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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT OWERRI 

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA   

DATE:  AUGUST 20 2024                                  

SUIT NO: NICN/PHC/29/2021

BETWEEN:

 

MR. GRANT IHEANACHO                                                             - CLAIMANT                                                                                                                                                              

AND                                                                                                                                                                                                  BAP SERVICES LIMITED                                                               - DEFENDANT                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

REPRESENTATION:

Lezino Anegua, Esq( with S.A Jenewari; S.Agola;

F. Kponee, Esq; D. Bakweri; N.N Ezeh-Mbonu) -for the Claimant;

F.C Ihegworo, Esq. (with A.O Atirene, Esq; N. Moses, Esq.)-for the Defendant

 

JUDGMENT

 

1.             By a General Form of Complaint, with the accompanied frontloaded processes, dated 19th February 2021 and issued on 3rd March 2021, the Claimant, who served as General Manager  of the  Defendant company, commenced this suit against the Defendant, his former employer, basically for recovery of alleged outstanding arrears of his salaries and allowances prior to his dismissal by the Defendant. By an Amended Statement of Facts dated 13th January 2022 and filed on 18th January 2022, and granted  by Court Order of  11th March 2022, the Claimant seeks for the following reliefs:   

“(a). The sum of N3, 600,000.00 (Three Million Six Hundred Thousand Naira) being outstanding balance of Claimant unpaid salaries, inclusive of accommodation allowance, due to the claimant as being under the employment of the Defendant;

(b). The sum of N1, 400,000.00 (One Million, Four Hundred Thousand Naira Only) being unpaid pension deductions over the years of Claimant service/employment in the Defendant Company.

(c). Compound interest on the said at the rate of 21% per annum from the 12th day of July until the date of Judgment and thereafter at the rate of 10% per annum from the date of judgment until final liquidation of the said sum”.

 

 

 

 

2.             The Defendants reacted with their Statement of Defence along with frontloaded defence processes dated and filed on 1st July 2021 denying the Claimant’s claims. Also filed for the Defendant is Notice of Preliminary Objection with Affidavit in Support and Written Submissions, dated and filed on the same 1st July 2021, challenging the jurisdiction of the Court on ground of statute of limitation. The Claimant thereafter filed a Reply on Points of Law to the Defendant’s Preliminary Objection. The Claimant also, in-between the trial proceedings, filed Amended Statement of Facts dated 13th January 2022 and filed on 18th January 2022, along with Claimant’s Further Witness Statement on Oath, granted by Order of Court on 11th March 2022, amending the Claimant’s Reliefs, which triggered the Re-opening of the Claimant’s case, and the Defendant filed Further Witness Statement on Oath of 12th October 2022.

 

3.             At the trial proceedings of 26th July 2021, 2nd December 2021, 25th January 2022, 1st April 2022, 20th July 2022, 21st October 2022 and 7th December 2022, the Claimant who testified for himself as the sole Claimant’s Witness (CW) adopted his Witness Statements on Oath of 3rd March 2021 and tendered four documents, admitted in evidence and marked as Exhs. C1-C2, C3A,B,C, and C4, as described in the Claimant’s list of documents dated 18th March 2021.  And at the re-opened trial proceedings of 20th July 2022, the CW adopted his Further Witness Statement on Oath of 9th June 2022, and tendered one more document, which was admitted in evidence and marked as Exh.C5, and described as IBTC RSA Statement of Account for the period of 01-June2014 to 11May2022. On the part of the Defendant, FC Chimezie (GM of the Defendant company) testified for the Defendant as sole Defendant’s Witness (DW), wherein he adopted his two (2) sets of Witness Statements on Oath- one of 1st July 2021 and the Further one of 12th October 2022, and tendered three(3) sets of documents, all admitted in evidence and marked as exhs. D1-D3, as described in the modified Defendant’s list of documents dated 1st July 2021. Both CW and DW were cross-examined by the respective counsel, and the trial concluded.

 

CASE OF THE PARTIES

4.             Going by the pleadings of the parties and evidence led at the trial, it is the case of the Claimant that he joined the services of the Defendant Company on 2nd October 2002, and rose to the position of General Manager (exh.C1), and has since served diligently, not until 1st July 2011 when he proceeded on his annual leave. That while he was on the leave, he was served with Board Resolution of a summary dismissal dated July 12 2012(exh.C2).

 

 

5.             It is also the Claimant’s case that while in the employment, he received a monthly salary of N200,000.00, and entitled to N300,000.00 as accommodation allowance. That he was on annual leave which commenced on 1st July 2011 before he was dismissed on 12th July 2012, and was owed. And that despite repeated demands by him for payment of  his entitlements and arrears of salary, the Defendant failed and refused to settle the indebtedness despite numerous promises to pay (exhs.C3A,B,C), which prompted his Solicitors to write demand letter to the Defendant for the payment (exh.C4). That his pension deductions were not remitted (exh.C5). Claimant concluded and prayed the Court to grant his claims.

 

6.             On the other hand, the case of the Defendant tallies with that of the Claimant on the employment history but differs on the duration of the employment and amount to be allegedly owed the Claimant, as it is the contention of the Defendant that the Claimant increased his salary and allowance all by himself without Board approval, using his position as the General manager, and that the pension remittance was supposed to be done by him as the General Manager charged with such duties. That the last salary of the Claimant was officially approved by the Defendant as N107, 700.00, which was an increment from N96, 000.00 (exhs.D2 and D3), and there is no evidence of official increment. The Defendant disagreed that the Claimant’s employment which commenced on 2nd October 2002 continued beyond 1st July 2011, when he proceeded on compulsory leave to enable the Defendant investigate allegation of fraud and financial misappropriation by the Claimant, even though he was dismissed on 12th July 2012. The Defendant concluded and prayed the court to dismiss the suit, more so that it is caught by statute of limitation, as contended in the Notice of Preliminary Objection, also filed to challenge the suit.

 

COUNSEL SUBMISSIONS

7.             Upon conclusion of the trial, filing and exchange of Final Written Addresses was ordered, of which both counsel complied with. Learned Defendant’s lead counsel, Sir Chinedu F. Ihegworo, Esq., in his Final Written Address (settled with E.N Moses, Esq.) dated and  filed on 17th January 2023, raised and canvassed arguments on 5 issues for determination, viz: “(a). Whether the Claimant is entitled to be heard, having failed to bring this suit before a competent court for 9 years?; (b).Whether the Claimant is entitled to salary during the period of his suspension/compulsory leave which led to his dismissal?; (c).Whether the Claimant is entitled to the salary which was officially approved by the personal manager of the Defendant, or the salary which the Claimant arbitrarily gave to himself and not able to show how he arrived at that amount?, and (d).Whether the Claimant is entitled to any arears of salary before suspension, having failed to show when last he received salary? ; and (e).Whether the Defendant is liable to pay the Claimant any money as regards to pension, in view of the fact that the Claimant was the General Manager and did not show any evidence that the Defendant deducted part of his salary as pension but failed to remit same or show evidence that there was a contract between the pension company and the Defendant”. 

 

8.             For the Claimant, learned counsel, Lezina Amegua,Esq in the Claimant’s Final Written Address (settled with Sharon A. Jenewari, Esq; Felix Kponee, Esq., and Divine Bakweri, Esq.), dated and filed on 18th January 2023,  formulated and canvassed arguments on 2 issues for determination, viz: (1).Whether or not the Defendant was justified in law to withhold the salaries of the Claimant while he was on leave and if the Defendant was not so justified, is the Claimant not entitled to all the reliefs claimed or sought from this Honourable Court, being outstanding salaries and pension deductions owed to him while still in the service of the company?; and (2). Whether or not the Evidence of DW1 is admissible in law? “. Counsel had earlier filed separate responses on the Defendant’s Notice of Preliminary Objection.

 

9.             At the Adoption proceedings of 22nd May 2024, both counsel adopted their respective Final Written Addresses and adumbrated on the legal issues raised therein, while urging the court to uphold their respective standpoints on the disputed contentions of the parties. The matter was thereafter reserved for Judgment.

 

COURT’S DECISION

10.        I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged in their respective Final Written Addresses, as well as submissions on the Notice of Preliminary Objection by the Defendant on the issue of the suit being statute-barred. I have also duly evaluated evidence tendered at the proceedings and observed the demeanour of witnesses who testified for their respective parties.  Upon review of the issues raised for determination by both counsel in their respective Final Written Addresses, though I find them encompassing along with their submissions on the preliminary issue of jurisdiction raised by the Defendant’s counsel, I have however, pruned them to two issues underpinning the dispute, viz: (1).Whether the limitation law applies to defeat the suit as being statute-barred? , and (2). Given the state of material facts and evidence led, did the Claimant establish his case so as to be entitled to the reliefs sought?

 

 

 

11.        On the issue (1) - Whether the limitation law applies to defeat the suit as being statute-barred: Learned Defendant’s counsel had filed an Application challenging the Claimant’s suit on the ground that the Claimant’s suit is statute-barred, in that the suit was filed outside 5 years allowed by S.16 of Limitation Law of Rivers State. Counsel restated his arguments as issue (1) in his Final Written Address. Counsel had contended that the provisions of the Limitation Law of Rivers State, which prescribes 5-year timeline for actions based on contract, is applicable in the instant suit, because the employment was a contract and the Defendant operates in Rivers State, and thus, the law should apply to companies operating within the State. Counsel cited and relied on Goddy Ezumezu & Ors.v.Alcon Nigeria Limited (Suit No, NICN/OW/60/2014, wherein the Court applied limitation law to uphold objection on the basis of statute-bar.

 

12.        The learned Claimant’s counsel, had in a Reply on Point of Law filed on 23rd July 2021, opposed the Preliminary Objection, and submitted that the Limitation Law of Rivers State does not apply, citing and relying on the authority of the Supreme Court case of National Revenue Mobilization Allocation and Fiscal Commission v. Ajibola Johnson &Ors [2019]2NWLR (Pt.1656)247, to the effect that the limitation laws cannot be invoked to prevent a Claimant  from exercising his right of action derived from a contract of employment.

 

13.        I have noted the trend of judicial authorities on the applicability of statute of limitation, such as Public Officers Protection Act (POPA), on employment contract claims, which has rested on upholding the inapplicability of such limitation law, going by the latest authority of the Supreme Court case of Rector Kwara Poly v. Adefila [2024]9 NWLR (Pt.1944]529, which towed the same line with the earlier Supreme Court case of  National Revenue Mobilization Allocation and Fiscal Commission v. Ajibola Johnson &Ors [2019]2NWLR (Pt.1656)247, cited and relied on by the learned Claimant’s counsel. There is no doubt that all categories of statute of limitation have the same effect on validity of a suit challenged. Thus, if a particular model of statute of limitation, such as POPA has been held inapplicable to employment contract claim, invariably, the effect applies to similar model, such as the Limitation Law of Rivers State in issue herein. To that end, I share a considered view that the said Limitation Law of Rivers State is similarly not applicable to defeat the instant suit. I so hold.

 

 

 

14.        I note also, that what was however, left un-canvassed by the learned Defendant’s counsel in his jurisdictional objection relating to delayed suit, is the application of the common law principle of ‘laches and acquiescence’, which provides for alternative argument in the face of the judicial stance on non-application of statutes of limitation to employment contract claims. After all, the statute of limitation has its root in the common law idea that legal right to approach court for redress over perceived wrong does not exist in perpetuity. The differing feature is only in provision for exact time-line expressed in the relevant statute of limitation, as against the adoption of ‘reasonable time’ test in the common law principle of ‘laches and acquiescence’. Had learned Defendant’s counsel adverted to this principle and canvassed same instead of relying on the statute of limitation, the ‘test of reasonable time’ would have been a formidable ground for the preliminary objection on ground of unreasonable time delayed before bringing the suit, in line with the common law principle of ‘laches and acquiescence’. As the Court is not ‘Father Christmas’, the Court would not adopt this principle not raised and canvassed by learned counsel to defeat the unreasonably delayed suit. I so hold. In the circumstance, the Preliminary Objection fails, and is hereby dismissed. I now assume jurisdiction to consider and determine the substantive issues in the dispute. I so hold.

 

15.        On Issue (2)- Given the state of material facts and evidence led, did the Claimant establish his case so as to be entitled to the reliefs sought:  From the record, the crux of the Claimant’s claims borders on recovery of alleged arears of salaries and allowances owed to him prior to his dismissal from the services of the Defendant Company where he had served last a General Manager, vide a letter dated 21st July 2004 (exh.C1), and was dismissed vide a Board Resolution dated July 12 2012 (exh.C2). The Claimant had narrated that despite his diligent performance of his duties, he was dismissed while on annual leave that was delayed until he received a dismissal letter. But he did not challenge the dismissal but seeks recovery of arrears of emoluments purportedly earned during his leave period from 1st July 2011 until his dismissal on 12th July 2012, which is a period of one year.  This one year period of ‘leave’ and the fact that the Claimant was not paid for that period are not in dispute. What is in contest is as to whether the Claimant is legally entitled to salary during the period of leave, which the Defendant also christened ‘compulsory leave’ pending investigation of alleged fraud by the Claimant while serving as the General Manager of the Defendant Company. Also in dispute is the appropriate amount of the remuneration payable to the Claimant, as both parties have presented varied figures as the amount payable as salary and allowance.

16.             Both contentions underpin the dispute presented for adjudication in this suit. On the contention around the legality of entitlement of remuneration during leave/suspension period (whether it is annual leave or compulsory leave or suspension pending investigation, whichever be the motive for the leave embarked upon by the Claimant as directed by the Defendant), the pertinent legal question is- Does an employee on leave or suspension no more entitled to remuneration during the period of leave/suspension? The current state of the law on the legal status of suspension is to the effect that ‘Suspension’, even expressed as  ‘compulsory leave’,  merely operates to suspend rather than terminate the employment relationship, and just relieved the employee the duty to  work but with an implied right to receive remuneration. Thus, Suspension is neither a termination of the contract of employment nor a dismissal of the employee. See: Longe v. First Bank Nig. Plc [2010]6NWLR (Pt.1189) SC1 @ P.60 paras. C-D; Adekunle v. UBA Plc (2016) LPELR-41124 (CA). In Yemi Edokpayi v. ABNL Ltd (NICN/PHC/146/2020, Judgment delivered on Jan.31 2022, per Ogbuanya J), I had the occasion to contribute to the conceptualization of legal status of suspension in employment relationship, to the effect that unlike Termination or Dismissal, Suspension, (even if ‘indefinite suspension’ as punishment for an infraction), “is not a recognized exit pathway for bringing an employment relationship to an end. It merely keeps the employment in abeyance subject to final decision on the fate of the employment relationship”.

 

17.             Going by the state of the pleadings and evidence led within applicable legal principles, I find that the said employment relationship between the  Claimant and the Defendant subsisted from 2nd October 2002 and continued beyond 1st July 2011, when he proceeded on annual leave but extended as compulsory leave said to enable the Defendant investigate allegation of fraud and financial misappropriation by the Claimant, up to his dismissal on 12th July 2012, which puts to an end the employment relationship. To that end, without any contrary evidence as to contractual basis of not being entitled to remuneration during the said one year period of his leave (July 2011–July 2012), as directed by the Defendant, the Claimant is entitled to his remuneration for the said period. I so hold.

 

18.             On the other contention bordering on the appropriate amount of the remuneration payable to the Claimant, both parties had joined issues on what is the appropriate amount payable. From the record, the Claimant had contended that his remuneration per month stood at and he received a monthly salary of N200, 000.00, and entitled to N300, 000.00 as accommodation allowance. The Defendant had disagreed, arguing that the appropriate sum has been N107, 700.00, being the last salary of the Claimant which was officially approved by the Defendant, moving from  an increment from N96, 000.00 (exhs.D2 and D3). And that there is no evidence of official increment to the sum of N200, 000.00 monthly salary and N300,000.00 accommodation allowance, as  claimed by the Claimant.

 

19.             It is on the basis of his claimed remuneration of the sum of N200, 000.00 monthly salary and N300, 000.00 for accommodation allowance that the Claimant had anchored his Relief (a), asking for: “The sum of N3, 600,000.00 (Three Million Six Hundred Thousand Naira) being outstanding balance of Claimant unpaid salaries, inclusive of accommodation allowance, due to the claimant as being under the employment of the Defendant”.  I find from the record that the Claimant, beyond the bare assertion in his pleadings on his alleged sums he is entitled to as his remuneration, did not present any evidence to buttress the veracity and reliability of such potent assertion as required in the court of law in line with S.131 of the evidence Act, which placed the onerous burden on him to prove his case. Having not done so leaves the only standing fact to be that of the Defendant who had evidently adduced that the Claimant’s official remuneration stands at the sum of N107, 700.00, going by exhs.D2 and D3. In civil trial, cases are won and lost on the basis of preponderance of evidence and proved on balance of probability. Thus, where the weight of evidence put by a party in the proverbial scale of justice is too low, it cannot tilt the balance of the scale to the side of such a party, particularly the Claimant who approached the Court praying for reliefs. It is also settled principle of adversary adjudication, that pleadings are not evidence, and any pleading not backed by evidence at trial goes to no issue, and is regarded as abandoned. This position was maintained by the Court in Olusanya v. Osinleye [2013] 7NWLR (Pt.1367)SC148@para.B-C, 171 para.D-E, wherein the Supreme Court held thus: 

Any pleading not backed by evidence goes to no issue and should be disregarded by the Court. Pleadings do not constitute evidence, and therefore where such pleadings is not supported by evidence oral or documentary, it is deemed by the Court as having been abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned.

 

20.        It is therefore, my considered view, that the evidence adduced by the Defendant on the appropriate remuneration payable to the Claimant in the sum of N107,700.00 is credible and believable, and is hereby accepted. In the circumstance, the Claimant’s Relief (a) succeeds only to the extent that the Defendant is hereby ordered to pay the Claimant the sum of N1,292,400 being the one year (12 months X N107, 700.00) emolument for the period of his leave/suspension from July 2011-July 2012. I so hold.

21.        The Claimant’s Relief (b) is asking for: “The sum of N1, 400,000.00 (One Million, Four Hundred Thousand Naira Only) being unpaid pension deductions over the years of Claimant service/employment in the Defendant Company”. The Claimant had placed reliance of exh.C5, the Statement of Account of his Pension Fund Administrator-Stanbic IBTC Pension Manager Ltd, for grant of this relief, which relief the Defendant opposed. The main contention of the Defendant is that the Claimant served as the General Manager of the Defendant Company, yet he did not perform the statutory duty of deducting and remitting the pension contributions to his said Pension Fund Administrator, the Stanbic IBTC. That the Claimant having failed to perform such statutory and administrative duty cannot turn around to lay claim for payment of pension contribution. Learned Defendant’s counsel had so urged the court to so hold and dismiss the relief.  

 

22.        I find that the Claimant did not potently dispute this assertion, even inferable from the exh.C5, which shows that there are omissions of remittances of the pension contribution. It was pointedly asserted that it was the Claimant who had the responsibility as the General Manager to perform this task, yet he did not deduct and or remit the sums as required by law. Now, it is being pressed upon the Court to make an Order for payment of such sums to benefit the Claimant, as an aspect of his earned terminal benefits prior to the dismissal. Ordinarily, dismissal, though punitive in nature, does not take away earned benefits from the dismissed employee. However, even though under the extant legal regime of Contributory Pension Scheme, the recovery of unremitted  pension payment is not made directly to the owed employee, but through his/her Retirement Savings Account (RSA) maintained with a Pension Fund Administrator (PFA), in the face of the apparent mischief by the Claimant in failing to carry out lawful responsibility to enhance the operation of the extant law on contributory pension scheme, can the Claimant  be aided by the Court to benefit from his own wrong?

 

23.        I am guided by the Supreme Court decision on application of principle of equity to curb mischief. In Tonimas (Nig)Ltd. v. Chigbu [2020]6NWLR (Pt.1720)SC237, the apex court  @ p.250, para.E, held that: “Equity acts in personam and would not allow a party to benefit from his own wrong or mischief”, and @ Pp.251-252, paras.H-A, while emphasizing the role of court in application of the principle of equity, further held that: “The court of justice is the keeper of conscience and will prevent a person from acting against the dictates of conscience”.

 

 

 

24.        On that note, the Claimant, having mischievously failed to perform such statutory and administrative responsibility to enhance the operation of the extant law on contributory pension scheme, in my view, cannot turn around to lay claim for payment of pension contribution. I decline to grant Relief (b), same is hereby dismissed. I so hold.

 

25.        The Claimant’s Relief (c) asks for: “Compound interest on the said at the rate of 21% per annum from the 12th day of July until the date of Judgment and thereafter at the rate of 10% per annum from the date of judgment until final liquidation of the said sum”. The tenor of this relief posits that the Claimant is asking for both pre-Judgment and post-Judgment interests’ award. The critical question remains, is the Claimant entitled to award of pre-Judgment interest in the circumstance of this suit? For pre-judgment interest claim, I find that the Claimant did not make sufficient averment to provide basis for the claim, which ranks as special damages that is required to, not only be specifically pleaded, but also to provide sufficient evidence to ground its award. See: Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, where the apex court held that: “where interest is claimed, it must be proved before it can be granted”.  Same is accordingly refused and dismissed. I so hold. On the aspect of the relief dealing with post-Judgment interest, the law is that fixing of post-Judgment interest is the prerogative of the court. The award of post-Judgment interest is guided by the Rules of the Court, and based on the discretion of the Court upon review of the circumstances of the case at the stage of delivering Judgment. I therefore find the Claimant’s fixing of the post-Judgment interest rate as presumptuous, speculative and role-swapping. Accordingly, this Relief (c) entirely fails, being unproved and also presumptuous. Same is hereby discountenanced and dismissed. I will however, in the course of the Judgment consider award of post-Judgment interest as appropriate in line with the Rules of this Court. I so hold.

 

26.        Monetary payment ordered in respect of Relief (a) in this Judgment shall be made by the Defendant within two (2) months of receipt of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.

27.        Judgment is entered accordingly. I make no Order as to Cost.

 

HON. JUSTICE N.C.S OGBUANYA

PRESIDING JUDGE

20/08/24