WD
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE, A.N
UBAKA
DATED 13TH DECEMBER, 2024
SUIT NO: NICN/LA/276/2018
BETWEEN
BABATUNDE NURUDEEN LAWAL CLAIMANT
AND
HIS TOWERS NG LTD DEFENDANT
REPRESENTATION
Ladipo Ojo for the Claimant
Victor
Gwam for the defendant
JUDGMENT
The claimant’s complaint as contained in his
statement of facts on the 1st of August,2018
against the Defendant seeking the following reliefs:
2.
And for such order or further orders, this Honourable
Court ma y deem fit to make in the circumstance.
Accompanying the complaint is the claimant’s written
statement on oath, list
of witnesses and documents to be relied upon on trial dated 27th July
2018 but filed on 1st of August, 2018.
In reaction, the defendant entered formal appearance
and then filed a statement of defence, witness
written statement on oath and list of documents to be relied upon at trial
dated 31st August, 2018 but filed 10th September, 2018.
The summary of the facts
pleaded by the claimant is that he is a
Legal Practitioner and Enrolled by the Supreme Court of Nigeria as a Solicitor
and Advocate; that sometime in the year 2008 he was employed by a Company known
as Helios Towers Nigeria Limited as an In-House Counsel from the year 2008 to
Year 2017, a period of Eight (8) Years plus approximately; that sometime before
the year 2017, the Defendant acquired
Helios Towers Nigeria Limited and upon the acquisition of Helios Towers Nigeria
Limited by the Defendant, the Defendant continued to Retain his service under
the employ of Helios Towers Nigeria Limited. That sometime in the year 2017 the
Defendant Issued him an offer of Employment Letter dated the 27th of
February, 2017 stating the condition and Terms of service in the said Contract
of Employment.
That after the Letter of Employment was
issued to him, the Defendant issued him another letter dated the 22nd
of March, 2017 which was titled
“OFFER OF EMPLOYMENT ADDENDUM”, thereby acknowledged that he was initially
employed in the acquired company that employed him on the 4th of
August 2008; that in the Addendum Letter, the Defendant informed him that his
Employment Benefits will be considered with the Number of years that he has put
in with his former Employer Helios Tower cumulatively with his service year
with the Defendant; that by the Letter of Addendum dated the 22nd
March, 2017 his total Benefit upon disengagement would be cumulatively
calculated from his initial Employ with Helios Towers Nigeria Limited and the
years of service with the Defendant. That the defendant sometime in the month
of January 2018, the defendant terminated his employment via a Letter dated 8th
of January 2018 and in the said Letter given to him by the defendant, it stated
that his Entitlement/ Debts and Payment in lieu of Notice would be paid.
That when he noticed that the calculation
of his entitlement was at variance with his offer of employment and letter of
Employment Addendum, he refused to acknowledge the termination of employment letter
when same was given to him; that the computation did not calculate the benefits
in retrospect to the Letter of Employment Addendum which states that the Number
of service years with Helios Towers Nigeria Limited would be cumulated with the
Years of Service with the Defendant; that his total number of Years both with
Helios Towers Nigeria Limited and the benefits amount to 9 years (Nine) and
4(four) months as at December 2017 and his benefit due to be paid at the time
of termination of his employment as at the 8th of January 2018,
stands at N6,281,913.06 (Six Million Two Hundred and Eighty-One Thousand Nine
Hundred Thirteen Naira Six Kobo).
That when he noticed the shortfall in his
benefit upon the termination of his employment with the Defendant, he took
steps to notify the defendant by writing it several letters and further wrote
another letter to the defendant dated 25th January 2018 and the
defendant in response by a letter dated 2nd of February, 2018 noted
that his terminal benefit was diligently computed in line with the Employee
Manual Version 2 2015 and Employment Letter and that it will not be liable to terms
and conditions not contemplated in the Employee Manual Version 2 2015; Letter
of Employment, IHS POLICY Documents.
That after a critical appraisal of the
said Documents referred to by the Defendant in its letter Dated the 2nd
of February, 2018, there was nowhere in the said documents that he was entitled
to the computed entitlement as computed by the Defendant and that the only document
being referred to by the Defendant of which is not at his disposal is the IHS Policy
Document. That his Solicitors HARLEM SOLICITORS by a letter dated 6th
of March, 2018 and 16th of March, 2018 respectively requested for a
copy of the said IHS Policy Document of which he knows that there was never a document
like that having worked with the Defendant thus far; that he has appealed to
the defendant through the various correspondence to pay up his entitlement as
enunciated in the Letter of Contract of Employment and the Addendum, but all
seems to no avail.
That he knows as a fact that the
Defendant having terminated his employment unjustly does not want to pay his entitlement
in full having not been found wanting of any Breach of the Defendant Employee
Manual Version 2. 2015 and that the failure of the Defendant to pay his full entitlement
has brought about untold hardship to him and his family.
Under cross examination by
the defendant’s counsel, CW stated his own interpretation of the addendum
letter covers his total benefits and confirmed that paragraphs 28, 29, 30 and
31 of his statement of facts were not pleaded.
Under re-examination of CW
by the claimant’s counsel, CW stated that he had pleaded that he was short paid
in paragraph 25.
The defendant opened its defence by calling its sole
witness, Mrs. Chukwunonso Okwuma, a Senior Manager, Employee Relations in the
department of Human Resources of
the defendant wherein she
adopted her witness statement on oath as evidence in this case. The defendant’s
witness statement on oath is that it
never stated in the Offer of Employment Addendum dated 22nd March
2017 nor contracted with the Claimant that the Claimant's years of service with
Helios Towers Nigeria Limited would be "cumulated with years of service
with the Defendant when terminal benefits would be calculated"; that it
calculated the Claimant's terminal benefits in accordance with the Claimant's
contract of employment and the Company Employee Handbook and paid same to the
Claimant and that it terminated the Claimant's employment in accordance with
the Claimant's contract of employment.
That
the "Employee benefits" referred in its letter of 22nd
March, 2017 by the defendant are tenure-based benefits which the Claimant could
enjoy while in the employment of the Defendant, such as eligibility for
promotion after 2 or 3 years in a position; that at the termination of the
Claimant's employment with the Defendant all he was entitled to was: -
a) Full
salary up to date of retirement.
b) Own
contribution to pension fund plus accrued interest.
c) Leave
earned but not taken
d) Leave
allowance (pro-rata) as applicable.
That
the Claimant's total
benefit due and paid is N584,066.46 not N6,281,913.06 and did not require an
appeal or "various correspondence" to do so and that it has not held
on to any benefits belonging to Claimant and has no intention whatsoever to
cause the Claimant any hardship. That the Claimant has no claims against it and
that the Claimant's claims are false, baseless and lacking merit in its entirety.
Under
cross examination by the claimant’s counsel, DW emphasized that they are no
longer talking of benefits since the claimant is no longer in service.
Under re-examination
of DW by the defendant’s counsel, DW stated that terminal benefit is for
ex-employees while employe’s benefit is for serving employees.
The parties were directed to file their final written addresses. The defendant’s
final written address is dated and filed 8th April, 2024 while the
claimant’s final written address is dated and filed 17th July, 2024.
Learned counsel
on behalf of the defendant framed a sole issue for the court’s determination
viz:
Whether
the defendant’s computation of the claimant’s terminal benefits was correct and
in accordance with the contract of employment and addendum.
It is the
defendant’s counsel submission on the sole issue that the Honorable Court has the narrow duty of interpreting
and giving effect to Exhibit Cl and C2, the letter of employment dated 27th
February, 2017, and the Addendum dated 22nd March, 2017; that Exbibit
C2 which the claimant makes heavy water of is without specifics, it does not
refer to Terminal Benefits and does not refer to any figures whatsoever; that the
claimant has not placed any figures before the honourable court nor has he
shown how he came about the sum of N6,281,913.06 (Six Million, Two Hundred and Eighty-One
Thousand, Nine Hundred and Thirteen Naira, Six Kobo) which he claims as his
"Total Benefit Due. He cited the case of Cameroon Airlines v Otutuizu (2011) 4 NWLR PT.1238 p.512 @ 544
(SC) and urged the
honourable court to dismiss the claims of the claimant in its entirety.
Learned counsel
on behalf of the claimant framed a sole issue for the court’s determination
viz:
Whether the
claimant is entitled to one (1) month salary in view of his year of service
with HELIOS TOWERS cumulatively with the year of service with the defendant.
It is the
claimant’s counsel submission on the sole issue that the defendant in the Addendum to the
Contract of Service knew that the Claimant had earlier worked with an
Organization in which he had put in certain Reasonable of Length of Time of
Services, and the Defendant herein upon acquiring the said Organization recognized
that the Benefits which the Claimants was entitled to, of which same was not
gotten upon the acquisition by the Defendant, was now cumulatively subsidized
into the Benefits the Defendant would pay the Claimant and forms part of severance
package upon disengagement; that it was wrong of the Defendant to have agreed
to pay the Claimant a cumulative Benefit in Retrospect of his years of
Employments with his Initial Employer of which same was acquired by the
Defendant and that the honourable court should not allow the Defendant
to benefit from its own wrong, by not been sincere as to assuring the claimant
that his previous years of employment would be cumulated with the years of his service
with the Defendant. He cited the case of Oilfield Supply Centre Limited v
Johnson (1987) 2 NWLR (Pt 58) 625 and urged the honourable court to grant the Claimant’s prayers on
equitable ground.
I have considered the pleadings of
parties, the evidence led and submissions of counsel to both parties, it is my
view that the issue for determination is whether on the pleadings and evidence
the claimant is entitled to the relief he is seeking. While the claimant is
claiming for one relief which is for an order against the defendant to pay the
claimant’s entitlement as terminal benefit, the defendant assert that the
claimant is not entitled to the reliefs as he has not proved entitlement to same.
In this case, the claimant’s main grouse is that the addendum written by the
defendant provides for cumulative years of work for Helios and then HIS Towers
Ltd. The defense of the defendant is that the terminal benefit of the claimant
was paid in accordance with the Employee handbook.
I must state that the claimant is not contesting
his disengagement from the defendant as the Regional Legal Council, his claim is
essentially to recover the sum of N6, 281, 913.06 being the claimant’s
entitlement as terminal benefit based on the contract of employment. While the
claimant’s counsel has vigorously argued that the claimant was not paid his
employment benefits based on the number of years he worked with Helios Tower
cumulatively with defendant, the law is that in a dispute over entitlement, the
exhibits evidencing same must be placed before the court as it is only from
this that the court can properly determine the terms. The law is that he who asserts must
prove. See Young v Chevron (Nig) Ltd
(2013) LPELR -22126(CA).
In the instant case, the claimant has pleaded the terminal benefits in paragraphs
21, 23 and 24 of the statement of facts as follow:
21. The Claimant knows
as a Fact, that the Defendant having Terminated his Employment Unjustly does
not want to pay his Terminal Benefit in full having not been found wanting of
any Breach of the Defendant Employment Policy.
23. In that the
said Termination came Sudden to the Claimant and the only Fortitude the
Claimant could rely on to move on with in his life was his full Terminal
Benefits which The Defendant is Holding back to.
24. That the
Defendant Knows as a Fact that the Claimant is Entitled to the Sum of
N6,281,913.06 (Six Million, Two Hundred and Eighty-One Thousand Nine Hundred and
Thirteen Thousand Six Kobo) being the Claimant Entitlement due to him having
been employed from 4th of
August, 2008 - 5th January, 2018.
The claimant who was employed initially by Helios Towers was later re-absorbed
by IHS Tower Nig Ltd; the claimant’s contention is that the Letter of Addendum
(exhibit C2) confers the right to be paid his terminal benefits as the word
used is cumulative which includes the number of years at Helios with the number
of years spent in HIS towers. It is pertinent to look at the said exhibit C2
which is reproduced below
Our records
indicate that your effective date of employment with Helios Towers Nigeria
limited is 4th August 2008. Further to this, please be informed that
in computing your employee benefits, IHS will consider the number of your
service years with Helios-Towers Nig Ltd, cumulatively with your service years
with HIS.
Please note that this computation shall apply in
relation to employee benefits only, as HIS shall not be held liable for any
acts, omissions, breaches, obligations, and responsibilities or otherwise under
any contract or arrangement that is not contemplated under this letter.
I must state that if the claimant
refers to this as terminal benefit which is that his salary is to be multiplied
by the number of years he worked in Helios and HIS, he has a duty to tell the
court the instrument that confers same on him.
Employee benefit plan is defined in Blacks law dictionary Ninth edition
as a written stock purchase, savings, option, bonus, profit sharing, thrift,
pension or similar plan solely for employees, officers, and advisers of a company.
The claimant seeks to rely on the document which is the contract of service
agreement which is admitted as exhibit C1 and C2 respectively. What the
claimant is contending is that the word ‘cumulatively’ be used in determining
whether the claimant’s claim to certain benefit is justiciable. They would go
on to submit that the law is well settled that a document be allowed to speak
for itself. If that is the case it becomes imperative to look at the operating
words in exhibit C2.
That in computing your employee benefit
And then go on to say that the
Computation
shall apply in relation to employee benefits only.
Since the words used is computation of
employee benefits, the claimant has consistently referred to the benefit as
Terminal benefit as against employee benefit. In his relief which is reproduced
below he claims
An order of this
Honourable Court directing the Defendant to pay the, claimant the sum of N6, 281,913:06k
(Six Million, Two Hundred and Eight-One Thousand, Nine Hundred and Thirteen
Naira Six Kobo) being the claimant entitlement as terminal benefit based on the
contract of employment given by the defendant to the claimant dated the 27th
of February, 2017 and also an addendum thereto dated the 22nd of
March 2017 respectively.
The claimant from the onset refers to
exhibit C2 as terminal benefit. The defendant reference is to cumulative years
of Helios and IHS and Employee benefit was mentioned in both paragraphs. The
issue this court is being called upon to resolve is whether the claimant is
entitled to employee benefit or to terminal benefit. The defendant in paragraphs 9 and 10 of the
statement of defence outlined the claimant’s entitlement as full salary up to
date of retirement, own contribution to pension fund plus accrued interest,
leave earned but not taken and leave allowance (pro- rata) as applicable and
that nowhere in the contract of employment or letter is it stated that Terminal
benefits will be computed at the rate of gross monthly salary multiplied by the
number of years in employment. During cross examination DW testified on
cumulative benefit being total number of 9years and 4 months
It is not, when you are still in
employment you enjoy the benefits but when the employee is terminated the
unearned leave days is calculated, the individual pension contribution is
calculated and one month in lieu of notice.
She further testified under re-examination
That terminal benefit is for ex-employees
-Employees benefit is for serving benefit.
I took a look at the exhibit C1 where
the basis salary is stated to be N8,076, 745.90 when this is divided by 12
months it comes to 673,062 158 and when multiplied by 9 years = N6, 057, 559.42.
If the components of salary which is N9, 315, 180,27 divide by 12 is 776,
265.022 times 9 is 6, 986, 385.2. what the claimant used to arrive as gross pay
is not before the court.
In consequence, there is the additional
contention of the claimant that the use of the word cumulatively in the
addendum makes it mandatory to calculate the employee benefit of both Helios and
HIS Towers Nig Ltd. It is the duty of the claimant to exhibit a document where
the employee benefit means gross pay and not for the court to assume same. My
understanding of the law is that a contract allegedly reduced into writing
should not leave room for the court to interpret evidence tendered before it.
Where the words of a document are clear and unambiguous, the law compels the
court to accord them plain and ordinary meanings. The defendant contends that while it is agreed
that exhibit C2 contains in the addendum cumulative calculation it refers to
employment benefit as against terminal benefit.
If the claimant acknowledged that he
was also given exhibit C2 as part of his employment contract he has a duty to
tell the court after reading the exhibit, what then is he relying on for his
claims? I think the conclusion on the
matter can be easily reached as there is no evidence before the court on what
the claimant has relied on in granting him such claims. it is clear that the
claimant is fishing for grounds for payment of entitlement that clearly do not
exist or arise for consideration.
Now the rule is that it is the claimant
who claims that must prove and in labour relation, an employee can only claim
if he/she shows an entitlement. It is trite that he who asserts must prove. See
section 131 (1) & (2) of the Evidence Act, 2011. The general
principle of law is that a party that asserts and alleges must prove his
assertion or allegation and by law, the burden is always on the claimant who
files a suit to lead credible evidence to establish his claim and in doing so
must rely on the strength of his own case, not on the weakness of the case of
the defendant (if any). See the case of
Hayder Trading Manufacturing Ltd & Anor v Tropical Commercial Bank (2013)
LPELR-20294 (CA), Okoye & Ors v Nwamankwu (2014) LPELR 23172 (SC). See Jaji & Ors v Olowora & Anor
(2015) LPELR -25575 (CA) the Court of Appeal held
In civil cases, the onus of proving an
allegation is on the plaintiff and the onus does not shift until he has proved
his claim on the preponderance of evidence and balance of probabilities. It is
after the burden of proving the case has been discharged in accordance with the
above principle of law that the burden shifts and continues to shift. But where
a party fails to discharge this burden, then the opponent needs not prove any
fact and the party alleging cannot rely on the opponent’s case.
The burden of
proof in civil cases is not static but shifts depending on the state of
pleadings by parties. See sections 133 (2) and 135 of the evidence Act 2011.
Ebong v Ikpe (2002) 17 NWLR (pt.797) 504 Buhari v Obasanjo (2005) 7 SC (Pt. 1)
1; Ogbu v Wokoma (2005) 7 SC (Pt. 11) 123. An
entitlement is shown by reference to the laws that gives it, the agreement from
what the entitlement was agreed between the contracting parties or the
condition of service governing the relationship of the employer and his/her
employee. The claimant did not tender the document that confers such on him or
tell the court how he arrived at such a figure. Parties are bound by the four
walls of the contract and the only duty of the court is to strictly interpret
the document that gives right to contractual relationship. The court is bound
by the original terms of the contract and will interpret them in the interest of justice.
It is my view that without document to
show that he is entitled to his claims, this court cannot rely on the interpretation
of exhibit C2 to increase and rectify his emolument. Where in the world of work
is an employee given the choice to interpret a document before the court with
extraneous meaning. Interpretation cannot entitle you to a relief. It is therefore now firmly settled that a
claim for this suggests that the claimant is entitled to such sum so when a
claimant makes such claims the expectation is that such a claimant would
indicate how he arrived at such by tendering evidence to prove that he is
entitled to them. In the instant case, the claimant did no such thing. On this
score, it is difficult to determine the veracity of the claims of the claimant.
On the claim for N6, 281, 913 .06 the
claimant did his own compilation of what he is entitled to as terminal benefit,
this court was not told how and where it comes from. Here, the rule applying to special damages
must be adhered to, that is evidence must be led before an award for special
damages is to be made. A claim for special damages is that it must be claimed specifically
and proved strictly. See Framo Nig ltd v Shaibu Daodu (1993) 3 NWLR (P281) 372.
Merely frontloading letters written by the defendant without indicating the
clause, section, article or paragraph that grants the relief is not sufficient.
It is not the court that will shop for the relevant document that substantiates
the claim of a party.
It is my view and I so hold that the
claimant has failed to prove his entitlement to the reliefs sought by him,
Accordingly, the claimant’s claim is hereby dismissed in its entirety.
I make no order as to cost.
Judgment is entered accordingly.
HON. JUSTICE A.N. UBAKA
JUDGE