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: FRIDAY 8TH MAY 2026                SUIT NO: NICN/LA/73/2021

BETWEEN

IMOSEMI CHURCHILL CLAIMANT

AND

RADIX TRUSTEES LIMITED DEFENDANT

Representation:

Dauphine Precious for the Claimant

Dayo Adamolekun for the Defendant

JUDGMENT

Introduction and Claims:

1.   On the 18th day of January, 2021, the Claimant filed this suit via the General Form of Complaint, together with all frontloaded documents, seeking the following reliefs against the Defendant, to wit: 

1. A DECLARATION that the Claimant is entitled to the sum of Two-Hundred Thousand Naira (N200,000.00) being the outstanding salary owed the Claimant by the Defendant for the month of June, July, August and September, 2020, while under the employment of the Defendant. 

2. A DECLARATION that the arbitrary reduction of the Claimant's salary for Four (4) consecutive months without notice or valid reason is unlawful and amounts to constructive dismissal of the Claimant by the Defendant. 

3. AN ORDER of this court directing the Defendant to pay the Claimant the sum of Two-Hundred Thousand Naira (N200,000.00) being the amount owed the Claimant by the Defendant as balance of salary for the month of June, July, August and September, 2020. 

4. AN ORDER of this court directing the Defendant to pay the Claimant the sum of One Million Naira (N1,000,000.00) as specific damages for the arbitrary constructive dismissal of the Claimant from its employment. 

2.  In response to the claims, the Defendant filed its Statement of Defence dated 11th March, 2021 with the list of Defendant’s witness and Defendant’s witness statement on oath deposed to by Temitope Fakayode and the list of document and copies of documents to be relied on at the trial.  Trial commenced in the suit on 10th November 2021.  The Claimant gave evidence for himself, by adopting his witness statement on oath deposed to on 18th January, 2021. The Claimant was cross examined on the same day.  During the examination in chief, the Claimant tendered in evidence exhibits C1 – C4:

1. Offer of employment dated the 29th of April, 2019  - Exhibit C1

2. Renewal of employment dated the 10th of June, 2020 - Exhibit C2

3. Demand notices dated the 15th of October, 2020 and 2nd of November, 2020 respectively - Exhibits C3A&B

4. Defendant's response letter dated the 28th day of October, 2020 – Exhibit C4

3.  The Defendant opened its case on 22nd March 2023 through its witness Temitope Fakayode who adopted her statement on oath deposed to on 11th March, 2021, and was cross examined on 22nd June 2023.  During the examination in chief, the DW tendered in evidence exhibits D1 – D5; as follows:

1. Offer of employment/Renewal of employment  - Exhibit D1(A&B)

2. Claimant’s Schedule of Deposit Mobilization - Exhibit D2

3. Email trail between officers of the Defendant and the Claimant -Exhibit D3

4. Claimant’s emails on Salary Review and Additional Duties  - Exhibit D4

5. Claimant’s letter of resignation/Defendants acceptance – Exhibit D5(A&B)

  

At the end of trial, the Court ordered the parties to file their respective final addresses. The Claimant did not file any written address.  The Defendant’s Final Written Addresses was deemed adopted on 25th March 2026 and the matter was adjourned for judgment.

THE CASE OF THE CLAIMANT

4.   The Claimant was employed as a Business Development Strategist via a one-year contract dated 29th day of April 2019, which was renewed on 10th day of June 2020. His consolidated annual salary was N1,920,000.00 (monthly salary of N160,000.00). From June to September 2020, the Defendant unilaterally reduced his monthly salary to N96,000.00 without notice or valid reason. This resulted in a total outstanding balance of N200,000.00 (N64,000.00 x 4 months). The Claimant raised an inquiry and demand via his official company email, but received no response. The reduction persisted, making his employment "unbearable."  The repeated salary cuts and the Defendant's silence forced the Claimant to resign, making the Defendant’s conduct to amount to constructive dismissal. The Claimant’s solicitors issued demand letters dated 15th October & 2nd November 2020 of which the Defendant ignored and asked him to go to court. The Defendant later responded by letter dated 28th October 2020, admitting the salary reduction.  

THE CASE OF THE DEFENDANT

5.   The Defendant admits employing the Claimant but denies any unlawful or arbitrary conduct and that the salary reduction was mutually agreed due to the Claimant's poor performance and failure to meet monthly targets, and that the Claimant voluntarily resigned, not constructively dismissed.  The Claimant's monthly salary of N160,000.00 was conditional, subject to meeting a monthly target of N20,000,000.00 in funds mobilized and supervisor's approval.  The Claimant failed woefully to meet his target throughout the initial contract period, yet the Defendant paid him in full. The contract was renewed on compassionate grounds despite poor performance. The Claimant’s monthly target was reduced to N12,500,000.00 under new supervision and the Claimant again failed to meet the reduced target. The Claimant total net income from investments over three months (June–August 2020) was only N160,949.18 and instead of terminating his employment, the Defendant agreed with the Claimant on a 60% fixed/40% variable salary structure tied to meeting targets. The Claimant himself, via email of 24th June 2020, calculated that he needed to mobilize N97.3 million to justify his full salary.  The Defendant denies arbitrarily reducing the Claimant's salary and states that the reduction followed express engagement and the Claimant's own calculation. The Claimant admitted understanding the reason for the reduction in his emails of 29th July and 4th August 2020, where he pleaded for additional duties.  The Claimant voluntarily resigned via email on 25th August 2020, which the Defendant accepted and at handover, the Claimant was allegedly caught deleting official emails and destroying company documents. Upon resignation, the Claimant’s prorated salary was N17,454.55, which was erroneously paid twice. He acknowledged receipt but refused to refund the duplicate payment.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

6.   The Defendant raised a sole issue for determination as; “whether the Claimant, in the circumstance, is entitled to the grant of the reliefs being sought.”  The Defendant argued that the Claimant relied solely on exhibits C1 and C2 (employment letters), but failed to plead or prove the complete terms of his employment as a contract may be contained in several documents, which must be read together.  The Defendant relied on the case of Ondo State University v. Folayan (1994) 7 NWLR (PT. 192) 388, 413; and Petrie v. Mac-Fisheries Ltd (1940) 1 K.B 258.  The Defendant argued that the following documents form part of the contract and was admitted in evidence:

• Exhibit D2 – Claimant's Schedule of Deposit Mobilization (showing poor performance; total net income of only N160,949.18).

• Exhibit D3 – Email correspondence of 23rd–25th June 2020, wherein the Claimant calculated that he needed to mobilize N97.3 million to earn his full salary.

• Exhibit D4 – Claimant's emails of 29th June and 4th August 2020, admitting he understood the reason for the salary reduction was his non-performance.

7.   The Defendant relied on Section 167(d) of the Evidence Act 2011’s presumption that withheld evidence is unfavourable, the case of Ogundele v. Agiri (2009) 18 NWLR (PT. 1173) 219 that documents speak for themselves, and the case of Olaniyan v. UNILAG (1985) NWLR (PT.9) 133 that parties are bound by the clear terms of their agreements.  The Defendant argued that the constructive dismissal alleged by the Claimant only occurs where an employer's conduct is so intolerable that the employee has no choice but to resign.  The Defendant relied on the case of Miss Ebere Ukoji v. Standard Alliance life Assurance Co. Ltd [2014] 47 NLLR (PT. 154) 53; and Industrial Rubber Products v. Gillon [1977] I.R.L.R 389.  The Defendant argue that it did not unilaterally vary the contract, rather, that the variation was agreed, with the Claimant himself suggesting the target figure in Exhibit D3. The Defendant submits that the Claimant is estopped by agreement following Exhibit D3.  The Defendant relied on the case of Fred Egbe v. Adefarasin (1987) 1 NWLR (PT.47) 1; and W.C.C. Ltd. v. Batalha (2006) 9 NWLR (PT.986) 595.  On the demand for special damages, the Defendant argues that it must be proved; relying on the case of NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC); Anyanwu v. Uzowuaka [2009] LPELR-515(SC) and that the Claimant adduced no evidence to prove his claim of N1,000,000.00 for constructive dismissal.  The Defendant also argued that general damages flow naturally from a wrong; and that exemplary damages is to punish the Defendant. That, the Claimant proved no injury or wrong on the part of the Defendant.  The Defendant relied on the case of Cameroun Airlines v. Otututizu (2011) 4 NWLR (PT.512) P.31; UBA PLC. v. OGUNDOKUN [2009] 31 WRN 21.  The Defendant argued that exemplary damages are not recoverable in pure contract claims, relying on the case of Allied Bank Nig Ltd v. Akubueze [1997] 6 NWLR (PT. 509) 374; Rookes v. Barnard (1964) A.C 1129; Williams v. Daily Times (1990) 1 NWLR (PT.124) 1.  The Defendant submits that the Claimant has failed on the balance of probabilities to prove his entitlements to the claims.

COURT’S DECISION

8.  I have carefully considered the processes filed in this suit; the evidence led, the document admitted as evidence, and the submissions of counsel.  I adopt the issue as set out by the Defendant; which is, whether the Claimant, in the circumstance, is entitled to the grant of the reliefs being sought.

9.  The parties are agreed that the Claimant was a staff of the Defendant; first, based on exhibit C1 and C2(same as exhibit D1).  The case of the Claimant is that the Defendant unilaterally began deductions of his salary for the four months preceding his resignation.  On the other hand, the Defendant’s case is that the deduction was agreed with the Claimant, based on his inability to meet his target.

10.  I have gone through the evidence before this Court, and the documents constituting the Claimant’s contract.  Exhibit C2 is Claimant’s extant conditions of employment.  It is titled ‘Renewal of Employment’.  It contains a paragraph titled “monthly performance target/commission”.  It provides as follows:

Your monthly target will be as discussed with you by the Executive Director of the company from time to time.  Meanwhile, you will be entitled to commission each time you exceed your target in line with the Company’s policy.

11.  From the above paragraph, whereas the Claimant may be entitled to commission for exceeding his target, it does not state that the Claimant will lose part of his salary for not meeting the said target.  I have also gone through exhibits D2; it is the Claimant’s deposit mobilisation.  It does not in any way suggest that the Claimant’s salary is dependent on the deposit mobilisation.  In exhibits D3, the Defendant informed the Claimant that he was not meeting his target and asked him to come up with a monthly target for himself.  The Claimant agreed to this review.  Exhibit D3 again did not show any consent for the Claimant’s salary to be deducted, due to non-performance.  In exhibit D4, the Claimant stated that his two months’ salary had been reduced for non-performance and expressed that he was willing to be used in other units in the company to maintain his salary.  This is what the Defendant relies on to say that the Claimant consented to the salary reduction.  That the Claimant understood why the Defendant made the deduction does not make it part of his contract; else, he would not in exhibit D5 demand for his full salary.  The Defendant cannot introduce terms that were not originally in the contract.  There is no where in Claimant’s terms of contract, that it was stated that his meeting of target is a prerequisite for the payment of his full salary.  Rather, he was to get a bonus for exceeding his target.  

12.  In the circumstance, the Claimant has established his entitlement to the deducted salaries; as the Defendant did not deny making the deductions.  I shall now consider the reliefs sought by the Claimant.

Relief (i):  The Defendant has not denied that it did not pay the Claimant his full salary for the months of June, July, August and September 2020.  The reason for this failure given by the Defendant has been rejected by the Court.  The Claimant is therefore entitled to this relief.  I declare that the Claimant is entitled to the sum of Two-Hundred Thousand Naira (N200,000.00) being the outstanding salary owed the Claimant by the Defendant for the month of June, July, August and September, 2020, while under the employment of the Defendant. 

Relief (ii):  I agree that the arbitrary reduction of the Claimant's salary for four (4) consecutive months without notice was wrongful.  Further, on the issue of constructive dismissal, in the case of Western Excavating v. Sharp (1978) 1 All ER 713, Lord Denning listed what an employee must prove in a claim for constructive dismissal as follows:

1. A repudiatory breach on the part of the employer,

2. An election by the employee to accept the breach and treat the contract as at an end,

3. The employee must resign in response to the breach,

4. The employee must not delay too long in accepting the breach, as it is always open to an innocent party to waive the breach and treat the contract as continuing (subject to any damages claim that they may have)

This Court in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurnace Co. Ltd. Suit [2014] 47 NLLR (Pt. 154) 531held that:

Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents, Generally, the employee must have resigned soon after the incident. 

 

In this case, the Claimant resigned due to the repudiatory breach by the Defendant, in not paying the Claimant’s full salary.  The Claimant resigned in good time after the breach.  I agree that the Claimant’s resignation was in fact, a constructive termination.  AN ORDER of this court directing the Defendant to pay the Claimant the sum of Two-Hundred Thousand Naira (N200,000.00) being the amount owed the Claimant by the Defendant as balance of salary for the month of June, July, August and September, 2020. 

Relief (iv):  Having held that the Claimant was constructively terminated, I award the sum of N200,000.00 (Two Hundred Thousand Naira) for the arbitrary constructive termination of the Claimant from its employment. 

Cost of this suit is set at N200,000.00 (Two Hundred Thousand Naira) in favour of the Claimant.  This judgment is to be complied with the Defendant, not later than 30 days from this date of judgment; failure, interest will accrue at the rate of 20% per annum.

Judgment is entered accordingly.  

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Hon. Justice (Prof.) Elizabeth A. Oji