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THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA - - - - JUDGE

DATE: 16TH OCTOBER, 2024               SUIT NO: NICN/PHC/78/2022

BETWEEN:

MR. IKENNA ONYEKONWU - - - - - - - - - - - - - - - - - - - - - CLAIMANT

                                                                                                                                   

AND

 

ALCON NIGERIA LIMITED - - - - - - - - - - - - - - - - - - - - - - DEFENDANT

 

Representation

Tochukwu Anaba Esq. appearing with V. Anaba for the Claimant.

Esther Paul for the Defendant.

 

JUDGMENT

Introduction and Claims

1.     On June 14th, 2022 the Claimant filed this suit against the Defendant by way of Complaint seeking for the following reliefs:

1.     An Order for the payment to the Claimant, by the Defendant, of the sum of N11,934,911.5 (Eleven Million, Nine Hundred and Thirty-Four Thousand, Nine Hundred and Eleven Naira, Five Kobo) only being and representing the Claimant’s salary for the period October, 2021 to January, 2022;

 

2.     An Order for the payment to the Claimant, by the Defendant, of the sum of N22,174,592.9 (Twenty-Two Million, One Hundred and Seventy-Four Thousand, Five Hundred and Ninety-Two Naira, Nine Kobo) only being and representing the Claimant’s entitlements as follows:

                                                              i.      The Sum of N195,000.00 being Driver’s allowance for the months of November and January, 2022;

                                                           ii.      The sum of N8,165,270.86 being End of Contract for the periods of 2019/2020 and 2020/2021;

                                                         iii.      The sum of N7,673,749.48 being Leave allowance for the periods of 2019/2020 and 2020/2021;

                                                         iv.      The sum of N4,523,572.60 being leave Pay; and

                                                           v.      The sum of N1,617,000.00 being 13th Month Pay.

                                                                                                                        

3.     An Order for the remittance of the sum of N18,885,519.51 (Eighteen Million, Eight Hundred and Eighty-Five Thousand, Five Hundred and Nineteen Naira, Fifty- One Kobo) being unremitted Claimant’s and Defendant’s Pension Contribution for the period of April, 2016 to January, 2022;

 

4.     An Order for the remittance of the Claimant’s Tax deductions for the period of 2016 to January, 2022 and issuance of the accompanying Tax Clearance Certificate;

 

5.     An Order for the payment of the sum of N5,000,000.00 (Five Million Naira) only being legal fees incurred by the Claimant in the prosecution of this claim;

 

6.     An Order for the payment of the sum of N50, 000,000.00 (Fifty Million Naira) being general and exemplary damages for the Defendant’s contumelious breach of its contract with the Claimant.

2.     Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the Defendant entered appearance through its counsel and filed its Statement of Defenses, and a Counter Claim together with other processes in compliance with the Rules of this Court. The Defendant also counter-claims against the claimant as follows:

1.     The sum of N12, 500,000.00 (Twelve million, five hundred thousand naira) being cost value of the Lexus GLX 470 model with Chassis No. JTJBT20X170127176 which is in the possession of the Defendant to counter claim unlawfully.

2.     The total sum of N580,000.00 (Five hundred and eighty thousand naira) being cost value for the Laptop computer and Internet Smile Mifi belonging to the Counter Claimant which the Defendant to Counter claim has refused to return despite demands.

3.     The sum of N23,100,000.00 (Twenty three million, one hundred thousand naira) being cost of usage of the Lexus GLX 470 vehicle for the period running from 13th January, 2022 to 31st August, 2022.

4.     The sum of N100,000.00 per day for per day from 1st September, 2022 until the value cost of the vehicle Lexus GLX 470 belonging to the Counter Claimant is paid or finally returned to the Counter Claimant.

5.     General Damages in the sum of N100,000,000.00 (One hundred million naira) for wrongful detention of the Lexus GLX 470 model with Chassis No. JTJBT20X170127176 registered as YEN 427 SY, the Laptop computer, the internet smile mifi and the keys to the office of the General Manager operations despite repeated demands to return same.

6.     Cost of action.

 

The Case of the Claimant as Pleaded

3.     The case of the Claimant is that He was employed as a QA/QC Engineer by the Defendant and rose through the ranks over a period of 15 years to become the Defendant’s General Manager Operations with a monthly gross sum of N3,675,000.00 (Three Million, Six Hundred and Seventy-Five Thousand Naira Only) with an annual 10% increment on the basic salary,  together with other entitlements in line with the Collective Agreement between Construction and Civil Engineering Senior Staff Association (CCESSA) and Defendant. The claimant averred that as a result of deliberate frustration of the plans the Claimant put in place to move the Defendant’s projects forward, the claimant was constrain to resign from the employment of the defendant. That following his resignation from the Defendant’s employment, the Defendant had refused to pay him his outstanding emoluments.  Hence, the institution of this case.

 

The Case of Defendant as Pleaded

4.     The case of the Defendant on the other hand is that while the Defendant admitted that the claimant’s gross remuneration upon resignation was the sum of N3,675,000.00 (Three Million, Six Hundred and Seventy-Five Thousand Naira Only) , the defendant denied agreeing to any annual 10% increment on the basic salary with the claimant. The defendant stated that the claimant is not entitled to any other entitlement or emolument from the defendant and that the Collective Agreement sought to be relied upon by the claimant had sine been terminated. The Defendant maintained that it did not willfully refuse to pay the claimant but had some difficult financial situation. That the deliberate refusal of the claimant to go through audit clearance processes and the return of all property of the defendant in the claimant’s possession such as Lexus vehicle, computer laptop and many others, denied the defendant the opportunity to carry out an intensive audit and is the resultant effect of the Defendant’s Counter-claim against the claimant.

 

5.     During hearing of the case, the claimant testified gave evidence as CW1 while Mrs. Adhekovwigho Emuejevoke testified as DW1. The court subsequently directed counsel to the parties to file their respective final written addresses in line with the Rules of this Court and they complied with the said direction.

 

Defendant’s Final Written Arguments

6.     In the Defendant Final Written Address at page 325 of the record, counsel raised issues for the determination of the Court this way:

1.     Whether the Claimant having regards to the documents and facts pleaded have led any credible evidence to prove his case as constituted in his Particulars of Claim before this Honorable Court.

2.     Whether the Counter Claimant given the state of pleadings and the evidence led in support of its case can be said to have sufficiently establish its Counter Claim.

 

7.     Arguing issue one on whether the Claimant having regards to the documents and facts pleaded have led any credible evidence to prove his case as constituted in his Particulars of Claim before this honorable Court. Counsel submitted notwithstanding the fact that the claimant must prove his case as pleaded and must prove the truth of every averment in support of the reliefs sought in other to obtain judgment in his favour and must succeed on the strength of its own case and not depend on the weakness of the Defendant’s case citing EBO V. ANADI 2012 8NWLR (PT.1301) 69 AT 83 NKADO VS. OBIANO 1996 5NWLR (PT.503) 31 AND LAWSON VS. AJIBULU 1997 8NWLR (PT. 557) 14.  Counsel submitted that in the instant case, the Defendant in its Statement of Defence admitted in clear terms that the Claimant is entitled to: the sum of N9, 437,267.40 representing the outstanding salaries of the period of October, 2021 to 13th January, 2022 less N3,675,000 being one month salary in lieu of notice: the sum of N16,781, 500.00 being the unremitted pension contribution. Counsel submitted that it is trite law that what is admitted need no further proof citing UMOREN VS. REGISTERED TRUSTEES OF FULL GOSPEL ASSEMBNLY OF NIGERIA 2019 LPELR-48344 (CA).

 

8.     Counsel noted that it is clear from the pleadings and evidence tendered by the Claimant that the Claimant resigned via his letter dated 13th January, 2022 (Exhibit C1) wherein he made his resignation with immediate effect without giving the required one month notice or one month salary in lieu of notice contrary to the contract between the parties as contained in Exhibit D1. Also that the Claimant has clearly further admitted both from his pleadings (Particulars of Claim and Reply to the Statement of defence and defence to Counter Claim) and Exhibit C1 that upon resignation, he failed to either submit himself to the exit clearance procedure of the Defendant or handover all properties and assets of the Defendant in his custody despite his resignation.

 

9.     As regards the other claims of the Claimant not admitted by the Defendant, counsel submitted that the onus is on the Claimant to prove the truth of such claims with clear facts and evidence before this Court. On the claims as contained in paragraphs 28(b) of the Particulars of claim, counsel submitted that the Claimant has woefully failed to establish by facts and evidence any iota of truth in the entire claims and there is no agreement between parties for the payment of drivers’ allowance for the claims for the sum of N195,000.00 being Driver’s allowance. He referred the court to Exhibit C2 and D1. Counsel went on that other claims as per the end of contract, leave allowance, leave pay and 13th month pay are also baseless and untenable.

 

10.   Counsel submitted that the said Collective Agreement (Exhibit C12) expired on the 20th of June, 2021 therefore any reliance on same for any claim or calculations of any entitlements against the Defendant is invalid and not tenable as the said agreement ceases to exist. Counsel further submitted that for the period within which the said Collective Agreement was in force and valid, the Claimant’s claims are vague as he fails to specify and particularize the valid period of claims. Counsel referred the Court to OJO V. FBN 2013 LPELR -23515 (CA) AT P55, Clause 30 of the said Collective Agreement (Exhibit C12). That the Notice of resignation of the Claimant dated 13th January, 2022 (Exhibit C2) clearly violates the clear provision and terms of the said Collective Agreement the Claimant sought to rely upon for his claims for failing to the required notice given nor undertaking for forfeiture or payment of the one-month salary in lieu of notice indicated in the said letter and for seizing or confiscating the properties of the Defendant.

 

11.   Counsel submitted that the Claimant is not entitled to any benefits or gratuity from the Defendant having grossly breached the terms and conditions of the contract of service between him and the Defendant and particularly Exhibit C12: STRABAG CONSTRUCTION NIG. LTD V. ADEYEFA 2001 15NWLR   9(Pt. 735) 1 at 21: SHELL PET. DEV. CO. LTD V. LAWSON-JACK 1998 4NWLR (Pt.545)249 at 271:  OKOCHI V. ANIMKWOI (2003) 18 NWLR (PT. 851) 1: OYAMENDA & ANOR V. ABDULRAHMAN & ANOR (2013) LPELR-22744(CA). Counsel argued that the act of self-help carried out by the Claimant in illegally holding over the properties of the Defendant inhibits the performance of the obligations of the Defendant in paying his outstanding entitlements as enshrined in the Collective agreement.

 

12.   On leave allowances claimed by the Claimant, counsel submitted that such unpaid allowances by virtue of the Collective Agreement (Exhibit C12) is at the sole discretion of the Defendant referring to Clause 20 of the Collective Agreement.

 

13.   As regards the claim for cost of action, general and exemplary damages for N5,000,000.00 and N50,000,000.00 respectively, counsel submitted that there is no evidence to support this claims. That it is trite law that facts alleged or pleaded by a party without any proof or evidence in support at the trial goes to no issue citing BAYELSA STATE GOVT & ANOR V. EGEMZE & ORS (2019) LPELR-49088(CA): AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463(SC) (PP. 32 - 33 PARAS C - A).

 

14.   Arguing issue two, on Whether the Counter Claimant given the state of pleadings and the evidence led in support of its case can be said to have sufficiently establish its Counter Claim.

Counsel noted that it is not in dispute that the properties as itemized by the Counter Claimant were unlawfully detained and seized by the Claimant despite his resignation from the employment of the Counter Claimant on the 13th January, 2022 vide Exhibit C2. It is also not in dispute that this unlawful act of detention of the properties of the Counter Claimant were severally admitted by the Claimant in his Reply to the Statement of Defence and Counter claim particularly paragraphs 10, 20(i)(a) and (i). To this effect, counsel submitted that it is the law that facts admitted needs no further proof and as such the facts and allegations of the Counter Claimant about its properties being detained by the Claimant need no further proof citing BARO V. GOVERNOR OF DELTA STATE & OTHERS 2018 LPELR – 44192 (CA): ENTERPRISE BANK LTD V AROSO (2014) 3 NWLR (PT 1394) 256. Counsel went on that with the admission of the Claimant about the rights of ownership of the properties and the refusal to hand over other properties such as computer laptop, internet mifi modem which are in his possession, the defendant’s counter-claimant has establishes its rights to possession as well as the fact that the Claimant is in actual possession of them. He referred the Court to Exhibits C3 and C6 (also marked D2): OLADEJI V. DIAMOND BANK PLC (2017) LPELR-43308(CA) PER HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (PP 17 - 18 PARAS D - B).

 

15.   Counsel submitted that once the Claimant has successfully establish the case of detinue, the Claimant is entitled to order of restitution of its properties or value of the said properties citing KOSILE Vs. FOLARIN (1989) LPELR-1705(SC): F.M.C.G. DISTRIBUTION LTD Vs. BONIFACE (2019) LPELR-47652(CA): CHIGBU v. TONIMAS NIG. LTD. & ANOR (2006) LPELR-846(SC) and paragraph 20(i)(g) of the Reply to Statement of Defence and counter claim. Finally counsel urged this court to resolve this issue in favour of the Counter Claimant and grant all its reliefs as claimed.

 

 

 

Claimant’s Final Written Arguments

16.   In the Claimant’s Final Written Address at page 323 of the record, Counsel to the claimant formulated the following issues for the determination of the court this way:

1.     Whether the Defendant by not paying the Claimant his outstanding salaries, allowances and pension remittances as and when due and as are contained in the reliefs in this claim is not in breach of its contract of employment with the Claimant?

2.     Whether being in breach of the contract of employment between the Claimant and the Defendant, the Defendant can validly complain about the Claimant’s refusal to comply with its exit protocols?

3.     Whether the Defendant is not under obligation to pay the Claimant unconditionally all Claimant’s arrears of salaries, pension remittances and other allowances as are claimed in the reliefs to this complaint before insisting on the observance of its exit protocols?

4.     Whether the Defendant has proven its counter-claim?

 

17.   Arguing issue one, Whether the Defendant by not paying the Claimant his outstanding salaries, allowances and pension remittances as and when due and as are contained in the reliefs in this claim is not in breach of its contract of employment with the Claimant. Counsel submitted that law that he who asserts must prove his assertion. That the burden of proof does not remain static in civil cases but it shifts between the adverse parties from one side to the other based on the balance of probabilities. He referred the Court to Sections 131 - 134 of the Evidence Act, 2011;  UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR – 46333(SC); MAIHAJA V. GAIDA (2017) LPELR-42474(SC) AND ASHCROFT V. HERITAGE BANKING CO. LTD & ORS (2018) LPELR-44913(CA); GBAFE V. GBAFE (1996) 6 NWLR (PT. 455) 417 AT 432, PARAS. D-F.

 

18.   Counsel noted that the case of the Claimant is on the breach of contract of employment as it relates to payment of these outstanding salaries and allowances and refusal to make tax and pension remittances. That by Exhibit C1 which is the claimant’s letter of appointment as General Manager operations, the claimant’s remuneration is with effect from  1st of January, 2021 with an annual cash guaranteed compensation of N44,100,000.00 (Forty-Four Million, One Hundred Thousand Naira) only, payable on monthly installment, twelve times per annum (N3,675,000.00).

 

19.   Counsel went on that the Defendant admitted this breach when in paragraph 9 of its statement of Defence (paragraph 11 of the Defendant’s sole Witness statement on oath) that only the sum of N9,437,267.40 (Nine Million, Four Hundred and Thirty-Seven Thousand, Two Hundred- and Sixty-Seven-Naira Forty Kobo) only accrues to the Claimant for the period October, 2021 and 13th of January, 2022. To this effect counsel submitted that an admission of indebtedness, irrespective of the actual figure is an admission of breach of the employment contract of the claimant as the General Manager, Operations of the Defendant and as contained in Exhibit C1 dated the 13th of January, 2021. He referred the court to AMODU v. AMODE (1990) 5 NWLR (Pt. 150) 356; OBMIAMI BRICK & STONE (NIG.) LTD. V. A.C.B. LTD. (1992) 3 NWLR (Pt.229) 260; Exhibit CW1 and the Defendant’s admissions in paragraphs 9 of the Defendant’s statement of Defence (paragraph 11 of the Defendant’s sole Witness Deposition).

 

20. Arguing issue two, on whether being in breach of the contract of employment between the Claimant and the Defendant, the Defendant can validly complain about the Claimant’s refusal to comply with its exit protocols? Counsel referred the court to the equitable doctrine of he who comes to equity must come with clean hands quickly comes into consideration. Counsel submitted that the obligation to abide by exit protocols of the Defendant can only arise where the Defendant has fully complied with the payment of outstanding salaries, allowances, tax and pension remittances accruing to the claimant pre-resignation. That Equity acts in personam. Hence it is stated that he who comes to equity must come with clean hands citing S.C.B. (NIG.) LTD. V. BRAITHWAITE (2013) 4 NWLR (PT. 1397) 247 (P. 503, PARAS. A-C. Counsel submitted that the Defendant having admitted that it breached the contract of employment (Exhibit C1) between it and the claimant cannot be heard complaining that the claimant refused to abide by its exit protocols upon claimant’s resignation.

 

21.   Arguing issue three, on Whether the Defendant is not under obligation to pay the Claimant unconditionally all Claimant’s arrears of salaries, pension remittances and other allowances as are claimed in the reliefs to this complaint before insisting on the observance of its exit protocols? Counsel submitted that it is only when the Defendant has paid its outstanding salaries, allowances and pensions remittances to the claimant that the obligation to comply with its exit protocols if any will arise.

 

22.   On the first of the principal claims of the claimant, counsel referred the court to paragraph 7 of the Claimant’s reply to the statement of Defence and Defence to counter claim and paragraph 10 of CW1’s Witness statement on oath. Counsel noted that Defendant has in its defence only tried to dispute the figure.

 

23.   On the second of the principal claims about allowances, counsel argued that the first of the allowances from the Defendant being the sum of N65, 000.00 which he pays his driver by virtue of his position as General Manager, Operations and in line with his agreement with Defendant which the defendant failed to pay for the periods November, 2021 to January, 2022 totaling N195,000.00.

 

24.   On the third of the principal claim is the sum of N8,165,270.86 being End of Contract for the periods of 2019/2020 and 2020/2021. Counsel referred the court to Exhibit C2 (Collective Bargaining Agreement) of the claimant’s sole Witness. Counsel further argued that while the Defendant relied on same the Agreement in paragraph 12 of its statement of Defence and 14 of its sole Witness deposition to claim that the claimant was wrong in withholding its properties. Counsel submitted that the Defendant is not allowed by law to approbate and reprobate citing ADEOSUN V. FASHOGUN (2011) 8 NWLR (Pt. 1250) 427 referred to. (P. 666, paras. A-B). 

 

25.   On the principal claim the sum of N8, 165,270.86 being End of Contract for the periods of 2019/2020 and 2020/2021 is very well provided for in Appendix A to the Collective Bargaining Agreement (Exhibit C2). Counsel noted that No 11 thereon states that 12% of basic salary plus housing allowance, transport allowance multiplied by the number of years worked or pro-rate.

26.   On the fourth of the principal claim N7, 673,749.48 being Leave allowance for the periods of 2019/2020 and 2020/2021, counsel referred the court to No 13 of Appendix A of Exhibit C2.

 

27.   On the fifth principal claim for the sum of N4,523,572.60 being leave Pay, counsel referred the court to the Claimant’s pleadings and the evidence elicited under cross examination on the 22nd of May, 2023 and the provision for 13th Month being Christmas allowance as provided for No 16 of Appendix A of Exhibit C2 forms the sixth principal claim.

 

28.   On the seventh of the principal claim is the sum of N18,885,519.51 (Eighteen Million, Eight Hundred and Eighty-Five Thousand, Five Hundred and Nineteen Naira, Fifty- One Kobo) being unremitted Claimant’s and Defendant’s pension contribution for the period of April, 2016 to January, 2022.counsel submitted that Entitlement to pension and gratuity is a vested right, which can only be taken away by dismissal of the employee from his employment. That once the dismissal is declared unlawful and the employee has spent the number of years stipulated in the conditions of service in the employer/organization, he is entitled to draw his pension and be paid his gratuity. In other words, whether an employee is eligible for pension and gratuity can be decided only by reference to the conditions of service. He referred the court to IGWILO V. C.B.N. (2000) 9 NWLR (PT 672) 302 REFERRED TO.] (P. 337, PARAS. F-G). Counsel noted that there is nowhere in the statement of defence and counter claim where the Defendant claimed that it dismissed the claimant.

 

29.   On the eighth of the principal claims is a claim for tax remittances. Counsel submitted that there is an obligation on every employer of labour to deduct from employees, remit to the relevant tax authorities and account for same.

 

30.   With regards to Relief 5 on legal fees incurred in the prosecution of this case counsel submitted that cost follows events and the award or refusal of costs is at the discretion of the court provided it is exercised judicially and judiciously. Citing UBN LTD. V. NWAOKOLO (1995) 6 NWLR (PT. 400) 127; STABILINI VISINONI LTD. V. MALLISON & PARTNERS LTD. (2014) 15 NWLR (PT. 1164) 134; AKIMBOLOLA V. PLISSON FISKO (NIG.) LTD. (1991) 1 NWLR (PT. 167) 270 REFERRED TO.] (P. 485, PARAS. B-E).

 

31.   On claim of general damages of N50,000.000.00 for the defendant’s breach of its contract of employment with the claimant. Counsel referred the court to CAMEROON AIRLINES V OTUTOIZU (2011) 4 NWLR (Pt. 1238) 512 that General damages are losses which flow naturally from the adversary and it is generally presumed by law as it needs not be pleaded or proved. Counsel submitted that the claimant is entitled to general damages, the Defendant having breached all its contractual obligations with the claimant particularly Exhibit CW1 and CW2.

 

32.   Arguing issue four, counsel referred the court to the case of DAPUB V. KOLO (1993) 9 NWLR (PT. 317) 254 (P 316, PARAS. B-D): OSHODI V EYINFUNMI (2000) 13 NWLR (PT. 684) 298 , counsel submitted that all the facts canvassed by the Claimant, in the Defence to the counter claim are deemed admitted by the Defendant/Counter claimant, particularly facts deposed to in paragraphs 23 (i) to (xix) of the Claimant’s Further Witness Statement on Oath. That admitted facts require no further proof.

 

 

COURT’S DECISION

 

33.   After going through the facts of this case as pleaded and deposed to by the parties, the evidences and various exhibits tendered and admitted together with the final written arguments of their counsel including their cited authorities; statutory and case laws. From all of these, I am of the considered view that the following issues ne   ed to be resolved by this Court between the parties:

1.     Whether the Claimant has proven his case and is entitled to the relief sought?

2.     Whether the Counter Claimant given the state of pleadings and the evidence, is entitled to the Counter Claim?

 

34.   Before resolving the above issues it is necessary to resolve the issue of applicability of Exhibit C11 and Exhibit C12 the Collective Agreement to the determination of this case.     

On whether Exhibit C11 is of any efficacy in the determination of this case and whether Exhibit C12, the Collective Agreement is applicable to the employment of the claimant.

Exhibit C11 is at page 195 to 196 of the record. The said exhibit is not authored, dated and signed by anybody.  It is trite that unsigned and undated document is a worthless piece of paper that has no evidential value in law. See the cases of GLOBAL SOAP & DETERGENT IND. LTD. V. NAFDAC [2011] LPELR-CA/IL/13/2007. per WEST J.C.A,(P.30, paras. B-C). KWARA INVESTMENT CO. LTD. V. GARUBA [2000] 10 N.W.L.R. (Pt. 764) 25/39 paragraph G. Therefore of Exhibit C11is woortless and of no value in the determination of this case.

 

35.   Admisibility of Exhibit C12 ie the Collective Agreement between the Construction and Civil Engineering Senior Staff Association (CCESSA) and the Defendant, dated 13th September, 2019 Exhibit C12 at page 20 to 34 of the record

The issue of admisibility of the Collective Argreement is before the court as Exhibit C12 was raised by counsel to the Defendant in paragragh 5.9 of the Defendant’s Final Written Address, it is the argument of Counsel that that Exhibit C12, the Collective Agreement expired on the 20th June, 2021 and cannot be relied on in the determination of this case.

 

36.   The Collective Argreement is before the Court as Exhibit C12 is at page 20 to 34  of the record and is listed as document no 3 on the Claimant’s List of Documents and at page 130 to 140 listed by the Defendant as Document 2 on the Defendant’s list of Document at page 128. The first paragragh of the Agreement is to the effcet that the agreement will be in force for a term of two years commencing from the 1st day of July, 2019 to the 30th day of June, 2021.

By Exhibit C1, the letter of Appointment of the Claimantas as the  General Manager Operations  at page 18 of the record, the Claimant was employed as the General Manager on the dated 13th Jaunary 20219 with effect from 4th September 2020  under and duing the sussitence of Exhibit C12 the Collective Agreement. Therefore having been employed under and duing the sussitence of Exhibit C12 the Collective Agreement. It is my considered opinion that Exhibit C12, the Collective Agreement is applicable for the determination of this case.

 

ISSUE ONE:

Whether the Claimant has to prove his case and is entitled to the relief sought?

In determining whether the Claimant has to prove his case and is entitled to the relief sought, the determination of the following issues are helpful:

What is the Nature of this Employment Relationship & What Regulate the Employment Relationship between The Parties?

It is worthy of note that in the evidence of the Claimant, his employment with the Defendant is that of a master and servant relationship. It is trite law that in cases of master and servant relationship, the earliest issue to be resolved by the court in order to determine the respective rights, duties and liabilities of the parties, is to ascertain what the terms and condition of service regulating the contractual relationship between the employer and the employee. In doing this, the Court is bound to look at the Letter of Appointment, any service regulations connected with establishment of employer and also the provisions of any statute or decree which relates to or regulates the service conditions of the establishment. See GBEDU v. ITIE [2020] 3 NWLR (Pt1710) SC 104  at 126 para F-H; NGUN V. MOBIL PRODUCING NIG UNLTD (2013) LPELR-20197(CA)  (Pp. 35 paras. A)

While the Claimant in paragraghs 3 and 10 of the Particular (Statement) of facts at page 5 and 6 of the record, referred the Court to the Letter of Appoinment as the General Manager Exhibit C1 at page 18 of the record and the Collective Agreement between the Construction and Civil Engineering Senior Staff Association (CCESSA) and the Defendant dated 13th September, 2019 Exhibit C12 at page 20 to 34 of the record. The Defendant in paragargh 1 of the Statement of Defence and Counter-Claim admited 3 of the Particular (Statement) of fact which is to the effect that the Claimant was appointed as the Generl Manager via the Letter of Employment dated 13th of January 2021 and as well listed and tendered as Exhibit D1, titled; Employment Contract Review at page 145 of the record.

 

37.   Consequently, in determining the respective rights, duties and liabilities of parties in this case, I find and hold that these exhibits will be considered by the Court: Exhibit C1, the Letter of Appoinment as the General Manager; Exhibit D1, Letter of Employment Contract Review and the Collective Argreement between the Construction and Civil Engineering Senior Staff Association (CCESSA) and the Defendant dated 13th September, 2019 as Exhibit C12.

 

Is the completion of the exit process and the return of all the properties and assets of the Defendant in posession of the Claimant, a condition for the payment of entitlement or outstanding salary and entitilement ? Is the Defendant in breach of the contract of emplayment by none payment of the outstanding salary and allowances?

It is the case of the Claimant that the Defendant is owing and has failed to pay him his outstanding salaries and entitlements even after his resignation from the employment on the 13/1/2022. See paragraghs 5, 6,7,8,9,11,12, 13,14 and 15 of the Statement of Facts (Pleading). The case of the Defendant on the other hand is that the none payment of the Claimant’s entitlement was as a result of the Claimant’s refusal to complete the exit process and then return all properties and assets of the Defendant in possession of the Claimant, that withholding of these properties and assets is a clear violation of the collective agreement signed between the Defendant and the Claimant. See paragraghs , 12, 13, 15 16 and 17 of the Statement of Defence and Counter-Claim.  

 

38.   The law is settled that the burden of proving as to any particular fact lies on that person who wishes the court to belive in its existence and  where a court is to determine the rights, duties and obligations of the parties to a contract, the Court must respect sanctity of the contract and not allow a term on which there was no agreement to be read in to the contract; as  parties are bound by the terms of their contract voluntarily entered into. See section 133 (1) and 136 of the Evidence Act 2011; IDUFEOKO V. PFIZER PRODUCTS LTD (2014) 12 NWLR [PT. 1420] SC 96 AT 115. PARA. C-E AND AVRE V. NIGERIA POSTAL SERVISES [2014] 46 NLLR (PT.147) 1 AT 41.

 

39.   In this case, no evidence was lead by Counsel to the Defendant, that the completion the exit process and the return of all properties and assets of the Defendant in posession of an (Claimant) employee, is or will be a condition or sine qua non to the payment of the Claimant’s arrears or outstanding salaries and entitlements or outstanding salary and entitilement. The refual or neglect on part of an employer to pay a derserving employee as when due is a breach of the contract of employment. I hold that the none payment the Claimant’s salary as at when due for the period of October, 2021 to January, 2022, by the Defendant as a breach of the Contract of employment.

 

Is the Claimant entitled to his outstanding salaries for the period of October, 2021 to January 13, 2022 as claimed in the circumstance of this case?

The Claimant in establishing his case tendered his Letter of Appointment of the Claimant as General Manager Operation Exhibit C1 at page 18 of the record to the effect that his monthly salary to be the sum of N3, 675,000.00, but the formula as to how the Claimant arrived at the sum of N11,934,911.5 which is being claimed before the court is unknown. Exhibit C2, is the letter of Resignation, the Claimant’s resignation was with immediate effect as against paragraph 30 of Exhibit C2 at page 27 of the record and page 8 of Exhibit C2 which required an employee to give 1 months’ notice or forfeit one (1) month payment in lieu of notice.

 

40.   By the combined admission of the Defendant in paragraph 2, 3 and 9 of the Statement of Defence and Counter Claim, the Defendant admitted that the gross remuneration of the claimant as the General Manager of the Defendant upon resignation was in the sum of N3,675,000.00  and that the claimant is entitled to the payment of the sum of (9,437,267.40) Nine Million Four Hundred And Thirty-Seven Thousand, Two Hundred And Sixty-Seven Naira, Forty Kobo only as salary for the period of October, 2021 to January 13, 2022 and against the Claim of the Claimant, that the sum of (N11, 934,911.5) Eleven Million, Nine Hundred And Thirty-Four Thousand, Nine Hundred And Eleven Naira, Five Kobo is being Owed by him.

 

41.   It is trite law that facts admitted need not be proved. See Section 123 of the Evidence Act 2011; the case of TAIWO V. ADEGBORO [2011] All FWLR (Pt 584) 52 SC; IBADAN LGPC LTD VS. OKUNADE [2000] 3 NWLR (Pt 11) 45, EKPEMUPOLO VS. EDREMODE [2009]8 NWLR (PT 1142)166,196; UNILORIN VS. ADESINA [2009] All FWLR (PT 487)56 CA and UME & ORS v. IBE (2016) LPELR-40080(CA). On this note, in view of the admission of the Claimant to the payment of the sum of (N9,437,267.40) Nine Million Four Hundred And Thirty-Seven Thousand, Two Hundred And Sixty-Seven Naira, Forty Kobo only as salary for the period of October, 2021 to January 13, 2022, the requirement of 1 month in lieu of notice under paragraph 30 of Exhibit C2 at page 27 of the record and page 8 of Exhibit C2,  I find that the Claimant is entitled to salary for the period of October, 2021 to January 13, 2022, less the payment of one (1) month payment in lieu of notice as provided for under paragraph 30 of Exhibit C2 at page 27 of the record and page 8 of Exhibit C2. i.e the sum of N 9,437,267.40 Minus (-) N3,675,000.00 giving us the sum of N5,762,267.4 (Five Million, Seven Hundred and Sixty-Two Thousand, two Hundred and Sixty-Seven and 4 kobo).

 

On the sum of N18, 885,519.51 (Eighteen Million, Eight Hundred and Eighty-Five Thousand, Five Hundred and Nineteen Naira, Fifty- One Kobo) being unremitted Claimant’s and Defendant’s Pension Contribution for the period of April, 2016 to January, 2022

 

42.   It is trite law that the case of a Claimant stands or falls upon his own evidence and not upon the weakness of the defence and he who asserts must prove.  See OYEBODE V. GABRAIL [2013] All FWLR (Pt. 669)1043 at 1083 and Section 136(1) of the Evidence Act. In proof of this case, the counsel to the Claimant did not give detail particular as to how he arrived at the sum of N18,885,519.51 (Eighteen Million, Eight Hundred and Eighty-Five Thousand, Five Hundred and Nineteen Naira, Fifty- One Kobo) being unremitted pension for the period of April, 2016 to January, 2022.

 

43.   Nonetheless the fact of unremitted pension is also admitted by the Defendant to the sum of (N16,781,500.00) Sixteen Million, Seven Hundred and Eighty-One Thousand, Five Hundred kobo as pension contribution for the Claimant for the period of January, 2017 to January 2022 as against the position of the Claimant that the sum of (N18,885,519.50) Eighteen Million, Eight Hundred And Eighty- Five Thousand, Five Hundred And Nineteen Naira, Fifty Kobo is unremitted for April, 2016 to January, 2022. The law is certain that where facts pleaded by a party is affirmed or acknowledged by the adversary, they no longer require proof by the parties. See MR. SUNDAY ADEGBITE TAIWO VS. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (PART 1259) 562 at 583 per BODE RHODES - VIVOUR, JSC." Per IGE, J.C.A. (P. 49, Paras. A-B). I accordingly hold that the Claimant is entitled to the sum of (N16,781,500.00) Sixteen Million, Seven Hundred and Eighty-One Thousand, Five Hundred kobo as pension contribution for the claimant for the period of January, 2017 to January 2022.

 

Is the claimant entitled to the sum of N195, 000.00 being Driver’s allowance for the months of November and January, 2022?

44.   Counsel to the Claimant under issue 3 (v-viii) of the Claimant’s written address had argued for the payment of same referring the court to paragraph 6 and 7 of the statement of claim, paragraphs 6 and 7 of the Claimant’s sole witness’ deposition and paragraph 2 of the Reply Statement of Defense and the Heritage Bank Statement of Account which is before the Court as Exhibit C10. I find no provision for payment of Driver’s allowance in the terms and condition of employment governing the employment relationship between the parties. No provision for same in the letter of Appointment of the claimant as general Manager operation which is before the court as Exhibit C1 at page 18 of the record and the Collective Agreement which is also before the as Exhibit C12 at page 20 to 34 of the record. This prayer is accordingly declined and dismissed.

On sum of N8, 165,270.86 being End of Contract for the periods of 2019/2020 and 2020/2021;

45.   By paragraph 12 (ii) of the Claimant’s particular of claim, the Claimant is seeking for the sum of N8,165,270.86 being End of Contract for the periods of 2019/2020 and 2020/2021 and had referred the court to No 11 Appendix A of the Collective Agreement of Exhibit C12 at page 31 of the record.

End of Service / Gratuity is a financial benefit provided to employees upon the termination of their employment. It serves as a form of severance pay that reward am employees for their years of service to the employer. The Claim for end of service/ gratuity is not to be claimed yearly (2019/2020 and 2020/2021) as it is being done by the Claimant in this case but only at the end of an employee’s service to the employer.

46.   While it is the case of the Claimant that he was employed by the Defendant as QA/QC Engineer sometimes in 2004, see paragraph 1 of the Statement of fact (Particular of fact, page 5 of the record), the Defendant in paragraph 1 of the Statement of Defense and Counter-claim admitted this fact that the Claimant was employed by the Defendant sometimes in 2004. It is well settled that facts admitted need no further proof. See MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (PART 1259) 562 AT 583. It is my considered opinion that the Claimant had been in the employment of the defendant since 2004 need no further proof. So I hold

From the letter of Appointment of the Claimant as the General Manager Operations- Exhibit C1 at page 18 of the record the  Monthly Basic Salary is N1,470,000. The Annual Basic Salary will therefore be Basic Monthly Salary x 12 month resulting to = N17, 640,000.

The End of Service/Gratuity entitlement of the C.laimant will therefore be: 10% of Annual Basic Salary +Transport Allowance multiplied by the number of years worked or pro-rata. i.e

10 % of N17, 640,000.00 + N617, 400.00 x (2004 to 2022 (period of 18 years))

10 x N.17, 640,000 .00     + N617, 400.00 X 18 years

         100

176,400.00 + N617, 400.00 x 18 years

793,800 x 18    =      N11, 289,600.00

47.   Consequently, I hold that the Claimant is entitled to claim from the Defendant, the total sum of N11,289,600.00 (Eleven Million Two Hundred and Eight-Nine Thousand, Six Hundred Naira Only) as the End of Service/Gratuity from the Defendant.

 

 

On the sum of N7,673,749.48 being Leave allowance for the periods of 2019/2020 and 2020/2021;

While by No13 Appendix A of the Collective Agreement of Exhibit C12 at page 31 of the record, the Leave Allowance is -20% of Annual Basic salary.

For the period 2019/2020, the Basic Salary of the Claimant by Exhibit D1, the Letter of Employment Review is N. 977,600.00. The Annual Basic salary will be calculated by the Basic multiply by No. of months (12) in a year. i.e. N977,600.00 x 12= N. 11,731,200.

20% of Annual Basic salary= 20% of N. 11,731,200

20 x N. 11,731,200.00     =     N2,346,240

         100    

For the period 2020/2021, the Basic Salary of the Claimant by Exhibit C1, the letter of employment as the General Manager operation dated 13/1/2021 is N1,470,000.00. The Annual Basic salary=N1,470,000.00x 12, = N17, 640,000.

20% of Annual Basic salary for 2019/2020 = 20% of N17,640,000.

20 x N17,640,000     =     N3, 528,000

                100

            N2,346,240 +   N3, 528,000 =N5, 874240

49.   Accordingly, I hold that the Claimant is entitled to claim from the Defendant, the total sum of N5, 874, 240.00 (Five Million Eight Hundred and Seventy-Four Thousand, Two Hundred and Forty).

On the sum of N4, 523,572.60 being leave Pay; I find no bases for this claim in of Exhibit C12, the Collective Agreement.

On The sum of N1,617,000.00 being 13th Month Pay, No16 Appendix A of the Collective Agreement of Exhibit C12 provides for Basic salary plus 50kg of rice. I hereby find that the Claimant is entitled to payment of N1,470, 000.00 plus a 50kg of rice.

On an ORDER for the remittance of the Claimant’s Tax deductions for the period of 2016 to January, 2022 and issuance of the accompanying Tax Clearance Certificate.  While counsel tended Exhibit C11 is at page 195 to 196 of the record. The said Exhibit is not authored, dated and signed by anybody.  It is trite that unsigned and undated document is a worthless piece of paper that has no evidential value in law. The Court declined to make order on Tax deductions for the period of 2016 to January, 2022.

Is the Claimant entitled to the payment of the sum of N5,000,000.00 (Five Million Naira) only being legal fees incurred in the prosecution of this claim?

50.   The Court of Appeal held in S.P.D.C. v. OKONEDU [2007] All FWLR (Pt. 368) 1104 at 1137 - 1138 Paras. E – D that it is unethical and an affront to public policy to pass on the burden of solicitor's fees to the other party and in NWANJI V. COASTAL SERVICE. (NIG.) LTD [2004] 11 NWLR (PT.885: [2004]  LPELR-SC.151/1999;[2004]  18 NSCQR  895 the Court Per Uwaifo J.S.C. at P.18, paras. B-E held on the proprieteness of a party claiming Solicitor's fees from the opponent that it is an unusual claim and it is difficult to accept in this country as things stand today. This prayer is accordingly declined and dismissed.

 

         Is The Claimant Entitled To Exemplary Damages In This Case?

51.   In other words, has the Claimant proved that the action of the Defendant is outrageously reprehensible or grossly reckless to entitle him to exemplary damages?

In reliefs Six of the Claimant, he is praying for the sum of sum of N50,000,000.00 (Fifty Million Naira) being general and exemplary damages as claimed from the Defendant.

It is before the court in paragraph 20 (i) (a) and (i) of the Claimant’s Reply and Defence to Counter Claim that the Claimant held on to the properties of the Defendant as a result of the none payment of the claimant’s salary. Notwithstanding the fact that I have held in this judgment that the Defendant is in breached of the terms and conditions of employment by not paying the Claimant his monthly salaries, I hold that the claimant is not entitled general and exemplary damages for having held onto the Properties of the Defendant even after his resignation.

ISSUE TWO:

Whether the Counter Claimant given the state of pleadings and the evidence, is entitled to the Counter Claim?

52.   A counter claim which is otherwise called a cross action or counter action is a separate and independent action by a defendant action by a defendant, who has some reliefs against the plaintiff. Being a cross action, the counter claim is in the same position as an action and it is guided by the same rules regarding pleadings. The burden of proof of counter claim is therefore on the counter Claimant in the same manner as required in any civil claim i.e on the preponderance of evidence. See AFOLAYAN V. ARIYO [2015] All FWLR (Pt 769) CA 1129 at 1090- 1091 paras. H-B-.

 

53. The Defendant’s Counter-Claimant is seeking for the payment of N12,500,000.00 (Twelve Million, Five Hundred Thousand Naira) being cost value of the Lexus GLX 470 model with Chassis No. JTJBT20X170127176: N580,000.00 (Five hundred and eighty thousand naira) being cost value for the Laptop Computer and Internet Smile Mifi belonging to the Counter Claimant: N23,100,000.00 (Twenty three million, one hundred thousand naira) being cost of usage of the Lexus GLX 470 vehicle for the period running from 13th January, 2022 to 31st August, 2022 and sum of N100,000.00 per day for per day from 1st September, 2022 until the value cost of the vehicle Lexus GLX 470 belonging to the Counter Claimant is paid or finally returned to the Counter Claimant.

54.   I find that the monitory sums being claimed as value for the said properties and asset of the Defendant/Counterclaimant, is not backed up by any of Exhibit D1 the Letter of Employment dated 6/6/2018, Exhibit D2, the re; Demand letter dated 24/5/2022 and Exhibit D3 Certificate of proof of Ownership.

However the Claimant /Defendant to the Counter-Claim admitted to being in possession with the Lexus GLX 470 model with Chassis No. JTJBT20X170127176, Laptop computer and Internet Smile Mifi and the key to his office as the General Manager and had argued that his decision not to return them to defendant was due to the none-payment of his outstanding salaries and allowance.

55.   Therefore, I hereby order that the Claimant returned all the properties and assets of the Defendant/Counter-Claimant his possession in good condition within 7 days of this Judgment. 

 

56.   On the whole; I declare and hold as follows:

1.     I hold that Exhibit C11is worthless and of no value and Exhibit C12 the Collective Agreement applicable to the determination of this case.

2.     I hold that parties are bound by the terms and condition of employment as contained in Exhibit C1, the Letter of Appoinment as the General Manager; the Exhibit D1, Letter of Employment Contract Review and the Collective Agreement between the Construction and Civil Engineering Senior Staff Association (CCESSA) and the Defendant dated 13th September, 2019 as Exhibit C12.

3.     I hold that by none payment the Claimant’s salary as when due for the period October, 2021 to January, 2022, by the defendant a breach of the contract of employment.

4.     I hold that the Claimant is entitled to the sum of (N16,781,500.00) Sixteen Million, Seven Hundred and Eighty-One Thousand, Five Hundred kobo as pension contribution for the claimant for the period of January, 2017 to January 2022.

5.     The claim for Driver’s allowance for the months of November and January, 2022 has not been proved and it is accordingly dismissed.

6.     That the claimant is entitled to salary for the period of October, 2021 to January 13, 2022, less the payment of one (1) month payment in lieu of notice. i.e. the sum of N5,762,267.4 (Five Million, Seven Hundred and Sixty-Two Thousand, two Hundred and Sixty-Seven and 4 kobo).

7.     The Claimant is entitled the total sum of N11,289,600.00  (Eleven Million Two Hundred and Eight-Nine Thousand, Six Hundred Naira Only) as the End of Service/Gratuity from the Defendant.

8.     I hold that the Claimant is entitled to claim from the Defendant, the sum of N5, 874, 240.00 (Five Million Eight Hundred and Seventy-Four Thousand, Two Hundred and Forty) as Leave allowance for the periods of 2019/2020 and 2020/2021;

9.     I find no bases for leave Pay in of Exhibit C12, the Collective Agreement and the claim is accordingly dismissed.

10.                       The Claimant is entitled to the payment of N1,470, 000.00 plus a 50kg of rice.

11.                        The Court declined to make order on Tax deductions for the period of 2016 to January, 2022.

12.                       The Claim for legal fees incurred in the prosecution of this claim is hereby declined.

13.                       I hold that the Claimant is not entitled general and exemplary damages for having held onto the Properties of the Defendant in the circumstance of this case, even after his resignation.

14.                       In total, the Defendant is to pay the Claimant the total sum of   N41,171, 607.00 (Frothy-One Million One Hundred and Seventy-One Thousand, Six Hundred and Seven Naira) plus a 50kg of rice within 30 days.

15.                       I hereby order that the Claimant returned all the properties and assets of the Defendant/Counter-Claimant in his possession in good condition within 7 days of this Judgment.

16.                       I make no order as to cost.

                                                                                

Judgment is entered accordingly.

 

 

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Hon. Justice M. A. Hamza

Judge