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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

 

DATE:  THURSDAY 4TH JULY 2024                           

SUIT NO: NICN/LA/191/2020

 

BETWEEN

UDOM UFOK OBOT                                                                                           CLAIMANT AND

COMMUNICATION NETWORK SUPPORT SERVICES LTD               DEFENDANT

 

Representation:

U. Inyang with Emmanuel Ubong-Abasi and O. Oloyede for the Claimant

Olurunke Adeyemi with Babajide Ogundele for the Defendant

 

JUDGMENT

 

Introduction and Claims:

1.   The Claimant commenced this suit by via Complaint on 1st July 2020, claiming the following reliefs:

 

1.     An ORDER of this Honourable Court directing and compelling the Defendant to pay to the Claimant all his entitlement by way of emolument salaries and allowances in the sum of N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) Less N459,350.00 (Four Hundred & Fifty-Nine Thousand, Three Hundred and Fifty Naira only).

 

2.     The total of about N582,250.00 (Five Hundred and Eighty-Two Thousand, Two Hundred and Fifty Naira Only) being deducted yet unremitted pension contributions

 

3.     An ORDER of this Honourable Court directing and compelling the Defendant to pay the Claimant the sum of N10,000.000.00 (Twenty Million Naira) being the agreed ancillary legal cost incurred by the Claimant as a result of this action which the Defendant undertook to pay.

 

4.     20% interest per annum on judgment sum from date of judgment until payment.

 

2.  By a Memorandum dated 22nd July 2020, and filed on 23rd July 2020, the Defendant entered an appearance to the suit and filed its Statement of Defence on 23rd July 2020.  The Defendant also filed a Notice of Preliminary Objection on the same date.  The Claimant filed a Reply to the Statement, but however, led no evidence in proof of the averments contained therein.  Trial commenced on 20th July 2022.  The Claimant testified for himself and was cross examined.  During the examination in chief, the Claimant tendered thirteen exhibits admitted and Marked Exhibits C1, C2, C3, C4, C5, C6, C6a, C6b, C6c, C7, C8, C9 and C10 respectively: 

 

1.     Claimant’s Contract of employment dated 5th June, 2007 – Exhibit C1

2.     Review of remuneration, terms and conditions of employment dated 1st April, 2009                                                                          – Exhibit C2

3.     Staff Hand Book 2010                                            – Exhibit C3

4.     Notice of redundancy dated 3rd May, 2019       – Exhibit C4

5.     Letter of commendation dated 25th April, 2018          - Exhibit C5

6.     Claimant’s Payslips                                               – Exhibit C6(a-c)

7.     Stanbic IBTC pension Managers statement of account - Exhibit C7

8.     Defendant’s cheque to Claimant                            - Exhibit C8

9.     Claimant’s Solicitors letter of demand dated 27th June 2019 – Exhibit C9(a-b)

10.Professional fees receipt                                          - Exhibit C10

 

3.  The Defendant called one witness; Olumuyiwa Ogunjuwon, the Defendant’s corporate affairs manager.  The DW was cross examined.  During his evidence in chief, he tendered three documents, marked as exhibits D1 to D3:

 

1.      Staff Handbook 2016                                 -           Exhibit D1

2.      Claimant’s Payslips                                                            -           Exhibit D2

3.      Computation of terminal benefits          -           Exhibit D3

 

The parties argued the preliminary objection at the last date of trial; 30th November 2022.  It was agreed that the ruling on the objection be taken along with judgment in the main suit.  Parties adopted their final written addresses on 14th June 2024 and the matter adjourned for judgment.

 

THE CASE OF THE CLAIMANT

4.  The Claimant was employed by the Defendant as a Civil Works Artisan on salary grade level 10 and had been a staff of Defendant since 2007 and remained a staff of the Defendant until May, 3rd 2019.  The Claimant was dedicated, loyal and discharged his responsibilities in the utmost professional manner for which he received several commendations. The Claimant was surprised on May, 3rd 2019 when he was handed a notice of redundancy with a promise that his final entitlement will be paid upon his handover of all company properties in his possession. The Claimant dutifully complied with the terms of redundancy letter by handing over all company properties but was surprised when his final entitlement was to be paid and the sum represented on the cheque was not properly computed. The Claimant was handed a cheque in the sum of N459,350.00 (Four Hundred & Fifty-Nine Thousand, Three Hundred and Fifty Naira only) out of N1,041,600 (One Million, Forty-One Thousand, Six Hundred Naira) that should minimally be due to him by the Defendant.  Going by the records whilst the Claimant was in employment as at 2015, the Claimant had earned up to N130,000.00 (One Hundred and Thirty Thousand Naira monthly remuneration as per his pay slip for the month of December 2014 and December 2015.   The Claimant noticed as at 31st January 2019 that the Defendant had deliberately reduced his salary to net rounded N86,800.00 (Eighty Six Thousand, Eight Hundred Naira) perhaps, in anticipation of declaring him redundant to avoid higher severance payment. The Claimant also noticed that his total pension remittances were not fully remitted to the pension managers as at when due. The Claimant states that he is entitled to about N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) as his final severance package and also the immediate remittance of all the outstanding yet to be remitted pension contributions.  When the Defendant refused to pay what was due to the Claimant after all entreaties, the Claimant through his solicitor caused a demand letter to be served on the Defendant. In the demand letter, the Claimant noted that in view of the small amount involved, the immediate payment by the Defendant will mitigate avoidable litigation cost.  By acknowledging and receiving the said letter the Defendant undertook without reservation to bear the professional fees and consequential cost associated with the litigation to recover the said sums.

 

THE CASE OF THE DEFENDANT

5.   The Defendant raised a preliminary objection to the hearing of this suit by the Honourable Court on the grounds:

 

1.                  That this Honourable Court lacks jurisdiction to entertain the suit.

2.                  That this action is an abuse of court process and liable to be dismissed.

3.                  That the reliefs are ungrantable in law and the suit academic in nature

4.                  That the suit is procedurally unripe.

5.                  That it is in the overall interest of justice to grant this application.

 

6.  In the alternative, the Defendant in defence of the action stated that Claimant was employed as Assistant Technician via letter referenced CNSSL/CEO/LGS/PERS_Ol dated 5th June 2007. The employment was later reviewed and the Claimant became a Civil Work Artisan. The Claimant had several disciplinary issues in the course of his employment with the Defendant Company, one of which was a street fight that earned him police caution and for which he had to undergo internal disciplinary action which eventually led to a two-week suspension from duty on 28th of November 2008. The Defendant invested huge sums of money in providing the Claimant with various training which saw him from a low-level roadside worker up to being certified as a Civil Work Artisan. Further, while in the employment of the Defendant, the Claimant enjoyed the rights and privileges of contract which included but not limited to staff training, free medical services for self and family, full insurance coverage, overtime and premium time payment, staff loan and advances, annual leave allowance, reward bonuses and end of year generous bonuses etc. The Claimant's end of service benefits was calculated in line with his contract and in accordance with the company's revised subsisting Condition of Service Edition 06, 2016 for which the Claimant is very much aware of.  As part of the Defendant Company's periodic strategy review, on 1st of April 2009, the Defendant reviewed the terms of employment of the Claimant and all his colleagues and he received a review of his remuneration, terms and condition of employment via a letter with reference number CNSSL/Pers/Cor/00178/09 dated 1st April, 2009 to which he fully agreed. The Claimant's contract was terminated on 3rd of May 2019 via a letter referenced CNSSL/GCEO/HR/00178/2019 on grounds of redundancy as a result of the end of a major contract which caused the Company to reorganize in accordance with the reality of the end of contract on which the Claimant was engaged.

 

7.   The Defendant further states that the Claimant is in breach of Clause 6 of the said review of his remuneration, terms and condition of employment which states that contract dispute will be referred to arbitration in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18 LFN 2004 as he never considered arbitration before commencing this action. Clause 5 of the same review of remuneration, terms and condition of employment states that the Company reserves the right to change the terms and conditions of the Contract and that the employee undertakes to accept such modified terms and conditions as are made from time to time and the Claimant throughout his contract did not raise any objections to those terms. Between October 2018 and April 2019 the Claimant received a gross salary of Ninety Nine Thousand, One Hundred and Fifty Four Naira, Ninety One Kobo only (N99,154. 91). The Claimant being a field Artisan in a maintenance crew had a job that required him along with his team to work sometimes overtime. The variations in his monthly salaries arise from overtime worked and paid. The claim that the Claimant earned a fixed monthly salary of One Hundred and Thirty Thousand Naira only(N130,000.00) is false as the figures of his monthly take-home is a combination of salary and overtime hours depending on the number of call out within the month. Record shows that at no point in time did the Claimant earn a GROSS salary of above N99,154.91 with no overtime. His earnings were N99,154.91 plus varying overtime hours. In a sample review of the Claimant's pay slips between October 2018 to April 2019 (seven months duration) at no time did the Claimant earn a fix gross salary of N130,000.00 as claimed. The Claimant's monthly gross before overtime and Christmas bonus for every December is N99,154,91 constant. The difference, as seen in the net pay of the pay slips attached by the Claimant is due to variations in the number of overtime hours and the end of year bonuses. The claim as given by the Claimant in pay slips for December 2014, 2015 and 2016 as attached in the document is not a true reflection of his earnings because the Company usually pays end of year bonus in December to all categories of staff and contractors. In January 2019 there was a general rearrangement in the company's pay structure wherein the basic salary, transport allowance, housing allowance and medical allowance were restructured. The review, however, had no impact on the total gross payment payable to all staffs, the Claimant inclusive, as his gross payment remained constant at N99,154.91 after the review. The Company remits payment of pension as and when due and conducts reconciliation with the pension administrators from time to time. Upon receipt of the cheque in settlement of his entitlement, the Claimant signed an indemnity letter on 24th June 2019 wherein he confirmed that he has received all the entitlement due to him following the cessation of his contract with the Defendant and does not have claims, rights, or entitlements whatsoever against the Defendant whether civil or criminal, at common law, under any statute or in tort arising out of or in connection with his employment with the Defendant. The Defendant states that mere receipt of the letter from the Solicitors to the Claimant does not amount to an admission to pay any damages and prays the Court to dismiss this suit with substantial cost for being frivolous, premature, gold digging and being an abuse of Court process.

 

SUBMISSIONS ON BEHALF OF THE PARTIES

8. The Defendant raised two issues for determination, to wit;

 

1.                  Whether the suit is ripe for hearing.

2.                  Considering the facts and circumstances of this case, whether the Claimant has proved his case and is entitled to all the reliefs sought.

 

9.  On issue one “whether the suit is ripe for hearing”, the Defendant submits that the Claimant under the same ‘Revised Subsisting Service of Condition’ which he rightfully tendered, and hoped to use in proving his case, was bound by Clause 6 of the said agreement to make sure all disputes bordering on contractual disputes be first and foremost referred to Arbitration via the Arbitration and Conciliation Act, Cap A 18 LFN 2004 and as a result, the instant action as presently constituted is procedurally unripe for failure of the Claimant to submit first to arbitration as ensconced in the Clause 6 of exhibit C2 signed by both parties herein. On issue two “considering the facts and circumstances of this case, whether the Claimant has proved his case and is entitled to all the reliefs sought”,  The Defendant submits that the Claimant has not established his case and is not entitled to the reliefs sought.

 

10.  The Claimant first argued the issue raised in the preliminary objection on the jurisdiction of this Court to hear this suit, in view of the arbitration clause.  The Claimant submits that this Court has exclusive jurisdiction to entertain every matter between employers and employees as seen in section 7 National Industrial Court Act, 2020 and that parties cannot enter into any contractual arrangement to oust the jurisdiction of the Court.  The Claimant argues that the agreement between the Parties is encapsulated in Exhibit C1 and during the existence of Exhibit C1, the Defendant unilaterally issued Exhibit C2 dated 1st April 2009, in which document the Defendant unilaterally smuggled in an arbitration clause.  The Claimant submits that assuming without conceding that Parties were ad idem on exhibit C2, that the Claimant caused exhibit C9 to be issued and served on Defendant, giving the Defendant sufficient notice and time to exercise their right to refer the matter to arbitration, yet they chose to treat it with levity. The Claimant submits that the Claimant cannot turn around to be heard complaining about the non-reference of this matter to arbitration.  The Claimant also asserts that there are other claims in this suit, not covered by exhibit C1 for which this Court should exercise jurisdiction. 

 

11.  In relation to the substantive suit, the Claimant submits three issues for determination:

 

1.      Whether the Claimant has made out a case to support claims for N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) terminal entitlement.

 

2.      Whether or not the Claimant has made out a case for N582,250.00 (Five Hundred and Eighty-Two Thousand, Two Hundred and Fifty Naira Only) unremitted but deducted pensions contributions.

 

3.      Whether or not the Claimant has made out a case for the sum of N10,000.000.00 (Twenty Million Naira) being an undertaking by the Defendant as agreed ancillary legal cost associated with recovery of the terminal benefits from Defendant.

 

12.   On issue one, the Claimant submits that the Defendant has admitted  that he was paid N99,154.91 and that if multiplied by 12 years being the number of years he worked i.e N99,154.91 x 12 = N1,189,858.92 applying exhibit C3 instead of exhibit D1, which the Claimant challenged as being inadmissible.  He urged the Court to enter judgment in his favour for the sum of N1,189,858.92 on admission.  The Claimant also challenged exhibit D2 (pay slips) because it shows that though it is pay slip for April 2019, it was printed on 22nd July 2020, after being doctored by the Defendant.  On issue two; whether or not the Claimant has made out a case for N582,250.00 (Five Hundred and Eighty-Two Thousand, Two Hundred and Fifty Naira Only) unremitted but deducted pensions contributions, the Claimant submits that he has proved his entitlement to this relief by exhibits C7 and C9, being the printout for his pension managers account showing monthly deductions/remittances of pension contributions and a demand letter showing the table of years itemizing unremitted deductions.  On issue three, the Claimant submits that by the Defendant ignoring exhibit C9, it accepts full responsibility and undertakes to be fully responsible for all associated ancillary cost including Solicitors fees as incurred. 

13.  In her Reply on Points of Law, the Defendant responded to the Claimant’s address on the preliminary objection that while it is conceded that an arbitration clause cannot oust the jurisdiction of the Court, it is equally trite that being a clause embedded in a contract between the parties, no Court would merely gloss over it as the parties are bound by their contract. On Claimant’s issue one, the Defendant replied that exhibit C3 had been replaced by exhibit D1and therefore exhibit C3 is no longer applicable.  The Defendant further submits that the fact that exhibit D1 was printed on particular day does not mean it was prepared on that day.  On issue three, the Defendant submits that the Claimant failed to give the legal authority to his submission that an undertaking can be imputed to the Defendant for failure to respond to an unfounded claim and her choice not to be provoked by a threat.

 

 

COURT’S DECISION

14.  I have considered the processes filed in this suit, the evidence of the witnesses called by the parties, the exhibits tendered and the submissions of Counsel.  I set the following issues down for determination:

(i)               Whether this Court has jurisdiction to hear this suit for failure of the parties to first refer this matter to arbitration?

(ii)            Whether exhibit C3 or D1 are applicable to the Claimant.

(iii)          Whether the Claimant is entitled to the reliefs he seeks in this suit?

 

15.  Issue one is raised to determine the preliminary objection raised by the Defendant.  The Defendant’s argument is that by Clause 6 of exhibit C2, the parties to this suit agreed that any dispute or disagreement arising between the parties, as to the construction or performance of this contract or any matter arising out of or concerning the same shall be settled amicably by the parties and if the dispute remains unresolved then it shall be referred to Arbitration in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18 FN 2004.  The Claimant on the hand contends that the parties cannot agree to oust the jurisdiction of the Court, and that in any case, the Defendant failed to refer the dispute between the parties, after receiving Claimant’s Solicitors letter (exhibit C9) wherein the Claimant demanded that the Defendant comply with his request or face Court action.  The Claimant also challenged exhibit C2 on the ground that Clause 6 was unilaterally inserted by the Defendant and therefore not binding on the Claimant.

 

16.  I do not agree with the Claimant that Clause 6 of exhibit C2 was stolen into it.  This is because it is the Claimant that tendered exhibit C2, as the document regulating his employment.  Exhibit C2 is clearly signed by the Claimant.  He relies on the salary stated in exhibit C2 for his claim and stated expressly that the terms and conditions of his employment was reviewed.  The Claimant cannot take some part of exhibit C2 and reject some.  There is no doubt that exhibit C2 and the terms and conditions contained therein, apply to the Defendant.  In Clause 6 of exhibit C2, the parties agreed that:

 

any dispute or disagreement arising between the parties, as to the construction or performance of this contract or any matter arising out of or concerning the same shall be settled amicably by the parties and if the dispute remains unresolved then it shall be referred to Arbitration in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18 FN 2004.

 

17.  I have considered the above provision of exhibit C2.  In as much as parties are bound by their agreement, it is to be noted that this Court is now hesitant to refer parties to arbitration under the Arbitration and Conciliation Act.  That Act being applicable to commercial disputes, is not best suited for employment disputes in the light of the ILO position on labour.  "Labour is not a commodity" is the principle expressed in the preamble to the International Labour Organization's founding documents. It expresses the view that people should not be treated like inanimate commodities, capital, another mere factor of production, or resources or as items of commerce.  However, it needs to be noted that where parties agree on arbitration under other conditions, outside the Arbitration and Conciliation Act, this Court can and do refer the parties to arbitration. In accordance with their agreement.  Further, assuming the clause 6 was to be applicable, yet, the parties failed to stipulate how the reference is to be made; thus making it vague.  In all, I find that the clause 6 of exhibit C2, cannot be applied in this suit, as to adjudge this suit, as premature.  The Preliminary Objection therefore fails.

 

19.  Issue two “Whether exhibit C3 or D1 are applicable to the Claimant.”  Claimant relies on exhibit C3 in the computation of his entitlement, while the Defendant relies on exhibit D1.  Exhibit C3 is the Defendant’s staff handbook 2010.  The Claimant states that exhibit C3 was given to him upon his employment.  Exhibit D1 is also the Defendant’s Staff Handbook second edition of 2016 which the Defendant asserts is the revised subsisting Condition of Service Edition 06, 2016 for which the Claimant is very much aware.  The Claimant did not give any evidence in rebuttal that he was not aware of exhibit D1.  During the tendering of the document, the Claimant objected to the admissibility of exhibit D1, on the ground that it is a copy and that he will further address the objection in his final written address.  The Claimant restated the objection to exhibit D1 on the ground that:

 

Exhibit D1, a photocopy of a document purported to be the Defendant’s handbook 2016 edition. Claimant objected to Exhibit D1 as it offends the provisions of Section 88 Evidence Act 2011 and does not fit into any of the exceptions provided for and listed in Section 89 of Evidence Act 2011 and we urge the Court to reject same.

Defendant witness, DW 1, did not lay foundation where the original copy is. This is a document produced by the Defendant and a printed copy is expected to be provide for and handed to each of their staff, including even the witness, DW 1, but they could not produce, not even one original copy.

20.  At the point of tendering exhibit D1, the DW stated that it was a copy and that the original was with the Managers.  I agree with the Claimant’s Counsel’s argument that the Defendant’s reason for tendering a copy of the Defendant’s handbook of 2016, is not one of the grounds for admitting a copy of a document, instead of the original.  The Defendant is the owner and maker of exhibit D1, her failure to bring the original or give cogent reasons why it could be brought, leaves much to be desired.  Exhibit D1 is hereby discountenanced.

 

21.  Issue three “Whether the Claimant is entitled to the reliefs he seeks in this suit?  To resolve this issue, I shall take the Claimant’s reliefs seriatim:  Relief one is for “ An ORDER of this Honourable Court directing and compelling the Defendant to pay to the Claimant all his entitlement by way of emolument salaries and allowances in the sum of N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) Less N459,350.00 (Four Hundred & Fifty-Nine Thousand, Three Hundred and Fifty Naira only).  The fact of Claimant’s employment from June 2007 and exit in May 2019; is not in contention.  Therefore, that he has put in 12 years of service is also not in dispute.  The Claimant’s evidence is that he is owed the sum N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) as he earns upwards of One Hundred and Thirty Thousand Naira Only (N130,000.00) as his gross salary. However, from the evidence before the Court, it is doubtful that that was Claimant’s salary, for him to use it in computing his entitlement.  The Claimant tendered pay slips for December 2014 and December 2015 as evidence that his salary is N130,000.00l; yet, only December 2015 has N130,000.00 as Claimant’s net salary rounded.  The pay slips tendered show that some items are not constant; for example, over time pay and end of year pay, which is paid only in December.  The Claimant has disparaged the Defendant’s pay slips as concocted.  I choose to agree with the Claimant to discountenance whatever amount is suggested by the Defendant, as Claimant’s net pay. Relying only on exhibit C6, tendered by the Claimant, the Claimant has not proved that his salary was N130,000.00.  Since this is what the Claimant used to arrive at the sum of N1,041,600.00 (One Million, Forty-One Thousand, Six Hundred Naira only) claimed, it means this relief is not proved, and is hereby refused. 

 

22.  Relief two is for “The total of about N582,250.00 (Five Hundred and Eighty-Two Thousand, Two Hundred and Fifty Naira Only) being deducted yet unremitted pension contributions”.  The Claimant tendered Exhibit C 7 and Exhibit C 9 being the printout from his pension managers account showing monthly deductions/remittances of pension contributions and a demand letter showing the table of years itemizing unremitted deductions.  In Exhibit C9 on page 2 thereof, the Claimant presented tabulated years and dates showing unremitted pension deductions, beginning from 2007 - 2019 year by year. To support this position, the Claimant tendered Exhibit C7 being the Stanbic IBTC Pensions Account printout given to Claimant to corroborate the table showed on page 2 of Exhibit C 9.  The Defendant on the other hand argues that pension is paid based on a schedule, as and when due, and that the Defendant is not withholding this benefit from the Claimant.  This issue can only be resolve by reference to exhibit C7 which is the Claimant’s Stanbic IBTC Pensions account printout, and comparing it to the summary presented by the Claimant, in exhibit C9.  Going through exhibit C7, I see entries for seven months in 2007 remaining five months, as stated by the Claimant in exhibit C9.  There are entries for eleven months in 2013 leaving out one month as stated by the Claimant in exhibit C9.  There are only two entries for 2016, leaving out ten months as alleged by the Claimant in exhibit C9.  There are no entries for years 2017 and 2018 and only two entries for 2019 leaving two months in 2019; the Claimant having been terminated in May 2019.  The Defendant, short of saying that it paid the Claimant’s pension, led no evidence to show it paid for these months.  This relief is however proved.  However, the amount represented in the relief is not definite and cannot be granted as presently couched.    The Defendant is ordered to calculate and pay to the Claimant, the deducted and unremitted pension contributions, for the period found above.   This is to be done not later than 30 days from date of judgment; failure, the Claimant is to calculate and present to the Defendant not later than 60 days from this date of judgment.  Interest on the sum will accrue after 30 days of its being presented to the Defendant.  

 

23.  Relief three is for “An ORDER of this Honourable Court directing and compelling the Defendant to pay the Claimant the sum of N10,000.000.00 (Twenty Million Naira) being the agreed ancillary legal cost incurred by the Claimant as a result of this action which the Defendant undertook to pay.  The Claimant has not led convincing evidence that the sum of N10,000.000.00 (Twenty Million Naira) was agreed as ancillary legal cost incurred by the Claimant.  This relief fails.

 

Only relief two succeeds.  Cost of this suit is set at N500,000.00 in favour of the Claimant.  Judgment is entered accordingly.

 

 

 

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji