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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

BEFORE HIS LORDSHIP HON. JUSTICE J. A.O. DAMACHI

DATE: 22 SEPTEMBER 2025             

SUIT NO: NICN/LA/214/2023

BETWEEN                                                                                                                 

 

MR. KAYODE KALEJAIYE     …...CLAIMANT

 

AND                                                                      

 

NIGERIA INTER-BANK SETTLEMENT SYSTEM PLC …..DEFENDANT

 

JUDGEMENT 

  1. The claimant is before this court by a General Form of Complaint, Statement of Facts   seeking the following reliefs :

 

  1. A DECLARATION that it is wrong, unlawful, and oppressive for the Defendant who terminated my appointment in August 2019 after voluntarily paying me part of my salary upfront in January 2019 to turn around and declare the upfront payment a debt.
  2.  A DECLARATION that it is wrong, unlawful, and oppressive for the Defendant to seize my one-month salary in the sum of =N=275,274.10 which I am entitled to in lieu of notice of termination of my employment and the sum of =N=7,534, 632.32, my compulsory staff savings, erroneously and fraudulently termed gratuity by the Defendant in partial fulfillment of a purported debt.
  3.  A DECLARATION that I am not indebted to the Defendant in any sum whatsoever as a result of the termination of my employment after voluntary upfront payment of part of my salary by the Defendant.
  4.  AN ORDER directing the Defendant to pay to me the sum =N=7,809,906.42 (Seven Million, Eight Hundred and Nine Thousand Naira, Nine Hundred and Six Naira, Forty-Two Kobo) being (=N=275,274.10), my entitlement in lieu of one month notice and (=N=7,534,632.32), compulsory staff savings termed gratuity which were seized by the Defendant in part of the purported debt.
  5.  The sum of =N=1,358,000.00 being balance of my profit share for 2019.
  6. Interest on the sums in (d) and (e) above at the rate of 21% per annum from 15/8/2019 till judgment and thereafter at the rate of 10% per annum until the final liquidation.
  7. =N=1,500,000.00 being the cost of this action.

 

  1. CLAIMANT’S CASE 

The Claimant was employed by the Defendant in 2014, confirmed in 2015, and promoted to Manager in 2018. On 2nd August 2019, he was abruptly informed by phone and email that his services were no longer required.

During his employment, the Defendant paid part of his salary upfront (housing, furniture, estacode). Following termination, the Defendant claimed he owed ?18.460,789.57M as “unearned upfront,” reducible to ?7.5m if he returned his official car, which he did. To set off this alleged debt, the Defendant seized his entitlements: payment in lieu of notice  N=275, 274.102019 profit share N=427, 515.93, and compulsory staff savings   N=7,554,539.57. totalling N=8,237,422.35. 

The Claimant maintains that his actual prorated 2019 profit share was =N=1,786,447.00 leaving a balance of N=1,358,000.00  still owed to him. He insists that profit share formed part of the regular salary/emoluments structure, not a discretionary benefit. Despite seizing NGN8,237,422.35, the Defendant continued to allege he owed N=7,127,023.64.  , leaving him penniless at the time of dismissal.

In December 2021, the Defendant threatened legal action, reporting him to the Credit Bureau, and allegedly sabotaged his chances of new employment by informing prospective employers of the supposed debt.

The Claimant argues that the Defendant’s conduct was inequitable, oppressive, and unconscionable, since the upfront payments were salary components, not loans, and were expended for housing and furniture as intended. He never applied for a credit facility and expected to work out the upfront pay, but was prevented from doing so by his sudden dismissal.

 3.  The Claimant testified as CW1 and tendered a total of 15 documents marked as Exhibits C1 to C15. 

 (a) Offer of employment dated 30/9/2014: Exhibit C1.

(b) Confirmation of Appointment dated 5/6/2015: Exhibit C2.

(c) Promotion Exercise dated 30/12/2017: Exhibit C3

(d) Service no longer required date 2/8/2019: Exhibit C4

(e) Re: Service no longer required dated 15/8/2019: Exhibit C5

(f) Reminder on Letter of indebtedness dated 30/12/2021:

     Exhibit C6

(g)Spreadsheet: Exhibit C7

(h) Solicitor’s Invoice/Fee Note: Exhibit C8

(i) Sworn Certificate sworn on 25/7/2023: Exhibit C9

(j) Bundle of emails: Exhibit C10

(j) Spreadsheet: Exhibit C11.

(k) printout of SMS messages: Exhibit C12

(l) Letter from office of the Permanent Secretary, Federal

     Ministry of Labour and Employment: Exhibit C13.

(m)Defendant’s Human Capital Policy dated 31/10/2017:

      Exhibit C14.

(n) Sworn Certificate sworn on 9/4/2024: Exhibit C15. 

 

 

 4.  DEFENDANT’S CASE

The Defendant contends that the relationship between it and the Claimant was purely contractual, governed by the Claimant’s offer letter of 30th September 2014, confirmation letter of 5th June 2015, and the Defendant’s Human Capital Policy dated 31st October 2017. It maintains that the Claimant’s employment was properly terminated on 2nd August 2019 in accordance with due process, and not merely by a phone call as alleged.

The Defendant argues that the Claimant was fully aware of his obligations regarding unearned upfront payments, which were discretionary benefits granted at the employee’s request and repayable upon exit, whether voluntary or involuntary. It asserts that profit sharing was not an automatic entitlement but conditional upon the Defendant meeting specific performance targets. Since the Claimant did not remain in employment until the end of 2019, he was not entitled to profit sharing for that year.

With respect to notice and gratuity, the Defendant avers that the Claimant’s entitlement in lieu of notice was duly communicated to him but was subject to conditions which he failed to fulfil. It further explains that gratuity entitlement arose only after five years of service. Although the Claimant had only spent four years and eight months as at termination, the Defendant, as an act of goodwill, extended gratuity entitlement to him and duly communicated the calculated sum by letter of 15th August 2019.

The Defendant denies ever communicating to third parties that the Claimant was indebted to it. It reiterates that upfront allowances were discretionary and conditional upon repayment if employment was prematurely terminated. The Defendant further stresses that its income and expenditure are audited by its Board and external auditors, and that the Claimant has persistently failed to liquidate his outstanding obligations despite repeated demands.

 

5. COUNTER-CLAIM

There is a Counter-Claimant against the Claimant/Defendant (by Counter-Claim) as follows:-

  1. The sum of N10,651,215.08(Ten Million, Six hundred and Fifty-One Thousand, Two hundred and Fifteen Naira, Eight    Kobo) as balance due to the Counter-Claimant on upfront furniture allowance.
  2. The sum of N1,770,246.67 (One million, Seven hundred and Seventy Thousand, Two Hundred and Forty-Six Naira, Sixty-Seven Kobo) as balance due to the Counter-Claimant on upfront housing allowance.
  3. The sum of N2,942,984.24 (Two Million, Nine hundred and Forty-Two Thousand, Nine hundred and Eighty-Four Naira, Twenty-Four Kobo) as balance due to the Counter-Claimant on upfront estacode allowance.
  4. The sum of N5M (Five Million Naira) as Solicitors fees for the defence of the main claim and prosecuting the Counter-Claim.
  5. Interest on all sums above at the rate of twenty-one (21%) per annum from 2nd August 2019 until Judgement and post Judgement interest at the rate of fifteen percent (15%) per annum until final liquidation.

 

6. One FADARE OLUWASEMILORE MRS a Human Capital Management Analyst adopted her WSOO but did not tender any document. 

 

7. DEFENDANT FINAL WRITTEN ADRESS

3 ISSUES WERE FORMULATED 

  1. Whether the Claimant had an obligation to settle before his proper exit from the Defendant’s employment.

The employment contract and HR policy (Exhibits C1 and C14) mandate that upon exit (resignation or termination), the employee must: Settle outstanding debts (unearned portions of optional upfront payments such as leave, furniture allowances). Return company property. Undergo an exit interview.

Claimant’s email correspondence dated 1st March 2022 and 7th July 2023:

Show admission of the outstanding obligations.

Allege inability to pay due to unemployment. Query the amount of the profit share but not deny the obligation. Defendant made repeated efforts (letters, emails, e.g., Exhibit C6) to get the Claimant to properly exit, but the Claimant refused to cooperate.

 

He argued that it is trite law that Admission requires no further proof (e.g., PASSCO INT’L LTD v UNITY BANK PLC (2021) 7 NWLR (Pt. 1775) 224).   Claimant seeks a reference while denying debt.

 

Issue Two:

Whether the Defendant is obliged to issue a reference letter unconditionally.

LDC submitted that Reference letters are discretionary, based on employee conduct and employer satisfaction. Since the Claimant did not comply with the exit clearance procedure, particularly the exit interview mandated in Exhibit C14. Claimant admitted returning the official car, but refused to discuss or settle the debt.

The Defendant reasonably refused to issue a reference due to the Claimant’s outstanding obligations;His uncooperative conduct post-termination. LDC argued that A person cannot benefit from their own wrong (A.P.C v I.N.E.C (supra)).

 

Issue Three

Whether the Counter-Claim, being meritorious and admitted, should be granted as claimed.

 

Claimant expressly admitted receipt and utilization of optional upfront payments. Clause in HR Policy allows debt recovery for unearned upfront payments even if they were not specifically requested by the employee. Claimant’s claim that “if he wasn’t terminated, he would have earned it” is speculative.

 

He had several chances to negotiate repayment but failed to do so. He acknowledged the debt in writing and offered excuses for non-payment, rather than denying liability. LDC submitted that admitted facts need no further proof (e.g., CHRISTIAN v INNOCENT (2023) 13 NWLR (Pt. 1900) 183).

A contract is binding when the conditions are fulfilled – OGUNDALU v MACJOB (2015) 8 NWLR (Pt. 1460) 96.

 

ON POINT OF LAW

On Document Admissibility:

 

Exhibit C7 (Spread Sheet of Allowances): LDC argues it’s inadmissible under Sections 88 and 95 of the Evidence Act, 2011 because: It is a secondary document. Not signed, not on official letterhead, no date, no stamp. Not shown to Defendant’s witness for identification.

 

On DW1 Testimony, although she was not in employment at the material time. She testified based on records and documents (permitted under Section 115 Evidence Act). Therefore, her testimont was not hearsay-ALADUM v OGBU (2023) LPELR-59995(SC).

On the counter clian LDC submitted that th e Claimant admitted the debt, failed to fulfill his exit obligations, and cannot shift blame or demand unearned benefits. Therefore the Defendant is justified in withholding the reference letter.

 

8. CLAIMANTS FINAL WRITTEN ADDRESS ARGUMENT OF ISSUES

  1. Whether or not the Claimant has proved his case and is entitled to judgment in this case. 
  2. ) Whether or not the Counter-Claim of the Defendant is meritorious.

LCC submitted that in a civil case, the burden of proof is on the balance of probability. RABIATU ODOFIN V A.R. MOGAJI (1978) 11 NSCC 275 decided that a trial Judge should put the evidence led by both parties on an imaginary scale and see which of the two versions has higher probative value. In determining which is heavier, the Judge will naturally have regard to the following:

  1. Whether the evidence is admissible;
  2. Whether it is relevant
  3. Whether it is credible
  4. Whether it is conclusive; and
  5. Whether it is more probable than that given by the other party”

LCC submitted further that declarative reliefs must succeed on the strength of its own case and not on the weakness of defence-UMEOJIAKO V EZENAMUO (1990) 1 NWLR (Pt.126) 253 at 267 para C. The only exception where the weakness of the defence is useful to the Claimant is where the evidence of the former supports the case of the later. He called in aid AKINBADE & ANOR v. BABATUNDE & ORS (2017) LPELR-43463(SC); Egbunike & Anor v. Muonweoku (1961) NSCC 40, Antra Industry Nigeria Ltd v. Nigerian Bank for Commerce and Industries (1983) 4 NWLR (Pt. 545) 381 and Senator Iyiola Omisore & Anor v. Ogheni Rauf Adesoji Aregbesola & Ors (2015) LPELR-2480 (SC)."

 

In reviewing the claimants case, LCC argued that the Claimant was an employee of the Defendant until he was sacked through Exhibit C4 on 2/8/2019. As part of the remuneration policy the Claimant was paid part of his allowances, that is, furniture, housing and leave allowances in January of 2019. 

On 15/8/2019, the Claimant received Exhibit C5 from the Defendant informing him that he is indebted to the Defendant even when he did not at any time apply for any loan or other credit facility throughout his time with the defendant.

 

The Claimant’s compulsory staff savings in the sum of =N=7,554,539.57 was seized, which it fraudulently termed gratuity and still insisted that the  claimant was indebted  in the sum of =N=7,127,023.64. See Exhibit C6   

 

The alleged indebtedness of the Claimant   arose from the unsolicited payment of upfront allowances to him in January 2019. 

The Claimant maintained he was shortchanged in the calculation of his profit-sharing in 2019 because as a manager and based on Exhibits C7 and C11 distributed to him and other employees, he was entitled to a minimum sum of =N=3,062,000.00 per annum and the prorate share for January to July 2019 was the sum of =N=1,786,447.00 and not the sum of =N=427,515.93 stated in Exhibit C6. 

 

The claimant was under pressure to pay the alleged debt and defendant refused to issue reference and would write to prospective employers that he has unsettled obligations to it. 

 

LCC submitted that the basis of his claims was that he did not at anytime apply to the Claimant for any loan or credit facility, and in any case, the Defendant does not grant loans or credit facility to anyone. 

 

LCC argued that since it was the same Defendant who chose to pay his allowances upfront in January 2019 that sacked him in August 2019. The allowances were used for   payment of rent and purchase of furniture and there was no way he could get them back. 

 

In a bid to analyise the defence put up by the defendant LCC submitted that :

By the company policy,  profit sharing of the Defendant is not automatic but subject to the Defendant meeting certain target and/or exceeding same as set by the Board Management for each year and payment was upon the satisfaction of the condition for same and approval of the Board Management.

Secondly that Claimant is not entitled to profit sharing for 2019 since he was not in the employment of the Defendant until the end of the year 2019 as provided for by the Policy of the Defendant. 

Thirdly, that upfront payment of allowance for the Claimant is discretionary based on individual employee’s request and the Claimant chose that some of his pay allowances for his level of grade be paid upfront in bulk at the beginning of each year and also agreed to pay back the unearned amount in the event of his exit from the Defendant whether voluntary or otherwise.

 

Furthermore, to prove his entitlement to the balance of the 2019 profit share, the Claimant tendered Exhibits 7 and 11. It is to be noted that the LDC objected to Exhibit 11. LCC argued against his objection by submitting that

  1. Exhibit 11 was pleaded in paragraph 31, listed as No. 7 in the Claimant’s list of documents dated 1/8/2023 and frontloaded by the Claimant. 

 

  1. 6 months into the commencement of the case, the Defendant filed its defence and did not at anytime deny that the spreadsheet emanated from it nor deny its contents. 

 

  1. The only defence of the Defendant was that the Claimant is not entitled to profit share for 2019 because he was not in the employment until the end of that year. 

 

LCC argued that although the Claimant  had not been in the employment of the defendant until the end of the year  he was still entitled to profit share for 2019 becuase

By paragraph 3.3.2.2 on page 22 of Exhibit 14 it provides “NIBSS shall operate a Profit Sharing Scheme at the end of every financial year. Employees who leave the employment of NIBSS before the end of the financial year shall be paid pro-rated.”

LCC argued that DW1 when confronted with the above-quoted provision of paragraph 3.3.2.2 on page 22 of Exhibit 14 and asked during cross-examination if she would still stand by the deliberate falsehood in paragraphs 10 and 11 of her Written Deposition, without any remorse whatsoever for deliberately making false statement under oath, DW1 said that she stands by her statement under oath.  

 

LCC submitted that Exhibits 7 and 11 did not indicate that profit sharing was to be based on the satisfaction of any unknown condition besides if it was to be conditional, no figures would have been stated. 

LCC submitted   that the defence of the Defendant to relief (e) borders on deliberate falsehood, therefore, the relief should be granted.

With regards to the 1st Relief,   for A DECLARATION that it is wrong, unlawful, and oppressive for the Defendant who terminated the appointment of the Claimant in August 2019 after voluntarily paying him part of his salary upfront in January 2019 to turn around and declare the upfront payment a debt.

LCC submitted that the Claimant did not at any time apply for any credit facility; neither did he at any time or at any place “agreed to pay back the unearned amount in the event of his exit from the organization whether voluntarily or involuntarily.” 

By paragraph 28 of the Statement of Fact dated 1/8/2023, paragraph 29 of the Witness Statement on Oath sworn on 25/7/2023, paragraph 13 of the Reply to the Statement of Defence of the Defendant and Defence to Counter-Claim dated 8/4/2024 and paragraph 15 of the Additional Witness Statement on Oath sworn on 9/4/2024. 

That Defendant averred paragraph 7(ii) of its SOD dated 28/2/2024 and deposed  in paragraph 17 of the WSOO of   DW1 sworn and adopted (17) That the Claimant is aware that by the Defendant’s work policy, upfront payment of allowance for the Claimant is discretionary based on individual employee’s request and the Claimant chose that some of his pay allowances for his level of grade be paid upfront in bulk at the beginning of each year and also agreed to pay back the unearned amount in the event of his exit from the Defendant whether voluntary or otherwise.

LCC urged the court to determine whether or not the Claimant applied for upfront payment of some of his pay allowances and also agreed to pay back the unearned amount in the event of his exit from the Defendant. That even though the relation between the Claimant and the Defendant was contractual and it is trite that in every contract, there must be an offer and an acceptance. To which the parties would be bound by the terms.

 

LCC submitted that it was the Defendant who paid him some allowances in January of 2019 and he spent the allowances for the purpose for which he was paid and  it was the same Defendant which sacked him in August of the same year. The Claimant did not at anytime apply for any upfront payment.

LCC submitted that it is the law that he who alleges must prove-IROAGBARA V. UFOMADU (2009) LPELR-1538(SC) (PP. 13-14 PARAS. E, the Defendant who alleges that the Claimant applied for upfront payment of allowances and agreed   to pay back that carries the burden of proof in this case.  

To discharge this burden, the Defendant relied on paragraph 17  of DW1 WSOO. It did not produce any scintilla of evidence to support its claim. Rather the LDC raised the strangest    objection in the history of litigation when he objected that DW1 who deposed to the Written Deposition that contained paragraph 17 should not be cross-examined on the mode of the alleged application for upfront payment by the Claimant. Under cross-examination, DW1 answered thus:

Question: In your Witness Statement on Oath, you stated in paragraph 9 that upfront payments are not mandatory payments to employees but optional and only based on the fulfilment of conditions thereto. What are the conditions that employee must fulfil for upfront payment?

Answer: You must be a confirmed staff and you have to request for it by filling a form to show their interest. 

Question: In paragraph 17 of your Written Deposition, you deposed that the Claimant applied for the upfront payment and agreed to pay back the unearned part on his exit,   please tell the Court when and how the Claimant applied for upfront payment. 

Answer: It is absolutely optional so what we do in December, the Defendant communicates to all qualified employees to choose their preference and then finance department makes payment in January.  

Question: What date and how did he apply for upfront payment in 2019? 

Answer: The exact date I cannot recall. But in December we have a threshold (time limit) for indication of interest by qualified employees. 

Question: Please tell the Court how the Claimant applied.

Answer: We have a form for employees to fill in their details. It is a Microsoft form and a link is created and sent to all employees to indicate their interest. 

Question: Do you have a copy of the form? 

Answer: No.    

Question: Were you part of those who collated the applications in 2019. 

Answer: No. 

The very last question to DW1 under cross-examination was:Question: When you deposed to the Witness Statement on Oath on 14/1/2025, did it cross your mind that you joined the services of the Defendant in June 2022? 

Answer: Yes. 

LCC submitted that DW1 lied under oath and when confronted with the truth, she still stuck to her deliberate falsehood. She is not a witness of the truth.

DW1 confirmed that she joined the services of the Defendant in June 2022 but came to Court to give evidence of what transpired in 2019. Her evidence is nothing but inadmissible hearsay see OKOKON JOHN V THE STATE (2017) LPELR-48039 (SC) where His Lordship, Hon. Justice Kekere-Ekun, JSC, held thus: “I now come to the issue of hearsay. What amounts to hearsay evidence was eloquently stated in the locus classicus; Subramanam v Public Prosecutor (1956) 1 WLR 065 @ 969, wherein it was held as follows: Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.” See also Arogundade v State (2009) All FWLR (Pt. 469) 409; (2009) 6 NWLR (Pt. 1136) 165; (2009) SCNJ 44; Olalekan v State (2001) 18 NWLR (Pt. 746) 793; (2002) FWLR (Pt. 91) 1605.)

 

We submit that it is very clear from the pleadings and evidence led at the trial that what the Defendant sought to do was to turn the Claimant to its debtor without any agreement. Without any application by the Claimant, Defendant paid part of his allowances upfront in January 2019. In August, it sacked him, seized his compulsory savings and other entitlements to settle part of a purported debt and started harassing him, with threats of legal action and a report to the Credit Bureau, for the balance of a phantom debt.  See Exhibit C6

 

LDC argued that Claimant did not demand for payment of his entitlement before going to court and the LDC responded by asking a rhetorical queston, Which sane person writes letters of demand to an entity which claims that you are indebted to it and threatening you with legal action? Why did the Defendant not pay the entitlements of the Claimant when it was served with the court processes? 

 

As for Counter-Claim, LCC submitted that it can only succeed if defendant is able to prove its allegations that the Claimant chose that some of his pay allowances for his level of grade, be paid upfront in bulk at the beginning of each year and also agreed to pay back the unearned amount in the event of his exit from the Defendant whether voluntary or otherwise. 

 

See paragraph 17 DW1 WSOO  Since the Defendant failed woefully to prove this deliberate falsehood, the purported Counter-Claim is bound to fail.

The argument of counsel in his Issue 3 that the Claimant admitted the counter-claim shows a total misunderstanding of the case of the Claimant. The case of the Claimant was that he did not at any time apply for upfront payment. It was the Defendant who voluntarily paid him the allowances for specific purposes for which he used them. It was the same Defendant who sacked him, seized his compulsory savings and other entitlements and attempted to turn him to a debtor.  His argument is that he is not indebted to the Defendant. He also wants the Honourable Court to order the Defendant to pay him his seized compulsory savings and other entitlements

 

10. COURT DECISION 

The case of the Claimant in brief as revealed from the pleadings filed and evidence led is that he was employed by the Defendant and his employment was confirmed, he enjoyed promotion to the position of a manager until friday 2/Aug/2019 when he received a telephone call that his services were no longer needed later a text message from HHR requested for his email address and he finally got a termination letter dated 2/ Aug/2019. 

 I carefully evaluated all the exhibits tendered and admitted at trial. I listened attentively to the testimonies of all the witnesses called at trial and carefully watched their demeanor. I also heard the oral arguments of the learned Counsel at the point of adopting their final written addresses. Having done all this, I set down the following issues down for the just determination of this case –

  1. Whether the Claimant is entitled to the reliefs sought and 
  2. Whether the defendant is entitled to his counter claim.

There was an objection to Exh C7 by the defendant, which is the purported spread sheet of allowances and entitlement. The LDC argued that it was not a primary document but rather a printout, therefore not admissible by Section 88 of the Evidence Act 2011. His argument was based on the fact that the document, Exhibit C7 has no logo nor was it on the letter head of the Defendant; it is unsigned and not dated. There is no document by way of stamp, signature or date to connect the Defendant to the document as emanating from the Defendant, the implication of which is that the document can be procured anyhow and anywhere. Finally he argued that the document was not shown to DW1 to identify during her cross-examination.

The court took a cursory look at Exh C7 and noted that it is a schedule of payment for staff of the defendant; it is categorized into salary, other allowances and benefits depending on the position of the officer. This court is a specialized superior of record and it operates under NICA 2006, therefore not bound by the strict technical rules of evidence, under the evidence Act 2011. S.12 of NICA 2006 has given this court discretion to admit evidence and the key test is justice and expediency. In the circumstance, Exh C7 is admitted and the court shall attach evidential value as it deems fit. I so hold. 

The court shall address the reliefs sought seriatim:

The 1st relief is for A DECLARATION that it is wrong, unlawful, and oppressive for the Defendant who terminated his appointment in August 2019 after voluntarily paying him part of his salary upfront in January 2019 to turn around and declare the upfront payment a debt.

On the issue of the upfront payment, In para 23 Claimant averred that the so called upfront payment was made to him in January 2019 on the premise that he would continue to provide his services, it was paid to him for housing, furniture, and leave, claimant in his SOF averred in para 18 that N8,237,422.35 was not paid to him rather it was used to set off part of what it called “unearned upfront” or “outstanding obligation” after which the defendant claimed he was still indebted in the sum of N7,127,023.64. 

The defendant is now asking for a refund of the “unearned upfront” or “outstanding obligation”. In para 29 he maintained that he did not apply for any credit facility and in terms or repayment, the defendants have made it impossible for him to secure another job because they have refused to give him a good reference to prospective employers. 

The defendant in its SOD stated that the claimant was aware of his obligation with regards to the unearned advance, and the upfront payments were not mandatory but OPTIONAL based on conditions and the Upfront payment was discretionary. 

By the testimony of DW1 she stated that the conditions for upfront payment was confirmation of staff, and formal request by the employee usually in the month of December, however, the defendant told the court she did not have a copy of the application form before the court, it is trite law that an averment in a pleading on which no evidence is led goes to no issue See Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78; Njokit v. Erne (1973) 5 SC 293; Okagbue v. Romaine (1982) 13 NSCC 130; Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt.5) 116;  

DW1 was further question and asked to tell the court the TARGET FOR 2019 and if the defendant met the target since she had averred in Para 10 of her WSOO that the policy of the Defendant with regards to profit sharing is not automatic but subject to the Defendant meeting certain targets and/or exceeding same as set by the Board Management of the Defendant for each year and which sum is only payable to employees upon the satisfaction of the condition for same and approval of the Board Management. To the dismay  of the court, she stated “I DO NOT KNOW THE TARGET OF THE COMPANY”. 

       

From the pleadings and exhibits tendered, this court noted that the upfront payment constitute HOUSING, FURNITURE AND ESTACODE/LEAVE. Defendant never controverted the claim that  N8,237,422.35 was never paid to the claimant.

Parties are in agreement that this allowance was paid to the claimant but disagree on how claimant qualified for it, claimant has pleaded that it was made available to all staff without exception, the defendant on the other hand has maintained that the payment was “discretionary  based on request and claimant chose that some of his pay allowance for his level of grade should be paid upfront in bulk at the beginning of each year and also agreed to pay back the unearned amount in the event of his exit from the organization whether voluntary or involuntary”.

The court took the liberty in the interest of justice to study the HCP and also the record of proceeding during trial, and noted that all questions directed at CWI on whether Para 3.7 HCP 2017 provided for loan and debt, was answered in the negative, CW1’s answer was that clearance of debt or loan was for officers resigning. There is also no exhibit tendered that indicates that the upfront loan was applied for and approval was granted neither was the court presented with the conditions for granting the upfront payment. Rather a look at the offer letter Exh C1, C3 indicate that basic salary, housing and furniture allowance were all stand alone allowances and there was no mention of  an upfront payment to the claimant whether on annual or quarterly basis nor the obligations attached to a recipient. What the defendant has done is to leave this court in suspense and to  speculate on how the upfront payments were paid and under the exact conditions it was to be repaid. It is a settled principle of law that the courts cannot speculate see  Igwilo v. Central Bank of Nigeria (2000) 9 NWLR (Pt. 672) 302 CA where the court held that no court is allowed to speculate on facts. What it can do is to draw conclusions from the surrounding circumstances of a case. (P.332, paras. F-G).


 It is trite that for a contract to come into existence as argued by the defendant in his FWA, there must be clear and precise offer and unconditional acceptance of the terms. In the instant case, there was no consensus adidem between the parties in respect of the conditions for upfront payment. This relates to the payment and refund upon premature exit from the defendant company.    Hence, an enforceable agreement between the parties for repayment, refund of upfront payment in terms of housing, furniture and leave/estacode allowance is yet to be consummated.  The defendant needed not only to have made payments but  the relevant conditions for repayment in certain circumstances  ought to have also BEEM  provided by the defendant with the necessary terms applicable. See Tsokwa Motors (Nig.) Ltd v. U.B.N. Ltd (1996) 9 NWLR (Pt. 471) SC.

 

The claimant is seeking for a declaration that the upfront payment voluntarily paid cannot be declared a debt. The black’s law dictionary 11th ed. describes a debt as a legal obligation to pay a definite or determinable sum of money to another party. It arises by means such as an express contract (written or oral), an implied contract, it excludes obligation that are entirely contingent, unknown or incapable of being  determined in amount or time until such future event. From the above description and the evidence before this court, this court is convinced that it is wrong, unlawful, and oppressive for the Defendant who terminated his appointment in August 2019 after voluntarily paying him part of his salary upfront in January 2019 to turn around and declare the upfront payment as debt. I so hold. Relief 1 succeeds.

Relief 2 is for A DECLARATION that it is wrong, unlawful, and oppressive for the Defendant to seize his one-month salary in the sum of =N=275,274.10 which he is entitled to in lieu of notice of termination and the sum of =N=7,534, 632.32,  his compulsory staff savings, erroneously and fraudulently termed gratuity by the Defendant in partial fulfillment of a purported debt.

The claimant exhibited his offer of employment marked as Exh C1, para 6 states  “after confirmation, of your appointment may be terminated by giving one month notice by either party or payment of one month salary in lieu.” 

Claimant had pleaded that his employment had been confirmed in para 4 of his SOF and tendered Exh C2 as evidence, claimant in para 2 of his SOD admitted this fact. In the circumstance, is claimant entitled to  one month salary in lieu of notice? The courts have held that the employment contact is the bedrock of the employment relationship and parties having agreed to the terms of the contract are bound by the terms of the contract. In A.I.B. Ltd. v. I.D.S. Ltd   (2012) 17 NWLR (Pt. 1328) 1 The court upheld the principle that parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the contract. In the same vein, neither of the parties to a contract can alter nor
 read into a written agreement a term which is not embodied in it. In the instant case, parties are in agreement that claimant had spent a minimum of 4 years in the defendant organization, and was a confirmed staff, the confirmation letter was admitted without objection from the defendant. The HCP clearly provided parties agreed to pay =N=275,274.10 in lieu of notice of termination, claimant’ received his termination letter by email and by the events that culminated to the termination all started on a Friday Which was less than one month notice. This court is therefore convinced that the claimant is entitled to one month salary in lieu of notice, I so hold.

 

 

On the issue of compulsory staff savings, erroneously and fraudulently termed gratuity in the sum of =N=7,534, 632.32, the Defendant admitted that it had an arrangement where a separate gratuity entitlement account was opened wherein the company solely contributes an amount after certain year of service by a staff of the Defendant which is five years in the first instance, apart from the statutory pension contribution of employee in its employment. The court noted that HCP exh C14 page 28 clause 3.3.7.2 provides for gratuity: From the defendant’s averment, there is no doubt that such a scheme did exist at the time of claimants employment.

The question then is whether the employer/defendant has power to assert a right of lien over monies or entitlements of an employee in its custody, especially in the absence of any contractual agreement or court order to that effect. The law is trite that  self-help has no place in the civilized world. The SC in Friday v. Gov., Ondo State (2022) 16 NWLR (Pt. 1857) 585 held that Self-help is illegal under the rule of law. One of the basic requirements of the rule of law is that all authorities and persons must submit the resolution of their disputes to the due process of law and not adopt self-help or other methods contrary to law to resolve such disputes. (P. 644, para. C) Per AGIM, J.S.C. at pages 645-646, paras. H-E: “Generally, self-help and lawless action cannot be justified under any guise……”.

The employer had at its disposal other means of resolving the dispute arising from the payment made upfront, this is the finding of the court. The term gratuity generally refers to a one-time lump sum payment made by an employer to an employee given voluntarily or beyond obligation, often as a gesture of appreciation for long service. Google defines gratuity as: “a sum of money paid to an employee at the end of a period of employment.” Google also defines the term “gratuity and pension” thus:

“Gratuity is a one-time lump sum payment made to an employee upon retirement, resignation, death, or permanent disablement. In contrast, a pension is a regular payment made to a retiree for the rest of their life.” 

  The above definition of gratuity was confirmed in Intels (Nig.) Ltd & Ors v. Bassey (2011) LPELR-4326 (CA) 13-14, D-A. From the above definitions of gratuity, it is clear it is earned moneys paid for labour and work done. That is the sense in which S. 173(2) of the Constitution treats them when it says, they could not be withheld or reduced. This is clearly because, they are earned wages or moneys for labour and work done and typically paid at retirement, resignation or death. Under the Pension Reform Act 2014, gratuity is not explicitly  defined neither is it a compulsory benefit under Contributory Pension Scheme CPS but the Act permits its existence as an additional/voluntary benefit beyond the core mandatory provisions of the Contributory Pension Scheme CPS. S, 4(4)(a) of the PRA 2014, allows an employer to agree on the payment of additional benefits to the employee upon retirement. Employers may establish their own gratuity funds in addition to contributing to the  CPS.

The HCP Exh C 14 provides NIBSS shall operate a gratuity scheme approved by the board for which the employee shall be eligible after 5 years of continuous service. 

Defendant admitted that the years of service of the claimant was 4 years and 8 months, but it graciously estimated his service years to be 5 years. And admitted in Exh C6 that the amount was used to off set the upfront payment which Defendant  had converted to a loan. This court earlier found such action as a case of self help without recourse to proper and legitimate means of recovering money it believed were due to him. In this wise, it is the considered view of this court that it was wrong, unlawful, and oppressive for the Defendant to seize the one-month salary in the sum of =N=275,274.10 which claimant is entitled to in lieu of notice of termination and his compulsory staff savings, in the sum of =N=7,534,632.32, by the Defendant in partial fulfillment of a purported debt. I so hold Relief 2 succeeds. 

The 3rd Relief is for A DECLARATION that claimant is not indebted to the Defendant in any sum whatsoever as a result of the termination after voluntary upfront payment of part of my salary by the Defendant.

Relief 1 and 3 are similar in nature, having declared that it is wrong, unlawful, and oppressive for the Defendant who terminated his appointment in August 2019 after voluntarily paying him part of his salary upfront in January 2019 to turn around and declare the upfront payment a debt. It follows therefore that the claimant is not indebted after the voluntary upfront payment of part of his salary by the defendant. Parties are in agreement that the upfront payment was made, defendant had admitted that the amount were for furniture, housing and leave. The Nigerian Labour Act has provided for the protection of the wages. S.4 provides that an employer may not make to a worker an advance of wages in excess of one month’s wages. Where such an advance is made the minimum period  for its recovery must not be less than 3 months. Sub section 5 goes further to provide that the state authority may by order declare that this section shall not apply to any particular kind of advance paid to any particular class of workers or to all workers. If the defendant by Exh C6 is claiming indebtedness in the sum of N7,127,023.64, it is contravention of  Exh C14, Clause 3.3.356, where it is clearly stated that the defendant does not provide loans for her employees but can only introduce employees for mortgage loan, vehicle loan, and personal loan. Going by the test of a reasonable man, the defendant who has a policy to introduce her employees to get personal loan neglected to stand by its HcPolicy rather the defendant  is before this court claiming to have advanced the claimant a total sum of N10,651,215.08 for furniture; N1,770,246.67 for housing; and N2,942,984.24 for leave/estacode. Amounting to a whooping sum of  N15,364.445.99 and 8 months later, the defendant decided to terminate 22 of its staff including the claimant. 

The court noted that after conciliatory steps were taken in line with part 1 of the Trade Dispute Act 2004  and  the Federal Ministry of labour in its letter of 25th November  2019 revealed how the workers reported for work and could not gain access into the work premises, only to be told it was a maintenance problem but when in reality they were being disengaged by the defendant. The ministry acknowledged from its findings that the defendant were unfair and neglected to take into account the psychological effect of the sudden loss of their job after putting between 5 and 25 years in service. The ministry from its findings pronounced that the unearned upfront payment was unjust given that it was management decision to terminate their employment and declared it a case of REDUNDANCY. The defendants were directed to commence redundancy negotiations with the workers’ union in line with S.20 of the Labour Act. There is no evidence that this directive was complied with. Rather the defendants took laws into their hands by withholding the benefits of the claimant. 

The defendant is in contravention of the law, there is no proof of compliance with S.20 of the labour Act; neither is there proof of compliance with the directive of the Federal Ministry of labour Abuja where reconciliatory meeting were made and conciliatory steps were taken. That being the case, the defendant took laws into their hands after subjecting themselves to the authority of the Hon Minster Federal Min of LABOUR where under his  hands conciliatory step were taken and the defendant having shown no evidence of compliance, in terms of  working with ASSBIFI the worker’s representative of the claimant in compliance with S. 20 of the Labour Act. 

It is trite law that an order of court whether valid or not must be obeyed until it is set aside. An order of court must be obeyed as long as it is subsisting by all no matter how lowly or highly placed in society. An act of disobedience towards an order of a court can render any further act by those who have acted disobediently to sanctions from other court because no court would want its orders flouted. This is what the rule of law' is all about hence the courts have always stressed the need for obedience of court orders. In the instant case, the appellants, instead of obeying the directives of the Federal Ministry of Labour acting under the powers donated by Part 1 of the Trade Dispute Act LFN 2004 went ahead with the process of terminating the claimants appointment and depriving him access to his benefits.  Their failure to obey the mandatory directive of the Hon Minister of Labour further  rendered actions of the defendant invalid. See Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 CA. In view of the above exposure, the claimant is not and cannot be indebted to the defendant as a result of the termination of his employment after voluntary upfront payment of part of his salary was seized by the Defendant. Relief 3 succeeds. I so declare.

Relief 4 is for AN ORDER directing the Defendant to pay the sum of =N=7,809,906.42 being compulsory staff savings termed gratuity and   =N=275,274.10 being one month salary in lieu of one month notice which were seized by the Defendant in part of the purported debt.

Parties are in agreement there was a gratuity scheme in place and defendant conceded to approximate the claimants years of service to 5 years when indeed the claimant had spent only 4 years and 8 months. That being the case, the defendant is estopped from reneging on this action, see Odua Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) 761 the CA held that if a party carries out for himself a particular conduct or makes a particular representation which he expects the adverse party to rely upon and who in fact relies upon it to his detriment or disadvantage, the former cannot unilaterally retrieve his conduct or representation by mere wave of the hand. He will be estopped from so doing.   In view of the authority above, the amount that should therefore accrue to the claimant is N7,534,632.32 as exhibited in Exh C6. The Defendant has also admitted to the fact that the claimant was entitled to the amount which was the reason it converted the amount (gratuity) to off-set the upfront payment. Does the defendant have a lien over the amount which was agreed on as “gratuity”? This court thinks not, and in view of the reasoning above, the claimant is entitled to the full recovery of his amount N7, 534,632.32 ONLY. I so hold 

For the N=275,274.10 being one month salary in lieu of notice  which was seized by the Defendant as part of the purported debt, this court had earlier declared that the claimant is entitled to this amount which represents what he should get at point of termination considering the fact that his appointment letter Exh C4 was dated Aug 2 2019 and para 1 states “ we write to inform you that your services will no longer be required by the organization with immediate effect.” . A perusal of Exh C1 states “…After confirmation of your appointment, your appointment may be terminated by giving one month notice by either party or payment of one month salary in lieu thereof.” Parties are in agreement that the claimant was a confirmed staff, Exh C2 was tendered without any objection. It therefor my finding that the claimant is entitled to  N=275,274.10 being one month salary in lieu of notice. I so hold Relief 4 succeeds. 

Relief 5 is for the sum of =N=1,358,000.00 being balance of profit share for 2019.

Dw1 was cross examinaed on the issue of profit sharing and she testified in the box that “….profit sharing is payable subject to the employee still in the employment of the company as at the time the profit is paid”. She also informed the court that she did not know if the defendant company met the target for 2019, she had averred in her WSOO that  profit sharing is not automatic but subject to the Defendant meeting certain target and/or exceeding same as set by the Board Management. Profit sharing is only payable  upon meeting targets and getting the approval of the Board Management. Furthermore DW1 maintained that the Claimant is not entitled to profit sharing for 2019 since he was not in the employment of the Defendant until the end of the year 2019 as provided for by the Policy of the Defendant.

DW1’s attention was drawn to Exh C14 (HCPolicy) page 22 clause 3,3,2,2 where the policy provided for prorated share of the profit for employees who leave the defendant before the end of the year. And she was asked in open court if she still stood by her testimony under oath or the provision of the HCPolicy, and she proudly stood in the box and admitted she stood by her statement under Oath.  

It is trite that how a court can find out the truth or otherwise of a witness’ testimony by analyzing the cross-examination and the demeanor of the witness in court. see  Kareem v. State (2021) 17 NWLR (Pt. 1806) 503. In the instant case, going by the records,  DW1 was in the box with the intention of misleading the court and tainting her evidence by her testimony. It is the view of the court that DW1 is not a credible witness, she is not a witness of truth.  The courts have held that  "A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; in the instant case the testimony of DW1 is not worthy of belief, DW1 has controverted her testimony and no probative value can be attached to her testimony. I so find and hold.

In Exh C10, on 1st March 2022, the claimant in response to the defendant’s the email/Reminder on letter of indebtedness, stated “I also noticed from the document that a sum of N427,515.93 was deducted as 2019 profit share. Kindly provide further insight on this item as it is unclear to me”. 

On the 7 of July 2023, the claimant in his email again reminded the defendant to give him insight into the shared profit “as this is way below what was supposed to be paid to me.” In all the response from the defendant, no insight was given neither was any explanation given  to the claimant on how  the shared profit was calculated. 

Can this court therefore grant Relief 5 which  is for the sum of =N=1,358,000.00 being balance of profit share for 2019. By Exh C7 AND C11, the defendant in the spreadsheet provided for shared profit as one of its benefits, and by Exh C3, going by the promotion letter issued, claimant  was promoted to that position w.e.f. Tuesday Jan 2 2018, and under the Manger column in the spreadsheet  he was entitled to N3,062,481.00.

As earlier noted in this judgement, DW1 testimony was contradictory as to the issue of shared profit, therefore her testimony is not credible and no probative value shall be attached to it, in the circumstance claimants case stands undefended not out of choice but in an attempt to pull wool over the eyes of the court, which shall be resisted. This is the finding of the court. Relief 5 succeds. I so hold. 

 Relief 6 is for Interest on the sums in (d) and (e) above at the rate of 21% per annum from 15/8/2019 till judgment and thereafter at the rate of 10% per annum until the final liquidation.

The general rule at common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, pre judgment interest will, be payable where there is an express agreement to that effect and such agreement may be inferred from a course of dealing between the parties or where an obligation to pay interest arises from the common practice or usage of a particular trade or business - Alfontrin Ltd Vs. Attorney General, Federation (1996) 9 NWLR (Pt 4750) 634, Diamond Bank Ltd Vs. Partnership Investment Co Ltd (2009) 18 NWLR (pt 1172) 67. Consequentially, a plaintiff, in order to succeed in a claim for pre judgment interest, must show how the entitlement to such interest arose, that is whether by law, by contract or agreement or he must plead facts showing that the claim is part of the loss or special damages which the defendant's wrong imposed on him. It is not enough to merely say that the plaintiff is claiming interest. The basis of the claim of interest must be made manifest on the pleadings - Ekwunife Vs. Wayne (W.A.) Ltd (1989) 2 NWLR (pt 122) 422, Sani Abacha Foundation for Peace & Unity Vs. United Bank for Africa Plc (2010) 17 NWLR (pt 1221) 192." Per ABIRU, J.C.A.(P. 26, paras. A-G).

In the light of the foregoing authorities, it is without doubt that the Claimant presented no scintilla of proof that there is either an agreement for 21% interest or statutory provision imposing the payment of the said interest on the sum awarded to the Claimant as pre-judgment interest. Consequently, the Claimant is not entitled to pre-judgment interest and same is accordingly refused. I so hold.

With regards to post judgment interest on the other hand, I take into cognizance the provision of the rules of this court which by Order 47 Rule 7 stipulates that the Court may at the time of delivering judgment or making the order, give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum. The defendant has a period of 30 days [thirty days] to comply with the reliefs granted after which the post-judgment simple interest rate of 10% per annum begins to run until all the judgments debts are fully cleared.

 

Relief 7 is for =N=1,500,000.00 being the cost of this action. Claimant exhibited an invoice/fee note with the sum of N1.500.000 as professional fees for filling the suit. There is no doubt that controversy trails the propriety of award of cost as recovery of professional fees paid to a party’s counsel, for legal representation in court of law. See: ACA Bitumen Co. Ltd v. Isah (2016) LPELR-40778 (CA), to the effect that due to lack of privity of contract, ‘a party cannot saddle an opposing party with the refund of the fee when the party was not party in the agreement between counsel and his client’. In view of controversy bordering on public policy consideration for award of cost as recovery of professional fees paid by a litigant to his own counsel at their own terms, I find it suitable to consider award of cost solely in line with the provisions of the anchored on the principle of ‘cost follows event”.

On that note, given the established evidence that there is no basis for the Defendant to have withheld payment of the Claimant’s Salary in Lieu of Notice, to declare the upfront payment as a debt, and withholding the balance of his profit share for 2019, Cost in the sum of N500,000.00(five hundred thousand naira) is hereby awarded in favour of the Claimant against the Defendant pursuant to Or.55 R.1,4,5 of the NICN (CP) Rules 2017. I so hold.

 

COUNTER CLAIM

The counterclaim is seeking the reliefs enumerated earlier in this judgment. 

Which are N10,651,215.08 upfront furniture allowance; N1,770,246.67 upfront housing allowance; N2,942,984.24 upfront estacode allowance; N5M (Five Million Naira) as Solicitors fees ,  Interest on all sums above at the rate of twenty-one (21%) per annum from 2nd August 2019 until Judgement and post Judgement interest at the rate of fifteen percent (15%) per annum until final liquidation.

It is the finding of this court given the earlier reasoning and decision in this judgement, that the defendant has failed to show any proof or evidence that he is entitled to the reliefs. The counterclaim is therefore dismissed. I so hold. 

Judgment is entered accordingly  

 

…………………………..

HON. JUSTICE JOYCE A.O. DAMACHI