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:

  • Exhibit C1 — Employment Agreement signed 18 January 2016
  • Exhibit C2 — Defendant's Resignation Letter dated 1 March 2022
  • Exhibit C3 — Claimant's Employee Handbook
  • Exhibit C4 — Compensation schedule
  • Exhibit C5 — Defendant’s letter of notification of recovery of unearned benefits letter – final demand dated 7th July 2023.
  • Exhibit C6 — Defendant’s email demand payment dated 12/7/2023
  • Exhibit C7 — Claimant’s solicitor’s demand letter of 9th September 2023.

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:

  • Two months and eight days' basic salary in lieu of notice: N1,077,695.02
  • 2022 Housing Allowance: N966,755.83
  • Total: N2,044,450.85

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:

  • 2022 1st–28th February Salary & Allowances: N388,212.66
  • 2022 1st March Salary & Allowance: N18,265.11
  • 2022 Leave Allowance (prorated): N114,108.88
  • 2022 13th Month Bonus: N79,242.28
  • 2021 Education Allowance: N24,657.53
  • 2021 & 2022 Outstanding Leave Days to Cash: N248,560.75
  • Total earned entitlements: N873,047.22

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.

 

 

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Hon. Justice (Prof.) Elizabeth A. Oji