NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE P.A BASSI
DATE: Friday, 11th June 2021 SUIT NO. NICN/LA/436/2021
BETWEEN
IFEYINWA OKOYE ………………. CLAIMANT
AND
CAPITAL SQUARE LIMITED ………………. DEFENDANT
REPRESENTATION:
UCHE AGARRY ESQ. …….. FOR THE CLAIMANT
A. CHIOMA A. OKORO …… FOR THE DEFENDANT
JUDGMENT
The claimant commenced this suit by way of a complaint together with the accompanying processes dated and filed on the 17th day of September, 2017. By a further amended General Form of Complaint and amended Statement of Facts dated the 8th day of February, 2018, the Claimant seeks the following reliefs against the Defendant:
(i) The sum of N1,566,000.00 (One Million Five hundred and Sixty-Six thousand naira) being the total outstanding salaries due to the Claimant comprising from September 2015 – July 2017; the months the Claimant was irregularly paid (from commencement of employment to termination of employment) the agreed salary package while still an employee of the Defendant.
(ii) 20% interest on the said sum of N1,566,000.00 (One Million Five hundred and Sixty-Six thousand naira) from the date of termination of the Claimant’s employment until final liquidation of the said sum.
(iii) The sum of N250, 000.00 (Two hundred and Fifty Thousand naira) being the amount of the Claimant’s salary against the Defendant for failure to serve one month notice on the Claimant of termination of employment.
(iv) The Claimant further claims the sum of N5,000,000 (Five million naira) as general damages.
(v) The costs of this action.
The defendant entered appearance and with the leave of court, filed and relied an amended Statement of Defense & Counter-Claim on the 20th day of February, 2018. The Claimant then filed a Reply to the statement of Defense/Defense to Counter-Claim. Pleadings were then deemed closed and the matter set down for trial.
On the 21st May 2018, the Claimant testified as CW. She adopted her sworn deposition on Oath of 8/2/2018. Exhibits C1-C9 She was cross-examined and thereafter discharged. The Claimant then closed her case.
On behalf of the Defendant, a Mr. Obinna Anyawu testified as DW1 he adopted his sworn deposition and was cross-examined and thereafter discharged.
A Christiana Felix testified on behalf of the Defendant as DW2. She also adopted her sworn deposition on Oath of 2/5/2019. DW2 was also cross-examined and thereafter discharged. The Defendant tendered into evidence Exhibits D1-D7 and then closed its case.
Parties were then ordered to file their respective final addresses which were adopted on the 16/3/2021 and judgment was the reserved.
THE CASE BEFORE THE COURT
It was the Claimant’s case that she was employed by the Defendant as the Hall Administrator to Trinity Hall Residence of the Pan Atlantic University. It was the Claimant’s case that she was placed on a N3,000,000:00 (Three Million Naira) yearly renumeration to be paid at the rate of N250,000:00 (Two Hundred and Fifty Thousand Naira only) monthly. That this was an oral agreement as no employment letter given to the Claimant .
It was also the Claimant’s case that her first salary was paid in tranches of N100,000:00 (One Hundred Thousand Naira only) N150,000.00 (One Hundred and Fifty Thousand on a later date.
That the Defendant then served the Claimant with a letter dated 21st March, 2016 titled Salary Reduction on the 20th April, 2016 wherein her salary was reduced from a monthly renumeration of N250,000.00 (Two Hundred and Fifty Thousand Naira only) to N150,000.00 and a car in lieu of the new salary structure. That the Claimant rejected the salary reduction outrightly and insisted on her agreed monthly renumeration of N250,000.00 (Two Hundred and Fifty Thousand Naira only) and thereafter wrote a letter dated 2nd June, requesting for the outstanding balance of her salaries which were yet to be paid by the Defendant from the commencement of her employment.
The claimant further contends that the Defendant continued paying her in piecemeal and efforts to recover the outstanding balance of the Claimant’s salaries proved unsuccessful and the Defendant subsequently terminated the Claimant’s employment a letter dated 24th July, 2017 without a notice or payment of salary in lieu.
To the defendant, it was a start-up company which suffered a major setback at the starting point as it took off with fewer students than was anticipated. That this led to difficulties in paying the salary agreed with the Claimant. It was the Defendant’s story that on 20th March 2016, it held a meeting with the Claimant where she was informed that her salary will be reviewed downwards with effect from March 2016 from N250, 000.00 to N150, 000.00 as it (the Defendant) could not pay the agreed salary due to economic difficulties it was facing. A subsequent notification of this decision t was sent to the Claimant and she accepted this decision, only to start writing Two (2) Months after the review that she did not agree/ accept the salary reduction after the Defendant had commenced payment of N150, 000.00 per month.
That the relationship between the parties degenerated and the Claimant’s employment was then terminated in July 2017 and one month’s salary in lieu of Notice was paid to her.
These are the contending facts as put forward by the parties at trial.
SUBMISSIONS OF THE DEFENDANT IN FINAL ADDRESS
Learned Counsel to the defendant formulated the following Issues for determination by this court;
1. Whether the Claimant has made out a case entitling her to the grant of the reliefs sought in her statement of claim.
2. Whether the Defendant has made out a case entitling her to the grant of the reliefs sought in her counter-claim.
On issue 1, counsel submitted that the Claimant having been paid her entitlements and one month’s salary in lieu of Notice, is bereft of any claim in that regard relying on the case of SHOKOYA VS NTC LTD (1970) NCLR 343. Further counsel submitted that from the conduct of the Claimant which he opined amounted to gross misconduct, she was liable to instant dismissal without any payment by way of terminal benefits from the Defendant. That however the Defendant took a lenient approach by paying the claimant’s entitlement when it terminated her contract of employment, in July 2017. He cited that case of AJAYI VS TEXACO NIG LTD (1987)3 NWLR (PT.62) 577@ 594-595 as his authority.
It was the defendant’s contention that as the Claimant admitted receipt of her Salary arrears and the new salary from March 2016 till July 2017 as well as the sum of N150,000.00 in July as payment in Lieu of Notice, the Claimant had no reasonable cause of action and her suit thereby constituted an abuse of process relying on the case of Ekpuke v Okon (2001) 44 WRN 85@ 104-105.
On the claim for interest, counsel submitted that even though the Claimant endorsed the claim for interest in both her writ of summons and statement of claim, she did not plead any facts or even give evidence of such facts in her statement on oath of how she is entitled to the interest being claimed. He then urged the court to refuse this head of claim.
On the claim for damages, counsel submitted that a claim for damages, such as that being made by the Claimant, requires proof, even though the specific amount being claimed does not relying on the case of HAROLD SHODIPO CO VS DAILY TIMES (1972) 7 NSCC 635 @ 638. Counsel argued that the Claimant had offered no proof of what damages she had suffered as a result of the termination of her contract of employment by the defendant and submitted that it is also an elementary proposition of law that an allegation of damages is deemed traversed and any amount claimed thereby is deemed not admitted, even where it is not disputed citing NIGERIA PRODUCE MARKETING BOARD VS ADEWUNMI (1972) 7 NSCC 622 @ 668. That the claimant was not entitled to be awarded any damages in this suit as she had by her own admission ben paid her entitlements.
On the claim for N250,000 as salary in lieu of notice, counsel submitted that the second N150,000.00 payment in July 2017 was the Claimant’s salary in lieu of Notice as per her letter of termination and all these payments collected by her, terminated her rights and claims on this and settled this issue once and for all . That the Claimant is bereft of any claims in this regard including costs, having collected all her entitlements, one month salary (N150,000.00) paid her in July 2017 and another N150,000.00 paid in accordance with her letter of termination as salary in Lieu of Notice
On the counterclaim, counsel submitted that the Claimant was bound by the terms of her contract of employment which she collected, accepted, corrected and executed but failed to submit to her employers. That by clause 14 of the said Contract of Employment, she agreed to her duty of confidentiality, to keep the information about the company, its activities inter alia confidential. That this clause was breached by the Claimant when she wrote Exhibit C4 to the Director, student affairs PAN-ATHLANTIC UNIVERSITY Lagos revealing the internal operations of the Defendant contrary to her Agreement on confidentiality under Clause 14 of her employment Agreement.
That the revelations in the letter is not only a breach of her contract but also defamatory to the Defendants reputation to her business partners. Also that the Claimant while moving her belongings from the Defendant’s property on 26/07/2017 verbally abused and attacked the Defendant’s managing director and committed further breach of the contract and breaching of the terms of confidentiality.
Counsel therefore submitted that from the forgoing evidence, the Claimant truly breached her contract of confidentiality with the defendant and is therefore liable to damages claimed.
SUBMISSIONS OF THE CLAIMANT IN FINAL ADDRESS
Learned Counsel for the claimant formulated a lone issue for the Court’s determination to wit;
1. Whether from the circumstances, facts and evidence adduced in this case, the Claimant is not entitled to the reliefs as contained in the amended General Form of Complaint and amended Statement of Facts?
In arguing this issue, counsel submitted that the parties here i.e. the Defendant and the Claimant having clearly agreed on the terms at the beginning of the contract, same parties ought to be bound by the said terms and urged this Honorable Court to give effect to the said binding terms of contract in the determination of this matter relying on the case of COOPERATIVE DEVELOPMENT BANK PLC VS EKANEM (2009) 16 NWLR (PT 1168) P. 585 @ 603.
Counsel further submitted that the intention of the parties (the Claimant and the Defendant) to the contract of employment is as clearly shown in their uncontroverted evidence before the Court. He referred the court to paragraphs 4, 5, 6 & 7 of the written statement on oath dated 8/2/2018 of the Claimant and paragraph 3 of the amended Statement of Defence filed on the 20/2/2018 and submitted that facts admitted need no further proof while referring the court to Section 23 of the Evidence Act and the cases of BIEZAN EXCLUSIVE GUEST HOUSE LTD VS UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (PT 1246) 246 @ 285 and AROMOLARAN VS OLADELE (1990) 7 NWLR (PT 162)262 @ 368
Counsel argued that that the conduct of the Defendant in the way, manner and mode of the payment of the salaries in piecemeal and fundamentally refusing to stick to the original salary structure of N250, 000.00 on monthly basis amount to a gross violation and/or flagrant breach of the agreed terms and conditions of the contract of employment between the parties. That the Defendant having been notified of the rejection of the Claimant in respect of the salary reduction, took no steps to avail the Claimant the option of resigning from the employment or to terminate the employment of the Claimant upon her refusal of the reduction. This, he submitted amounted to the Defendant acquiescing to the Claimant’s rejection of the salary reduction and the Defendant cannot be exonerated from the liability of paying the agreed salary of N250, 000. 00.
Counsel submitted that SHOKOYA VS NTC LTD (SUPRA) cited by the defendant was not applicable to the defense of the Defendant. That the Claimant was not given one-month Notice neither was she paid the one-month salary in lieu of notice and it is therefore not in doubt that evidence abound that the Defendant is still owing the Claimant her outstanding salaries. He then urged the court to find that the Claimant was entitled to all the reliefs sought in this action and to discontinuance all the authorities relied upon by the Defendant.
On the counterclaim, learned counsel submitted that the issue that arises for determination is;
1. “Whether the Counter-Claimant has been able to substantiate his claims with any or credible evidence, thereby entitling it to the reliefs sought before this Honorable Court.”
In arguing this issue, counsel submitted that Defendant to Counter-Claim’s stay as an employee, there was no time she was requested or queried for not returning the said Employment Agreement. That the said Employment Agreement allegedly issued and given to the Defendant to Counter-Claim, of which clause 14 of the said Agreement was breached was not before this Honorable Court as evidence, hence it was thus illogical for the Counter-Claimant to allege that such clause was ever breached. That there no evidence that there was such agreement between the Counter-claimant and the Defendant to Counter-Claim. That the Defendant to the Counter-Claim had always stated before this Court that she was never given any Employment Agreement, Counsel submitted that the Counter-Claimant had failed to discharge the onus of proof that defendant to the counterclaim was ever given this alleged document and thus urged the Court to so hold.
Furthermore that it was beyond doubt that there is no single or shred of evidence whatsoever presented by the Counter-Claimant to substantiate the pleadings in this action relying on ENEMCHUKWU V. OKOYE (2017) 6 NWLR (PT 1560) P. 37. Counsel therefore urged this Honorable Court to hold that due to lack of evidence to prove the claims of the Counter-Claimant, his pleadings are deemed abandoned and the entire claims dismissed
COURT’S DECISION
I have carefully considered the processes filed in this suit and evaluated the exhibits placed before the court. The very foundation and what arises for this court’s determination is whether or not the claimant is entitled to the reliefs sought for in this suit. However, there are certain facts that are not in dispute here. The parties are ad idem that the Claimant was employed by the defendant on a monthly salary of N250,000. Parties are also agreed that the Defendant unilaterally reduced the Claimant’s salary from N250,000 monthly to N150,000 monthly. The Defendant gave various economic reasons for this action. See paragraphs 11,12 and 13 of the sworn deposition of 12th of July 2018 of DW2 Christiana Felix as well as paragraphs 8,9,10,11,12,1617,
Now the claimant’s position is that the defendant never gave her a contract of employment. The defendant on the other hand was adamant that the Claimant had a written contract similar to Exhibits D7a for Adangwu Robert, Exhibit D7b for Ukali Rose Upanakun and Exhibit D7c for Christiana Felix Henshaw. The defendant however cannot rely on these Exhibits in proof of the fact that it gave a written contract to the Claimant which permits the review of the Claimant’s salary. Only parties to an agreement are bound by it. Contracts voluntarily entered into by the parties are binding on them and a court of law will not sanction an unwarranted departure from them unless they have been lawfully abrogated or discharged. See the case of FBN Vs Zebra Energy Ltd (2002) Pt 754 @ Pg 471 and Calabar Cement Co. Ltd Vs Daniel (1991) 4 NWLR Pt 188 Pg 750
The Defendant’s Witness (DW1) in paragraph 5 of his deposition on Oath averred that he would tender a copy of the Employment agreement at trial. Exhibits D7a,D7b and D7c are not the contract of employment between the defendant and the Claimant. It cannot be relied upon in proof of the terms between the parties before this court and I so hold. The employment contract referred to in paragraph 6 of DW1’s deposition with the claimant’s alterations in her handwriting was also never tendered.
I therefore find that Exhibits D7a, D7b and D7c are inapplicable to the instant suit and would be discountenanced by the Court for irrelevance. I so hold.
Now, the Claimant’s salary was N250,000 a month. This is not in dispute. See Exhibit C2 paragraph 2 and paragraphs 8, 14 and 22 of DW1’s deposition on Oath. The question is “did the parties agree to a reduction of the Claimant’s salary from the established N250,000 to N150,000 a month?”. I do not believe so. The evidence before the Court show that in paragraph 17 of DW1’s deposition, the defendant made the decision to reduce staff salaries and in paragraph 14 of the said deposition, the Defendant informed the Claimant of its decision to reduce her salary. Paragraph 19 of DW1’s deposition also shows the claimant’s rejection of the Defendant’s offer of a car to ameliorate the reduction in salary. This tallies with the Claimant’s story in paragraphs 8,9 and 10 of her deposition of 8th February 2018.
DW2 in paragraphs 10 and 11 of her deposition on Oath stated that she had agreed to the salary reduction. That does not show that the Claimant had agreed to such a reduction.
The onus is therefore on the Defendant to show the agreement by the Claimant accept the reduced salary of N150,000 per month as the Claimant had denied such agreement and he who denies, is not required to prove such denial. The Defendant on the other hand is stating the positive of the preposition that the Claimant agreed to the reduction and hence must prove same. See the cases of NSEFIK & ORS. v. MUNA & ORS.(2007) LPELR-3934(CA) where the court of Appeal held thus;
“The maxim “he who asserts must prove" operates thus: "A man cannot be expected to prove a negative assertion. The Latin saying sums up the matter as follows:- Eiineumbit probatio qui licit non qui negat; cum per naturam factum negants probitio nulla sit. Meaning: "the proof lies upon him who affirms, not upon him who denies since, by the nature of things he who denies a fact cannot produce any proof.
I therefore find that the Defendant unilaterally and without the consent of the Claimant reduced the mutually agreed N250,000 monthly salary to N150,000 monthly. The Claimant is therefore entitled to the balance of her salary in the sum of N100,000 from March 2016 to July 2017 when her employment was terminated as shown in Exhibit D4.
By the Claimant’s Exhibit C1 and paragraphs 16, 17, 17a and 17b of her amended statement of facts as well as paragraphs 15, 15a, 15b,15c and 15d of her deposition on Oath of 8th of February 2018, she had received a total of N3,884,000 from the defendant as salaries from the start of her employment to July 2017 a total of 23 months. At the rate of N250,000 monthly, I agree with the Claimant that she should have been paid N5, 750,000. This leaves the outstanding payment to the Claimant as N1,566,000 as the defendant had made a payment of N300,000 to the Claimant in July 2017. I must state here that Exhibit 2 cannot be relied upon by this court as it is an undated and unsigned document with no evidential value. See the cases of Garuba v. KICC [2005] 5 NWLR (Pt. 917) 160, Omega Bank Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 547) and Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047.
I therefore find that relief (i) succeeds. The defendant is hereby ordered to pay to the Claimant the sum of N1,566,000 within 30 days of today failing which, it shall attract interest of 20% per annum until liquidated.
Now in the absence of a contract of employment, recourse must be had to the Labour Act on the notice required to terminate a contract. By Section 11 (2)(c) of the Labour Act, where an employment has subsisted for more than 2 years but less than 5 years as in this case, the employee is only entitled to 2 week notice. 2 week being the half of a month, this makes it N250,000 divided by 2 which comes up to the sum of N125,000.
Now the Defendant made a payment of N300,000 to the Claimant in July salary. I therefore find that the defendant is only liable to an additional N75,000 to the Claimant. when this is added to the N50,000 from the July payment, it would come up to the N125,000 payment for the notice period and the Defendant would have fulfilled its obligation as to the payment in lieu of notice to the Claimant and therefore Relief (iii) hereby succeeds to the extent that the Defendant is to pay the Claimant N75,000 as the balance for the salary in lieu of notice which is also to be paid within 30 days of today.
This court only awards post judgment interest and I find that no case has been made out for the court to order for the payment of pre-judgment interest as sought in relief (ii). I therefore refuse relief (ii) and it is therefore dismissed accordingly.
I find no grounds have been shown to the court’s satisfaction for the award of general damages in the sum of N5 million and I therefore dismiss relief (iv)
Parties are to bear their respective costs.
Judgment is entered accordingly.
…………………………….
Hon. Justice P. A. Bassi
Judge
Counter Claim
The Counter-Claim is for;
i. A refund of the sum of N150,000.00 (one Hundred and Fifty Thousand) paid to the Defendant to the counter-claim on the 31st July, 2017.
ii. The sum of N5,000,000.00 (Five Million Naira) as damages for breach of contract.
iii. The sum of N5, 000, 000.00 (Five Million Naira) as damages for the tort of libel and slander committed against the Counter-Claimant.
iv. The cost of this action.
In view of the court’s decision in the main suit to the effect that the defendant to the counterclaim was entitled to the payment of salary in lieu of notice and the subsequent set off from the payment made in July 2017 to the defendant to the Counter-Claim, I find not basis for the award of relief 1 here and it is dismissed accordingly.
I similarly that there is no evidence before the court to warrant the award of reliefs 2 and 3 here. I agree with the defendant to the counterclaim that the counterclaimant had not placed any evidence before the court to justify the court finding in his favor. The Court cannot make assumptions as to the breach of a document not placed before it. I am not satisfied that this agreement was ever given to the defendant to the Counter-claim or if it even exists.
The allegations as to defamation are also unproven.
This counterclaim is without merit and is consequently dismissed.
Parties are to bear their respective costs.
Judgment is entered accordingly.
……………………………….
Hon. Justice P.A. Bassi
Judge