IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL
DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE
MR. JUSTICE SANUSI KADO
25TH DAY OF APRIL, 2024 SUIT NO.NICN/CA/45/2018
BETWEEN:
MR.
PAUL ONYEKACHI ANYIM …………………………………………CLAIMANT
AND
HOGL
ENERGY LIMITED
(Formerly
known as Honeywell Oil & Gas Limited) ………………………………... DEFENDANT
JUDGMENT.
1.
The Claimant herein commenced this action by
way of a general form of Complaint issued on the 3rd day of August,
2018. The complaint is accompanied by statement of facts, witness statement on
oath, list of witnesses, list of documents and photocopy of documents to be
relied on at the trial. Vide paragraph of the statement of facts, the
claimant’s claim against the defendant is as follows:-
1.
A DECLARATION
that the Claimant was lawfully employed and his contract of employment deemed
confirmed by the defendant, having failed to terminate the Claimant’s
employment within the six months probationary period by allowing the Claimant
to serve for additional two years, ten months without confirmation.
2.
A DECLARATION
that the defendant breached the terms and conditions of employment as contained
in the contract of employment between the Claimant and the defendant having
terminated the claimant’s contract of employment without due compliance with
same.
3.
A DECLARATION
that the claimant is entitled to all his arrears of salaries, allowances,
refund of expenses on deliveries and terminal benefits due to him at the time
of termination of his contract of employment on August 13, 2015 and the sum of
money equivalent to the Central Bank of Nigeria’s interest rate being interest
charged upon the judgment sum until full and final payment is made thereof.
4.
The sum of
N1,613,630.70 (One Million, Six Hundred and Thirteen Thousand, Six Hundred and
Thirty Naira, Seventy Kobo) being fifty percent (50%) withheld monthly salaries
for Seventeen (17) months from November, 2013 to March, 2015.
5.
The sum of
N2,404,600.00 (Two Million, Four Hundred and Four Thousand, Six Hundred Naira
only) being total amount of money spent by the claimant on delivery of products
within and outside Calabar using third party vehicles in his capacity as the
Assistant Sales Manager at Calabar Depot due to non-provision of vehicle by the
defendant.
6.
The sum of
N44,000.00 (Forty Four Thousand Naira only) being salaries for the month of
August, 2015 for two Security men (Babangida Usman and one Cyril Oforma)
N22,000.00 each paid by the claimant.
7.
The sum of
N139,590.00 (One Hundred and Thirty Nine thousand, Five Hundred and Ninety
Naira only) being the claimant’s unpaid Leave Allowance due to him for three
(3) years: 2012, 2013 and 2014 @ N46,530.00 per year.
8.
The sum of
N569,516.07 (Five hundred and Sixty Nine thousand, Five Hundred and Sixteen
Naira Seven Kobo) being three months salary in lieu of notice in accordance
with the terms and conditions of the contract of employment.
9.
The sum of
N170,941.09 (One Hundred and Seventy Thousand, Nine Hundred and Forty One
Naira, Nine Kobo) being the total sum of money due to the claimant as Volume
and Space (V&S) for the months of January, 2015; March, 2015 and April,
2015 @ N60,391.41; 53,519.82 and 57,029.86 respectively.
10.
The sum of
N17,000.00 (Seventeen Thousand Naira only) being balance of the refund of
Cooperative Contributions due to the claimant on termination of his contract of
employment by the defendant on August 13, 2015.
11.
The Sum of
N5,000,000.00 (Five Million Naira only) as general damages against the
Defendant for the risks of travelling to the Defendant Head Office in Lagos
from Calabar, embarrassment and hardship for failure to pay the Claimant’s
terminal benefits three years after termination of employment and wrongful
termination of the claimant’s contract of employment.
12.
The sum of N1,000,000.00
(One Million Naira) as cost of action.
2.
Upon being served with the general form of
complaint, the defendant filed her Statement of Defence and Counter-claim on
the 10th day of December, 2018. The Claimant in turn filed a Reply
and Defence to Counter-claim on the 17th day of July, 2019. Sequel
to the order of this Honourable Court made on the 7th day of
December, 2022, the Defendant filed an amended Statement of Defence and
Counter-claim on the 20th day of December, 2022.
3.
In the counter claim, the defendant counter
claimant prays for:-
a.
A DECLARATION that by refusing to adhere to
operational directives of the Counter-Claimant, the Defendant caused the
Counter-Claimant to lose a total sum of One Million, Seven Hundred and
Seventeen Thousand, Five Hundred and Ninety-Nine Naira, Sixty Kobo (N1,717,599.60).
b.
A DECLARATION that it is the responsibility of
the Defendant to pay the Counter Claimant the said sum of One Million, Seven
Hundred and Seventeen Thousand, Five Hundred and Ninety-Nine Naira, Sixty Kobo
(N1,717,599.60).
c.
A DECLARATION that the Counter Claimant is
right to have withheld the Defendant’s One Million, Twenty-Three Thousand, One
Hundred and Eighty-Three Naira, Seventeen Kobo (N1,023,183.17) as part of the
money he caused the Counter Claimant to lose.
d.
AN ORDER directing the Defendant to pay the
Counter-Claimant the sum of Six Hundred and Ninety-Four Thousand, Four Hundred
and Sixteen Naira, Forty-Three Kobo (N694,416.43) being the outstanding balance
of the total sum of One Million, Seven Hundred and Seventeen Thousand, Five
Hundred and Ninety-Nine Naira, Sixty Kobo (N1,717,599.60) he caused the Counter
Claimant to lose.
e.
AN ORDER directing the Defendant to pay the
Counter Claimant the sum of Twenty Million Naira (N20,000,000.00) only as
damages for the economic loss, and business strain he caused the Counter
Claimant,
4.
Hearing in this case commenced on the 14th
day of October, 2021, with the Claimant testifying as CW1. CW1 after
identifying his witness statement on oaths adopted them as his evidence in this
suit. Eleven (11) documents were tendered in evidence through CW1, which were
marked as exhibits C1 – C11. At the end
of evidence in chief CW1 was cross examined by the Defendant’s counsel
thereafter he was discharged.
5.
On 7/12/2022, one Victor Olusegun Adegbayemu
testified in defence of the defendant as DWI. On 20/12/2022, DW1 adopted his
witness statements on oath as his evidence in this case. Six (6) documents were
tendered n evidence through DWI, the documents were admitted in evidence and
accordingly marked as exhibits DW1 –
DW6.
THE CASE OF THE CLAIMANT.
6.
The case of the
claimant is that he was employed by the defendant on 6 six month probation as an
Assistant Sales Manager, Grade Level 7, Step 1, vide letter of employment dated
3/4/2012, on the terms and conditions stated therein. The claimant’s employment
was neither terminated within the six months’ probation period, nor was his
employment confirmed at the end of the six months’ probation. Rather, the
claimant was allowed to work for two additional years and ten months before his
employment was terminated vide letter dated 13/8/2015. The claimant stated that
his employment was deemed confirmed after six months’ probation. The claimant
stated that termination of his appointment was in breach of the terms and
condition of employment as contained in his letter of offer of employment dated
3/4/2012. As he was not served three months’ notice or payment of three months’
salary in lieu of notice.
7.
The claimant is also claiming the sum of
N1,613,630.70, being 50% of his 17 months’ salary withheld by the defendant without
any cogent reason communicated to him by the defendant. It is also the case of
the claimant that as a result of non-provision of utility vehicle for delivery
of products to customers within and outside Calabar, for the period claimant
served the defendant, the claimant was compelled to use or hire third party
vehicles he paid from his salaries.
8.
The claimant also stated he was not paid five
weeks leave grants for three years he served the defendant. The claimant is
also entitled to Volume and Space policy of the defendant in which he was
shortlisted for the months of January, March and April, 2015. The claimant is
also claiming payment of salary to two security men he was mandated to employ.
He is also claiming unpaid balance of contribution to cooperative society. The
claimant has not been paid terminal benefit three years after termination.
THE CASE OF THE
DEFENDANT
9.
The defendant in reaction to the claimant’s
claim denied the Claimant’s entitlement to any of his claims. It was stated
that the Claimant’s employment was not confirmed, which was largely due to
under performance. The Claimant was only allowed to continue working based on
his appeal to be allowed more time to prove himself, which he never did. The
Defendant further averred that assuming, but not conceding that the Claimant
was entitled to salary in lieu of notice, it ought to be three (3) months of
his basic salary, which stood at Ninety-three Thousand, Three Hundred and
Seventy-seven Naira only, as against the bogus gross salary claimed by the
Claimant. The Defendant also stated that the Claimant exceeded his credit sales
limit and also made credit supplies to unauthorized companies. This caused the
Defendant company to lose a total of One Million, Seven Hundred and Seventeen
Thousand, Five Hundred and Ninety-Nine Naira, Sixty Kobo (N1,717,599.60) and this is the reason for the deductions from the
Claimant’s entitlements and he was fully notified and was aware of this.
10.
It was also stated
by the Defendant that the Claimant was never entitled to leave allowance,
because he was never a staff of the company, as his employment was never
confirmed. Assuming but not conceding that his employment was even confirmed, he would have
only been entitled to annual leave allowance for three years which is Forty-Six
Thousand, Five Hundred and Thirty Naira (N46,530.00).
11.
Summarily, the Defendant as Counter-claimant
claimed the sum of Six Hundred and Ninety-Four Thousand, Four Hundred and
Sixteen Naira, Forty-Three Kobo (N694,416.43)
being the outstanding balance of the total sum of One Million, Seven Hundred
and Seventeen Thousand, Five Hundred and Ninety-Nine Naira, Sixty Kobo (N1,717,599.60) he caused the Counter
Claimant to lose as well as general damages.
12.
In reply the claimant stated that he never at
any time and place pleaded with the defendant to allow him continue working due
to poor performance. It is further stated that the claimant’s performance
during the six months’ probation was satisfactory and as a result the defendant
did not terminate his contract of employment till 13/8/2015, after two years ten
months’ service. The claimant insists that his three months’ salary in lieu is
not limited to basic salary but his gross salary as contained in his letter of
offer of employment dated 3/4/2012.
13.
The claimant denied ever having any meeting
with defendant where issue of posting of outstanding balances for authorized
and unauthorized credit sales by sales representatives to their individual
account by withholding their salary/entitlement to offset same was discussed.
The claimant denied ever being informed of decision by the defendant to
withhold salary/entitlement of sales representatives for authorized and
unauthorised credit sales to customers and claimant did not at any time made
credit sales to authorized and un-authorised customers including Dangote Flour
Mills and Greatiude investment ltd without recovering same amounting to
N1,717,599.60 during the duration of his employment with the defendant. Due to
the claimant’s diligence and hard work he was shortlisted as qualified employee
to benefit from the defendant’s Volume and Space (V & S) policy for the
month of January, March, and April, 2015.
14.
The claimant during the period he worked for
the defendant he was never issued with query or warning by the defendant for
any wrong doing including unauthorized credit sales and authorized credit sales
beyond limit to customers.
15.
The reason given for termination of claimant’s
employment as contained in paragraph 11 of the statement of defence was borne
out of malice and afterthought as the letter terminating claimant’s employment
dated 13/8/2015 did not state any reason. The claimant is not indebted to any
amount or caused any loss of any sum to the defendant.
16.
The claimant stated that he prepared all his
expenses of delivery by third party vehicles and forwarded same to the Zonal
Business Manager (South-South) of the defendant periodically and also summary
of all his expenses of delivery as contained in the internal memo dated
10/8/2015, before termination of his employment. The claimant was not requested
to reconcile any account.
17.
In his defence to counter claim, the claimant
stated that he was diligent, hard-working, faithful, honest and obedient during
the duration of his service and never caused any loss to the defendant as per
counter claim. He is not indebted to any amount to the defendant counter
claimant. The defendant claimant to counter claim withheld claimant defendant
to counter claimant’s is 50% of his salaries for 17 months from November, 2013
till March, 2015. The total arrears of 50% withheld salaries for 17 months is
N1,613,630.70 and not N1,023,183.17. He is entitled to be paid withheld amount
as he is not indebted to the defendant before termination of his employment.
THE SUBMISSION OF
THE DEFENDANT.
18.
Enome J. Amartey, Esq; counsel for the
defendant leading Victory Akokon, Esq; informed the court that the defendant’s
final written address dated 17/6/2023 was filed on 20/9/2023, counsel adopted
the said written address as his argument and urged the court to dismiss the
claimant’s claim against the defendant and grant the defendant’s counter claim.
In the final written address, twin issues were formulated for determination.
They are:-
1.
Whether considering the facts and
circumstances of this case, the Claimant is entitled to the reliefs sought?
2.
Whether considering the peculiar facts of this
case, the Defendant/Counter-claimant is not entitled to her Counter-claim?
ARGUMENT
19.
Issue 1; “Whether considering the facts and
circumstances of this case, the Claimant is entitled to the reliefs sought?”
20.
Counsel in arguing issue 1 submitted that the
Claimant was engaged by the Defendant herein, for a probationary period of six
(6) months, within which time, he was to prove himself competent and deserving
of the job. The facts and circumstances of this case shows clearly that the
Claimant failed to live up to his responsibility and was unable to prove
himself. He was therefore not able to leave the probationary zone. To support
his argument counsel refers to definition of probation as contained in the case
of Al-Bishak
v. National Productivity Centre & Anor (2015) LPELR-24259 (CA), (Pp. 49 paras. C) where the Court of Appeal, per Obaseki-Adejumo, JCA defined probation thus:
“In BABA v NIGERIAN CIVIL AVIATION
TRAINING CENTRE [1986] 5 LPELR-21095, the Court while adopting the Black's Law
Dictionary defined the word "probation" as: "The initial period
of employment during which a new, transferred, or promoted employee must prove
or show that he is capable of performing the required duties of the job or
position before he will be considered as permanently employed in such position."
21.
Counsel further refers to the case of Simeon v. College
of Education Ekiadolor Benin (2014) LPELR-23320 (CA) (Pp. 42-43 paras. D) where the Court
of Appeal, per Ekpe, JCA held
thus:
"The term
temporary appointment means the employee will be placed on probation until his
employer is satisfied with his conduct to be given a permanent appointment.
The sole purpose of
putting an employee on probation or giving him a temporary appointment is to
give the employer an assurance that the employee is a fit or proper person to
be placed on permanent appointment. It is noteworthy that probationary period
is a period of observation by any employer... See: IHEZUKWU vs UNIVERSITY OF
JOS & ORS. (1990) 7 SC (PT. 1) 18.
The essence of a
probationary appointment is that the employer retains the right not to confirm
the appointment until after a specific period. That to my mind applies in this
case where the employer did not think it fit to confirm the employment of the
appellant until the said appointment was terminated."
22.
Counsel submitted that it is agreed by both
parties that the appointment of the Claimant was never confirmed (see
paragraphs 4 and 5 of the Statement of Facts). This fact needs no further
proof. It is therefore our submission that, not being a confirmed staff, the
Defendant was not required to follow any procedure in the termination of the
Claimant’s employment. In support of this view counsel relied on the case of
Al-bishak v. National Productivity Centre & Anor (2015)
LPELR-24659(CA) (Pp. 40-41 paras. C),
where the Court of Appeal, per Oseji, JCA held thus:
"It is trite that an officer on probation
does not enjoy the same condition of service with an officer whose appointment
has been confirmed. His status in the establishment is more or less temporary
during the period of probation hence the process of his removal is not
subjected to strict adherence to Rules as is the case with a confirmed officer.
That is why the Rules or even Exhibit P1 provided for one month's notice of
termination of the appointment on both sides. Thus in the case of IGWILO VS
C.B.N (2000) 9 NWLR (Pt.672) 302 It was held that:- "In the termination of
the appointment of an officer on probation, no procedure need be followed
provided there is satisfaction that there is a good cause for termination. But
in the termination of a confirmed officer, the procedure of termination must be
followed, otherwise the termination is invalid." See also ALHASSAN VS ABU,
ZARIA (2011) 11 NWLR (PT.1259) 417. In IHEZUKWU VS UNIVERSITY OF JOS (1990) 7
SC (PT.1) PAGE 18."
23.
Counsel also submitted that the Claimant’s
contention in paragraph 6 of his Statement of Facts as well as his reliefs No.
1 and 2 in paragraph 22 of his Statement of Facts, that his contract of
employment was deemed confirmed, has no foundation or basis under our laws. As
the confirmation or otherwise of the employment of the Claimant is solely at
the discretion of the Defendant. It is only the Defendant, who can by express
terms decide that the Claimant’s conduct and work ethics are satisfactory and
therefore worthy of confirmation. Confirmation of employment, cannot therefore
be inferred. This is irrespective of whether or not the Claimant continued
working beyond the six (6) months’ probation period. To support this contention
counsel relied on the case of Seven-up Bottling Co. Plc v. Ajayi (2007)
LPELR-8765(CA) (Pp. 26-28 paras. F), which is on all fours with the instant
case. In deciding whether a contract of employment can be deemed confirmed,
simply because a temporary staff works beyond the period of probation, the
Court of Appeal per Shoremi, JCA held thus:
"On issue III it is in evidence that both
parties agree that the appointment of the Respondent was not confirmed before
termination, the fact that the respondent spent 16 months in the company
notwithstanding. I have earlier set out the provision probation when the
probationary period was supposed to be six months, the period may be extended
at the discretion of Management for a further period not exceeding 3 months if
the employee services are not considered to be up to the standard required, the
employment will cease at the end of the trial period.
During probation, either party may
terminate the contract as set out in the letter of engagement. The trial Court
was wrong to infer that because the Respondent's appointment was not confirmed
after 9 months’ probation and payment of one month's salary in lieu of notice,
Respondent has confirmed the appellant by conduct.
There is nowhere in the record that the
Respondent even asked the appellant to confirm his appointment after the
probationary period. The cardinal presumption is that the parties have intended
what they have in fact said so that their words must be construed as they
stand. That is to say the meaning of the document or of a particular part of it
is to be sought in the document itself. One must consider the meaning of the
words used not what one may guess to be the intention of the parties.
Confirmation of the Respondent appointment is at the discretion of the
Appellant therefore there is no basis to hold that by conduct, the appellant
had confirmed the appointment of the Respondent. I again answer Issue 3 in the
negative and in favour of the Appellant."
24.
According to counsel, the above ordinarily
settles the issue of the status of the Claimant’s employment. However counsel
point out and refers to exhibit DW2, particularly the letter dated the 9th
day of August, 2012 as well as exhibits DW3, DW4 and DW5, which show clearly
that several months after the expected six (6) months’ probation period, the
Defendant constantly complained about the Claimant’s performance. It is for
those reasons, that it was impossible for his employment to be confirmed.
Having not confirmed his employment, the Claimant was not entitled to three (3)
months’ notice or salary in lieu of the said notice. Counsel urged the court to
so hold.
25.
On the claimant’s claim for entitlement to the
sum of One Million, Six Hundred and Thirteen Thousand, Six Hundred and Thirty
Naira, Seventy Kobo (N1,613,630.70),
being deductions made from his salaries for his failure to adhere to the
company’s policies on credit sales is preposterous. The mail dated the 19th
day of December, 2013 (exhibit DW2), sent to the Claimant shows clearly that he
was informed timeously of company’s policy to withhold the entitlements of
defaulting sales representatives, to offset outstanding balances on authorized
credit sales and/or sales above credit limits. Counsel refers to paragraphs 12
– 24 of the witness statement on oath of DW1 adopted on 5/5/2023, wherein
details of the Claimant’s unauthorized credit sales were spelt out as well as
the details of him being clearly informed of the company’s policy on the
matter. Counsel urged the court to note exhibit DW2, particularly the email
sent to the Claimant on the 24th day of September, 2014, informing
him of the salary withhold and exhibit DW6, being the letter of 29th
April, 2015, informing the Claimant of the deduction of the sum of Five Hundred
and Three Thousand, Seven Hundred and Sixty-six Naira, Ninety-eight Kobo (N503,766.98) only, from his entitlements,
to settle his outstanding indebtedness. This clearly shows that the Claimant
was both aware of the consequences of his actions and also informed of the
sanctions. He never protested at that time, because he clearly knew that it was
within the right of the Defendant to do so.
26.
On the claim of the sum of Two Million, Four
Hundred and Four Thousand, Six Hundred Naira (N2,404,600.00)
only, being the amount he claims to have spent on delivery of the Defendant’s
products, within and outside Calabar. Counsel submitted that this spurious
claim is not backed by any verifiable evidence. The purported receipts relied
upon by the Claimant are both vague and unverifiable, particularly as it does
not spell out the quantity of products purportedly delivered, the name and/or
destination of the products etc. The term vague has been aptly defined by the
Supreme Court in the case of Nuhu v. Ogele (2003) LPELR-2077 (SC) (Pp. 9 paras.
E), where the apex Court, per Pats-Acholonu, JSC held thus:
“"The term vague connotes something
woolly, equivocal, a state of affairs that does not lend itself easily to
comprehension, something blurry and nebulous, uncertain or shadowy."
27.
Counsel submitted that, this Honourable Court
cannot go to town for the Claimant to determine how much was purportedly spent
by him for the delivery of which volume of product, to which particular
company. These are facts the Claimant must put forward before this Honourable
Court to be deserving of the Court’s indulgence. The Claimant’s claim in this
regard is in the nature of special damages. He cannot therefore claim an
amount, without giving details of how he arrived at that summation. He has a
duty to state how much he spent on each particular delivery, detailing the
volume of product delivered, the company and address he delivered the product
to and the date of such delivery. Failing which, his claim is bound to fail and
it should accordingly fail. In support of this submission counsel relied on the
case of Onyiorah v. Onyiorah & Anor (2019) LPELR-49096(SC) (Pp. 6 paras. E), where the Supreme Court,
per Rhodes-Vivour, JSC held thus:
"Special damages must be specially
pleaded and strictly proved by the claimant. To succeed in a claim for special
damages the claimant must plead the special damages and give necessary
particulars and adduce credible evidence in support. The claimant must satisfy
the Court as to how the sum claimed as special damages was quantified."
28.
Counsel continued his submission that the
Claimant ought to particularize his claims in his pleadings and follow it up by
leading evidence in proof of same. The Claimant clearly failed in this onerous
responsibility. All that he has put forward, is his claim to the sum of Two
Million, Four Hundred and Four Thousand, Six Hundred Naira (N2,404,600.00), with no particulars or
evidence as to how he arrived at that bogus figure. The responsibility on the shoulder
of a Claimant, claiming special damages was clearly spelt out in the case of
Associated Bus Co. plc v. Ashimolowo (2017) LPELR-45714(CA) (Pp. 33-34 paras. C), where the Court of
Appeal, per Uwa, JCA held thus:
"...This claim falls under special damages
in which the appellant has questioned the award of same. It is apt at this
point to define special damages. In the case of SAIDU H. AHMED & ORS VS.
CENTRAL BANK OF NIGERIA (2012) LPELR - 9341 (SC) P. 21, PARAS B - E, the Apex
Court, per Fabiyi, JSC defined it thus:
"Special damages have been defined as
those which are the actual, but not necessary, result of the injury complained
of, and which infact follow it as a natural and proximate consequence in the
particular case, that is, by reason of special circumstances or conditions.
TWIN COACH CO. VS. CHANCE VOUGHT AIRCRAFT INC. 2 STOREY 588, 168 A - 2D 278,
286. Such are damages which do not arise from wrongful act itself, but depend
on circumstances peculiar to the infliction of each respective injury. To be
recoverable, they must flow directly and immediately from the breach of
contract, and must be reasonably foreseeable. Special damages must be specially
pleaded and proved. (Black's Law Dictionary, Sixth Edition, Page 392)."
Similarly, before the above case, his Lordship
of the Apex Court, Iguh, JSC in EKENNIA VS. NKPAKARA & ORS (1997) LPELR -
1078 (SC) P. 30, PARAS B - C had defined special damages thus:
"Special damages have been defined as
damages of the type as the law will not infer from the nature of the act, they
do not flow in the ordinary course, they are exceptional in their character,
and therefore, they must be claimed specially and proved strictly. See STROMS
BRUKS AKTIE BOLAG VS. JOHN & PETER HUTCHISON (1905) A.C. 515 at 525 - 526
PER LAND MACNAGH."
The common factor in the above cases is that
special damages must be particularized and pleaded; evidence must be led in
proof of the pleaded items of loss."
29.
According to counsel even though the Claimant
failed to establish his claims to that amount, in paragraph 25 of the Witness
Statement on Oath of DW1, the Defendant’s witness stated unequivocally that the
Claimant was assigned a vehicle for delivery of company products. He gave
details of the said vehicle as a Toyota Hilux Vehicle. He also provided the
name of the driver assigned to the Claimant as one Mr. Ekeng Effiom. This piece
of evidence remained unchallenged and unrebutted, may your Lordship accordingly
ascribe probative value to same. Counsel urged the court to ascribed probative value to their
testimonies. On the meaning and effect of an unchallenged and uncontroverted
evidence. To support the contention reliance was placed on the case of Oforlete
v. State (2000) LPELR-2270(SC) (Pp. 33-34 paras. G) where the Supreme Court,
per Ayoola, JSC held thus:
"... it does appear to me that a
distinction has not always been drawn in the manner in which evidence is
challenged or controverted. "unchallenged" and
"uncontroverted" have mostly been used as meaning the same thing.
See, for instance, Egbunike v. ACB Ltd (1995) 2 NWLR (Pt.375) 34 SC. In a
strict sense "unchallenged" and uncontroverted" may not mean the
same thing. To challenge is to object or except to something or to put it in
dispute or render doubtful. To controvert is to dispute or deny, oppose or
contest. (For both definitions see Black 's Law Dictionary 6th Edition).
Challenging witness is more appropriate in cross-examination while
controverting his evidence is more appropriate in leading contrary evidence.
Notwithstanding the distinction, in most cases the consequence would be the
same whether evidence is unchallenged or whether it is uncontroverted. Where
evidence is challenged and rendered doubtful or without weight by
cross-examination, the fact that it is not controverted by contrary evidence
will not render it cogent or weighty. On the other hand, the fact that contrary
evidence has not been adduced to controvert the evidence of a witness on a
particular matter weakens any suggestion that that evidence is not true."
30.
Counsel urged the court to act on the said
evidence. Doing so, would be right in the eyes of the law. To further support
his position counsel placed reliance of the case of Obineche & Ors. v.
Akusobi & Ors. (2010) LPELR-2178(SC) (Pp. 37-38 paras. D) where the Supreme
Court per Adekeye, JSC held thus:
"...where
evidence by a party to any proceedings was not challenged or controverted by
the opposite party who had the opportunity to do so, it is always open to the
court siezed of the case, to act on such unchallenged or uncontroverted
evidence before it as the court below did in respect of the said evidence of
the P.W.11 in the instant case. There are too many decided authorities in this
regard. See the cases of Nwabuoku v. Otteh (1961) 1 ANLR 487 @ 490, Odulaja v.
Haddad (1973) 11 S.C 357; Nigerian Maritime Services Ltd v. Alhaji Bello
Afolabi (1978) 2 S.C 79 @ 81; Isaac Omoregbe v. Daniel Lawani (1980) 3 - 4 S.C
108 @ 117; and Olohunde & anor. v. Prof Adeyoju (2000) 6 SCNJ 470 @ 475
just to mention but a few."
31.
Counsel also refers to paragraphs 26 – 30 of
the witness statement on oath of DW1 and the mail dated the 4th day
of December, 2014, contained in exhibit DW2. It is clear from the witness’
statement and the email sent to the Claimant that, on the rare occasions where transportation
expenses are borne by Sales Representatives like the Claimant, details of those
expenses ought to be sent to the Defendant, within two weeks of delivery of
those products. There is also no evidence of such details and/or notice sent to
the Defendant as and when due, before this Honourable Court. It is contention
of counsel that the evidence does not exist, because the Claimant never bore
such expenses. The products were usually delivered through the Defendant’s
vehicle or picked up by the customers themselves.
32.
On the Claimant’s claim for the sum of
Forty-four Thousand Naira (N44,000.00)
only, being purported salaries for two security men, which he claimed to pay
for the month of August, 2015. It is submitted that it is somewhat preposterous
for the Claimant to claim to have used his personal funds to pay security men
he claims were working for the Defendant. If indeed such people were working
for the Defendant, they would have contacted the Defendant or instituted an
action against the Defendant to claim their purported entitlements. Moreover,
as shown in paragraph 34 and 38 of DW1’s Statement on Oath, as soon as the
company’s products were moved back to Lagos, the Defendant had no business with
both the location and or whatever security was put there by the Claimant
anymore. The Claimant however continued to live in the facility and was
therefore responsible for whatever security he put there.
33.
As regards the Claimant’s claim for refund of
Cooperative contributions, as shown in paragraph 40 of the statement on oath of
DW1, the Cooperative is a separate legal entity from the Defendant and the
Claimant joined the said Cooperative voluntarily and authorized the Defendant
to make deductions from his salaries in favour of the Cooperative. The Defendant
therefore has no business with how the funds in the Cooperative are applied or
appropriated. The Defendant cannot therefore be responsible for any such
refund. Counsel urged the court to so hold.
34.
According to counsel, the Defendant has shown
by paragraph 33 of the statement on oath of DW1 that to qualify to receive and
to be paid Volume and Space Allowance, the money from the sales must have been
received by the company. The parties before this Honourable Court are ad idem
on the fact that the Claimant made credit sales and the monies for those credit
sales are yet to be received by the Defendant. One therefore wonders, where the
Claimant expects the Defendant to draw funds from and pay him for his purported
allowance. Particularly, as the condition precedent upon which Volume and Space
Allowance ought to be paid to the Claimant, is yet to be fulfilled. Counsel
urged the court to hold that the Claimant is not entitled to receive Volume and
Space Allowance, for monies not received by the Defendant.
35.
It is the submission of counsel that, the
entire case of the Claimant is predicated on the false presumption that his
contact of employment is deemed confirmed. Counsel contended on the strength of
the case of Seven-up Bottling Co. Plc v. Ajayi (supra), that the posture taken
by him is erroneous and misconceived. As the entire claims of the Claimant are
hinged on relief No. 1, which is his main relief. The said relief No. 1, just
like reliefs No. 2 and 3, is a declaratory relief and the burden of proof is on
the Claimant. These reliefs are only grantable when credible evidence has been
led by the Claimant. It cannot even be granted upon admission by the Defendant
or based on the weakness of the Defendant’s case. To buttress the point being
made counsel call in aid of the case of Mbodan v. Dabai (2019) LPELR-46739(CA)
(Pp. 14 paras. A), per Abiriyi, JCA.
36.
It is submitted that the Claimant has not
placed any material evidence before this Honourable Court to show and/or prove
that his employment was ever confirmed by the Defendant. He has not produced
before your Lordship any letter of confirmation of his employment or anything
to suggest that his employment was confirmed. On that basis, his case ought to
fail and fall like a pack of cards and that ought to be the end of the matter.
Rather, the Defendant has by credible evidence shown that, the Claimant was not
employable, conducted himself in a manner contrary to the laid down regulations
of the company and acted in contravention of the laid down rules of his
engagement.
37.
Counsel submitted it goes without saying that
Claimant’s reliefs Nos. 2, 7, 8, 11 and 12 are tied to the Claimant’s relief
No.1; similarly, the rest of the Claimant’s reliefs are tied to his relief No.
3, which is also a declaratory relief, for which no evidence has been led in
proof of. It is our submission that when the declaratory reliefs fail, as they
are bound to, the remainder of the reliefs, which are ancillary, will become
impossible to grant. Counsel prays the court to accordingly refuse those claims
and accordingly dismiss the Claimant’s case. To support this contention counsel
relied on the case of Fafunwa v. Bellview Travels Ltd (2013) LPELR-20800(CA)
(Pp. 18-19 paras. F), per Pemu, JCA.
38.
It is submission of counsel that claims are
ancillary to the main claim, when they are so connected that, it will be
impossible to prove them, without first proving the main claim. To support this
contention counsel refers to the case of Nabore Properties Ltd v. Peace-Cover
(Nig) Ltd & Ors. (2014) LPELR-22586(CA)
(Pp. 28-29 paras. D), where the penultimate Court, per Iyizoba, JCA, in
defining the word ancillary, held thus:
"Blacks Law
Dictionary defines "Ancillary claim" thus: "Term
"ancillary" denotes any claim that reasonably may be said to be
collateral to, dependent upon, or otherwise auxiliary to a claim asserted
within federal jurisdiction in action, Hartley Pen Co v. Lindy Pen Co., D.C.
Cal., 16 F.R.D. 141, 154. Claim is "ancillary" when it bears a
logical relationship to the aggregate core of operative facts which constitutes
main claim over which the court had independent basis of federal jurisdiction.
Nishimatsu Const. Co., Ltd v. Houston Nat. Bank, C.A. Tex., 515 F.2d
1200.1205." From Wikipedia on Ask.Com, "Ancillary relief means
subordinate or subsidiary or a legal proceeding that is not the primary dispute
but which aids the judgment rendered in or the outcome of the main
action."
39.
Counsel urged the court on the strength of the
above argument, find and hold that the Claimant has been unable to prove his
claims and accordingly dismiss same, in the interest of justice. May this issue
be resolved in the negative and against the Claimant.
40.
Issue 2: “Whether considering the peculiar
facts of this case, the Defendant/Counter-claimant is not entitled to her
Counter-claim?”
41.
In arguing issue 2, counsel submitted that the
Defendant/Counter-claimant has led credible evidence in proof of her
Counter-claim. The case of the Counter-claimant is simply that the Defendant to
the Counter-claim, in contravention of the policies of the company made
unverifiable/unauthorized credit sales to the tune of One Million, Seven
Hundred and Seventeen Thousand, Five Hundred and Ninety-Nine Naira, Sixty Kobo
(N1,717,599.60). The evidence before
court reveals further that, in line with the company policy, the sum of One
Million, Twenty-three Thousand, One Hundred and Eighty-three Naira, Seventeen
Kobo (N1,023,183.17) only had been
deducted from the Claimant’s entitlements. It is the balance of Six Hundred and
Ninety-four Thousand, Four Hundred and Sixteen Naira, Forty-three Kobo (N694,416.43) only that the
Counter-claimant is praying this Honourable Court to grant.
42.
It is submitted that the fact that the
Defendant to the Counter-claim made unauthorized sales and sales above his
credit limit is admitted by both parties. It is also a fact that a fraction of
this amount was withheld and deducted from the Defendant to Counter-claim’s
entitlement. In further proof of this fact, the Counter-claimant tendered exhibit
DW2, particularly the email sent to the Claimant on the 24th day of
September, 2014, informing him of the salary withhold and exhibit DW6, being
the letter of 29th April, 2015, informing the Claimant of the
deduction of the sum of Five Hundred and Three Thousand, Seven Hundred and
Sixty-six Naira, Ninety-eight Kobo (N503,766.98)
only, from his entitlements, to settle his outstanding indebtedness. Those
documents speak for themselves.
43.
It is submitted that the Defendant to the
Counter-claim merely ran to this Honourable Court, to seek some form of shield
and avoid paying his debt to the Counter-claimant. The Defendant to the
Counter-claim’s refusal to show or point the Counter-claimant in the direction
of the companies he purportedly made the supplies to, simply proves that, he
most likely got paid for the deliveries, but held back the monies and refused
to remit same to the Counter-claimant. Counsel prays the court to refuse this
feeble attempt from the Defendant to the Counter-claim and grant the reliefs sought
by the Counter-claimant.
44.
Counsel urged the court in granting the
reliefs of the Counter-claimant, to bear in mind, the fact that the Defendant
to the Counter-claim has held over the Counter-claimant’s money for over eight
(8) years, the depreciating value of the Naira and inflation. It is for this
reason that the Counter-claimant is praying your Lordship for general damages
for the loss of earnings from the investments she would have made from
reinvesting the monies in her business. To support this contention reliance was
placed on the case of Union Bank Plc. v. Onuorah & Ors. (2007)
LPELR-11845(CA) (Pp. 19-20 paras. B), where the Court of Appeal, per
Peter-Odili, JCA (as he then was).
45.
Counsel urged the court based on the evidence
adduced before this Honourable Court and the legal arguments canvassed in the
written address to resolve this issue in the affirmative and grant all the
reliefs sought by the Counter-Claimant.
46.
In concluding his submission counsel contended
that the Claimant has been unable to prove before this Honourable Court that
his employment was confirmed by the Defendant. Flowing from that, he has been
unable to show his entitlement to the reliefs in his claim.
47.
On the other hand, the Counter-claimant has
shown by both documentary and oral evidence, that upon the termination of the
Defendant to Counter-claim’s employment, he left with monies meant for products
delivered on behalf of the Counter-claimant.
48.
Counsel urged the court to evaluate and
ascribe probative value to the evidence adduced before the Court; and to be
persuaded by the submissions in this address in dismissing the Claimant’s
claims and granting the reliefs sought by the Counter-Claimants.
THE SUBMISSION OF
THE CLAIMANT.
49.
Oliver A.
Osang, Esq; counsel for the claimant adopted the final written address
of the claimant as his argument, counsel urged the court to grant the claim of
the claimant and dismiss the counter claim for lacking in merit. In the final
written address a single issue was formulated for determination, to wit:-
Whether considering the facts and evidence in
this case, the Claimant has proved his case to be entitled to the reliefs
sought?
50.
In arguing the sole issue counsel submitted
that an employee who complains of wrongful termination of employment by his employer
as in the instant case has the onus to prove the wrongful termination of the
said employment by:
a.
Placing before the court the terms and
conditions of the contract of employment; and
b.
Proving in what manner the said terms were
breached by the employer. See NITEL Plc. V. Akwa (2006) 2 NWLR (pt. 964) 391 at
pg. 394; Sections 131 to 134 of the Evidence Act, 2011.
51.
Counsel submitted
that the Claimant was employed by Defendant Company on April 3, 2012,
placed on probation for a period of six months and his contract of employment
was terminated two (2) years and ten (10) months after the expiration of the
probationary period. It is trite law that the contract of employment of the
Claimant was deemed confirmed when at the expiration of the probationary period
the Defendant encouraged the Claimant to continue working and duly paid him
salaries for two (2) years and ten (10) months post probation. See the cases of
Obafemi Awolowo University v. Dr. A. K. Onabanjo (1991) 5 NWLR (Pt. 193) 549.
See also the Judgment of this Honourable Court in Suit No. NICN/CA/18/2013 Mr.
Ojeka John Ashibene v. Access Group of Schools and Anor. (Unreported) delivered
on 8th March, 2016.
52.
According to counsel the claimant’s contract
of employment was terminated by the defendants in breach of the terms and
conditions of employment as contained in exhibit C1. There was no appropriate
notice issued or salary in lieu paid to the claimant. Exhibit C3 dated August
13, 2015 purportedly terminated the Claimant’s contract of employment with
immediate effect and he was directed to contact the accounts department for his
terminal benefits. Till date, no benefits accrued to the Claimant were paid to
him.
53.
It is submitted that that, where a contract of
service gives a party a right of termination of the contract by either giving a
particular length of notice or payment of salary in lieu of the length of
notice as in the instant case, and the latter course is chosen, the party
seeking to put an end to the contract must pay to the other party the salary in
lieu of notice at the time of the termination of contract, but this was not
done in this case. See the case of Dr. Ben O. Chukwumah v. Shell Petroleum
Development Company (1993) 4 NWLR (Pt.289) 512.
54.
An employee whose contract of employment is
terminated by the employer as in the instant case is entitled to, in addition
to payment in lieu, all other allowances due to him. OGUNDARE, J.S.C. in
Chukwumah v. SPDC (supra) held thus:
“The
net result of all I have been saying is that this appeal succeeds only on the
point as to the wrongfulness of the termination of plaintiff’s employment, he
not having been given two months’ notice nor paid two months’ salary in lieu of
notice at the time of the termination. Subject to this, I affirm the dismissal
by the two courts below of his claims as contained in his writ of summons. As
the authorities now stand, he is only entitled, as damages, to two months’
salary in lieu of notice and, in addition, to his terminal benefits-all of
which were awarded him by the two courts below…”
55.
According to counsel the claimant having
proved his claims by oral and documentary evidence is entitled to the total sum
of N569,516.07 being three months’ salary in lieu of
notice (exhibit C1) and also other benefits of the total sum of N170,941.09 being unpaid cash award of Volume and Space
(V&S) January, March and April, 2015 (exhibit C9); the total sum of
N1,613,630.70 being fifty percent
(50%) withheld salaries for seventeen (17) months (exhibits C4, C5 and C6); the total sum of N2,404,600.00 being out of pocket expenses incurred for
transporting and delivery of products (exhibits
C7 and C8); the total sum of N44,000.00 being salaries of two
security men for August, 2015 (exhibits C10 and
C11); the total sum of N139,590.00 being unpaid three years (2012, 2013 and
2014) leave allowance (exhibits C1) and the sum of N17,000.00 being unpaid
balance of corporative deductions as contained in paragraphs 22 of the
statement of facts and 23 of the claimant’s witness statement on oath.
56.
It is also submission of counsel that the
above documentary evidence of the claimant in proof of his case were neither
challenged nor controverted during cross examination of the claimant sole
witness by the defendant on the 14th October, 2021. Submissions of
Counsel cannot be substituted for evidence as in the instant case. It is now
trite law that no matter how brilliant and persuasive Counsel’s submissions may
be, it can never metamorphose to evidence. On this submission counsel placed
reliance on the cases of Nig. Arab Bank Ltd. V. Femi Kane Ltd. (1995) 4 NWLR
(Pt. 387) 100 at 106 and Chukwujekwu V. Olalere (1992) 2 NWLR (Pt. 221) 86 at
93 Para A.
57.
On the counter claim of the defendant, same is
bound to fail as the defendant’s sole witness Mr. Adagbayemu Victor Olusegun
who is the defendant’s Depot Accountant contradicted himself when he admitted
during cross examination by the claimant’s Counsel that and I quote: ”The
Claimant work directly as a marketer with zonal manager. While I work as an
accountant. The claimant is under the supervision of zonal manager but I am
not. I don’t know what is happening in the marketing department I am not
working there. I know one Agadeba was the zonal manager. I am also aware
claimant’s employment was terminated while Agadeba was zonal manager. I don’t
know whether Agadeba was in Calabar at the period of termination of claimant’s
employment. I did not have any information whether at the time of termination
claimant handed over to Agadeba as zonal manager.”
58.
It is submission of counsel that the above
statement of the defendant’s witness during cross examination contradicts his
witness statement on oath of 20th December, 2022 and same cannot be
ascribed probative value by this Honourable Court. Per IBIYEYE J.C.A. in Akanni
V. Odejide (2004) All FWLR (Pt. 218) 822 at pp. 854-855 paras G-A stated thus:
“The contradictory evidence of the plaintiff’s
witness should have been enough for the trial court to view it with suspicion
and disbelief as regards the issue of chaos at the meetings. Thus, while PW1
who is the 2nd plaintiff testified that the meeting ended in chaos,
the PW3 under cross examination said that nothing of the sort happened during
the meeting.”
See also the case of Akanmu V. Adigun (1993) 7
NWLR (Pt. 304) 218 at 235.
59.
It is submitted that the defendant’s sole
witness lacks the capacity to testify as to whether the claimant is indebted to
the defendant or not. Claimant was been supervised by the zonal manager Agadeba
who was present and was the one who handed over the termination letter (exhibit
C3) to the claimant and the claimant in turn handed over all the defendant’s
properties in his possession to the zonal manager including information about
credit customers.
60.
In concluding his submission counsel submitted by the totality of
the evidence adduced by the claimant, his contract of employment was wrongfully
terminated by the defendants as there was no proper notice issued or payment of
salary in lieu of notice at the time his contract of employment was terminated
and he is also entitled to other terminal benefits as enumerated in his claims
(paragraphs 22 of the statement of facts and 23 of the claimant’s witness
statement on oath). The defendant has failed to prove her counter-claim and
same is bound to be discountenanced by this Honourable Court. Counsel urged the
court to grant the claimant’s claims as his evidence is unchallenged and
uncontroverted.
COURT’S DECISION:
61.
I have considered the processes filed by the
parties, the evidence led at the trial as well as the written and oral
submission of counsel for the parties.
62.
The defendant formulated twin issues for
determination. While the claimant formulated a single issue for resolution.
Having regards to the facts and evidence adduced before the court, I shall
adopt the twin issues formulated by the defendant as they have fully captured
the issues calling for resolution in the case. They are:-
1.
Whether considering the facts and
circumstances of this case, the Claimant is entitled to the reliefs sought?
2.
Whether considering the peculiar facts of this
case, the Defendant/Counter-claimant is not entitled to her Counter-claim?
63.
Issue 1: “Whether considering the facts and
circumstances of this case, the Claimant is entitled to the reliefs sought?”
64.
The defendant’s position is that the Claimant
was engaged on probation for a period of six months and up to the time of his
disengagement vide exhibit C3, the claimant’s employment with the defendant has
never been confirmed. As according to the defendant the facts and circumstance
of this case shows clearly that the Claimant failed to live up to his
responsibility and was unable to prove himself. Thus, why he was not able to
leave the probationary zone. To support his argument counsel refers to definition
of probation as contained in the cases of Al-Bishak v. National Productivity Centre
& Anor (2015) LPELR-24259 (CA), (Pp. 49 paras. C), per Obaseki-Adejumo,
JCA, Simeon v. College of Education
Ekiadolor Benin (2014) LPELR-23320 (CA) (Pp. 42-43 paras. D) per Ekpe,
JCA.
65.
It is the case of
the defendant that having not confirmed the appointment of the claimant no due
process is required to be followed in the termination of the Claimant’s employment.
Al-bishak v. National Productivity Centre & Anor (2015) LPELR-24659(CA), per
Oseji, JCA.
66.
On the claim by the claimant that his contract
of employment was deemed confirmed, the defendant stated that this claim has no
foundation or basis under our laws. As the confirmation or otherwise of the
employment of the Claimant is solely at the discretion of the Defendant. It is
only the Defendant, who can by express terms decide that the Claimant’s conduct
and work ethics are satisfactory and therefore worthy of confirmation.
Confirmation of employment, cannot therefore be inferred. This is irrespective
of whether or not the Claimant continued working beyond the six (6) months’
probation period. In support of this contention reliance was placed on the case
of Seven-up Bottling Co. Plc v. Ajayi (2007) LPELR-8765(CA) (Pp. 26-28 paras.
F), per Shoremi, JCA.
67.
According to counsel, the above ordinarily
settles the issue of the status of the Claimant’s employment. However counsel
point out and refers to exhibits DW2, particularly the letters dated the 9th
day of August, 2012 as well as exhibits DW3, DW4 and DW5, which show clearly
that several months after the expected six (6) months’ probation period, the
Defendant constantly complained about the Claimant’s performance. It is for
those reasons, that it was impossible for his employment to be confirmed.
Having not confirmed his employment, the Claimant was not entitled to three (3)
months’ notice or salary in lieu of the said notice. Counsel urged the court to
so hold.
68.
On the claimant’s claim for entitlement to the
sum of One Million, Six Hundred and Thirteen Thousand, Six Hundred and Thirty
Naira, Seventy Kobo (N1,613,630.70),
being deductions made from his salaries, the defendant stated that claimant
failed to adhere to the company’s policies on credit sales the claim is
preposterous. Reference was made to mail dated the 19th day of
December, 2013 (exhibit DW2), sent to the Claimant showing clearly that he was
informed timeously of company’s policy to withhold the entitlements of
defaulting sales representatives, to offset outstanding balances on authorized
credit sales and/or sales above credit limits. Counsel refers to paragraphs 12
– 24 of the witness statement on oath of DW1 adopted on 5/5/2023, wherein
details of the Claimant’s unauthorized credit sales were spelt out as well as
the details of him being clearly informed of the company’s policy on the
matter. Counsel urged the court to note exhibit DW2, particularly the email sent
to the Claimant on the 24th day of September, 2014, informing him of
the salary withhold and exhibit DW6, being the letter of 29th April,
2015, informing the Claimant of the deduction of the sum of Five Hundred and
Three Thousand, Seven Hundred and Sixty-six Naira, Ninety-eight Kobo (N503,766.98) only, from his entitlements,
to settle his outstanding indebtedness. This clearly shows that the Claimant
was both aware of the consequences of his actions and also informed of the
sanctions. He never protested at that time, because he clearly knew that it was
within the right of the Defendant to do so.
69.
On the claim of the sum of Two Million, Four
Hundred and Four Thousand, Six Hundred Naira (N2,404,600.00)
only, being the amount he claims to have spent on delivery of the Defendant’s
products, within and outside Calabar. Counsel submitted this is a spurious
claim it is not backed by any verifiable evidence. The purported receipts
relied upon by the Claimant are both vague and unverifiable, particularly as it
does not spell out the quantity of products purportedly delivered, the name
and/or destination of the products etc. see Nuhu v. Ogele (2003) LPELR-2077
(SC) (Pp. 9 paras. E), per Pats-Acholonu, JSC.
70.
Counsel submitted that, this Honourable Court
cannot go to town for the Claimant to determine how much was purportedly spent
by him for the delivery of which volume of product, to which particular
company. These are facts the Claimant must put forward before this Honourable
Court to be deserving of the Court’s indulgence. The Claimant’s claim in this
regard is in the nature of special damages. He cannot therefore claim an
amount, without giving details of how he arrived at that summation. In support
of this submission counsel relied on the case of Onyiorah v. Onyiorah &
Anor (2019) LPELR-49096(SC), per Rhodes-Vivour, JSC (as he then was).
71.
Counsel continued his submission that the
Claimant ought to particularize his claims in his pleadings and follow it up by
leading evidence in proof of same. The Claimant clearly failed in this onerous
responsibility. All that he has put forward, is his claim to the sum of Two
Million, Four Hundred and Four Thousand, Six Hundred Naira (N2,404,600.00), with no particulars or evidence
as to how he arrived at that bogus figure. The responsibility on the shoulder
of a Claimant, claiming special damages was clearly spelt out in the case of
Associated Bus Co. plc v. Ashimolowo (2017) LPELR-45714(CA), per Uwa, JCA (as
he then was now JSC).
72.
According to counsel even though the Claimant
failed to establish his claims to that amount, in paragraph 25 of the Witness
Statement on Oath of DW1, the Defendant’s witness stated unequivocally that the
Claimant was assigned a vehicle for delivery of company products. He gave
details of the said vehicle as a Toyota Hilux Vehicle. He also provided the
name of the driver assigned to the Claimant as one Mr. Ekeng Effiom. This piece
of evidence remained unchallenged and unrebutted. Oforlete v. State (2000)
LPELR-2270(SC) (Pp. 33-34 paras. G), per Ayoola, JSC.
73.
Counsel also refers to paragraphs 26 – 30 of
the witness statement on oath of DW1 and the mail dated the 4th day
of December, 2014, contained in exhibit DW2. It is clear from the witness’
statement and the email sent to the Claimant that, on the rare occasions where
transportation expenses are borne by Sales Representatives like the Claimant,
details of those expenses ought to be sent to the Defendant, within two weeks
of delivery of those products. There is also no evidence of such details and/or
notice sent to the Defendant as and when due, before this Honourable Court. It
is contention of counsel that the evidence does not exist, because the Claimant
never bore such expenses. The products were usually delivered through the
Defendant’s vehicle or picked up by the customers themselves.
74.
On the Claimant’s claim for the sum of
Forty-four Thousand Naira (N44,000.00)
only, being purported salaries for two security men, which he claimed to pay
for the month of August, 2015. It is submitted that it is somewhat preposterous
for the Claimant to claim to have used his personal funds to pay security men
he claims were working for the Defendant. If indeed such people were working
for the Defendant, they would have contacted the Defendant or instituted an
action against the Defendant to claim their purported entitlements. Moreover,
as shown in paragraph 34 and 38 of DW1’s Statement on Oath, as soon as the
company’s products were moved back to Lagos, the Defendant had no business with
both the location and or whatever security was put there by the Claimant
anymore. The Claimant however continued to live in the facility and was
therefore responsible for whatever security he put there.
75.
As regards the Claimant’s claim for refund of
Cooperative contributions, as shown in paragraph 40 of the statement on oath of
DW1, the Cooperative is a separate legal entity from the Defendant and the
Claimant joined the said Cooperative voluntarily and authorized the Defendant
to make deductions from his salaries in favour of the Cooperative. The
Defendant therefore has no business with how the funds in the Cooperative are
applied or appropriated. The Defendant cannot therefore be responsible for any
such refund. Counsel urged the court to so hold.
76.
Counsel submitted that the Defendant has shown
by paragraph 33 of the statement on oath of DW1 that to qualify to receive and
to be paid Volume and Space Allowance, the money from the sales must have been
received by the company. The parties before this Honourable Court are ad idem
on the fact that the Claimant made credit sales and the monies for those credit
sales are yet to be received by the Defendant. One therefore wonders where the
Claimant expects the Defendant to draw funds from and pay him for his purported
allowance. Particularly, as the condition precedent upon which Volume and Space
Allowance ought to be paid to the Claimant, is yet to be fulfilled. Counsel
urged the court to hold that the Claimant is not entitled to receive Volume and
Space Allowance, for monies not received by the Defendant.
77.
It is the submission of counsel that, the
entire case of the Claimant is predicated on the false presumption that his
contact of employment is deemed confirmed. Counsel contended on the strength of
the case of Seven-up Bottling Co. Plc v. Ajayi (supra), that the posture taken
by him is erroneous and misconceived. As the entire claims of the Claimant are
hinged on relief No. 1, which is his main relief. The said relief No. 1, just
like reliefs No. 2 and 3, is a declaratory relief and the burden of proof is on
the Claimant. These reliefs are only grantable when credible evidence has been
led by the Claimant. It cannot even be granted upon admission by the Defendant
or based on the weakness of the Defendant’s case. To buttress the point being
made counsel call in aid of the case of Mbodan v. Dabai (2019) LPELR-46739(CA)
(Pp. 14 paras. A), per Abiriyi, JCA.
78.
It is submitted that the Claimant has not
placed any material evidence before this Honourable Court to show and/or prove
that his employment was ever confirmed by the Defendant. He has not produced
before your Lordship any letter of confirmation of his employment or anything
to suggest that his employment was confirmed. On that basis, his case ought to fail
and fall like a pack of cards and that ought to be the end of the matter.
Rather, the Defendant has by credible evidence shown that, the Claimant was not
employable, conducted himself in a manner contrary to the laid down regulations
of the company and acted in contravention of the laid down rules of his
engagement.
79.
Counsel submitted it goes without saying that
Claimant’s reliefs Nos. 2, 7, 8, 11 and 12 are tied to the Claimant’s relief
No.1; similarly, the rest of the Claimant’s reliefs are tied to his relief No.
3, which is also a declaratory relief, for which no evidence has been led in
proof of. It is our submission that when the declaratory reliefs fail, as they
are bound to, the remainder of the reliefs, which are ancillary, will become
impossible to grant. Counsel prays the court to accordingly refuse those claims
and accordingly dismiss the Claimant’s case. To support this contention counsel
relied on the case of Fafunwa v. Bellview Travels Ltd (2013) LPELR-20800(CA)
(Pp. 18-19 paras. F), per Pemu, JCA.
80.
Counsel urged the court on the strength of the
above argument, find and hold that the Claimant has been unable to prove his
claims and accordingly dismiss same, in the interest of justice. May this issue
be resolved in the negative and against the Claimant.
81.
For the claimant he was employed by Defendant
on April 3, 2012, placed on probation for a period of six months and his
contract of employment was terminated two (2) years and ten (10) months after
the expiration of the probationary period. By the time of termination of the
claimant’s employment the contract of employment was deemed confirmed since at
the expiration of the probationary period, the Defendant encouraged the
Claimant to continue working and duly paid him salaries for two (2) years and
ten (10) months post probation. Obafemi Awolowo University v. Dr. A. K.
Onabanjo (1991) 5 NWLR (Pt. 193) 549, see also the Judgment of this Honourable
Court in Suit No. NICN/CA/18/2013 Mr. Ojeka John Ashibene v. Access Group of
Schools and Anor. (Unreported) delivered on 8th March, 2016.
82.
It is the case of the claimant that his
contract of employment was terminated by the defendant in breach of the terms
and conditions of employment as contained in exhibit C1. As there was no
appropriate notice issued or salary in lieu paid to the claimant. Exhibit C3
dated August 13, 2015 purportedly terminated the Claimant’s contract of
employment with immediate effect and he was directed to contact the accounts
department for his terminal benefits. Till date, no benefits accrued to the
Claimant were paid to him.
83.
It is also submitted that, where a contract of
service gives a party a right of termination of the contract by either giving a
particular length of notice or payment of salary in lieu of the length of
notice as in the instant case, and the latter course is chosen, the party
seeking to put an end to the contract must pay to the other party the salary in
lieu of notice at the time of the termination of contract, but this was not
done in this case. See the case of Dr. Ben O. Chukwumah v. Shell Petroleum
Development Company (1993) 4 NWLR (Pt.289) 512.
84.
An employee whose contract of employment is
terminated by the employer as in the instant case is entitled to, in addition
to payment in lieu, all other allowances due to him. Chukwumah v. SPDC (supra).
85.
Counsel submitted that the claimant having
proved his claims by oral and documentary evidence is entitled to the total sum
of N569,516.07 being three months’ salary in lieu of
notice (exhibit C1) and also other benefits of the total sum of N170,941.09 being unpaid cash award of Volume and Space
(V&S) January, March and April, 2015 (exhibit C9); the total sum of
N1,613,630.70 being fifty percent
(50%) withheld salaries for seventeen (17) months (exhibits C4, C5 and C6); the total sum of N2,404,600.00 being out of pocket expenses incurred for
transporting and delivery of products (exhibits
C7 and C8); the total sum of N44,000.00 being salaries of two
security men for August, 2015 (exhibits C10 and
C11); the total sum of N139,590.00 being unpaid three years (2012, 2013 and
2014) leave allowance (exhibits C1) and the sum of N17,000.00 being unpaid
balance of corporative deductions as contained in paragraphs 22 of the
statement of facts and 23 of the claimant’s witness statement on oath.
RESOLUTION OF
ISSUE ONE:
The law is well settled that the parties and the court are bound by the reliefs claimed in the action. Therefore, a case is fought on the relief or reliefs sought. A case is not fought outside the relief or reliefs sought. Relief is the live wire of an action. Relief puts in specific demanding language the cause of action. Where there is no relief sought in an action, there is nothing for the court to grant. It is the bedrock of the entire action. The action can either stand or fall by the relief sought. See Otun v. Otun (2004) 14 NWLR (Pt. 893) 381; Uzoukwu v. Ezeonwu (1991) 6 NWLR (Pt. 200) 708; Ehinle v. Ikorodu Local Govt.
88.
The first three reliefs
are for declarations. While reliefs 4 – 10 are seeking for payment of various
sums of money ranging from 50% withheld salaries for 17 months from November,
2013 to March, 2015, money spent by claimant on delivery of products within and
outside Calabar, salaries in the sum of N44,000.00 for August, 2-015, for two
security men, the sum of N139,590.00
claimant’s unpaid leave allowances due to him for three years, 2012, 2013 and
2014 @ N46,530.00 per year, the sum of N569,516.07 being three months’ salary
in lieu of notice, the sum of N170,941.09 amount due to claimant as Volume
& Space for January, March and April, 2015 @ N60,391.41; ; N53,519.82; and
N57,029.86, the sum of N17,000.00 balance of refund of cooperative
contributions due to the claimant on termination of his employment, the sum of
N5,000,000.00 as general damages against the defendant for risks of travelling
to the defendant’s Head Office in Lagos from Calabar, embarrassment and
hardship for failure to pay the claimant’s terminal benefit three years after
termination of employment and wrongful termination of claimant’s employment and
the sum of N1,000,000.00 as cost of this action.
89.
I shall now consider the reliefs being sought
by the claimant.
90.
Reliefs 1, 2 and 3, are for declarations, the law is well settled that
declaratory reliefs are not granted as a matter of course. The claimant must
satisfy the court on balance of probability to be entitled to same. Declaratory
reliefs are not granted even on the admission by the defendant or in default of
defence. Declaratory reliefs are not granted based on the lack of credible
evidence by the defence but on the convincing, satisfactory and credible
evidence by the claimant. He must succeed on the strength of his own case and
not on the weakness of the defence, if any. The grant of a declaratory relief
is discretionary. The party seeking the relief must therefore prove his claims
to the satisfaction of the court. In this instant case, the claimant has the
onus of satisfying the court of his entitlement to the three declarations being
sought as encapsulated in reliefs 1, 2 and 3. See Bello v. Eweka (1981) 1 SC 101; Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Kwajaffa v.
B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) 146; Emenike v.
P.D.P. (2012) 12 NWLR (Pt. 1315) 556;
91.
It is to be noted that the evidence to
support a claim for declaration can be oral or documentary. The implication of
the above is that the court would not make declarations or grant declaratory
reliefs unless such reliefs have been proven by evidence by the party seeking
such relief, regardless of whether or not the party on the other side filed
evidence. Grant of declaratory relief is at the discretion of the court. It is only
granted in circumstances in which the court is of the opinion that the party
seeking it, is, when all facts are taken into consideration, fully entitled to
the exercise of the court’s discretion in his favour. See Alao v. Akano(2005) 11 NWLR (Pt.
935) 160; N.N.P.C. v. Evwori(2007) All FWLR
(Pt. 369) 1343; C.P.C. v. I.N.E.C.
(2011) 18 NWLR (Pt.
1279) 493.
92.
Relief 1, is
seeking for declaration that the claimant was lawfully employed and that his
employment deemed confirmed by the defendant for having failed to terminate the
employment within six months probationary period. The evidence in proof of
relief 1, is that the claimant was employed by the defendant vide exhibit C1, on
probation for 6 months. The six months’ probation expired and the defendant did
not terminate his employment but allowed him to continue to serve the defendant
for two years 10 months. This according to claimant means his employment though
not formerly confirmed, never the less it has been deemed confirmed by the
conduct of the defendant in allowing him to continue to serve and paying him
salary after the expiration of the probation period.
93.
For the defendant the performance of the
claimant during probation period was not satisfactory. It was also stated that
the power of confirmation of claimant’s employment is discretionary and the
defendant has not exercised it, the claimant remained unconfirmed up to date of
termination of his employment as per exhibit C3. The defendant insisted that
there is nothing like deemed confirmation of employment. The defendant heavily
relied on exhibits D1 to D6, to support its view.
94.
The law is trite that the relationship between
an employer and his employee is generally to be found in the service agreement
or letter of employment. See International drilling Co. Nig. Ltd V Ajijola
(1979) 1 ALL NLR 117 @ 130. Indeed, so vital is the service agreement or letter
of employment that in the case of Mr. S. Anaja V UBA Plc(2014)4 ACELR 78 @ 90
-91, the Jos Division of the Court of Appeal in relying on Ajijola’s case
(supra), held that:-
These are the documents open to the court to
look at, in order to resolve the issue of the summary dismissal. It had no
jurisdiction to go outside the documents to determine the complaint.
95.
It is clear from the above dictum that every
contract of employment is regulated and governed by agreed terms and conditions.
Therefore, the duty of the court is to interpret the intentions of the parties
by examining the words used since the words express the intentions of the
parties. See Longe V FBN (20170) 6 NWLR (pt.1189) 1, UBN PLc V Ogboh 1995 2
NWLR Pt.380 647. Exhibit C1 is the letter of employment of the claimant, it
also contains the terms and conditions of service which is binding on the
parties. In exhibit C1 it was clearly stated that claimant’s employment will be
on probation for six months. Thereafter, the appointment will be reviewed
subject to satisfactory performance it will be confirmed.
96.
It is correct that a major rationale for
placing an employee on probation is to ensure that an employee is fit, proper
and competent to discharge the responsibilities for which he is employed. Thus,
once the employer finds out that indeed the employee is not fit as expected, he
would easily be discharged from the contract of employment. That course of
action can only be taken during the probationary period and not after the expiration
of that period. See Kusamotu V Wemabod Estate (1976) 11 SC 279; per Olatawura,
JSC (of blessed memory); Simeon O. Ihezukwu V University of Jos & Ors. (1990)
LPELR-1461.
97.
An employer who neither confirms nor discharges
an employee even after the expiration of the probationary period, but keeps
paying him salaries cannot generally be heard to later discharge such an
employee as not being fit person to be employed. The appellate courts have in
time past activated the doctrine of ‘’deemed confirmation of appointment’’ in
favour of the employee. See OAU V Onabanjo (1991) 5 NWLR (Pt.193) 549. Raji V
OAU (2014) LPELR-22088.
98.
In the case at hand, I have no justification to
depart from the above decisions on deemed confirmation. It is applicable in
this case. The claimant was employed on 6 months’ probation. The period of
probation expired and the defendant retained him allowed him to continue to
serve, this clearly shows by conduct the defendant has confirmed the claimant’s
employment. Therefore, the claimant’s employment with the defendant deemed
confirmed by operation of law as per the cases cited.
99.
The defendant in this case is also estopped
from claiming that the performance of the claimant during probationary period
was not satisfactory, the reason being that the defendant was very much aware
of the none satisfactory performance of the claimant during the period of
probation but decided to retain him and allowed him to continue to serve
unsatisfactorily. The implication of the defendant allowing the claimant to
continue to serve despite being aware of his inadequacies or non-performance
means that the defendant has condoned al the shortcomings of the claimant. The
defendant having condoned the alleged infractions of the claimant, the defendant
is not justified to complain about non-performance because it has power to take
action at the appropriate time but decided to close its eye to the alleged
claimant’s non-performance. Having condoned the inadequacies of the claimant
the defendant must bear the brunt. See Ekunadeyo University of Ibadan (2000) 12
NWLR (Pt.681) 220, ACB V Nbisike (1995) 8 NWLR (Pt.416) 725; Nigeria Army v
Brig. General Maude Aminu Kano 2010
LPELR-2013 SC; 2010 5 NWLR Pt.1188 429; 2010 1 MJSC Pt.1 151;
100.
In view of my finding, the defendant’s
position that the claimant being on probation and having not been confirmed,
his employment can be terminated without following due process or much ado, as
misconceived.
101.
The claimant in insisting that claimant’s
employment cannot be deemed confirmed relied heavily in the case of Seven Up
Bottling Co. V Ajayi (supra). This case seems to be in conflict with the locus
classicus on ‘deemed confirmation’ as espoused by Akanbi JCA, (as he then was of
blessed memory) in the case of OAU V Onabanjo (supra) and Raji V OAU (supra).
In situation of conflict like the one at hand the court is enjoined to be bound
by the latest decision amongst the conflicting decisions. In the case at hand
Raji V OAU (supra) is the latest decision on the issue. In the circumstance
since the latest decision is the one that support and promote doctrine of
‘’deemed employment’ I apply the said doctrine in this case and hold that
claimant employment has been deemed confirmed.
102.
Now, relief 2, is seeking for declaration that
the defendant breached the terms and conditions of employment exhibit C1, in terminating
claimant’s employment without due process i.e. terminating claimant’s
employment without following due process, as the claimant was not given three months’
notice of termination or payment in lieu of notice. The claimant is of the view
that the defendant breached terms and conditions of service exhibit C1, in that
the claimant’s employment was terminated with immediate effect without given any
notice or payment in lieu. The response of the defendant is to the effect that
the claimant’s employment is on probation having not been confirmed the defendant
has the right to terminate it without following any due process or procedure of
giving notice.
103.
It was stated in exhibit C1 that during the
period of probation, either the defendant or the claimant is free to
discontinue with the contract provided under probation period of six months one
moth notice is given by the party wishing to discontinue or payment of one
month salary in lieu of notice. However, on confirmation of the employment
three months’ notice is required to be given or payment of three months’ in
lieu of notice by the party wishing to terminate or end the life of the
agreement.
104.
In the case at hand exhibit C3, the letter of
termination clearly in unambiguous terms stated that the employment of the
claimant is terminated with immediate effect. This clearly goes to show without
any further proof that notice of termination was not given. The letter of
termination exhibit C3 did not also talk about payment in lieu of notice, it
only asked the claimant to contact account department for payment of his
terminal benefit. The claimant employment having been terminated with immediate
effect was wrongful since notice of termination is required as far exhibit C1, whether
the contract is on probation or not. By law parties are bound by whatever
agreement they have entered voluntarily. Having found that the employment of
the claimant was terminated without notice or payment in lieu of notice, the
termination without notice or payment in lieu is wrongful.
105.
The claimant is claiming three months’ salary
as remedy for wrongful termination without notice or payment in lieu of notice.
However, the defendant is of the view that the claimant employment has not been
confirmed the defendant is not bound to follow due process. But, the claimant
insists that his employment has been confirmed as the law deemed it to be
confirmed since the period of probation has elapsed and defendant allowed him
to continued working and earning salaries. Since this court has found that
claimant employment has been deemed confirmed, it cannot be terminated without
appropriate notice of termination or payment in lieu of notice.
106.
Relief 3, is the 3rd declaration being
sought by the claimant, it is on entitlement of the claimant to all his arrears
of salaries, allowances refund of expenses on deliveries and terminal benefits
due to the clamant at the time of termination of his contract of employment on 13/8/2015
and interest on the sums.
107.
In proof of relief 3, the claimant testified
that the defendant withheld 50% of his salaries for 17 months without
communicating to him cogent and justifiable reasons for doing so. In support of
this head of claim the claimant also tendered his bank statements of account to
support his claim of arrears of salaries. See exhibits C5 and C6. The claimant
in support of his claim for refund of money expended in delivery of products
within and outside calabar, tendered in evidence exhibit C7, receipt
purportedly issued to him by transporters.
108.
The defendant on its part insisted that the
claimant caused it huge loss of funds. And the 50% deduction was used to settle
part of the money the clamant cause the defendant to lose. On refund of money
for deliveries the defendant raise suspicion to the authenticity of the
supporting receipts. The defendant also cited the refusal to submit the said
claim as and when due as per the defendant’s policy as hindering honouring of
the claim.
109.
The law is also well grounded that an employee
whose employment has been terminated or dismissed from service is entitled to
make claims for earned entitlements. An employee who alleged wrongful
termination can claim arrears of unpaid salaries or any other earned
entitlement prior to termination or dismissal. See Udegbunam V FCDA 2003 10
NWLR Pt.829 487.
110.
Therefore, the claimant is free to claim
refund for deductions from his salary or any other entitlement. However, for
the claim to succeed the claimant must adduce cogent credible evidence in
proof. This means he must discharge the onus of prof as required by sections
131, 132, 133 and 134 of the Evidence Act.
111.
On deductions from salary, the claimant is claiming
the sum of N1,613,630.70 (One Million Six Hundred and Thirteen Thousand six
hundred and Thirty Naira, Seventy Kobo) being 50% withheld monthly salaries for
seventeen months’ from November, 2013 to March, 2015.
112.
It is to be noted by law claim for arrears of
salary is a claim for special damages which required to be specially pleaded,
particularized and strictly proved by cogent and compelling evidence to the
satisfaction of the court. See NNPC
v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(C.A).
113.
The evidence adduced by the claimant in proof
of his claim for 50% deduction of his salary are exhibits C4, C5, and C6.
Exhibit C4 is pay slip for May, 2015, exhibit C5 is Union Bank statement of
account and exhibit C6 is First Bank of Nigeria statement of account. What
these exhibits shows is that the claimant’s salary for each month is paid into
two accounts i/e/ Union Bank and First Bank of Nigeria Plc.
114.
In the two statements of accounts there are indications
that salaries were paid for November, 2013 to March, 2015. However, the payments
were not the same they differ some months same amount were paid and in some other
months different amounts were paid. For instance in the Month of November, 2013
the sum of N25,295.02 was paid as salary for the said month as per First Bank
statement of account. For the corresponding period the sum of N52,800.55 was
paid as salary for November, 2013 as per Union Bank Statement of account.
115.
For the month of March, 2015 as per exhibit C6
First Bank Statement of account the sum of N17,708.33 was paid as salary for
March, 2015. For the corresponding period in exhibit C5 Union Bank Statement of
Account the sum of N 58,930.62 was paid as salary for March, 2015.
116.
I have calculated the amount paid to the
claimant as salary in exhibits C5 and C6 from November, 2013 to March, 2015,
the total amount paid to the claimant as salaries for the 17 months amount to
the sum of N1,330,968. Therefore, the sum of N1,613,630.70 (One Million Six
Hundred and Thirteen Thousand six hundred and Thirty Naira, Seventy Kobo) being
claimed by the claimant as 50% withheld monthly salaries for seventeen months’
from November, 2013 to March, 2015, cannot be correct since what was paid to
the claimant as per exhibits C5 and C6 did not tally with the amount the
claimant is claiming as 50% deductions from his salaries.
117.
From exhibit C4 the claimant’s monthly salary,
which is his take home pay is his net salary which is the sum of N153,277.92, 50%
of this amount will the sum of N76,538,96 and if this amount is multiplied by
17, the claimant’s 50% salary for 17 months will amount to the sum of
N1,302,862.32. This also goes to show that claimant’s claim is not 50% of his
salary for 17 months. This is because both the actual salary paid to him as per
exhibits C5 and C6 for 17 months is not the same with what is he is claiming as
his 50% salary for the period of claim. Vide exhibit 4 pay slip for May, 2015
the salary if calculated could not be the same with what the claimant is
claiming.
118.
In view of the foregoing, though the claimant
is entitled to claim money deducted from
his salary he has failed to convince the court of the actual sums he is
entitled to as the exhibits tendered to support are contradictory they could
not support the claim.
119.
I shall now consider relief 5, which is claim
for the sum of N2,404,600.00 (Two Million Four Hundred and Four Thousand Six
Hundred Naira) being refund of money
allegedly expended in delivery of products within and outside Calabar. The
defendant vehemently opposed this claim and questioned the authenticity of the
receipts tendered to support the claim. The defendant also stated that claimant
was provided with delivery van and a driver attached to him for delivery of
products.
120.
Exhibit C7 tendered by the claimant to support
the claim for refund of money expended by him in delivery of claimant’s
products contained receipts purportedly issued by the transporters used in
conveying the items to the destinations they were meant for. It is clear that
the receipts are from three different transporters that rendered the purported services
paid by the claimant. It is also clear from the receipts that the claims were
from 2012 to 2014, which means the claims were for about three years. The memo
asking for the refund is dated 10/8/2015. As pointed out earlier the defendant
denied the claim of the claimant and even doubt the authenticity of the
receipt. With the doubt expressed by the defendant on authenticity of the
receipt, the claimant ought to have called the officials of the transport
company to testify on the genuiness of the receipt.
121.
I do not believe the claimant expended the
money he claimed to have spent on delivery from 2012 to 2014 and kept quite
without demand for refund until August, 2015 the month his employment was
terminated. What baffles me is the memo and receipt were all originals, meaning
the claimant never submitted them to the defendant. This is confirmed as there
is no sign on the memo to indicate that it was submitted to the defendant and
it was received. Another indication of falsity of this claim is that none of
the receipts tendered contained name of the issuer of the receipt and there is
no address of the office or place of business of the issuer to make
verification easier in case of dispute. If the claimant’s claim is genuine how
comes the claimant whose appointment was terminated decided to keeps these
document with him without submitting to the defendant for settlement. All I can
see from these documents claim is that the claim is an afterthought not a
genuine claim as the defendant stated in its pleading and evidence before the
court. There was also no evidence of the customers to which deliveries were
made by the purported transporters.
122.
My position on the fallacy of the claim for
refund of funds expended allegedly expended by the claimant on delivery of
products finds support in exhibit C8 tendered by the claimant himself. In the exhibit
which is an email emanating from the claimant the attachment to it goes to
contradict the pleading and evidence of the claimant to the effect that no
vehicle or delivery van was attached or provided to him by the defendant. In
exhibit C8, the claimant has acknowledged that there is delivery van at Calabar
depot but it is faulty. The admission of the claimant of existence and
availability of faulty delivery van goes contrary to his outright denial of
having any delivery van in his pleadings and witness statements on oath. In the
circumstances, this head of claim fails same is hereby discountenanced.
123.
Relief 6 is for the sum of N44,000.00 (Forty
Four Thousand Naira) for the month of August, 2015 for two security men
(Babangida Usman and Cyril Ofoma) at N22,000.00 each paid by the claimant. The
defendant denied this claim. The claimant has in an attempt to prove this claim
tendered in evidence exhibits C10 and C11. Exhibit C10 is an email from the
claimant requesting approval to engage four security men. The names of the
security men to be engaged as requested in exhibit C10 were given as; Effiong
Okpo, Ita Okon, Christopher Udom, and Bawa Nemi. However, there is no indication
that approval has been given to the claimant to engage these four security men
which he proposed to engage. Therefore, exhibit C10 has no relevance to his
claim it has no any evidential value to prove his claim of N44,000.00 allegedly
paid to two security men. Furthermore, exhibit C11 which First Bank teller which
claimant tendered in evidence as proof of payment to security men shows that
what was paid was the sum of N21,500.00 and not N44,000.00 which the claimant
is claiming. This piece of evidence is incapable of establishing claim of
N44,000.00 by the claimant. To make matters worse in respect of claim of
payment of salary to security men none of the security men, to whom payment was
made by the claimant was called to testify. The relief of N44,000.00 failed
same is hereby refused.
124.
Relief 7, is for the sum of N139,590.00 (One
Hundred and Thirty Nine Thousand Five Hundred and Ninety Naira) being the
claimant’s unpaid leave allowance due to claimant for three years 2012, 2013
and 2014 @ N46,530.00 per year. The response of the defendant to this claim for
leave allowance is that the claimant’s employment was never confirmed to make
him entitled to leave allowance. However, a careful perusal of exhibit C1, will
show that payment of leave allowance is part and parcel of the conditions of
service. The letter of employment exhibit C1 is explicit on leave allowance.
The claimant having been found to have served for three years is entitled to
his leave allowances for the period he served the defendant. From exhibit C1,
the claimant is entitled to the sum of N46,530.00 (Forty Six Thousand Five
Hundred and Thirty Naira), for each year of service for three years this amount
multiplied by three will give us a total sum of N139,590.00 for the three years
the claimant served. This means relief 7 succeed same is hereby granted.
125.
Relief 8, is for the sum of N569,516.07 (Five
Hundred and Sixty Nine Thousand Five Hundred and Sixteen Naira) Seven Kobo
being three months’ salary in lieu of notice. In reaction to claim for three
months’ salary in lieu of notice, the defendant stated that the claimant is not
entitled to the claim because his employment was not confirmed but on
probation. The issue of whether claimant’s employment has been confirmed or
still on probation has been laid to rest with the finding that the doctrine of
deemed confirmation Applies to this case. Therefore, claimant employment is
deemed confirmed. This means for any termination of claimant’s employment to be
valid three months’ notice is required or payment in lieu. The claimant’s
employment termination vide exhibit C3 was with immediate effect meaning without
notice consequently it is wrongful. Therefore, the claimant is entitled to
payment of three months’ salary in lieu of notice of termination. The amount
payable as salary in lieu of notice is basic salary and not gross salary.
126.
From exhibit C1 the annual basic salary of the
claimant is the sum of N310,200.00 if this amount is divided by 12 the basic
salary of the claimant per month will be the sum of N25,850.00, which was confirmed
under cross examination. If this amount s multiplied by three the claimant’s
three months basic salary will be the sum of N77,550.00.
127.
The claimant is vide relief 9 claiming the sum
of N179,941.09, which he claimed to be entitled as Volume & Space for month
of January, March and April 2015. The claimant in support of this head of claim
tendered exhibit C9, which he claimed was an email from the defendant. I have
had a hard look at exhibit C9 it is clear the electronic mail was from the
claimant himself as evidence on the face of exhibit C9, the mail was never from
the defendant as there is nothing to show it was from the defendant.
128.
Secondly, if it is an entitlement there must
be an instrument authorising or granting such entitlement. I have thoroughly examined
exhibit C1 the terms and conditions of the claimant’s service there is nothing
there in granting any entitlement called space and volume. The claimant has
woefully failed to prove entitlement to this head of claim same is hereby
refused.
129.
Relief 10 is for the sum of N17,000.00 being
balance of the refund of cooperative contribution due to the claimant on
termination of his contract. The defendant has join issue with the claimant on
this claim. It is the defence of the defendant that cooperative society is an
entity different from the defendant and the defendant is not one and same with
it. This claim is in respect of contribution claimant made while in service.
There is nothing before the court to show to whom the contribution was made,
how much was contributed how much was refunded for the court to be able to
ascertain if there is still any balance of N17,000.00 yet to be refunded to the
claimant. The claimant has also not made the cooperative society a party to
this suit. The defendant is not a proper party to be sued in respect of claim
on contribution to cooperative society. This claim fails same is refused.
130.
Vide relief 11 the claimant is claiming the
sum of N5,000,000.00 as general damages for risk in travelling from Calabar to
Lagos. In employment matter damages payable to employee in respect of wrongful
termination is the amount due for the period of notice this court having
granted to the claimant three months’ salary in lieu of notice cannot grant
general damages to do so will amount to double compensation.
131.
Even if this court can lawfully grant general
damages there is no evidence before the court to establish such entitlement. If
it true claimant has travelled to Lagos he has not told the court how he travelled,
means of transportation and actual cost expended for the trip.
132.
The 12th relief is on cost the law
is trite cost is at the discretion of the court.
133.
From all I have been saying above the claimant
has partially succeeded in establishing entitlements to some of the reliefs
being sought. Consequently it is hereby ordered as follows:-
a.
A declaration is hereby granted that the
clamant was lawfully employed by the defendant and his contract of employment
deemed confirmed by the defendant having failed to terminate same within six
month probationary period.
b.
A declaration is hereby granted that the
defendant breached the terms and conditions of service exhibit C1 for having
terminated the claimant’s employment vide exhibit C3 without notice or payment
in lieu of notice of termination.
c.
The claimant is entitled to be paid by the defendant
the sum of N139,590.00 unpaid leave allowances for three years. The defendant
is hereby ordered to pay the said sum to the claimant.
d.
The claimant is entitled to be paid three
months’ salary in lieu of notice in the sum of N77,550.00. The defendant is
hereby ordered to pay to the claimant the said sums accordingly.
DECISION ON
COUNTER CLAIM
134.
I now turn to issue two which is on counter
claim.
Whether considering the peculiar facts of this
case, the Defendant/Counter-claimant is not entitled to her Counter-claim?
135.
In the counter claim the defendant counter
claimant is praying for grant of five reliefs they have been reproduced in the
earlier part of this judgment they need not to be reproduced here again.
136.
The law is trite that a counter claim is a
separate and independent suit of its own. Therefore, just as the Claimant has
the burden of proving his case to be entitled to a grant of same, the
Defendant/Counter claimant also must adduce sufficient, cogent and credible
admissible evidence in support of its counter claim. See UAC (Nigeria) Plc. v.
Eunice Akinyele (2012) LPELR-8015 (CA).
137.
A counter claim by law is an independent claim
is different from the main claim. The defendant counter claimant is equally
required to establish counter claim by adducing relevant evidence in proof the
reliefs.
138.
The main claim of the defendant counter
claimant is for the sum of N694,416.45, being outstanding balance of the total
sum of N1,717,599.60 he caused the counter claimant to lose. This claim being
monetary in nature is in the specie of claim for special damages obligating the
counter claimant to specially plead it, particularise and strictly proved it
with cogent compelling admissible evidence.
139.
It is surprising the defendant counter
claimant has not adduced any cogent credible evidence in proof of this claim.
The defendant counter claimant stated that the claimant made supplied but
unable to recover the money for the sales made thereby making the defendant
counter claimant to make huge loss.
140.
There is no evidence showing the products
supplied to the claimant which he sold and refused to make remittances back to
the defendant. This court has also not
been told the quantity of the products given to the claimant defendant to
counter claim. It has also not been shown by evidence the value of the products
given to the claimant defendant to counter claim to sales. There is also no
evidence as to the sales made by the claimant to which he caused the defendant
to make huge loss.
141.
Though the claimant has admitted
non-remittance to the defendant/counter claimant there is no evidence as to the
stock supplied to the claimant which he sold. There is also no evidence to ascertain
the actual sales made or actual loss incurred by the defendant counter
claimant.
142.
The absence of evidence of products supplied
to the claimant to which no remittance of sales was made is very vital to proof
of this claim.
143.
Exhibits D2, D3, D4, D5 and D6 tendered in
evidence by the defendant are not capable of proving the counter claim. There
are a lot of uncertainty surrounding these exhibits. The defendant counter
claimant has woefully failed to prove the counter claim to be entitled to its
grant. Same is hereby dismissed for lacking in merit.
144.
From the foregoing, and reasons given in this judgment,
I have come to the conclusion that the claimant only succeed in parts. On
monetary claim only in terms of leave allowances and payment in lieu of notice.
While the defendant counter claimant in this suit has woefully failed to prove
its counter claim. There is no merit in the counter claims as it was clumsily
presented.
145.
All the monetary claims granted in favour of
the claimant shall be settled within 21 days from the date of this judgment
failing which interest of 10% per annum shall apply.
146.
I make no order as to cost. Parties to bear
their respective costs.
147.
Judgment is hereby entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
Oliver A. Osang, Esq; for the claimant
Enome J. Amartey, Esq; for the defendant, with Ekokan, Esq;