IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS
JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI
DATE: TUESDAY 13TH OCTOBER 2026 SUIT NO: NICN/LA/223/2024
BETWEEN
LAFARGE
AFRICA PLC CLAIMANT
AND
AKUBUEZE
OKERE DEFENDANT
Representation:
A.T. Kalaro
for the Claimant
Defendant is
unrepresented.
JUDGMENT
Introduction
and Claims
1. The Claimant
commenced this suit by a General Form of Complaint dated 19 August 2024,
against the Defendant, a former employee, seeking the following reliefs:
1. An order directing the Defendant to refund to the Claimant
the sum of N840,692.22 (Eight Hundred and Forty Thousand, Six Hundred and
Ninety-Two Naira, Twenty-Two Kobo), being the unearned benefit paid to the
Defendant by the Claimant in accordance with the terms of the contract of
employment.
2. Economic inflation interest at the rate of 22% per annum
from 4 October 2019, when the Defendant allegedly left the employment of the
Claimant, to the date of judgment, and thereafter 21% post-judgment interest
from the date of judgment until final liquidation.
3. The sum of N500,000.00 as the cost of this action.
4. General damages in the sum of N5,000,000.00 for breach of
contract of employment by the Defendant.
2. The Claimant's
case is founded on a contract of employment dated 18 January 2016 (Exhibit C1),
the Defendant's resignation letter dated 1 March 2022 (Exhibit C2), the
Claimant's Employee Handbook (Exhibit C7), and a series of demand letters. Following an order of this Court permitting
substituted service, the originating processes were served on the Defendant
through his email address: Johnsonakubueze@yahoo.com. Proof of service is on the Court's record. Despite being served with the originating
processes and several hearing notices, the Defendant failed to enter
appearance, failed to file any Statement of Defence, and failed to appear at
trial. The Defendant's right to defend this suit was accordingly foreclosed by
this Court. The effect of the
Defendant's default is significant. A party who is properly served with Court
processes and who elects not to engage with the suit is deemed to have waived
the right to be heard. See BGL PLC & Ors v. FBN (2021) LPELR-54655
(CA), where the Court of Appeal held that waiver denotes an intentional and
voluntary relinquishment of a known right. The Defendant here, having been duly
served and having chosen silence, waived his right to defend the action. The further effect is that the Claimant's
evidence, being unchallenged, uncontroverted and not shaken under
cross-examination, must be accepted as correct and acted upon by the Court. See
Ezechukwu & Anor v. Onwuka (2016) LPELR-26055 (SC) and Andrew v.
Oshoakpemhe & Ors (2021) LPELR-53228 (CA).
3. The Claimant
called a sole witness, Ebun Olaleke, who adopted her Witness Statements on Oath
dated 19 August 2024. The witness tendered seven documents, admitted and marked
as Exhibits C1 to C7:
The witness was not cross-examined owing to the Defendant's
absence.
THE CASE OF THE CLAIMANT
4.
The Claimant's case is that the Defendant was employed under Exhibit C1,
the Employment Agreement dated 18 January 2016. The Claimant's Employee
Handbook, Exhibit C3, governed the terms of compensation. Paragraph 5.3 of the
Handbook, which is central to this case, provides:
"5.3 Recovery of Advance Payments
5.3.1 There are some elements of
compensation that are paid bi-annually or annually in advance of the employee
having earned the allowance(s).
5.3.2 Where an employee resigns or has
their employment terminated, all unearned advance payments will be recovered by
the organization using a range of avenues including legal action (if
necessary).
5.3.3 The reference date for
calculating the recovery of amount(s) will be the date the employee ceases to
be on the organization's payroll (last date of service)."**
5. Pursuant to that
policy, the Claimant advanced to the Defendant, for the 2022 year, the
following payments:
The Defendant's last date of service, by Exhibit C2, was 1
March 2022. That is the operative date for calculating the recoverable unearned
portion. Upon resignation, the Claimant
set off the Defendant's earned entitlements against the total sum advanced. The
Defendant's earned entitlements were:
The balance outstanding after set-off is what is being
claimed.
COURT’S DECISION
6.
In view of the pleadings and the uncontroverted evidence, the sole issue
for determination is:
·
Whether the Claimant has proved its
entitlement to the sum of N840,692.22 as the unearned benefit paid to the
Defendant under the contract of employment, and whether the Claimant is
entitled to interest, costs, and general damages.
7. The burden of
proof in civil proceedings rests on the party who asserts. See sections 131(1),
(2) and 132 of the Evidence Act 2011. Facts may be proved by oral, documentary,
or a combination of both forms of evidence. See Reliance Referral Hospitals
Ltd & Anor v. Keystone Bank Ltd (2024) LPELR-62611 (CA). The Claimant has discharged that burden. The
employment relationship is established by Exhibit C1 and the Employee Handbook
(Exhibit C3 - which forms part of the contractual framework — expressly
entitles the Claimant to recover unearned advance payments upon resignation,
and fixes the operative date as the last date of service. The Defendant's
resignation is established by Exhibit C2, dated 9th April 2023 effective 1st
March 2022. The Claimant's demands are
established by Exhibits C4 – C7. Documentary
evidence is the most reliable form of proof. See Akinbisade v. State
(2006) LPELR-342 (SC). The Claimant's documentary evidence — the employment
agreement, the resignation letter, the Employee Handbook, and the demand
correspondence — is uncontroverted. The Defendant did not file any pleading to
traverse the Claimant's averments or the figures stated in the demand letters.
Where a debtor fails to query the figures contained in a demand letter, the
debtor is deemed to have admitted those figures. See Akinsola & Anor v.
Eyinnaya (2022) LPELR-57284 (CA), and Beverly Development & Realties
Ltd v. TEC Engineering Co. (Nig.) Ltd (2020) LPELR-52023 (CA). The arithmetic set out above is internally
consistent. The Claimant has demonstrated, by reference to identifiable
components of payment and identifiable earned entitlements, that the sum of
N840,692.22 remains outstanding and recoverable under paragraph 5.3 of Exhibit
C7.
8. I therefore find
that the Claimant has proved its entitlement to the principal sum of
N840,692.22, and judgment is accordingly entered in that sum. On the claim for interest, the Claimant
claims economic inflation interest at the rate of 22% per annum. This is a pre-judgment interest which basis
has to be established. That rate is
unsupported by any evidence of inflation or of any contractual provision fixing
interest at that level. This relief is
therefore not proved. The Claimant claims N500,000.00 as the cost of
this action. Costs follow the event. The Defendant, by his default,
necessitated this litigation. I award cost of N500,000.00 as costs in favour of
the Claimant as claimed. I decline the claim
for general damages; considering the total amount claimed, the fact that this
is a claim for recovery of an overpayment - an unearned advance paid to the
Defendant under the contract, which the Defendant did not allege caused him
specific injury. The purpose of damages
is to compensate, not to punish, in an action of this nature. There is no
evidence of any separate or independent loss suffered by the Claimant beyond
the unearned sum retained by the Defendant.
9. In the final
result, it is hereby ordered and declared as follows:
1. Judgment is entered in favour of the Claimant against the
Defendant in the sum of N840,692.22 (Eight Hundred and Forty Thousand, Six
Hundred and Ninety-Two Naira, Twenty-Two Kobo), being the unearned benefit paid
to the Defendant under the contract of employment dated 18 January 2016 and the
Claimant's Employee Handbook (Exhibit C7).
2. Pre-judgment interest is refused.
3. Post-judgment interest at the rate of 10% per annum shall
accrue on the judgment sum from the date of this judgment until final
liquidation.
4. The Defendant shall pay to the Claimant the sum of
N500,000.00 as costs of this action.
5. The claim for general damages in the sum of N5,000,000.00 is
refused.
Judgment is entered accordingly.
--------------------------------------------
Hon. Justice (Prof.) Elizabeth A. Oji