IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR, Ph.D.

 

Dated: 22^nd day of April, 2026          

SUIT NO: NICN/PHC/149/2022

 

 

BETWEEN:

 

MR. GABRIEL ONALO-----------------------------------CLAIMANT

 

AND

 

CISCON NIGERIA LIMITED----------------------------- DEFENDANT

 

 

REPRESENTATION:

Glory O. Ozowara, with I. O. Egbetule, for the Claimant

O. U. Nwanya, with J. C. Chinendo, for the Defendant

 

JUDGEMENT

This suit was commenced by way of a General Form of Complaint filed on the 20th day of October, 2022, accompanied by a Statement of Facts, list of witnesses, witness statements on oath, list of documents, and copies of the documents to be relied upon at trial.

 

The suit was originally assigned to His Lordship, Hon. Justice P. I. Hamman, before it was subsequently re-assigned to this Court sometime in May 2024.

Arising from the Complaint and Statement of Facts, the Claimant claims against the Defendant the following reliefs:

 

 

 

 

 

 

 

 

 

 

 

 

 

In response, the Defendant filed a Statement of Defence on the 20th day of December, 2022, accompanied by a list of witnesses, witness statements on oath, list of documents, and copies of the documents to be relied upon at trial. The Statement of Defence was subsequently amended on the 13th day of December, 2023, and further amended on the 16th day of July, 2025.

 

The Claimant filed a Reply to the initial Statement of Defence on the 12th day of January, 2023. Upon service of the Amended Statement of Defence, the Claimant filed an Amended Reply on the 19th day of November, 2024. A further Reply to the Further Amended Statement of Defence was filed on the 1st day of September, 2025.

 

Trial commenced before this Court on the 21st day of November, 2024, with the Claimant testifying as CW1. The Claimant adopted his witness statements on oath, which were both marked as C1(a) and C1(b) respectively.

 

Through CW1, eleven (11) documents were tendered and admitted in evidence as Exhibits C2 – C12.

 

Arising from the Statement of Facts and the Witness Statements on Oath, the case of the Claimant is that he was employed by the Defendant as a Maintenance Engineer and subsequently rose to the position of Senior Completions Engineer/Workshop Supervisor in the Defendant’s Oil Well Completions Department, on Grade Level GD/5.

 

The Claimant stated that his employment was governed primarily by his letter of appointment and the conditions of service as contained in the Defendant’s Staff Manual, the extant version of which was issued in 2009.

 

The Claimant averred that by virtue of his grade level, he was entitled to a salary of ?409,949.42, in addition to job bonus/field allowance whenever he undertook offshore or field assignments away from the office or his residence.

 

The Claimant further contended that contrary to his entitlement, the Defendant made deductions in the sum of ?263,261.33 from his earnings without his consent. He added that deductions were also made in respect of pension contributions and the National Housing Fund, which were not remitted for several months.

 

The Claimant posited that sometime in June 2016, he was, without prior notice, denied access to his workplace by the Defendant’s management and was locked out alongside other staff who were engaged in an industrial action against the Defendant. He added that all efforts made by him to have the Defendant rescind its decision and allow him access to his office proved abortive.

 

The Claimant maintained that he was not a member of PENGASSAN and had never been queried or issued any warning throughout his employment. He further averred that, having served the Defendant meritoriously and without blemish, and having reached his employment anniversary which ordinarily entitled him to annual leave in June of each year, he is entitled to gratuity under the Gratuity Schedule provided in Article 13.1(i) & (iii) and Article 13.7(iv), pages 31 and 32 of the Defendant’s Staff Manual. He added that he is also entitled to accrued long service compensation.

 

The Claimant concluded that the refusal of the Defendant to pay his entitlements necessitated the engagement of his solicitors and the institution of this action.

 

Under cross-examination, CW1 stated that he was not issued with a copy of the Staff Manual by the Defendant but obtained same from a colleague in the Human Resources Department. He however maintained that the said Manual governs employment, discipline, and the conferment of benefits within the Defendant company.

 

CW1 admitted that he had not been in the employment of the Defendant since 2016. He also admitted that he did not make any formal complaint at the time he noticed deductions from his salary. He further confirmed that he exited the Defendant’s employment in June 2016 and that his leave allowance for the year 2015 was paid to him in July 2016.

 

Upon the discharge of CW1, the Claimant closed his case.

 

The Defendant opened its defence by presenting one witness, in the person of Briggs Wali, who testified as DW1. DW1 adopted his Witness Statements on Oath dated 13th December 2023 and 16th July 2025, which were both marked as D1(a) and D1(b) respectively.

 

Through DW1, seven (7) documents were tendered and admitted in evidence as Exhibits D2 – D8.

 

Arising from the Further Amended Statement of Defence and the Witness Statements on Oath, the case of the Defendant is that the Claimant did not sign an acceptance of the Defendant’s Staff Manual issued in 2009.

 

The Defendant further contended that the Claimant was one of 211 former employees of the Defendant who were members of PENGASSAN, and whose employment was terminated in June 2016 via a letter sent to him, which he allegedly refused to accept.

 

The Defendant added that following the disengagement, a series of meetings were held on the 13th, 14th, and 15th of November 2017, which culminated in the issuance of a communiqué and a collective agreement.

 

The Defendant further averred that, assuming without conceding that the Claimant was not a member of PENGASSAN and is entitled to rely on the Staff Manual, the provisions of the Manual relating to terminal benefits had been amended by a communiqué issued following meetings held between the 15th and 17th of March 2016.

 

The Defendant also contended that at a meeting held in May 2014, it was resolved that, with effect from 2013, staff would be required to undergo a six-year vetting period before becoming entitled to terminal benefits.

 

Under cross-examination, DW1 stated that he had worked with the Defendant for about 15 years. He denied the assertion that the Defendant had never issued its conditions of service to staff during his period of employment.

 

However, DW1 admitted that there is no evidence before the Court to show that the conditions of service were specifically issued to the Claimant. He also stated that there is no evidence to show that check-off dues were deducted from the Claimant’s salary.

 

DW1 further stated that the Defendant utilized courier services, including DHL, for dispatch purposes. He admitted that there was no reason stated for the return of the dispatch in respect of Exhibit D3, but maintained that the courier service reported that the Claimant refused to acknowledge receipt of the letter.

 

DW1 also stated that Exhibit D3 emanated from redundancy letters dispatched through DHL, and that there was no provision for endorsement and return. He further admitted that Exhibit D10 was issued at the instance of the Defendant.

 

Upon the discharge of DW1, the Defendant closed its case, and the matter was adjourned for adoption of Final Written Addresses.

 

On the 3rd day of November 2025, the Defendant filed its Final Written Address. Arising therefrom, learned counsel to the Defendant, O. U. Nwanya, Esq., formulated four issues for determination as follows:

 

1. 1.Whether this suit is statute-barred?
2. In the unlikely event that the court answers issue one in the negative, whether the Claimant suit is caught by the doctrine of laches and acquiescence, waiver and estoppel
3. 3.Whether the Defendant has sufficiently demonstrated that its Staff Manual 2009 (Exhibit C4) was amended and thus the Claimant’s terminal benefits and other entitlements were not governed by it?
4. 4.Whether the Claimant established his entitlement to    reliefs claimed in this suit?

 

In arguing issue one, counsel posited that the statutory basis on which the issue of limitation of action or statute- bar was raised is section 16 of the Limitation Law Cap. 80, Laws of Rivers State 1999. Upon the said provision, counsel submitted that by paragraph 15 of the Statement of Facts and relief one, the Claimant accepted that his employment with the Defendant was terminated in June 2016 while adding that the causes of action were the failure of the Defendant to pay the Claimant his entitlements when they became due and were claims which became enforceable more than 5 years ago before this suit was filed. Counsel cited the cases of A.G. Adamawa State v. A.G. Federation (2014)14 NWLR (Pt.1420) 515 at 550; Muhammed v. Military Administrator Plateau State (2001) 16 NWLR (Pt.740) 524 at 545-546; British Airways Plc v. Akin-yosoye (1995)1 NWLR (Pt.374) 722 at 730.

 

Counsel argued further that the Claimant stated during cross examination that from the year 2016 till August 2022 when he wrote a letter of demand through his lawyer, he did not make any formal demand from the Defendant for payment of his entitlements.

 

Counsel submitted further that causes of action are severable when it comes to the issue of statute of limitation as it is possible in an action for some causes of action to be statute-barred while others are not. Counsel cited the cases of Anwadike v. Adm-Gen of Anambra State (1996) 7 NWLR (Pt.460) 317 at 333 and Elf Oil Nig. Ltd v. Oyo State Board of Internal Revenue (2002) LPELR- 12260 (CA) while positing that if this court is of the view that some of the claims are not statute-barred, the court should sever them from other heads of reliefs which are statute-barred.

 

Counsel made exposition of several authorities on whether or not limitation laws apply to contract of employment before submitting that from whatever angle one looks at the matter, it is crystal clear that this court has no Jurisdiction to entertain this suit since same is statute-barred. Issue one should therefore be resolved in the affirmative.

 

In arguing issue two, counsel cited the case of Kolo v. Lawan (2018) LPELR-44378 (SC) and Grant Iheanacho v BAP Services Limited ( accessed 2 November 2025) with regards to laches and acquiescence before contending that it can be seen from the Claimant’s Statement of Facts that the alleged entitlement to gratuity according to paragraph 19 and relief 5 accrued as at 30/6/2016; while Pension remittance was due as at April 2014 and May 2016 (relief 6) and National Housing Fund remittance was due for remittance as at January 2014 and May 2016 (relief 7) while Salary deductions were made for May 2015, July 2015 and August 2015(relief 8) and Leave allowance was due since June 2016 (relief 9) and Long service compensation was due since June 2016(relief 10). 

 

Counsel posited that the important question to ask is why did the Claimant wait for such a long time before pursuing these claims?

 

In arguing issue three, counsel posited that the Claimant did not indicate his acceptance of the Staff Manual 2009 (Exhibit C4) as required in page 45 of that Manual which provides for acceptance and acknowledgment of the Manual. Counsel added that in the unlikely event that the court holds that there is a binding contract created by the parties through the Staff Manual, the Defendant contends that the Manual was later amended by the Defendant.

 

Counsel submitted that the Defendant's Staff Manual (Exhibit C4) duly empowers it to amend the Staff Manual, hence, Exhibits D5 is conclusive on the terminal benefits of the Claimant and stands as containing the basis of computing the final entitlement of the Claimant. Counsel also referred to Exhibit D6 and D7 on the amendment of the staff manual and posited that the Claimant never led any credible evidence to show that during the Town hall Meeting of the Defendant, the amendment of the provision for payment of terminal benefits contained in Exhibit C4 was rejected by the staff of Defendant.

 

Counsel contended that the Claimant cannot whittle down the potency of Exhibits D6, D7 and D8 while citing section 128, 131 and 132 of the Evidence Act and the cases of Amobi v. OgidiUnion (Nig) 2021) C-57337 (SC) 59 A.G. Rivers State v. A.G. Bayelsa State (2012) LPELR-9336 (SC) Bakari v. Ogundipe (2020) LPELR-49571; Arije v. Arije (2018) LPELR-44193 (SC) and Omoniyi v. Alabi (2004) 6 NWLR (Pt. 870) 551.

 

In arguing issue four, counsel submitted that in the unlikely event that this court holds that the Claimant's action is not statute-barred and that the action of the action is not caught by the equitable doctrine of laches and acquiescence and that the Defendant’s Staff Manual was not amended, it is contended that the Claimant has woefully failed to establish his entitlement to the reliefs sought.

 

Counsel cited section 131 (1) of the Evidence Act 2011 and the cases of University Press Ltd v. I.K Martins (Nig) Ltd (2000) 4 NWLR (Pt. 654) 584; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 to contend that he who asserts must prove.

 

With regards to reliefs 1 and 4, counsel contended that the Defendant has the right under master-servant relationship to terminate the employment and assuming the termination was wrongful, the remedy is one month salary in lieu of notice. Counsel cited the cases of Reliance Telecommunication Ltd v. Adegboyege (2017) 8 NWLR (Pt. 1567) 319 at 332; Dawodu v. Stanbic IBTC Bank PLC (2016) 66 NLLR (Pt 236) 372 at page 422 and Ifeta v. SPDC Nig. Ltd (2006) 8 NWLR (Pt. 983) 585 at page 615.

 

With regards to reliefs 2 and 5, counsel posited that the Claimant has not established his claim to those reliefs and even if the court holds that the reliefs are not statute-barred and not caught by the doctrine of laches and acquiescence, this court can only, with due respect, award those reliefs on the basis of the amended Staff Manual.

 

With regards to relief 12, counsel cited the cases of SPDCN Ltd v. Okeh (2018) 17 NWLR (1649) 420 at 439 & 440 and DHL Inl' Nig. Ltd v. Eze-Uzoamaka (2020)16 NWLR (Pt1751) 445 at 503 to 504 to contend that the payment of solicitor’s fee cannot be shifted to the Defendant.

 

In response to the Defendant’s final address, the Claimant on the 8^th of January, 2026 filed his final written address and arising therefrom, counsel to the Claimant formulated a lone issue for determination to wit:

 

WHETHER THE CLAIMANT HAS PROVED HIS CASE, GIVEN THE FACTS AND EVIDENCE BEFORE THE COURT, TO JUSTIFY THE RELIEFS SOUGHT.

 

In arguing the lone issue, counsel posited that in relation to the facts averred as to his employment and salary, it is trite that the rights, obligations and liabilities of parties to an employment contract are determined by the terms and conditions to which parties thereto have freely agreed. Counsel cited the case of CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) and JULIUS BERGER (NIG.) PLC V. NWAGWU (2006) 12 NWLR (PT. 995) 518.

 

Counsel posited that Exhibit C4 establishes reliefs i, ii and iii while adding that the Defendant’s contrary contention that Exhibit D2, (Communique of 15/12/2017 between Defendant and PENGASSAN) is the applicable document for the computation of Claimant’s terminal benefits, is unsustainable in law, as a Communique (without more, e.g. adoption thereof and integration into a Conditions of Service) by its very nature cannot be substituted for, or treated as Conditions of Service.

Counsel also cited Section 254C(1)(f) and (h) of the Constitution of the Federal Republic of Nigeria and the case of SKYE BANK PLC V. ADEGUN (2024) LPELR-62219(SC) to contend that the claim for N9,838,786.32 as Compensatory damages for wrongful termination is justified.

 

Counsel argued that the claim on pension contribution and national Housing Fund were unchallenged while the Claimant proved that he is entitled to long service award through exhibit C4. Counsel added that the Claimant is entitled to damages for breach of Claimant’s employment contract and cost of litigation while citing the case of NAUDE & ORS v. SIMON (2013) LPELR-20491(CA).

 

With regards to the contention on the suit being statute barred, counsel posited that the cited judicial authorities supporting the argument under this head, are wholly mistaken and misplaced because the Defendant itself mentioned that termination of the Claimant’s employment took effect in November, 2017 in one breath while by Exhibit C10, the letter written in response to the Claimant acknowledged the debt owed to the Claimant thereby reviving the claim. 

 

Counsel in this regard cited the cases of INCAPINT LTD V. AMCON (2023) LPELR-60192(CA) Pp. 22-23, Paras. B-B; and DEC OIL & GAS LTD V. UBA BANK (2021) LPELR-53353(CA) Pp.10-11 and FBN LTD v. ROYAL PAVILION (NIG) LTD & ANOR (2022) LPELR-57742(CA) P. 45, Paras. B-E.

 

With regards to laches and acquiescence, counsel cited the cases of ISAAC v. IMASUEN (2016) LPELR-26066(SC) Pp. 12-13, Paras. E-D) and ALONGE & ANOR v. ALONGE (2023) LPELR-60438(CA) to contend that the Defendant pleaded no specific facts in support of the defence of laches and acquiescence, and how its supposed acting on the un-pleaded facts or circumstances altered its position, such that the grant of the reliefs sought in this suit would be prejudicial to it.

 

Counsel argued that the Claimant has posited that he is not a member of PENGASSAN and that Exhibit D2 does not apply to him as he did not sign same. Counsel added that assuming the Claimant was a member of PENGASSAN, there is no evidence before this Court that Claimant was one of the 211 staff whose employment was terminated on 14^th November, 2017 and that Exhibit D2 cannot have a retroactive effect citing the case of EKEOMA AJAH V FIDELITY BANK PLC (Suit No. NICN/LA/588/2017).

 

Counsel concluded by submitting that flowing from the totality of evidence presented in this case, Claimant is entitled to the reliefs sought, having proved his case on the balance of probabilities as required by law.

 

By way of Reply on point of law filed on the 5^th day of February, 2026 counsel to the Defendant contended that the portion of the Claimant’s final address where it was contended that the Claimant is still in the employment of the Defendant on one hand and his claim for terminal benefits on the other raises a vital point of approbation and reprobation in law. Counsel in this regard cited the case of Salisu v. Mobolaji (2016) 15 NWLR (Pt. 1535) 242 at 286 and Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91 at 195.

 

Counsel added that Civil cases are decided on the basis of evidence and not on the final address of Counsel which cannot take the place of pleadings and evidence while citing the case of Efa v. Ita (2022) LPELR-586 65 (CA) page 19.

 

With regards to acknowledgment of debt reviving a suit, counsel cited Section 28(7) of the Limitation Law, Laws of Rivers State of Nigeria 1999 to contend that acknowledgment of debt cannot be revived after a suit is already statute-barred.

 

In view of all the foregoing, I have carefully evaluated all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, observed their demeanour, and painstakingly examined all the exhibits tendered and admitted in evidence.

 

I have also taken into account the reliefs sought vis-à-vis the submissions of learned counsel to both parties in their respective Final Written Addresses and Reply on Points of Law.

 

In consideration of the foregoing, I find that, arising from the totality of the issues raised and argued by learned counsel in their respective final written addresses, the sole issue for determination in this suit is as follows:

 

Whether, having regard to the facts, circumstances of this case, and the evidence before the Court, the Claimant is entitled to the reliefs sought.

 

Before proceeding to resolve the sole issue, it is imperative to address the preliminary issue which constitutes a clog on the determination of the substantive suit, as canvassed by the Defendant. This is the question of whether the instant suit is statute-barred or caught by the doctrine of laches and acquiescence.

 

The resolution of this issue is germane, as it touches on the jurisdiction of this Court. It is settled that no matter how well conducted, proceedings conducted without jurisdiction amount to a nullity.

 

In the case of ARDO & ANOR v. NYAKO & ORS (2013) LPELR-20887(CA) the court held that:

“it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. It has also been held that it is the claim of the Plaintiff, in this case, it is the Statement of Claim and the Reliefs Sought by the Appellant that determine the jurisdiction of the Court. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B - C and Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 76”.

The contention in relation to lack of jurisdiction in the instant suit is predicated on the ground that the suit is statute barred being that the claim of the Claimant which include claim of unremitted pension, terminal benefit, deduction from salaries, unremitted National Housing fund contribution, leave allowance and long service award, are contended by the Defendant to have been brought outside the 5 years limitation period stipulated by Section 16 of the Limitation Law of Rivers State.

 

In response, learned counsel to the Claimant contended that the suit is not statute-barred, particularly as the Defendant acknowledged the alleged indebtedness through its solicitors by a letter dated 20th September 2022, which, in effect, revived the cause of action, assuming it had become statute-barred.

 

In resolving the issue of whether this suit is statute-barred, I must state that although the Defendant may be correct in asserting that the sums claimed constitute debts, it must be borne in mind that claims arising from salaries and payments for work done are not caught by limitation laws in the strict sense.

 

Claims relating to deductions from salaries, pension contributions, National Housing Fund contributions, terminal benefits, gratuity, and long service awards are all rooted in work done and entitlements accruing therefrom. Such claims have been consistently treated by this Court as constituting a continuing injury.

 

This position accords with the settled jurisprudence of this Court. In Hon. Runyi Kanu (JP) & Ors v. Attorney-General & Commissioner for Justice, Cross River State & Ors (2013) 32 NLLR (Pt. 91) 63 NIC, the Court held that:

 

“In cases of claims for salary and allowances… where the injury or damage is continuous, the defence of limitation would not avail the defendant.”

 

Similarly, in Captain Tony Oghide & Ors v. Shona Jason Nig. Ltd (2011) 22 NLLR (Pt. 61) 63, this Court held that:

 

“Labour disputes associated with salaries or payments for work done cannot be caught up by limitation laws.”

 

The above authorities represent the settled exception to the general application of limitation laws in employment-related matters. Consequently, the authorities relied upon by learned counsel for the Defendant are of no moment in the circumstances of this case.

 

In the light of the foregoing, I find no merit in the contention that this suit, or any part thereof, is statute-barred.

 

With respect to the doctrine of laches and acquiescence, it must be stated at the outset that the doctrine does not operate to deprive the Court of jurisdiction. Rather, it constitutes a defence grounded in equity, which must be considered in the context of the reliefs sought.

 

 In the case of LAOSEBIKAN & ORS v. AWOJOBI (2015) LPELR-24831(CA) the court made an exposition on laches and acquiescence when it held that:

 

"The Black's Law Dictionary 7th Edition by Bryan A. Garner at page 879 defines "LACHES" as: "1. Unreasonable delay or negligence in pursuing a right or claim - almost always an equitable one in a way that prejudices the party against whom relief is sought. 2. The equitable doctrine by which a Court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought." "ACQUIESCENCE" on the other hand, is defined at page 23 of the same Dictionary thus: "1. A person's tacit or passive acceptance implied consent to an act. 2. Passivity, and inaction on foreign claims, that, according to customary international law, usually call for protest to assert, preserve, or safeguard rights. The result is that binding legal effect is given to silence and inaction. Acquiescence, as a principle of substantive law is grounded in the concept of good faith and equity." The twin concepts of laches and acquiescence as defined above are predicated on the public policy that it is important that the protection of the law be bestowed upon long and undisturbed possession of land, even when it is wrongful. The doctrine of laches and acquiescence and standing by has its root in the equitable maxims that:- "delay defeats equity" and "equity aids the vigilant and not the indolent". Per NIMPAR, J.C.A. (Pp. 20-21, paras. A-A)

 

However, it is noteworthy that the doctrine is traditionally applicable in cases relating to proprietary rights, particularly interests in land. In the instant case, which concerns employment rights and monetary entitlements, the doctrine does not operate as a bar to the exercise of jurisdiction by this Court.

At best, it may be considered in assessing the merit of specific reliefs, but it cannot constitute a clog on the adjudicatory powers of this Court

 

On the whole, I find no merit in the contention that the instant suit is statute-barred or defeated by the doctrine of laches and acquiescence.

 

Accordingly, the objection is hereby overruled, and this Court holds that it is duly clothed with the requisite jurisdiction to entertain this suit. 

 

Having said that, I now turn to the lone issue formulated for determination, which is whether the Claimant is entitled to the reliefs sought. In addressing this issue, it is pertinent to first reiterate that the Claimant seeks declaratory reliefs upon which the other reliefs are ancillary. The law is settled that a party seeking declaratory reliefs must succeed on the strength of his own case by establishing, through credible evidence, his entitlement to such reliefs. He cannot rely on the weakness of the defence, if any.

 

In MATANMI & ORS v. DADA & ANOR (2013) LPELR-19929(SC), the Supreme Court emphatically held as follows:

 

“I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence…”

Per Fabiyi, J.S.C.

 

Similarly, in PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 (CA), the Court of Appeal held that:

 

“In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim… courts do not make a declaration of right on admissions.”

Per Adekeye, JCA.

 

While it is trite that civil cases are determined on the preponderance of evidence, the initial burden of establishing the Claimant’s entitlement to the reliefs sought rests squarely on the Claimant, in line with the settled principle that he who asserts must prove. In Ajuwon v. Akanni (1993) NWLR (Pt. 316) 182, the Supreme Court held that:

 

“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted.”

Per Iguh, JSC.

 

Guided by the foregoing authorities, and having regard to the circumstances of this case as earlier highlighted, I shall now proceed to consider each of the reliefs sought by the Claimant, with a view to determining whether they are grantable or otherwise.

 

 

 

Relief one seeks for “A declaration that the Defendant’s actions of consistently locking out the Claimant from its work premises for over eight (8) weeks amounts to constructive termination of the Claimant’s employment, which termination is wrongful for being contrary to the provisions of the Defendant’s Staff Manual, 2009, and for which the Claimant is entitled to compensatory damages.

 

The crux of the Claimant’s case in respect of this relief is that he was locked out of the Defendant’s premises for a period of eight (8) weeks, which he contends amounts to constructive termination of his employment.

 

The Claimant averred that sometime in June 2016, he was locked out of the Defendant’s premises alongside other staff who were engaged in an industrial action against the Defendant.

 

In response, the Defendant contended that the Claimant was one of the 211 members of PENGASSAN whose employment was terminated, and that it was the disengagement that led to the industrial action.

 

In proof of its position, the Defendant tendered a letter of termination dated 30th June 2016, admitted as Exhibit D3, as well as an email forwarding the said letter to the Claimant on 11th July 2016, admitted as Exhibit D4.

 

Furthermore, under cross-examination, the Claimant admitted that he left the employment of the Defendant in June 2016.

 

In view of the foregoing evidence, I find that the Claimant has not established the factual basis of being locked out of the Defendant’s premises for a period of eight (8) weeks as constituting a constructive termination of his employment.

 

On the contrary, the evidence before this Court, particularly Exhibits D3 and D4, as well as the admission of the Claimant under cross-examination, indicates that the Claimant’s employment was brought to an end by way of termination in June 2016.

 

Accordingly, the Claimant has failed to discharge the burden of proof required in establishing his entitlement to the declaratory relief sought in relief one.

 

Relief one is therefore refused without hesitation.

 

Relief two seeks for “A declaration that the Claimant is entitled to end-of-service benefits under the Defendant’s Gratuity Scheme as provided for in the Defendant’s Staff Manual, 2009, having served the Defendant meritoriously for over twenty (20) years.

 

The Claimant’s case in respect of this relief is that his employment was governed by the Defendant’s Staff Manual, 2009, particularly Article 13, which provides for the computation of gratuity. The Claimant contended that upon demand for the payment of his gratuity, he was informed for the first time that the Defendant had negotiated his gratuity under a Collective Bargaining Agreement (CBA) with PENGASSAN, despite the fact that he never authorized PENGASSAN to bargain on his behalf.

 

In response, the Defendant contended that the disengagement of 211 staff, allegedly members of PENGASSAN, including the Claimant, led to the execution of a Collective Bargaining Agreement in November 2017. The Defendant further posited that even if the Claimant was not a member of PENGASSAN, the computation of terminal benefits had been revised through a communiqué issued following a meeting held in March 2016. The Defendant also relied on a resolution reached at a town hall meeting held on 27th May 2014, to the effect that terminal benefits under Article 13(1) would be computed up to 2012 at 60%, while from 2013, staff would be deemed to be on a new service year subject to a six (6) year vesting period.

 

In evaluating the foregoing contentions, I have carefully examined the documentary evidence before this Court.

 

The Claimant tendered his letters of employment as Exhibits C2 and C3, the Staff Manual, 2009 as Exhibit C4, the Defendant’s salary structure for 2014 as Exhibit C5, and his payslips as Exhibits C6(a) – (h). The Claimant also tendered the demand letter written by his solicitors and the Defendant’s response thereto as Exhibits C9 and C10 respectively.

 

On the part of the Defendant, the communiqué issued at the end of the meeting with PENGASSAN was tendered as Exhibit D5, the minutes of the meeting of 27th May 2014 as Exhibit D6, and the communiqué arising from the meeting of 15th to 17th March 2016 as Exhibit D8.

 

Upon a careful consideration of the foregoing exhibits, I find that Exhibit D2, which is contended to be evidence of authorization for check-off dues, was purportedly issued on 1st June 2016. This raises a question as to whether the Claimant was indeed a member of PENGASSAN prior to the termination of his employment.

 

I also agree with learned counsel to the Claimant that the signature on Exhibit D2 appears materially different from the Claimant’s signatures on Exhibits C2 and C3. While this may be circumstantial, it further weakens the Defendant’s assertion that the Claimant was bound by the union arrangement.

 

More importantly, Exhibit D5, which is the communiqué relied upon by the Defendant, does not contain the names of the 211 disengaged staff to whom the alleged collective agreement applies. There is therefore no cogent evidence before this Court to establish that the Claimant was a party to, or bound by, the said agreement.

 

Furthermore, paragraph 6 of Exhibit D5 indicates that the parties agreed to tidy up the CBA document, which was to be signed within two weeks. This clearly shows that Exhibit D5 is not the Collective Bargaining Agreement itself. The said CBA was not produced before this Court. The implication is that there is no evidence of a concluded and executed agreement binding on the Claimant.

 

In the circumstance, I find that the Defendant has failed to rebut the Claimant’s assertion that he is not bound by any Collective Bargaining Agreement.

 

The next issue relates to the effect of Exhibits D6 and D8 on the applicability of the Staff Manual, 2009.

 

While the Claimant contends that his gratuity should be computed strictly in accordance with the Staff Manual, the Defendant maintains that the computation of terminal benefits was subsequently revised through internal resolutions and communiqués.

 

Upon a careful perusal of Exhibit D6, I find that it provides that terminal benefits from the date of employment to 2012 shall be computed at 60% of basic salary based on the 2012 salary structure. It further provides that from 1st January 2013, all staff would be deemed to be on a new service year subject to a vesting period.

 

Similarly, Exhibit D8 provides that with effect from January 2013, the computation of terminal benefits shall be based on 50% of basic salary for each year of service, and that the arrangement would subsist until 31st December 2018.

 

From the foregoing, it is evident that the Defendant altered the structure for the computation of terminal benefits from what was originally contained in the Staff Manual, 2009.

 

The Claimant admitted during trial that he was aware of the discussions at the town hall meeting where these changes were introduced, although he contended that the meeting became rowdy and was abruptly ended. However, the Claimant did not demonstrate that he formally rejected the said alterations or protested same to the Defendant in his personal capacity.

 

In the absence of any evidence of protest or rejection, the Claimant is deemed to have had constructive knowledge of the revised terms and to have acquiesced in same.

 

In Mrs. T. C. Chukwuma v. Mr. Babawale Ifeloye (2008) 12 SC (Pt. II) 291, the Supreme Court held that a party may be denied relief where, by his conduct, he is deemed to have waived his right or acquiesced in a state of affairs.

 

Applying the above principle, I find that the Claimant, having had knowledge of the revised terminal benefit structure and having failed to object thereto, is deemed to have accepted same.

 

In the light of the foregoing, while the Claimant has established his entitlement to end-of-service benefits, such entitlement cannot be computed strictly in accordance with the Staff Manual, 2009 as originally framed.

 

Accordingly, this relief succeeds only in part.

 

It is hereby declared as follows:

That the Claimant is entitled to end-of-service benefits under the Defendant’s Gratuity Scheme as modified by the resolutions reached at the meeting of 27th May 2014 and the communiqué of 17th March 2016, having served the Defendant meritoriously for over twenty (20) years.

 

Relief three seeks for “A declaration that the Claimant is entitled to compensatory damages for loss of earnings arising from returns on investment, occasioned by the Defendant’s withholding and/or non-remittance of the Claimant’s statutory pension contributions from 2014 to 2022, after deducting same from the Claimant’s salary.

 

The factual basis for this relief is the Claimant’s assertion that between 2014 and 2022, the Defendant failed to remit pension contributions deducted from his salary into his Retirement Savings Account.

 

However, while the Claimant broadly alleged non-remittance covering the period from 2014 to 2022, he specifically particularized the alleged deductions only from April 2014 to May 2016, placing the sum at ?1,120,009.08. This is consistent with the Claimant’s own admission that his employment with the Defendant came to an end in June 2016.

 

The Defendant did not make specific averments in response to the particulars of the alleged deductions but merely denied the same and put the Claimant to the strictest proof.

 

In evaluating the evidence before the Court, I have considered paragraph 12 of the Claimant’s Statement of Facts alongside Exhibit C7, which is the Claimant’s Retirement Savings Account statement domiciled with Crusader Sterling Insurance.

 

A careful examination of Exhibit C7 reveals that it does not support the Claimant’s assertion of non-remittance of pension contributions for the period April 2014 to May 2016. Notably, the employer reflected in the said Retirement Savings Account is Melvon Nig. Ltd, and the statement covers the period from April 2017 to December 2021.

 

The said exhibit does not provide any credible linkage between the Defendant and the alleged non-remittance during the relevant period. More importantly, it does not establish that the Defendant failed to remit pension contributions deducted from the Claimant’s salary between April 2014 and May 2016.

 

Furthermore, it is not in dispute that the Claimant ceased to be in the employment of the Defendant in June 2016, and as such, no pension contributions could have accrued from the Defendant beyond that period.

 

It must be restated that a party seeking a declaratory relief must succeed on the strength of his own case by presenting credible, cogent, and convincing evidence. Declaratory reliefs are not granted on speculation, nor on the weakness of the defence.

 

In the absence of credible evidence establishing the alleged non-remittance of pension contributions by the Defendant, the Claimant has failed to discharge the burden of proof placed upon him.

 

Consequently, the Claimant is not entitled to the declaration sought in relief three, and the same is hereby refused.

 

Relief four seeks for “An order directing the Defendant to pay the sum of ?9,838,786.32, being the equivalent of two (2) years’ salary, as compensatory damages for wrongful termination of the Claimant’s employment.

 

This relief is ancillary to the declaration sought in relief one, wherein the Claimant sought a declaration that his alleged lockout from the Defendant’s premises amounted to constructive termination of his employment.

 

This Court has earlier refused the declaratory relief in respect of constructive termination, having found that the Claimant failed to establish that his employment was terminated in that manner, particularly in view of the evidence of termination placed before the Court.

 

In the absence of a finding that the termination of the Claimant’s employment was wrongful, there exists no legal basis upon which the claim for compensatory damages can be sustained.

 

It is trite that where a principal relief fails, any ancillary relief predicated upon it must also fail.

 

Accordingly, relief four lacks merit and is hereby refused

 

Relief five seeks for “An order directing the Defendant to pay the Claimant the sum of ?16,397,977.02 as gratuity, being 200% of the Claimant’s gross monthly salary for each year served, based on the Defendant’s Staff Manual, 2009; plus interest at 10% per annum from July 2016 until judgment.

 

This relief is ancillary to the declaration granted in respect of relief two, wherein this Court held that the Claimant is entitled to end-of-service benefits under the Defendant’s Gratuity Scheme as modified by the resolutions reached at the meeting of 27th May 2014 and the communiqué of 17th March 2016.

 

In view of the said declaration, the Claimant’s gratuity cannot be computed strictly in accordance with the Staff Manual, 2009 as originally framed.

 

Rather, the computation must be in line with the revised structure established by Exhibits D6 and D8, to wit:

• from the date of employment to 2012, gratuity shall be computed at 60% of the basic salary based on the 2012 salary structure; and
• from 2013 to June 2016, gratuity shall be computed at 50% of the basic salary for each year of service.

 

Accordingly, this relief succeeds only in part.

It is hereby ordered as follows:

 

That the Defendant shall compute and pay to the Claimant his gratuity based on 60% of the basic salary under the 2012 salary structure for the period from commencement of employment to 2012, and at 50% of the Claimant’s basic salary for each year of service from 2013 to June 2016.

 

Relief six seeks for “An order directing the Defendant to remit the sum of ?1,120,009.08 into the Claimant’s Retirement Savings Account, being alleged pension deductions and contributions not remitted.

 

This relief is predicated on the same facts as relief three, which sought a declaratory pronouncement on the alleged non-remittance of pension contributions.

 

This Court has already found that the Claimant failed to establish, by credible evidence, that the Defendant did not remit the alleged pension contributions.

 

In the absence of proof of non-remittance, there exists no basis for granting this consequential relief.

 

Accordingly, relief six is refused.

 

Relief seven seeks for “An order directing the Defendant to remit the sum of ?213,172.84 into the Claimant’s National Housing Fund account, being deductions made but not remitted.

 

The Claimant’s case is that specific monthly deductions were made from his salary towards the National Housing Fund but were not remitted. The Claimant particularized the deductions and computed the cumulative sum claimed.

 

The Defendant denied the claim and put the Claimant to strict proof.

 

In evaluating the evidence, I have examined Exhibit C8, being the Federal Mortgage Bank Individual Employee Ledger. The said exhibit clearly shows that no contributions were made for the periods in question, particularly July 2012 and January 2014 to May 2016.

 

Thus, the Claimant has successfully established that deductions were made but not remitted.

 

However, there are inconsistencies in the computation of the total sum claimed. The Claimant stated that deductions from June 2014 to May 2016 were in the sum of ?7,288.41 per month. However, the payslips tendered (Exhibit C6) show varying figures.

 

Specifically:

• the June 2014 payslip reflects a National Housing Fund deduction of ?6,375.05;
• the payslips for May, July, and August 2015 reflect deductions of ?5,976.49 each.

 

These discrepancies create uncertainty as to the exact total amount deducted.

 

In the circumstances, while the failure to remit is established, the precise sum claimed has not been strictly proved.

 

Accordingly, this relief succeeds only in part.

 

It is hereby ordered as follows:

 

That the Defendant shall compute the total amount deducted from the Claimant’s salary as National Housing Fund contributions for the relevant period and remit same into the Claimant’s Federal Mortgage Bank account No. 102032636.

 

 

Relief eight seeks for “An order directing the Defendant to refund the sum of ?263,261.33, being short-payments and/or unauthorized deductions from the Claimant’s salary for May, July, and August 2015; plus interest.

 

The Claimant’s case is that based on his Grade Level GD/5, his monthly gross salary was ?409,949.42, as reflected in the Defendant’s salary structure (Exhibit C5), but that he received lesser sums in the months of May, July, and August 2015.

 

The Defendant denied the claim.

 

In proof, the Claimant relied on Exhibits C5 (salary structure) and C6 (payslips).

 

A careful examination of the payslips reveals that:

• for May and August 2015, the Claimant received ?308,960.69;
• for July 2015, the Claimant received ?348,665.55.

 

When compared with the expected monthly gross of ?409,949.42, this shows:

• a shortfall of ?100,988.73 for May and August 2015; and
• a shortfall of ?61,283.87 for July 2015.

 

The cumulative shortfall corresponds with the sum claimed by the Claimant.

 

The Defendant did not provide any credible explanation for the deductions or short-payments.

 

In the absence of justification, and on the strength of the documentary evidence before this Court, I find that the Claimant has discharged the burden of proof in respect of this relief.

 

Accordingly, relief eight is granted as prayed.

 

Relief nine seeks for “An order directing the Defendant to pay the sum of ?325,457.47, being accrued leave allowance due to the Claimant for the year 2016; plus interest at 10% per annum from June 2016 until judgment.

 

The Claimant’s case is that his leave allowance for the year 2016 was not paid, and that such allowance is computed as a combination of his basic salary and transport allowance, as was done in respect of the 2015 leave allowance which was paid in July 2015.

 

The Defendant denied the claim and put the Claimant to strict proof.

 

In establishing entitlement to this relief, the Claimant is required to show that the leave allowance for 2016 had accrued and was due at the time his employment was terminated in June 2016.

 

Upon a careful evaluation of the evidence before this Court, there is no material demonstrating that the Claimant had earned or become entitled to the 2016 leave allowance prior to the termination of his employment. The only evidence tendered relates to the payment of leave allowance for the year 2015, which does not, without more, establish entitlement for 2016.

 

Accordingly, this relief lacks merit and is hereby refused.

 

Relief ten seeks for “An order directing the Defendant to pay the sum of ?2,332,289.68, being the cash equivalent of eight (8) months’ basic salary as accrued long service compensation; plus interest.

 

The Claimant’s case is that by virtue of Article 13.9 of the Defendant’s Staff Manual, 2009, he is entitled to long service compensation equivalent to eight (8) months’ basic salary, having served the Defendant for twenty (20) years.

 

The Defendant contended that the Staff Manual had been modified.

 

Upon a consideration of Article 13.9 of the Staff Manual, I find that the provision indeed entitles an employee who has served for the requisite period to long service compensation, including a cash component equivalent to eight (8) months’ basic salary.

 

However, this Court has earlier found that the provisions relating to terminal benefits under the Staff Manual were effectively modified by the resolutions and communiqué tendered by the Defendant.

 

In consequence, the computation of the long service compensation, being a form of terminal benefit, must be aligned with the revised framework, particularly the 50% applicable rate as at the time of termination of the Claimant’s employment.

 

Accordingly, this relief succeeds only in part.

 

It is hereby ordered as follows:

 

That the Defendant shall pay to the Claimant the sum of ?1,166,144.84, being 50% of the cash equivalent of eight (8) months’ basic salary as long service compensation in accordance with the applicable revised terms.

 

Relief eleven seeks for “An order directing the Defendant to pay the sum of ?5,000,000.00 as compensatory damages for breach of the Claimant’s contract of employment.

 

This relief falls within the realm of general damages, which need not be specifically pleaded or strictly proved, as they are presumed by law to flow from the wrongful act.

 

In Seven-Up Bottling Company Plc v. Nkanga & Ors (2008) LPELR-8462 (CA), the Court held that:

 

“General damages are those damages which the law implies… the quantum need not be specifically pleaded or proved.”

The pertinent question, however, is whether the Claimant has established that he suffered a legal wrong at the hands of the Defendant.

 

Upon a consideration of the totality of the evidence before this Court, it is evident that the Defendant:

• failed to pay the Claimant’s terminal benefits as and when due;
• made deductions from the Claimant’s salary without justification; and
• failed to remit National Housing Fund contributions deducted from the Claimant’s salary.

 

These acts constitute breaches of the Claimant’s employment rights and have occasioned loss and inconvenience to the Claimant.

 

Accordingly, the Claimant is entitled to general damages. However, the sum claimed is, in the circumstances of this case, excessive.

 

Consequently, this relief succeeds in part, and this Court hereby orders:

 

That the Defendant shall pay to the Claimant the sum of ?2,000,000.00 (Two Million Naira) as general damages.

 

Relief twelve seeks for the sum of ?2,000,000.00 as cost of action. The award of costs is at the discretion of the Court, to be exercised judicially and judiciously.

 

In Emperion West Africa Ltd v. Aflon Ltd & Anor (2014) LPELR-22975 (CA), the Court held that:

 

“Costs are not to be awarded as punishment but as compensation to the successful party.”

 

In the instant case, the Claimant has succeeded in part. It is also clear that but for the conduct of the Defendant, the Claimant would not have incurred the cost of instituting this action.

Accordingly, this relief succeeds in part.

 

It is hereby ordered that:

 

The Defendant shall pay to the Claimant the sum of ?500,000.00 as cost of this action.

 

Having addressed all the reliefs sought by the Claimant, the sole issue for determination is resolved to the effect that the Claimant has established part of his claims.

 

In the final analysis, this suit succeeds in part. Reliefs two, five, seven, eight, ten, eleven, and twelve are granted to the extent specified in this judgment, while the other reliefs are refused.

 

Judgment is accordingly entered.

……………………………………………………………………

HON. JUSTICE Z. M. BASHIR, Ph.D.

JUDGE