IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

DATE: 2^nd September 2025                              

SUIT NO: NICN/LA/03/2020

 

BETWEEN:

ESHO MOBOLAJI PETER….………CLAIMANT

 

AND

 

1. COMMINT NIGERIA LIMITED
2. ENGINEER ADEBAYO ADEYEMO…………….………....DEFENDANTS

 

JUDGEMENT 

By a General Form of Complaint and Statement of Facts the Claimant instituted   this suit on 06/01/2020, the Reliefs he is seeking are:

1. AN ORDER that the defendant pay the claimant the sum of N2,233,847.72 being payment of his outstanding arrears of Salaries, Site Allowances, Leave allowances and deducted Un-remitted Pensions owed him by the defendant from the year 2015-2018 which is broken down into the following:
2. N453,378.00 as the outstanding arrears of salaries 
3. N1,122,916.67 as the outstanding arrears of leave Allowance
4. N547,553.05 as the outstanding arrears of pension
5. N110,000.00 as the outstanding arrears of site Allowance owed him by the Defendants from the year 2015 -2018

 

2. AN ORDER that the defendants pay the claimant, Interest accrued on all the monies owed the claimant by the defendants since the years 2018 till judgement is given at the rate of 21% and thereafter till final liquidation of the judgement sum. 
3. Cost of this suit 

 

 

The claimant averred he was in the employment of the 1^st defendant in 2015. His appointment letter was under the hand of the 2^nd defendant who is the Executive Director, Admin/Company Secretary dated January 23 2015. He was deployed to a project “Residences” as a project Manager for the installation of Central Heating Ventilation &Air conditioning system and Central LPG System and the project lasted till 2016 when it was commissioned.  Claimant maintained that he managed the facility for another 15 months while still working on other projects remotely or from the head office. Furthermore he combined his role as site engineer with project manager, project engineer, design engineer, store manager quality control, admin officer etc because the officers had all resigned prior to his appointment. In other not to damage his professional career he made sacrifices to ensure the project succeeded. His complains include the fact that he could not go on leave for 3 years, he was owed salary for several months, his deducted pension was not remitted to his PFA and all efforts to resolve the anomaly yielded no results. Claimant resigned on the 13 MARCH 2018. Claimant solicitors wrote a demand letter dated 30^th July 2018, the letter was not responded to. Upon being served with the originating process, the defendants on 18^th February 2022 paid the sum of N357,911.11 into the claimants first bank account which was 4 years after he stopped working.

The Claimant claims the defendants are still in arrears of salaries, leave allowance, site allowance and Pension deduction in the um of N2,233.847.72.

 

 

Exhibit C1: Letter of Appointment dated 23/01/2015;

Exhibit C2: Email from Sylvester Ola to the Claimant, dated 06/05/2016 at 2.47pm and other letters;

Exhibit C3: Claimant’s Resignation Letter dated 13/03/2018;

Exhibit C4 Email from Defendant dated 14/03/2013 at 1.21pm;

Exhibit C5: Letter to 1^st Defendant, from Claimants solicitor 

Exhibit C6: Email from Moses Bambi to the Claimant, entitled “Testimonies About Commint Nigeria Limited”, dated 24/01/2022 at 18.48pm;

Exhibit C7: Email from Moses Bambi to the Claimant, entitled “Unpaid Dues”,  

Exhibit C8: Claimant’s IBTC Statement of Account from 01/01/2015 to 20/04/2022;

Exhibit C9: Documents entitled Summary of Project Meeting; and

Exhibit C10: Claimant’s First Bank Alert dated 18/02/2022 at 16.47pm.

 

The defendant confirms that the Claimant was a former employee of the 1^st Defendant who was employed as a Mechanical Engineer, via an employment contract contained in Exhibit C1. The defendant denied the fact that the claimant single-handedly managed the project named THE RESIDENCY for 15 months while working on  other projects remotely or from head office, because after the commissioning of the project, and before the management of the facility, there was a defect liability and there was no activity on the project.

On the issue of the claimant performing a combination of job schedule, the defendant denied this and stated that the claimant was employed as mechanical engineer and assigned the duty of   Site Manager, other roles were handled by sub contractor under the supervision of the claimant. That since the letter of employment did not provide for leave allowance and Site allowance, the claimant is not entitled to both leave and Site allowance. As for Pension, defendant maintained that all remittances were made to claimants PFA. That the PAYE tax of the claimant was also remitted to the Lagos State Govt. 

On salary, the defendant maintained that salary was to be paid through income generated from the maintenance of the Residences, due to the nonchalant attitude to his assignment, the Clients (i.e the residences) did not pay the claimant his salary, as a result claimant was not paid his salary.    

 That the claimant failed to comply with the defendants directive to report at the head office twice a week, the defendants had to deduct days claimant did not report to work and as for the salary for Feb 2018 it was not paid because claimant failed to give the required 1 month notice  nor payment in lieu of notice.   

 

Exhibit D1: Schedule of Remittances from Stanbic IBTC Pension Managers;

Exhibit D2: Pay as You Earn (PAYE) payment receipts for the Claimant obtained from the Lagos State Internal Revenue Service (LIRS);

Exhibit D3: Attendance Register of 1^st Defendant showing Claimant’s Attendance Record;

Exhibit D4: Bank Payment Receipt of 09//02/2022

 

 

THREE ISSUES WERE FORMULATED FOR DETERMINATION.

ISSUE ONE: Whether the 2nd Defendant, who is not a party to the Contract of Employment between the Claimant and the 1st Defendant, can be sued thereon

LDC submitted that at the root of the Claimant's case is an employment contract – Exhibit C1 – which is strictly between the Claimant and the 1st Defendant. Under the doctrine of privity of contract, only parties to a contract have the legal capacity to sue or be sued upon it. This principle is well settled in law and is upheld in numerous authorities including BB. Apugo Ltd v. OHMB (2016) 13 NWLR (Pt. 1529) 206 – affirming that a stranger to a contract, even if affected by it, cannot sue or be sued upon it. He also cited UBN Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 and Takum L.G. v. UCB (2003) 16 NWLR (Pt. 846) 288

Secondly, the 2nd Defendant is not a party to the employment contract but merely acted in his official capacity as the Managing Director of the 1st Defendant – a disclosed principal. His acts are attributable to the 1st Defendant and cannot give rise to personal liability. Under Section 65 of CAMA 1990, acts of directors, managing directors, or members of the board carried out in the usual course of business are deemed acts of the company itself. In AREC Ltd v. Amaye (1986) 3 NWLR (Pt. 31) 653, the court emphasized that liability in such instances attaches to the company, not the individual director acting in his official capacity.

He argued that the Claimant’s reliefs – covering salaries, allowances, and unremitted pensions – are liabilities arising from the employment relationship with the 1st Defendant. There is no allegation of personal wrongdoing or independent tortious act by the 2nd Defendant justifying his inclusion. He submitted that the 2nd Defendant is a stranger to the contract, and the Claimant has not pleaded any independent cause of action against him. Accordingly, he is not a necessary party, and his name ought to be struck out from the suit.

 ISSUE TWO: Whether Exhibits C6 and C7 made on 24/01/2022 while proceedings were pending in the instant case are admissible

LDC submitted that S. 83(3) of the Evidence Act bars admissibility of documents made by a person interested, during the pendency or anticipation of legal proceedings, and touching upon facts in dispute. That Exhibits C6 and C7 were authored or generated by Moses Bambi, a disgruntled former employee of the 1st Defendant, and referenced by another former employee, Engineer Francis Mayowa Ezekiel, whose statements were relayed by the Claimant. This qualifies both individuals as “persons interested” under Section 83(3) of the Evidence Act, given that they were previously employed by the 1st Defendant and evidently have grievances.

Since the documents were created on 24th January 2022 during the pendency of this suit, which was instituted on 6th January 2020. Pleadings had closed by November 2021. Thus, the timing of the documents, combined with their express titles – "Testimonies About Commint Nigeria Limited" and "Unpaid Dues" – shows that they were made with litigation in view, precisely what Section 83(3) aims to prevent. Furthermore, the Claimant admitted that the source of the documents and the information therein was Engineer Francis Mayowa Ezekiel, who did not testify in court. This renders any reference to his oral statements or documents attributed to him inadmissible hearsay under S.37 of the Evidence Act. He cited Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42; Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184 these cases reinforce the inadmissibility of documents prepared in anticipation of litigation or statements not made under oath and subject to cross-examination.

Finally he submitted that Exhibits C6 and C7 fall squarely within the prohibition of Sections 83(3) and 37 of the Evidence Act, 2011. They are inadmissible, and the Court is respectfully urged to expunge them from the record, disregard their contents, and prohibit any reliance on them in final address or judgment.

ISSUE 3: Whether the Claimant has proved his entitlement to the reliefs sought based on the terms of Exhibit C1

 

LDC submitted that it is trite that for any contract to be valid and enforceable, it must possess the following essential elements: Offer, Acceptance, Consideration, and Intention to create legal relations. See Olanlege v. Afro Cont. (Nig.) Ltd (1996) 7 NWLR (Pt. 458) 29. There must also be consensus ad idem between the parties on the terms of the contract. Where such a meeting of minds is absent, no binding legal relationship can be said to exist. See also Olanlege (supra).

LDC argued that the Nature of the Employment Relationship between the Claimant and the 1st Defendant, as governed by Exhibit C1, is clearly that of Master and Servant. This contract is the only competent and admissible evidence of the terms and obligations between both parties. And the express terms of Exhibit C1 include: An all-inclusive annual salary package of ?4,200,000.00; A relocation allowance of ?250,000.00; A six-month probationary period subject to performance; Termination by one month's notice or salary in lieu; Work hours and travel allowance as approved; Disciplinary procedures including summary dismissal for misconduct; A reference to a Policy and Procedure Manual, to be discussed upon resumption. Importantly, the Claimant did not provide evidence that the Policy and Procedure Manual was ever given to or discussed with him, nor did he tender the manual in court. Therefore, no additional terms can be implied into the contract beyond what is expressly stated in Exhibit C1. 

Claimant's Reliefs Are Not Supported by Contractual Terms, which include Outstanding salaries; Site allowance; Leave allowance and Unremitted pensions. He argued that  Exhibit C1 makes no provision for site or leave allowances. The claim for these heads of relief is therefore unfounded and contrary to the principle that parties are bound by the terms of their voluntary agreement-A.I.B Ltd v. I.D.S. Ltd (2012) 17 NWLR (Pt. 1328) 1. Also, in Jeremiah v. Ziregbe (1996) 7 NWLR (Pt. 460) 346 at 356, the Court of Appeal held that claims inconsistent with the express terms of an employment contract must be rejected. The terms of Exhibit C1 are clear and unambiguous, and it is settled law that a court is not permitted to import extraneous terms into a written agreement- Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589.

Furthermore, the reference to any other document or amount (such as site allowances or informal payments) not contained in Exhibit C1 is legally irrelevant. If any such sums were paid by the 1st Defendant, they are at best gratuitous and not contractually binding.

On Pension Contributions, LDC submitted that the 1st Defendant has fully discharged its statutory pension obligations, as demonstrated in Exhibit SW1. The Claimant has not presented any credible or documentary evidence to the contrary. His claim for unremitted pension is therefore baseless.

In Conclusion he submitted that the 1st Defendant is not liable to the Claimant for any additional allowances or pensions outside the clear terms of Exhibit C1. All his claims are without legal foundation and the suit ought to be dismissed and to substantial costs award in favour of the Defendants.

 CLAIMANTS FINAL ADRESS

The Claimant Counsel adopted the 3 issues for determination as formulated by the defendant 

 

ISSUE ONE: Whether the 2nd Defendant, who is not a party to the Contract of Employment between the Claimant and the 1st Defendant, can be sued thereon

LCC submitted that a contract is between two or more people who have agreed to be bound by a contract and non parties cannot claim rights in such contracts. He conceded that the 2^nd defendant was not a party to the contract but he was the MD and was in the forefront of interaction and an intermediary between the parties.  He responded to mails which ordinarily should have been responded to by HR Dept and had a personal interest in the matter. Since the defendant did not raise any objection before the court or even while giving evidence the 2^nd defendant was silent and was represented during proceeding, LCC submitted that the 2^nd defendant should be sued alongside with the 1^st defendant.

 

ISSUE TWO: Whether Exhibits C6 and C7 made on 24/01/2022 while proceedings were pending in the instant case are admissible

 

LCC argued that there was a misconception that Exh C6 &C7 were made after the suit was instituted and pleadings concluded.  LCC submitted that Moses Bambi mentioned in Exh C6 was not a staff of the defendant and not an interested person within the context of S. 83(3) Evidence Act, rather he is a staff of the claimants counsel Firm. And the documents were forwaded to him  on 24 January 2022 to aid with the presentation of the case before the court. the content of Exh C6 were email exchanges  between the claimant and Francis Mayowa (a former staff). 

On the assertion that Exh C6 is hearsay evidence, LCC argued that Francis Mayowa is outside jurisdiction and attempt to produce him would occasion delay in the suit he relied on S 39 of the Evidence Act.

 

For Exh C7, LCC submitted that it is dated 8^th November 2017 not 24/January/2022, the conversation therein were made in 2017 between claimant and 2^nd defendant which he was still in employment 

 

ISSUE 3: Whether the Claimant has proved his entitlement to the reliefs sought based on the terms of Exhibit C1

 

LCC submitted that a claim is circumscribed by the reliefs sought-Ativie V Kabelmetal Nig Ltd (2008) 10 NWLR (Pt 1095)399.

 That by Exh C1 and evidence of CW1, the claimant has established he was an employee of the 1^st Defendant; that he worked for 3 years from 2015 – 2018; that the 1^st defendant is indebted to him for outstanding arrears of salaries, site allowances, leave allowances and unremitted pension.

 

That while the outstanding arrears of salaries stood at N811,289.11  when the suit was instituted, the defendants paid N357,911.11 on 18 February 2022, this was paid 4 years after the claimant left the employment of the defendant and 2 years after the suit was filed. 

 

By the electronic email exchanges Exh C2, LCC submitted that the defendants acknowledged the contributions made by the Claimant, but subjected the claimant to ill treatment and neglect which offends S46(1) of the Labour Act and by S. 15 of the Labour Act which provides for wages, the defendant failed to pay his wages when due and payable. 

 

For the unpaid leave and site allowances which the defendant vehemently argued was not part of the terms of the contract, LCC argued that a contract can be made orally or in writing-OLANLEGE V AFRO Cont (Nig) Ltd (1996) 7 NWLR (Pt 458)29; AG RIVERS STATE V AG AKWA IBOM STATE (2011) 8 NWLR (Pt 1248). 

LCC submitted these demands had always been made to the defendant since inception of his employment and was never in contention rather failed promises were made to sustain the payments. Arguing further he stated that during trial, DW1 admitted that these 2 allowances were paid at some point.  He cited By S1 (2) of the Labour Act.

 LCC submitted that those payment were not gifts neither were they described as such. These facts he submitted clearly establish that both parties had intentions to create legal relationship. 

 

On the claim for pension, LCC submitted that EXH SW1 tendered by the subpoenaed witness shows the pension was remitted  up until 2020-2022 years after the claimant left the employment and after the suit was filed.  This contravenes S.11 (2) & (3) of the PENSION REFORM ACT 2014 which provides  that 7 days after salaries are paid deductions have to be made to the PFC.

Furthermore, LCC submitted that the sum remitted was less than what was agreed. What was agreed was N63,000 i.e Employee contribution 8% (N28,000) and Employer contribution 10% (N35,000). The defendants remitted N50,500 contrary to S. 11(6 &7), therefore liable to pay 2% penalty. 

 

On the PAYE Receipts (Exh D2), LCC submitted that no tax was paid on behalf of the claimant, the receipts issues was in the name of the defendant company. LCC submitted that where a claimant has successfully proven his case with evidence, he is entitled to the reliefs claimed-MILGOV ONDO STSTE V AJAYI (1998)3 NWLR PT 540 27 and the court may grant incidental claims  -EZE V GOV ABIA STSTE      

 

DEFENDANT’S REPLY ON POINTS OF LAW

On Exhibits C6 and C7 LDC argued that Claimant’s counsel cannot introduce new evidence or explain documents (like the identity of “Moses Bambi” or the source of C6 and C7) in the final written address — that would amount to giving evidence from the bar, which is inadmissible -Dahiru V The State (2018) 14 NWLR, (Part 1640) 567,Makinde v. Adekola (2022) 9 NWLR (Pt.1834) 13 at page 45, paragraph H— courts cannot link documents to a party’s case without proper oral testimony. Documents speak for themselves and need proper foundation at trial (Ogundele v. Agiri (2009) LPELR-2328 (SC)).

 

LDC submitted that the court should disregard those exhibits and explanations. The claim that it was not “reasonably practicable” to call the maker of Exhibits C6 and C7 (Francis Mayowa) and failure  to lay any factual foundation during trial to justify not to call the witness was only made during final address, not supported by evidence at trial.

While contracts can be oral or written, where a contract is in writing, courts cannot look outside the written terms- Ashaka v. Nwachukwu (2013) LPELR-20272(CA) (Pp. 26-27 paras. E), — the court must interpret only the written terms unless it’s a purely oral agreement. The use of “may” (not “shall”) in the Labour Act means the provision is permissive, not mandatory. Claimant must prove any additional benefits claimed are based on a law or collective agreement he cited  Nigerian Navy v. Labinjo(2012) LPELR-7868(SC) (Pp. 16-17 paras. C),— use of “may” is generally discretionary, not obligatory.  Finally LDC urged the court to reject any attempt to introduce new facts or arguments in final written address; Discountenance Exhibits C6 and C7 for lack of proper evidentiary foundation; Uphold only the written terms of the employment contract; Hold that the Claimant has not proven his claims in law, and Dismiss the case with costs awarded in favour of the Defendant.

 

 

COURT DECISION 

I have carefully looked at the originating processes and have considered the submissions of counsel and authorities relied on. In the final written Adress (FWA), LDC raised an issue whether the 2^nd Defendant who is not a party to the contract of employment  can be sued. 

Learned Defence Counsel argued that since the Claimant's  reliefs sought are based on an employment contract between the Claimant and the 1st Defendant all the actions of the 2nd Defendant were merely in pursuant of his   official capacity as the Managing Director, liability in such instances attaches to the company, not the individual director acting in his official capacity.

In para 4.0.1.6 he submitted that the 2nd Defendant is not a necessary party,  he was at best a disclosed principal and his name ought to be struck out from the suit.  The claimant on the other hand agreed with the defendants argument but submitted that the 2^nd defendant had been in the forefront of interaction, he acted as an intermediary and also acted outside his designation by responding to mails meant for the HR Dept or other depts. Furthermore, the 2^nd defendant was duly represented through out the trial, this objection was therefore late. 

Generally, it is trite that whether or not a party should be joined in a suit is dependent on whether his participation in the suit is necessary or whether it is desirable. See GREEN V. GREEN (1987) 3 NWLR (PT. 61) 480; AGUNSOYE V. AROJOJOYE (2023) 12 NWLR (PT. 1897) 137.

In the instant case, the 1^st Defendant was described in para 1 of the SOF as “a legal entity/company registered under the relevant laws of the FGN (CAMA), running its business as an Engineering company, with its registered address in Lagos state within the jurisdiction of this court”. The 2^nd Defendant was also described in para 3 of the statement of fact as “an Engineer by profession, a citizen of the FRN, and is the Chairman/MD (alter ego) of the 1^st Defendant in this suit”. The defendant in his SOD para 2 admitted that “the defendant admits paragraphs 2,3, and 4 of the claimants SOF”, it is trite law that facts admitted need no further proof. 

Now, while the reliefs sought by the Claimant are based on the workplace operations controlled by the 1^st and 2^nd Defendant, the question is whether, the 2^nd Defendant as Chairman/MD, is he directly involved with the operations of the 1^st Defendant  therefore   qualified as a necessary party?   LDC in his FWA admitted that the 2^nd defendant was “a disclosed principal/agent” therefore his acts are attributable to the 1st Defendant and cannot give rise to personal liability.

By the provisions of Order 13 Rule 14 (1); Order 13 rules 4, 6, 7 make provisions on joinder of any person as a Defendant, it states as follows;  

Any person may be joined as a defendant                                                                          against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the Defendants as may be found to be liable, according to their respective liabilities, without any amendment. 

6.(1) It shall not be necessary for every Defendant to be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against such a Defendant.

 (2) A Judge upon considering the defence filed by any Respondent/ Defendant may on application by that Defendant make such Order as may appear just to prevent the Respondent/Defendant from being embarrassed or put to expense by being required to attend any proceedings in which Respondent/Defendant may have no interest.

7. A Claimant may at the Claimant’s option join as parties to the same action all or any of the persons severally, or jointly and severally liable on any reliefs in the matter.” 

See also F.G.N v Shobu Ltd (2014) 4 NWLR(PT.1396) 63 Paras C-F. “no proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.

I am therefore inclined to disagree with the submission of LDC that the claimant’s pleadings, as presently constituted, do not disclose a reasonable cause of action directly against the 2^nd Defendant in terms of substantive liability. It is my view that the 2^nd Defendant is properly joined as a nominal party to this suit. This is in line with the provisions of Order 13 Rules 4  of the NICN (Civil Procedure) Rules, 2017, which allows for the joinder of any person against whom the right to any relief is alleged to exist.

 

Given the fact that   the 2nd Defendant acted in his official position within the 1st Defendant’s organisation, and that the claimant seeks  reliefs that may or may not potentially affect the interests of the 2^nd Defendant, its continued presence in this suit—albeit in a nominal capacity—is justified for the proper and effective adjudication of the matter. With regards to who is a nominal party,  in F.R.N. v. Dariye (2011) 13 NWLR (Pt. 1265) 521, the court held, a nominal party is a party to an action who has no control over it and no financial interest in its outcome; especially, a party who has some immaterial interest in the subject matter of a lawsuit and who will not be affected by any judgment, but who is nonetheless joined in the lawsuit to avoid procedural defects. In Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593, the court also held that in law, nominal defendants are not condemnable in damages. Since damages follow the cause, where there is no cause, there will be no damages.

Furthermore, in line with above cited cases and relying on Order 13 Rule 7 of the NIC (Civil Procedure) Rules, 2017, the 2^nd Defendant can remain as a party to this suit as it cannot be said that it was embarrassed or prejudiced by its continued participation in the suit as the 2^nd Defendant is a representative of the 1st Defendant. The Supreme court in AYANKOYA V OLUKOYA (1996) NWLR Pt 440 Page 1 SC @15 Para B-D; Page 16 Para B-D,G-H per Adio JSC held that a party alleging mis-joinder is to act timeously. In the instant case, the 2^nd defendant was represented throughout this matter and never raised any objection. Retaining the 2^nd Defendant in the suit as a nominal party serves the purpose of ensuring a complete, just, and robust adjudication of this matter, therefore the objection to strike OUT the name of the 2^nd defendant is over ruled. I so hold   

 

Secondly, both counsel  addressed the court on the admissibility of Exh C6 and C7, while the defendant in Paras 4.1 argued that firstly, the 2 exhibits should be struck out because Moses Bambi was an aggrieved former staff of the 1^st Defendant and by implication he qualifies as an interested party, secondly, the 2 exhibits were manufactured after the suit was instituted and thirdly, the Claimant  in his statement stated that the source of the information (was from one Francis M Ezekiel who was not called as a witness) in other words the exhibits  constitutes heresay by virtue of S.37 of the Evidence Act 2011.  

The claimant Counsel on the other hand, maintained that the defendants were misguided with the facts, that the said Moses Bambi is a counsel handling this brief and the exhibits were forwarded on 24/Jan/2022 to the said Moses Bambi in preparation of the case so  he could not be an interested party. The reason the counsel could not be produced  in court as a witness because he was out of jurisdiction and would have occasioned further delay in the matter. That Exh C7 is dated 8/Nov/2017 and the conversation was between the claimant and Eng. Adeyemo (2^nd Def).

The court took a cursory look at the Exhibit C6 and realised  that indeed it is an email from Peteresho@yahoo.co.uk to moses.bambi1@gmail.com on the 24/Jan/2022 @18.48pm. It was an email message from one Ezekiel Francis mayorfrancis@yahoo.com, (an ex staff of the 1^st defendant) to Peteresho@yahoo.co.uk (Claimant) giving reasons why he resigned from Commit (the 1^st Defendant) and this email was exchanged on the 24 January 2022 @ 5.42pm. 

 

It is clear to the court that this email exchange took place in 24/January /2022 whilst the case was pending. The court held in Olomo v. Ape(2015) 14 NWLR (Pt. 1478) 46 , that Section 83(3) of the Evidence Act is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. In other words, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent. In the case cited, the survey plan tendered by the appellant was prepared during the pendency of the matter. The appellate court held that the trial court was therefore right in rejecting the survey plan.-Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 4; Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) 638; W.D.N. Ltd v. Oyibo (1992) 5 NWLR (Pt. 239) 77 referred to.] (Pp. 59, paras. C-F; 62-63, paras. G-A. In the light of the above reasoning, Exh C6 is inadmissible I so find and hold.

 

Exh C7 on the other hand, are 2 email messages embedded in one.  The claimant sent this email  to moses.bambi1@gmail.com  on the 24 January 2022 @15.53, and attached and forwarded the email messages written on the 8/November/2017 @18.53.33 GMT+1 between Engr Adeyemo (the 2^nd def) and the claimant,  the response of the Claimant was also attached and  sent same day 8/Nov/2017 @12.23.  These 2 attachments were made before the suit was instituted and is therefore admissible, I so hold. 

 

Having dealt with the above issues, this court will now look at the reliefs of the claimant as sought in his amended Statement of Fact, the court will deal with the relief sought seriatim.

The first relief is for AN ORDER that the defendant pay the claimant the sum of N2,233,847.72 being payment of his outstanding arrears of Salaries, Site Allowances, Leave allowances and deducted Un-remitted Pensions owed him by the defendant  from the year 2015-2018 which is broken down into the following:

 

Parties are in agreement that there was an employment relationship between them evidenced by Exh C1. Claimant is before this court seeking for N453,378.00 as the outstanding arrears of salaries, this amount represents the balance from a total of N811,289.11 which the claimant claims was owed him. 

 

The claimant had stated that a total of N357,911.11 was paid into his account on the 18^th/Feb/2022 2 years after this suit was instituted and 4 years after claimant resigned from the defendant company. The court noted that this statement was never disproved by the defendants, indeed the defendant exhibited the payment slip as evidence (Exh D4).

 

In fact, this payment prompted the claimant to amend his statement of Fact to reflect the supposedly correct amount being owed and there was no objection by the defendant. By a simple Arithmetic if claimant alleged that N811,289.11 was owed and later N357,911 was paid then the outstanding would be N453,378.00. 

 

In an attempt to prove his claim, the claimant pleaded these facts in his SOF and tendered Exh C1, which is the bedrock of his employment  relationship, it provided thus in;

article a)    “REMUNERATION: Your salary package is N4,200,000.00/per annum (all inclusive) on the company’s salary grade 13 (SG13)”,

 

In para 12 of his Amended SOF he pleaded that he was owed arrears of salaries, leave allowances, site allowances and   unremitted pension.

Also in para 18 of his Reply to the amended SOD, the claimant reiterated that the defendant had the attitude of owing salaries, this was what prompted his email dated 8^th Nov 2017 stating his displeasure about non-payment of his salary and other entitlement EXH C2. This was the same reason he penned down as the bases for his resignation in Exh C3.

  The court noted that in the amended SOD, DEFENDANT in paragraphs 13, 14, 15 and  16 denied “para 11 and 12 of the SOF”.   and   rebutted the claims  for leave allowance, site allowance, Pension remittances and  PAYE remittances. 

In para 17, defendant stated that the 1^st Defendant is not indebted to the claimant in any sum for any service rendered and “all the salaries”.

In furtherance to his firm denial of the claim, he stated in paras 19-21  that following the claimant  assignment to “the Residences” his salary was to be paid from the income generated from the maintenance of the said “Residences” and   for 2 years, no extra income came into the coffers of the 1^st defendant due to claimant’s inadequate concern and non challant attitude towards his assignment, to which the client (the Residences) failed to pay the claimant’s salary.   In addition the defendant averred that there was no activity on the project between when it was completed, and when the management of the facility commenced.   Therefore the claimant is not entitled to salary for that period of inactivity. 

This court notes with dismay, the defendant’s reasons for not paying the claimants salary. This is a strange term  being introduced into  Exh C1 (the appointment letter) in Para 1  it states: 

“ …we are pleased to offer  you employment as Mechanical Engineer in our organization on the following main terms and conditions

a)“REMUNERATION:Your salary package is N4,200,000.00/per annum (all inclusive) on the company’s salary grade 13 (SG13)”,

 

There is no provision or clause in Exh C1 that provides that the claimant’s remuneration would be paid from revenue generated from the “RESIDENCES” facility or any other project. Neither is there a provision that salary would be halted when there is inactivity in any project assigned to the claimant. 

Infact during cross examination, DW1 testified that the Claimant was not employed by the Residency project or the owner of the residency project.

The defense of the defendant is an attempt to inject a foreign and strange  term into the agreed terms of the employment contract Exh C1. This is an attempt to pull wool over the eyes of the court and it would be resisted. It is trite law that parties are bound by the terms of employment particularly where the terms are clear UBN Plc v Soares (2012) 11 NWLR Pt 1312 550 CA. 

 

It is common practice that salaries and wages are usually payable in arrears at the end of the month after the worker must have discharged his or her obligations under the contract.  

By S. 14 of the Labour Act, wages/salaries become due and payable at the end of each period for which the contract is expressed to subsist, i.e daily, weekly or at such other period as may be agreed upon, provided that where the period is more than one month the wages shall become due and payable at intervals not exceeding one month. 

In the instant case, the claimant has pleaded in his SOF as well as stated in his resignation letter, that the  reason for his resignation is as follows 

“failure to pay me my deserved wages as at when due while you pay others”.

From the evidence tendered, the claimant has been able to present sufficient evidence   to establish that the defendant owes him salary there by shifting the burden of proof to the defendant, so far, Parties are in agreement that the defendant, 4 years after his resignation and during the pendency of this case, after the originating process had been served, paid the sum of N357,911.11 into his first bank account-Exh D4.

 

In para 24.1 DW1 in his WSOO, testified that in the month of October 2017, claimant worked for only 8 days out of 22 working days therefore CW1 earned N104,122.67. the defendant arrived at this amount by dividing the no of days at work(8DYS) by 22 working days and multiplied by the expected payment. 

 

In the month of December 2017, CW1 is alleged to have worked for 15 days and since the month had 21 working days, the claimant earned N204, 526.66

 

In MARCH 2018, according to the defendant, the claimant worked for only 10 days and the month had 22 working days so he earned N130.153.33

 

For the month of February 2018, the Claimant was not paid it was deducted as payment in lieu of notice of termination as provided for in the letter of employment. 

 

The court took a cautious look at the employment letter of 23 January 2015 Exh C1 and noted that no where in the appointment letter was it agreed that monthly salary would be paid based on calendar days or working day (i.e excluding weekends and holidays), what was agreed is 

“your salary package is N4,200,000/annum (all inclusive) on the company salary grade 13 (SG13)”. 

 

 

The principle of contra proferentem protects the non drafting party,  which in this case is the employee/claimant.  The law is trite that where there is ambiguity in a document, the court assumes that the drafter had the opportunity to clarify the terms, so the ambiguity is their responsibility, and the document will be interpreted against the party that drafted it. 

 

The defendant has averred that the salary paid was calculated  based on the working day model (i.e the number of days he worked and the number of working day in a month) but he failed to tender evidence of previous/current  pay slips to its staff  to convince the court  that this was the payment model it operates  as established by practice or custom in their organisation, since this model of payment was never provided for in the terms of contract Exh C1.  Besides this court takes judicial notice of the fact that the most common model for salaried employees is the fixed salary model, where employees receive a fixed amount every month regardless of the number of working days in a month (e.g February with 28 days vs. July with 31 days). Many a times, public holidays are declared by the Nigerian government which applies to both public officers and workers in the private sector, in such scenario the defendant has failed to justify the amount so far paid by its calculation. I so find.

 

As earlier reasoned, the claimant is entitled to a fixed salary not withstanding the number of days in the month, the number of working days  or the number of days he worked.

In his defence, the defendant has averred that the Claimant did not report for work on the days his salary was deducted. In Exh C1, the appointment letter item No “F” provides for misconduct, and a list of offences are itemised there to which the organization will be entitled to exercise its power of summary dismissal. The court noted that the months of October and December 2017 which the defendant maintains the claimant did not report to work, there is no evidence of a query being issued nor an invitation to face a panel, the only exhibit tendered is an attendance register, to proof he was absent from work,  the defendant in para 26 again stated that the claimant on 8^th November 2017 was directed to report to the head office twice a week (Wednesday/Thursday) but the claimant failed to comply, the court noted that the defendants did not follow up to enforce the directive, the law is trite that an employer cannot legally deny or withhold  salary for work done,  salary must be paid regardless of an employees conduct  unless there is a valid suspension without pay pending investigation or inquiry. Besides if an employer chooses to overlook an infraction, the employee cannot be punished retroactively by docking pay. The conduct of the employer amounts to a waiver of his right to punish for the past conduct especially if the punishment is unrelated to warrant a salary denial. 

 

The act of the defendant by denying or withholding the salary is a blatant breach of the contract especially where the employment agreement guarantees regular pay and an unlawful deduction was made which is not expressly permitted by law or not authorised in writing. 

The defendant had the option of following proper disciplinary procedures (warnings, suspension or termination) not by unilaterally deducting the claimant’s salary.  By S. 5(1) of the Labour Act, no employer is expressly permitted to make deduction from the salary for or in respect of fines without the written consent of the employee. 

 

 It is pertinent to state at this point that salary is a legal obligation imposed on the employer and cannot be suspended due to in-activity of the employer’s bussiness. The defendant’s argument that since there was in activity between when the project was commission   and when the defendant started managing the facility, therefore the claimant is not entitled to his pay runs foul of the law see S. 7 of the Labour Act and the implied duty of the defendant to pay   salary.  

 

The defendant also by his calculation deducted one month salary because the claimant failed to give notice of his resignation and going by Exh C1, it provides that “….either party initiating the termination of service will be required to give one (1) month notice in writing or equivalent pay in lieu”  

In Exh C3, the resignation letter was dated 13 march 2018 and the resignation was w.e.f 15^th March 2018.  

Parties are in agreement that claimant’s salary was N350,000 monthly, and after deductions it amounted to N286,337.33. this court finds that the claimant is not entitled to one month  salary   due to his failure to give notice to his employer of his resignation.  It is trite law that parties are bound by the terms of the contract of employment, see Exh C1 para c.   

Relief one succeeds to the extent that Claimant has therefore been able  to establish his claim to N453,378.00 less one month salary  as the outstanding arrears of salaries. I so hold. 

 

The claimant has stated that he did not go on leave  for 3 years due to the tight and busy work schedule. He also stated that the leave and site allowance had been paid earlier but was not sustained. In his additional WSOO para  11  CW1 claimed that the  leave allowance are part of his statutory entitlement.

 

DW1 on the other hand, stated in para 16 WSOO that the defendants never had any agreement to pay leave allowance. He however testified during trial that the 2 allowances (leave/site allowance) had been paid at certain periods and he was aware that the claimant had made demand for the allowances.   He maintained further that even if the allowances had been paid, they were voluntary gifts made to the claimant.  

 

The court  noted that in Exh C1, annual leave was not captured as a term of the contract and article “h”  states OTHER TERMS AND CONDITIONS are contained in the company’s Policy and Procedure Manual. The court however noted that the Company policy manual was never tendered before the court. 

 

Be that as it may, it is trite law that although the courts tend to apply strictly and give effect to the written terms and conditions of service and will usually refrain from making contracts for the parties by altering the written terms or imposing new terms on the parties, there however exist, statutory terms and conditions of employment as provided for in S. 7-19 of the Labour Act.  S 7 provides for the written particulars of terms of employment (which by the way must be given to the worker not later that 3 months after his engagement). This section gives an over view of what the terms of a contract should be, such as the name of the employer, the nature of the employment, the duration, rates of pay and method of payment, hours of work, holiday and sick leave entitlements, notice period for termination, any applicable collective agreement. 

This provision promotes clarity and transparency between parties. S.7 (1) (g) (ii) stipulates for any terms and condition relating to holidays and holiday pay. As a general rule, an employee is entitled to wages during his leave, usually payment of salary during leave or holidays is incorporated into his contract of service. From the provision of the labour Act it is clear  that holiday and holiday pay is a statutory entitlement. I so find. 

 

The claimant stated that leave allowance had been paid earlier but was not sustained, this was corroborated by DW1 during trial. The claimant is claiming N350,000 per annum for the years 2015, 2016, 2017 and 2018. The claimant was    employed January 23 2015 and resigned on the 13 MARCH 2018. He is seeking N350,000 Per Annum  for the period he worked i.e 2015-2017 and N72,916.67 for 2018. 

 

The claimant has established his entitlement to the leave allowance, the defendant confirmed during trial that claimant had made demands for the leave allowance. In the circumstance this court is convinced that the claimant is entitled to the sum of N1,122,916.67

this court therefore grants an order for the payment of N1,122,916.67 as the outstanding arrears of leave Allowance Relief 2  succeeds, I so hold.

 

 

© Relief 3 is for N547,553.05 as the outstanding arrears of pension. 

The claimant was employed January 23 2015 and resigned on the 13 MARCH 2018. By the provisions of the Pension Reform Act (PRA) 2014, it is the duty of the employer to deduct and remit pensions together with the contribution of the employer. This is a statutory obligation which carries a penalty for failure to comply. S.11(3) PRA 2014 places a duty on an employer to deduct at source the monthly contribution of the employee and within 7 days of such deduction remit the amount to the Pension Fund Custodian mentioned by the Pension Fund Administrator (PFA). S.4 provides guidelines for such contributions and S.103 states that a person who does not comply with the provisions of the Law has committed an offence. Section 100 (2) compels the defaulting employer to refund all amounts not remitted or misappropriated.  It is in evidence in this court as shown on exhibit C8/SW1 that the defendants failed to remit the pension remittances of the claimant as at when due.  

The defendant by his conduct in Exh C2 admitted that pension for MAY 2015 was remitted in March 2016. And pension for the months of JUNE -DECEMBER 2015 was yet to be paid because management approval was pending. 

During trial, STANBIC IBTC  Pension Managers  gave evidence on behalf of the defendants and  produced the current statement   of account of the claimant’s remittances.   This was tendered, admitted and marked as Exh SW1. A look at Exh SW1, indicates that the pension of the claimant was not paid as at when due.

The claimant however contends that he still has an outstanding arising from a shortfall from the amount deducted and remitted. In para 22 (3) claimant avers that 8% of the amount is expected to be N28,000. while 10% of the employers contribution ought to be N35,000, total contribution would amount to N63,000. The LCC has argued in his FWA that remittances were made to IBTC later than the period stipulated in the PRA  2014 S. 11(2&3) i.e not later than 7 days from date salary is paid. Secondly LCC argued that from SW1 the highest amount paid was N50,400 instead of N63,000. 

The COURT took time to scrutinise  Exh SW1 and noted that indeed the defendant company remitted the pension contribution months and sometimes years later than is required by the PRA 2014, and there were clear indication from the entries that the amount was far less than what the claimant was entitled to in the circumstance, in addition in Exh C2, the communication dated 06/05/2016 between the Accounts department and  the claimant also indicate an admission that remittances were not paid promptly, see para 2 & 3 “secondly, Pension for June -December 2015 is yet to receive management’s approval for payment. Thirdly, Please do not take the matter up with PENCOM as the management is currently working on ensuring that these liabilities are settled.” 

There is therefore no doubt that remittances were delayed and the amount paid were less, the claimant is therefore entitled to N547,553.05 as outstanding arrears of pension.  I SO  HOLD. Relief 1 C succeeds. 

In Relief 4, the claimant is seeking N110,000.00 as the outstanding arrears of site Allowance owed him by the Defendants from the year 2015 -2018. From the SOF, the claimant is a qualified engineer by profession and from his testimony and exhibits tendered, claimant had worked at the RESIDENCY Project as a site engineer. It is his case that earlier in his employment, site allowance had been paid but Claimant failed to tender evidence to support   his pleading by way of a pay slip or statement of account. Although parties are in agreement that he had worked at the defendant site/project and payment had been made but it was not sustained, this court is left to speculate on the amount that was paid, which it cannot do.  The claimant has not been able to proof he is entitled to this relief i.e the site allowance, it is trite law that parties are bound by the terms of the contract they have entered into. see Adams v. L.S.D.P.C. [2000]5 NWLR (Pt 656)291@319, Paras F-G. The employment contract did not provide for this allowance, the claimant failed to establish that by the custom of his profession and as agreed with the employer SITE Allowance should be paid, even the amount that was purportedly paid earlier was never disclosed to the court, in the circumstance Relief 4 fails I so hold.

 

(E) The claimant is seeking for AN ORDER that the defendants pay interest accrued on all the monies owed the claimant by the defendants since the years 2018 till judgement is given at the rate of 21% and thereafter till final liquidation of the judgement sum. 

It was Rhodes-Vivour JCA (as he then was) relying on Ekwunife v. Wayne (W.A) Ltd (1989) 5 NWLR (Pt. 122) 422; Texaco v. Pedmar (Nig). Ltd. (2002) 13 NWLR (Pt. 785) 526; Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. (1970) 1 All E.R 225 and A.B. Kemp Ltd. & Ors v. Tolland (1956) 2 Lloyds List Report 681 in P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt. 1055) 478 at 500 who took time out to espouse on the position of the law on the vexed issue of pre-judgment interest in the following words –

''When actions are brought on Commercial matters, the courts usually find that  money ought to have been paid sometimes ago. In such cases, it ought to carry  interest and that is pre-judgment interest. The time, pre-judgment, when it would  start to run depends on evidence. The basis of such an award is that the defendant had kept the plaintiff out of his money, and the defendant has had the use of it for himself, so he ought to compensate the plaintiff accordingly''.

 "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 claim of 21 % pre-judgment interest on the judgment sum is refused and also dismissed.

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. 

This court is convinced that  the claimant has succeeded in proving that the defendant owed him salaries and over time deliberately failed and neglected to remit his pension when due as provided by the PRA, this action has undoubtedly caused the claimant hardship, Exh SW1 indicates that remittances were made many years after his resignation and after this case was instituted in 2020 in other words, if he did not seek justice, his fate was uncertain as to whether he would have ever enjoyed his pension benefits,   which every Nigerian worker is entitled to enjoy. 

 

The Cost of this suit is assessed at N750,000.

All  sums   hereby awarded in this Judgment shall be paid within 30 days from the date of this judgment failing which simple interest of 10% per annum shall apply.  

Judgement is  entered accordingly.

 

Hon Justice Joyce A. O. Damachi 

Judge