MOHAMMED LAWAL IBRAHIM -VS- INTERNATIONAL TOBBACO COMPANY PLC- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: MONDAY 26^TH JANUARY, 2026

SUIT NO: NICN/KD/17/2022

BETWEEN:

MOHAMMED LAWAL IBRAHIM CLAIMANT

AND

INTERNATIONAL TOBACO COMPANY PLC DEFENDANT

REPRESENTATION

M. B. Olorunmaiye Esq for the Claimant

J. O. Omisade Esq for the Defendant

JUDGMENT

INTRODUCTION

The Claimant filed a Complaint pursuant to Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017 on the 1^st of June 2022. The Claimant filed, on the 3^rd of July 2024, an Amended Complaint and other accompanying processes pursuant to the order of this Court granted on the 3^rd of July 2024, whereat the Claimant claims against the Defendant the following reliefs:

i. A DECLARATION that the Claimant is entitled to the sum of N4, 514,400 (Four Million Five Hundred and Fourteen Thousand, Four Hundred Naira only) as out of station allowance for 627 days from November 5, 2019 when he resumed work in Kaduna State to November 5, 2021 (when he was officially notified of his transfer) a cumulative period of 731 days less 104 days as weekends (i.e. Sundays only).

ii. A DECLARATION that the Claimant's transfer from Ilorin in Kwara State to Kaduna State took effect from November 5, 2021, the date he was notified and not November 5, 2019, as contained in the backdated letter of transfer and therefore entitled to the transfer allowance contained in the Defendant's letter of transfer from November 5, 2021.

iii. A DECLARATION that the Defendant's failure to promptly pay the Claimant his terminal benefit from October 17, 2022, when the Claimant submitted all the Defendant's properties in his possession, and November 8, 2022, when the Defendant paid the balance of the float account in his possession, is a breach of the Service Agreement of September 1, 2016.

iv. A DECLARATION that the Defendant's deliberate, willful and continued refusal to pay the Claimant all his entitlement despite several demands has caused the Claimant untold hardship.

Whereof the Claimant seeks the following consequential orders/awards:

a. N10,000,000.00 (Ten Million Naira) as General Damages against the Defendant for willfully withholding the Claimant's out-of-station allowance and other allowances.

b. N10,000,000.00(Ten Million naira) only as damages for Breach of the Service Agreement between the Claimant and the Defendant.

c. AN ORDER MANDATING the Defendant to immediately pay the Claimant the total sum of N 5, 311, 773.53 comprising of:

i. N4, 514, 400 (Four Million Five Hundred and Fourteen Thousand, Four Hundred Naira only) as out-of-station allowance from November 5, 2019, to November 5, 2021, a period of 627 work days.

ii. N150,000.00 (One Hundred and Fifty Thousand naira) as transfer allowance comprising of 2 months basic salary and accommodation as contained in the Defendant's letter dated November 5, 2021.

iii. N85,000.00 (Eighty Thousand Naira) as the cost of transportation, which the Claimant expended in transporting his family and personal effects from Ilorin in Kwara State to Zaria in Kaduna State.

iv. N454,373.53 (Four Hundred and Fifty-Four Thousand naira, Three Hundred and Seventy-Three Thousand naira, fifty-three kobo only) as the Claimant's terminal benefit as contained in the Defendant's letter of August 31, 2022.

v. Cost of this action.

vi. 10% interest per annum on the total judgment sum awarded in favor of the Claimant from the date of judgment until the debt is finally liquidated:

The Claimant predicated his claims on the Statement of Facts and the Witness’ Deposition on Oath filed on the 3^rd of June 2024 and Reply and Additional Witness’ Statement on Oath filed on the 26^th of July 2024. The Defendant, in opposing the claims of the Claimant, predicated its defence on the Statement of Defence and Witness’ Deposition on Oath filed on the 8^th of July 2024.

The suit proceeded to a hearing on the 28^th of November 2024, where the Claimant, hereinafter referred to as CW1, testified for himself. CW1 identified his Statements on Oath filed on the 3^rd of June 2024, and Additional Witness’ Statement on Oath of the Claimant filed on the 26^th of July 2024 and adopted the same as his evidence in aid of the claim of the Claimant. CW1 thereafter tendered the following documents:

i. Claimant’s Offer of provisional appointment dated 15^th of March 2016; admitted and marked Exhibit C1.

ii. Service Agreement dated 1^st of September 2016; admitted and marked Exhibit C2.

iii. Confirmation of Appointment dated 13^th of February 2017; admitted and marked Exhibit C1A.

iv. Correspondences of the Claimant dated 11/12/2019; 20/10/2021; 21/10/2021; 07/11/2021; 10/11/2021; 8/11/2022; and 6/11/2022; admitted and marked Exhibits C3, C3A, C3B, C3C, C3E, and C3F.

v. Letter of Protest dated the 28^th of September 2021; admitted and marked Exhibit C4

vi. Letter of Termination dated the 31^st of August of 2022; admitted and marked Exhibit C5.

vii. Pre-action notice dated the 6^th of December 2021; admitted and marked Exhibit C6.

viii. Cash receipt dated 23^rd of May 2022 from Adeyemi Adekunle & Co; admitted and marked Exhibit C7.

ix. Letter dated 17^th of October 2022 titled ‘Returned Stocks and Company Property’; admitted and marked Exhibit C8.

x. First bank receipt; admitted and marked Exhibit C8A.

xi. Expense Statement receipt; admitted and marked Exhibit C9.

xii. Hospital card from Ola Olu Hospital; admitted and marked Exhibit C10.

xiii. Cash receipt from Beat the Best Nursery and Primary School; admitted and marked Exhibit C11A and C11B.

xiv. Receipt from St Bartholomew’s School; admitted and marked Exhibit C12A, C12B and C12C.

xv. Email of July 11, 20222 (Query) with attachment; admitted and marked Exhibit C13A and C13B.

On the 16^th of January 2025, the Defendant opened its defence. Adisa Shakiru Olaniba, hereinafter referred to as DW1, testified for the Defendant. DW1 identified his Statement on Oath filed on the 8^th of July 2024 and adopted the same as his evidence in support of the defence of the Defendant. DW1 thereafter tendered the following documents:

i. The Defendant’s Employee’s handbook; admitted and marked Exhibit DW01.

ii. Collective Agreement on salaries, allowances and fringe benefits; admitted and marked Exhibit DW02.

iii. Email subject- Query sent on the 8^th of July 2022; admitted and marked Exhibit DW03.

iv. E-mail sent on the 2^nd of August 2022, subject: M. Lawal Ibrahim Sales Performance in Question; admitted and marked Exhibit DW04.

v. Email sent on the 12^th of July 2022; admitted and marked Exhibit DW05.

After the close of the hearing of the suit, on the 29^th of October 2025, the matter came up for the adoption of the Final Written Addresses filed by Counsel. Learned Counsel for the Defendant, J. O. Omisade, Esq. identified his Final Written filed on the 7^th of February 2025 and Reply on Point of Law filed on the 22^nd October, 2025, adopted the same as his legal submission in aid of the case of the Defendant and urged this Court to dismiss this suit.

Counsel for the Claimant, N. B. Olorunmaiye, Esq, identified his Final Written Address filed on the 8^th of August 2025 and adopted the same as his legal submission in aid of the case of the Claimant while urging this Court to grant the claims of the Claimant.

CASE OF THE CLAIMANT

The facts as pleaded in the Statement of Fact are that the Claimant is a former employee of the Defendant and he signed a service contract agreement dated September 1, 2016 and his appointment was subsequently confirmed through a letter dated February 13, 2017. Upon his appointment he was deployed to Lagos State where he worked for about 4 months from March to June 2016 and was subsequently redeployed to Ilorin in Kwara State as a promo-officer from 2016 to 2019 from where he was called to resume work in Kaduna State from November 5, 2019 as an out of station staff until November 5, 2021 when his transfer was confirmed and the subsequent termination of his employment on August 31, 2022.

While in Ilorin, Kwara State, his job description was to organize and establish markets for the Defendant's product within the south-west and he frequently travelled around the south-west states as well as to other suburbs within Ilorin. For each day's work outside Ilorin in Kwara State he was entitled to the sum of N7,200.00 (Seven Thousand Two Hundred Naira only) comprising of N5,000 naira as accommodation and N2, 200 naira for other incidentals which include feeding. The Defendant continued to pay his out-of-station allowance and other allowances besides his monthly salary. On the 3^rd of November 2019, he was called on phone by the North Zonal Manager one Mr. Alao Adeleke at about 2:00 pm to report in Kaduna State the next day. He explained to the North Zonal Manager that he will need to handover the Defendant's VAN and stock in his possession before he can proceed to Kaduna and he will not be able to make it to Kaduna on November 4, 2022 as requested, this made the North Zonal Manager upset. Because the instruction was coming from a senior member of the Defendant, he left Ilorin in Kwara State and arrived in Kaduna on November 5, 2019. The Zonal Manager informed him that he would take him to the market and introduce the Claimant to the customers. He asked Mr. Adekele if he was been transferred to work in Kaduna and Mr. Adeleke answered that it is not yet confirmed by the company but he will be working in Kaduna on out-of-station-assignment and if the company is satisfied that he can handle the work, the company's decision will be communicated to him.

Sometimes in December 2019 after about one month of work in Kaduna State, he approached Mr. Adeleke to ask of the Defendant's decision but there was no credible response. He again approached Mr. Adeleke after a few days still without any positive response. At this point, Mr. Adeleke told the Claimant to discuss with his line manager Mr.Adisa Olaniba. When he approached his line manager-Mr.Adisa Olaniba, he advised the Claimant to make a formal request for his out of station allowance and formalization of his transfer. Following Mr. Adisa's advice, the Claimant sent an e-mail to Mr. Adisa on December 11, 2019 which was copied to the North Zonal Manager (Mr. Alao Adeleke) and Mr. Sunday Ogundipe. After a few days he approached Mr. Adisa to ask if the Defendant had responded to the e-mail and he said NO; when Mr. Adisa noticed the Claimant's persistence, he forwarded a copy of the e-mail he had previously sent to the top management of the Defendant to the Claimant on December 17, 2019.

After he waited for a while and there was no response from the Defendant, he had to move his family and personal effects from Ilorin to Zaria at his own expense at the cost of N85,000.00 (Eighty-Five Thousand naira only) and as a result he incurred additional expenses for accommodation and unwarranted charges of N30,000.00 to register his two children in school here in Zaria. Sometime in September 2021, precisely on September 20, 2021, his line manager, Mr. Adisa, called him on the phone to inform him that he had been suspended and directed him to hand over the company's properties in his possession (i.e. the company's van and stocks). He asked for the reason for his suspension and was told that he had re-stocked some products while still having some stock in his possession. He told Mr. Adisa that he was the one who instructed the storekeeper to give him additional stock. Mr. Adisa's response was that the suspension from the Defendant affected him too, but Mr. Adisa still continued to work. After his suspension, he was disillusioned and greatly pained by the Defendant's indiscriminate and unfair action after he had diligently and honestly discharged his duties to the Defendant, so he wrote a protest letter dated September 28, 2021 to the Regional Manager North West and also sent a copy to the Human Resource Manager.

After a week of sending the letter, he was recalled by his line manager, Mr Adisa who informed him that the company has decided to call off his suspension but this time the Claimant will be operating a motorcycle not a van and because of the ban on motorcycle in Kaduna State the Claimant should trek and use public transportation to access the market. He asked his line manager to make the instruction formal and as a result Mr. Adisa forwarded a previous e-mail correspondence between him and Mr. Sabiru Balogun dated October 18, 2021 to the Claimant on October 20, 2021 at about 11:31am. Upon receiving the e-mail forwarded to him on October 20, 2021, he responded by sending a reply e-mail on the same day at about 2:31pm containing a review of the oral conversation he had with his line manager as well as a request for payment of his out-of-station allowance.

In view of the Defendant's instruction for him to use public transportation in marketing the company's product, he sent another e-mail to his line Manager on October 21, 2022 at about 8:49 pm containing the cost of transportation to various market points and the e-mail was responded to on October 22, 2021 at 12:37pm. Despite the stringent and unfair working condition imposed on him by the Defendant he continued to discharge his obligations to the Defendant honestly and diligently. On November 5,2021 at about 3:01pm he received an e-mail from the Human Resource Department of the Defendant with an attached letter confirming his transfer but the attached letter of transfer was backdated to November 5, 2019 exactly 24 months or two years after he reported to Kaduna. He was highly displeased at the clandestine and dishonorable way with which the Defendant backdated his transfer letter wherein the Defendant stated that the Claimant was entitled to 2 months basic salary as resettlement grant and N50,000.00 (Fifty Thousand naira) for accommodation. Following the receipt of the backdated letter of transfer; he sent a reply e-mail to his line manager Mr. Adisa and other officers of the Defendant including Mr. Celestine Eronmosele (the Human Resource Manager of the Defendant) on November 7,2021 at about 2:47 pm. On November 8, 2021 the Defendant responded to his e-mail through its Human Resources Manager Mr. Celestine Eronmosele to apologize for the delay in sending the letter of transfer as well as trying to justify the amount to be paid to the Claimant.

Throughout his work in Kaduna State between November 5,2019 and November 5, 2021 a period of two years (i.e. 24months) amounting to 731 days the Defendant never communicated to him that he was transferred and refused to respond to the Claimant's several request for a formal instruction from the Defendant. Based on Mr. Alao Adeleke's instruction to him he was placed on out of station assignment pending the Defendant's decision which was not communicated to him until November 5, 2021 after 24 months. Based on the Defendant's policy he was paid N7,200.00 (Seven Thousand, Two Hundred Naira only) as out of station allowance while in Ilorin, Kwara State for each day's work outside Ilorin town.

When he was moved from Ilorin, Kwara State out of his then station to Kaduna State, he worked for 6 days (excluding Sunday) in a week for a period of 104 weeks 3 days amounting to 627 days at N7,200 for each day as out of station allowance: November 5, 2019 to November 5, 2021 (104 weeks) =731 days and less 104 days as Sundays = 627 days x N7,200 = N4,514,400. After he received the Defendant's letter of November 8, 2021, he wrote a letter via email to the Human Resource Department on November 10, 2021 and since then till date the Defendant has refused to pay his out-of-station allowances in the sum of N4,514,400.

His transfer was confirmed and communicated to him on November 5, 2021. After he had exhausted all affable means to recover all the allowances due to him from the Defendant; he approached the law firm of Messrs. Yemi Adekunle & Co., who caused a pre-action notice dated December 6, 2021 to be served on the Defendant. When the Defendant still refused to pay up his allowances he instructed his Counsel, Mr. A.B Raji of the law firm of Yemi Adekunle to file this action for which he expended the sum of N350,000.00 and was issued a receipt.

During the pendency of this case, the Defendant terminated his employment via a letter dated August 31, 2022 sent to him via WhatsApp in September 2022 by his line manager, wherein the Defendant computed his entitlement in the total sum of N454,373.53 (Four Hundred and Fifty-Four Thousand, Three Hundred and Seventy Three Naira, fifty three kobo only). The contract of employment between him and the Defendant was governed by the Service Agreement dated September 1,2016. The letter of termination issued to him states that a cheque of his entitlement will be paid upon submission of all the company's properties in his possession. He submitted all the properties of the Defendant in his possession to his line manager (Mr. Adisa Olaniba) through a handwritten Handover Note dated October 17, 2022. He also advanced the sum of N10,700 to Mr. Adisa as balance of the transportation float account of N20, 000.00 in his possession alongside the expenses form/receipt of N9, 300 but his line manager said he will need to inform the Defendant of the expenses and get back to the Claimant within a few days before collecting the balance.

After waiting for more than two weeks without any response he paid the balance of N10,700.00 of the float account in his possession to the Defendant's bank account with First Bank and sent an e-mail attaching the bank payment receipt and expenses form to his line manager on Tuesday November 8, 2022 and till date his out-of-station allowance, transfer allowance and terminal benefits have not been paid. Prior to this time all monies that accrued to him in the book of account of the Defendant were paid into his bank account with Zenith Bank No: (2082736662), which is in the record of the Defendant.

DEFENCE OF THE DEFENDANT

The Claimant was transferred permanently to Zaria, but not on an out-of-station basis. The Defendant puts the Claimant to the strictest proof of other allegations of fact contained in paragraph 3 of the Statement of Facts. The Claimant was permanently transferred to Zaria based on his request. Therefore, he is not entitled to out-of-station allowance. Out-of-station allowance is only applicable to employees who are on temporary official engagement or assignment outside their primary station or place of work for a short period of time, usually for some days.

The Claimant's line manager's (Mr. Adisa) email sent to the Defendant's Zonal Manager (Mr. Adeleke Alao) on 17 December 2019 and in which the Claimant was copied, it was cleared that the Claimant was transferred to Zaria, Kaduna. The Claimant was therefore aware at all material times that he was transferred to Zaria, Kaduna State, albeit without proper documentation of transfer. The Claimant did not move his family to Zaria nor incur any expenses in the alleged movement of this family. Neither did the Claimant incur any accommodation or unwarranted charges of N30, 000 (Thirty Thousand Naira Only) to register his children in school as a result of the Defendant's alleged wrongdoings.

The Claimant was not diligent and honest in discharging his official duties to the Defendant as the Claimant has been unproductive and has consistently recorded poor sales for over a year.

There was no bad faith whatsoever in the dating of the Claimant's transfer letter. The letter was merely to formalize events that had taken place. It is not in dispute that the Claimant was transferred to Zaria in November 2019, and it is a known fact that the formalization letter will date back to November 2019 which was the effective date of the Claimant's transfer to Zaria, Kaduna. The Claimant was aware at the relevant time that he was transferred to Zaria, Kaduna.

The Claimant was not paid the out of station allowance he requested for, because by the Defendant's Employee Handbook which forms part of the employment contract between the parties, the Claimant was not entitled to an out of station allowance as he was transferred to Zaria on a permanent basis. The Claimant paid N350,000.00 (Three Hundred and Fifty Thousand Naira).

The Claimant's letter of termination of appointment did not state that a cheque to his entitlement will be paid upon submission of all the Defendant's properties in the Claimant's possession. The Claimant advanced the sum of N10,700(Ten Thousand and Seven Hundred Naira Only) as balance of the transportation float account of N20,000 (Twenty Thousand Naira Only) which the Defendant rejected on the basis that the Claimant had to return the full amount of N20,000 (Twenty Thousand Naira Only) float advanced to the Claimant as per the Defendant's policy, while the Defendant approves the Claimant last expenses.

The letter of termination of appointment issued to the Claimant on the 31^st of August 2022 has at no point mentioned the word "Out of Station allowance or Transfer allowance" in the final settlement items. The Defendant confirmed that the mail of November 8, 2022, contained the bank payment receipt for N10,700 (Ten Thousand and Seven Hundred Naira Only) paid by the Claimant as a balance of his transportation float.

LEGAL SUBMISSION OF THE CLAIMANT

Counsel for the Claimant nominated three issues for the determination of the claim of the Claimant, to wit:

1. Whether the Defendant's is not liable to the Claimant for out-of-station allowance from November 5, 2019 to November 5,2021 having willfully or negligently failed to make a decision as to the status of the Claimant?

2. Whether the Defendant's refusal to immediately pay the Claimant's the computed entitlement contained in Exhibit C5 after receiving all its properties from the Claimant is not a breach of the Contract of Employment in Exhibit C1 and C2 to warrant payment of damages to the Claimant?

3. Whether the Claimant is entitled to damages for the unpaid out-of-station allowance and damages for breach of the contract of employment as well as to other reliefs sought by the Claimant?

On issue one, counsel for the Claimant submitted that the Defendant is liable to the Claimant for out-of-station allowance from November 5, 2019 to November 5, 2021. The Claimant's request and that of his line manager for a categorical decision on the Claimant's administrative stand was not responded too until after 24 months on November 5, 2021. This piece of evidence was not controverted or discredited under cross examination but was further corroborated by DW1 under cross examination when he testified on January 16,2025. DW1 in his own emphatic words under cross examination, affirmed that true to his statement in the Email of December 17,2019 the Claimant was in a state of administrative confusion, and in such a condition, an employee could not give his best to his employer.

From the totality of evidence adduced by the Claimant it is clear, established and incontrovertible that the Defendant intentionally or willfully refused to communicate its decision to the Claimant for a period of 24 months and therefore left the Claimant under the impression that he continued as an out of station staff in Kaduna and therefore entitle to the daily allowance of N7200.00 accruable to a staff in that position.

The Claimant's evidence on the amount paid to him as out of station allowance was not disputed or controverted under cross examination. Submitted that the irrefutable and cogent reason which makes the Defendant liable to the Claimant for out of station allowance for the period of November 5, 2019 to November 5, 2021 is the Defendant's intentional silence or willful refusal to respond to the Claimant's repeated request for his out of station allowance. The Defendant had developed a dangerous pattern of giving oral directives or instruction as opposed to written directive or correspondence in a bid to absolve itself from liability. DW1 under cross examination admitted that the ideal and best practice of moving an employee from one zone to another is through a letter of transfer which contains the terms of the Employee's movement and the allowances accruable to the employee. In a bid to evade liability the Defendant clandestinely chose to give oral directions through its agent as against written directions and also chose to remain mute over the Claimant's request in Exhibit C3 as to the decision of the Defendant as to the status to the Claimant either as a transferred staff or as an out of station employee, the Defendant's silence gave the Claimant the impression that his status in Kaduna continued as an out of station staff. The nagging question which requires an answer, is whether the Defendant having chosen to remain silent can turn around to assert that the Claimant is not entitle to out of station allowance for the period of November 5, 2019 to November 5,2021. The law is trite that a party cannot benefit from its own wrong. Cited Ekaneia v. Akam (1991) 8 NWLR Pt 211, Pg 616 at 637paras G-F.

On issue two, counsel for the Claimant submitted that the Defendant breached the terms of the employment contract in Exhibit C1 and C1A as well as Exhibit C2. The Contract of Employment between the Claimant and Defendant is regulated by Exhibit C1 which is the Offer of Appointment dated March 15, 2016 and Exhibit C2 which is the Service Agreement dated September 1, 2016 which explicitly provides for the basic terms and conditions of the employment contract. Based on the clear, lucid and unambiguous term relating to termination of the employment contract, the Defendant proceeded to terminate the Claimant's employment through Exhibit C5 dated August 31, 2022.

From the combined reading of Exhibit C1, C2 and C5, it is clear that since the Claimant was not found wanting for gross misconduct and had served the Defendant for 6 years, the Claimant is entitled to the final settlement stated in Exhibit C5. In Exhibit C1, it was expressly stated that where the Claimant is not given two months' notice to terminate the contract, the Claimant would be paid two months' salary in lieu of notice by crediting the Claimant's book of account in the Defendant's record, the same term and condition is stated in Exhibit C2. By Exhibit C5, the Defendant placed a fair and reasonable condition for payment of the Claimant's entitlement which is the submission of the Defendant's properties in the Claimant's possession. Understandably though, no company will want an employee to leave its employment without returning any relevant and sensitive property in his/her possession. By Exhibit C8, the Claimant returned all the Defendant's property in his possession which was received by his line Manager-Mr. Adisa Olaniba (DW1) through Exhibit C8. As shown by paragraph 30 and 31 of the Claimant's witness deposition of July 3, 2024 and paragraph 12 of the Claimant's additional witness deposition of July 26, 2024, the Claimant advanced the balance of N10, 700 to DW1 as the balance of the transportation float account but DW1 refused to collect the balance on October 17, 2022 when other properties where handed back to him. DW1 suggested that he would need to consult with the Defendant, after waiting for 2 weeks and the Defendant through DW1 was not forthcoming; the Claimant paid the balance of the transportation float account on Tuesday November 8, 2022 and notified the Defendant via an email dated November 8, 2022 marked as Exhibit C3E.

This undisputed and uncontroverted piece of evidence was admitted by the Defendant in paragraph 19 of the Defendant's pleadings, which is also contained in paragraph 21 of the witness deposition of DW1 of July 8,2024. Under cross examination DW1 confirmed that the Defendant received the email of November 8, 2022 as well as the Bank payment receipt. The law is trite and has been notoriously established that facts admitted need no further prove. Cited N.A.S Ltd v. UBA Plc (2005) 14 NWLR (Pt 945) 421 at 435 Paras A-B; and Capital Oil & Gas Ind. Ltd v. Oteri Holdings Ltd (2021) 1 NWLR (Pt. 1758) 483at 505 paras F-G.

From the established and incontrovertible facts deducible from Exhibit C1 and C2 as to the procedure for terminating the contract of employment between the Claimant and the Defendant as well as the fact that the Claimant returned all the Defendant's property back to the Defendant as shown in Exhibit C8 dated October 17, 2022 and Exhibit C8A and C8B (First Bank Receipt and Expense Form) and till date (3 years after the Claimant's employment was terminated), the Defendant has not paid the Claimant's entitlement which it computed, can it be argued by any standard that the Defendant is not in breach of the Contract of Employment between the Claimant and the Defendant, having failed to promptly pay the Claimant's legitimate entitlement? The Defendant asserted that it did not pay the Claimant's entitlement because of its policy relating to refund of the full amount of the transportation float. The question that comes to mind is, where is this policy contained in Exhibit C1, C2? Can the so-called policy of the Defendant supersede the clear provisions in Exhibit C2, which the Defendant signed and undertook to fulfill? Assuming without conceding that the reason why the Defendant refused to pay the Claimant his entitlement is because of the balance of the transportation float account, why did the Defendant not go ahead to deduct the balance of the transportation float account from the Claimant's entitlement and immediately pay the Claimant the balance of his entitlement? A party to a contract is said to be in breach of the contract when he fails to fulfill his obligation under the contract or to act in accord in the clear and unambiguous terms of the contract without lawful justification. Cited Ethiopian Airlines v. Polaries Bank Ltd (2025) 6 NWLR (Pt 1987)451.

On issue three, counsel submitted that this case initially began in June 2022 via a complaint dated June 1, 2022 before Hon. Justice A.O Adeniyi, based on the Claimant's Complaint at that time, the grouse of the Claimant's case revolved around his unpaid out of station allowance from the period of November 5,2019 to November 5, 2021 and damages for failure to pay the Claimant's out of station allowance. While the case was still pending, the Defendant terminated the Claimant's employment on August 31, 2022. While it is an established principle in labour matters that an employer has the right to terminate an employee's employment with or without any reason, such a termination must be done within the purview and ambit of the contract of employment executed by both parties. It would have been expected that the Defendant will exercise caution and strictly comply with the terms of the contract of employment when terminating the Claimant's appointment owing to the fact the issue is already before the court i.e. the issue of the claimant's out of station allowance is already subjudice. It is however worrisome to contemplate the Defendant's action of terminating the Claimant's employment which was done during the pendency of the Claimant's case before the court. It is clear that the Defendant's action was brazen and showed even a lack of deference or reverence for the institution of the court. It will also suggest that the Defendant feels that it can determine or terminate the Claimant's employment with impunity and there will be no consequences attached to it even if it is in breach of the Contract of Employment, for this and other reasons the Defendant will be liable for aggravated damages or damages by whatever name it is called.

As already argued in ISSUE ONE, the Defendant stood by when it refused to determine the Claimant's status nor specify the duration of the Claimant's out of station assignment and therefore the Defendant is estopped from asserting otherwise. By the Defendant's email of November 5, 2021 to the Claimant titled Transfer Letter, the Defendant alluded to 2months salary plus N50,000.00 as the Claimant's Resettlement grant, this clearly indicates that the Claimant is entitled to certain emoluments for moving from one zone to another and as shown by the uncontroverted evidence of CW1-the Claimant, he was placed on out of station from November 5, 2019 pending the decision of the Defendant which was not communicated to the Claimant until November 5, 2021.

The question that comes to mind is when is the resettlement grant or any emolument to be paid? Is not at the time of moving or transferring the employee from his current zone to his new zone? The emolument or resettlement grant will be used by the employee to care for the expenses incidental to the movement such as cost of moving the Employee's personal effects, accommodation in the new station and other necessary expenses. Where these expenses are single-handedly borne by the employee and the employer at a later time offers to pay or pays the employee his entitlement, should not the employer be liable to damages for willfully delaying such payment? Even though not expressly stated in the contract of employment, there is an implied obligation (except expressly stated otherwise in Contract of Employment) between the parties that payment earned or due to an employee is to be promptly paid. Where a party willfully and negligently refuses to perform his obligation under a contract which neglect moves the innocent party to approach the court, then the party in default will naturally be required to pay damages for such breach of contract. Cited In CBN v. Ahmed (2004) 15 NWLR (Pt 897) 591 at (608 paras B-C).

LEGAL SUBMISSION OF THE DEFENDANT

Counsel for the Defendant nominated five issues for the determination of the claim of the Claimant, to wit:

i. Whether, having regard to the evidence led at the trial of the action, the Claimant has satisfied the burden of proof that his transfer took effect from 5 November 2021 and not 5 November 2019? And in such case, whether the Claimant has proved an entitlement to out-of-station allowances in the sum of N4,514,400.00?

ii. Whether a breach of the Service Contract occurred by the non-payment of the terminal benefits and outstanding entitlements of the Claimant during the pendency of this suit?

iii. Whether the measure of damages in the Claimant's consequential reliefs (v) and (vi) in his Writ, for general damages and damages respectively are lawful and/or do not amount to double compensation?

iv. Whether the Claimant has proved the sum of N485,000.00 as cost of transportation from Kwara to Kaduna State and is entitled to same on the provisions of the Service Contract Agreement between the parties?

v. Following a successful defence in part or whole of this action, whether the Defendant is entitled in this suit to costs of the action, and on what basis shall costs be determined for the Defendant or Claimant?

On issue one, Counsel for the Defendant submitted that having regard to the evidence in this case, the Claimant has failed to prove any entitlement to an out-of-station allowance by the terms of the Service Agreement with the Defendant as he was effectively transferred from 5 November 2019 though awaiting formal transfer documents for official records. Without conceding, before this Court that any such payments for out-of-station allowance are capped at the rates incorporated into the Service Agreement at N1760.00 per night (including full board and lodging plus incidental expenses) or N2,420.00 per night (where the individual has arranged their own accommodation).

The terms of the employment contact between the Claimant and the Defendant are properly established in this case. Terms can be incorporated into a contract by reference to other documents in which they are contained, and that such terms, once incorporated, become part of the contract, with extrinsic evidence capable of being adduced to identify such incorporated documents. Cited the case of IDONIBOYE-OBU v.NNPC (2003) LPELR-1426(SC), and Adegbite v. College of MIedicine of University of Lagos (1973) 5 SC 149 at 162; International Drilling Company Ltd. v. Ajijala (1976) 2 SC 115 at 127."13. In the case of AWOLAJA v SEATRADE GRONINGEN B.V (2002) 4NWLR Part 758 pg. 520 at 534 (paras. C-E).

Submitted that the payment of out-of-station allowances with their prescribed rates are clearly defined pursuant to the provisions of the Employee Handbook for Senior Staff, which is incorporated into the Service Agreement. Section 4 of the Collective Agreement is also the origin for the resettlement grant of 2 months basic salary included in the letter of transfer dated 5 November 2019, which the Claimant seeks to rely on. The definitions stated in the provisions of the contract show that out-of-station allowance is only applicable to employees who are on temporary official engagement or assignment outside their retained primary station or place of work for a short period of time, usually for some days, while a transfer allowance is granted on a permanent transfer. The reading as suggested by the Claimant, that he was out-of-station for 2 years, is a clear and gross opportunistic misapplication of the ordinary words of the contract. Cited ADEDEJI v. OBAJIMI (2018) LPELR-4460(SC); NNPC v. FUNG TAI ENGINEERING CO LTD (2023) LPELR-59745(SC)

Submitted that the Claimant cannot deny the incorporation of the Employee Handbook for Senior Staff as this is the only basis for the Defendant's policy of paying out-of-station, transfer, and other allowances sought by the Claimant which are not defined by the Service Agreement, but only on incorporation of the Employee Handbook and the Collective Agreement of 2017. As such, a denial of the employee handbook is itself a denial of the policy by which the Claimant seeks to bind the Defendant, and as such is a claim in absurdity. It is trite that a litigant cannot approbate and reprobate at the same time. Cited OBAJE v. NAMA (2023) LPELR-61645(SC); A.G. RIVERS STATE v. A.G. FEDERATION & ANOR (2022) LPELR-57708(SC).

Submitted that the Claimant has also failed to adduce any evidence in support of the rates alleged by the Claimant of N7200 per day in paragraph 22 and 23 of the Claimant's Statement of Facts by which the total out-of-station sum sought by the Claimant of N4,514,400.00 is calculated. It is of note that no documentary evidence is adduced by the Claimant showing that such payments accrued to him during the time period in which he was stationed in Ilorin, Kwara State, or that such payment rates were in force by any agreement or conduct as at the time he was actually transferred to Kaduna State. Rather, the Claimant has merely placed pleadings before this court, asking it to rely on same while ignoring the material documents in the 2017 Collective Agreement adduced by the Defendant before this Court. It is submitted as held in the Supreme court case of MBAT v. MINISTER, FCT & ORS (2024) LPELR-62731(SC) per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC( Pp 25-26 Paras E-B) that the general rule of Evidence is that parol evidence is not permitted to add to or subtract from a contract which has been reduced into writing in the form of a document or series of documents. The only evidence permissible is the document itself or secondary evidence of its contents in cases where secondary evidence is admissible.

Submitted that the Claimant's claim for out-of-station allowances at the rates of N7200.00 per day is unproven and without evidence.

On issue two, Counsel for the Defendant submitted that there has been no breach in occurrence in this case, as the Defendant has conscientiously offered the Claimant all his entitlements and terminal benefits before the amendment and institution of this action for their recovery. The only issue herein is the refusal of the Claimant to pay the balance of the transportation float account of a sum N9,300.00 causing the delay in settling all entitlements and terminal benefits on this issue.

On issue three, counsel submitted that the Defendant has not breached the Service Contract as it is not denying terminal benefits and entitlements to the Claimant but has indeed offered these terminal benefits and entitlements under a full intention to pay the Claimant long before the amendment of the suit to include this claim. The issue of non-payment is only occasioned due to a disagreement on procedure - the payment of the full N20,000.00 transportation float account - which is contested by the Claimant who inadvertently amended this suit, in a breakdown of negotiations. The issue is not whether the Defendant has denied the Claimant his entitlements, neither has the Defendant contended that the Claimant is not entitled to the terminal benefits proposed by it in its letter of termination dated 31 August 2022, but whether the Claimant has fulfilled all requirements to access the entitlements offered freely and conscientiously by the Defendant.

That if this Honourable Court finds a breach of the service contract, it is submitted that the measure of damages set at a total amount of N20,000,000.00 by the Claimant in paragraph (v) & (vi) of the Writ is unsupported by the legal principles governing the measure of an award/grant of damages in an action for a breach of employment contract based on wrongful termination occasioned by non-payment of terminal benefits or other entitlements accrued by the Claimant during his employment, which is the issue in circumstance of this case.

On issue four, Counsel submitted that the Claimant has adduced no evidence in support of his pleadings that he incurred such costs before this Honourable Court. No receipts were placed before this court nor was any transport system by which the Claimant made this trip adduced in evidence of the Claimant or even in his pleadings. It is trite that pleadings must be supported by evidence unless they go to no issue. Cited SPDC (NIG) v. EKWEMS & ORS (2022) LPELR-61081(SC). There is no part of the Service Agreement that provides that the Claimant is indemnified against all costs of transportation pursuant to his transfer from one workstation to another, and neither has the Claimant adduced same by any evidence whatsoever. Rather, the Claimant is only entitled and limited to two months' salary and N50,000.00 for accommodation as Resettlement Grant with this claim already a separate part of the reliefs in paragraphs vii(ii) of the Claimant's Writ and uncontested by the Defendant.

On issue five, counsel cited the case of cited EZENNAKA v. COP, CROSS RIVER STATE & ANOR (2022) LPELR-59628(SC) the Supreme Court held award of costs by a Court, is usually regulated by the Rules of Court which vest the Court with the judicial discretion to assess and make order for costs as the facts and circumstances of a case may warrant or justifv. The award of costs in a matter is therefore generally, regarded as discretionary on the part of the Court, which discretion is always required by law to be exercised judicially and judiciously. This position of the law is premised on the principle that costs follow or should follow events and that a successful party in litigation is entitled to be indemnified for all the reasonable expenses incurred in the prosecution of a matter up to judgment.

Order 55 of the National Industrial Court Rules 2017provides that in every suit, the costs of the whole suit, and of each particular proceeding therein, and the costs of every proceeding in the Court, shall be at the discretion of the Court as regards the person by whom they are to be paid. The Defendant has undergone great pain and substantial cost in defending this action incurring costs for its counsel fees including travel expenses on trial dates from Lagos to Kaduna and is entitled to costs to compensate these efforts.

The Claimant has been wholly unreasonable in its actions leading to this suit. Apart from the wholly unsubstantiated claims for out-of-station allowances done merely to harass the Defendant, the Defendant never denied the Claimant its terminal benefits but sought only to maintain procedure and its policy in its access by the Claimant. Rather than simply comply with the stated policy in paying the full sum of the transportation float account to the balance of N9300.00, the Claimant preferred to amend its processes on its already frivolous and unproven claims for out-of-station allowances to include an action for wrongful termination for that which had, notably, already been offered to him.

It is the duty of parties to mitigate risk of loss and not institute frivolous suits when a more accessible remedy was made available to them, with the aim of burdening such costs on opposing litigants.

ISSUE FOR DETERMINATION

Having carefully read the pleadings, evidence and legal submission of counsel in support of their respective case, the fact of this case is very straightforward as against how counsel make it by filing over 35 pages final written addresses. Thus, I suppose, the suit can be determined by the sole issue which goes thus:

Whether the Claimant has proved his case on the preponderance of evidence to entitle him to the relief sought.

COURT’S DECISION

It is important to start by reiterating the principle of law that the burden of proof is on the party who asserts a fact to prove it on the preponderance of evidence in civil cases. Once a claimant has proved his claim on the balance of probabilities and preponderance of evidence, the burden shifts to the defendant to prove any fact he relies on to establish his case: see B.E.G.H. LTD. V. U.H.S.L. LTD. (2011) 7 NWLR (Pt. 1246) 246. This principle is predicated on Sections 131(1) (2) and 132 of the Evidence Act 2011, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In this instant suit, the Claimant asserts some claims against the Defendant; the Claimant has the burden to prove the same; otherwise, the claim will fail like a pack of cards.

Gleaning from the pleading before the Court, it is not disputed that the Claimant was an employee of the Defendant; it is also not in dispute that the employment relationship between the Claimant and the Defendant was terminated on the 31^st of August 2022 vide Exhibit C5, even though the legality or otherwise of the termination of employment is not a subject of the grievance of the Claimant before this Court. The law is that a fact not in dispute need no proof: see the case of ABBA V. ABBA AJI (2022) 11 NWLR (Pt. 1842) 535.

The Claimant led evidence to state that while he was in Ilorin, Kwara State, his job description was to organise and establish markets for the Defendant's product within the south-west and he frequently travelled around the south-west states as well as to other suburbs within Ilorin. For each day's work outside Ilorin in Kwara State, he was entitled to the sum of N7,200.00 (Seven Thousand Two Hundred Naira only), comprising N5,000 naira as accommodation and N2,200 naira for other incidentals, which include feeding. The Defendant continued to pay his out-of-station allowance and other allowances besides his monthly salary.

The Defendant merely denied the claim of the Claimant on the payment of N7,200 as his out-of-station allowance. The denial of a particular paragraph in a statement of defence by means of the general traverse has the same effect as a specific denial of it. Its effect, solely, is to put the claimant to strict proof of the allegation in that paragraph. This is convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied: see the case of DAIRO V. REGD. TRUSTEES, T.A.D., LAGOS (2018) 1 NWLR (Pt. 1599) 62.

However, the Defendants did not cross-examine CW1 on this piece of evidence under controversy. The piece of evidence stated in paragraph 6 of the evidence-in-chief of CW1 is unchallenged and uncontradicted. Where a witness testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where, as in the instant case, the Defendants failed to do either, the trial court can take its silence as an acceptance that the Defendants did not dispute the fact: see the case of NITEL LTD, V. IKPI (2007) 8 NWLR (Pt. 1035) 96 Pp. 109-110, paras. H-A and MOHAMMED V. STATE (2023) 3 NWLR (Pt. 1870) 157 Pp. 199, paras. B-G; 217-218, paras. F-G. In OLOWU V. BUILDING STOCK LTD (2018) 1 NWLR (Pt. 1601) 343 Pp. 398 – 399 paras H – A where the Supreme Court held that:

In addition to the exhibits, the second respondent as PW1, explained how he told appellant that they are not registered to ?give out loans, and how he doled out the sums of money to him ?piecemeal because appellant “was so much under pressure”. The second respondent was not cross-examined on this, ?and it is well-settled that the effect of a failure to cross-examine ?a witness upon a particular matter, is a tacit acceptance of the ?truth of the evidence of the witness.

Though I am not oblivious of Clause 3 of Exhibit DW02 pleaded in paragraph 14 of the Second Amended Statement of Defence, which makes Option A of the out-of-station allowance in the sum of N1,760 per night and Option B of the out-of-station allowance in the sum of N2,420 per night. But there is no evidence from either party linking the claim of the Claimant on his out-of-station allowance with Exhibit DW02. Documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their purport: see the case of ALAO V. AKANO (2005) 11 NWLR (Pt. 935) 160.

Again, the Court is not in a position to choose the option for the parties. Instead of threading on the web of confusion as created by the defence, this Court will rather accept unchallenged evidence of the Claimant, which is the sum of N7,200 per night.

In view of the foregoing, the Claimant was able to prove that the Defendant paid the Claimant the sum of N7,200 as his out-of-station allowance. I so hold.

Furthermore, the Claimant pleaded and led evidence to state that the 3^rd of November 2019, he was called on the phone by the North Zonal Manager, one Mr Alao Adeleke at about 2:00 pm to report in Kaduna State the next day. The Claimant left Ilorin, Kwara State and arrived in Kaduna on November 5, 2019. The Zonal Manager informed him that he would take him to the market and introduce the Claimant to the customers. He asked Mr. Adekele if he was transferred to work in Kaduna and Mr Adeleke answered that it is not yet confirmed by the company but he will be working in Kaduna on out-of-station assignment and if the company is satisfied that he can handle the work, the company's decision will be communicated to him.

Continued in his evidence, the Claimant stated that sometimes in December 2019 after about one month of work in Kaduna State, he approached Mr. Adeleke to ask of the Defendant's decision but there was no credible response. He again approached Mr. Adeleke after a few days still without any positive response. At this point, Mr. Adeleke told the Claimant to discuss with his line manager Mr. Adisa Olaniba. When he approached his line manager- Mr. Adisa Olaniba, he advised the Claimant to make a formal request for his out of station allowance and formalization of his transfer. Following Mr. Adisa's advice, the Claimant sent an e-mail to Mr. Adisa on December 11, 2019 which was copied to the North Zonal Manager (Mr. Alao Adeleke) and Mr. Sunday Ogundipe. After a few days he approached Mr. Adisa to ask if the Defendant had responded to the e-mail and he said NO; when Mr Adisa noticed the Claimant's persistence, he forwarded a copy of the e-mail he had previously sent to the top management of the Defendant to the Claimant on December 17, 2019. On November 5,2021, at about 3:01pm, he received an email from the Human Resource Department of the Defendant with an attached letter confirming his transfer but the attached letter of transfer was backdated to November 5, 2019, exactly 24 months or two years after he reported to Kaduna. In support of his evidence, the Claimant put in Exhibits C3, C3C and C3F.

The Defendant led evidence to state that the Claimant was permanently transferred to Zaria based on his request. Therefore, he is not entitled to out-of-station allowance. Out-of-station allowance is only applicable to employees who are on temporary official engagement or assignment outside their primary station or place of work for a short period of time, usually for some days.

I have painstakingly read through the gamut of evidence before this Court. Based on evidence of the Claimant before this Court, the Claimant was called on the phone by the North Zonal Manager of the Defendant to report to Kaduna, and the Claimant reported in Kaduna on the 5^th of November 2019. The Claimant asked the North Zonal Manager of the Defendant if the Claimant had been transferred to work in Kaduna, and the North Zonal Manager of the Defendant informed the Claimant that the transfer to work in Kaduna is not yet confirmed by the Defendant, but the Claimant would be working in Kaduna on an out-of-station assignment. It is based on this representation that the Claimant held himself to be in Kaduna for the out-of-station assignment. Although DW1 stated that the Claimant was permanently transferred to Zaria based on his request, and he was therefore not entitled to out-of-station allowance.

I entertain no hesitation to conclude that the line of defence of the Defendant is a ruse to deny the Claimant his entitlement to his out-of-station allowances in view of the documentary evidence before the Court. The Claimant wrote Exhibit C3, an email on the 11^th of December 2019 to his Line Manager, Mr. Adisa Olaniba, requesting to know whether the Defendant has transformed his out-of-station assignment in Kaduna to transfer to enable the Claimant to arrange the schooling of his children and renewal of his tenancy. The Defendant ignored the request of the Claimant. Again, the line Manager of the Claimant also forwarded the Claimant’s email of 11^th of December 2019 to the North Zonal Manager of the Defendant on the 17^th of December 2019, in which the request or enquiry of the Claimant was ignored.

The Claimant continued to work with the Defendant with the belief that the Claimant was on an out-of-station assignment in Kaduna until the 5^th of November 2021, when the Defendant issued Exhibit C3F confirming the transfer of the Claimant with effect from the 5^th of November 2019. To make its deception appears real, the letter of transfer that was received by the Claimant on the 5^th of November 2021 vide email was dated the 5^th of November 2019. This deception will not save the Defendant from paying the Claimant his out-of-station allowances.

Having failed to respond to Exhibit C3 by making the Claimant know his working status in Kaduna, the Court will deem the silence of the Defendant on Exhibit C3 admitting that the Claimant was on the out-of-station assignment. In business and mercantile transactions, where in the ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means to dispute the facts that he did not agree. Where there is silence in circumstances in which a reply is obviously expected, an irrebutable presumption of admission by conduct or representation is raised: see the case of VASWANI V. JOHNSON (2000) 11 NWLR (Pt. 679) 582. In HERITAGE BANK LTD. V. MEENS (NIG.) LTD. (2025) 9 NWLR (Pt. 1994) 321 P. 367 – 368 paras E – B where the Supreme Court held that:

There is concrete evidence on record, the soul of the appeal, that the appellant failed to reply to those critical documents. In fact, the trial court, between pages 133-144 of the record, articulated the appellant’s neglect to react/reply to the loads of correspondence addressed to it by the respondent or its agent - the firm of chartered accountants. The trial court appropriately christened the attitude “mute mode”. The fate of the conduct of the appellant, failure to reply/respond to the business letters written to it, has received the blessing of the caselaw. In Wiedemann v. Walpole (1891) 2 Q.B. 534, at 532, Lord Esher, M. R., insightfully, proclaimed:

Now there are cases business and mercantile cases in which the courts have taken notice that in the ordinary course of business, ‘ if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. So, where merchants are in dispute one with the other in the course of carrying on some business negotiations, and one writes to the other, ‘but you promised me that you would do this or that,’ if the other does not answer the letter, but proceeds with the negotiations, he must be taken to admit the truth of the statement.

This time-honoured principle of law has been propagated and assimilated firmly in our jurisprudence.

The Defendant was in hibernation since the 5^th of November 2019 when the Claimant got to Kaduna, and only woke up on the 5^th of November 2021 to respond to the inquiry of the Claimant regarding his working status of staying in Kaduna, which was made on the 11^th of December 2019. In view of the mute mode of the Defendant, its silence will be treated that the Claimant had been on an out-of-station assignment from the 5^th of November 2019 to the 5^th of November 2021 when the Claimant received his transfer notice. Thus, the Defendant will be liable to pay the Claimant his out-of-station allowance in the sum of N4,514,400. I so hold.

Furthermore, on the claim of the Claimant for the sum of N150,000 as transfer allowance comprising 2 months basic salary and accommodation as contained in Exhibit C3F. The basis of this claim is rooted in Exhibit C3F, which states that the Defendant will pay the Claimant a resettlement grant of two months' basic salary plus N50,000.00 for the accommodation. The snag in this claim is that the Claimant did not plead or lead evidence to state that the Claimant was not paid his resettlement grant as contained in his letter of transfer, neither did the Claimant plead how he arrived at N150,000. Though the Claimant under cross-examination stated that his salary has been within the range of N60,000 – N70,000. The Court cannot rely on this evidence to grant the claim for the resettlement grant of the Claimant as it is certain and specific to be used by the Court. From Exhibit C1, the annual salary of the Claimant is in the sum of N300,000. The annual salary of the Claimant divided by 12 months is N25,000. Now, what is the basic salary of the Claimant? This fact is not before the Court. It is therefore the finding of the Court that the claim of the Claimant for the sum of N150,000 as his resettlement grant is cloudy, as there is no evidence before the Court to warrant the grant of this claim. Therefore, same is refused. I so hold.

With respect to the final entitlement of the Claimant, the Claimant led evidence to state that during the pendency of this case, the Defendant terminated his employment via a letter dated August 31, 2022 sent to him via WhatsApp in September 2022 by his line manager, wherein the Defendant computed his entitlement in the total sum of N454,373.53 (Four Hundred and Fifty-Four Thousand, Three Hundred and Seventy Three Naira, fifty three kobo only). The contract of employment between him and the Defendant was governed by the Service Agreement dated September 1,2016. The letter of termination issued to him states that a cheque of his entitlement will be paid upon submission of all the company's properties in his possession. He submitted all the properties of the Defendant in his possession to his line manager (Mr Adisa Olaniba) through a handwritten Handover Note dated October 17, 2022. He also advanced the sum of N10,700 to Mr. Adisa as balance of the transportation float account of N20,000.00 in his possession alongside the expenses form/receipt of N9, 300 but his line manager said he will need to inform the Defendant of the expenses and get back to the Claimant within a few days before collecting the balance.

The Defendant, however, stated that the letter of termination of appointment did not state that a cheque to his entitlement will be paid upon submission of all the Defendant's properties in the Claimant's possession. The Claimant advanced the sum of N10,700(Ten Thousand and Seven Hundred Naira Only) as balance of the transportation float account of N20,000 (Twenty Thousand Naira Only) which the Defendant rejected on the basis that the Claimant had to return the full amount of N20,000 (Twenty Thousand Naira Only) float advanced to the Claimant as per the Defendant's policy, while the Defendant approves the Claimant last expenses.

Gleaning from the piece of evidence before this Court, upon the termination of employment of the Claimant by the Defendant, the Defendant calculated the final entitlement of the Claimant in the sum of N454,373.53 (Four Hundred and Fifty-Four Thousand, Three Hundred and Seventy Three Naira, fifty-three kobo only). There is no dispute as to the amount due to the Claimant from the Defendant. The Claimant paid the sum of N10,700 in his possession of the Claimant to the Defendant’s account vide Exhibit C3E. The Defendant admitted to the fact that the Claimant paid the sum of N10,700 to the account of the Defendant, but the Defendant rejected it on the basis that the Claimant had to return the full amount of N20,000 (Twenty Thousand Naira Only) float advanced to the Claimant as per the Defendant's policy. The alleged policy is not before this Court; thus, the Court will not belabour itself on the policy that is not before the Court. Even at that, the Defendant did not notify the Claimant upon receiving Exhibit C3E the reason for not paying the Claimant’s final entitlements as contained in Exhibit C5.

Assuming the Claimant must refund the entire N20,000 float advanced to the Claimant, is it not better to deduct the remaining balance that the Claimant has not refunded from the entitlement due to the Claimant from the Defendant? Withholding the settled entitlement of the Claimant is a demonstration of bad faith towards the Claimant. Refusal to pay the Claimant his final entitlement in the guise of an undisclosed policy of the Defendant is a charade and an act of malice. Flowing from the foregoing, the Claimant has proved his claim for the final entitlement of the Claimant in the sum of N454,373.53 (Four Hundred and Fifty-Four Thousand, Three Hundred and Seventy Three Naira, fifty-three kobo only). I so hold.

On the claim of the Claimant for the sum of N85,000.00 as the cost of transportation, which the Claimant expended in transporting his family and personal effects from Ilorin to Zaria. The Claimant led evidence to state that he moved his family and personal effects from Ilorin to Zaria at his expense at the cost of N85,000. Paragraph 9 of Exhibit DW01 provides that:

This is applicable to an employee on permanent transfer at the company’s request. The condition and rates applicable shall be those fixed through collective agreement between AFBTE and FOBTOB

Exhibit DW02 is the collective agreement between AFBTE and FOBTOB; however, there is no provision for the relocation/transfer allowance in Exhibit DW002 in line with Paragraph 9 of Exhibit DW01. The sum of N85,000 that the Claimant claims against the Defendant is a figment of his imagination, as a party to a contract cannot unilaterally sit in the four corners of his home to alter the terms of the contract. A party to an agreement is not at liberty to unilaterally vary the terms of the agreement, and any such attempt is illegal, null and void: see the case of UNITY BANK PLC V. OLATUNJI (2015) 5 NWLR (Pt. 1452) 203 P. 243, paras. F-H.

Flowing from the foregoing, the Claimant cannot expect the Court to make the Defendant liable for his expenses incurred in the sum of N85,000 where there is no such agreement between the parties. I so hold.

The Claimant has been able to partly prove his claim against the Defendant. Damages of whatever kind are a function of liability, and where a claimant fails to establish the liability of the defendant, then such Claimant will not be entitled to an award of damages: see the case of ANIKE V. S.P.D.C.N. LTD. (2011) 7 NWLR (Pt. 1246) 227. In this case, the Claimant has established that the Defendant breached their contract by not paying the Claimant his out-of-station allowance and final entitlement. Thus, the Claimant is entitled to be awarded damages.

The claim for out-of-station allowance and final entitlement are special damages in nature, which is not granted at the discretion of the Court. Awarding both special and general damages will not amount to double compensation: see the case of S.P.D.C., NIG. V. OKONEDO (2008) 9 NWLR (Pt. 1091) 85 P. 125 paras B – C where the Court of Appeal held that:

The law no doubt frowns at double compensation in award of damages to a successful litigant. In the instant case, the claim of the respondent before the trial court was of trespass and having established ownership and unlawful interference, the award of N2,000,000.00 general damages by the learned trial Judge in addition to the award of special damages cannot and did not amount to double compensation in the circumstances of this case. The respondent is entitled to succeed on both his claims of special and general damages. The award of general damages to the respondent is not vitiated by any of the circumstances that would entitle an appellate court to interfere with an award of damages.

The Claimant prays for N10,000,000 as general damages for willful withholding of the Claimant’s out-of-station allowance and other allowances and N10,000,000 as damages for breach of service agreement between the parties, and 10% interest per annum on the total judgment sum. I am, however, not comfortable with granting general damages for each of the claims successfully proved by the Claimant, as granting the same will amount to double compensation. In THOMPSON V. AKINGBEHIN (2021) 16 NWLR (Pt. 1802) 283 P. 312 para B where the Supreme Court held that:

It is however trite that the law frowns on double compensation. Where a party has been sufficiently compensated for a wrong under one head of claim, it would amount to double compensation to grant an award for the same injury under a different head.

The Supreme Court further held on P. 312 para-B that:

I am of the view that by the award of post-judgment interest on the judgment sum from the date of judgment until final liquidation, the respondent had been fully compensated for the loss occasioned by the appellants’ failure to pay his professional fees. The award ofN300,000.00 as general damages amounts to double compensation.

In view of the foregoing, the Court hereby grants the relief of the Claimant as follows:

iv. A DECLARATION that the Defendant's deliberate, willful and continued refusal to pay the Claimant all his entitlement despite several demands has caused the Claimant untold hardship.

v. An order mandating the Defendant for the payment of the sum of N4, 514, 400 (Four Million Five Hundred and Fourteen Thousand, Four Hundred Naira only) as out-of-station allowance from November 5, 2019, to November 5, 2021, a period of 627 work days.

vi. An order mandating the Defendant for the payment of the sum of N454,373.53 (Four Hundred and Fifty-Four Thousand naira, Three Hundred and Seventy-Three Thousand Naira, fifty-three kobo only) as the Claimant's terminal benefit as contained in the Defendant's letter of August 31, 2022.

vii. An order mandating the Defendant for the payment of the sum of N1,000,000.00 (One Million Naira) as General Damages against the Defendant for willfully withholding the Claimant's out-of-station allowance and other allowances.

viii. All other reliefs are refused.

ix. All the terms of this Judgment are to be complied with within 30 days from today without prejudice to the right of Appeal by both Parties.

Judgment is entered accordingly.

HON. JUSTICE B. A. ALKALI

HON. JUDGE

NATIONAL INDUSTRIAL COURT OF NIGERIA