IN THE NATIONAL INDUSTRIAL
COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE
JUSTICE O. Y. ANUWE
Dated:
2nd May 2024
SUIT
NO: NICN/ABJ/94/2022
Between:
Durojaiye Hassan - Claimant
And
Leadership Newspapers Group Ltd - Defendant
Representation:
Henry K. Eni-Otu, with him,
Maryam El-Yakub and Ruth Odimegwu for the Claimant
Ejikeme
Obiefuna for the Defendant
JUDGMENT
The
claimant instituted this suit by a Complaint filed on 18th March
2022. The claims of the claimant against the defendant are as follows:
1. A Declaration
that the Defendant has breached the claimant’s rights to wages and
salaries.
2. A Declaration
that the claimant is entitled to the salary arrears of N4,898,923.
3. A Direction
that the N2,000,000 deducted by the
claimant as lien for his unpaid salaries in the subsequent job sourced in his
personal capacity with the Kogi State Government be kept as part of his
outstanding salary arrears.
4. An Order
directing the Defendant to pay the sum of N2,898,923
as the outstanding salary arrears of the claimant less the N2,000,000 which was deducted as lien.
5. A Declaration
that the one-year salary waiver of N1,350,625
enforced on the claimant by the Defendant is unlawful.
6. An Order
directing the Defendant to pay the sum of N1,350,625
to the claimant.
7. A Declaration
that the deduction of N70,000 monthly
from the salaries of the claimant between August 2014 and January 2016
amounting to N1,190,000 is illegal and
abuse of privilege and powers.
8. An
Order directing the Defendant to refund the sum N1,190,000 illegally deducted from the claimant’s salaries.
9. A
Declaration that the freezing of the salary of staffs inclusive of that of the
claimant is illegal, unlawful and unacceptable.
10. An Order directing the Defendant to
repay the claimant’s salary for the six months wherein his salaries were
unjustly frozen as may be assessed by the Court.
11. A Declaration that the claimant be paid
his lawfully earned commission for the jobs he attracted to the Defendant from
June 2017 up to the date of filing this suit.
12. An Order directing the Defendant to pay
as commission to the claimant, the sum of N4,944,000
being 30% of the N16,480,000 that was
paid to the Defendant by the Kogi State Government for the advertisement job
that was attracted to the Defendant by the Claimant.
13. An Order directing the Defendant to pay
as commission to the claimant the sum of N4,128,000.00
being 30% of the N13,760,000.00 that
was paid to the Defendant by the Kogi State Government for the advertisement
job that was attracted to the Defendant by the claimant.
14. A Declaration that the non-remittance of
the income tax of the claimant which was deducted at source to the relevant tax
authorities is illegal.
15. An Order directing the Defendant to
forthwith remit the Personal Income Tax of the claimant for the entire 7 years
that he worked with the Defendant to the Federal Inland Revenue Services (FIRS)
and/or the Federal Capital Territory Internal Revenue Service (FCT-IRS). In the
alternative, an Order directing the Defendant to pay the Personal Income of the
claimant for the entire 7 years that he worked with the Defendant to him for
the further remittance of same to the Federal Inland Revenue Services (FIRS)
and/or the Federal Capital Territory Internal Revenue Service (FCT-IRS).
16. A Declaration
that the publication of disclaimer on the claimant by the Defendant is
malicious, spiteful, malevolent, grossly defamatory and impugns on the
character and integrity of the claimant.
17. An
Order directing the Defendant to pay to the claimant the Sum of N500,000,000 as General Damages for
defamation.
18. An
Order directing the Defendant to publish a retraction of the disclaimer on the
claimant in the Newspaper that was published by it, Leadership Newspaper, and
any other news media wherein the disclaimer was published to run for the same
number of days and pages the initial disclaimer was published.
19. An
Order directing the Defendant to write an unreserved apology to me and publish
same in two national dailies.
20. The
sum of N2,000,000 being the
cost of this suit.
21. 20%
on the judgment sum per annum until final liquidation of the judgment sum by
the Defendant.
CASE OF
THE CLAIMANT
In
proof of these claims, the claimant testified as the sole witness. His
evidence, which is in line with the facts pleaded in the statement of facts, is
as follows: The defendant is an incorporated company who employed him on 13th
October 2011 as Manager (Research and Market Intelligence) vide a letter of
employment dated 12th October 2011. His basic salary when he was
employed was the sum of N576,000 per
annum as well as N384,000 in allowances
all payable in arrears. He voluntarily resigned from the
employment of the defendant vide a letter dated 10th July 2017 and
his resignation was accepted vide a letter of acceptance dated 9th
July 2017. While in the employment of the defendant, he was promoted a number
of times and each promotion earned him increases in his salaries. His salary
rose up to N2,400,000 per
annum in June 2016 and to N4,200,000
per annum in December 2016. His last promotion was on 22nd March
2017 in which he was made the Group Adverts Director. His salaries for three
consecutive years were not paid despite having been due and payable in arrears
as envisaged from the letters of appointments. His nominal outstanding salary
owed is N4,898,923 based on the
Internal Memorandum dated 25th September 2017. The Defendant was in
the habit of deducting his salary for some alleged unpaid advert debt. This is
contained in different documents inclusive of a memorandum dated 6th
November 2014. The Defendant deducts N70,000
monthly from his salary from August 2014 up till January 2016. The total amount
that was deducted from his salary by the Defendant between August 2014 and
January 2016 is the sum of N1,190,000.
On 16th
May 2016, a letter of demand in respect of purported unpaid advert outstanding
from adverts of different individuals and agencies amongst others sourced and
attracted by him to the Defendant with threats of disclaimer and recourse to
recover same through a legal action. In their attempt to frustrate his rights
to pay, on 21st day of August 2014, he was issued an invoice of N354,375 as salary deductions from March
2014 to May 2014. In their attempt to further frustrate his rights to pay, on
27th May 2015, he was issued an invoice of N996,250 as salary deductions from August 2014 to May 2015. The
total amount that was deducted from his Salary between March 2014 and May 2015
is the sum of N1,350,625.
The
defendant willfully froze the salary of staff, including that of the claimant
for a period of six months. Since leaving the employment of the Defendant in
July 2017 up till date, he has made several requests for the payment of his
outstanding salary arrears but the request always fell on deaf ears. Despite his
Personal Income Tax being deducted at source, the Defendant has refused to
remit same to the relevant tax authorities. He got to know about the
non-remittance of his Personal Income Tax when he approached the Federal Inland
Revenue Services (FIRS) and the Federal Capital Territory Internal Revenue
Service (FCT-IRS) to ask for his tax clearance certificate and he was told that
he has no tax records with the FIRS for the past seven years.
After
resigning from the employment of the Defendant, he got a contract with the Kogi
State Government for the placement of adverts on national dailies. He decided
to make offer for the placement of the adverts with the Defendant, with an
agreement for commission, which on the agreement of both parties the paltry sum
of N3,000,000.00 was agreed for the
contract worth about N45,500,000. When
the N45,500,000 was paid into his
personal account, he transferred the sum of N39,500,000
to the Defendant in two installments and he withheld the sum of N3,000,000 as the agreed commission,
another sum of N1,000,000.00 as
approved by the Defendant's General Manager as facilitation fee to the
facilitator of the Contract and another N2,000,000.00
as lien for his outstanding lawfully earned and due salary arrears. Three
weeks after the perfection of the advertisement contract, the General Manager
of the Defendant called him to inform him that the Chairman of the Defendant
ask that he returns the commission and the amount taken as a lien so as for the
defendant to pay him. He requested that the offer for payment be made in
writing so as to enable him consider whether or not to accept same but the
Defendant refused to come up with any written offer. Rather, he was arrested by
officers of the Nigeria Police Force under the personal aides of the Chairman
of the Defendant. It took the intervention of his lawyer to secure his bail
from the Police custody.
He had
already sourced for advert, perfected same and contracted same with the
Defendant in respect to the two different contracts before his arrest that was
orchestrated by the Defendant. Immediately after his arrest, the Defendant
through its Chairman went behind him to collect the money from the client. The
amount collected by the Defendant for the transactions are N16,480,000.00 from Kogi State Government in an advert placement
contract and N13,760,000.00 from Kogi
State Government in another advert placement contract. The payment of
commission in sourcing for adverts in the media world is customary and a usual
practice. In a recent memorandum by the Defendant, the commission for sourcing
for advert placement is 30% of the paid sum. Based on the memorandum, his
commission for bringing the job to Leadership Newspaper is 30% of the sum paid.
Thus, he is entitled to the sums of N4,944,000.00
and N4,128,000 being 30% respectively
of the sums of N16,480,000 and N13,760,000.00 that was paid to the
Defendant by the Kogi State Government for the advertisement job that was
attracted to the Defendant by the Claimant.
From 13th
November, the Defendant has been publishing a disclaimer on him in its daily
Newspaper, Leadership Newspaper, continuously on daily basis. The disclaimer
was malicious and same was intended to impugn his character which it has
succeeded in doing. The continuous publication of the disclaimer has totally
tarnished his image in the News Media industry and made his ability to source
for advert placement in any Newspaper or media impossible. On the 14th
November 2017, he instructed his Solicitors in Pelumi Olajengbesi & Co to
write a demand letter to the defendant to, among others, desist from publishing
the disclaimer about him. Despite receiving the letter, the Defendant still
continued the publication of the disclaimer. Seeing that the disclaimer is
seriously denting his image, he asked his Solicitors to file this suit
immediately.
The
claimant tendered several documents in evidence. These documents were admitted
in evidence and marked respectively from Exhibit C1 to C17. In cross
examination by counsel for the defendant, the claimant further testified that he
was not paid 3 years salaries. This was 2014, 2015 and 2016 and he resigned in
2017. He was not singled out for non-payment and he cannot remember the exact
figure he was owed for the 3 years but it is contained in the documents before
the court. After he resigned in July, he went back to the company for his
salary and the account department did reconciliation and came up with Exhibit
C16. He confirmed that letters of demand were sent to him for the adverts
placed through him but it is not true that over N4,000,000 was demanded from him. The figures in Exhibit C8 are not
personal debts incurred by him but they are debts from adverts placed through
him. Pre-paid adverts are usually paid for before the adverts are published. His
salary was paid through the bank but the statement of his account is not before
the court. Exhibit C15 is from Leadership Newspaper and it was made after he
left the defendant. He still places adverts for Leadership on freelance basis
and he gets paid his commission. He had no written contract authorizing him to
place a lien on their money.
DEFENCE
OF THE DEFENDANT
The
defendant filed a defence to the suit and called one witness. The witness, DW1,
is one Samuel Kato. He said he is a staff of the Defendant and the Assistant
Manager, Special Project II. The evidence of DW1 is substantially a repetition
of the content of the statement of defence.
The statements he made in his evidence which have semblance of material
evidence are as follows: There is only one incorporated name known as
Leadership Group Ltd and not Leadership Newspapers Group Ltd. The Claimant was
only appointed to different positions and promoted once or twice based on
consideration outside what the Claimant averred. The
defendant is not indebted to the Claimant of his salaries in any sum. The
figures being claimed by the Claimant in the internal memo as the sum being
claimed was never the final figures as the memo was meant to move to other
designated departments for scrutiny, vetting, and approval which were not the
case here. The Defendant cannot be liable to the production of an untreated
internal memo which was not addressed to the Claimant and which can never be in
the form as presented by the Claimant. Any
reduction in the salary of the Claimant (if any) was duly communicated to him
and the reasons for that as well which the Claimant acknowledged and accepted
in good faith without any form of complaint.
The existence or non existence of salary ledger is within
Claimant's personal knowledge and he is expected to prove that strictly as he
has never denied being indebted to the Defendant as clearly shown over his own
process.
The internal
memo which was meant to be for the consumption of the staff dated 6th
November, 2014 only showed clearly that the Claimant started misbehaving less
than three years into the employment by refusing to remit the Defendant's funds
into the designated account and he never challenged or disputed any of such debts
contained therein. The Claimant never disputed any facts
contained in the said letter and equally, yet to satisfy the demands made
therein in full as he is still indebted to the Defendant. The
Defendant did not frustrate any efforts made by the Claimant in paying advert
debt he was owing to the Defendant as the Claimant had no authority to withhold
any money meant to be paid into the Defendant's account as he had ample time to
do so but never made any efforts contrary to his averments.
Whatever
figures the Claimant mentioned, assuming the figures are correct, were part of
the part payment of his unlawfully withholding advert money meant to be paid
into the Defendant's account without any form of delay. Nothing
shows that the letter was received in their office and that some officers are
designated to receive letters on behalf of the Defendant and their positions
must be clearly stated on the letter. DW1 stated further that he was informed by the Defendant's Counsel,
Ejikeme Obiefuna of these facts: That this Court only entertains disputes
arising from employer and employee relationship but the facts contained in
paragraphs 24 to 38 happened after the Claimant resigned from the employment of
the Defendant. As a result, the averments contained therein are not within the
jurisdiction of this Court. DW1 also said the Defendant had no
contract arrangement with the Claimant after he resigned from the Defendant's
employment. He also denied that the Defendant published any disclaimer on the
Claimant from the 13thNovember on a daily basis. The Defendant did not do anything or act in any malicious
way capable of impugning on the character of the Claimant or tarnishing his
image
In
cross examination, the questions put to DW1 by Counsel for the claimant are mostly
for the witness to confirm contents of some of the documents admitted in
evidence. In that pattern, DW1 confirmed that the title of Exhibit C1 is
Leadership Newspaper Group Ltd. He also confirmed Exhibit C6 does not show that
advert fees can be deducted from the claimant. He confirmed that Exhibit C1
does not authorize the defendant to freeze or stop the salary of the claimant
and that Exhibit C16 is the final entitlement of the claimant.
Upon
close of the cross examination of DW1, counsel for the defendant tendered a
document from the bar. It was admitted in evidence and marked Exhibit D1.
I have read the various final
written addresses of counsels as well as the defendants’ reply on points of
law. 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.
DECISION
In paragraph
2 of statement of defence, the defendant pleaded that there is only an
incorporated name known as Leadership Group Ltd and not Leadership Newspaper
Group Ltd. DW1 also said so in his evidence and during the trial of this suit,
counsel for the defendant tendered the certificate of incorporation of
Leadership Group Ltd in evidence from the Bar. The certificate is Exhibit D1.
In paragraphs 5.01 to 5.05 of the final address of the defendant, it was argued
by the learned counsel for the defendant that the body sued as defendant in
this suit, in view of Exhibit D1, is not a juristic person and as such this
court lacks the jurisdiction to entertain this suit. Counsel urged this court
to dismiss this suit for this reason. In response, learned counsel for the
claimant submitted, after referring to the name of the defendant as contained
in some of the documents tendered in evidence, that the defendant is a
recognized person in law and it is a proper party in this suit.
As submitted, rightly in my view, by
the learned counsel for the defendant, only natural persons and juristic or
artificial persons, such as bodies corporate or bodies created by statute, are
competent to sue and be sued before any law court. No action can be brought by
or against any party who is not a natural person or persons accorded legal
personality. See THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA
(DECEASED) vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 31; ABUBAKAR vs.
YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136; UNITED TIPPERS DRIVERS ASSOCIATION
(AKESAN BRANCH) vs. THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF
GOD (2016) LPELR - 40161 (CA). Therefore, an
action cannot be maintained against a defendant who is not a legal person.
Where it is clear that a defendant or any party to a suit is not a legal
person, the party must be struck out.
The
defendant in this suit, as expressed on the Complaint is “Leadership Newspapers
Group Ltd”. The contention of the defendant is that the defendant is not a
juristic person that can be sued because it is not an incorporated company.
According to the defendant, the body that was incorporated by virtue of Exhibit
D1 is “Leadership Group Ltd”. Now, the claimant averred in paragraphs 2 and 3
of the statement of facts that the defendant is an incorporated company who
employed him on 13th October 2011. The claimant also made several
averments showing that the person whom he sued as defendant in this suit is the
person liable for the claims he sought in the suit.
The
claimant’s employment letter is Exhibit C1. The heading of the letter indicates
that the name of the claimant’s employer is LEADERSHIP NEWSPAPERS GROUP LIMITED.
Exhibits C3, C4, C5, C6, C8 and C14a are letters written on letter head papers
of Leadership Newspaper. The letter head papers either mentions LEADERSHIP
NEWSPAPERS GROUP LTD or LEADERSHIP GROUP LTD. Exhibits C13a, C13b, C13c, C14b
and C17 are cash receipts issued by Leadership Newspaper. The receipts indicate
the name of the organization as LEADERSHIP NEWSPAPERS GROUP LIMITED. These
exhibits show that there is a registered body called LEADERSHIP NEWSPAPERS
GROUP LTD. More so, these documents were issued by the defendant confirming that
its name is LEADERSHIP NEWSPAPERS GROUP LTD.
From
the averments of the claimant and his evidence, the person who employed him, whom
he related with and who his cause of action is against is the named defendant
in this suit. Although the defendant contends that the defendant is not
juristic, DW1 said in paragraph 1 of his deposition that he is a staff of the
defendant. Further in his evidence, DW1 clearly confirmed that the named
defendant is the person who is involved with the complaints of the claimant in
this suit. That is to say the defendant
knows itself to be the one who has an employment relationship with the
claimant, and is also the one involved in the disputes or the complaints or the
claims of the claimant in this suit.
From
the various letters of the defendants tendered in evidence, it shows that the
defendant is a limited liability company in the name it was sued in this suit. I
am convinced that the defendant is a juristic person and competent to be sued
in this suit.
During
the evidence of the claimant, leave was granted to the counsel for the defendant
to argue his objection to the admissibility of the documents marked Exhibits
C14, C15, C16 and C17 in the final written address. I have seen the grounds of
objection to the admissibility of the documents and the arguments of learned
counsel for the defendant in the final written address of the defendant. I have
also read the arguments in reply contained in the claimant’s final written
address. I will not belabour the issues. The documents in question have been
pleaded by the claimant. The documents are also relevant to the case of the
claimant. I am therefore inclined to retain them in evidence and consider their
evidential value to the case of the claimant. Accordingly, the objections of
the defendant to the admissibility of the specified documents are overruled.
I will
now consider the case. The claimant sought several claims in this suit. I will
examine each claim in line with the evidence adduced by the claimant to see
whether he is entitled to all or any of the claims. Before I proceed, let me
observe that reliefs 1, 2, 5, 7, 9, 11, 14 and 16 sought by the claimant are
declaratory claims. The claimant has the burden to prove the declaration sought to the satisfaction of the court. The law is
trite that declaratory reliefs are not granted even on admission by the defendant
or on the weakness of the defendant’s case. See ADDAH vs. UBANDAWAKI
[2015] 7 NWLR [Pt. 1458] 325; DUMEZ
NIG. LTD vs. NWAKHOBA [2008] 18 NWLR [Pt. 1119] 361. Accordingly, the burden of proving the above claims, as
well as all other claims sought in this suit, rests on the claimant. See Sections
131 and 132 of the Evidence Act 2011. See also UMEOJIAKO vs. EZENAMUO [1990] 1 S.C. 239.
The claimant sought these claims in reliefs 2, 3 and 4:
2. A declaration that the claimant is
entitled to the salary arrears of N4,898,923.
3. A direction that the N2,000,000 deducted by the claimant as
lien for his unpaid salaries in the subsequent job sourced in his personal
capacity with the Kogi State Government be kept as part of his outstanding
salary arrears.
4. An order directing the Defendant to pay
the sum of N2,898,923 as the
outstanding salary arrears of the claimant less the N2,000,000 which was deducted as lien.
The evidence he adduced in respect of these claims is that while he
was in the employment of the defendant, he was promoted a number of times and
each promotion earned him increases in his salaries. His salary rose up to N2,400,000 per annum
in June 2016 and to N4,200,000 per
annum in December 2016. His last promotion was on 22nd March 2017,
in which he was made the Group Adverts Director. His salaries for three
consecutive years were not paid despite having been due and payable in arrears
as envisaged from the letters of appointments. He said his nominal outstanding
salary owed is N4,898,923 based on the
Internal Memorandum dated 25th September 2017. He continued that
after resigning from the employment of the Defendant, he got a contract with
the Kogi State Government for the placement of adverts on national dailies. He
decided to make an offer for the placement of the adverts with the Defendant
and it was agreed between him and the defendant that his commission was the sum
of N3,000,000 from the contract sum of
about N45,500,000. The contract sum of N45,500,000 was paid into his personal account
and he transferred the sum of N39,500,000
to the Defendant but he withheld, among others, the sum of N2,000,000.00 as lien for his outstanding or unpaid salary.
On his
part, DW1 said the defendant is not indebted to the Claimant in arrears of salaries
in any sum, and the figures being claimed by the Claimant in the internal memo
as the sum of his arrears of salary was not the final figure because the memo
was meant to move to other departments for scrutiny, vetting, and approval
which were not done. DW1 also testified that the Defendant cannot be liable to
the production of an untreated internal memo which was not addressed to the
Claimant and which can never be in the form as presented by the Claimant.
The claimant has sought a declaration that he is
entitled to salary arrears of N4,898,923.
All he said about this sum in his evidence is that his salaries for three
consecutive years were not paid despite having been due and payable in arrears
as envisaged from the letters of appointments, and that his nominal outstanding
salary owed is N4,898,923 based on the
Internal Memorandum dated 25th September 2017. The sum claimed as
arrears of salaries, from his evidence, accrued for 3 years but the claimant
failed to tell the court which years were the 3 years in which his salaries
were not paid. The claimant also failed to explain how the sum of N4,898,923 accrued as unpaid salaries for
3 years. He simply said his salary rose up to N2,400,000 per annum in June 2016 and to N4,200,000
per annum in December 2016. He did not adduce evidence to show how the arrears
of his salary amounts to N4,898,923.
The
claimant seems to rely on the Internal Memorandum dated 25th
September 2017 to found his claim for arrears of salary in the sum of N4,898,923. This internal memo is Exhibit
C16. The defendant admits the internal memo but said the memo did not go
through the process for its approval and being an untreated memo, it cannot
bind the Defendant.
The memo
is from Assistant Manager, Personnel and Admin to the Director Human Resources
on the final entitlements of the claimant. It contains a breakdown of the
claimant’s final entitlement and stated in its opening paragraph that the breakdown
of the claimant’s final entitlements is for “approval”. The defendant has now
said that the memo was not treated or approved. The claimant has not shown in
this case that the memo or the breakdown of his entitlements in the memo
received the required approval. The claimant did not also produce any letter
addressed to him by the defendant stating the sum of his entitlement or salary
arrears to be as stated in the Memo as to suggest that the defendant approved
the memo or confirmed the sum now being claimed by the claimant. The
implication of these missing facts is that the claimant cannot place reliance
on the memo in his claim for arrears of salaries.
In
cross examination, DW1 confirmed that Exhibit C16 is the final entitlement of
the claimant. Assuming, based on this evidence of DW1, that the memo was
approved by the defendant, does it prove the claim of the claimant to arrears
of salary in the sum of N4,898,923? I
do not think so. The computation or particulars of the claimant’s entitlements
contained in the memo were not pleaded by the claimant. That is not all. The computation or breakdown of the entitlements in the memo
bringing the total entitlement to the sum of N4,898,923 is not only arrears of salary.
The breakdown include pension and leave allowances. Again, the arrears
of salary included in the breakdown are only for some months in 2015, 2016 and
2017 and not for “three consecutive years” as claimed by the claimant. I also
see in the memo that, although the total sum of arrears of salary, pension and
leave allowances is the sum of N4,898,923,
there is an advert debt amounting to the sum of N3,872,272.16 against the claimant. The
computation includes a subtraction of the debt from the entitlement, leaving
the balance of N1,026,651. While the
claimant relied on the memo for the arrears of his salaries, he did not dispute
the advert debts the memo said he owed. Having examined Exhibit C16, it is my
view that it does not prove the claimant’s claim to arrears of salary in the
sum of N4,898,923.
Consequently,
and in view of the foregoing, the claimant has failed to prove the declaration
he sought in relief 2 to the satisfaction of the court. The claimant claimed
reliefs 3 and 4 on the basis of the declaration he sought in relief 1.
Believing that the defendant is indebted to him for arrears of salary in the
sum of N4,898,923, the claimant
withheld the sum of N2,000,000 from the
money meant for the defendant. He said the N2,000,000,
was a lien on his unpaid salaries and wanted the court to sanction his action
as part recovery of arrears of his salaries in his claim in relief 3. The
claimant subsequently claims the balance of N2,898,923
in relief 4. Having failed to prove that he is entitled to salary arrears of N4,898,923, reliefs 3 and 4 sought by the
claimant lack merit and similarly fail as a result.
In
reliefs 5 and 6, the claimant sought a declaration that the one-year salary
waiver of N1,350,625 enforced on him by
the defendant is unlawful and an order directing the defendant to pay him the
sum of N1,350,625. I examined the
averments and evidence of the claimant carefully but I cannot find any where he
pleaded or said in his evidence that the defendant enforced a one-year salary
waiver of N1,350,625 on him. Where he
mentioned the sum of N1,350,625 in his
pleading and evidence is when he said the total sum of N1,350,625 was deducted from his salary between March 2014 and May
2015. What the claimant pleaded and said in his evidence is that the sum was
deducted from his salary. But what he claims is that the same sum was salary
waiver enforced on him by the defendant for one year. The claimant cannot make
a claim suggesting that the defendant waived salary payment to the claimant but
what he pleaded or said in his evidence, purporting to be in respect of the
same claim, is that the sum was deducted from his salary. Both the claim and
averments are conflicting and the implication is that the facts pleaded by the
claimant and his evidence with respect to the sum of N1,350,625 does not support the claim in reliefs 5 and 6.
Consequently, the claimant has failed to plead facts or adduce evidence to
establish the claims in reliefs 5 and 6.
Despite
the non-correlation between the pleaded facts and the claims in reliefs 5 and
6, I also find that the claimant was unable prove that he is entitled to a
refund of the sum of N1,350,625 which he
said was deducted from his salaries. His case is that there was a demand letter
dated 16th May 2016 served on him demanding payment for unpaid
advert. The claimant said in the attempt to frustrate his right to pay, on 21st
August 2014, he was issued an invoice of N354,375
as salary deductions from March 2014 to May 2014 and on 27th May
2015, he was issued an invoice of N996,250
as salary deductions from August 2014 to May 2015. He said the total amount that was deducted from his Salary between
March 2014 and May 2015 is the sum of N1,350,625.
This is the sum he sought the order in relief 6 for the defendant to pay him.
The
letter dated 16th May 2016 is Exhibit C8. In the letter, the
defendant stated that the claimant has the sum of N4,539,654.23 as unpaid advert debt as at 26th May 2016.
DW1 said the claimant never disputed any facts contained in the said letter and
he is yet to satisfy the demands made therein in full as he is still indebted
to the defendant. DW1 further said the
defendant did not frustrate any efforts made by the Claimant in paying advert
debt he was owing to the defendant. The evidence of DW1 disclosed that the
claimant was indebted to the defendant for adverts.
From the
evidence of the claimant, it will seems that it was after the demand letter in Exhibit
C8 that the deductions were done from his salaries. I observe however that Exhibit
C8 was written on 16th May 2016 and received by the claimant on 25th
May 2016. Meanwhile, the invoices for salary deductions were issued on 21st
August 2014 and 27th May 2015. The invoices are Exhibits C13a and
C17 respectively. Clearly, the invoices were not issued nor were the deductions
done on the basis of the demand in Exhibit C8, which was later in time to the
invoices.
Now, Exhibits
C13a and C17 were issued to the claimant while he was still in the defendant’s
employment. He received them. He saw therein that his salaries were to be
deducted to the tune of the sums stated in the invoices. He also saw that the
deduction was meant as payment for published adverts. The claimant has not told
the court that he protested the deductions at the time. I have also not heard
him say in this case that he was not liable to pay for the published adverts
for which Exhibits C13a and C17 were issued to him. He did not also say he was
not indebted to the defendant to the sums stated in the invoices. When he said
in his evidence that it was in the defendant’s attempt to frustrate his right
to pay the debt demanded from him that he was issued the invoices of deductions
from his salary, I find this evidence as a confirmation that he was indeed
indebted to the defendant for published adverts. Having not denied being
indebted to the defendant to the sums contained in Exhibits C13a and C17, being
sums deducted from his salaries as debt he owed for published adverts, I cannot
fault the defendant in deducting the debt from his salaries. The result is that
the claimant failed to prove that the deduction of the sum of N1,350,625 from his salaries was unlawful.
From both
the angles I have examined the claims in reliefs 5 and 6, I find that the
claimant has failed to prove the claims.
Another
claim of the claimant is his claim for payment of monies deducted from his
salaries. In paragraphs 13, 14 and 15 of the statement of facts, the claimant
averred that the defendant was in the habit of deducting his salary for some
purported unpaid advert debt as contained in different documents inclusive of a
memorandum dated 6th November 2014. He said the Defendant deducts N70,000 monthly from his salary from August
2014 up till January 2016. The total amount that was deducted from his salary
by the Defendant between August 2014 and January 2016 is the sum of N1,190,000. The claimant pleaded a salary
ledger showing the deductions from his salaries. The claimant gave evidence of
these facts. Hence, in reliefs 7 of his claims, the claimant sought a
declaration that the deduction of N70,000
monthly from the salaries of the claimant between August 2014 and January 2016
amounting to N1,190,000 is illegal and
an abuse of privilege and powers. And in relief 8, he sought an order directing
the Defendant to refund the sum N1,190,000
deducted from his salaries.
Responding
to the allegations of the claimant, the defendant pleaded in paragraphs 8, 9
and 10 of the statement of defence that the averments in paragraphs 13, 14 and
15 of the statement of facts are denied but any reduction in the salary of
the Claimant (if any) was duly communicated to him and the reasons for
deduction was acknowledged and accepted in good faith without any form of
complaint by the claimant. The defendant further averred that the existence or
non-existence of salary ledger is within the Claimant's personal knowledge and
the claimant has never denied being indebted to the Defendant. It was
further averred by the defendant that the internal memo dated 6th
November, 2014 was meant to be for the consumption of the staff and it only
showed that the Claimant started misbehaving less than three years into the
employment by refusing to remit the Defendant's funds into the designated
account, and the claimant never challenged or disputed any of such debts
contained therein. These averments were repeated in the evidence of DW1.
Relief
7 is a declaratory relief. The burden of proof of the claim is strictly on the
claimant. In addition, the defendant did not admit deducting N70,000 from the claimant’s monthly salary
in the said period, thus requiring the claimant to establish his claim. The
claimant did not plead the statement of the account where his salary is paid
and he did not tender any such statement of account in evidence. In cross
examination, the claimant said his salary was paid through the bank but the
statement of his account is not before the court. What he relied upon in this
claim are a memorandum dated 6th November 2014 and a salary ledger
showing the deductions from his salaries. I have examined the documents
tendered in evidence by the claimant but I cannot find any document in the form
of a ledger showing the deductions from his salaries from August 2014 to
January 2016. However, Exhibit C10 is the memorandum dated 6th
November 2014 which he referred to.
Exhibit
C10 is an internal memo to the claimant dated 6th November 2014. The
claimant was informed that the GED has directed that the sum of N70,000 be deducted from his monthly
salary for debts due on some mentioned adverts. The memo only said a directive
has been given for the deduction of the sum of N70,000 from the claimant’s monthly salary. The memo is not the
evidence of the actual deduction from the claimant’s salaries. The memo did not
also mention the effective time of the deduction or the period over which the
deductions will cover. In my view, Exhibit C10 did not prove that the sum of N70,000 was deducted from the claimant’s
monthly salaries from August 2014 to January 2016.
The
evidence from which to ascertain the alleged deductions from his salary is the
statement of his salary account. The claimant failed to produce it before the
court. Again, although the claimant claims that the sum of N70,000 was deducted from his salaries from August 2014 to January
2016, he told the court in cross examination that he was not paid any salary at
all for 3 years, being the years 2014, 2015 and 2016. This evidence contradicts
his evidence in chief and renders his allegation of deduction from his salary
in the same period unbelievable. In any event, I find that the claimant failed
to prove his allegation of deduction of N70,000
from his monthly salaries from August 2014 to January 2016. The implication is
that the declaration and the order sought in reliefs 7 and 8 were not proved.
The
claimant also alleged that the defendant willfully froze the salary of staff,
including his own, for a period of six months. He relied on the notice, being
an internal memo, issued by the defendant for
that purpose. For this reason, the claimant sought a declaration that the
freezing of his salary and that of other staff is illegal, unlawful and then he
sought an order directing the defendant to pay his salary for the six months in
which salaries were frozen. See reliefs 9 and 10. The defendant denied this
allegation of the claimant in paragraph 14 of the statement of defence
effectively putting the claimant to prove that the defendant froze his salary
or the salary of other staff for a period of six months.
Although
the claimant stated that 6 months’ salary was frozen, he failed to mention the
particular months or the year in which his salary was frozen. The claimant
pleaded an internal memo issued by the
defendant to notify staff of the freezing of salary but he failed to tender it in
evidence. The claimant did not also tender his statement of account, which
could show the sequence of payment or non-payment of his salaries, in evidence.
The
result is that the claimant failed to prove that the defendant, whether for 6
months or at any time, froze his salary. Reliefs 9 and 10 have not been proved.
All the above claims I have considered are with regards to claims
for salaries of the claimant. Having determined the claims, it takes me to
relief 1 sought by the claimant where he sought a declaration that the Defendant
breached his rights to wages and salaries. In view of the
outcome of all his claims relating to salaries, I hold that the claimant has
failed to prove this claim also.
The
claimant’s case also includes claim for payment of commission as contained in
reliefs 11, 12 and 13. The reliefs are these:
11. A declaration that the claimant be paid
his lawfully earned commission for the jobs he attracted to the Defendant from
June 2017 up to the date of filing this suit.
12. An Order directing the Defendant to pay
as commission to the claimant, the sum of N4,944,000
being 30% of the N16,480,000 that was
paid to the Defendant by the Kogi State Government for the advertisement job
that was attracted to the Defendant by the claimant.
13. An Order directing the Defendant to pay
as commission to the claimant the sum of N4,128,000.00
being 30% of the N13,760,000.00 that
was paid to the Defendant by the Kogi State Government for the advertisement
job that was attracted to the Defendant by the claimant.
In his statement of facts as well as in his evidence, the claimant
stated that after resigning from the employment of the Defendant, he got a
contract with the Kogi State Government for the placement of adverts on
national dailies. He decided to make an offer for the placement of the adverts
with the Defendant, with an agreement for commission, which both parties agreed
to be the sum of N3,000,000. The
claimant also referred to a recent memorandum by the Defendant wherein the
commission for sourcing for advert placement is 30% of the paid sum. The
claimant said he sourced for 2 adverts from Kogi State Government, perfected them
and contracted them with the Defendant. However, the defendant went behind him
to collect the money from the client. The amount collected by the Defendant for
the transactions are N16,480,000.00
from Kogi State Government in an advert placement contract and N13,760,000.00 from Kogi State Government
in another advert placement contract. Based on the memorandum, his commission
for bringing the job to the defendant’s Newspaper is 30% of the sum paid. Thus,
he is entitled to the sums of N4,944,000.00
and N4,128,000 being 30% respectively
of the sums of N16,480,000 and N13,760,000.00 that was paid to the
Defendant by the Kogi State Government for the advertisement job that was
attracted to the Defendant by him.
The
defence of the defendant to these allegations of the claimant is that the above
facts happened after the claimant had resigned from the employment of the defendant,
and that the defendant did not have any contract arrangement with the claimant
after he resigned from the defendant’s employment. To this extent, the defendant
contended that this court does not have jurisdiction over the instant claims of
the claimant.
From
the evidence of the claimant, it is clear that he resigned from the employment
of the defendant on 10th July 2017. His resignation letter is Exhibit
C2. It is also clear from his evidence that it was after he had resigned from
the defendant that he had the new arrangement with the defendant for placement
of adverts and payment of commission. In his words, the claimant said it was after resigning from the employment of the Defendant that he
got a contract for the placement of adverts on national dailies and he decided
to make the offer for the placement of the adverts with the Defendant. He and
the defendant agreed for payment of commission in the sum of N3,000,000 to him. It is further clear from
his evidence that the placement of advert offer he made to the defendant and
the agreement for payment of commission was a new contract entered into between
the claimant and the defendant. This new contract was not an employment
contract but a simple contract.
Thus, the
advert placement contract he brought to the defendants upon which his claims in
reliefs 11, 12 and 13 are based came about after he ceased to be an
employee of the defendant. That is to say the contract from which reliefs 11,
12 and 13 arose was not an employment contract and was unconnected
with or arose from contract of employment between the parties.
In Section 254C (1) a] of the Constitution of the Federal Republic
of Nigeria 1999 (as amended), the jurisdiction of this court extends over
matters or causes “relating to or connected with any labour, employment, trade unions,
industrial relations and matters arising from workplace, the condition of
service, including health, safety, welfare of labour, employee, worker and
matters incidental thereto or connected therewith.” Having considered
reliefs 11, 12 and 13 sought by the claimant and the facts on which they are
based, I find that this aspect of the claimant’s suit is not related to or connected with labour or employment
matters spelt out in the above provision. These claims of the claimant arose
from simple contract outside an employment contract. As such, this court lacks
jurisdiction to entertain or determine the claims. Accordingly, reliefs 11,
12 and 13 are struck out.
In relief 14, the claimant sought a
declaration that the non-remittance of his income tax which was deducted at
source to the relevant tax authorities is illegal. Then in relief 15, he sought
an order directing the Defendant to remit his 7 years Personal Income Tax to
the Federal Inland Revenue Services (FIRS) or to the Federal Capital Territory
Internal Revenue Service (FCT-IRS). In the alternative to relief
15, the claimant sought an order directing the Defendant to pay his 7 years
Personal Income Tax to him so that he can remit same to the Federal Inland
Revenue Services (FIRS) or to the Federal Capital Territory Internal Revenue
Service (FCT-IRS).
In his pleadings
and well as in his evidence, the claimant said despite the fact that his
Personal Income Tax was deducted at source, the Defendant refused to remit same
to the relevant tax authorities. He got to know about the non-remittance of his
Personal Income Tax when he approached the Federal Inland Revenue Services
(FIRS) and the Federal Capital Territory Internal Revenue Service (FCT-IRS) to
ask for his tax clearance certificate and he was told that he has no tax
records with the FIRS for the past seven years he worked with the defendant. The
defendant simply denied these allegations of the claimant without more. See
paragraph 16 of the statement of defence.
Relief
14 is a declaratory claim. As usual, the claimant has the burden to prove the
claim. In the claim, the claimant alleged the deduction of his Personal Income
Tax [hereinafter referred to as “PIT”] from source, that is from his salaries,
for a period of 7 years and non-remittance of the deducted PIT to either the
Federal Inland Revenue Services (FIRS) or the Federal Capital Territory
Internal Revenue Service (FCT-IRS). To establish the declaration sought, the
claimant is first required to prove that sums were deducted from his salaries
as PIT. It is after succeeding in this aspect he will proceed to prove that the
deducted sums were not remitted to the relevant tax authority.
First
of all, the claimant did not mention the amount that was being deducted from
his salary every month for over 7 years as PIT by the defendant. Then, I
examined the documents tendered in evidence by the claimant, especially his
employment letter which is Exhibit C1, to see whether the breakdown of his
monthly or per annum salary include deductions for PIT. I cannot find anywhere in
the documents where the breakdown of his monthly or per annum salary is stated.
In other words, none of his employment documents he put in evidence disclose that
PIT is deductible from the claimant’s salary. Again, the claimant did not
produce his pay slips for the 7 years period or any pay slip in the said period
to the court for the court to see whether PIT was being deducted from his
salaries. To worsen his case, the claimant did not produce the statement of his
salary account in evidence. The claimant did not present any evidence before me
to show that any sum was deducted from his salaries over the period of 7 year
as PIT.
The
failure of the claimant to prove deduction of PIT from his salaries implies
that he failed to prove non-remittance of PIT to the tax authorities. Let me
add that the allegation of non-remittance of his PIT to the tax authorities was
based on what he said he was told. He said he approached the FIRS and the FCT-IRS
to ask for his tax clearance certificate and he was told that he has no tax
records with them. This evidence is not cogent enough to conclude that the
defendant, if at all it was deducting PIT from the claimant’s salaries, did not
remit same to the FIRS or the FCT-IRS. When the FIRS and the FCT-IRS told the
claimant that he had no tax records with them, that is not sufficient evidence
required from the claimant to prove that the defendant did not remit the
claimant’s PIT.
Consequently,
I do not find sufficient evidence to grant the declaration and the order sought
by the claimant in reliefs 14 and 15.
Another
aspect of the claimant’s case is where he said the defendant has been
publishing a disclaimer on him in its Leadership Newspaper continuously on
daily basis. The claimant said the disclaimer was malicious, intended to impugn
his character and the publication of the disclaimer has totally tarnished his
image in the News Media industry and made his ability to source for advert
placement in any Newspaper or media impossible. He also stated that the defendant
continued to publish the disclaimer which is seriously denting his image
despite the letter from his solicitors to the defendant demanding the defendant
to desist from publishing the disclaimer about him. On the basis of these
facts, the claimant sought reliefs 16, 17, 18 and 19. I will repeat the reliefs
here for purpose of clarity:
16. A declaration that the publication of
disclaimer on the claimant by the Defendant is malicious, spiteful, malevolent,
grossly defamatory and impugns on the character and integrity of the claimant.
17. An
Order directing the Defendant to pay to the claimant the Sum of N500,000,000 as General Damages for
defamation.
18. An Order
directing the Defendant to publish a retraction of the disclaimer on the
claimant in the Newspaper that was published by it, Leadership Newspaper, and
any other news media wherein the disclaimer was published to run for the same
number of days and pages the initial disclaimer was published.
19. An Order
directing the Defendant to write an unreserved apology to the Claimant, and
publish same in two national dailies.
From
the facts and the reliefs sought, it is clear that this aspect of the case of
the claimant is a claim in defamation. Cases based on defamation are purely under the common law of tort. The causes or subject matters
which this court can entertain are as spelt out in Section 254C of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) and it does
not include actions in tort of defamation. See AKPAN vs. UNIVERSITY OF CALABAR (2016) LPELR-41242[CA]. The Court
of Appeal recently made this pronouncement in ECOBANK (NIG). LTD vs. IDRIS (2021) LPELR-52806[CA], where the Court of Appeal held that in view
of the subject matter jurisdiction of this court, as spelt out in Section
254C[1], [2] and [3] of the 1999 Constitution, cases or matters which border on
tort of defamation is not one of the items. The court further held that even if
the tortuous action happened in the course of the employment, it cannot be used
to expand the jurisdiction of the court beyond its jurisdictional scope in Section
254C[1], [2] and [3] of the 1999 Constitution. In this case, the claimant was
no longer an employee of the defendant when the disclaimers were published.
From the foregoing, it is my view therefore that this court lacks
jurisdiction to entertain the claims in relief 16, 17, 18 and 19 as they relate
to tort of defamation. Consequently, the claimant’s reliefs 16, 17, 18 and 19
are hereby struck out.
The
last claim of the claimant is for the sum of N2,000,000
as cost of this suit and interest at 20% per annum on the judgment sum until
final liquidation by the Defendant. see reliefs 20 and 21. In view of the
failure of the claimant to prove the main claims in this suit, these claims
equally fail.
In the
final result of this suit, reliefs 12, 13, 14, 15, 16, 17, 18 and 19 are struck
out while reliefs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 20 and 21 are dismissed.
Parties
shall bear their respective costs.
Judgment
is entered accordingly.
Hon.
Justice O. Y. Anuwe
Judge