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NICN - JUDGMENT

 

IN THE NATIONAL INDUSTRIA COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

 

9TH DAY OF AUGUST, 2024                                                            

SUIT NO. NICN/CA/27/2020

BETWEEN

MR. SAMUEL MICHAEL INWANG …………………………….…………………………………. CAIMANT

AND

AC NIELSEN NIGERIA LTD ……………………………………………….……………………. DEFENDANT

JUDGMENT.

1.      Vide a general form of complaint dated the 19/8/2020 and filed on the same date, the claimant claim against the defendant as follows:-

a.      A declaration that the document entitled ‘’letter of dismissal – Samuel Inwang (Auditor Code 0077), dated the 5th day of June, 2017 and addressed to the claimant by the defendant is null, void and of no effect. Or in the alternative, that the purported dismissal of the claimant by the defendant is wrongful.

b.      A declaration that the claimant’s is entitled to the monthly salary of N71,481.61 from June, 2017 till judgment is delivered in this suit.

c.      A declaration that the claimant is entitled to his full mandatory pension contributory scheme remittance from the defendant from June, 2017 till judgment is delivered in this suit.

d.      An order of this Honourable court mandating the defendant to pay to the claimant the sum of N20,731,415.31 being amount due on the loan taken by the claimant on behalf and on the instruction of the defendant as at July, 15, 2020.

e.      An order of this Honourable court mandating the defendant to pay the claimant the accruable 10% compound interest on the loan sum from July 16, 2020 till judgment is delivered in this suit.

f.        An order of this Honurable court mandating the defendant to pay to the claimant his full monthly salary of N71,481.61 from June, 2017 till judgment is delivered in this suit.

g.      An order of this Honourable court mandating the defendant to pay to the claimant all the defendant’s unpaid pension contributions from June, 2017 till judgment is delivered in this suit.

h.      An order of this Honourable court mandating the defendant to pay to the claimant the sum of N23,500.00 being the commitment and processing fees paid to Onward Multi-Cooperative Society limited by the claimant for the defendant’s loan.

i.        An order of this Honouranle court mandating the defendant to pay to the claimant the sum of N1,000,000.00 being general damages for other benefits accruing to the claimant (such as the defendant’s local annual incentive plan (LAIP) salary increments, Christmas bonuses of which the claimant is entitled to under the terms of his employment with AC Nielsen Nigeria Limited) from June 2017 till judgment is delivered in this suit.

j.        An order that the defendant pays to the claimant the sum of N20,000,000.00 (Twenty Million Naira) only being exemplary damages for the cruel, malicious, oppressive, reprehensible, discriminatory and unreasonable conduct of the defendant.

k.      10% interest on the judgment sum from the date of judgment till the final liquidation of the judgment debt.

l.        And for such further or other order(s) as this Honourable court may deem fit t make in the circumstances of this case.

2.      Upon being served with the originating process commencing this suit, the defendant filed its statement of defence on 10/8/2022 with leave of court. On 6/7/2023, the claimant in response to the statement of defence filed a reply to the statement of defece.

3.      The claimant testified in proof of his case on 13/7/2023 as CW1.CW1 after identifying his witness statement on oath adopted it as his evidence in this case. Documents were tendered and admitted in evidence through CW1. While the defendant called one Emmanuel Oguche, who testified in defence of the defendant as DW1. DW1 adopted his witness statement on oath as his evidence in this case. Documents were tendered in evidence through DW1 they were admitted in evidence and accordingly marked as exhibits.

THE CASE OF THE CLAIMANT:

4.      The claimant was employed as an auditor by the defendant with effect from 1/3/2002, Vide employment contract dated 30/11/2011. The claimant stated that on or about 3/2/2016, Godwin Odah, the then General Field Manager of the defendant orally directed the claimant to move to Uyo, Akwa Ibom State with his team  from Calabar to work with British and America Tobacco (BAT) for their outlet validation. The claimant immediately moved Uyo upon assurance from Mr. Godwin Odah that the defendant will transfer money into claimant’s account as soon as they arrived Uyo to fund the exercise. For over three days of executing part of the job, the claimant did not receive any money from the defendant and has spent his personal funds on accommodation, feeding, printing and photocopying of documents used for the census exercise and for transportation of himself and the team members. Five more census takers from Uyo joined the claimant on the directives of the defendant making total number to 20 members working for the exercise. When claimant ran out of personal funds the claimant was directed verbally through Godwin Odah to source for funds elsewhere to go ahead with the exercise.

5.      Consequently, the claimant obtained a loan of N200,000.00 (To Hundred Thousand Naira) from Onward Multi-Purpose Cooperative Society Ltd, Calabar on 10% compound interest per month with first month being interest free. Before the loan was granted claimant had to pay N23,000.00 (Twenty Three Thousand Nair Five Hundred Naira) processing fees and N20,000,00.00 (Twenty Thousand Naira) commitment. The defendant despite all entreaties has failed to pay the loan within reasonable time to avoid accrual of interest to no avail. On 22/1/2018, more than 22 months after execution the validation exercise job, the defendant credited the account of the claimant with the sum of N172,218.39 (One Hundred and Seventy Two thousand Two Hundred and Eighteen Naira Thirty Nine Kobo). As at the time of this payment the loan and interest had risen to the sum of N1,478,336.38 (One Million Four Hundred and Seventy Eight Thousand Three Hundred and Thirty Six Naira, Thirty Eight Kobo). The claimant paid the said sum of N172,218.39 (One Hundred and Seventy Two thousand Two Hundred and Eighteen Naira Thirty Nine Kobo), to Onward Multi-Purpose Cooperative Society Ltd and the outstanding balance on the loan and interest came down to the sum of N1,306,117.99 (One Million Three Hundred and Six Thousand One Hundred and Seventeen Naira Ninety Nine Kobo). From 16/2/2018 to 15/2/2020 the loan and interest have further risen to the sum of N20,731,415.31 (Twenty Million Sven Hundred and Thirty One Thousand Four Hundred and Fifteen Naira, Thirty One Kobo).

6.      The claimant after putting fifteen years of service was issued with a letter dated 10/5/2017 and subsequently another letter dated 5/6/2017 dismissing the claimant from service. The claimant stated that he was at no time employed by Nielsen Nigeria that purported to dismiss him, when his employment was by AC Nielsen Nigeria Limited.

       THE CASE OF THE DEFENDANT

7.      The defendant denied all the claims of the claimant as frivolous, vexatious and did not disclose reasonable cause of action against the defendant. However, the defendant admitted employing the claimant vide claimant’s employment contract of 30/11/2011 and other rules and regulations and policies posted on internet by the defendant from time to time, companies code of conduct signed by the claimant on 31/5/2017; Nielsen Employer Handbook Policy Manual (Nigeria) developed 2015.

8.      The defendant avers that as a matter of best practices and its internal policy instruction relating to reimbursement expenses must be made in writing either by an e-mail or formal letter and not verbally, as alleged by the claimant. No written instruction was given to the claimant in this instance. And all expenses must be approved in line with clause 14.1 employment contract. The defendant disputes that Godwin Odah gave or is authourised to give verbal instruction to the claimant to source for fund for completion BAT outlet validation or that Godwin Odah instructed or authorised to instruct the claimant to apply for and obtained loan of N200,000.00 from Onward Multi-Purpose Co-operative Society Limited. As the claimant is vide clause 21.1 of employment contract is forbidden from pledging the company’s credit or in any way make the company liable for the payment of money’s to any person or firm whatsoever except payments which are necessary for the carrying out of claimant’s duties in case of emergency as approved  by the company in writing.

9.      Following appeals made by the claimant, the defendant the defendant approved the reimbursement of the sum of N200,000.00 to the claimant based on the breakdown of expenses furnished by the claimant to the defendant on 4/3/2016, following series of e-mails exchanged between claimant via inwangsamuel@yahoo.com and the defendant via Sophia.odutoa@nielsen.com  between 17th  – 20th October, 2017 in which defendant explained the basis of its decision to approve payment of N200,000.00 for the claimant’s expenses.

10. The defendant denied breach of contract and wrongful dismissal of the claimant. The defendant denied that the claimant was dismissed by Nielsen Nigeria which he did not have a contract of employment with rather than the defendant that was his employer. According to the defendant it is common knowledge that the defendant is the Nigerian Subsidiary of Nielsen, a global company that operates in more than 100 countries. ‘’Nielsen Nigeria’’ is an acronym used to distinguish Nigeria Subsidiary from it counterparts across the globe. It is stated the claimant over sighted the bottom part of the letter headed paper on which letters of suspension and dismissal were written, as they contained full name of Nielsen Nigeria and full address. The reference to Nielsen Nigeria in the body of the letter is reference to AC Nielsen Nigeria Limited. The defendant stated that at any rate claimant was not misled. The claimant’s employment was effectively dismissed by AC Nielsen Nigeria Ltd vide letter of 5/6/2017. The defendant avers that the dismissal of the claimant was in accordance with the terms of contract of employment. As the claimant on 12/5/2017 appeared before disciplinary committee and failed to exonerate himself and was dismissed.

THE SUBMISSION OF THE DEFENDANT:

11. Joseph Abukpain, Esq; counsel for the defendant in oral adumbration before the court adopted the defendant’s final written address as his argument. Counsel urged the court to dismiss the claimant suit for lacing in merit. In the final written address twin issues were formulated for determination as follows:-

1.      Whether the dismissal of the Claimant by the Defendant was valid.

2.      Where the Court holds that the dismissal was valid, whether the Claimant is entitled to the reliefs sought.

ARGUMENTS:

12. Issue 1: Whether the summary dismissal of the Claimant from the Defendant was valid. In arguing this issue counsel submitted that it is the law that an employer has the right to dismiss an employee even where such right is not stated in the contract of service. This was the position of the court in Simon Ansambe v. Bank of the North Ltd (2005) 8 NWLR (Pt. 928) 650. An employee can be dismissed for misconduct or any action which an employer has deemed to be misconduct or gross misconduct. The only obligation the employer has is to ensure that the employee is offered an opportunity to respond to the allegation against him in compliance with the principle of natural justice and fair hearing. Where the rules of natural justice and fair hearing are observed by the employer, such dismissal with be valid in the eyes of the law. In U.B.A Plc v Oranuba [2014] 2 NWLR (Pt.1390) p. 41 – 42 para H-B, the Court of Appeal held that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded him to justify or explain the same.

13. According to counsel in the case at hand the Claimant’s Contract of Employment, exhibit CWE, the Claimant had a duty at all times to act diligently and honestly. Also, by the Employee Handbook, the Claimant had a duty to not engage in any action that would bring the Defendant to disrepute. This means that the Claimant was to deal with integrity in performing his duties under the contract. Unfortunately, it was discovered that the Claimant had stores he had reported as being under his control when the stores were neither existent nor under his control – an action in violation of the SOP and COC. It was based on this that the Claimant was informed of the allegation against him and given an opportunity to defend himself, as per exhibit CWC. The Claimant availed himself of the opportunity and appeared before the constituted panel. By letter of dismissal dated 5 June 2017, exhibit CWD, the Claimant was dismissed on the grounds of violation of the SOP and COC because of the fictitious store the Claimant recorded to be under his control.

14. Counsel contended that the Defendant has justified the Claimant’s dismissal by proving that after the internal investigation, the allegation of reporting fictitious stores which violated the SOP and COC was established against the Claimant and that such breach was capable of bringing the Defendant to disrepute and attracted the ultimate penalty of summary dismissal in line with the Employee Handbook.

15. Counsel insisted that there was no violation of fair hearing in the dismissal of the clamant as the decision to dismiss the Claimant was reached after he appeared and was interviewed by a panel with respect to the allegation of fictitious stores made against him. Counsel continued his submission that fair hearing is about the opportunity to be heard and the authorities are clear on this. For instance, once a court makes a finding that the employee was given an opportunity to defend himself on the allegations in issue, then such an employee cannot complain of not being given fair hearing.

16. On the case of the claimant he was not dismissed by his employer counsel contended that the Claimant wants this Honourable court to think that the Claimant does not know which company dismissed him. This is unavailing. Although companies have their distinct personalities and a slight difference in the name of two companies is enough to differentiate them, this is not the case. There is no difference in the names AC Nielsen Nigeria Limited and Nielsen Nigeria Limited. As counsel contended the Claimant knows that AC Nielsen is written as Nielsen and they are one and the same company. A look at the email of 20 October 2017 from the Claimant to the Defendant through Sophia Odutola, it is clear the email address is written as sophia.odutola@nielsen.com. This suggests that the name Nielson Nigeria is the short way of writing AC Nielsen Nigeria Limited. In any case, the Claimant cannot be mistaken as to the Defendant being another company. Significantly, the letter of dismissal was signed by Godwin Odah on whom the Claimant builds the substance of his request for the alleged interest on the loan purportedly obtained by the Claimant. Is it now the Claimant’s case that he does not know Godwin Odah? We think not.

17. A look at the bottom right of the letter will show that AC Nielsen Nigeria is clearly reflected on the letterhead. This court will not turn a blind eye to the letter like the Claimant has done. The Claimant was not misled by the content of the letter and was duly dismissed by the Defendant. Counsel urged the court to resolve issue 1 in favour of the Defendant and so hold.

18. Issue 2: Whether the Claimant is not entitled to the monetary reliefs claimed in the General Form of Complaint. In arguing this issue counsel submitted that it is the Defendant’s case that the Claimant has failed to prove his entitlements to the monetary reliefs sought in accordance with requirements of the law. This is because the monetary claims of the Claimant are in the nature of special damages. The principles governing the distinction between special and general damages were restated by Uwaifo JSC in BADMUS v. ADEGUNDE (1999) 11 NWLR (Pt. 627) 493 at pages 502H – 503C as follows:

“… there is a distinction between special damages and general damages. That distinction was drawn by this court in Ijebu-Ode Local Government v. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 136 at page 158; Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128 at 145 and other cases. It is usually a question of pleading and proof, and the mode of assessment. One is specially pleaded and strictly proved because it is exceptional in its character such as the law will not infer from the nature of the act which gave rise to the claim. Hence the claim is known as special damages. The other is general damages which, when averred as having been suffered, the law will presume to be the direct natural or probable consequence of the act complained of, but the award is a jury question as the judge cannot point out any measure by which the damages are to be assessed, except the opinion and judgment of a reasonable man. See Stroms Bruks Aktie Bolag v. Hutchison (1905) A.C. 515 at 525-526. Both arms of damages must be averred, although the award is made in different ways. See West African Shipping Agency v. Kalla (1978) 11 NSCC 114 at 120 per Eso JSC.”

19. Counsel while making reference to the decision of the President of this court in the case of Ineh Monday Mgbeti v. Unity Bank Plc, (Unreported Suit No. NICN/LA/98/2014 Judgment delivered by Hon. Justice B.B. Kanyip, PHD on February 21, 2017, where the rules and principles governing the award of special and general damages are enunciated, to the effect that: “an employee claiming damages in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc (unreported Suit No. NICN/LA/602/2014 Ruling delivered on 17th January 2017). To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd, (unreported Suit No. NICN/LA/602/2014 Ruling delivered on 17th January 2017) and Mr. Mohammed Dungus & Ors v. Enl Consortium Ltd, 2015] 60 NLLR (Pt. 208) 39. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums, is a claim for special damages. See Kelvin Nwaigwe V. Fidelity Bank Plc (unreported Suit No. NICN/LA/85/2014 the judgment delivered on 24th January 2017).

20. Counsel continued his submission that the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.

21. Counsel set out the cumulative monetary reliefs and addressed them seriatim:

                   I.            A DECLARATION that the Claimant is entitled to the monthly salary of NGN71,481.61 from June 2017 till judgment is delivered in this suit.

According to counsel this relief is akin to a claim for reinstatement which is not usually granted in favour of an employee in an ordinary master-servant relationship whose employment does not enjoy statutory flavour. This is consistent with the principle that the Court will not impose a willing employee on an unwilling employer. An employee’s entitlement to salary is predicated on existing employment. This position has been reiterated in a plethora of cases. In PROF DUPE OLATUNBOSUN V NISER (1988) 3 NWLR (PART 80) 25 at 55 A to 56 the Supreme Court per Oputa JSC in a claim of an employee that he be paid his salary until age of retirement even though he is no longer in the employment of the employers said: "The law is that a Servant who has been unlawfully dismissed cannot claim his wages for services he never rendered; See also Denmark Production Ltd vs. Boscobel Productions Ltd (1968) 1 ALL E. R.513 at p. 524. where the court held that “the appellant cannot just sit down with arms folded hoping for his “salary” from 78 till the age of 60 years” to fall like manna from heaven.”

It is submitted an employee dismissed in breach of his contract of employment cannot chose to treat the contract as subsisting and sue for account of profits which he would have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can.

The Defendant has shown this court that the Claimant has been duly dismissed by the Defendant. it is submitted this is a clear intention not to allow the employment relationship to continue, the employment in law is deemed to have been brought to an end and there is, therefore, no basis for the Claimant’s entitlement to salary. Counsel urged the court to deny the Claimant this relief.

                II.            A DECLARATION that the Claimant is entitled to his full mandatory pension contributory scheme remittance from the Defendant from June 2017 till judgment is delivered in this suit.

It is submission of counsel that this claim has no basis in fact or in law for the reasons set out under reliefs 1 and 2 above and we urge the court to deny the Claimant this relief.

             III.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of NGN20,731,415.31 (Twenty Million, Seven Hundred and Thirty-One Thousand, Four Hundred and Fifteen Naira, Thirty-One Kobo only) being the amount due on the loan taken by the Claimant on behalf and on the instruction of the Defendant as at July 15, 2020.

Counsel submitted that the Claimant has not asked this court to declare in the first place that he was instructed to obtain a loan on behalf and on the instruction of the Defendant. Thus, it is difficult to fathom on what leg this relief stands. More so, the Claimant has also not led evidence to establish that he obtained the purported loan on behalf of the Defendant or on the instruction of the Defendant. There is, therefore, no basis for the Defendant to service the interest purportedly accrued on the loan. A look at the Loan application form exhibit CWF will show that the loan was obtained by the Claimant. It was neither stated nor disclosed that the said loan was obtained on behalf of the Defendant. The Claimant wants this court to believe that he acted on behalf of the Defendant and therefore, binds the Defendant to the loan facility. This does not hold sway, as the position is that the Defendant, neither contracted with the Cooperative Society nor authorize the Claimant to do so on its behalf. The Claimant’s contract is clear on how to incur expenses that will bind the Company. Clause 14.1 – States that the Claimant is entitled to reimbursement of enumerated reasonable expenses incurred by the Claimant in or about the performance of his duties under the Contract of Employment provided the Claimant provides receipts and other evidence of such expenses. Such expenses which are subject to the Defendant’s expense policy in effect from time to time must have been first approved by the Claimant’s supervisor.

Counsel posited that it is clear that there was no approval for the Claimant to obtain a loan on behalf of the Defendant. This much was admitted by the Claimant in exhibit DWC where the Claimant in an email to Defendant’s Sophia Odutola expressed his understanding that the decision of what to pay is entirely at the discretion of the Defendant and would be grateful to receive anything approved by the Defendant.

Furthermore, the Claimant never provided receipts to show that he incurred such expenses on behalf of the Defendant as required by the Claimant’s Contract of Employment. When asked during Cross examination if he had any receipts to back up his claims that he used his personal funds for accommodation, feeding, printing and photocopy of documents as alleged in paragraph 8 of his Statement of Claim, the Claimant answered that the receipts are with his supervisor.

Counsel submitted that the Claimant’s answer above is an afterthought as there is nothing to show that the Claimant handed over the receipts to the supervisor. It is difficult to believe, as the Claimant would want this Honourable court to believe, that he did not send the evidence of having incurred such expenses by email and that even if he handed the documents to his supervisor, he did not save copies of the documents for his use. Similarly, the Claimant further admitted during Cross-examination that “I don’t have a statement of account showing how the debt rose to Twenty Million Naira” The law is trite that he who asserts must prove. See Oni V. Ojogbogbo (2015) LPELR 41741CA.

In view of the foregoing, counsel submitted that the Claimant has failed to prove his entitlement to the sum of NGN20,731,415.31 (Twenty Million, Seven Hundred and Thirty-One Thousand, Four Hundred and Fifteen Naira, Thirty-One Kobo only) being the amount allegedly due on the loan taken by the Claimant on behalf and on the instruction of the Defendant.

              IV.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the accruable 10% compound interest on the loan sum from July 16 2020 till judgment is delivered in this suit.

This claim has no basis in fact or in law for the reasons set out under relief 3 above and we urge the court to deny the Claimant this relief.

                 V.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant his full monthly salary of NGN71,481.61 from June 2017 till judgment is delivered in this suit.

This claim has no basis in fact or in law for the reasons set out under reliefs 1 and 2 above and we urge the court to deny the Claimant this relief. 

              VI.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant all the Defendant’s unpaid pension contributions from June 2017 till judgment is delivered in this suit.

This claim has no basis in fact or in law for the reasons set out under reliefs 1 and 2 above and we urge the court to deny the Claimant this relief

           VII.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of N23,500 (Twenty-Three Thousand, Five Hundred Naira only) being the Commitment and Processing fees paid to Onward Multi-Purpose Co-operative Society Limited by the Claimant for the Defendant’s loan

At the risk of repetition, the Defendant never authorized or instruct the Claimant to obtain any loan on its behalf. The Defendant adopts its argument under relief 3 and urges this court to deny the Claimant this relief.

        VIII.            AN ORDER of this Honourable Court mandating the Defendant to pay to the Claimant the sum of NGN1,000,000.00 (One Million Naira only) being general damages for other benefits accruing to the Claimant (such as the Defendant’s local Annual Incentive Plan (LAIP), salary increments Christmas bonuses of which the Claimant is entitled to under the terms of his employment with AC Nielsen Nigeria from June 2017 till judgment is delivered in this suit.

According to counsel this relief is vague. It is not clear what damage the Claimant seeks. On one hand, the Claimant seeks general damages and on the other hand, the Claimant seeks specific damages which the Claimant has not pleaded and proven and the Claimant has not shown which part of his Contract of employment supports the Claims for Local Annual Incentive Plan, Salary Increment and Christmas bonuses from June 2017 till judgment is given in the suit.

As the Claimant has not specified the basis for claiming this relief, whether general or special. The court is not in the habit of awarding general or special damages in the air. In Harka Air Services (Nig.) Limited v. Keazor Esq. [2011] LPELR-1353(SC)this court held that breach of a legal duty needs to result in proved injury before damages can be awarded. The claimant has not hinged the claim for damages to any breach of legal duty by the Defendant. The Claimant has not advanced any evidence to prove this head of claim and we urge My Lord to so hold. This relief should not be granted.

              IX.            AN ORDER that the Defendant pay to the Claimant the sum of NGN20,000,000 (Twenty Million Naira only) being exemplary damages for the cruel, malicious, oppressive, reprehensive discriminatory and unreasonable conduct of the Defendant.

Counsel submitted Under Nigerian law, exemplary damages can be awarded in the following situations: (1). where statute prescribes them, (2). Where oppressive, arbitrary or unconstitutional act of the government servant has given rise to the suit and (3). Where the defendant’s tortuous act has been outrageous or scandalous and was done with a guilty knowledge, the motive being that the chances of economic gains far outweigh that of penalty. See Maiya v. Incorporated trustees of CHAIN (2012) 27 NLLR (Pt 76) 134The courts have also held that an award for exemplary damages must be claimed and proven before they are awarded.

It is submitted the Claimant has not based his request for exemplary damages on his dismissal but hinges it on the alleged cruel, malicious, oppressive, reprehensive, discriminatory and unreasonable conduct of the Defendant. The Claimant did not plead or lead evidence to establish cruelty, malice, oppression, reprehensive, discriminatory and unreasonable conduct of the Defendant during his employment with the Defendant or that these actions led to his dismissal. We, therefore, submit that the Claimant is not entitled to exemplary damages, whether as claimed or otherwise, as he has not been able to prove his entitlement to the damages claimed, in line with established principles for the award of damages.

                 X.            10% interest on the judgment sum from the date of judgment till the final liquidation of the judgment debt

22. Having established in paragraphs 30.1 – 30.10 above that the Claimant is not entitled to the relief sought, the court has no basis to award post-judgment interest. This relief should be denied by this court.

23. In concluding his submission counsel urged the court to dismiss Claimant’s claims with substantial cost against the Claimant on a full indemnity basis.

THE SUBMISSION OF THE CLAIMANT.

24. The counsel for the claimant E. B. Eton, Esq; formulated three issues for determination. They are:-

1.      Whether by state of the facts pleaded and on the preponderance of evidence adduced in this suit, the claimant is not entitled to all the reliefs sought.

2.      Whether by the state of the facts pleaded and on the preponderance of evidence adduced in this suit, the defendant has proved that the claimant’s purported dismissal was not wrongful.

3.      Whether, the claimant is not entitled to exemplary damages by the cruel, malicious, oppressive, discriminatory and unreasonable conduct of the defendant against the claimant.

ARGUMENTS:

25. Issue 1: Whether by state of the facts pleaded and on the preponderance of evidence adduced in this suit, the claimant is not entitled to all the reliefs sought. In arguing this issue counsel referred the court to the case of Bukar Modu Aji V Chad Basin Development Authority & Anor (2016) AlLL FWLR (PART824) 175 2 177, and submitted that the claimant has discharged the burden of proving wrongful dismissal as claimant has in paragraph 1 of his statement of facts averred that he was employed by the defendant as an auditor from the 1/3/2002 via an employment contract document dated 30/11/2011, exhibit CWE. And in paragraph 3 of the statement of facts the claimant has pleaded the terms and conditions of his employment exhibit CWE and it applies in conjunction with Nigeria Labour Act and all AC Nielsen Nigeria Policies and procedures. There is also the uncontroverted evidence of claimant as contained in paragraphs 2, 4 and 5 of the witness statement on oath which went through the fire of cross examination without any blemish. In support of this contention reference was made to the case of Amadi V Nwosu (1992) 5 NWLR (pt.241) 273., where it was held a where a party failed to cross examine the witness on any material fact, a court is entitled to treat his failure to cross examine as acceptance that he does not dispute the testimony of the witness on that material fact.

26. Counsel further submitted the claimant has proved the manner in which the said terms of his employment contract were breached by the defendant. in paragraph 20 of the statement of facts, the  claimant pleaded that after putting in 15 years of meritorious service in employ of the defendant he was unjustly issued a document letter of suspension exhibit CWC dated 10/5/2017. And it was followed with exhibit CWD letter of dismissal. The claimant pleaded he was at no point in time employed by ‘Nielsen Nigeria’ that purported to dismiss him from his employment, rather he was employed by ‘AC Nielsen Nigeria Limited’ and by reason of which his employment with ‘AC Nielsen Nigeria Limited’ was still valid and subsisting as no letter of dismissal has been served on him by AC Nielsen Nigeria Limited’.

27. Counsel maintained that ‘Nielsen Nigeria’ cannot purport to dismiss the claimant from his contract of employment with the defendant. in its failed attempt to establish that Nielsen Nigeria  is a reference to AC Nielsen Nigeria Limited, the defendant stated that in any case, the claimant was not misled or prejudiced by the use of the words ‘Nielsen Nigeria’ instead of AC Nigeria Limited’ under cross examination DW1 stated he had not seen certificate of incorporation of the defendant to give proper evidence to the proper name of the defendant.

28. On the alleged termination of claimant’s employment by reason of dismissal premised on an alleged violation of the defendant’s standard operating procedure code of conduct with regard to fictitious outlet with identification number 016393 as stated in exhibit CWD.

29. The claimant has averred in paragraph 25 of the statement of fact pleaded that the purported outlet 016393 was never part of the panel under his coverage and not part of or captured in any report submitted by him to the defendant. The claimant could not have been dismissed on the outcome of an investigation relating to outlet 016393 which has never been in the claimant’s panel or anywhere in the claimant’s report. In fact the 016393 outlet does not exist at all anywhere in the world.

30. Counsel submitted that the claimant has successfully discharged the onus first to place before the court, the terms of the contract of employment and 2nd to prove in what manner the said terms were breached by the defendant. Counsel urged the court to hold the claimant has discharged the onus of proof.

31. On proof of loan on behalf of defendant to execute assignment of BAT validation at Uyo, the claimant has averred in his pleading that it was Godwin Odah the General Field Manager that directed him to move to Uyo with his team for the assignment with assurance that money for the execution of the assignment will be paid into his account by the defendant as soon as they reached Uyo. However, more than three days after their arrival no money was sent and claimant was spending his personal funds on accommodation, photocopying of materials for census and transportation. When claimant ran out of personal funds, he was verbally instructed by the defendant through Godwin Odah to source for funds elsewhere and go ahead with the assignment since funds were yet to be released by the defendant for the exercise. Pursuant to the directives claimant applied for and obtained loan in the sum of N200,000.00 (Two Hundred Thousand Naira) only, from Onward Multi-Purpose Co-Operative Society Limited at 10% compound interest rate per month, with first month being interest free.

32. Counsel submitted that the facts pleaded as per the Uyo assignment and loan obtained to execute the assignment on the directive of the defendant have not been controverted or disputed by the defendant. furthermore the evidence contained n paragraphs 6, 7, 8, 9, 10 and 11 of the witness statement on oath which went through the fire of cross examination without blemish are believable, cogent, plausible and reliable having not been contradicted, successfully challenged and/or discredited in any way or manner by the defendant.

33. According to counsel the defendant’s feeble response is captured in paragraph 2.6 of the statement of defence to the effect that as a matter of best practices and its internal company policy, such instructions relating to reimbursable expenses must be made in writing either by e-mail or formal letter and not verbally as alleged by the claimant. The defendant affirmed that no written instruction was given in this instance.

34. In response counsel submitted that the defendant’s reliance on best practices and internal policy to query the act of Godwin Odah is feeble in that the same General Field Manager’s instruction relating to reimbursement must be made in writing either by e-mail or formal letter and not verbal. The defendant had not denied Godwin Odah never verbally instructed the claimant to source for funds elsewhere and go ahead with the assignment since funds were yet to be released by the defendant for the exercise. Counsel submitted that a look at clause 14.1 of exhibit CWE there is no requirement that instruction relating to reimbursement expenses must be made in writing either by e-mail or formal letter as strenuously averred and argued. The defendant cannot insert in clause 14.1 what was not there.

35. On clause 21.1 of exhibit CWE, it is submitted that the defendant cannot insert what is not there as there is no requirement of approval to be in writing. Counsel in support of his position refers to section 128 (1) of the Evidence Act that prohibit altering, contradicting, adding or varying content of a document by oral evidence, as the defendant are attempting to do in this case. Reliance was also placed on the case of Ugwuegede v Asadu (2018) ALL FWLR (Pt.961) 1410 @ 1416, where the Supreme Court held that oral evidence cannot be allowed to add to subtract from or alter or contradict a written document as provided by section 128 of the Evidence Act. Further reliance was placed on UBN Ltd V Ozigi (1994) 3 NWLR (Pt.333) 385; (1994) 3 SCNJ 42; Koiki v Magnusson (1999) 5 SC (pt,3) 30; (1999) 8 NWLR (Pt.615) 492.

36. According to counsel, had the defendant reimbursed the claimant within the one month period of free interest there wouldn’t have been any interest on the loan from Onward on behalf of the defendant.

37. Counsel submitted that the defendant never paid to the claimant the said approved N200,000.00 as reimbursement for the expenses incurred during the outlet validation. The sum of N172,218.39 paid to the claimant on 22/1/2018, as per the pleading in paragraph 2.18 of the statement of defence was balance of the further approved sum of N243,700.00 that was due to the claimant upon termination of his employment and not the earlier approved sum of N200,000.00 only being reimbursement for the expenses incurred during outlet validation exercise. The claimant was over zealous to pay the said sum of N172,218.39 to the Co-Operative Society to defray the loan taken on behalf of the defendant.

38. Counsel also argued that, the lone witness of the defendant Emmanuel Oguche that testified as DW1 has under cross examination stated that he was employed by the defendant in 2018 as an auditor and he has been in Lagos office auditing, he was not part of the team that carried out validation at Uyo in 2016. He did not say claimant was given money before he left for validation exercise. He does not know if defendant sent money to claimant during the validation exercise in Uyo for accommodation feeding. You must have approval in writing is in staff handbook. As at 3/2/2016, Mr. Godwin Odah was General Field Manager of the defendant. He had not seen incorporation document of the defendant. He was not part of disciplinary panel that investigated the allegations against the claimant.  Counsel submitted that the key point to note is that DW1 was employed in 2018. While the cause of action in this case arose in 2016. According to counsel with these revelations DW1 has no personal knowledge of what actually transpired between the claimant and the defendant at all times material to this suit which is before he was employed by the defendant. Counsel submitted that evidence which is not within witness’s personal knowledge will not be accredited as competent. To support this contention counsel relied on the case of Omisore & Anor. V Aregbesola (2015) ALL FWLR (Pt.813) 1673. Counsel further relied on section 126 of the Evidence Act which provides that oral evidence shall in all cases whatsoever be direct, if it refers to a fact which could be seen, it must be evidence of a witness who says he saw that fact; if it refers to a fact which could be heard; it must be evidence of a witness who says he heard that fact;. Counsel opined that the evidence of DW1 regarding the validation at Uyo is hearsay, section 38 of the Evidence Act was relied on in support of this submission.

39. Counsel submitted by the state of the facts pleaded and on the preponderance of evidence adduced in this suit, claimant is entitled to all the reliefs sought.

40. Issue 2; Whether by the state of the facts pleaded and on the preponderance of evidence adduced in this suit, the defendant has proved that the claimant’s purported dismissal was not wrongful. In arguing this issue counsel submitted that the defendant has not proved that the claimant’s purported dismissal was not wrong.

41. Counsel while placing reliance on section 137 of the Evidence Act and several decided cases argued that it is settled position of the law that he who asserts has the burden of proving his assertion. The burden is not on he who denies. In support of this submission reliance was placed on the cases of Daodu v NNPC (1998) 2 NWLR (Pt.538) 355, Kala v Potiskum (1998) 3 NWLR (Pt.540) 1; Braimah V Abasi (1998) 13 NWLR (Pt.581) 167; Alhaji Otaru & Sons Ltd v Idris (1999) 6 NWLR (Pt.606) 330; Odum v Chibuze (2016) ALL FWLR (Pt.484).

42. Counsel contended going by the pleadings the defendant has the onus of proving claimant dismissal was in line with reason adduced in exhibit CWD, the letter of dismissal. This can be done by adducing cogent credible admissible evidence. The witness of the defendant under cross examination stated he was not part of the panel of investigation of the claimant in fact he was not employed when that happened. Emmanuel Oguche DW1 cannot give credible evidence of what transpired on 12/5/2017, when he was not employed by the defendant and he was not member of the panel. He does not have personal knowledge of any of the facts he has come to testify before the court. Counsel submitted, it is preposterous, if not absurd for the defendant to seek to rely on inadmissible evidence to prove its case as against the cogent, plausible reliable and admissible evidence of the claimant.

43. Counsel further submitted that averments in pleadings to which no evidence is offered, virtually serves no useful purpose. Averments cannot substitute evidence. on this contention reliance was placed on the case of Udom Emmanuel V Umana Umana & Ors. (2016) ALL FWLR (Pt.856) 214 @ 222 to 223.

44. It is also the submission of counsel that allegation of crime must first of all be proved before dismissal can stand, as opined in the case of Shuaibu v Union Bank of Nig. Plc (1995) (Pt.388) 173, CBN V Dinneh (2021) NWLR (Pt.813) 1673. Counsel submitted the allegation of fraud levelled against claimant must be proved beyond reasonable doubt.

45. Counsel also submitted that matters before court are not decided on speculations, conjecture or valid guesses. Courts are courts of facts and law. On this submission reliance was placed on the case of Agip Nig. Ltd v Agip Pet. Intnl (2010) ALL FWLR (PT.520) 1207; (2010) 5 NWR (t1187) 348 @ 413. Counsel further argued that the defendant was to plead facts and credible evidence to make-out a prima facie case of fraud against the claimant before the consideration of the claimant’s case in reply on the issue of fraud can even arise. Agu v nand (2002) 18 NWLR (Pt.798) 103; (2003) FWLR (PT.139) 1537; Ugoj v Onukogu (2005) ALL FWLR (PT.271) 66. The defendant has failed to discharge this burden. Counsel continued his submission that the reasons adduced by the defendant for dismissing the claimant in exhibit CWD as well as paragraph 2.17 of the statement of defence will not avail the defendant having been proven in evidence to be false. Counsel urged the court to hold defendant has not proved that claimant’s dismissal was not wrongful. And to resolve issue 2 in favour of the claimant.

46. Issue 3; Whether, the claimant is not entitled to exemplary damages by the cruel, malicious, oppressive, discriminatory and unreasonable conduct of the defendant against the claimant. Counsel submitted courts are enjoined to award exemplary damages against the defendant when there is proof that the conduct of the defendant was oppressive, arbitrary and in wilful disregard of the law. Exemplary damages will also be awarded where the award would serve to assuage or act as a solace to the plaintiff for the aggravated wrong done to hm. Sub Publishing Ltd & Anor. V Aladinma Medicare Ltd (2015) ALL FWLR (Pt.813) 1626 @ 1640.

47. Counsel also submitted there are enough evidence to warrant grant of exemplary damages as evidence shows how claimant was given assignment without given money for the assignment, he was asked to source for money which he did and executed the assignment and defendant refusing to pay even when defendant stated it had approved N200,000.00 the money was never aid instead claimant was maliciously dismissed.

48. Counsel urged the court to resolve issue 3 in favour of the claimant.

49. In concluding his submission counsel urged the court to on the state of facts pleaded and on preponderance of evidence adduced in this suit grant the reliefs sought by the claimant.

COURT’S DECISION:

50. I have carefully and painstakingly perused the processes filed by the parties, evidence led at the trial, documents tendered and admitted in evidence as well as the written and oral submissions of the parties.

51. From the claimant’s pleadings and the reliefs being sought, the case put forward by the claimant for determination is that his employment with the defendant is intact as it has not been terminated or dismissed as the person that purportedly terminated or dismissed the claimant is not his employer. In the circumstances he is claiming payment of his salaries from June, 2017 when he was purportedly dismissed to date. The claimant is equally claiming payment of contribution for pension for the period of purported dismissal to date. There is also claim for loan and accrued interest taken by the claimant on behalf of the defendant for execution of an assignment at Uyo, Akwa-Ibom State. He is also claiming exemplary damage and interest.

52. The claimant is contesting the validity of his dismissal from service on the ground that his dismissal letter was issued by Nielsen Nigeria and not Ac Nielsen Nigeria Limited, that employed him. He also submitted that the dismissal was wrongful and malicious because on the one hand, he was not accorded a fair hearing and on the other hand because he persistently requested the payment of the sums due to him from the Defendant.

53. In response, it was submitted on behalf of the defendant that the claimant was wrong on his assertion. As the law is that an employer has the right to dismiss an employee even where such right is not stated in the contract of service. This was the position of the court in Simon Ansambe v. Bank of the North Ltd (2005) 8 NWLR (Pt.928) 650. It was further argued that an employee can be dismissed for misconduct or any action which an employer has deemed to be misconduct or gross misconduct. The only obligation the employer has is to ensure that the employee is offered an opportunity to respond to the allegation against him in compliance with the principle of natural justice and fair hearing. Where the rules of natural justice and fair hearing are observed by the employer, such dismissal with be valid in the eyes of the law. Also counsel for the defendant referred to the decision in the case U.B.A Plc v Oranub (2014) 2 NWLR (Pt.1390) 41, where the Court of Appeal held that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded him to justify or explain the same.

54. According to counsel for the defendant, the claimant is vide exhibit E his contract of employment had a duty at all times to act diligently and honestly. Also, by the Employee Handbook, the Claimant had a duty to not engage in any action that would bring the Defendant to disrepute. This means that the Claimant was to deal with integrity in performing his duties under the contract. Unfortunately, it was discovered that the Claimant had stores he had reported as being under his control when the stores were neither existent nor under his control an action in violation of the SOP and COC. According to counsel, it was based on this that the Claimant was informed of the allegation against him and given an opportunity to defend himself. See exhibit CWC, letter of suspension and invitation. The Claimant availed himself of the opportunity and appeared before the constituted panel. By letter of dismissal dated 5 June 2017, exhibit CWD the Claimant was dismissed on the grounds of violation of the SOP and COC because of the fictitious store the Claimant recorded to be under his control.

55. I have no doubt in my mind that in an employment not having statutory flavour the employer has unfettered right to dispense with the services of his employee, provided the employer  followed due process. Where employer has dispensed with services of his employee in accordance with the terms of and conditions of service the employee will not have any course for complaint. See Daodu v UBA Plc (2004) 9 NWLR (Pt.878) 276; in this case the court agreed that the employer can bring the appointment of his employee to an end for any reason or for no reason at all, so long as the employer acts within the terms of the contract of employment. And if reason for such termination is given such reason must fall within the terms of the contract employment. The law is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See Kunle Osiseyan v Afribank Plc (2007) ALL FWLR (Pt.260) 1480:SC @ 1491.

56. The law is trite where the employer no longer wants the employee in his service, and that even where the termination or dismissal of the employee occurs, the employee is only entitled to what would have been due to him, if the termination was duly done, that is, requisite notice of termination or salary in lieu of same, as damages; he said that the Court cannot force a servant on an employer in a simple employment of master and servant, which has no statutory flavour. That has always been the law. See the case of Kwara State Polytechnic, Ilorin Vs. Shittu (2012) LPELR-9843 CA; Garuba Vs. KIC Ltd. & Ors. (2005) LPELR-1310 (SC); Oak Pensions Ltd. & Ors. Vs. Olayinka (2017) LPELR-43207 CA; Ajuzie Vs. FBN Plc (2016) LPELR-40459; Eze Vs. Spring Bank Plc (2011) LPLER-2892 (SC) and Olaniyan Vs. UNILAG (1985) 2 NWLR (Pt.9) 559.

57. In the case of Agbarakwe Vs. University Press Plc (2015) LPELR-25613 (CA), it was held: "The authorities are replete, that an employer has the power to hire and fire any of its staff/workers, at any time, for any reason, or for no reason at all, and does not owe him any explanation or apology, provided it keeps to the terms of the agreement governing their relationship of master/servant in the termination. See Garuba Vs. Kwara Investment Ltd. (2005) MJSC 58; Iwuchukwu Vs. Nwizu (1994) 7 NWLR (Pt.357) 379. The general principles in master/servant relationship is a master who no longer savours the services of his servant can call it quit at any time and does not even owe the servant any explanation or reason to dispense with this (servant’s) services, provided he (master) respects the agreed terms of the contract of employment which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected. The simple truth is that, even where the master is mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (the Court) can do in the situation that the services of the servant is no longer required by the master, as the Court cannot impose or force a servant (however willing) on an unwilling master. See the case of Katto Vs. CBN (1999) 5 SCNJ 1; Idoniboye-Obu Vs. NNPC (2003) 1 SCNJ 87.”

58. In the case at hand, it however appears to be different, as the fact of the actual dismissal of the appointment is shrouded in controversy and uncertainty. In that the claimant’s dismissal was said to have been done by a stranger to his contract of employment with the defendant. i.e ‘Nielsen Nigeria’, therefore, I do not think the cases cited by counsel for the defendant are applicable to the case at hand. In those cases the termination or dismissal was by the employer himself. While in the case at hand the claimant was employed by Ac Nielsen Nigeria Limited as evidence by exhibit CWE. While vide exhibit CWC letter of suspension and invitation and exhibit CWD letter of dismissal were all issued by ‘Nielsen Nigeria’. The law as it is the power of discipline to result in termination or dismissal is vested in the employer who employed the employee and to no other person. Therefore, for termination or dismissal of employee to valid in law it must be by the employer who employed the employee. It is clear from exhibit CWC, that the disciplinary action that culminated into the dismissal of the claimant from service was initiated by ‘Nielsen Nigeria’. It is also clear to every discerning eye that ‘Nielsen Nigeria’ is not the same as AC Nielsen Nigeria Limited.

59. Since the claimant has raised incompetency of his dismissal by ‘Nielsen Nigeria’ as evidenced by exhibit CWD the defendant ought to have gone a little further to tender the certificate of incorporation to convince the court that ‘Nielsen Limited’ that dismissed the claimant from the service of ‘AC Nielsen Nigeria Limited’ are one and same thing. This issue cannot be settled by address of counsel.

60. The sum total of the above evidence and facts, tend to show that there was no dismissal of claimant’s appointment by the defendant, as the said purported dismissal was done by a stranger to the contract of employment between the claimant and the defendant.

61. It is therefore my belief, that the claimant in the instant suit by the totality of his evidence, that were never challenged by the defendant but rather admitted has succeeded in proving that his dismissal was not proper as the appropriate person to dismissed him did not do so. Therefore, the purported dismissal of the claimant through a third party is of no effect and therefore is held to be null and void by this Court. In consequence thereof, I hold that the claimant is entitled to his salaries from June 2017 till date of this judgment. This also means the claimant is still and remains an employee of the defendant.

62. In view of all I have said above on this issue I came to the conclusion that the dismissal of the claimant from the service of the defendant, is no dismissal in law, as it was done by a stranger to the contract of employment between the claimant and the defendant. In view of this finding above, I am of the firmed view that ‘Nielsen Nigeria’ had no authority to interfere with the claimant’s contract of service. Having found that there is no valid dismissal this means the claimant’s employment with the defendant had not been validly terminated, he is still an employee of the defendant. With this finding the claimant is entitled to be paid his salaries from June 2017 till date of this judgment at the rate of N71,841.61 Per month.

63. On claim for pension contribution, there is no doubt that pension is governed by the Pension Reform Act, as amended. It is regulated by law. Employee’s pension is by law not paid directly to the employee. It is paid to the employee’s Pension fund administrator of his own choice (PFA). The law has pegged the percentage of contribution to be made to employees at 8% of his salary and 10% contribution of his employer. The pension contributions are paid directly to the employee’s retirement savings account with his PFA. In this case having found claimant’s case not to have been validly dismissed and having found that he is entitled to his salaries, the claimant is as well entitled to pension contributions from his salary and that of his employer. In the circumstances the defendant is hereby ordered to pay its contribution and that of the claimant to be deducted by the defendant from his salaries and paid same to the claimant’s pension fund administrator as stipulated by law for crediting of the claimant’s retirement savings account.

64. I now turn to the claimant’s reliefs on refund of sums of money spent in execution of assignment given to him at Uyo by the defendant. From the pleading and evidence adduced at the trial there is no dispute that claimant was given assignment on validation in respect of British America Tobacco (BAT), in Uyo, Akwa Ibom State. There is also no dispute that claimant travelled from his base in Calabar to Uyo with the team of workers under him for the assignment, it is also not in dispute that claimant was not given any money for the assignment despite his request for the money to be made available to him. In paragraph 9 of the statement of facts, the claimant stated that the defendant through Godwin Odah directed him verbally to source for funds for the assignment in Uyo. However, vide exhibit DWC an e-mail communication, the claimant as per pages 2/4 and ¾, stated that one Festus directed him to source for money for the assignment and in compliance with the directive from Festus, the obtained a loan of N200,000.00 (Two Hundred Thousand Naira) from a cooperative society to execute the job on compound interest of 10% per month. The claimant is claiming for the principal sums and accrued interest. See exhibit CWF the loan agreement between the claimant and Onward Multi-Purpose Co-Operative Society Limited.

65. The bone of contention between the claimant and the defendant regarding the loan of N200,000.00 which the claimant obtained on behalf of the defendant as per verbal instruction, is on accrued interest. The defendant has insisted that though it has admitted entitlement of the claimant to his N200,000.00 spent of the execution of the assignment in Uyo it has denied liability of payment of interest since it has no any agreement with the claimant to source fund on an interest basis. The defendant has also denied giving power to Mr. Godwin Odah to verbally authorized the claimant to obtain loan on interest.

66. Strictly from exhibit CWF, the loan agreement is between the clamant and the Onward Multi-purpose Cooperative Society Limited. The defendant is not a party to that agreement. In law a party who is not privy to a contract cannot be held liable for the breach of the said contract to which he is not a party. The defendant in this case not being privy to the loan agreement between the claimant and Onward Multi-Purpose Cooperative Society cannot be made liable to any breach on the terms of the said contract to which the defendant is not a party.

67. In law it is not every act of staff of the defendant that can be taken as act of the defendant. See Rainson Industries Ltd. Vs. Abia State Comm. For Health & Social Welfare & Ors. (2014) LPELR-23771 (CA), where the Court held: "In defining who the Alter Ego of a company is, Nnaemeka Agu, JSC, in the case of NNSC Vs. Dabana (1988) NWLR (Pt.74) 23, has this to say:-

 "… A company, is an abstraction. It must therefore act through living person. But it is not the act of every servant of the company that binds the company. Those whose acts bind the company are their alter ego, those persons who, because of their positions, are the directing mind and will of the company, the very ego and corporate personality of the company. See Lernards Carrying Co. Ltd. Vs. Asiatic Petroleum (1915) AC 705…”

See also Fairline Pharmaceutical Industries Ltd. & Anor. Vs. Trust Adjusters Nig. Ltd. (2012) LPELR-20860 CA.

68. In view of the state of evidence before the court, it is not safe to hold the defendant liable to pay interest. This is because in his evidence the claimant has contradicted himself on the actual person that verbally directed him to obtain or source for fund to execute the assignment. In paragraph 9 of statement f facts he said it was Godwin Odah and in exhibit DWC, he stated that it was Festus that verbally directed him to source for funds.

69. The decisions in the cases cited in paragraph 65 above clearly show that it is act of the organs of the defendant that can bind the defendant. In the absence of any agreement to show that the defendant had agreed to interest on loan taken by the claimant from cooperative society the defendant is not liable to pay any interest on the sums taken as loan by the claimant. Though he used that money to execute the defendant’s job.

70. The claimant having shown that he spent N200,000.00, which the defendant had accepted and stated that the said sums have been approved for payment to the claimant, as money spent for Uyo, assignment the claimant is entitled to be refunded what he had spent in carrying out the Uyo assignment. However, the evidence before the court showed that claimant had been paid the sum of N172,218.39 (One Hundred and Seventy Two thousand Two Hundred and Eighteen Naira Thirty Nine Kobo), the claimant is entitled to be paid the sum of N71,481.61, which is the balance to make the amount paid to him to come to the sum of N200,000.00 (Two Hundred Thousand Naira). In the circumstance, the defendant shall pay to the claimant the sum of N71,481.61 (Seventy One Thousand Four Hundred and Eighty One Naira, Sixty One Kobo), as balance to make the payment made to him to amount to the sum of N200,000.00 (Two Hundred Thousand Naira), being  the claimant’s money spent in carrying out Uyo assignment.

71. Having granted claim of the claimant on salary, to award general and exemplary damages will amount to double compensation. The claim on general and exemplary damages failed and are hereby refused.

72. On the whole, the Claimant’s case succeeds in part and only in terms of the following orders:-

a.      The claimant dismissal is hereby nullified for having been done by a party that has no power to do so. The employment of the claimant subsists from June 2017 to date of this judgment.

b.      The claimant is entitled to his salaries as employee of the defendant from June, 2017 till date of this Judgment.

c.      The defendant is hereby ordered to pay the claimant his accrued salaries from June 2017 till date at the rate of N71,481.61 (Seventy One Thousand Four Hundred and Eighty One Naira Sixty One Kobo).

d.      The claimant is entitled to his full mandatory pension contributions from June 2017 till date of this Judgment.

e.      The claimant is hereby ordered to deduct the claimant’s contribution from his salaries and add to the defendant’s contribution as stipulated by law and paid same to the claimant’s Pension Funds Administrator for same to be credited to the claimant’s retirement savings account.

f.        The Defendant is hereby ordered to pay cost to the Claimant in the sum of N500,000.00.

g.      All judgment sums are to be paid within 30 days from the date of this failing which it will attract 10% interest per annum until finally liquidated.

73. Before ending this judgment let me say that in law an artificial person like the defendant can only give evidence before the court through its human agents or employees. However, for any witness to testify, the witness must be abreast with the evidence to be given. This means for any witness to be fielded or mount the witness box, he must be a witness that has personal knowledge to the transaction that is under scrutiny by the court. DW1 that testified for and on behalf of the defendant in this case did not demonstrate having personal knowledge of the transaction that led to filing of this suit before the court. The testimony of DW1 does not have evidential value.

74. Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge

REPRESENTATION:

E. B. Eton, Esq; for the claimant

I. G. Solanke, Esq; for the defendant.s