimant does not substantiate his claims regarding
deductions of N550,000.00. The case of Nwabuoku
v. Onwordi [supra] was referenced in support of this argument. The Court
was urged to dismiss the claim and rule in favour of the Defendant. Issues six
and seven were argued together. Counsel contended that the Claimant has not
demonstrated entitlement to damages and costs, urging the Court to reject these
claims as frivolous, vexatious, and unfounded.
9. Learned counsel for the Claimant raised one
issue for determination in the final written address filed on 17th August 2023:
Whether
the Claimant has placed sufficient and credible evidence before this Court to
be entitled to all the reliefs sought in his writ.
10. Relying
on A.G., Federation v. Anuebunwa
[2022] LPELR-57750[SC] 57 and SPDC Ltd v. Olarewaju [2008] LPELR-3046[SC], among others, the learned counsel submitted that the burden of proof,
which rests on the Claimant, is
discharged on the balance of probabilities, which means that the Claimant
should establish the existence of the claims. The learned counsel also argued
that, based on the evidence presented, the Claimant has established his claims
on a balance of probabilities, entitling him to judgment. The Court was urged
to hold so. Regarding the Claimant’s entitlement to unpaid salary
from January 2015 to January 2016, the counsel referenced the cases of A.G.,
Nasarawa State v. A.G., Plateau State [2012] LPELR-9730[SC] 66 and Ahmed
& Ors v. CBN [2012] LPELR-9341[SC] 11, among others, and submitted that
both parties are bound by their contract, and neither party can unilaterally
change the contract without the consent of the other. Consequently, the counsel
asserted that the Defendant cannot alter the Claimant’s employment contract to
deny him his salary. He noted that the Claimant continued to work for the
Defendant even while unwell, despite his doctor's advice, and was commended by
the Defendant for his dedication. Furthermore, the counsel argued that, in the
absence of evidence indicating a revision or suspension of the employment
contract, the Claimant is entitled to his salary for the period from January
2015 to January 2016, as he rendered services to the Defendant during that
time. The Court was urged to hold so and grant the claim.
11. Regarding
the Claimant’s entitlement to unpaid pension, short payments of pension, and
unpaid leave bonuses, the counsel submitted that the Defendant was obligated
under Sections 4(1) and (5) of the Pension Reform Act, 2014, to deduct and pay
the Claimant’s contributory pension, an obligation that cannot be waived. The
counsel pointed out that there is evidence showing that the Defendant defaulted
in remitting the Claimant’s pension from September 2012 to August 2016, and
only began remitting it from September 2016. Therefore, he argued that the
Claimant is entitled to receive the unremitted pension for the period from
September 2012 to August 2016. Additionally, the counsel asserted that even
after the Defendant resumed remittances, it under-remitted the Claimant’s
pension, which constitutes a breach of the Pension Reform Act of 2014. The
Court was urged to hold that the Claimant is entitled to the sum claimed in his
writ. Furthermore, the learned counsel argued that the Claimant is entitled to
annual leave with pay under Sections 18 and 19 of the Labour Act and urged the
Court to hold so.
12. Regarding the Claimant’s unpaid field
expenses, the learned counsel referenced paragraph 28 of the Claimant’s sworn
statement and the evidence provided by the Defendant. Counsel argued that the
Defendant has not successfully established its defence regarding the payment of
the Claimant’s field expenses. It was noted that the Defendant’s reliance on
the Claimant’s demand letter, which was written in an effort to continue the
employment relationship, does not absolve the Defendant of its duty to pay the
outstanding field expenses, particularly as the employment relationship has
since ended. The Court was urged to grant the claim. Concerning the Claimant’s
entitlement to compensation for hospital bills, counsel referred to Section 4
of the Employee’s Compensation Act, asserting that the Claimant complied with
this section by notifying the Defendant of the accident. Therefore, the
Claimant is entitled to compensation for the treatment of the injury sustained,
as outlined in Section 7 of the Act. Additionally, the defence argument that
the accident did not occur during the course of the Claimant’s employment was
dismissed as unfounded and an afterthought, as it had not been raised until the
Claimant sought payment. Counsel cited Section 11 of the Act along with the
Claimant’s duty schedule, urging the Court to determine that the Defendant has
failed to prove that the accident occurred outside the scope of the Claimant’s
duties. Moreover, under Section 33 of the Employee’s Compensation Act, the
Defendant is mandated to contribute a minimum of 1% of its total monthly
payroll to the Nigerian Social Insurance Trust Fund. This fund provides
compensation for employees who experience occupational injuries, diseases, or
death. However, the Defendant has failed to fulfil this obligation. As such,
the Court was urged to find the Defendant liable. Counsel also referenced the
Claimant’s testimony regarding receipts for the payment of hospital bills
during cross-examination, including details about the N529,450.00 medical bill and the additional costs of treatment.
Counsel urged the Court to hold that the Claimant is entitled to the sum
claimed.
13. On the illegal deductions from the Claimant’s his
salary between July 2019 and May 2020, the learned counsel referred to Section
5[1] of the Labour Act and Governing
Council of NTI, Kaduna & Anor v. NASU [2018] LPELR-44557[CA] 34-37, and submitted that the Defendant cannot make any
deductions from the Claimant’s salary except as permitted by
statute. Counsel reviewed the evidence presented by the Claimant and concluded
that the Defendant made deductions from the Claimant’s salary without
explanation or the Claimant’s consent. It was also submitted that the defence
of force majeure, which was raised for the first time in this suit, is
unavailing. The Court was urged to discountenance it and to hold that the Claimant
has established this claim. On general damages and cost of the action, the
learned counsel referred to the case of Yalaju-Amaye v. Associated Registered Engineering Contractors Ltd &
Ors [1990] LPELR-3511[SC] 47-48, among others, and argued that, in line with the legal
principle that where there is a wrong there is a remedy, the Claimant is
entitled to damages based on the evidence presented. Counsel further argued
that the Claimant is entitled to the costs of the action, given that the Defendant’s
action gave rise to the engagement of solicitors and the subsequent legal
expenses. The Court was urged to affirm this argument and grant the claims.
14. On the credibility of the Defendant’s
witness’s testimony, the learned counsel referred to the cases of Ezemba v. Ibeneme & Anor [2004] 14 NWLR
[Pt 894] 617, Oseku & Ors v. Minister FCT, Abuja & Ors [2007] LPELR-3560[CA]
14, Mohammed v. A.G.,
Federation [2020] LPELR-52526[SC] 27-28, and Itodo
v. State [2019] LPELR-49069[SC] 32 and submitted that the Defendant’s
witness is incredible as his testimony is marred with inconsistencies and he
was not in the Defendant’s employment when the events took place. Therefore,
his testimony is based on the information he was given, rendering it hearsay. Counsel also
argued that the substituted witness did not testify on behalf of the Defendant,
noting that leave was granted to the Defendant to substitute its earlier
witness with Mr. Joseph Anosike
Agoh, but the witness who testified is Mr. Sunday Anosike Agoh. Counsel urged the
Court to hold that there is no defence to the Claimant’s claims, the evidence
of the Defendant’s witness is hearsay, and the testimony of Mr. Joseph Anosike
Agoh is irregular, since he testified without the Court’s leave, rendering the
defence abandoned. In conclusion, the counsel argued that the Claimant has
proved his case, and he is entitled to judgment as prayed. The Court was urged
to enter judgment for the Claimant.
15. The Defendant’s reply on points of law filed
on 21st September 2023 is a rehash of its previous argument.
Additionally, the defence counsel contended that the Defendant’s witness is an
officer of the Defendant, and therefore, a competent witness. Counsel further
argued that Mr. Sunday Anosike Agoh is the same person erroneously represented
as Mr. Joseph Anosike Agoh in the motion to substitute the Defendant’s witness.
Counsel urged the Court not to visit the error of counsel on the Defendant.
Preliminary issues
Is
the Defendant’s witness credible?
16. The learned counsel for the Claimant argued in
the Claimant’s final written address that the evidence of the Defendant’s
witness is hearsay because the witness was not in the Defendant’s employment
when the events took place. In contrast, the Defendant’s counsel contended that
the Defendant’s witness, an officer of the Defendant, could testify on its
behalf, even though he was employed in 2022.
17. Typically,
witnesses are expected to provide firsthand evidence regarding the subject of
their testimony. When a witness testifies about what someone else told him, it
constitutes hearsay, which is inadmissible. By Sections 37, 38, and 126 of the
Evidence Act, hearsay evidence can only be used to inform the Court about what
a witness heard from another and not to establish the truth of what was said. Moreover,
since a company is a juristic person, it can only act through its agents or
employees, meaning any agent or employee can provide evidence to support any
transaction entered into by the company. If the official providing testimony
did not participate in the transaction on behalf of the company, his evidence
is still relevant and admissible and will not be dismissed as hearsay. However,
the fact that the official did not personally partake in the transaction may
affect the weight given to the evidence in appropriate cases, as established in
Impact
Solutions Limited & Anor v. International Breweries Plc [2018] 16 NWLR [Pt
1645] 377 at 400, 401; Ishola v. Societe Generale
Bank [Nig.] Limited [1997] 2 NWLR [Pt 488] 405 at 424; Saleh
v. Bank of the North Ltd [2006] 6 NWLR [Pt 976] 316 at 326-327; and Interdrill
Nigeria Ltd & Anor v. United Bank for Africa Plc [2017] 13 NWLR [Pt 1581]
52 at 67, 69.
18. I have considered the sworn statement of the
Defendant’s witness. The witness stated that he is the Defendant’s Admin
officer and is familiar with the facts of this case. Therefore, the fact that
the witness joined the Defendant in June 2022 does not automatically render his
evidence hearsay. As he who asserts must prove, the Claimant bears the burden
to show that the evidence of the defence witness is hearsay. Mere assertion
without proof will not suffice. There is no such evidence. I have painstakingly
reviewed the testimony of the Defendant’s witness, and I find the evidence to
be relevant and admissible. The fact that the witness could not recall when the
Claimant’s accident happened, or whether the salary of other staff was
deducted, does not render his testimony incredible. In Ezemba v. Ibeneme & Anor [supra] page 653, the Court held that a minor
discrepancy in a witness's testimony is not fatal. Also, in Onokor
v. State [2023] 8 NWLR (Pt 1886) 397 at 417, the
Supreme Court, per Tijjani Abubakar, JSC, stated the law as “It is not every
minor contradiction in evidence of witnesses that matters or has the effect of
rendering the evidence unbelievable. For a trial court to disbelieve a witness for
the said reason, the contradiction in his evidence must be on a material point.
The contradiction must be substantial as to render the evidence doubtful.” As a result, I hold that the Claimant’s
objection is misconceived, and it is hereby overruled.
19. The Claimant’s
counsel also argued that the Defendant’s witness, who substituted Mr. Vikash
Verma, is Mr. Joseph Anosike Agoh, while the witness who testified is Mr.
Sunday Anosike Agoh. Therefore, counsel argued that the Defendant did not
present any evidence, and the statement of defence is deemed abandoned. In
contrast, the Defendant contended that it was a typographical error, and that Mr.
Sunday Anosike Agoh is the witness. I
have reviewed the motion on notice dated 28th December 2022 to substitute the
Defendant’s witness. The second prayer is for “An order of this Honourable
Court substituting Mr. Vikash Verma with Mr. Sunday Anosike Agoh as the
Defendant’s witness.” Although one Mr. Joseph Anosike Agoh swore the affidavit
in support of the motion, the witness listed and who swore to the witness
statement is Mr. Sunday Anosike Agoh. The passport photographs attached to the
affidavit in support of the motion and the witness statement are the same. Therefore,
it is not correct, as argued by the Claimant’s counsel, that Mr. Sunday Anosike
Agoh testified instead of the substituted witness, Mr. Joseph Anosike Agoh. In conclusion,
I find this objection misconceived, needlessly technical, and it is hereby
overruled.
Issues for determination
20. Two
issues arise for determination in this case, and they are:
a.
Whether the Claimant is
entitled to judgment on his claims?
b.
Whether the Defendant is
entitled to judgment on the counterclaim?
Issue one: Is the Claimant entitled to judgment on his claims?
21. It is
a fundamental principle of law that
whoever desires the Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts must prove those facts. By
the combined force of Sections 131, 132, 133, 134, and 136[1] of the Evidence
Act, the Claimant bears the initial burden of proving the pleaded facts on a
balance of probabilities. If the
Claimant fails to discharge this burden satisfactorily, his claims will be
dismissed without considering the Defendant's case, as the Defendant is not
required to prove its defence under these circumstances. In that case, there
would be no evidence to rebut, resulting in a judgment against the Claimant for
insufficient evidence. Please refer to the cases of Igwenagu v. Hon.
Minister, Federal Capital Territory & Ors [2025] 7 NWLR [Pt 1988] 145 at
173 – 174, Nsude & Ors v.
Nichodemus & Ors [2025] 4 NWLR [Pt 1982] 253 at 280, and Nduul v. Wayo & Ors
[2018] LPELR-45151[SC] 51 – 53.
22. The
Claimant who seeks declaratory relief must demonstrate his entitlement to the
declaration by credible evidence and will succeed on the strength of his case,
not on the weakness of the defence or admission by the Defendant. As granting
declaratory relief involves the Court’s discretion, the Claimant must place
sufficient materials before the Court to justify the declaration, as
illustrated in the cases of Nduul v.
Wayo & Ors [2018] 7 SC [Pt III] 164 at 213, U.T.C. Nigeria Plc v.
Peters [2022] 18 NWLR [Pt 1862] 297 at 312, 313,
and Osho v. Adeleye & Ors
[2024] 8 NWLR [Pt 1941] 431 at 452.
23. In resolving employment disputes, the Court
will refer to the employment contract and any other stipulations that are
incorporated, or deemed to have been incorporated, into the contract, as stated
in the cases of Adekunle v.
United Bank for Africa Plc [2019] 17 ACELR 87 at 108 and Gbedu & Ors v.
Itie & Ors [2020] 3 NWLR [Pt 1710] 104 at 126. The employment contract serves as the foundation for any action taken
in the event of a breach. The success of the case depends entirely on the terms
agreed upon, or deemed to have been agreed upon, by the parties involved, as
outlined in Umera v. Nigerian
Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 386 and Gyubok v. The Federal Polytechnic, Bauchi & Anor [2024] 16 NWLR [Pt
1965] 515 at 549.
Summary of evidence
24. The
Claimant sought eight reliefs, testified and tendered 18 exhibits, which were
marked as Exhibits 1 to 18. These are: the Crest Hospital medical report dated
6th January 2015; email dated 4th May 2015; four photographs of the Claimant in
the hospital, the Crest Hospital letter dated 10th April 2015 to the Defendant;
the Claimant’s Stanbic IBTC RSA statement; the Defendant’s pension clearance
certificate for 2017, the Claimant's solicitors’ receipt dated 1st June 2020
for N860,000; the Claimant’s
confirmation letter dated 10th October 2014; the Claimant’s solicitors’ demand
letter dated 16th June 2020; email of 8th April 2020 showing approval of the
Claimant’s order; emails of 8th and 19th May 2020 confirming receipt of stated
payments; flash drive containing audio recording; the Claimant’s employment letter,
email correspondence showing the Claimant was still marketing while undergoing
treatment; unsigned order form, the Claimant’s Guaranty Trust Bank Plc
statement of account; certificate of authentication dated 29th June 2022; and
the transcription of the audio recording
25. The Claimant testified that he was employed
by the Defendant as a Trainee Medical Sales Representative, as per a letter
dated 3rd September 2012, with a monthly salary of ?55,000.00. Three months
into his employment, his salary was increased to ?67,000.00 in January 2013,
reflecting satisfactory performance. In 2014, his salary was raised to
?82,000.00 (eighty-two thousand naira), which remained the same until September
2014. From September 2014 to December 2017, he received ?92,000.00 (ninety-two
thousand naira) monthly. From January 2018 until December 2019, his monthly
salary was ?100,000.00 (one hundred thousand naira). From January 2020 to June
2020, he earned ?120,000.00 (one hundred and twenty thousand naira) monthly. Upon
his employment, the Claimant discovered that the Defendant had over twelve
staff members, entitling him to pension benefits from the start of his
employment. He stated that on 30th December 2014, he had an accident while
traveling for the Christmas break from work, resulting in hospitalisation from
December 2014 until January 2016 due to a severe injury. He noted that the
Defendant was aware of the accident, mentioning that he even worked from his
hospital bed, performing routine tasks such as client follow-ups, taking Local
Purchase Orders (LPOs) from clients, and ensuring that clients paid their dues
for the Defendant's products. As a result of this effort, he received a
commendation letter from the Defendant. The Claimant underwent three plastic
surgeries due to a severe injury to his left hand, which was nearly amputated.
He incurred hospital bills totalling ?2,229,000.00 (two million, two hundred
and twenty-nine thousand naira) within the first three months of hospitalisation,
from 5th January 2015, to 10th April 2015. This amount includes ?529,000.00 (five
hundred and twenty-nine thousand naira) for initial hospitalisation and
approximately ?1,700,000.00 (one million, seven hundred thousand naira) for the
plastic surgeries. Despite the Managing Director/CEO's assurances that the
hospital bills would be covered, the Defendant paid only ?150,000.00 (one
hundred and fifty thousand naira), while the insurance company also paid
?150,000.00 (one hundred and fifty thousand naira), totalling ?300,000.00 (three
hundred thousand naira). During this time, he was left without a salary at the
hospital.
26. He stated that, notwithstanding that he worked
from his sick bed for the Defendant, which was acknowledged, he was not paid a
salary from January 2015 to January 2016, totalling ?1,104,000.00 (one million, one hundred
and four thousand naira). Upon his discharge from the hospital in January 2016,
he resumed work immediately and asked for the benefits for the period he was
hospitalised and worked from his sick bed. The Managing Director (MD) assured
him that these benefits would be paid, but they remain unpaid to this day
despite several demands. During his employment, the Defendant made deductions
from his salary up to 11th June 2020 without justification. On 11th June 2020,
the MD invited him to his office and asked him to resign, promising that all
outstanding entitlements would be paid upon his resignation. Under pressure to
resign, he concluded that this request was premeditated and that he would leave
without entitlements, based on experiences shared by previous disengaged staff.
As a result, he requested 72 hours to think about the resignation and get back
to the MD. Consequently, he consulted his lawyers. Upon their advice, his
solicitors, Messrs. Penlit and Greyson, sent a letter of demand for payment of
all outstanding benefits, short-paid pension, and unpaid salaries. During this
time, the MD and his associates, who were also employees of the Defendant,
repeatedly called him, urging him to submit his resignation letter. Following
the receipt of the demand letter by the MD, his employment was terminated via
email at 9:52 p.m. on 18th June 2020, without the payment of one month’s salary
in lieu of notice or his June salary. The Defendant only opened a retirement
savings account for him in 2014, and his pension contributions were underpaid
until his employment ended in June 2020. The Defendant routinely deducted his
salary without notice or explanation. From March to December 2013, the Defendant
under-remitted his pension contributions by N145,260.00
(one hundred and forty-five thousand, two hundred and sixty naira). From
January 2014 to September 2016, the Defendant failed to remit N489,000.00 (four hundred and eighty-nine
thousand naira). His pension from September 2016 to July 2018 was short-paid by
N224,526.00 (two hundred and
twenty-four thousand, five hundred and twenty-six naira). Furthermore, from
July 2018 to December 2019, his pension was short-paid by N124,100.00 (one hundred and twenty-four thousand, one hundred naira).
From January to February 2020, the short payment amounted to N21,800.00 (twenty-one thousand, eight
hundred naira), and from March to June 2020, it totalled N72,000.00 (seventy-two thousand naira). He noted that although
employees were allowed to retire field expenses, his field expenses for 2013,
2014, 2016, 2017, 2018, 2019, and June 2020, amounting to N1,560,000.00 (one million, five hundred and sixty thousand naira),
were never paid by the Defendant. In 2015, the Defendant failed to pay his
leave bonus of N45,000.00 (forty-five
thousand naira), and between 2019 and 2020, his leave bonus amounting to N100,000.00 was also unpaid. Additionally,
from July 2019 to May 2020, the Defendant deducted N550,000.00 (five hundred and fifty thousand naira) from his salary
without any justification. He paid his solicitors, the law firm of Messrs.
Penlit & Greyson, N800,000.00 to
initiate this action. He suffered severe hardship and financial difficulties
due to the Defendant’s refusal to pay his outstanding entitlements,
underpayment of salaries, and failure to remit accurate pension contributions.
This situation led to psychological and emotional trauma over an extended
period. The conduct of the Defendant is inhumane, illegal, unfair, and an unacceptable
labour practice, and is therefore condemnable. He prayed the Court to grant his
claims in the interest of justice.
27. In his additional sworn
statement, the Claimant reiterated his earlier testimony regarding his work
from a hospital bed and the issuance of a commendation letter. He detailed his
hospital bills amounting to N2,229,000.00 (two million,
two hundred and twenty-nine thousand naira), which included N150,000
paid by the Defendant and another N150,000 covered by the
insurance company. He discussed the accident history, the salary deductions between
July 2019 and May 2020, and the default on his contributory pension. Furthermore,
he clarified that the ad hoc staff engaged by the Defendant were either IT
students or National Youth Service Corps (NYSC) members. The Defendant
confirmed his employment through a letter dated 1st September 2014. During the
COVID-19 pandemic, he worked remotely, taking customers’ orders and forwarding
them to the Defendant, and following up with customers to ensure payment for
the products supplied. He diligently followed up with customers who made
payments during the lockdown and communicated these transactions to the
accountant, Mr. Vikash Verma, who confirmed receipt. He maintained a record of
accomplishment and received commendation emails from the Defendant, which
included a promise to buy him a car to facilitate his work as a high performer,
but this promise was never fulfilled. He asserted that his employment was
neither terminated nor suspended by the Defendant, which would justify the
cessation of salary payments during his hospitalisation. According to his
employment contract, he is entitled to comprehensive insurance that should
cover accidents and other unforeseen circumstances occurring during his
employment with the Defendant. He pointed out that the Defendant defaulted on
its obligation to contribute to the Nigerian Social Insurance Trust Fund, which
would have covered his medical expenses. The Claimant insisted that the
accident occurred while he was performing his duties, specifically during a
follow-up with a Defendant's customer, rather than in a personal capacity.
Although the Defendant failed to pay his salary from July 2019 until May 2020,
he confirmed that his salary for March 2020 was paid in full. The Claimant requested
the Court to disregard the witness statement on oath provided by the Defendant’s
witness, alleging that it is mere conjecture and fabricated to mislead the
Court. He reiterated his claims and stated that it would be in the interests of
justice to dismiss the counterclaim for lack of merit and for being
unsubstantiated.
28. During
cross-examination, the Claimant confirmed that his counsel sent a demand letter
indicating the Defendant's failure to pay his field expenses totalling N36,000. When asked whether he had an IOU
or invoice to prove the Defendant owed him, he stated that the Defendant had
not provided receipts or any documentation for the payments. He affirmed that,
according to paragraphs 17 and 28 of his sworn statement, the Defendant had not
paid his field expenses for seven years, and he was claiming N1,560,000. He insisted that he covered
his field expenses for that period because the Defendant made no payments. When
asked whether he had any documents showing he had demanded payment and the
company had refused, he replied that they had not paid him and had not provided
pay slips or invoices. He maintained that the Defendant owed him. Regarding
paragraph 10, he confirmed that he was claiming N1.7 million for fees incurred for plastic surgeries. When asked
for a receipt for N1.7 million, he said
he had a receipt for N529,000 among the
exhibits. He explained that the payment for the N1.7 million was made through POS, but the receipt had faded. When
pressed about whether the N1.7 million
expenses were legitimate, he asserted that they were. He clarified that the N529,000 receipt he tendered was for the
first treatment, which only covered three months of care, while the treatment
lasted for one year. The Claimant acknowledged that the Defendant issued a
cheque for N300,000. However, he noted
that his employment contract did not stipulate that his employer would cover
medical expenses in the event of an accident. He stated that, on 30th December
2014, when the accident occurred, the company had officially closed. Yet those on
the field continued to work because they collected money from customers and
paid it to the company. He claimed that the medical bills he incurred were
related to his employment. When shown Exhibit 13, he maintained that he worked
from his sickbed and was claiming N1,104,000
for that period. He stated that his hospital provided him with excuse duty
certificates dated 25th March 2015 and 28th April 2015, for that duration. The
excuse duty excused him from physical appearances at work. There was also a
commendation letter indicating that he was working from the hospital. When told
that he had not worked during that year, he replied that the company's
commendation letter for that period indicated otherwise. As for paragraphs
23-27 of his sworn statement, he confirmed that he was claiming unpaid pension
and short payment of pensions. When asked how he arrived at that figure, he
stated that nothing was paid for the first four years. He explained that the employer’s
contribution was 10% and the employee’s was 8%, which formed the basis of his
claim. Upon being shown Exhibit 5 and asked to clarify where it indicated that
his unpaid pension was N1,221,636, he
explained that the exhibit was generated by the pension office and differed
from the company's records. He insisted that the calculations reflected what
had not been paid. When confronted with the assertion that the Defendant owed
no pension arrears, he maintained that Exhibit 5 documented the actual payments
made. He indicated that some months were omitted in the demand letter. The Claimant
requested the Court to accept the figures stated in his sworn statement and
reiterated that the company owed him. He also pointed out that his account
statement indicated that his salary had been deducted. Finally, he claimed N3 million as damages for the suffering he
endured while in the hospital and for the Defendant's refusal to pay the money
owed to him.
29. The
Defendant's witness and Admin Officer, Mr. Sunday Anosike Agoh, testified that
some employees of the Defendant are ad hoc or temporary/contract staff. As
such, the Claimant may not be aware of the exact number of permanent staff
employed by the Defendant, as claimed in paragraph 5 of the Claimant's
statement of facts. Mr. Agoh acknowledged the Claimant's employment history and
the accident he suffered but stated that, due to the Claimant's incapacitation
and confinement to a hospital bed following the accident, he was unable to
perform his duties. Consequently, Crest Hospital issued several Excuse Duty
Certificates for him, thereby preventing the Claimant from working. The
accident occurred on 30th December 2014, but it was outside the scope of his
employment. While the Claimant received a commendation letter dated 4th May
2015, Mr. Agoh clarified that it was a routine letter intended to uplift the
Claimant's spirits during his hospital stay. It does not serve as evidence that
the Claimant worked from his hospital bed, a claim the Defendant disputes. The
Defendant provided financial assistance to the Claimant within its capacity,
totalling N150,000.00 (one hundred and
fifty thousand naira), and ensured that NSIA Insurance Company paid him an
additional N150,000.00 (one hundred and
fifty thousand naira) as insurance benefits. To show their willingness to
assist, the Defendant also communicated to the Claimant their pledge of
financial support. However, Mr. Agoh denied that the Defendant had promised to
cover the Claimant's medical expenses for an accident that occurred outside the
scope of his duties. He also refuted claims that the Defendant's Managing
Director had committed to paying the Claimant's salary and allowances during
his incapacitation and hospitalisation. Furthermore, Mr. Agoh admitted that the
Defendant had to deduct salaries, including the Claimant's, during the severe
period of the COVID-19 pandemic. This was necessary because businesses were
generally shut down, the country was under complete lockdown, and the Defendant
company was not operating, resulting in no earnings. The slight salary deductions
were made to keep the Defendant afloat and to prevent layoffs.
Mr. Agoh stated that during a meeting held at the Defendant's premises at No.
9, Oduduwa Crescent, Ikeja, GRA, on 20th December 2022, at around 4:00 p.m.,
the Defendant's Managing Director informed him that the Defendant is still
struggling to remain afloat due to the devastating effects of the COVID-19
pandemic. The Defendant had to make slight deductions from staff salaries
during the nationwide lockdown because the business was shut down, there was no
revenue, and the staff, including the Claimant, were redundant during that
period.
30. Mr. Agoh noted that the Claimant's
performance in his duties significantly declined after his hospitalisation,
which in turn affected the Defendant's overall sales and income. The Claimant
engaged lawyers to make what Mr. Agoh described as wild, false, and outrageous
claims against the Defendant, which he viewed as an act of bad faith. The
spurious and insensitive claims made by the Claimant through his lawyers, along
with the Claimant's poor performance post-hospitalisation and several
significant breaches of conduct, left the Defendant's Managing Director with no
choice but to terminate the Claimant's employment. Mr. Agoh also indicated that
the Claimant's employment was confirmed in a letter dated 10th October 2014. He
asserted that it is not the Defendant’s practice to make salary deductions. However,
there were slight deductions during the lockdown to help mitigate the severe
economic impact of the pandemic on businesses, including the Defendant's. Additionally,
Mr. Agoh clarified that the Defendant did not default on the employees'
contributory pension. Sales and marketing staff of the Defendant are typically
reimbursed for field expenses incurred while conducting their sales and
marketing activities. He stated that the Claimant received full payment for his
field expenses, which were assessed based on his designated "Area of
Coverage." Therefore, the Defendant does not owe the Claimant any
outstanding field expenses. Mr. Agoh denied any claims that the Claimant took
leave during this period, stating instead that he was hospitalised in 2015 due
to an accident. He considered the Claimant’s claims to be spurious, vexatious,
wild, unverifiable, and an attempt to exploit the situation in bad faith to
undermine the integrity and corporate image of the Defendant.
31. During cross-examination, Mr. Agoh stated that
he does not know the Claimant personally but has seen him once or twice. Mr.
Agoh noted that he left his previous position before joining the Defendant in
June 2022. The evidence he provided is based on what he was told. He is an
administrative officer at the Defendant and also serves as the HR officer, with
over ten years of experience in this field. Mr. Agoh explained that the rules
governing injured workers vary by company and are not uniform. According to the
records, the Claimant's accident occurred in December 2014. He is unsure of the
total number of employees at the Defendant. Mr. Agoh read paragraph 15 of his sworn
statement and confirmed that staff salaries were deducted for two months, but
he does not know the total amount that was deducted. Additionally, Mr. Agoh
read paragraph 16[c] of his sworn statement, but could not confirm whether the Claimant’s
sales were adequate to sustain the Defendant's financial health. Mr. Agoh
admitted that he has no evidence to support the claim that the Defendant
covered the field expenses for the Claimant or other staff members.
Evaluation of evidence
32. I have reviewed and carefully considered the
evidence presented by both parties, which includes both oral and documentary
evidence. The Claimant is seeking both declaratory and monetary reliefs. In the
General Form of Complaint, the Claimant sought eight reliefs, including a claim
for solicitors' fees. However, in the statement of facts, the Claimant listed
seven reliefs, excluding the solicitors' fees claim. It is settled law that the
statement of facts supersedes the writ of summons, which in this case is the
General Form of Complaint. Consequently, if a relief claimed in the General
Form of Complaint is not included in the statement of facts, that particular
claim is considered abandoned. Conversely, if a relief is not listed in the
General Form of Complaint but is added in the statement of facts, it will be
treated as being claimed before the Court. This principle is supported by the
case of Onyero
& Anor v. Nwadike [2011] 18 NWLR (Pt 1279) 954 at 985-986. Therefore, relief 8, which seeks N800,000.00 for the cost of securing legal
services, is deemed abandoned and will not be taken into account in this
judgment.
33. The
parties agree that the Defendant employed the Claimant from 3rd September 2012
until 18th June 2020, when his employment was terminated without notice. It is
undisputed that the Claimant was involved in an automobile accident on 30th
December 2014, and he was hospitalised from that time until January 2016, when
he resumed work with the Defendant. Both parties also agree that the Defendant
made salary deductions from the Claimant's pay. However, the Claimant claims
that the Defendant regularly deducted his salary, while the Defendant contends
that deductions were made during the COVID-19 pandemic to remain financially
viable. The dispute focuses on whether the Defendant may deduct the Claimant’s
salary without the Claimant's consent and on the amount deducted. Additionally,
whether the Claimant's accident occurred while he was in the course of his
employment, whether he is entitled to salary for the period he was confined to
the hospital, and whether he is entitled to other monetary claims.
Is the Defendant permitted to deduct the Claimant’s salary?
34. The supporting evidence is found in
paragraphs 15, 21, and 30 of the Claimant’s sworn statement, paragraph 8 of the
Claimant’s additional sworn statement, and Exhibit 16, which is the Claimant’s
Guaranty Trust Bank Plc statement of account. The Claimant testified that,
instead of paying his outstanding benefits, the Defendant continuously deducted
amounts from his salary without explanation. He also stated that the Defendant
deducted N550,000.00 from his salary
without prior notice or justification. The Claimant further stated that these
deductions began in July 2019 and continued until May 2020, and that he was
never informed of the reasons for them. The Claimant's Guaranty Trust Bank Plc
statement shows total deductions of N500,000.00.
Between August 2019 and January 2020, a monthly sum of N50,000 was deducted from the Claimant’s salary. In February 2020, N80,000 was deducted, followed by N60,000, which was deducted monthly in
April and May 2020. While the Defendant generally denied the claims made in
paragraphs 16, 22, and 31 of the statement of facts (as noted in paragraphs 13,
19, and 20 of its statement of defence), it did not specifically deny the
allegation in paragraph 31 regarding the total deductions of N550,000.00 from the Claimant’s salary.
However, in paragraphs 15, 16[b], 18, and 22 of the Defendant’s witness’s sworn
statement, it claimed that salary deductions were only made during the COVID-19
pandemic when employees were not working, and its offices were closed. The
Defendant asserted that these deductions were necessary to keep the company
afloat and to avoid laying off staff. Notably, this piece of evidence was not
pleaded. As evidence of facts not pleaded goes to no issue, this evidence is
discountenanced, as established in Ukoh & Anor v. Ukoh & Ors [2021]
7 NWLR (Pt 1775) 303 at 332. Ultimately, the Defendant acknowledged in
issue five of its final written address that it deducted N100,000.00 from the Claimant’s salary for April and May 2020.
Nevertheless, I have determined that the total amount deducted from the
Claimant’s salary was N500,000.00. The
Claimant’s salary in 2020 was N120,000.00,
and the Defendant only paid 50% of that salary for April and May 2020.
35. The law is settled that an employer has no
general right to deduct an employee’s salary except as allowed by law. The
provisions of the Protection of Wages Convention, 1949 [No. 95], are
incorporated into the Labour Act. Section 5[1] of the Labour Act states,
“Except where expressly permitted by this Act or any other law, no employer
shall make any deductions or enter into an agreement or contract with a worker
regarding deductions from the wages to be paid by the employer to the worker,
or for any payment to the employer by the worker in respect of any fines.”
Section 5[2] provides, “An employer may, with the consent of a worker, make
deductions from the worker's wages and pay to the appropriate person any
contributions to provident or pension funds or other schemes agreed to by the
worker and approved by the State Authority.”
The law treats employees’ wages with such reverence that no employer may
deduct from an employee's pay unless explicitly authorised by law or agreed to
by the employee. See Chemical and Non-Metallic Products Senior Staff
Association v. Benue Cement Company Plc [2005] 2 NLLR [Pt 6] 446 at 470. In the case of Governing Council of NTI
& Anor v. NASU [2018] LPELR-44557[CA] 36-37, cited by the Claimant’s
counsel, Yahaya, JCA, reiterated this principle, and held that “The issue is
that the law imposes a condition precedent to the deduction of any sums of
money from the wages and salaries of the employees of the appellants. That
condition has to be satisfied before the appellants can legally act…. The issue
is that before any deduction can be made from the wages and salaries of the
employees, they must consent in writing.” There is no evidence that the
Claimant authorised the deductions from his salary. The deductions were done
flagrantly and without notice to the Claimant. Additionally, the COVID-19
pandemic or the Defendant’s economic challenges do not justify the unilateral deduction
from the Claimant’s salary. Consequently, I find as a fact that the deductions from
the Claimant’s salary from August 2019 to May 2020, excluding March 2020, are
unlawful. Therefore, I hold that the Claimant is entitled to payment of the N500,000.00 wrongfully deducted from his
salary.
Did the Claimant's accident occur in the
course of his employment?
36. The Claimant stated in paragraph 5 of his sworn statement that he
had an accident on 30th December 2014, while on his way to a Christmas break
from work. The Defendant denied this assertion, stating in paragraph 6 of its
witness' sworn statement that the Claimant was not on duty when the accident
occurred. During cross-examination, the Claimant admitted that the Defendant
had officially closed for the year when the accident happened; however, he
mentioned that the sales representatives remained in the field to collect
payments from customers and remit them to the Defendant. In its final written
address, the Defendant maintained that the Claimant’s accident occurred on 30th
December 2014, while he was on holiday, as the Defendant had closed for the
year on 23rd December 2014, and would not resume operations until January 2015.
Notably, the fact that the Defendant closed for the year on 23rd December 2014
was not pleaded, and no evidence was presented to support this claim. The
evidence indicated that the Defendant had closed when the accident occurred.
The critical question is whether the accident took place in the course of the
Claimant's employment. The Claimant, who asserts that the accident happened
during his employment, bears the burden of proof. According to Section 136(1)
of the Evidence Act, and as reaffirmed in the case of Julius Berger (Nig.)
Plc & Anor v. Ogundehin [2014] 2 NWLR (Pt 1391) 388 at 412-413, in civil
cases, the onus of proving an allegation rests with the Claimant, and it does
not shift until he has substantiated his claim by a preponderance of evidence
and the balance of probability. However, although the Claimant alleged that he
was still working, visiting customers, securing payments, and remitting them to
the Defendant even after the Defendant had closed, there is no evidence
regarding the customers the Claimant visited or the payments he received during
that period, nor of any customers he approached before the accident. This lack
of evidence is significant and shows that the Claimant has not substantiated
his claim. Therefore, I find that the accident did not occur in the course of
the Claimant's employment.
Is the Claimant entitled to salary for the period he
was confined to the
hospital?
37. The supporting facts are contained in
paragraphs 6, 7, 8, 14, and 15 of the statement of facts reproduced in
paragraphs 6, 7, 13, and 14 of the Claimant’s sworn statement, and Exhibits 2
and 14. The Claimant’s evidence is that he
worked from his hospital bed, performing routine tasks such as client
follow-ups, taking Local Purchase Orders (LPOs) from clients, and ensuring that
clients paid their dues for the Defendant's products. As a result of his
efforts, he received a commendation letter from the Defendant. Despite working
from his sickbed, which the Defendant acknowledged, he was not paid a salary
from January 2015 to January 2016, amounting to ?1,104,000.00 (one million, one
hundred and four thousand naira). Upon his discharge from the hospital in
January 2016, he returned to work immediately and requested the benefits for
the period he was hospitalised and working from his sickbed. The Managing
Director assured him that these benefits would be paid, but they remain unpaid
to this day despite several demands. During cross-examination, he reiterated
that he worked from his sickbed and was claiming ?1,104,000 for that period. He
mentioned that his hospital provided him with excuse duty certificates dated
25th March 2015 and 28th April 2015, for the duration of his hospitalisation.
These certificates excused him from physical appearances at work. Additionally,
there was a commendation letter confirming that he was working from the
hospital. Exhibit 14 details the Claimant's activities during his hospital stay
and supports his assertion that he worked from his hospital bed. Importantly,
in Exhibit 2 (which is the same as Exhibit D8), the Defendant wrote on 4th May
2015: “Firstly, please note that your commitment and steadfastness to the
organisation, despite your ailment, is well received and appreciated. May God
bless and enrich you always.”
38. The
rebuttal evidence is presented in paragraphs 8 and 11 of the Defendant’s
witness's sworn statement. The witness stated that due to the Claimant's
incapacitation and confinement to a hospital bed following the accident, he was
unable to perform his duties. Consequently, Crest Hospital issued several
Excuse Duty Certificates, which prevented the Claimant from working. Although
the Claimant received a commendation letter dated 4th May 2015, the witness
clarified that this letter was merely a routine communication intended to
uplift the Claimant's spirits during his hospital stay. The letter does not
serve as evidence that the Claimant worked while hospitalised. The Defendant
relied on Exhibits D6, D7, and D8. However, as evidenced in Exhibits 2 and 14,
the Claimant still managed to work from the hospital despite having the Excuse
Duty Certificates. The Claimant explained in paragraph 5 of his additional
evidence that the certificates only relieved him of the physical requirement to
attend work; he still attended to customers, received orders, and forwarded
them to the Defendant. While a claim for earned salary falls under special
damages, which must be specifically pleaded and proved, the Claimant testified
in paragraph 3 of his sworn statement that his salary from September 2014 to
December 2017 was N92,000.00, and he
claimed N1,104,000.00 for the period
from January 2015 to January 2016. In paragraph 14 of his sworn statement, the
Claimant stated that he immediately resumed his work in full upon his discharge
in January 2016. N92,000.00 multiplied
by twelve months yields N1,104,000.00.
There is no provision in the Claimant’s employment contract that allows the
Defendant to withhold the Claimant’s salary for any reason, even in the event
of a significant accident, which was a misfortune beyond the Claimant’s
control. Additionally, there is no evidence to suggest that the Claimant was
suspended or that his employment was terminated during this period. Furthermore,
there is evidence that the Claimant worked from the hospital. Based on the
totality of the evidence presented, I find that the Claimant has successfully
established his entitlement to N1,104,000.00
in unpaid salary.
Is
the Claimant entitled to the other monetary claims?
39. The Claimant testified in paragraph 28 of his
sworn statement that he was permitted to submit claims for field expenses;
however, the Defendant did not pay these expenses for the years 2013, 2014,
2016, 2017, 2018, 2019, and up until June 2020. The total amount of unpaid
field expenses is N1,560,000.00, but
there is no breakdown or supporting documentation for this figure. Notably,
Exhibit 16, which is the Claimant's bank statement, shows that he received a
payment of N30,000 for expenses on 8th March
2020. During cross-examination, the Claimant confirmed that his counsel had
sent a demand letter alleging the Defendant's failure to pay his field expenses
totalling N36,000. When asked if he had
an IOU or an invoice to prove the Defendant owed him that amount, he stated
that the Defendant had not provided receipts or any relevant documentation for
the payments. He affirmed that, according to paragraphs 17 and 28 of his sworn
statement, the Defendant had not compensated him for his field expenses over a
period of seven years, and he was claiming N1,560,000.
The Claimant insisted he covered his field expenses during that time because
the Defendant made no payments. When questioned about any documents that showed
he had demanded payment and that the company had refused, he responded that
they had not paid him and had not provided payslips or invoices. Exhibit 9 is a
letter from the Claimant’s solicitors to the Defendant, dated 16th June 2020,
in which the Claimant demanded N36,120.00
for field expenses incurred in March and May 2020. Since this is a claim for a
specific amount, the Claimant bears the burden of proving how he arrived at the
sum claimed, as outlined in Sections 131(1) and 136(1) of the Evidence Act.
This proof is lacking. It is unlikely that the Claimant would have worked for
seven years without receiving any payment for his field expenses, and it seems
implausible that his solicitors would have omitted such a significant claim
from their demand letter. Additionally, there is evidence of payment for
expenses incurred in February 2020. Therefore, I find that the Claimant has not
substantiated his claim for unpaid field expenses.
40. The Claimant is also seeking N2,229,000.00 in medical expenses stemming
from an automobile accident. The supporting facts can be found in paragraphs 8
to 12 of the Claimant’s sworn statement, as well as paragraphs 6 and 15 of the
additional sworn statement, and in Exhibit 4. The Claimant testified that he
underwent three plastic surgeries due to a severe injury to his left hand,
which was nearly amputated. He incurred a total of ?2,229,000.00 (two million,
two hundred and twenty-nine thousand naira) in hospital bills within the first
three months of hospitalisation, from 5th January 2015 to 10th April 2015. This
amount includes ?529,000.00 (five hundred and twenty-nine thousand naira) for
initial hospitalisation and approximately ?1,700,000.00 (one million, seven
hundred thousand naira) for the plastic surgeries. Despite assurances from the
Managing Director/CEO that the hospital costs would be covered, the Defendant
only paid ?150,000.00 (one hundred and fifty thousand naira), while the
insurance company contributed another ?150,000.00 (one hundred and fifty
thousand naira), bringing the total payment to ?300,000.00 (three hundred
thousand naira). Exhibit 4 is a letter from Crest Hospital to the Defendant
dated 10th April 2015, which provides a breakdown of the Claimant’s bill as of
that date, totalling ?529,450. Although the cost of the three plastic surgeries
is not detailed in Exhibit 4, the Claimant did not present any other
documentation to support the additional ?1,700,000.00 incurred during his
treatment. During cross-examination, the Claimant confirmed that he is claiming
?1.7 million for fees associated with the plastic surgeries. When asked for a
receipt for this amount, he stated he had only a receipt for ?529,000.00 among
the exhibits. He explained that the ?1.7 million payment was made via a POS
transaction, but the receipt had faded. When questioned about the legitimacy of
the ?1.7 million expenses, he affirmed that they were valid. He clarified that
the ?529,000 receipt he provided was for the initial treatment, which covered
only three months of care out of a one-year treatment period. The Claimant
acknowledged receipt of a cheque from the Defendant for ?300,000 but stated
that his employment contract did not specify that his employer would cover
medical expenses in the event of an accident.
41. The rebuttal evidence is found in paragraphs
8, 9, 10, and 12 of the Defendant's witness's sworn statement, as well as in
Exhibits D3 and D4. The Defendant's position is that it provided financial
assistance to the Claimant for N150,000.00
(one hundred and fifty thousand naira). Additionally, the NSIA Insurance
Company paid the Claimant an extra N150,000.00
(one hundred and fifty thousand naira) as insurance benefits. To demonstrate
their willingness to help, the Defendant also pledged further financial support
to the Claimant. However, the Defendant denied any promise to cover the
Claimant's medical expenses for an accident that occurred outside the scope of
his duties. Exhibit D3 is a letter dated 19th August 2015 from the Defendant’s
Managing Director to the Claimant, in which he expressed empathy for the
Claimant, wished him a speedy recovery, and enclosed a cheque for N300,000.00, Exhibit D4. As demonstrated
in this judgment, since the Claimant is claiming a specific amount, he bears
the burden of proving the sum claimed, as outlined in Sections 131(1) and
136(1) of the Evidence Act. To be successful in such a claim, the Claimant must
specifically plead the special damages, provide necessary details, and present
credible evidence to support the claim. The Claimant must demonstrate to the
Court how the amount claimed as special damages was calculated. As a result, a
claim for special damages can only succeed with strict proof of the specific
facts related to the claimed amount. This is because such damages are not
typically inferred from the nature of the act; they do not occur in the
ordinary course and are therefore exceptional in nature. Consequently, they
must be explicitly claimed and strictly proven. Please refer to the case of Galadima v. Yellah [2020]
LPELR-51971[CA] 23-24. In
the case of Dike
& Anor v. Kay Kay Construction Limited [2017] 14 NWLR (Pt 1584) 1 at
138-139, the Court of
Appeal held that a payment can be proved by any means, especially by production
of a receipt, which serves as prima facie evidence of payment. Furthermore, in Musa v. Christlieb Plc [2000]
12 NWLR (Pt 680) 145 at 155,
it was noted that a written receipt is not the sole means of proving a payment;
oral evidence from witnesses present during the transaction is equally valid. In
this case, the Claimant did not provide a medical bill for the amount claimed,
or any receipts to substantiate payment, or witnesses to confirm the payment of
N1,700,000.00. Since a party is
entitled only to his proven claims, I find as a fact that the Claimant has not
successfully established his claim for the additional medical bill of N1.7 million.
42. The
Claimant further claims N1,221,686.00
in unpaid pension, short-paid pension, and unpaid leave bonuses. The supporting
evidence is found in paragraphs 20, 22 to 27, and 29 of the Claimant’s sworn
statement, and Exhibit 5. The Claimant’s testimony is that the Defendant only opened a retirement
savings account for him in 2014, and his pension contributions were underpaid
until his employment ended in June 2020. From March to December 2013, the
Defendant under-remitted his pension contributions by N145,260.00 (one hundred and forty-five thousand, two hundred and
sixty naira). From January 2014 to September 2016, the Defendant failed to
remit N489,000.00 (four hundred and
eighty-nine thousand naira). His pension from September 2016 to July 2018 was
short-paid by N224,526.00 (two hundred
and twenty-four thousand, five hundred and twenty-six naira). Furthermore, from
July 2018 to December 2019, his pension was short-paid by N124,100.00 (one hundred and twenty-four thousand, one hundred
naira). From January to February 2020, the short payment amounted to N21,800.00 (twenty-one thousand, eight
hundred naira), and from March to June 2020, it totalled N72,000.00 (seventy-two thousand naira). Exhibit 5 is the
Claimant’s Stanbic IBTC Pension Manager’s RSA statement from 1st June 2016 to
31st December 2020, showing remittance from September 2016 to August 2020.
43. The
Defendant denied the Claimant’s allegations and stated in paragraphs 16[g] and
19 of its witness’s sworn statement that the Claimant’s employment was
confirmed on 10th October 2014, and that this fact was reflected in the pension
remittance. Furthermore, the Defendant claimed that it met its pension
obligations to the Claimant, relying on Exhibits D2 and D9. Exhibit D2
indicates that the Claimant’s employment was confirmed effective from 1st
September 2014, while Exhibit D9 shows that the pension remittance began in
September 2016. There is no explanation for the absence of pension remittances
from 1st September 2014 to August 2016. By Section 4[1] of the Pension Reform
Act, 2014, contributions for any employee to whom the Act applies must be made
at specified rates based on his monthly emolument: a minimum of 10% by the
employer and a minimum of 8% by the employee. The Claimant asserts that his
salary was N92,000 from September 2014
to December 2017, increased to N100,000
from January 2018 to December 2019, and further raised to N120,000 from January 2020 to June 2020, as detailed in paragraph 3
of the Claimant’s sworn statement. Exhibits 5 and D9 indicate that the
Claimant’s salary was inexplicably reported as N26,325 from September 2016 to June 2018, and N40,000 from July 2018 to May 2020. Given the totality of the
evidence presented, it is clear that there was a non-payment of the Claimant’s
pension from September 2014 to August 2016, as well as underpayment from
September 2016 to May 2020. Although the Claimant claimed there was an
under-remittance of his pension from March to December 2013 and non-remittance
from January 2014 to September 2016, the evidence shows that his pension
entitlement began on 1st September 2014, when his employment was confirmed.
Therefore, based on the evidence before me, I find that the Claimant has not
established any pension entitlement for the period from March 2013 to August 2014.
44. In
the claim regarding unpaid leave bonuses, the Claimant stated in paragraph 29
of his sworn statement that the Defendant failed to pay his leave bonuses for
2015, amounting to N45,000, as well as
for 2019 and 2020, totalling N100,000.
However, the basis for this claim is not clearly outlined in the Claimant's
pleadings and evidence. There is no provision in the employment contract,
referenced as Exhibits 13 and D1, that stipulates the payment of leave bonuses.
Additionally, there is unchallenged evidence that the Claimant was confined to
a hospital bed throughout 2015, rendering the claim for the 2015 leave bonus
untenable. Furthermore, there is no evidence that the Claimant had any approved
leave in 2019, nor are the conditions for the payment of the leave allowance
set out. The Defendant noted that the Claimant was hospitalised in 2015 and did
not take any leave, as stated in paragraph 21 of the Defendant's witness's
sworn statement. Although the Defendant did not address the 2019 and 2020 leave
bonus claim, it remains the Claimant's responsibility to demonstrate his
entitlement to the claimed leave bonuses. It is well established that in
resolving employment disputes, the Court will refer to the employment contract
and any other stipulations that may have been incorporated into it. The
employment contract serves as the foundation for any actions taken in the event
of a breach. The success of this case is entirely dependent on the terms agreed
upon, or those deemed to have been agreed upon, by both parties involved.
Relevant cases include Adekunle v. United Bank for Africa Plc [supra] and
Umera v. Nigerian Railway Corporation [supra]. The evidence presented is
insufficient to support the Claimant's claim.
In the
premises, the first issue for determination is resolved both negatively and
affirmatively.
Consideration of the reliefs
45. Relief one seeks a declaration that the conduct of the Defendant by
refusing to pay the Claimant his earned salary from January 2015 to January
2016 remuneration/salaries [sic] is inhuman, illegal, condemnable, and
therefore a flagrant breach of the contract of employment between the Claimant
and the Defendant. I found in this judgment that the Claimant is entitled to
his salary from January 2015 to December 2015, and that he has successfully established his entitlement
to N1,104,000.00 in unpaid salary. I
adopt my reasoning and conclusion in paragraphs 37 and 38 above, and hold that
this claim has been established, and it is granted.
49. Relief
five is for an order of this Honourable Court directing the Defendant to immediately pay to
the Claimant the sum of N1,560,000.00 [one
million five hundred and sixty thousand naira] and the sum of N550,000.00 [five hundred and fifty
thousand naira] being the unpaid field expenses to the Claimant and illegal
salary deduction from July 2019 to May 2020. I found in this judgment that the
deductions from the Claimant’s salary from August 2019 to May 2020, excluding
March 2020, are unlawful. Therefore, I hold that the Claimant is entitled to
payment of N500,000.00, which was
wrongfully deducted from his salary. I also found that the Claimant has not substantiated his claim for unpaid field expenses. I
adopt my reasoning and conclusions in paragraphs 34, 35, and 39 above, and hold
that this claim is partially
successful.
50. Relief six is for an order of this Honourable Court
directing the Defendant to immediately pay to the Claimant the sum of N2,229,000.00 [two million, two hundred
and twenty-nine thousand naira], being the hospital bill for the treatment of
the injury sustained during the accident. I found in this judgment that the accident did not occur in the course of the Claimant's
employment. I also found that the
Claimant has not successfully established his claim for the additional medical
bill of N1.7 million. Although the initial medical bill of N529,450.00 is not disputed, the finding
that the accident did not occur in the course of the Claimant's employment
means that the Claimant is not entitled to any further payment towards the cost
of his medical treatment beyond what the Defendant has offered. Therefore, I adopt my reasoning and
conclusions in paragraphs 36, 40, and 41 above, and hold that this claim has not
been established and it is hereby denied.
51. Relief seven seeks N3,000,000.00 [three million naira] as general damage for the
economic, emotional, and psychological strain the Claimant has been subjected
to by the illegal action of the Defendant. The
supporting evidence is contained in paragraph 32 of the Claimant’s sworn
statement, to the effect that the Defendant’s refusal to pay his entitlement,
underpayment of salary, non-remittance, and short-payment of his pension, have
caused him untold hardship and resulted in psychological and emotional strain.
General damages are granted at the Court's discretion and are intended to
compensate for losses caused by an adversary's actions, as seen in Nigerian
Railway Corporation v. Ojo [2021] LPELR-55971[CA] 40-41 and Ecobank
Nigeria Limited v. Saleh [2020] LPELR-52024[CA] 83-85. Where no injury is
established, damages will not lie. The basis of this claim is unclear. Some of
the Claimant’s claims for wrongful deductions from his salary, under-payment or
non-remittance of his pension, have been granted. Therefore, granting this
claim will amount to double compensation, which the law frowns at. As a result,
this claim is denied.
52. Costs generally follow
the event, and the successful party is entitled to his costs regardless of
whether these costs have been explicitly claimed, unless there are exceptional
reasons to deny them. This is supported by the case of Egypt Air Limited v.
Ibrahim & Anor [2021] LPELR-55882[CA] 35-36. The Court has broad
discretion to award costs, which must be exercised judiciously and with careful
consideration of the circumstances, as specified in Order 55, Rules 1 and 5 of
the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. When
determining costs, the Court considers factors such as the filing fees paid,
the duration of the case, the cost of legal representation, the value of the
naira at the time the expenses were incurred, and the current value of the
naira, as noted in Adelakun v. Oruku [2006] LPELR-7681[CA] 26-28. In
this case, the Claimant incurred about N49,140
in filing and service fees and attended these proceedings 11 times, being
represented by counsel on 12 occasions. The case spanned approximately 5 years.
After thoroughly considering all the facts and circumstances of this case, I
hold that the Claimant is entitled to the costs associated with this action.
Therefore, I award him N750,000 [seven
hundred and fifty thousand naira] in costs.
Issue two: Whether the Defendant is entitled to judgment on
the counterclaim?
53. The
counterclaims have been reproduced elsewhere in this judgment. A counterclaim
is an independent action, and the burden of proof rests on the Defendant to
demonstrate to the Court that it is entitled to judgment on its claims. This
principle is established in Sections 131 and 136 of the Evidence Act, as well
as in the cases of Faloyo v. Faloyo & Anor [2021] 3 NWLR (Pt 1762) 114 at
135 and Tyonex Nigeria Limited & Anor v. Pfizer Limited [2020] 1
NWLR (Pt 1704) 125 at 161. However,
the Defendant did not give evidence in support of the counterclaim, rendering
it abandoned. It is a trite law that pleadings do not constitute evidence. Thus,
the Defendant’s averments in its pleadings are not evidence. Since a
counterclaim is an independent action, the Defendant must establish the
counterclaim on a balance of probabilities to have judgment in its favour.
Please refer to A.C.B. Ltd & Ors v. Apugo [1995] 6 NWLR (Pt 399) 65 at
87 and Access Bank Plc v. Ogboja [2022] 1 NWLR (Pt 1812) 547 at 581.
Therefore, I hold that the
counterclaim having been abandoned, it is hereby dismissed.
Judgment is entered accordingly.
……………………………………….….
IKECHI GERALD NWENEKA
JUDGE
8/1/2026
Attendance: Claimant present, Defendant
absent
Appearances:
Caleb Ekene Onwe Esq., with M.A. Emediong
Esq. for the Claimant
Kene O. Mekah Esq. for the Defendant