MS BINTA OLUWATOSIN ADEJOH -VS- ARIK AIR LIMITED [IN RECEIVERSHIP- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 21st January 2025 SUIT NO. NICN/LA/290/2020

BETWEEN

MS BINTA OLUWATOSIN ADEJOH … CLAIMANT

AND

ARIK AIR LIMITED [IN RECEIVERSHIP] … DEFENDANT

JUDGMENT

1. The Claimant commenced this suit on 21st August 2020 and sought the following reliefs:

a. A declaration by this Honourable Court that by the Leave of Absence Form dated 3/01/19 which was approved by the Defendant through its three [3] principal officers i.e. the Claimant’s Supervisor, the Head of the Claimant’s Department and the Human Resources Manager, which the approval contained in the aforesaid Leave of Absence Form governed the Claimant’s leave of absence, the Claimant’s employment with the Defendant still subsists.

b. An order of this Honourable Court directing the Defendant to pay the Claimant’s salary and other emoluments which were unjustly withheld from the Claimant before and/or after the approval of the Claimant’s application for leave of absence, the annual gross income being N1,824,000.00 [one million, eight hundred and twenty four thousand naira] per annum from 01/01/2019, including but not limited to the sum of N388,783.96 [three hundred and eighty-eight thousand, seven hundred and eighty-three naira and ninety-six kobo] being the difference of the irregular remittance by the Defendant to the Claimant’s Pension Account with Number PEN200692325117 maintained with Leadway Pensure PFA Limited from December 2014 till date with interest at the rate of 27% per annum till judgment is delivered and thereafter at the rate of 10% per annum until the entire sum is liquidated.

c. A declaration by this Honourable Court that by virtue of the letter of appointment dated 12/11/13, the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure must be credited with 15% [inclusive of the Defendant’s contribution] of the Claimant’s basic salary, housing allowance and transport allowance from 12/11/13 till date.

d. A declaration by this Honourable Court that the sum of N412,754.54 [four hundred and twelve thousand, seven hundred and fifty-four naira and fifty-four kobo] paid into the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure Limited is grossly inadequate of the pension contribution earned by the Claimant from 12/11/13 till date.

e. An order of this Honourable Court directing the Defendant to pay the sum of N388,783.96 [three hundred and eighty-eight thousand, seven hundred and eighty-three naira and ninety-six kobo] representing the deficit of the remittance by the Defendant to the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure PFA Limited.

f. A declaration by this Honourable Court that the act of the Defendant refusing or failing to credit the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure Limited accurately and appropriately is oppressive, wrongful and a violation of the Claimant’s right as protected and preserved by the Pension Reforms Act.

g. Damages in the sum of N5,000,000.00 [five million naira] for failure of the Defendant to pay the adequate and appropriate pension earned by the Claimant to the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure Limited.

h. An order of this Honourable Court directing the Defendant to restore all the paraphernalia of office such as the Operation Post, Identity Card, Uniform, Official phone, HMO card, etc., to the Claimant to enable her perform and carry out her duties.

i. An order of this Honourable Court directing the Defendant to pay the Claimant’s accrued medical benefits for the period 28th December 2018 till date which she was assured under the terms and conditions of her employment or in the alternative [where no particular amount is stated] to pay the Claimant the sum of N1,800,000.00 [one million and eight hundred thousand naira] as her medical bill for the period stated.

j. A declaration that the act of the Defendant of keeping the Claimant’s employment in abeyance is in breach of her right to dignity of human person as enshrined in Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 [as amended].

k. An order of this Honourable Court directing the Defendant to pay the sum of N5,000,000.00 [five million naira] to the Claimant for infringement on the Claimant’s right to dignity of human person, and for the psychological trauma caused the Claimant, a nursing mother.

l. An order of this Honourable Court directing the Defendant to pay the sum of N10, 000,000.00 [ten million naira] to the Claimant as damages for breach of the Claimant’s terms and conditions of employment, violation of the Labour Act, misrepresentation of facts and for loss of use of the Claimant’s outstanding remunerations and benefits.

Alternatively, to reliefs [a], [h], [i], and [j]

m. A declaration that the Defendant’s letter dated 7/01/19 amounts to a wrongful termination of the Claimant’s employment.

n. Damages in the sum of N30,000,000.00 [thirty million naira] for wrongful termination of the Claimant’s employment by the Defendant.

and

o. Cost of this suit in the sum of N650,000.00 [six hundred and fifty thousand naira] only.

p. Interest of 15% per annum on the total judgment sums from 01/01/2019 until liquidation of the entire sum by the Defendant.

2. The Defendant entered an appearance and filed a statement of defence, accompanying processes, and a motion on notice to regularize the processes on 15th September 2020 to which the Claimant replied on 2nd November 2020. The defence processes were deemed properly filed and served on 27th January 2021. The trial commenced and was concluded on 23rd February 2022. The Claimant’s two witnesses testified in support of her claims and were cross-examined. The Claimant was re-examined. The Defendant’s witness and Human Resources Manager, Mr. Peter Ogunsanmi, testified and was cross-examined and re-examined. Parties exchanged the final written addresses which their counsel adopted on 5th December 2024 and the matter was set down for judgment.

Brief facts of the case

3. The facts as stated by the Claimant are that the Claimant was Defendant’s employee. She applied for and was granted a leave of absence on health grounds. By letter dated 7th January 2019, the Defendant informed the Claimant that she would not be entitled to any benefits during the period and directed her to return the Defendant’s properties in her possession. However, due to her health challenge, she could not protest the letter but complied with the directive and returned all Defendant’s properties in her custody. While the Claimant’s salary ceased effective January 2019, the Defendant also notified her HMO that her policy had been terminated despite her medical condition. The Claimant’s appointment was kept in abeyance without any salary payment to date. According to the Claimant, she is entitled to 7.5% of her basic salary, housing and transport allowances, and 7.5% contribution by the Defendant as pension. Despite deductions from her salary for pensions from December 2014 to December 2018, the Defendant only remitted N412,754.54 to the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure PFA Limited. The Claimant resumed after the expiration of the leave of absence and observed that her desk was occupied. When she inquired, the Defendant informed her that she would be contacted when there is a vacancy. Prompted by the Defendant’s refusal to re-absorb her, the Claimant sent an email to the Defendant’s Receiver/Manager on 23rd January 2020 which was not responded to and the Defendant did not resolve the issue, hence this suit. The Defendant joined issues with the Claimant and urged the Court to dismiss the suit.

Summary of final written addresses

4. Learned counsel for the Defendant raised one issue for determination in the final written address dated 31st March 2022 but filed on 5th April 2022:

Whether the Claimant has been able to discharge the burden of proof as would entitle her to the reliefs claimed in the General Form of Complaint and Statement of Facts.

Before arguing the issue, learned counsel submitted that only the receiver/manager can sue or be sued in respect of a company in receivership. Consequently, counsel contended that the proper party is not before the Court rendering the suit improperly constituted and liable to be struck out. The cases of Dagazau v. Bokir International Ltd [2011] 14 NWLR [Pt 1267] 261 and Intercontractors Nigeria Ltd v. UAC [1988] 2 NWLR [Pt 76] 303 were cited in support.

5. Canvassing the sole issue, learned counsel referred to Exhibits 5 and 9, and argued that the terms of the Claimant’s employment contract stipulated in Exhibit 9 were modified by Exhibit 5, and having accepted Exhibit 5 without questions, the Claimant cannot now complain. It was contended that Exhibit 9 did not provide for leave of absence which is regulated by Exhibit 5 and binding on the parties. Reliance was placed on BFI Group Corp v. BPE [2012] 18 NWLR [Pt 1332] 209 among others. Counsel also argued that in determining the Claimant’s right to payment of any benefits, recourse must be had to Exhibits 9 and 5 resting on Osakwe v. FCE Asaba [2010] 10 NWLR [Pt 1323] 387. Counsel submits that in so far as the burden of proof rests on the Claimant, she should rely on the strength of her case not on the weakness of the defence, calling in aid the case of Akande v. Adisa [2012] 15 NWLR [Pt 1324] 538. Counsel also submits that under current Nigerian law on termination of private employment, the employer must strictly comply with the termination procedure provided in the contract of employment and provide a valid and justifiable reason for the termination. Continuing, counsel noted that this Court has the power under Section 254C[1][f] and [h] of the 1999 Constitution and Section 7[6] of the National Industrial Court Act, 2006 to apply international best practices in labour, employment, and industrial relations, and in doing so the Court has adopted the principles enshrined in article 4 of the ILO Convention No. 158 of 1982 as the applicable international best practice on termination of employment. Flowing from this, counsel argued that by Exhibit 5 the Claimant knew that due to the Defendant’s operational requirements, she may not return to her position after her leave of absence. Counsel submits that damages are awarded for breach of contract, and argues that the Claimant has not adduced any credible evidence of the Defendant’s breach of the employment contract since the appointment of the receiver. It was also submitted that Section 11[8] of the Labour Act provides statutory approval to Exhibit 5 which stipulates that the Claimant would not be entitled to any benefits during her leave of absence, rendering the claim for N30,000,000 damages for wrongful dismissal untenable. The Court was urged to dismiss the reliefs for terminal benefits since they are not cognizable under the employment contract or applicable international labour practices. On the Claimant’s claim for pension, learned counsel summarised the evidence of the Defendant’s witness, referred to Exhibits D1 and d2, and argued that the evidence remains unchallenged. The Court was urged to accept the evidence as true and refuse the claim. The case of Din v. African Newspaper Ltd [1990] 3 NWLR [139] 392 was cited in support. Relying on Section 393[1] and [2] of the Companies and Allied Matters Act, 2004, and Section 48 of AMCOM Act, 2010, counsel argued that the receiver/manager has to realise the assets of the Defendant and use the proceeds to pay the secured creditors. Counsel also argued that under the Pension Reform Act 2014, an unpaid pension contribution is a debt owed to the employee by the employer which is an unsecured debt, and in the event of insufficient assets to meet the claims of unsecured creditors, the secured creditors will take priority over the unsecured creditors like the Claimant. Counsel urged the Court to dismiss the Claimant’s case for lack of proof.

6. Learned counsel for the Claimant also donated one issue for determination in the final written address dated and filed on 5th May 2022:

Whether the Claimant is entitled to the reliefs sought against the Defendant via the General Form of Complaint and the Statement of Facts both dated 21st August 2020.

Responding to the preliminary issue raised by the Defendant, learned counsel referred to Section 556[3] of the Companies and Allied Matters Act, 2020 which is impari materia with Section 393[3] of the Companies and Allied Matters Act, 2004, paragraph 5, 11th Schedule of the Act, and submits that the appointment of a receiver did not rob the Defendant of its corporate personality noting that the proper parties are before the Court. It was argued that the onus lies on the party who asserts a fact to prove it resting on Section 131 of the Evidence Act, 2011. Counsel submits that where a party who, supposedly should be joined to a suit fails to join and stands by, he cannot complain of non-joinder, calling in aid the case of Azubuike v. PDP [2014] 7 NWLR [Pt 1406] 292 at 319. It was also argued that by Section 556[3] of the Companies and Allied Matters Act, 2020, the receiver is required to maintain an action in the name of a company under receivership and not in his name. The Court was urged to hold so. Relying on Section 556[1] of the Companies and Allied Matters Act, 2020, counsel argued that the receiver’s power is subject to prior encumbrances which include the Claimant’s contractual rights. The Court was urged to hold that the Claimant’s claims fall within the definition of prior encumbrances and are not subject to the appointment and powers of the receiver. The Court was also urged to shun all technicalities and determine the Claimant’s case. It was also submitted that Exhibits D1 and D1A being public documents did not meet the criteria for admissibility and should be rejected and so marked. Reliance was placed on Sections 87[a], 89[e], 102 and 104 of the Evidence Act, 2011 and the cases of Aregbe v. Oyinlola [2009] 14 NWLR [Pt 1162] 429 at 472 and Kayili v. Yilbuk [2015] 7 NWLR [Pt 1457] 26 at 68.

7. Arguing the issue, learned counsel referred to Sections 131 and 133 of the Evidence Act, 2011, and the cases of Okoye v. Nwakwo [2003] FWLR 156 at 992 and Chevron [Nig] Ltd v. Omoregha [2015] 16 NWLR [Pt 1485] 336 and submitted that the onus placed on a party seeking judgment is to show the existence of facts supporting the reliefs. Counsel contended that the Claimant had placed sufficient materials before the Court to entitle her to judgment. On the claim for salary and benefits, learned counsel referred to Exhibit 9 and argued that there being no justification for withholding the Claimant’s salary, the Defendant is liable to pay the Claimant N1,824,000.00 from 2019 to date. It was also argued that Exhibit 5 did not comply with the termination clause in Exhibit 9 rendering the termination wrongful. Counsel argued further that by the combined provisions of Sections 9[2], [7], 11[1], [2][d], 54[1], [2], and [4] of the Labour Act the Claimant, having been in the Defendant’s employment for more than five years and was granted leave of absence via Exhibit 4, the Defendant could not terminate the Claimant’s employment as it purported to do by Exhibit 5. Counsel submits that to terminate the Claimant’s employment properly, the Defendant must give proper notice in line with Exhibit 9 or Sections 11 and 54 of the Labour Act, otherwise, the termination is invalid and wrongful. The unreported case of Bello Ibrahim v. Eco Bank Plc, delivered on 17th December 2019 was cited in support. Therefore, it was argued that the Defendant’s assertion that the Claimant’s employment was terminated by Exhibit 5 holds no water since it violates the governing statute. The Court was urged to hold in the alternative that Exhibit 5 occasioned a wrongful termination of the Claimant’s employment.

8. Continuing, counsel referred to Exhibit 9 on annual and maternity leave, and argued that the Claimant was entitled to leave benefits and paid maternity leave at a “normal basic rate of payment”. Counsel contended that the Defendant’s argument that Exhibit 9 did not provide for leave of absence is incorrect since the Defendant designed Exhibit 4 which both parties executed, and the nomenclature used cannot change the fact that what the Claimant needed and sought from the Defendant was maternity leave going by Exhibits 1 to 3. Counsel argued that Exhibit 4, not Exhibit 5, can be regarded as varying Exhibit 9 given that Exhibit 5 is a unilateral act of the Defendant. Relying on Sections 9[2] and 54[1][c] of the Labour Act, counsel argued that the Claimant was entitled to her normal pay during her maternity leave, and urged the Court to hold so. Counsel also argued that the Claimant was entitled to nursing mother leave, but argued that if the Defendant intended to limit the maternity and nursing mother leave to 12 weeks, it still had the obligation to pay the Claimant for 12 weeks. Learned counsel submitted that the Defendant breached its commitment to the Claimant by withdrawing her medical benefits after issuing Exhibit 5, and should pay damages to the Claimant. The Court was urged to hold that the Claimant is entitled to salaries and benefits as claimed. On pension contribution claims, counsel referred to Exhibit 9 and submitted that given that the Defendant admitted non-remittance of the Claimant’s pension contributions and facts admitted require no further proof, the Claimant is entitled to all her pension claims. The Court was urged to hold so.

9. On the claims for infringement or unlawful termination, hardship, and misrepresentation, counsel argued that Exhibit 9 provides for maternity leave and other benefits, but there is no provision for an indefinite waiting without salary upon resumption from leave as couched in Exhibit 5. Therefore, learned counsel submits that by keeping the Claimant’s employment in abeyance up till 23 January 2020, the Defendant violated Exhibit 9, breached the Claimant’s right to dignity of her person enshrined in Section 34 of the 1999 Constitution and Sections 9, 11 and 54 of the Labour Act entitling the Claimant to damages as claimed. Learned counsel referred to Exhibits 6, 7, 8, 17, and 18, and submitted that the Defendant’s prevarication on the Claimant’s resumption for several months amounted to psychological torture and degrading treatment of the Claimant entitling her to damages. The case of Rhodes & Anor v. IGP & Ors [2018] LPELR-44118[CA] was cited in support. Counsel contended that Exhibit 9 did not require the Claimant to return the paraphernalia of her office while on leave or that the leave would be without pay as Exhibit 5 stipulated, and further argued that the abandonment of the Claimant in her hour of need was unconscionable, and urged the Court to hold so. Learned counsel submits that Exhibit 5 which purports to disengage the Claimant runs afoul of Exhibit 9 and offends Sections 11 and 54 of the Labour Act. Relying on Dilly v. IGP & Ors [2016] LPELR-41452[CA] and Iwununne v. Egbuchulem & Ors [2016] LPELR-40515[CA], counsel urged the Court to hold that the Claimant is entitled to damages and resolve the issue in the Claimant’s favour. In conclusion, learned counsel submits that the Claimant has proved her claims and is entitled to judgment.

10. Arguing the reply on points of law dated 2nd June 2022 but filed on 8th June 2022, learned counsel for the Defendant submits that in so far as the receiver/manager was not joined as a party, the suit is not properly constituted. On Exhibits D1 and D1A, counsel concedes that as a purely technical matter of law, the documents are inadmissible, but argued that this Court is empowered by Section 12[2][b] of the National Industrial Act, 2006, to depart from the Evidence Act in the interest of justice. It was also argued that this Court is obliged by Section 122[2][e] of the Evidence Act, 2011 to take judicial notice of the seals of the Courts of Nigeria, and there is no suggestion that the documents are not what they purport to be. The Court was urged to accord the documents appropriate probative value. On the claim for payment of remuneration and benefits, counsel submits, on the authority of Olatubosun v. NISER [1988] 1 NSCC Vol. 19, Pt 1, page 1025 at 1047, that an employee whose contract has been unlawfully terminated cannot claim damages for wages for services not rendered, but adds that the Claimant would only be entitled to one month’s salary in lieu assuming without conceding that her employment was wrongfully terminated. Counsel contended that Section 54 of the Labour Act relates to a pregnant employee who is likely to be admitted to a medical facility to deliver her baby, but argued that the provision only allows her to be absent from work for six weeks before her due date and six weeks after her confinement. It was also argued that if the Claimant was not disengaged, she would only be entitled to 50% of her salary for 12 weeks, but the Defendant had no obligation to pay her medical expenses relying on Section 54[3] of the Labour Act. On the claim for maternity leave, counsel submitted that there is no basis for the Claimant’s submission since variation was not pleaded or proved. Learned counsel reiterated his submission on Exhibit 5 and noted that the period of paid maternity leave is 12 weeks after the birth of the child. Relying on Section 54[3] of the Labour Act, learned counsel urged the Court to discountenance the Claimant’s submissions on the claim for infringement, unlawful termination, hardship, and misrepresentation as being baseless. It was submitted that the Claimant had a duty to mitigate her damage calling in aid the case of Osisanya v. Afribank Nig Plc [2007] 6 NWLR [Pt 1031] 565 at 578-579. In conclusion, counsel urged the Court to dismiss the claims especially the declaratory reliefs which are contingent on the master-servant relationship resting on Odiase v. Auchi Polytechnic [1994] 4 NWLR [Pt 546] 477 at 492.

Preliminary issues

Admissibility of Exhibits D1 and D1A

11. It was argued for the Claimant that Exhibits D1 and D1A being uncertified secondary evidence of public documents are inadmissible and should be rejected and so marked. The Defendant argued in paragraphs 2.2 and 2.3 of the reply address that given that the processes have the seal of this Court, the Court is bound to take judicial notice of the documents and accord them probative value or depart from the rules of evidence in the interest of justice per Section 12[2][b] of the National Industrial Court Act, 2006 and admit them. I have reviewed Exhibits D1 and D1A, and the submissions by the parties. Indisputably, Exhibits D1 and D1A are public documents by Section 102[a][iii] of the Evidence Act, 2011. Based on Sections 89[e] and 90[1][c] of the Evidence Act, 2011, only a certified true copy of the documents is admissible as secondary evidence. See Shell Petroleum Development Company of Nigeria Limited v. Nwolu [1991] 3 NWLR [Pt 180] 496 at 505 and Gbadamasi & Ors v. Julius Berger [Nig.] Ltd & Anor [2021] 5 NWLR [Pt 1770] 419 at 451 – 452. Section 104 of the Evidence Act, 2011 provides for certification of public documents. Exhibits D1 and D1A are photocopies of Court processes emanating from this Court and are uncertified. Therefore, they are ordinarily inadmissible. However, the Defendant urged the Court to take judicial notice of the documents since they bear the seal of the Court relying on Section 122[2][e] of the Evidence Act, 2011. By Section 122[1] of the Evidence Act, 2011, no fact which the Court should take judicial notice of under the section needs to be proved. In any event, Exhibits D1 and D1A bear the stamp not the seal of the Court. Consequently, they do not come within the matters that this Court is required to take judicial notice of. Despite this, I have looked at the pleadings of the parties, particularly paragraph 6[v] of the statement of defence and paragraphs 3 and 8 of the reply to the statement of defence, and observe that the parties did not join issues on the fact of the suit rendering proof unnecessary. Nonetheless, as rightly argued by the Defendant, the Court can, in deserving circumstances, depart from the Evidence Act. I am of the respectful view and I hold so, that this is an appropriate case to exercise that discretion. Accordingly, I depart from the provisions of Sections 89[e] and 90[1][c] of the Evidence Act, 2011, and hold that Exhibits D1 and D1A were properly admitted in evidence. Therefore, the objection is overruled.

Non-joinder of the Receiver/Manager

12. It was argued for the Defendant that the non-joinder of the receiver/manager renders the suit improperly constituted and liable to be struck out. For the Claimant, it was argued that the appointment of a receiver did not rob the Defendant of its corporate personality. Based on Section 556[3] of the Companies and Allied Matters Act, 2020, and paragraph 5 of the Eleventh Schedule to the Act, the receiver is required to maintain an action in the name of a company under receivership and not in his name. It was also argued that if the presence of the receiver was material, the receiver should have joined and not stood by while the suit was litigated. The law appears settled that a company in receivership still retains its legal personality and can be sued in its name in appropriate cases. The combined effect of Section 556[3] of the Companies and Allied Matters Act, 2020 and paragraph 5 of the Eleventh Schedule to the Act is that a receiver/manager of the whole or substantially the whole of the company’s property possesses the power to bring or defend any action or other legal proceedings in the name and on behalf of the company. In Intercontractors Nigeria Ltd v. National Provident Fund Management Board [1988] 2 NWLR [Pt 76] 280 at 293, 294, the Supreme Court laid the controversy to rest. Hon. Justice Karibi-Whyte, JSC [of blessed memory], who delivered the lead judgment held:

The important fact to be borne in mind is that although the Receiver/Manager has no title to the assets in the receivership which still vests in the company, it is only the Receiver/Manager who can bring [an] action or be sued in respect of the assets, being [an] agent of the company. The company cannot bring the action. The Receiver/Manager can only bring the action in the name of the company. The contention of counsel for the Appellants that Plaintiff/Respondent cannot bring action against the Defendant company for any claim whatsoever is predicated on the assumption that on the appointment of a Receiver/Manager, all rights of action by any person against the company whether or not related to the assets in the receivership become frozen against all the assets of the company. This as I have pointed out is not the law and has never been. The company still retains its legal personality and can be sued in its own name in respect of actions which properly lie.

Since the Receiver/Manager can bring an action in the company’s name his joinder, in my respectful view, is not necessary. It is an action against the company and in the company’s name. Moreover, the claim is not against any assets of the company in receivership. Therefore, I hold that the proper parties are before me and this suit is properly constituted. The Defendant’s objection is, consequently, overruled.

Issue for determination

13. The issue for determination is whether the Claimant is entitled to judgment on her claims or any of them.

Burden of proof

14. It is elementary law that he who asserts must prove. See Sections 131[1], 132, 133[1], and 136[1] of the Evidence Act, 2011, and Larry Curry Limited v. Osho & Ors [2024] 8 NWLR [Pt 1940] 285 at 305. The Claimant must satisfy the Court that she is entitled to judgment on her claims failing which the case will be dismissed. Also, the Claimant who seeks declaratory reliefs must establish her entitlement to the declaration by credible evidence, and will succeed on the strength of her case, not on the weakness of the defence or admission by the Defendant. See Osho v. Adeleye & Ors [2024] 8 NWLR [Pt 1941] 431 at 452. In addition, in resolving employment disputes, the Court will usually refer to the employment contract and any other stipulations incorporated or deemed to have been incorporated into the contract. See Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24. The contract of employment is the bedrock on which parties to an employment contract found their case, and the success or failure of the case depends entirely on the terms agreed or deemed to have been agreed by the parties. See Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 386. Where there are many documents incorporating the terms and conditions of the employment, the Court will not look outside those terms in deciding the rights and obligations of the parties. See Jowan & Ors v. Delta Steel Company Ltd [supra] page 25.

Summary of evidence

15. The Claimant sought 14 reliefs and two alternative reliefs and called two witnesses. The first witness and husband, Mr. Adewunmi Samuel Olaoluwa, testified in support of the claims and tendered 8 documents marked Exhibits 1 to 8. The Claimant testified as a second witness and tendered 14 documents marked Exhibits 9 to 22. The exhibits are Prince and Princess Hospital letter dated 14/11/2018, Veta Hospital’s letter dated 20/12/2018, Veta Hospital’s excuse duty form dated 28/12/2018, Arik Air leave of absence form, Arik Air letter dated 7/1/2019, Veta Hospital’s letter dated 29/5/2019, Prince and Princess Hospital’s letter dated 3/9/2019, the Claimant’s letter dated 5/9/2019, the Claimant’s employment letter dated 12/11/2013, confirmation letter dated 19/12/2014, copy of staff identity card, promotion letter to a ticketing and reservation officer dated 2/7/2015, Grade harmonization letter dated 21/8/2017, Grade structure letter dated 22/1/2018, Page International Financial Services Limited loan offer letter dated 18/1/2019, the Claimant’s Fidelity Bank Plc statement of account from 13/6/2016 to 29/7/2021, the Claimant’s email of 23/1/2020 to the Defendant, print-out of the Claimant’s SMS to Madam Chika Opara, the Claimant’s retirement savings account statement, two certificates of authentication dated 23/10/2021, M.A. Oduwole & Co.’s letter dated 30/6/2020 to the Defendant for reinstatement of the Claimant and the Defendant’s response dated 3/7/2020.

16. The first Claimant’s witness and her spouse, Mr. Adewunmi Samuel Olaoluwa, testified that in November 2018, the Claimant was admitted to the Prince & Princesses Hospitals upon the discovery that she was pregnant. Before then, the Claimant suffered complications and lost a pregnancy due to work-related stress. Based on the Claimant’s medical history, the hospital advised that she should be placed on one week’s bed rest to ensure the safety of her life and that of the unborn child. The Defendant and the Health Management Organization [HMO], CLEARLINE, were notified and Clearline contacted the hospital. When the Claimant’s condition did not improve, they were advised to change their hospital and on 18/12/2018 they moved to Veta Hospitals Limited, and the Claimant notified the Defendant and the HMO, and they contacted the new hospital. A few days later the Claimant was discharged and placed on one week of strict bed rest and the Defendant was promptly notified by Veta Hospitals Limited letter dated 20th December 2018 which he delivered to the Defendant’s Human Resources Manager on 28th December 2018 at about 10 am. About a week after the Claimant was placed on bed rest by the hospital, she was informed that she was in no physical or mental condition to resume work and that she would likely suffer a miscarriage if she did not observe strict bed rest. The Claimant was advised to request a medical/maternity leave for 9 months. The Claimant was issued an excuse duty/discharge form dated 28th December 2018 by Veta Hospitals Limited which he delivered to the Defendant’s Human Resources Manager on 28th December 2018 at about 3 pm. On 3rd January 2019, at about 11 am, he collected the Defendant’s “Leave of Absence Form” from the Human Resources Manager for the Claimant. The Claimant filled out the form and returned it to the Human Resources Manager on the same day at about 3 pm. He stated that the leave of absence was on medical grounds, and the leave duration was nine months, from 28th December 2018 to 28th September 2019 and the Claimant was expected to resume afterward. On 8th January 2019, when he visited the Claimant, the Claimant informed him that her supervisor called to inform her that her leave had been approved, and it was approved on 7th January 2019 and 8th January 2019 by the Defendant’s three principal officers: Chika-Ikechukwu Okpara, the Claimant’s Supervisor, Sylvester Ogogo, the Head of Department and Kate Obasi, the Human Resources Manager. On 17th January 2019, the Claimant told him that her supervisor called to inform her that she had a letter from the Defendant and that he should pick up the letter for her. He collected the letter from the Human Resources Manager and observed that the date on the letter was 7th January 2019 but he acknowledged the letter on 17th January 2019. When he took the letter to the Claimant, he observed that she was displeased and lamented that the Defendant introduced stiff conditions contrary to the approval on the leave of absence form. He also observed that the Defendant stated in the letter that the Claimant would not be entitled to any benefits during her leave and directed the Claimant to return all Defendant’s property in her possession. Consequently, he returned the Claimant’s ID card, uniforms, official phone, and HMO card to the HRM. He stated that the Defendant has not paid the Claimant’s salary from January 2019 to date. Also, in January 2019, he observed that the hospital demanded payment for the Claimant’s medical bill from them, and when he asked, he was informed that the Defendant no longer covers the Claimant’s medical bill. The Claimant informed him that she received a message from the Defendant’s HMO that her policy had been terminated. As a result of the Claimant’s situation and out of desperation the Claimant applied for a loan. In May 2019, the hospital confirmed that the Claimant was fit to resume work before she could deliver her baby. The hospital also issued a medical report to that effect which he delivered to the Defendant by a letter dated 29th May 2019. The Claimant resumed work on 1st July 2019 but the HRM insisted that she must go back and deliver her baby before returning to work. The Claimant safely delivered her baby without any complications on 4th June 2019. He delivered the letter dated 3rd September 2019 to the Human Resources Manager the same day. On 5th September 2019, he delivered the Claimant’s letter dated 5th September 2019 to the Human Resources Manager. He confirmed that the Claimant resumed work on 2nd October 2019 since 1st October 2019 was a public holiday. The Claimant informed him that she reported both to her Manager at the Commercial Department and the Human Resources Manager but found that her usual duty post had been occupied and there was no arrangement made for her return by the Defendant and that all the Claimant’s efforts to seek audience with the HRM concerning where she would resume work did not yield any result as the HRM kept her in suspense without any definite statement on the status of her employment with the Defendant and without pay. Under cross-examination, he confirmed that the Claimant is his spouse. They married on 26th May 2018, and they were married when the Claimant was discharged in 2018 and when the leave of absence form was filled. He worked for Arik and was an employee of Arik when those things happened. He confirmed that none of the documents tendered was addressed to him. The only role he played was to collect the documents and submit them.

17. The Claimant testified that she was employed as a catering assistant by the Defendant on 12th November 2013. Due to her diligence, dedication, and satisfactory performance her appointment was confirmed, and she rose to the position of a ticketing and reservation officer. She stated that a Receiver/Manager was appointed over the Defendant’s affairs on 9th February 2017. The terms and conditions governing her employment with the Defendant were stated in her appointment letter while other practices are in line with international best practices. She denied the existence of any employee handbook despite the reference to it in the appointment letter. By the terms of her employment, she was entitled to a contributory pension, and her contribution was calculated using basic salary, housing, and transport allowances which were N150,000, N210,000, and N90,000 respectively amounting to N33,750 annually and N2,812.50 monthly. She stated that the Defendant was also obliged to contribute N33,750 annually as her pension contributions when she was still a Catering Assistant. Upon her promotion as a ticketing and reservation officer on 2nd July 2015, her gross annual salary was increased to N1,200,000 consisting of N450,000 basic salary, N630,000 housing allowance, and N270,000 transport allowance respectively, and her pension contribution increased to N67,500 annually. The Defendant was also obliged to contribute N67,500. Her annual gross income was increased to N1,800,000 on 21st August 2017 comprising N300,000 basic salary, N420,000 housing allowance, and N180,000 transport allowance which increased her annual pension contribution to N101,250 and monthly contribution to N8,437.50 and the Defendant was obliged to contribute the same amount. By letter dated 22nd January 2018, her salary was increased to N1,824,000. She stated that her total pension contributions from 12th November 2013 to 31st December 2018 was N801,538.50 which she particularised. The Defendant should have remitted the sum of N801,538.50 to her Pension Account No. PEN200692325117 maintained with Leadway Pensure PFA Limited but only remitted N412,754.54 and withheld N388,783.96 without justification. According to her, she gained about 27% on the net contribution of N412,754.54 in the sum of N111, 846.30 which leaves the closing current value of her contribution at N524,600.84 as of 18/01/19 instead of N200,386.63 being 27% of N801,538.50 which she would have earned had the Defendant remitted her pension contributions in full. She stated that she was entitled to salary and pensions during her leave of absence and after completion of the leave. She was also entitled to paid maternity leave from December 2018 to September 2019 having served the Defendant for more than 2 years and paid leave and medical benefits as stipulated in her employment contract but which were not reflected on the leave of absence form dated 3rd January 2019. In November 2018, a test result revealed that she was pregnant when on admission at the Prince & Princess Hospitals. Before then, she suffered some complications and lost a pregnancy due to work-related stress. She was placed on one week’s bedrest because of her medical history for her safety and that of her unborn child. She notified the Defendant and the Health Management Organization, Clearline which contacted the hospital. On the hospital’s advice, and for fear of losing her pregnancy coupled with the fact that her condition did not improve, she changed her hospital to Veta Hospitals Limited on 18th December 2018. She also notified the Defendant and the HMO which contacted the new hospital. After being discharged from the hospital, she was placed on one week’s bed rest by the hospital and the Defendant was notified by Veta Hospitals Limited letter dated 20th December 2018. The doctors subsequently informed her that she could not resume work as she was likely to have a miscarriage, and was advised to request a medical leave/maternity leave for 9 months. Based on this, the hospital issued her an excuse duty/discharge form dated 28th December 2018. She stated that the 9 months comprised 6 months maternity leave and 3 months’ nursing mother leave which she was entitled to per the terms of her employment. She submitted the form dated 28th December 2018 to the Defendant through the HRM and was given the leave of absence form on 3rd January 2019 which she filled and submitted to the HRM on the same date. The leave of absence was on medical grounds commencing from 28th December 2018 to 28th September 2019 and was duly approved by the Defendant on 7th January 2019 and 8th January 2019. About 16th January 2019, her supervisor telephoned to inform her of a letter from the Defendant which her husband collected on 17th January 2019. The letter was captioned “Re: application for leave of absence” and backdated to 7th January 2019. Despite approving the nine months’ leave, the Defendant introduced extraneous conditions contrary to the approval contained in the leave of absence form. The Defendant informed her that she would not be entitled to any benefits during the period contrary to the terms of her employment. She stated that the Defendant’s non-payment of her salary occasioned hardship to her given that she had no other source of income. She was also required to return the company’s property in her possession including her staff identity card, uniforms, official phone, and the HMO card. She could not protest at the time due to her condition. She complied with the directive and returned the Defendant’s properties to the HRM. According to her, the Defendant withheld her salary from January 2019 to date. In addition, she received a message from the Defendant’s HMO that her policy had been terminated and was left on her own, and was forced to apply to Page International Financial Services Limited for a loan to offset her medical bills. In May 2019, the hospital confirmed her stable and fit to resume work. She notified the Defendant by a letter dated 29th May 2019. When she resumed on 1st July 2019, the HRM insisted that she must go back and deliver her baby before returning to work. In June 2019, she returned to Prince and Princess Hospitals because of the proximity to her residence, and on 4th June 2019, she delivered her baby. By the 3rd week of August 2019, she informed the HRM that she was preparing to resume work as scheduled and her hospital also wrote a letter to inform the Defendant of her condition and her preparedness to resume work. Despite the communication to the HRM and the letter from the hospital, the Defendant did not respond. Therefore, she wrote another letter to the HRM dated 5th September 2019 informing the Defendant of her fitness and readiness to resume work. When she resumed work on 2nd October 2019, she reported to her Manager at the Commercial Department and the Human Resources Manager but discovered that her usual duty post had been occupied without any arrangement for her resumption. She tried to seek an audience with the HRM to know the status of her employment and her resumption date to no avail. Instead, she was asked to wait until a vacancy was available. The Defendant still refused to pay her salary and benefits after her resumption occasioning hardship to her which she particularised. These include the Defendant’s refusal to pay her annual leave allowance, maternity leave allowance as well as medical benefits as an expectant mother and also a nursing mother which she was entitled to per her employment; the termination of her HMO; non-remittance of her pensions; and her appointment was neither suspended nor terminated per the terms of her employment yet the Defendant has since January 2019 refused to pay her salary. She testified that her employment was kept in limbo which act occasioned hardship to her coupled with the Defendant’s other actions. She stated further that her inquiry at her pension manager’s office on 29th June 2020 revealed that the Defendant did not regularly remit her pension contributions, and particularly failed to remit her contributions from December 2014 to December 2016, and February 2019 to date while giving her the impression that her pension contributions were being paid. The Defendant also failed to accurately and regularly remit its portion of her pension contributions from December 2014 to date to her Pension Account No. PEN200692325117 maintained with Leadway Pensure PFA Limited. Upon the refusal of the HRM to resolve her issue coupled with the financial hardship, she sent an email to the Receiver/Manager on 23rd January 2020 to notify him of her ordeal but he did not respond to the email and did nothing about her complaint. She claims per the statement of facts.

18. Under cross-examination, she confirmed that she had worked for the Defendant for 5 years before the leave of absence. She identified Exhibit 9 as her employment contract. Asked if there were other terms not captured in Exhibit 9, she said Exhibit 9 is the only contract. She insisted that the leave of absence is stipulated in Exhibit 9. Asked to identify the provision on leave of absence, she said it was under medical benefits and attached to her maternity leave. She confirmed that Exhibit 9 provided for maternity leave which is 12 weeks but she was given 9 months due to her health condition. She admitted that she requested the 9 months’ leave of absence and said Exhibit 4 is the application and the response letter is the approval, Exhibit 5. She admitted that Exhibit 5 is the Defendant’s response to her application for leave of absence. She confirmed that she returned to work in May 2019 which was within the period she applied for, and she was very heavy. While admitting that the Defendant did not allow her to resume because they didn’t want her to deliver her baby in the office, she said her line manager said she would follow what the doctor said, and she informed her that her maternity leave is part of her leave of absence. She admitted that she had her baby on 4th June 2019. She confirmed that Exhibit 7 was her letter informing the Defendant of her preparedness to resume work. She said besides Exhibit 7, there were other communications to the Defendant that she had given birth. She was shown Exhibit 8, and she confirmed that it was the communication, and she did not receive any communication from the Defendant that someone else had taken her position. She confirmed that she resumed on 2nd October 2019 but became aware that her services were no longer required by 23rd January 2020. Her line manager called for a brief meeting when she resumed on 2nd October 2019 and promised to revert to her through HR. She confirmed that the Defendant went into receivership on 9th February 2017. She said she was unaware that PENCOM sued Arik in 2016 for not remitting its employees' pension contributions. Re-examined, she explained that she applied for 9 months’ leave of absence because of the threatened abortion during her pregnancy.

19. The Defendant’s witness and Human Resources Manager, Mr. Peter Ogunsanmi, testified that the Defendant is under receivership and its operations are run by a Receiver/Manager appointed by the Asset Management Corporation of Nigeria due to the failure of the former management to repay the debt owed to AMCON. About 2nd February 2017, AMCON, acting under the Asset Management Corporations Act, 2015, appointed a Receiver/Manager over the acquired assets, undertaking, and goodwill of the Defendant based on the existing deed of debentures between the Defendant and the banks to which the Defendant was exposed. He stated that by Section 48 of the AMCON Act, the Receiver/Manager is empowered to realize the assets of the Defendant and recover the debts owed by their directors and shareholders and use the proceeds to pay AMCON as the secured creditor the debts which the debtor company originally owed to the banks. This is the power of appointment that AMCON exercised by the appointment of the Receiver/Manager over the Defendant in 2017. The relevant statutory authority was thereafter duly notified of the Receiver/Manager’s appointment as required by law. Since the appointment of the Receiver/Manager, and in his capacity as the Receiver/Manager which imposes a fiduciary obligation on him to the company, he has been running and managing the affairs of the company with the utmost good faith towards it in any transactions with it or on its behalf, and at all times, the Receiver/Manager has been acting in what he believes to be in the best interest of the company as a whole to preserve its assets, further its business and promote the purposes for which it was formed and in such manner as a faithful, diligent, careful and ordinary skillful manager would act in the circumstances. The Defendant admits that there was a contributory pension benefits scheme in place in the company before the Receiver was appointed. However, the available record shows that the Defendant’s former management did not remit any employee pension contributions to the employees’ Pension Fund Administrators. According to him, the National Pension Commission instituted an action against the company in Suit No. NICN/LA/104/2016, National Pension Commission v. Arik Air Limited for the non-remittance of employees’ pension contributions, which suit was discontinued by a notice of discontinuance dated 8th February 2018 soon after the appointment of the Receiver/Manager. Consequently, the Defendant, now in receivership, denied any liability to the Claimant for her outstanding pension contributions, at least during the period of the receivership. The witness stated that the Receiver’s primary obligation is to recover the debt owed to AMCON and to return the company to its directors and shareholders after completion of his assignment. He also denied the claims relating to the leave of absence and stated that the Claimant had no right to proceed on the leave of absence by the terms of her employment. The decision to grant her wish to do so was a humanitarian gesture the terms of which were duly communicated to her. She was notified before her departure that her return to her position could not be guaranteed due to the operational sensitivity of the position she held at the time. He stated that the Claimant’s disengagement from work is in line with the terms of her employment. Therefore, the Defendant is not liable to pay any outstanding salaries, leave bonus/allowance or any other benefits to the Claimant. He stated that the Receiver/Manager is not an agent of the company but that of AMCON and as such did not assume any liabilities to the Claimant before his appointment. He stated that the terms of the Defendant’s subsequent employment relationship with the Claimant are contained in the employees’ handbook and the letter of employment dated 12th November 2013. He denied that the Defendant is indebted to the Claimant for any sum of money at all since the Defendant did not assume any obligation for pension benefits that accrued before the receivership and which the former management failed to remit and for which the Defendant was sued by the National Pension Commission. He stated that AMCON, as the secured creditor that appointed a Receiver out-of-Court, through the Receiver/Manager did not assume any liabilities to the Claimant regarding the subject matter of this suit, and prayed the Court to dismiss the Claimant’s suit in its entirety with substantial costs to the Defendant. The Defendant tendered two documents marked Exhibits D1 and D1A. These are the copies of the General Form of Complaint in Suit No. NICN/LA/104/2016, National Pension Commission v. Arik Air Limited, and notice of discontinuance.

20. Under cross-examination, he confirmed that he is the Defendant’s Human Resources Manager. He admitted that the Defendant owed the staff some obligations, and communicated to them in writing regarding their employment. He confirmed that he joined the Defendant on 2nd March 2015 as an administrative manager, and anyone who joined the company in 2013 was there before him. He was shown Exhibit 9 and asked to read the pension provision which he did. In answer to the question whether Arik Air has kept to that contract, he said “Presently, as we speak, Arik Air has kept to that contract.” When asked if Arik Air was not complying before now, he said “Between 2008 and 2016, the former management was not complying, but with the emergence of AMCON, no staff has been owed.” He confirmed that Exhibits 4 and 5 emanated from the Defendant. He looked at Exhibit 4, the third row, and said he could see “leave approved” and “leave denied”. He read out the names of staff under “leave approved” as Chika Ikechukwu Okpara, Sylvester Egbogo, and Kate Obasi. He confirmed that Chika Ikechukwu was the Claimant’s supervisor, Sylvester Ogbogo was the Head of Department, and Kate Obasi was the HRM, and they were the Defendant’s staff and had the Defendant’s authority to sign Exhibit 4. Under re-examination, he said there was no marking on leave approved.

Evaluation of evidence

21. I have carefully reviewed the oral and documentary evidence by the parties. It is not in dispute that the Claimant was the Defendant’s employee and proceeded on nine months’ leave of absence from 28th December 2018 to 28th September 2019 with the Defendant’s approval. It is also not disputed that the leave of absence was connected with the Claimant’s pregnancy-related complications. See paragraphs 2, 5, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37 of the Claimant’s witness deposition, paragraph 7 of the Defendant’s witness deposition and Exhibits 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, and 14. The Defendant’s contention is that the Claimant was not entitled to leave of absence by the terms of her employment, and approval for the leave was granted on compassionate grounds, the terms of which were duly communicated to the Claimant. The Defendant also states that the Claimant was notified before her departure that her return to her position could not be guaranteed due to the operational sensitivity of the position. The critical documents are Exhibits 9, 4, and 5. Exhibit 9 is the Claimant’s employment letter and encapsulates the terms of her employment contract. Despite pleading the employee handbook, the Defendant did not produce it in evidence. In paragraph 7 of her witness deposition, the Claimant testified that the Defendant did not give her any employee handbook. Exhibit 9 provides for maternity leave after two years and an employee cannot proceed on maternity and annual leave in the same year. There is also provision for nursing mothers. It stipulates that “The period of maternity leave is 12 weeks in total. Payment of salary will be made in full during the 12 weeks. Nursing mothers may work 2 hours less than the total number of working hours contracted each day, for three months following resumption from statutory maternity leave.” Thus, contrary to the submission by the learned counsel for the Claimant, there is no nursing mother’s leave, but nursing mothers are allowed to work 2 hours less than their contracted hours each day. There is also provision for absence due to sickness. Exhibit 9 provides, in part, “If your absence is for more than one day, you must maintain contact with your Manager, informing him/her of: [the] reason for absence, the expected date of return, details of any proposed medical treatment; and notification of any outstanding work and/or meetings that need to be covered. If you are absent for a full day on health reasons, you must provide Arik Air Ltd with a medical certificate of sickness or injury. For further details, please see the Employment Handbook. For all periods of absence, you must complete an absence certification form [available from your Manager] giving the reasons for your absence.” This provision gave rise to Exhibit 4 which is the Defendant’s form. Therefore, the evidence of the Defendant’s witness, in paragraph 7 of his witness deposition, that the Claimant had no right to proceed on a leave of absence under the terms of her employment is incorrect. Moreover, Exhibit 4 is captioned “Leave of Absence Form” suggesting that it is the Defendant’s practice to grant leave of absence. From Exhibit 4, the leave of absence was requested on medical grounds and was signed off by the appropriate officers, the Claimant’s supervisor, the Head of the Department, and the Human Resources. Under re-examination, the Defendant’s witness was asked if there was any “Leave Approved” marking in Exhibit 4, and he said there was no marking. However, I have painstakingly reviewed Exhibit 4 in the light of Exhibit 9, and note there is no marking requirement. Even if marking is necessary, the error is the Defendant’s and it cannot profit from its wrong. In any event, the signatures under “Leave Approved” conform with the Defendant’s prescription and show conclusively that the Defendant intended and did approve the Claimant’s request for a leave of absence. Whether the approval was on humanitarian grounds is not manifest on the Leave of Absence Form, Exhibit 4. It is important to add that the request for the leave of absence was made on 3rd January 2019, passed through the approval process, and the final signature was obtained on 8th January 2019. Thus, I find as a fact that the Claimant’s application was approved on 8th January 2019 without any conditions upon submission of the requisite documents. Based on this approval, the Claimant proceeded on her leave of absence. See paragraph 38 of the Claimant’s witness deposition.

22. Exhibit 5 is the Defendant’s letter to the Claimant dated 7th January 2019 and captioned “Re: Application for leave of absence”. It was signed by the Defendant’s witness and was received by the Claimant on 17th January 2019. The Claimant testified that about 16th January 2019, her supervisor telephoned to inform her of a letter from the Defendant which her husband collected on 17th January 2019. She stated that the letter was captioned “Re: Application for leave of absence” and backdated to 7th January 2019, and despite approving the nine months’ leave, the Defendant introduced extraneous conditions contrary to the approval contained in the leave of absence form. The Defendant’s witness stated that the Claimant had no right to proceed on the leave of absence by the terms of her employment and that the decision to grant her wish to do so was a humanitarian gesture the terms of which were duly communicated to her. The Claimant was notified before her departure that her return to her position could not be guaranteed due to the operational sensitivity of the position she held at the time. During cross-examination, the Claimant testified that Exhibit 5 represents the Defendant’s official response to her application for leave of absence. In the Defendant’s final written address, it was argued that the terms of the Claimant’s employment contract stipulated in Exhibit 9 were modified by Exhibit 5, and having accepted Exhibit 5 without questions, the Claimant cannot now complain. The Defendant also argued that Exhibit 9 did not provide for leave of absence which is regulated by Exhibit 5 and binding on the parties, resting on BFI Group Corp v. BPE [supra] among others. It was submitted that in determining the Claimant’s right to payment of any benefits, recourse must be had to Exhibits 9 and 5 relying on Osakwe v. FCE Asaba [supra]. The Defendant contended that by Exhibit 5 the Claimant knew that due to the Defendant’s operational requirements, she may not return to her position after her leave of absence. For the Claimant, it was argued that Exhibit 4, not Exhibit 5, can be regarded as varying Exhibit 9 given that Exhibit 5 is a unilateral act of the Defendant.

23. In BFI Group Corp v. BPE [supra] pages 234 - 236, the Supreme Court held that the Court must take cognizance of the comprehensive and unequivocal wordings of the series of agreements between the parties based on the principle that where there is a dispute between parties to a written agreement, the only authoritative and legal source of the information to resolve the dispute is the written document they executed. The Court also held that “Outside oral evidence, the lower Court had an abiding duty to scrutinize all the series of documents and was bound to determine whether there exists a contract between the parties.” In respect of Osakwe v. FCE Asaba [supra], my research revealed that the correct citation is [2010] 10 NWLR [Pt 1201] 1 at 37 not [2010] 10 NWLR [Pt 1323] 387, and the decision of the Supreme Court relevant to this case is that sentiments have no place in the Nigerian judicial system and the administration of justice. The first point to be made is that Exhibit 5 is not the approval of the Claimant’s application for leave of absence. I found in this judgment that the Claimant’s application for leave of absence was approved on 8th January 2019 without any conditions upon submission of the requisite documents, and based on the approval, the Claimant proceeded on her leave of absence. Therefore, Exhibit 5 is the confirmation of the approval. The approval was endorsed on Exhibit 4, and the Claimant proceeded on the leave of absence based on Exhibit 4, not Exhibit 5. The settled principle of law is that a letter becomes effective upon delivery. See Mr. Victor Eka v. Kuju [2013] LPELR-22124[CA] 16. The unchallenged evidence is that the Claimant received Exhibit 5 on 17th January 2019.

24. Paragraph one of Exhibit 5 confirms the Defendant’s approval of the Claimant’s application for nine months’ leave of absence on health grounds. However, the paragraph introduced a condition that was not discussed or agreed with the Claimant before she embarked on the leave. It reads, in part, “With reference to your request dated January 3, 2019, we wish to inform you that your application for nine [9] months leave without pay has been approved with effect from December 28, 2018 to September 28, 2019.” The request is contained in Exhibit 4. Nowhere in Exhibit 4 is there a request for nine months’ leave without pay. That phrase was introduced by the Defendant. Paragraph two reads “You are expected to resume on September 29, 2019.” By this, it is clear that the Claimant could return to her job after the leave of absence. In paragraph three, the Defendant wrote “Please note that during this period, you shall not be entitled to any benefits.” As I said earlier, the Claimant’s application for leave of absence was approved on 8th January 2019 without any conditions. The introduction of “nine months’ leave without pay”, and “during this period, you shall not be entitled to any benefits” were unilateral acts of the Defendant. By the terms of the Claimant’s employment contract, Exhibit 9, she is entitled to 12 weeks of maternity leave with pay. She is also entitled to medical benefits. This covers the Claimant, her spouse, and two children. There is also a provision for absence due to sickness. It is not specified in Exhibit 9 that an employee absent on grounds of sickness will forfeit all benefits. The only condition is “If your absence is for more than one day, you must maintain contact with your Manager”. Therefore, I find as a fact that the stipulation in Exhibit 5 that the Claimant’s nine months’ leave is without pay and she would not be entitled to any benefits during the period is a unilateral variation of the Claimant’s contract of employment. The settled principle of law is that for parties to be bound by their agreement, they must be ad idem on its terms. Where the terms of a contract have been agreed, it is not open to one of the parties to unilaterally vary the terms. Any variation of the agreed terms must be by mutual consent, and there must be an offer and an acceptance of the variation for the required consensus ad idem to be present. See Bonum Nigeria Limited v. Chris Baywood Ibe & Anor [2019] LPELR-46442[CA] 51 – 54 and Odubawo v. FSDH Securities Limited [2020] 8 NWLR [Pt 1725] 1 at 36. To establish the consensus ad idem, the Defendant’s witness testified that “The decision to grant her wish to do so was a humanitarian gesture the terms of which were duly communicated to her.” See paragraph 7 of the Defendant’s witness deposition. The Claimant’s evidence is that “About 16/01/2019 after I had proceeded on my leave of absence after I had been informed by my Supervisor of the approval of my leave application, I received a telephone call from my Supervisor to the effect that I had a letter from the Defendant which my husband thereafter went to collect from the Defendant on my behalf. The aforesaid letter titled RE: APPLICATION FOR LEAVE OF ABSENCE was mischievously backdated to 07/01/19 because as at [sic, of] 08/01/19 there was no such letter communicated to me, however, same was received by my husband on the 17/01/2019.” Parties were not ad idem on the varied terms. The Claimant did not accept the new terms which are, therefore, not binding on her.

25. That is not all. In paragraphs 4, 5 and 6 of Exhibit 5, the Defendant wrote: “You are required to return any company property in your possession; this includes ID card, uniforms, official phone, Health management [HMO] cards, etc. Please hand over all company property in your possession to the Human Resources Department. The position of a Ticketing and Reservation Officer is a critical operational role; therefore, your position may be filled during your absence and your return will be subject to available vacancy. You should contact the company at least one month prior to your scheduled return to discuss your possible return to work options.” These stipulations contradict Exhibit 4, paragraph 2 of Exhibit 5, and the Claimant’s employment contract, Exhibit 9. It is like giving with the right hand and taking it back with the left. The Defendant had the discretion to approve or refuse the leave of absence application. Having approved the leave of absence, it is not within its contractual rights to act contrary to the contract of employment or to stipulate terms that negate the substance of the leave of absence and the Claimant’s employment contract. By withdrawing the Claimant’s paraphernalia of office, the Defendant constructively dismissed the Claimant. It is my respectful view and I hold so that the Claimant’s compliance with the Defendant’s directives did not imply agreement as she had no choice and could not challenge the Defendant’s directives at the time. See paragraphs 39 to 41 of the Claimant’s witness deposition. Therefore, contrary to the Defendant’s submission, the principle of estoppel cannot operate against the Claimant in these circumstances. Moreover, in the sixth paragraph, the Defendant directed that the Claimant “should contact the company at least one month prior to your scheduled return to discuss your possible return to work options.” By letter dated 5th September 2019, Exhibit 8, the Claimant gave notice of her resumption. This was followed up with a text message, Exhibit 18, and then Exhibit 17, an email dated 23rd January 2020 to Mr. Kamilu Omokide. In utter disregard of its directives, the Defendant refused to reply to the letter and email or discuss with the Claimant her “possible return to work options”. Paragraphs 45, 46, and 47 of the Claimant’s witness deposition are instructive, and for clarity, they are reproduced here.

45. Sometime in the 3rd week of August 2019 I informed the HRM that I was preparing to resume work as scheduled and my hospital also wrote a letter to inform the Defendant of my condition and the fact that I was ready to resume work.

46. Despite my communication to the HRM and the letter from the hospital I did not get any feedback from the Defendant, and I therefore took the precaution of writing another letter to the HRM on the 5/09/2019 communicating my fitness and readiness to resume work.

47. I resumed work as scheduled on the 2/10/2019 [the 1/10/2019 being a public holiday] and reported both to my Manager at the Commercial Department of the Defendant and the Human Resources Manager but found that my usual duty post had been occupied and there was no arrangement made for my return by the Defendant. That all my efforts to seek audience with the HRM as to where I would resume work for the Defendant did not yield any result as the HRM kept me in suspense without any definite statement as to the status of my employment with the Defendant and without pay.

26. This evidence remains unchallenged. The Defendant showed scant regard for the Claimant, and forgot the ILO admonition that “labour is not a commodity”. “Labour is not an inanimate product, like an apple or a television set, that can be negotiated for the highest profit or the lowest price. Work is part of everyone’s daily life and is crucial to a person’s dignity, well-being and development as a human being.” See The Benefits of International Labour Standards. The Claimant’s maternity rights, absence due to illness or pregnancy complications, and medical benefits are protected under the Maternity Protection Convention, 2000 [No. 183]. See Articles 4, 5, and 6. In Article 6[7] medical benefits shall include prenatal, childbirth, and postnatal care, as well as hospitalization care when necessary. Article 8[1] and [2] provide:

1. It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.

2. A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.

27. Even though Nigeria has not ratified ILO Convention No. 183, the convention is binding on Nigeria as a member state of the ILO. The ILO Convention No. 183 represents the best international labour standards that this Court is enjoined to apply. See Section 254C[1][h] of the 1999 Constitution. Section 54 of the Labour Act provides for the protection of the maternity rights of women, but the protection is not extensive. Section 54[1][a] and [b] of the Labour Act guarantees the Claimant 12 weeks of leave, six weeks before delivery and six weeks after delivery of her baby. A similar provision is made in Exhibit 9. While Section 54[3] of the Labour Act provides that “No employer shall be liable, in his capacity as an employer, to pay any medical expenses incurred by a woman during or on account of her pregnancy or confinement”, Article 6[7] of the Maternity Protection Convention 2000, No.183 provides that “Medical benefits shall be provided for the woman and her child in accordance with national laws and regulations or in any other manner consistent with national practice. Medical benefits shall include prenatal, childbirth and postnatal care, as well as hospitalization care when necessary.” Exhibit 9 confers the right to medical benefits on the Claimant. It provides that “You shall be entitled to the company’s medical scheme after completion of the mandatory six months’ probation period. The medical scheme covers you, your spouse and two children.” There is unchallenged evidence that the Claimant’s employment was confirmed. See paragraph 9 of the Claimant’s witness deposition and Exhibit 10. There is also evidence that the Claimant was denied medical benefits during the leave of absence. See paragraphs 40 and 42 of the Claimant’s witness deposition and Exhibit 15. In this premise, I find as a fact that the withdrawal of medical benefits to the Claimant during the leave of absence is wrongful and in breach of her employment contract.

28. The Defendant’s witness testified in paragraph 8 of his statement on oath that “the Claimant’s disengagement from work is in line with the terms and conditions of her contract of employment and as such the Defendant denies any liability to pay any outstanding salaries, leave bonus/allowance or any other benefits to the Claimant.” It was argued for the Defendant that Section 11[8] of the Labour Act provides statutory approval to Exhibit 5. Therefore, there is no basis for the claim for N30,000,000 damages for wrongful dismissal. See paragraph 4.17 of the Defendant’s final written address. For the Claimant, it was argued that by the combined provisions of Sections 9[2], [7], 11[1], [2][d], and 54[1], [2] and [4] of the Labour Act, the Defendant having granted leave to the Claimant by Exhibit 4, cannot terminate the Claimant’s employment in the manner it purported to do by Exhibit 5. I found in this judgment that by withdrawing the Claimant’s paraphernalia of office, the Defendant constructively dismissed the Claimant. Section 54[4] of the Labour Act provides that “Where a woman – [a] Is absent from her work in pursuance of subsection [1][a] or [b] of this section, or [b] Remains absent from work for a longer period as a result of illness certified by a medical practitioner to arise out of her pregnancy or confinement and to render her unfit for work, then, until her absence has exceeded such a period, if any, as may be prescribed, no employer shall give her a notice of dismissal during her absence or notice of dismissal expiring during her absence.” Article 8[1] of the Maternity Protection Convention 2000, No.183 provides that “It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.” Therefore, the Defendant could not under any guise terminate the Claimant’s employment during the subsistence of the leave of absence or any time after her resumption. By agreement of the parties, Exhibit 9, the Claimant’s employment could only be terminated by one month's written notice or one month's salary in lieu of notice. No notice was given, and no salary was paid in lieu of notice. I have carefully considered the evidence, the applicable law and international labour standards, and find as a fact that the Claimant’s disengagement breached her employment contract, the Labour Act and it is contrary to international best practices, and therefore, wrongful. I also find as a fact that the Claimant is entitled to her medical benefits during the nine months’ leave of absence and upon her resumption on 2nd October 2019.

29. The next issue is whether the Claimant has established her claim for pensions. The evidence in support of the Claimant’s pension claims is in paragraphs 8, 11 to 24, and 50 of the Claimant’s statement on oath, and Exhibit 19. The Claimant testified that by the terms of her employment, she was entitled to a contributory pension, and her contribution was calculated using her basic salary, housing, and transport allowances. She stated that her total pension contributions from 12th November 2013 to 31st December 2018 was N801,538.50, which she particularised, and which the Defendant should have remitted to her Pension Account No. PEN200692325117 with Leadway Pensure PFA Limited, but it only remitted N412,754.54 and withheld N388,783.96 without justification. According to her, she gained about 27% on the net contribution of N412,754.54 in the sum of N111,846.30 which leaves the closing current value of her contribution at N524,600.84 as of 18th January 2019 instead of N200,386.63 being 27% of N801,538.50 which she would have earned had the Defendant remitted her pension contributions in full. She testified that she was entitled to salary and pensions during her leave of absence and after completion of the leave. It is the Claimant’s evidence that her inquiry at her pension manager’s office on 29th June 2020 revealed that the Defendant did not regularly remit her pension contributions and failed to remit her contributions from December 2014 to December 2016, and February 2019 to date while giving her the impression that her pension contributions were paid. The Defendant also failed to accurately and regularly remit its portion of her pension contributions from December 2014 to date to her Pension Account. Exhibit 19 is the Claimant’s retirement savings account statement, and corroborates her evidence of non-remittance of her pensions from December 2014 to December 2016, January 2019 to January 2020. The Defendant admitted that there was a contributory pension scheme in place in the company before the Receiver was appointed. However, the available record shows that the Defendant’s former management did not remit any employee pension contributions to the employees’ Pension Fund Administrators. Consequently, the National Pension Commission instituted an action against the company in Suit No. NICN/LA/104/2016, National Pension Commission v. Arik Air Limited for the non-remittance of employees’ pension contributions, which suit was discontinued by a notice of discontinuance dated 8th February 2018 soon after the appointment of the Receiver/Manager. Exhibits D1 and D1A were tendered to support this evidence. Therefore, the Defendant denied any liability to the Claimant for her outstanding pension contributions for the period before the receivership. See paragraphs 6[iv], [v], and [vi] of the Defendant’s witness deposition. There is unchallenged evidence that the Claimant is entitled to the contributory pension and that deductions were made from her salary for pension which were not remitted from December 2014 to December 2016. The basis of the Defendant’s denial of liability for the Claimant’s pension contributions from December 2014 to December 2016 is that the debt was contracted by the former management, the Receiver/Manager is not an agent of the company, and his mandate is to realise the assets of the Defendant for the benefit of the secured creditors.

30. The right to pension is both constitutional and statutory. Pension is a right that cannot be unilaterally taken away by the employer. It is intended to cushion the rigours of the life of the employee upon cessation of employment. See Section 210[1] and [2] of the 1999 Constitution, Section 3 of the Pension Reform Act, 2014, and the cases of Momodu v. Nigerian Union of Local Government Employees & Ors [1994] 8 NWLR [Pt 362] 336 at 350 and Emokpae v. Stanbic-IBTC Pensions Managers Ltd [2015] 17 NWLR [Pt 1487] 57 at 74. There is no general right to make deductions from the employee’s salary except as provided by law. The law treats the issue of employees’ salaries with such sacredness that except expressly permitted by law or the employee, no employer can make any deductions from an employee’s salary. So, when deductions are made from an employee’s salary, they must be applied for the intended purpose. See Chemical and Non-Metallic Products Senior Staff Association v. Benue Cement Company Plc [2005] 2 NLLR [Pt 6] 446 at 470. Under the Pension Reform Act of 2014, an employer is required to deduct a certain percentage of the employee’s salary and pay it to the employee’s Pension Fund Administrator. There is uncontroverted evidence that deductions were made from the Claimant’s salary for pensions which were not remitted to her pension account. The Defendant’s argument that the debt was incurred by the former management is untenable. The Defendant is still a going concern despite the receivership. Therefore, it cannot retain the money deducted from the Claimant’s salary. While Exhibits D1 and D1A show that the National Pension Commission took out a writ against the former management of the Defendant for non-remittance of the employees’ pensions, it does not disclose the basis of the discontinuance neither does it create an estoppel against the Claimant. Where there is a right, there must be a remedy. Since the employment relationship has ceased, the Defendant must pay over the sums deducted to the Claimant’s pension fund administrator. Therefore, I find as a fact that the Claimant has established her claims for pension from December 2014 to December 2016.

31. Exhibit 16 is the Claimant’s Fidelity Bank Plc statement of account, and corroborates the Claimant’s evidence that she obtained a loan from Page International Financial Services Limited to fund her medical expenses. It also supports her evidence that the Defendant has not paid her salary and allowances from January 2019 to July 2020. Exhibits 21 and 22 are the Claimant’s Solicitors letter to the Defendant demanding reinstatement and payment of outstanding salary, and Defendant’s response denying liability.

Arising from the foregoing, the lone issue for determination is resolved in the affirmative.

Consideration of the reliefs

32. The first relief seeks a declaration that by the Leave of Absence Form dated 3/01/19 which was approved by the Defendant through its three [3] principal officers i.e. the Claimant’s supervisor, the Head of the Claimant’s Department and the Human Resources Manager, which the approval contained in the aforesaid Leave of Absence Form governed the Claimant’s leave of absence, the Claimant’s employment with the Defendant still subsists. A claim for declaration is not granted as a matter of course. By the combined force of Section 54[4] of the Labour Act and Article 8 of the Maternity Protection Convention 2000, No.183, the Defendant could not terminate the Claimant’s employment during her approved leave of absence. However, I found in this judgment that by withdrawing the Claimant’s paraphernalia of office, the Defendant constructively dismissed the Claimant. Also, by refusing to assign the Claimant an office after her resumption on 2nd October 2019 and keeping her employment in abeyance up till January 2020, the Defendant manifested its intention to dispense with the Claimant’s services. Based on the foregoing, a declaration that the Claimant’s employment subsists cannot be made. The law is trite that where there is a purported termination of an employment contract, a declaration that the employment subsists will rarely be made since the Court will not grant specific performance of a contract of service without statutory flavour except in very deserving circumstances. This is based on the principle that the Court will not force a willing employee on an unwilling employer. See Ilodibia v. Nigeria Cement Company Limited [1997] LPELR-1494[SC] 18. Accordingly, this claim fails.

33. The second claim seeks an order of this Honourable Court directing the Defendant to pay the Claimant’s salary and other emoluments which were unjustly withheld from the Claimant before and/or after the approval of the Claimant’s application for leave of absence, the annual gross income being N1,824,000.00 [one million, eight hundred and twenty four thousand naira] per annum from 01/01/2019, including but not limited to the sum of N388,783.96 [three hundred and eighty-eight thousand, seven hundred and eighty-three naira and ninety-six kobo] being the difference of the irregular remittance by the Defendant to the Claimant’s Pension Account with Number PEN200692325117 maintained with Leadway Pensure PFA Limited from December 2014 till date, with interest at the rate of 27% per annum till judgment is delivered and thereafter at the rate of 10% per annum until the entire sum is liquidated. The Claimant lumped many reliefs in one. I found in this judgment that the stipulation in Exhibit 5 that the Claimant’s nine months’ leave was without pay and she would not be entitled to any benefits during the period is a unilateral variation of the Claimant’s contract of employment which was not binding on the Claimant. Thus, she was entitled to her usual salary and benefits for the period. However, it is not clear what the Claimant claims in this relief. What the “other emoluments” are were not stated. There is no pleading or evidence of withheld salaries before the approval of the leave of absence. The Claimant claims “salary from 1/1/2019” without specifying the end date. So, the claim for salary is imprecise, and the Court cannot grant an imprecise claim. In addition, pre-judgment interest must be pleaded and proved. See Interdrill Nigeria Ltd & Anor v. United Bank for Africa Plc [2017] 13 NWLR [Pt 1581] 52 at 72 - 73. There is no pleading or evidence on the interest claimed. While this Court can award post-judgment interest under Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, there are, so far, no awards made. So, the claim for post-judgment interest is premature. Furthermore, while I found that the Claimant has established her claims for pension from December 2014 to December 2016, the claim for pension is duplicated. Based on the foregoing, I hold that the Claimant has not established this claim which is consequently refused.

34. The third claim is for a declaration that by virtue of the letter of appointment dated 12/11/13, the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure must be credited with 15% [inclusive of the Defendant’s contribution] of the Claimant’s basic salary, housing allowance, and transport allowance from 12/11/13 till date. There is unchallenged evidence that the Claimant was entitled to the contributory pension and that deductions were made from her salary for pension which were not remitted from December 2014 to December 2016. There is also evidence that the Claimant’s pension from January 2017 to December 2018 has been remitted. I found that the Claimant has established her claims for pension from December 2014 to December 2016. However, there is no evidence that the Claimant’s employment subsists given that parties acknowledge that the Claimant has been constructively dismissed. Therefore, I hold that the Claimant is entitled to payment of 15% of her basic salary, housing, and transport allowances from 12th November 2013 to 31st December 2016. This claim is granted in part.

35. The fourth relief seeks a declaration that the sum of N412,754.54 [four hundred and twelve thousand, seven hundred and fifty-four naira and fifty-four kobo] paid into the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure Limited is grossly inadequate of the pension contribution of [the] pension earned by the Claimant from 12/11/13 till date. There is evidence that the Claimant’s total pension contributions from 12th November 2013 to 31st December 2018 was N801,538.50, but the Defendant only remitted N412,754.54 leaving N388,783.96 unpaid. Therefore, I hold that the remittance of N412,754.54 does not represent the Claimant’s pension entitlement from 12th November 2013 to 31st December 2018. I adopt my reasoning and conclusion in paragraph 34 above and hold that this relief succeeds in part.

36. The fifth relief is for an order of this Honourable Court directing the Defendant to pay the sum of N388,783.96 [three hundred and eighty-eight thousand, seven hundred and eighty-three naira and ninety-six kobo] representing the deficit of the remittance by the Defendant to the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure PFA Limited. I found in this judgment that the Claimant has established her claims for pension from December 2014 to December 2016. In addition, this relief is ancillary to reliefs three and four above. Therefore, I adopt my reasoning and conclusions in paragraphs 30, 34, and 35 above and hold that this relief has been established and is granted.

37. Relief six seeks a declaration by this Honourable Court that the act of the Defendant refusing or failing to credit the Claimant’s pension Account Number PEN200692325117 maintained with Leadway Pensure Limited accurately and appropriately is oppressive, wrongful, and a violation of the Claimant’s right as protected and preserved by the Pension Reforms Act. As I said earlier, the right to pension is both constitutional and statutory. Pension is a right that cannot be unilaterally taken away by the employer for any reason whatsoever. Pension is intended to cushion the rigours of the life of the employee after cessation of employment. Under the Pension Reform Act of 2014, an employer is required to deduct a certain percentage of the employee’s salary and pay it to the employee’s Pension Fund Administrator. There is uncontroverted evidence that deductions were made from the Claimant’s salary for pensions which were not remitted to her pension account. The Defendant’s argument that the debt was incurred by the former management is untenable. The Defendant is still a going concern despite the receivership and is obligated to remit the Claimant’s outstanding pension contributions. Therefore, I hold that the Defendant’s refusal to credit the Claimant’s Pension Account No. PEN200692325117 with Leadway Pensure Limited accurately and appropriately is oppressive, wrongful, and a violation of the Claimant’s pension right. This claim succeeds.

38. Relief seven seeks damages in the sum of N5,000,000.00 [five million naira] for failure of the Defendant to pay the adequate and appropriate pension earned by the Claimant to the Claimant’s Pension Account Number PEN200692325117 maintained with Leadway Pensure Limited. General damages are within the discretion of the Court to grant and it is awarded to assuage a loss caused by the act of the adversary. See Nigerian Railway Corporation v. Ojo [2021] LPELR-55971[CA] 40 - 41. The Pension Reform Act, 2014 prescribes a penalty for failure or delay to remit pensions. Section 11[6] of the Pension Reform Act, 2014 provides that “An employer who fails to deduct or remit the contributions within the time stipulated in subsection [3][b] of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the Commission. Subsection 7 provides that “The penalty referred to in subsection [6] of this section shall not be less than 2 percent of the total contribution that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owed to the employee's retirement savings account, as the case may be.” The basis for this claim is not manifest from the evidence given that, by the Claimant’s calculations, what she would have earned is N200,386.63 if her pension contributions had been fully remitted but she earned N111,846.30. Considering the evidence before me and the provisions of the Pension Reform Act of 2014, I hold that this claim has not been established and it is refused.

39. Relief eight is for an order of this Honourable Court directing the Defendant to restore all the paraphernalia of office such as the operation post, identity card, uniform, official phone, HMO card, etc., to the Claimant to enable her [to] perform and carry out her duties. This claim is ancillary to relief one. Having found that the Claimant’s employment has been constructively terminated, there is no justification for an order for restoration of the paraphernalia of office. Accordingly, this claim is refused.

40. The ninth claim is for an order of this Honourable Court directing the Defendant to pay the Claimant’s accrued medical benefits for the period 28th December 2018 till date which she was assured under the terms and conditions of her employment or in the alternative [where no particular amount is stated] to pay the Claimant the sum of N1,800,000.00 [one million and eight hundred thousand naira] as her medical bill for the period stated. I found in this judgment that the withdrawal of medical benefits to the Claimant during the leave of absence is wrongful and in breach of her employment contract. I also found that the Claimant is entitled to her medical benefits during the nine months’ leave of absence and upon her resumption on 2nd October 2019. However, there is no pleading or evidence of the amount spent on the Claimant’s medical care for the period. There is no evidence that the Claimant is entitled to N1,800,000.00 medical allowance. While there is evidence that the Claimant obtained N390,000 loan from Page International Financial Services Limited on 23rd January 2019, see Exhibits 15 and 16, there is no evidence that the N390,000 was spent on the Claimant’s medical expenses. Receipts of payment of medical bills were not produced. In this circumstance, I hold that this claim has not been established and it is refused.

41. Relief ten seeks a declaration that the act of the Defendant of keeping the Claimant’s employment in abeyance is in breach of her right to dignity of [the] human person as enshrined in Section 34 of the Constitution of the Federal Republic of Nigeria, 1999 [as amended]. As I said earlier, the Defendant showed scant regard for the Claimant, and forgot that “labour is not a commodity”. As posited by the ILO, labour is not an inanimate product, like an apple or a television set, that can be negotiated for the highest profit or the lowest price. Work is part of everyone’s daily life and is crucial to a person’s dignity, well-being, and development as a human being. Section 34[1][a] of the 1999 Constitution provides that “Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subject to torture or inhuman or degrading treatment.” It was within the Defendant’s contractual rights to refuse the Claimant’s application for nine months’ leave of absence. It approved the Claimant’s leave. After that, it discreetly terminated the Claimant’s appointment but gave the Claimant the impression that she still had her job and refused to communicate its decision to the Claimant even after her resumption. In this circumstance, I hold that this claim has been established.

42. The eleventh relief is for an order of this Honourable Court directing the Defendant to pay the sum of N5,000,000.00 [five million naira] to the Claimant for infringement on the Claimant’s right to dignity of human person, and the psychological trauma caused the Claimant, a nursing mother. This claim is ancillary to relief ten, and that claim having succeeded, this claim ought to succeed. The Defendant’s conduct in this case is so brazen, callous, oppressive, arbitrary, outrageous, and showed scant regard for its regulations, the Labour Act, and the person of the Claimant and her baby. See Megawealth Limited v. Securities and Exchange Commission [2017] 13 NWLR [Pt 1583] 345 at 380 – 381. Accordingly, I award N1,000,000 punitive damages against the Defendant.

43. The twelfth claim seeks an order of this Honourable Court directing the Defendant to pay the sum of N10,000,000.00 [ten million naira] to the Claimant as damages for breach of the Claimant’s terms and conditions of employment, violation of the Labour Act, misrepresentation of facts and for loss of use of the Claimant’s outstanding remunerations and benefits. Again, the Claimant lumped disparate claims into one claim. The claim for damages for breach of the Claimant’s contract of employment differs from the claim for loss of use and different principles apply. Therefore, this claim is refused for being imprecise.

Alternatively, to reliefs 1, 8, 9, and 10

44. The thirteenth claim is for a declaration that the Defendant’s letter dated 7/01/19 amounts to a wrongful termination of the Claimant’s employment. I found in this judgment that by withdrawing the Claimant’s paraphernalia of office, the Defendant constructively dismissed the Claimant. I also found that the Claimant’s disengagement breached her employment contract, the Labour Act and it is contrary to international best practices, and therefore, wrongful. Thus, this claim succeeds.

45. The fourteenth claim is for damages in the sum of N30,000,000.00 [thirty million naira] for wrongful termination of the Claimant’s employment by the Defendant. This claim is ancillary to relief thirteen, and that claim having succeeded, this claim also succeeds. While, by their contract, either party could terminate the employment by one month’s written notice or one month’s salary in lieu of notice, allowing the Defendant to pay the contractual sum will amount to rewarding the Defendant for its wrongfulness. The Defendant’s conduct is despicable and indefensible. Where there is a wrong, there must be a remedy. See Mekwunye v. WAEC [2020] 6 NWLR [Pt 1719] 1 at 22. Accordingly, the Claimant is entitled to general damages for wrongful dismissal. On the quantum of damages to be awarded for wrongful dismissal, Section 19[d] of the National Industrial Court Act, 2006, provides that the Court may in all other cases and where necessary make any appropriate order, including an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. In Skye Bank Plc v. Adegun [2024] 15 NWLR [Pt 1960] 1 at 29 – 30, the Supreme Court, per Agim, JSC, held:

Where a contract of employment is brought to an end by the employer contrary to the terms agreed therein, the quantum of damages awardable therefore cannot be based on the remuneration of the employee during the period of notice prescribed in the agreement for either party to terminate the agreement. The employer cannot enjoy the benefit he would have enjoyed if the contract had been brought to an end in accordance with the contract. Having brought the contract to an end in breach of the contract, the damages payable by it cannot be restricted to only one month salary in lieu notice, which is what it would have been liable to pay if it had terminated the employment as prescribed in the contract. To limit the damages payable by the employer to one month salary in lieu of notice in this case, would amount to enabling it to benefit from its wrongful act in breach of the contract. It is an inveterate rule of equity of great antiquity that equity will operate to prevent a party from benefiting from his or her wrongful act. It would be oppressive and unjust to the employee to award him or her damages on a basis prescribed in the contract of employment for termination of his employment in breach of that contract. Having brought his employment to an end outside the terms of the contract the employer cannot restrict the quantum of damages awardable to the employee to the terms prescribed in the contract. The quantum of damages awardable to the employee in such a situation should be in accordance with the general law of contract on award of damages for breach of contract, which would involve a consideration of the consequential loss that has arisen or would arise from the breach of the contract of employment having regard to the monthly wage, current age of the employee and the due date of retirement.

Considering the facts and circumstances of this case, including denying the Claimant the agreed medical benefit, maternity leave with pay, and refusal to pay the Claimant’s salary after she resumed on 2nd October 2019, I award the Claimant three years gross salary as general damages for wrongful termination of the Claimant’s employment.

46. The fifteenth claim is for the cost of this suit in the sum of N650,000.00 [six hundred and fifty thousand naira] only. Generally, cost follows events in litigation, and a successful party is entitled to her costs. See Egypt Air Limited v. Ibrahim & Anor [2021] LPELR-55882[CA] 35 - 36. The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. This Court has unfettered discretion to award cost which discretion must, in all circumstances, be exercised judicially and judiciously. See Order 55 Rules 1 and 5 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. I hold that the Claimant is entitled to the cost of this action. The Claimant spent about N54,112 as filing fees, was present four times, and was represented by counsel in the proceedings four times. The case spanned four years. Considering the current value of the naira, the rate of inflation, and the time it has taken the Claimant to enforce her right, a cost of N650,000.00 [six hundred and fifty thousand naira] is awarded to the Claimant against the Defendant.

47. The sixteenth claim is for interest of 15% per annum on the total judgment sums from 01/01/2019 until liquidation of the entire sum by the Defendant. A party who claims pre-judgment interest must plead and prove it. See Interdrill Nigeria Ltd & Anor v. United Bank for Africa Plc [2017] 13 NWLR [Pt 1581] 52 at 72 - 73. The pleading and evidence are lacking. However, this Court has power under Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award post-judgment interest at a rate not less than 10% per annum. The Claimant has not proved her claim for 15% interest. Accordingly, the Defendant shall pay interest at the rate of 10% per annum on the total judgment sum from the date of this judgment. This claim is granted in part.

48. In the final analysis, this action succeeds in part. Reliefs 1, 2, 7, 8, 9, and 12 fail and are dismissed. Reliefs 3, 4, and 16 are granted in part. Reliefs 5, 6, 10, 11, 13, 14, and 15 are granted. For the avoidance of doubt, judgment is entered for the Claimant against the Defendant as follows:

a. It is hereby declared that according to the letter of appointment dated 12th November 2013, the Claimant’s Pension Account No. PEN200692325117 with Leadway Pensure PFA Limited should be credited with 15% [inclusive of the Defendant’s contribution] of the Claimant’s basic salary, housing, and transport allowances from 12th November 2013 to 31st December 2018.

b. It is hereby declared that the sum of N412,754.54 [four hundred and twelve thousand, seven hundred and fifty-four naira and fifty-four kobo] which was paid into the Claimant’s Pension Account No. PEN200692325117 with Leadway Pensure PFA Limited does not represent the Claimant’s pension contributions from 12th November 2013 to 31st December 2018.

c. The Defendant shall pay the sum of N388,783.96 [three hundred and eighty-eight thousand, seven hundred and eighty-three naira and ninety-six kobo] unremitted pension into the Claimant’s Pension Account No. PEN200692325117 with Leadway Pensure PFA Limited.

d. It is hereby declared that the Defendant’s refusal to credit the Claimant’s Pension Account No. PEN200692325117 with Leadway Pensure PFA Limited accurately and appropriately is oppressive, wrongful, and a violation of the Claimant’s right under the Pension Reforms Act.

e. It is hereby declared that the Defendant’s act of keeping the Claimant’s employment in abeyance is in breach of her right to dignity of the human person enshrined in Section 34 of the 1999 Constitution.

f. The Defendant shall pay the sum of N1,000,000.00 [one million naira] as punitive damages to the Claimant for breach of the Claimant’s right to dignity of the human person, and for associated psychological trauma.

g. It is hereby declared that the Defendant’s letter of 7th January 2019 amounts to a wrongful termination of the Claimant’s employment.

h. The Defendant shall pay the Claimant three years’ gross salary in the sum of N5,472,000.00 [five million, four hundred and seventy-two thousand naira] as general damages for the wrongful termination of the Claimant’s employment.

i. The Defendant shall pay the cost of this action assessed at N650,000.00 [six hundred and fifty thousand naira] to the Claimant.

j. The monetary awards shall attract interest at the rate of 10% per annum from today until it is fully liquidated.

Judgment is entered accordingly.

……………………………………….…..

IKECHI GERALD NWENEKA

JUDGE

21/1/2025

Attendance: Claimant present, Defendant absent

Appearance:

A. T. Abdulsalam Esq. for the Claimant

Olasupo Adebayo Esq. for the Defendant