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: MONDAY 12TH OCTOBER 2026
SUIT NO. NICN/LA/265/2021
BETWEEN:
MR. OLUDARE OLADEJI OJO CLAIMANT
AND
CHI LIMITED DEFENDANT
Representation:
Aramide Adeogun for the Claimant
Akinwunmi Salawu for the Defendant
JUDGMENT
Introduction and Claims:
1. On 23rd day of July, 2021, the Claimant filed this suit via the General Form of Complaint,
together with all frontloaded documents, seeking the following reliefs
against the Defendant, to wit:
a.
A DECLARATION that the Claimant is
entitled to not less than N12,600,000.00 (Twelve Million, Six Hundred Thousand
Naira) as Final Entitlement from the Defendant with the breakdown as follows:
|
S/N |
DECRIPTION |
AMOUNT (N) |
|
1. |
Payment
of Gratuity from August 2005 - June 2020 (14.91 years) |
5,500,000.00 |
|
2. |
Unpaid
Transport Allowance (April 2017 - June 2020) |
4,173,000.00 |
|
3. |
Between
2019 and 2020, Use of his personal vehicle for official businesses within the
South West of Nigeria |
2,500,000.00 |
|
4. |
Amount
In-Lieu of Annual Leave 2017 |
280,000.00 |
|
5. |
Refund
of Illegal Deduction for Car |
475,000.00 |
|
|
TOTAL |
12,600,000.00 |
b.
A DECLARATION that the Claimant is the
owner of the Toyota Yaris car with Registration No. KRD 441 CY.
c.
AN ORDER mandating the Defendant, to pay over
to the Claimant a sum not less than N12,600,000.00 (Twelve Million, Six Hundred
Thousand Naira) as Final Entitlement being his outstanding emoluments upon his
resignation effective from 24th June 2020.
d.
AN ORDER directing the Defendant to pay
interest on the said outstanding sum of N12,600,000.00 (Twelve Million, Six Hundred
Thousand Naira) from June 2020 till judgment is delivered.
e.
General damages in the sum of
N2,000,000.00 (Two Million Naira) for the inconvenience and suffering of the
Claimant as a result of the non-payment of his entitlements.
f.
Any other relief deemed satisfactory to
the Honourable Court.
2. In response to
the Claims, the Defendant filed its Statement of Defence and Counter-Claim
dated 28th day of September, 2021 with list of Defendant’s witness and Defendant’s witness statement
on oath deposed to by Adeyinka Olarewaju who was substituted for Mr. Kingsley
Akujuobi and the list of document and copies of documents to be relied on at
the trial. The Defendant counter claims
for:
a. The sum of N1,108,333.32 (One Million One Hundred and Eight
Thousand Three Hundred and Thirty-Three Naira Thirty-Two Kobo) being the
balance outstanding covering the default period of 2 years 4 months from May,
2020 to 3rd April, 2022 due to be paid to the counter claimant by
the defendant to counter claim.
3. The Claimant filed
a Reply to the Statement of Defence and Statement of Defence to Counter-Claim
dated 18th January, 2023. The
Counter-Claimant filed a reply to Defence to Counter-Claim dated 25th April
2023. Trial commenced in the suit on 27th
day of April, 2023. The Claimant gave
evidence for himself as CW, by adopting his witness statement on oath deposed
to on the 23rd day of July, 2021 and 18th day of January
2023 respectively. The Claimant was cross-examined on the same day. During the examination in chief, the Claimant
tendered in evidence 12 Exhibit as follows:
|
DESCRIPTION OF DOCUMENTS |
|
Provisional
Letter of Appointment dated 6th July 2005 Exhibit C1 |
|
Letter
of Upward Review of Salary dated 26th February, 2009 Exhibit C2 |
|
Letter
dated 9th November 2013 titled: "Promotion" Exhibit C3 |
|
Group
Car Policy letter dated 15th August 2014 Exhibit
C4 |
|
Letter
dated 27th March 2017 titled: "Promotion" Exhibit C5 |
|
Email
of 15th April 2019 titled 2019 Annual Leave Exhibit C6 |
|
Letter
of Acceptance of Resignation dated 1st June 2020 Exhibit C7 |
|
Letter
of 28th August 2020 from Claimant to the Defendant notifying it of
non-payment of salary for June 2020
Exhibit C8 |
|
Final
Entitlement issued to the Claimant by the Defendant notifying him that his
entitlement is N53.93 (Fifty Three Naira, Ninety Three Kobo) Exhibit C9 |
|
Certificate
of Employment issued by the Defendant
Exhibit C10 |
|
Claimant’s
Solicitor’s letter and Proof of Delivery by DHL Exhibit C11 |
|
Claimant’s
statement of account
Exhibit C12 |
4. The Defendant
opened its case on 5th July 2023, through its witness Adeyinka
Olarewaju who adopted her statements on
oath deposed to on 12th January 2023 and 25th April
2023. She thereafter cross examined.
During the examination in chief the witness tendered 17 documents as follows:
i.
Company
Car Use Agreement - Exhibit D1
ii.
Letter
dated 15th August, 2014 - Exhibit D2
iii.
Acknowledgement
of car dated 15th August, 2014 - Exhibit D3
iv.
Letter
dated 17th September, 2012 - Exhibit D4
v.
Car Use
Agreement dated 19 September, 2012 - Exhibit D5
vi.
Invoice
from Lagos Business School 3rd April, 2017 - Exhibit D6
vii.
Nomination
to attend LBS Senior Management Programme - Exhibit D7
viii.
Zenith
Bank cheque copy dated 3rd May, 2017 – Exhibit D8
ix.
Internal
memo dated 11th April, 2017 – Payment Approval Request– Exhibit D9
x.
Training
Agreement dated 12th May, 2017 – Exhibit D10
xi.
Final
Entitlement – Exhibit D11
xii.
Fuel and
Car Allowance to the Claimant - Exhibit
D12
xiii.
Acknowledgment
of ITF Contribution for 2018 – Exhibit
D13
xiv.
Receipt
for ITF Contribution for dated 4/4/2019
– Exhibit D14
xv.
Receipt
for ITF Contribution for dated
20/03/2018 – Exhibit D15
xvi.
Car
Policy Disbursement – Exhibit D16
xvii.
Bundle
of ITF receipts – Exhibit D17
5.
At the end of trial, the Court ordered the parties to file their
respective final addresses. The Final Written Addresses were adopted on 30th
September 2026 and the Court thereafter adjourned the
case for judgment.
THE CASE OF THE CLAIMANT
6. The Claimant was employed by the Defendant on
6th July 2005 as Assistant Production Manager with a total annual emolument of
N1,101,480.00. By letter dated 26th February 2009, his salary was reviewed to
N1,629,960.00. By letter dated 9th November 2013, he was promoted to Senior
Manager - Production with effect from 1st November 2013, and his total
emolument became N3,765,840.00 per annum.
By letter dated 15th August 2014, titled "Group Car Policy,"
the Claimant was informed of a car use/allocation policy, a user-managed scheme
which assured that ownership would eventually revert to the user. A Toyota
Yaris car with registration number KRD 441 CY was allocated to the Claimant.
The policy stated that the Claimant would no longer be entitled to transport
allowance, that a sum of money would be disbursed for fuelling and maintenance,
that the car should be used for 5 years before ownership could be transferred,
and that management would sustain insurance/statutory licenses until ownership
transfer. The Claimant states that by
the letter dated 15th August 2014, he became the owner of the car 5 years after
15th August 2014, which should be 14th August 2019. However, no new car or
alternate car was given to him, and the Defendant did not pay him any form of
"Car Allowance" from 15th August 2019 until he voluntarily resigned on
24th June 2020. By letter dated 27th
March 2017, the Defendant promoted him as Assistant General Manager effective
1st January 2017 with a monthly gross wage of N536,470.00. By email dated 15th
April 2019, the Claimant applied for his 2019 Annual Leave and reminded the
Director of Sales of his pending 2017 Annual Leave, but the email remained
unanswered. By letter dated 27th May
2020, the Claimant resigned effective 24th June 2020, and the Defendant
accepted the resignation by letter dated 1st June 2020. However, by 28th August
2020, the Claimant had not received his June 2020 salary and other benefits.
The Defendant issued a "Final Entitlement" document stating his
entitlement as N53.92 (Fifty-Three Naira, Ninety-Two Kobo) Only. The Claimant
disputes this assessment on the grounds that the date of termination was
wrongly stated, gratuity was indicated as nil, car policy allowance was
indicated as nil, and the book value of the allocated car (N475,000.00) ought
not to appear in the calculations.
THE CASE OF THE DEFENDANT
7. It is the case of the Defendant that there
are express and implied terms of the contract of employment contained in the
letter of employment dated 6th July 2005, which the Claimant was
bound to observe. The Defendant was not in breach of the terms and conditions
of employment. Salaries and entitlements were paid as and when due. The
Claimant disengaged voluntarily. Tax deductions and pension remittances were
paid promptly. The terminal benefits were calculated but disputed by the
Claimant, who refused to collect them. It
is the case of the Defendant that the Group Car Policy is a user-managed scheme
that allows ownership to transfer to the user only upon fulfilment of
conditions, including payment of 1-5% of the original purchase cost of the vehicle.
The Claimant failed to complete the transfer process. The Defendant denies
owing the Claimant any outstanding salary or entitlements. It is also the case of the Defendant that the
Claimant was sent on an MBA programme at the Lagos Business School on 12th May
2017, and a Training Agreement was signed requiring the Claimant to work
uninterrupted for 5 years after his return. The Claimant breached this term and
left before 5 years. The Defendant counter-claims the sum of N1,108,333.32
being the pro-rated balance of the training cost relying on same facts as
stated in its statement of defence.
8.
The case of the Defendant in the counter claim is that sometime in March
2017 the Defendant approved a senior management training programme for the Claimant
at the Lagos Business School. The
programme was scheduled to run from 4th April 2017 to August 2017. The Defendant
paid the sum of N2,375,000.00 and the parties executed a Training Agreement
dated 12th May 2017 wherein the Defendant agreed to finance the training on
condition that the Claimant shall work uninterruptedly for a period of 5 years
after returning from the course and that it is an important term and condition
of the Training Agreement that "in case of any default, the balance
outstanding could be deducted from the employee's Final Entitlement from
company, and any shortfall there from paid directly in CASH to the Employer. The
Claimant concluded the training programme in August 2017 and resigned his
appointment on 27th May 2020 less than the 5 years uninterrupted period he
agreed to work. He still has about 2 years and 4 months left to complete the 5
years. The Defendant set out the
particulars of the training as:
|
Years |
Cost per
Year |
|
4th April
2017 to 3rd April 2018 |
N475,000.00 |
|
4th April
2018 to 3rd April 2019 |
N475,000.00 |
|
4th April
2019 to 3rd April 2020 |
N475,000.00 |
|
4th April
2020 to 3rd April 2021 |
N475,000.00 |
|
4th April
2021 to 3rd April 2022 |
N475,000.00 |
|
Total
money spent for the training |
N2,375,000.00 |
Cost per year ratio is N475,000.00 ÷
12 months = N39,583.33 per month.
Two (2) years N475,000 x 2 = N950,000.00
Four (4) months N39,583.33 x 4 = N158,333.32
Total due to counter claimant = N1,108,333.32
REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO THE
COUNTERCLAIM
9. The Claimant replied that the Group Car
Policy and letter dated 15th August 2014 is written in plain English. That it
is not true that "ownership does not ultimately revert to user as a matter
of course but upon compliance with terms." The Claimant further states
that contrary to the terms and conditions stated in the letter of 15th August
2014, the monthly disbursement of N30,000.00 every month for fuelling and
maintenance was unilaterally stopped in 2017. The funds are usually credited
into Account No 1001074029 domiciled at Zenith Bank Plc. The Claimant demands
payment of the outstanding sum of N30,000.00 per month (June 2017 - June 2020,
36 months) totalling N1,080,000.00. The Claimant refutes the claim of the
Defendant to car with Registration NT 897 KJA (Toyota Corolla) as the official
car instead of KRD 441 CY (Toyota Yaris). The Claimant was using car with
Registration No. NT 897 KJA up until June 2014 before he was presented with KRD
441 CY by the Defendant as a "status" car. In defence of the counter claim, it is the
case of the Claimant that the Defendant did send him on a course at the Lagos
Business School in August 2017, and that it was within the duty of the
Defendant to train its staff without any condition(s) attached in line with the
Industrial Training Fund Act CAP 19, LFN, 2004 and the Industrial Training Fund
(Amendment) Act 2011. The Claimant asserts that the calculations of the
Defendant are misconceived because the Claimant commenced his training in May -
September 2017; consequently, the deductions ought to commence in October 2017
when the Claimant successfully attended the training programme and not before. Assuming
but not conceding that the deductions were lawful, the Defendant ought to
include 2019 - June 2020 as periods for which deductions ought to have been
made. In the "FINAL ENTITLEMENT" SHEET, the issue of a refund to
balance of cost of training was never mentioned and thus the Counterclaim is a
horrible afterthought. Assuming but not conceding that the Defendant was
correct, the correct position is not N1,108,333.32 but rather N831,250.01.
DEFENDANT’S REPLY TO THE CLAIMANT'S DEFENCE TO THE
COUNTER CLAIM
10. The Defendant states that the training was a
specialised training programme that cost huge sum over and above ordinary ITF
training requirements. Hence the need for mutual agreement. The Claimant enjoyed on the job training from
time to time in line with ITF and by virtue of his position could be offered
specialised training on terms but not as a matter of right. The Claimant received monthly car policy
disbursement paid directly to his branch account. The Defendant has a responsibility to
contribute to the ITF fund one percent of his total annual payroll which it
complied with. The Defendant states that
its calculations with respect to the counter-claim are correct.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
11. The Defendant raised three
issues for determination as follows:
1. Whether the Claimant is entitled to the declaratory reliefs
sought in this suit.
2. Whether the Defendant is entitled to the sum of 1,108,
333.32 claim as counter claim.
3. Whether the Claimant is, entitle to general damages as
claimed.
12. On issue
one, the Defendant argues that the Claimant failed to tender any evidence
documentary or oral as basis for the claim for gratuity as gratuity is not
compulsory except expressly provided in the contract of employment. The Defendant submits that Exhibit C1
tendered by the Claimant has no provision for payment of gratuity and it was confirmed
that as a matter of practice and before the coming to effect of the Pension
Act, gratuity was paid by the Defendant to those who satisfy the criteria of
uninterrupted employment for 5 years. However, the Claimant joined the
employment of the Defendant in July 2005 and gratuity was discontinued in
December 2005 due to the coming into force of the contributory pension scheme
and there is no evidence before the court that the Defendant defaulted in its
remittance concerning the Claimant's pension. The Claimant himself also
confirmed during cross-examination that he does not have any issue with the
Defendant concerning his pension. On the
Unpaid Transport Allowance (April 2017 - June 2020), the Defendant argues that Exhibits
D1 and D2 regulate the usage of the official vehicle given to the Claimant and
conditions under which ownership can be transferred. By the terms contained in
Exhibit D2 the Claimant is entitled to the sum of N30,000 monthly as car
maintenance allowance and be no longer be entitled to transport allowance
again. The Defendant submits that the
Claimant’s car and maintenance allowance was paid to Claimant within the period
in dispute i.e. April 2017 - June 2020 and this could be confirmed from Exhibit
D16 being statement of account as proof of payment of maintenance and fuel
allowance to the Claimant and Exhibit C12 being Zenith bank statement of
account of the Claimant. The Defendant
submits that from the details contained in Exhibits C12 and D16, it is clear
that the fuel allowance and the maintenance allowance of the Claimant was duly
paid and when the Claimant was transferred to Ibadan in 2017, his account was
credited with the sum of N903,764.00 as transfer allowance see Exhibit C12 page
36 of 114-13/4/2017. The Defendant
submits that Claimant’s claim for the sum of N4,173,000.00 is speculative and
unsubstantiated in the face of the facts contained in Exhibits C12 and D16. On the claim for N2,500,000.00, the Defendant
submits it is not supported by any pleaded fact neither was any credible
evidence tendered in support of this claim. That, as a senior officer, the Claimant knows
the procedure of making claims from the company when necessary by way of either
memo, emails or even letter to the management. The Defendant received no such
request or demand for use of personal car and that the Claimant received fuel
and maintenance allowance during the period in question i.e. 2019 to 2020 as
shown in Exhibit C12 and D16. The Defendant denies owing the Claimant 2017
annual leave allowance as all the entitlements due to him during and after
service were paid to him for the period 2017 to 2020 relying on Exhibit C12
being the Zenith bank statement of account of the Claimant:
·
2017
- Leave bonus - N257,505.60 - paid on 18/12/2017 - page 53 of 114 Exhibit C12
·
2018
- Leave bonus - N257,505.60 - Paid on 13/2/2018 - page 57 of 114 Exhibit C12
·
2019
- Leave bonus - N275,685.49 - Paid on 11/10/2019 - page 90 of 114 Exhibit C12
·
2020
- Leave bonus - N275,685.49 - Paid on 1/6/2020 - page 111 of 114 Exhibit C12
13.
On the car policy, the Defendant argues that the car policy operates in
such a way that once a car is given to a staff, the transport allowance is
withdrawn and replaced with car fuelling and maintenance allowance. The
Claimant enjoyed the car and fuelling allowance till June 2020 when he left the
services of the Defendant. The Defendant referred to Exhibits D1, D2, D3, D4,
D5, D6 as containing the terms of car use and ownership in the Defendant. The Defendant pointed out that one of the
Defendant's Toyota Yaris car with registration number KRD 411CY is still with
the Claimant and he took it away without completing the process of transfer of
ownership. The Defendant submits that the Claimant breached the terms and
conditions contained in Exhibit D1 by refusing to complete the process of
transfer of ownership of the car in his possession. The Defendant in line with
clause 7 and 8 in Exhibit D1 deducted the percentage between 1-5% of the cost
of the car being N475,000.00 and same was deducted from the total calculated
entitlement due to the Claimant as at June 2020 as shown in Exhibit D13. With respect to the Toyota Yaris car with Registration
No. KRD441CY, the Defendant states it was lawfully given to the Claimant as
part of his condition of service to support him in discharging his obligations.
However, for ownership to pass it has to be in compliance with the terms and
conditions contained in the Exhibit D1 and that is why even as at today the
Claimant cannot approach the regulatory agency to change ownership of the car
to his name. With regards to relief 3 asking this Honourable Court to mandate
the Defendant to pay a sum not less than N12,600,000 from June 2020 till
judgment is delivered; the Defendant submits that this claim lacks basis in the
light of all the submissions and facts already dealt with above as there are no
credible and cogent reasons for this Honourable Court to make such speculative
order.
14. Issue Two - Whether the Defendant is entitled
to the sum of N1,108,333.32 claim as counter claim. The Defendant argues that it executed a
training agreement with the Claimant at the Lagos Business School in 2017 as
shown in Exhibit D12. Exhibits D7-D12 are proof of payment of the sum of
N2,375,000.00 paid for the Claimant training, memos and agreement executed by
parties. That by virtue of the Training Agreement in case of any desire by the
employee to resign his appointment or his services is dispensed with by the
employer within 5 year post course period, he shall return the full amount or
part thereof of the cost of training, including passages; accommodation and
feeding to the company. This total sum may be pro-rated against the 5 year
period dedicated to serve the company as necessary. The Defendant submits that in line with the
agreement, it is entitled to its counter-claim.
15. Issue Three: Whether the Claimant is entitled
to the damages claimed. The Defendant
argues that in claims for breach of contract, either ordinary or service, award
of damages depends on the terms and conditions of such a contract and the
quantum assessed on the basis of the evidence of the facts and circumstances
giving rise to the breach of the agreement between the contracting parties
relying on Umera vs. N.R.C (2022) 10 NWLR PT 1838 PG 349 @ 361-362 R.8
and 9. The Defendant argues that Reliefs 6 and 7 are speculative,
unsubstantiated and lacking merit and same should be disregarded by this
Honourable Court. That the Defendant is
not in breach of any terms or condition of contract of employment of the
Claimant and therefore not entitled to pay any form of damages to the Claimant.
Rather the Claimant is in breach of terms contained in Exhibit D1 executed by
both parties by not allowing the procedure towards transfer of ownership of the
car to be properly followed and executed.
SUBMISSIONS ON BEHALF OF THE CLAIMANT
16. The Claimant raised two issues for
determination as follows:
1.
Whether
the Claimant has proved his case in the circumstance and thereby entitled to
his claim?
2.
Whether
the Defendant failed, neglected and deliberately refused to perform its
obligation under Group Car Policy?
17.
Issue one - Whether the Claimant has proved his case in the circumstance and
thereby entitled to his claim? The Claimant confirmed in his evidence that
while he was in the employment of the Defendant, he demonstrated diligence in
his work. This dedication led the Defendant to promote him and thereby
redeploying him to oversee the Ibadan, Oyo branch and he received several
meritorious awards for his performance. The Claimant urges the Court to
use the overriding Court discretion in this instance to direct and mandate the
Defendant to pay him his gratuity from August 2005 - June 2020 in the interest
of justice; putting into consideration the length of time and good work the
Claimant has efficiently put into the success of the Defendant's business.
18. Issue two - Whether the Defendant failed, neglected
and deliberately refused to perform its obligation under Group Car Policy? The Claimant argues that it is uncontested
that upon giving the Toyota Yaris to the Claimant, a Group Car Policy
accompanied and it expressly states the terms of use of the said car. The Claimant submits that the various
hierarchies of Court in Nigeria through numerous cases have decided that
contracts are sacrosanct and that the Court would not interfere or meddle with
the terms agreed upon by parties. The Claimant therefore submits to the Court
to grant the claim of the Claimant ordering the Defendant to pay to the
Claimant the fuel and car maintenance fee, and the Claimant’s claim for the sum
of One Million, and Eighty Thousand naira (N1,080,000.00) for fuelling and car
maintenance fee from June 2017 - June 2020. With regards to the illegal deduction of money
for the Toyota Yaris with Registration number KRD 411CY, the Claimant submits
that he fulfilled all terms listed in the Group Car Policy and that he was not
aware of any form of payment to qualify him to own the car. The Claimant submits that the deduction of
Four Hundred and Seventy-Five Thousand naira (N475,000.00) from his emoluments
is unlawful and amounts to fraud. On the
use of his personal vehicle for official businesses within the South West of
Nigeria, between 2019-2020; the Claimant submits that after the expiration of
the five years of the use of the Toyota Yaris, ownership of the car transferred
to the Claimant; thus having used the car for five years and it being assumed
to have been transferred to him, he was entitled to either official car or
transport allowance as stipulated in the Car policy. On the issue of amount in-lieu of Annual
Leave 2017; the Claimant states that the payments alleged to have been made by
the Defendant was not for the annual leave 2017.
DECISION
20.
Having carefully considered the pleadings, evidence, and submissions of
both parties; the following issues arise for determination:
1.
Whether
the Claimant is entitled to the reliefs he seeks in this suit.
2.
Whether
the Defendant is entitled to the counter-claim.
21. Issue
One - Whether the Claimant is entitled to the reliefs he seeks in this
suit. Claimant’s first relief is for “A DECLARATION that the Claimant is entitled to not less than
N12,600,000.00 (Twelve Million, Six Hundred Thousand Naira) as Final
Entitlement from the Defendant. The law is settled that a claim for declaration is
not ordinarily granted on the basis of admission or a failure by the adverse
party to deny or dispute facts on which the declaratory relief is sought. The
Claimant must adduce satisfactory, credible, and sufficient evidence to
establish his entitlement to the relief. See Umera v. N.R.C (2022) 10
NWLR (Pt 1838) 349 at 363; Okoye v. Nwanko (2014) 15 NWLR (Pt 1429) 93. The Claimant set out the heads of claim for
the declaration as: Payment of Gratuity from August 2005 - June 2020 (14.91
years) - #5,500,000.00, Unpaid Transport Allowance (April 2017 - June 2020) -
4,173,000.00, Between 2019 and 2020, Use of his personal vehicle for official
businesses within the South West of Nigeria - #2,500,000.00, Amount In-Lieu of
Annual Leave 2017 - #280,000.00, and Refund of Illegal Deduction for Car -
#475,000.00 totaling 12,600,000.00.
22. The
Claimant claims the sum of N5,500,000.00 as gratuity for 14.91 years of
service. The Defendant denies owing gratuity, stating that gratuity is not part
of the terms of engagement and was discontinued in December 2005. It is trite law that gratuity is not
compulsory except expressly provided in the contract of employment. In Olaniyan
v. University of Lagos (1985) 2 NWLR (Pt. 9) 599, the Supreme Court held
that an employee is only entitled to what is provided in his contract of
employment. The Claimant's letter of employment (Exhibit C1) has no provision
for gratuity. The Claimant pointed to none. His case, as pleaded in the
Statement of Facts and repeated in his testimony as CW1, rested on the
proposition that gratuity is a right of every worker. That is a legal
conclusion, and an incorrect one. Against it, DW1 testified that gratuity under
the Defendant's practice was payable only to employees who had completed five
years of uninterrupted service under a scheme that was discontinued in December
2005, months after the Claimant joined in July 2005, so that the Claimant never
came within it even while it subsisted. That specific and material factual
assertion was not joined in the Claimant's Reply and was not answered in his
oral evidence. An untraversed material averment stands. The Claimant's Counsel
urged the Court to exercise an equitable discretion to award gratuity in
recognition of long and diligent service. But the Court has no discretion to
confer a contractual benefit that the contract does not provide; to do so would
be to make a new agreement for the parties, which the Court will not do. There
being no contractual or scheme-based foundation for the claim, the gratuity
claim of N5,500,000.00 fails.
23. The Claimant claims N4,173,000.00 as unpaid
transport allowance for the period April 2017 to June 2020. The Defendant
contends that under the Group Car Policy, once a car is given to a staff,
transport allowance is withdrawn and replaced with car fuelling and maintenance
allowance. Exhibit D2, the Group Car
Policy letter, clearly states that the Claimant "shall no longer be
entitled to any transport allowance during the privileged use of the official
car." The Defendant tendered Exhibit D16 (statement of account of payment of maintenance and fuel allowance) and Exhibit C12 (Zenith Bank statement) showing
payments of car maintenance and fuel allowance to the Claimant during the
period in dispute. A claimant cannot invoke a document to found one part of his
claim and disregard the same document where it defeats another. Once the car
was allocated to the Claimant, transport allowance was contractually displaced.
The period for which the fuel allowance was paid in shown in exhibit C12 and
ends with the entry of 10th August 2017. A claim for transport allowance cannot be
made over the period he held the official car.
24. However,
there are no more evidence of payment of the fuel allowance after August
2017. This lends credence to the linked claim introduced by the Claimant in his Defence to
the Counterclaim for N1,080,000.00 as unpaid fuel and maintenance allowance at
N30,000.00 monthly for June 2017 to June 2020. This claim rests on the very
entitlement that Exhibit C4 created in place of transport allowance, and here
the burden of proof shifts. Once the entitlement under Exhibit C4 is
established — and it is not in dispute that the policy provided for a monthly
disbursement for fuelling and maintenance — the party who asserts that the sum
was in fact paid must prove payment. The Defendant asserted payment throughout
the period and relied on Exhibit C12, the Claimant's own Zenith Bank statement,
and Exhibit D16, its own schedule of fuel allowance payments. The Defendant's
address sets out a long catalogue of credits from Exhibit C12, but on scrutiny
the great majority of those credits are described as operational transfers to
the Claimant as a branch manager, not as personal fuel or maintenance
allowance. Only a handful of entries in 2017, such as the credits of 12 April
2017, 11 July 2017 and 10 August 2017 described as fuel or car maintenance,
bear any relation to a car allowance, and these are sporadic and do not cover
the disputed span. A consistent monthly disbursement of N30,000.00 across June
2017 to June 2020 was not demonstrated. Exhibit D16, being a schedule generated
by the Defendant, cannot by itself prove payment where it is not matched to
identifiable allowance credits in the Claimant's account. Most tellingly, DW1
under cross-examination could not show the Court where the Defendant had paid
the car maintenance allowance, and when specifically challenged on 11 July 2024
to point to the fuelling and maintenance payments for the period he was unable
to do so. I accept that the entitlement under Exhibit C4 was established and
that the Defendant failed to prove payment of it. The Claimant is accordingly
entitled to the fuel and maintenance allowance for the period claimed. On the
figures, the Claimant pleaded N30,000.00 per month for the thirty-seven months
from June 2017 to June 2020, which yields N1,080,000.00, though the entries
made by the Defendant show N40,000.00 for fuel/car. I already found that an entry was made for
August 2017 for fuel. That removes three
months from the June 2017 asserted by the Claimant. I find that the Claimant has established the
claimed N1,080,000.00 less Ninety Thousand Naira for June to August. The Claimant has established entitlement to
fuel allowance of #990,000.00 (Nine Hundred and Ninety Thousand Naira) only.
25. The
Claimant claims N2,500,000.00 for the use of his personal vehicle for official
businesses within the South West of Nigeria between 2019 and 2020. This claim
is not supported by any pleaded fact or credible evidence. The Claimant did not
provide any memo, email, or letter requesting reimbursement for the use of his
personal vehicle. Further, the Claimant
has just been granted his relief for fuelling of his official car for the same
period. This claim is speculative and unsubstantiated
and is hereby dismissed.
26. The
Claimant claims N280,000.00 as amount in lieu of annual leave for 2017. The
Defendant denies owing this sum, stating that leave allowance was paid and is
evident in Exhibit C12. Exhibit C12
shows the following payments:
·
2017
- Leave bonus - N257,505.60 - paid on 18/12/2017
·
2018
- Leave bonus - N257,505.60 - paid on 13/2/2018
·
2019
- Leave bonus - N275,685.49 - paid on 11/10/2019
·
2020
- Leave bonus - N275,685.49 - paid on 1/6/2020
The pleaded foundation is the Claimant's email of 15 April
2019 said to have gone unanswered. The Defendant's answer, drawn from Exhibit
C12, is that leave bonus was paid in each year, including N257,505.60 on 18
December 2017. The Claimant's reply is that the December payment was a bonus
rather than a leave allowance, and that the figure he claims differs from the
sum paid. This leaves the matter in genuine but unresolved doubt, and the doubt
operates against the Claimant, who asserts the claim. Two difficulties defeat
him. First, the figure of N280,000.00 is itself unsupported by any pay record
or contractual formula; it stands as a round assertion. Second, the same
Exhibit C12 on which the Claimant relies elsewhere records a leave-related
credit in December 2017, in the very year for which he now claims. Where a
claimant's own bank statement shows a leave payment in the relevant year, the
burden lies on him to show, by his pay structure or leave records, that the sum
paid was distinct from and did not discharge his 2017 leave entitlement, and
that the correct figure was N280,000.00. He did not discharge that burden. This
head fails.
27. The
Claimant claims N475,000.00 as a refund of illegal deduction for the car. The
Defendant contends that the deduction was made in accordance with Clause 7 and
8 of the Car Use Agreement (Exhibit D1), which provides that 1-5% of the
historical cost of the vehicle shall be paid by the Claimant before ownership
can be transferred after 5 years. The
Claimant argues that he was not aware of any payment required to qualify him to
own the car. However, the Claimant did not deny knowledge of Exhibit D1 and
that he executed the agreement. The
Court has examined Exhibit D1 and finds that Clause 7 and 8 do provide for
payment of a percentage of the historical cost before transfer of ownership. The
Claimant in open Court stated that:
Question: Was
the document of transfer perfected by the Defendant?
Answer: It has not. I requested for that.
Question: The valuation of the car is supposed to be
determined by your employer?
Answer: That is the normal thing. The valuation is
at the discretion of the employer.
Question: The valuation done at the time was ?475,000?
Answer: I saw a document stating so.
Question: Were you supposed to be paying anything to
the employer for the car?
Answer: There is no contract saying I should pay.
Question: Is it correct that before ownership can be
transferred, you have to pay at
least
1% - 5% of the value of the car?
Answer: No, I am not aware of that.
28. The
Claimant’s response during cross examination clearly shows that the employer
had the prerogative to value the car and determine what the Claimant should
pay. His response also shows that he was
duly shown the valuation, and there is no evidence that he challenged it. I do not believe the Claimant when he said he
is not aware of the provision of payment of 1 – 5 percent which is clearly
stated in exhibits D1 and D5 which he duly signed. These are the same documents that grants the
Claimant the rights over the car which he seeks to enforce; though the Claimant
tactfully tendered only the Group-Car Policy which does not contain the
provision. The Claimant’s evidence in
this regard leaves a lot to be desired. The
Court finds that while the Car Use Agreement provided for payment of 1-5% of
the historical cost, the Defendant gave notice of the valuation to the Claimant
and there is no evidence to show the Claimant objected to it or proposed any
other valuation. This relief fails.
29. The Claimant seeks a declaration that he is the
owner of the Toyota Yaris car with Registration No. KRD 441 CY. The Defendant's
witness stated in open court that the said Toyota Yaris automatically reverts
to the Claimant after use for five years. The Defendant also confirmed that
ownership has not been transferred because the matter is in court. The Court finds that the Claimant has used
the car for more than five years. The Group Car Policy clearly states that
ownership will eventually revert to the user after the specified number of
years. The Defendant's witness confirmed this in court. The Claimant is
therefore entitled to a declaration that he is the owner of the car. Having deducted the book value of the car,
the Defendant is to complete the transfer process of ownership of the car to the
Claimant.
30. The
Claimant claims N2,000,000.00 as general damages for the inconvenience and
suffering as a result of the non-payment of his entitlements. In claims for
breach of contract, award of damages depends on the terms and conditions of
such a contract and the quantum assessed on the basis of the evidence of the
facts and circumstances giving rise to the breach. The Claimant resigned
voluntarily and has not shown any breach of any terms of the contract of
employment. The claim for general damages fails.
31. Issue
Two – whether the Defendant is entitled to the counter-claim. The Defendant counter-claims for N1,108,333.32
being the pro-rated balance of the training cost for the unexpired period of
the 5-year bond. The Defendant relies on the Training Agreement dated 12th May
2017 (Exhibit D12), Clauses 7 and 8, which provide that if the employee resigns
within 5 years post-course, he shall return the full amount or part thereof of
the cost of training, pro-rated against the 5-year period. The Claimant admits signing the Training
Agreement but argues that it is within the duty of the Defendant to train its
staff without conditions, in line with the Industrial Training Fund Act CAP 19,
LFN, 2004, and the Industrial Training Fund (Amendment) Act 2011. The Claimant executed the Training Agreement
voluntarily. The agreement clearly provided that if he resigned within 5 years,
he would refund the pro-rated cost of training. The Claimant concluded his
training in August 2017 and resigned on 27th May 2020, less than 5 years after
the training. The Defendant is entitled to the pro-rated refund. The Defendant's calculation of N1,108,333.32
is based on N475,000.00 per year for 2 years and 4 months. The Court finds this
calculation to be reasonable and in accordance with Clause 7 of the Training
Agreement. The counter-claim succeeds. The Claimant's answer, that no such refund appears on the
Final Entitlement sheet, Exhibit D11, which the Defendant itself prepared and
relied upon, is a legitimate observation. Clause 8 expressly contemplated
deduction of the training refund from the final entitlement, yet Exhibit D10
makes no mention of it. That omission goes to the consistency with which the
Defendant pursued the claim, and it is a point of weight; but it does not
extinguish a contractual right proved by an executed agreement. The failure to
deduct at the point of computation does not discharge the Claimant's obligation
under clauses 7 and 8. The liability stands.
32. In
conclusion, the Court finds as follows:
1.
The
Claimant's claim for gratuity fails. The Claimant's letter of employment made
no provision for gratuity, and the Claimant has no issue with his pension.
2.
The
Claimant's claim for unpaid transport allowance fails. The Group Car Policy
expressly provided that transport allowance would be withdrawn and replaced
with car fuelling and maintenance allowance, which the Defendant paid up to
August 2017 and. However, evidence shows
that the payment of the fuel/maintenance was up to August 2017. The Defendant is ordered to pay the
outstanding sum of #990,000.00(Nine Hundred and Ninety Thousand Naira) for
September 2017 – June 2020 as subsequently claimed by the Claimant. This is in lieu of the payment of transport
allowance.
3.
The
Claimant's claim for N2,500,000.00 for use of his personal vehicle fails. No
credible evidence was tendered to support this claim and the Defendant has been
ordered to pay him the fuel allowance for the same period.
4.
The
Claimant's claim for N280,000.00 as amount in lieu of annual leave for 2017
fails. The Defendant has shown evidence of leave bonus payments.
5.
The
Claimant's claim for refund of N475,000.00 deducted for the car fails.
6.
The
Claimant is entitled to a declaration that he is the owner of the Toyota Yaris
car with Registration No. KRD 441 CY.
The Defendant is ordered to transfer ownership to the Claimant having
deducted the book value of the car from the Claimant.
7.
The
Defendant's counter-claim for N1,108,333.32 succeeds. The Claimant breached the
Training Agreement by resigning before the expiration of the 5-year bond.
8.
The
Claimant's claim for general damages fails.
9.
SET-OFF:
The sum of N990,000.00 awarded to the Claimant shall be set off against the sum
of N1,108,333.32 awarded to the Defendant. The Claimant shall pay the Defendant
the sum of N118,333.32 (One Hundred and Eighteen Thousand, Three Hundred
and Thirty Three Naira Thirty Two Kobo) only within 30 days of this
judgment. Failure, interest shall accrue
at the rate of 20% per annum
10.
I
make no Order as to Costs.
Judgment
is entered accordingly.
…………………………………….
Hon. Justice (Prof) Elizabeth A. Oji