IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA
THIS 17TH DAY OF JULY, 2024 SUIT NO: NICN/LA/249/2023
BETWEEN
EMEYA PATRICK EHIAMETALOR
- CLAIMANT
AND
HERITAGE BANK
- DEFENDANT
PARTIES
Parties are absent.
LEGAL REPRESENTATION
F. C. Mbagu Esq for the Claimant
Okechukwu Okereke Esq for the Defendant
JUDGMENT
By an Originating Summons dated and filed on 24th August,
2023, the Claimant sought the answers to the following questions to be
determined by this Honourable Court;
1. Whether the failure of the Defendant to abide by the terms of contract
of employment as provided in paragraphs 5.4.3.1 and 5.4.3.3 of its Human
Capital Policy Manual constitutes a breach of the contract.
2. Whether, if the answer to issue 1 above is in affirmative, the Claimant
is entitled to reliefs sought.
The claimant whereof seeks the following reliefs;
1. An Order of the defendant to pay the sum of N8,000,000 (Eight Million
Naira) only to the claimant in general damages and/or compensation.
2. In alternative, pay the sum as would be fairly and reasonably adjudged
by the court.
3. Cost of action of N2,000,000 (Two Million Naira)only
The originating summons is supported by a 17 paragraphs affidavit
deposed to by Emeya Patrick Ehiametalor
(the claimant), three exhibits attached and an accompanying written address by
learned counsel.
The Defendant filed a memorandum of appearance and a counter affidavit
of 23 paragraphs deposed to by Chijioke Osaka, on 19th February,
2024, which is attached and marked as Exhibits A-E, and written address of
learned counsel, wherein the following issues were raised for determination;
1. Whether there is a legal basis of the claimant’s claim.
2. Assuming without conceding that there was any such legal basis, whether
the Claimant is entitled to take the benefit of paragraphs 5.4.3.1 and 5.4.3.3
of the Human Capital Policy Manual and then turn around to claim under
paragraphs 5.4.3.1 a d 5.4.3.3 of the same manual?
On 7th June, 2024 counsel for the parties adopted their
respective written addresses in the course of hearing and the matter was
adjourned to today, hence this judgment. Let me begin by looking into the
submissions and arguments canvased by the defence counsel before going into
that of claimant’s counsel in this judgment.
SUBMISSION OF DEFENCE COUNSEL
Learned counsel submitted that Human Capital Manual Policy of the
Defendant is not a contract between the Claimant and the Defendant for which
the Claimant can claim enforceable rights. It is settled law that the contract
of employment and terms contained therein will be the bedrock of an employee’s
claim against the Defendant. Counsel cited the case of Olufeagba v.
Abdul-Raheem (2009) 18 NWLR (pt. 1173). In the instant case, counsel
contended that the Company’s Policy cannot be a term of employee’s employment
unless it was incorporated by reference. The claimant did not produce his
contract of employment to determine whether the Human Capital Policy Manual was
incorporated by reference or not.
Counsel further submitted that by Section 167(c) of
the Evidence Act 2011, “evidence which could be and is not
produced would if produced be unfavourable to the person who withholds.” The
burden of proving the existence of a contract existence of the contract
incorporating the Human Capital Policy Manual on which the Claimant relies,
falls on him and in the instant case, the condition for that burden to shift
has not been made. The Manual Policy is only a Policy and does not confer any
obligation or duty on any party. The claimant and defendant are mot ad idem.
Counsel cited the case of Ogbonna v. K.S.D. & P. Co. Ltd (2014) 11
NWLR (pt. 1417) 185.
It is the submission of counsel that the claimant having disengaged
from the services of the Defendant and accepted his disengagement advice has
absolutely no further right of action against the Defendant as the contract of
employment has come to an end. This action is therefore not within the
contemplation of the jurisdiction of this Court as provided in Section 2t4 of
the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Counsel further submitted that assuming without conceding that this
Honourable Court has jurisdiction and the Human Capital Manual Policy is part
of the claimant’s contract of employment, the Claimant’s action lacks merit and
should be dismissed. That same policy provides alternative remedy where a
Status Car was not available. He
referred to paragraphs 5.4.3.1 and 5.4.3.3 of the Policy Manual and paragraph
14 of the counter affidavit. The Clamant cannot after receiving the alternative
remedy while in employment, turn around after leaving the employment to demand
that the other alternative benefit be given to him without showing from the
policy that both benefits are required to be given to him contemporaneously.
The policy expressly states that “fuel and maintenance allowance”
should be paid to the Claimant alternatively until a Status Car is provided.
Counsel while adumbrating in his oral argument maintained that they
seek to rely on the 23 paragraphs of the counter affidavit deposed to by
Chijioke Osaka and the 5 Exhibits attached which they marked as Exhibits
A,B,C,D and E. Counsel maintained that the claimant do not have a course of
action against the defendant and that they are contesting the jurisdiction of
the court. He further maintained that the claimant has already reaped his
benefit and does not need to have a second bite as he has resigned and has been
paid his benefits. Counsel urged this court to dismiss the originating summons
with substantial cost.
SUBMISSION OF CLAIMANT’S COUNSEL:
Learned counsel submitted two issues for determination in his written
address in support of the originating summons, to wit:
1. Whether the failure of the Defendant to abide by the terms of the
contract of employment as provided in paragraphs 5.4.3.1 and 5.4.3.3 of its Human
Capital Policy Manual constitutes a breach of the contract.
2. Whether if the answer to issue 1, above is in the affirmative, the
Claimant is entitled to the reliefs sought.
Counsel submitted that the operative word in paragraph 5.4.3.1 of the
Defendant’s Human Capital Policy Manual is “entitled”. Paragraph
5.4.3.3 of the said policy serves as an alternative purpose and underscores
the importance of the earlier provision. The Canon rules of interpretation is
that words or contents of documents should be given its literal and ordinary
interpretation, so far, such words or content is not ambiguous. Counsel
referred to the case of Mortgage PHB Ltd v. STI Co. Plc (2016) 6 NWLR
(pt. 1509) 465 CA. It is the submission of counsel that the wordings in
the provisions of the Defendant’s Human Capital Policy Manual, which forms part
of its terms of employment are simple and unambiguous, therefore, should be
given its literal and ordinary interpretation. This implies that the Claimant
having been an employee of the defendant at a managerial level, ought to have
been given a status car as a matter of the legally binding terms of employment,
which the defendant breached the terms of employment. He cited Abayomi v.
SAA-Tech Nig. Ltd (2020) 1 NWLR (pt. 1106) 453 CA.
Counsel cited the case of DHL INT’L NIGERIA LTD Vs EZE-UZOAMAKA 2020 16
NWLR PT 1751P445 in his effort to define the term “CONTRACT” as the court held
“A contract is a legally binding agreement between two or
more persons whereby rights and duties are acquired by one party in return for acts or forbearance on the part
of the other” Counsel went further to state from the same case what a breach of
the contract constitue.
Learned counsel further submitted on issue 2 that by Section 19 (d) of
the NIC Act; “this court may where necessary, make any appropriate order,
including an award of compensation or damages in any circumstances contemplated
by this Act or.... dealing with any matter the court has jurisdiction to hear.”
By the above provisions, this court has the power to grant reliefs,
award compensation or damages in a matter it has jurisdiction to adjudicate.
Reliefs in form of damages flow naturally as a consequence of a breach of
contract. The law is well settled that where two parties have made a contract
which one of them has broken, the damages which the other party ought to
receive in respect of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally from such breach of contract
itself, or such as may be reasonably be supposed to have been in contemplation
of both parties at the same time they made the contract as the probable result
of it. See GE Int’l Operations Nig.
Ltd v. Q-Oil & Gas Services Ltd (2016)10 NWLR (pt. 1520) pg 304.
It is the submission of counsel that in the instant case, the value of
the status car which was N20,000,000.00 (Twenty Million Naira) was meant to be
amotized for a period of five years. He
referred this court to para.5.4.3.5 of the Human Capital Policy Manual. In
other words, the claimant would have paid the sum of N4,000,000.00 (Four
Million Naira) annually for the amortized period of five years. The claimant
left the employ of the defendant after two years of having been promoted to a
manager, so he would have been paid N8,000.000.00 (Eight Million Naira) within
that the two years of his stay if the defendant had not breached the terms of
employment. Nonetheless, the claimant had to make alternative arrangement to
commute to work at his own expense and inconvenience.
Counsel further submitted that the principle of assessment of damages
for breach of contract is restitution in integrum, that is to say the plaintiff
in so far as money can do it shall be restored into the position in which he
would have been if the breach did not occur. See GE INT’L OPERATIONS
(NIG) LTD Vs Q-OIL & GAS SERVICES LTD (2016) 10 NWLR PT 1520 PG 304
(Supra).
OPINION OF THE COURT
I have carefully read through all the processes filed and listened to
the arguments of both parties. I have similarly read the questions
raised by the Claimant in the Originating Summons and looked into the relevant
provisions of the instruments in question and the cases cited in the written
addresses, and I’m of the view that the issue for determination for this suit
is;
“Whether or not upon the consideration of the questions formulated for
determination, the Claimant is entitled to the reliefs sought”.
The crux of the claimant’s case is that the Claimant resigned from the
employment of the Defendant at a managerial level. The claimant alleged that
pursuant to the Defendant’s Human Capital Policy Manual, he was entitled to a
Status Car while in the employment of the Defendant as it forms part of the
terms of employment that upon employment or promotion of an employee to the
position of a senior manager, such employee shall be paid a monetary sum
equivalent to the value of such car. He was not given a Status car neither was
he paid the monetary sum in lieu as stipulated under the contract of
employment. Other employees from manager grade level during the time of the
service of the Claimant to the Defendant were given a new Toyota Avensis car
which market value was N20,000,000 (Twenty Million Naira) only as Status car in
line with the terms of agreement.
In resolving issue 1, I find it apposite to state that the resolution
of the question before the court hinges on the interpretation of paragraphs
5.4.3.1 and 5.4.3.3 of the Defendant’s Human Capital Policy Manual, if it
constitutes a breach of contract.
See the case of BFI Group Corporation v. Bureau of Public
Enterprises (2012) LPELR-9339(SC) where the Supreme Court held:
“It has been stated and restated in a number of decided authorities
that in the interpretation of contracts or documents, the basic principle of
law, is that, it is not the duty of any court or Tribunal to make contract for
parties. See; Fakorede & Ors. V. Attorney General of Western State (1972) 1
All NLR 178 at 189. Contracts as a rule are made by the parties thereto who are
bound by the terms thereof and the courts are always reluctant to read meaning
into a contract terms on which there is no agreement. See Alhaji Baba v.
Nigeria Civil Aviation Training Centre & Anor (1995) 5 NWLR (Pt.192) 388 at
413; (1991) 7 SCNJ 1. In other words, a court or Tribunal cannot write a new
contract for the parties.” Per ARIWOOLA, J.S.C
Before resolving the issue, it is pertinent to state that the questions
formulated by claimant’s counsel for this court to answer are basically
questions of law as it is the contention of counsel by the provisions of
paragraphs 5.4.3.1 and 5.4.3.3 reproduced below;
Paragraph 5.4.3.1- Employees on grade level Manager- Senior Manager
will be entitled to one official/status car as approved for applicable employee
grades.
Paragraph 5.4.3.3- Eligible employees shall be provided with amounts
equivalent to the value of the status car, as approved for applicable employee grades, and shall be
granted liberty to purchase (in liaison with corporate services) any car of
their choice within the fixed limit.
It is imperative to note that the amount a manager will be given is
based on the value of the status car as provided in paragraph 5.4.3.2 thus;
“The Bank shall place a fixed amount per grade as value for status car.
The ‘value of car’ shall be as determined by the Executive Management and
approved by the Board.”
Furthermore, paragraph 5.4.3.5 states as follows; “the value of
the car shall be amortized over a period of five years. Employees shall be
entitled to another car after the 5 years amortisation period.”
By the above paragraph, where a status car was provided for an entitled
employee, it was subject to be repaid for over a period of 5 years. The
Claimant who is no longer in the employment of the Defendant is not in a
position to repay the value of the car “over a five year period as provided in
the Defendant’s Human Capital Policy Manual.
Paragraph 5.4.3.6 states thus; “The ownership of the vehicle
shall be with the Bank and the Bank will be responsible for bearing the cost of the purchase and the
insurance policy.”
It should be noted that from the provision of paragraph 5.4.3.6, the
ownership of the status car is with the Bank. Therefore, the employee is only
entitled to the car during his employment with the Defendant, as the defendant
is the owner of the car.
By Paragraphs 5.4.3.11 and 5.4.3.12 it is provided that:
“Fuel and Maintenance allowance will be paid monthly to employees who
are entitled to status vehicle.
“In the event that upon assumption of duty a status car has not been
provided such employee will be entitled to a fuel and maintenance allowance
until a car is provided for the employee.”
Paragraphs 5.4.3.11 and 5.4.3.12 of the Human Capital Policy Manual
quoted above in view answer the questions for determination as posited by the
Claimant in the instant case. Arising from these provisions above, the claimant
cannot claim for a status car after his resignation from Defendant’s employment
as he was paid monthly, for fuel and maintenance allowance. Since the
official/status car is not an outright benefit to the Claimant, he is not in a
position to claim for it having exited the services of the Defendant.
There is no evidence before the court to show that the Defendant’s
Human Capital Policy Manual was incorporated into the claimant’s contract of
employment.
The Claimant alleged in Paragraphs 10 & 11 of the affidavit in
support of the originating summons as follows:
“That during my time of service to the defendant, other employees of
manager grade level upon promotion or employment were given a new Toyota
Avensis as a status car in line with our terms of employment which market value
was N20, 000, 000.00 (Twenty Million Naira).
“That the value of the car was to be amortized over the period of five
years according to the terms of employment.
Nevertheless, the Claimant did not prove the said paragraph, neither
was there any evidence in support of his claim before the court.
From the foregoing provisions, question one is determined in the
negative. The defendant did not breach
the terms of the contract of employment as provided in paragraphs 5.4.3.1 and
5.4.3.3. The claimant is not entitled to a Status Car after resignation from the
employment of the Defendant. He was paid monthly for fuel and maintenance
allowance as stipulated in paragraph 5.4.3.11 and 5.4.3.12. I agree with the
submissions of the defence counsel.
On question two, which is in the negative, the Claimant is not entitled
to the reliefs sought. The Notice of promotion dated Monday, February, 17, 2020
as well as The claimant’s Solicitor’s Letter dated 31st January 2023
filed as annextures in this suit are of no moment which cannot help the
claimant’s case.
On the issue of cost of action, as a general principle, courts always
have the discretion to award costs to the prevailing party. All the reliefs of
the claimant fail and same be and accordingly dismissed. However, the defendant
has urged this court to dismiss this originating summons with substantial cost.
It is in that line that I exercise my discretion in granting cost, accordingly
cost of N100,000 (One Hundred Thousand Naira) only is awarded against the
claimant and in favour of the defendant.
Judgment is entered accordingly.
..................................................
HON. JUSTICE S. A. YELWA
(JUDGE)