IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY 29THSEPTEMBER 2020 SUIT NO.NICN/EN/25/2016
BETWEEN:
CHRIS MITCHELL OSAZUWA…………………………..CLAIMANT
AND
1. INTERNATIONAL TOBACCO COMPANY DEFENDANTS
2. ADENIJI ISMAIL NIJI-ADERONMI
APPEARANCES:
1. O.A.U. ONYEAMA WITH C.B. EZENDUKA (MRS.) AND C.E. NWOKE (MRS.) – FOR THE CLAIMANT.
2. DEFENDANTS’ COUNSEL ABSENT.
JUDGMENT
INTRODUCTION
This suit was commenced by COMPLAINT on 16th June 2016. The following reliefs were claimed at the end of the Statement of Facts:
a. A declaration that the refusal of the 1st defendant, through the instrumentality of the 2nd defendant, to pay the Claimant’s entitlement (full and final settlement, including his pension contributions) in their abundant recourses, after the Claimant had formally handed over all company’s properties in his possession, and his resignation accepted, is abuse of position and illegal.
b. An order of Court mandating the defendants to forthwith pay the Claimant’s full and final settlement, including his pension contributions as outlined in the acceptance of his resignation dated 14th December, 2015 without removing a dime.
c. An order mandating the defendants to get their cooperative to pay the Claimant his entitlement/contributions with immediate effect.
d. An order of the honourable court awarding 10% Compound interest-rate per month on the monetary value of the Claimant’s full and final settlement (terminal benefits) illegally with-held by the 1st defendant, with effect from the 30th Day of April, 2016; and the compound interest, is to be paid alongside with the benefit.
e. A declaration that the Claimant is not owning the defendants any money as claimed by the 2nd defendant.
f. An order directing the 2nd defendant to return forthwith, the GTB BANK CHEQUE NO: 64997606 valued N947,755 issued to him out intimidation, duress, and in error.
g. A perpetual injunction restraining the defendants from further using the Nigerian Police Force, or any other authority, to harass or intimidate the Claimant as regards the GTB BANK CHEQUE NO: 64997606 valued N945,755:00 or any appurtenant monetary claim accompanying the cheque.
h. An order of the Honourable court directing the defendants jointly and severally to pay to the Claimant a punitive GENERAL DAMAGES of N10,000,000 (Ten Million Naira only), for the unmerited wickedness, intimidation, suppression, humiliation and harassment meted unto Claimant by withholding his entitlements, and dragging him up and the police station, for no just course.
i. An order of the honourable court awarding 10% Compound interest-rate per month on any judgment sum, from the date of the award till any day the entire sum is liquidated, and acknowledged by the Claimant.
j. Such further order or other orders as this Honourable Court may consider just and appropriate to make in the circumstances for the redress of the infringement of the Applicant’s fundamental rights.
Against the above, the defendants filed 1st and 2nd Defendants’ Statement of Defence on 14th October 2016. The claimant reacted by filing Reply to the Statement of Defence of the 1st and 2nd Defendants on 21st October 2016. That is all about the pleadings filed by the parties. I now proceed to summarise the cases made in pleadings by the parties.
CASESMADE BY THE PARTIES
A. Case Made By the Claimant
The claimant pleaded that he was the former Area Sales Manager of the defendant, having been employed 9th April 2014 and confirmed 1st November 2014. The claimant pleaded that, he reported to the Sales Consultant at the headquarters in Ilorin and that, the 2nd defendant seized the letter of acceptance of his resignation as lien for payment on certain amount of money for missing items,whereas the 2nd defendant was aware that he needed the letter and the endorsement of the hand-over notes for interview for another job. The claimant pleaded further that, the 2nd defendant used this to blackmail and coerce him to issue him postdated cheques and letters of undertaking. The claimant pleaded that the value of the cheque dropped to N945,755.00 after the 2nd defendant claimed they made a mistake in the calculation and after he had also been forced to cough out N78,000.00 on account of a previous staff who had resigned but worked under the supervision of the claimant. The claimant pleaded thatafter these, the 2nd defendant released his letter of acceptance of resignation and the accounts reconciliation of funds owed by the staff that served under him. The claimant further pleaded that he had refunded the N80,000 floating cash given him by the defendants.
The claimant averred that he subsequently instructed his counsel to write the defendants for the return of the cheque in respect of N945,755:00. The claimant averred further that, at the receipt of this letter, the defendants started threatening him with police and leveled allegations of fraudulent conversions against him whereupon, the police made him to cough out N100,000 as part-payment for the N945,755 but the police investigation could not establish anything against him. The claimant averred that, after this, he instructed his counsel to write another letter of demand for the cheque, which the defendant replied. The claimant pleaded further that, while on bail, the store-keeper to the defendant, on demand, swore an affidavit to the effect that, they could not establish any fraudulent conversion against the claimant, which infuriated the 2nd defendant upon which the storekeeper was sacked, leading to another suit by the storekeeper at this Court. The claimant pleaded further that, the 2nd defendant, not being satisfied with the investigation of the first police department went to another police department to level allegation of theft against him, which the department turned down after the letter of his counsel.
The claimant further averred that till date, the defendants have not paid his terminal benefits. The claimant averred further that he committed no wrong against the defendants to warrant the inhuman treatment meted to him and that his last salary was paid December 2015. The claimant pleaded further that, these treatments have made him to suffer emotional and psychological trauma, apart from making him to lose business opportunities where he could have invested his terminal benefits. The claimant pleaded further that; the defendants equally prevented the defendants’ cooperative from paying him his contributions deducted from source on monthly basis.The claimant pleaded the reliefs claimed as earlier reproduced above, and that ends the Statement of Facts. I now move to the case made in the Statement of Defence.
B. Case Made In Defence By 1st and 2nd Defendants
The defendantsjointly admitted that they accepted the resignation of the claimant but counterpleaded that, as at the time of resignation of the claimant, there was shortage in sales proceedsand the regional account under the claimant’s supervision, which the claimant was asked to make good before acceptance of his resignation and endorsement of the hand-over notes, upon which the claimant voluntarily issued the post-dated cheques and the written undertaking. The defendant counterpleaded that, after the issuance of the cheques and undertaking, the claimant’s letter of acceptance of resignation was released to him. The defendants pleaded that the 2nd defendant never threatened the claimant and that the letter from the claimant’s counsel was an afterthought to outsmart the defendants, having collected his letter of acceptance of resignation. The defendants denied that the 2nd defendant swore to sack the storekeeper. The defendants counterpleaded that the matter is still ongoing investigation and that, the claimant has failed to make good his undertaking and that the cheque issued was dud cheque. The defendants further counterpleaded that the claimant is just using this suit to delay his over due obligations.
The defendants counterpleaded that the claimant actually fraudulently converted the sum of N945,755 from sales produce under his supervision. The defendants counterpleaded that, stay of proceedings ought to be made pending completion of investigation by the police and that, the name of the 2nd defendant be struck out for misjoinder. The defendants finally counterpleaded that, this suit is frivolous and should be struck out.That is all about the pleadings of the defendant. I move to the further justification of the case of the claimant in the reply pleadings filed by the claimant.
C. Further Justification Of The Claimant’s Case
In reply to the joint Statement of defence of the 1st and 2nd defendants that there were shortages in sales proceeds, the claimant averred that, there was none and that the storekeeper had, in writing, denied this and said that it was in the character of the 2nd defendant to raise similar issues against any employee who secured another job. The claimant further replied that paragraph 9 of the defendants’ pleadings supports his case in paragraph 8 of the Statement of Facts. The claimant replied that, the petition to the police alluded to in paragraph 11 of the Statement of Defence was concocted and backdated to beat the claimant’sdemand for return of the cheque. The claimant replied that, he did not issue any dud cheque but that the defendants wanted to extort him because he desperately needed the clearance letter. The claimant replied that the allegation of N945,755 sales proceedloses raised against him was false and concocted to back the attempted extortion. The claimant replied further that the police found no merit in the allegations against him. The claimant further replied that paragraphs 21 and 22 of the Statement of Defence are not meritorious but designed to delay this case and urged the Court to give him justice.
The above,are all about the summary of the cases and defences made by the parties in their pleadings. The Reply pleadings, being the last in the series, I move to the summary of the proceedings and evidence before the Court.
SUMMARY OF PROCEEDINGS AND EVIDENCE
The matter came up first before His Lordship, A. Ibrahim J. on 14th October 2016 and; when it came up again before His Lordship on 26th April 2017, the defence withdrew their notices of preliminary objections [2] filed on 14th October 2016 and both were accordingly struck out. The case came up a couple of times before His Lordship without any significant event until 20th June 2017 when it came up afresh before His Lordship, Essien J. and; could not be heard till 6th November 2018, when it came up before me for the first time. Trial commenced before me on 14th January 2019 with the claimant testifying as CW1. CW1 adopted his written deposition of 16th June 2016, in support of his pleadings.The depositions were virtually a repetition of the Statement of Facts, except with respects to the exhibits. It is therefore not necessary to summarise them in view of my earlier summary of the claimant’s pleadings. CW1 tendered 19 exhibits marked sequentially C1 to C19 without objection. Thereafter, CW1 was cross-examined the same day. At cross-examination, the claimant as CW1 admitted that he undertook to pay for the shortages in stocks in Exhibit C5. He said he however signed under duress and that, he also issued three cheques under duress but admitted that he was not threatened with any weapon. He admitted being invited by the police over irregularities in his stock account with the 1stdefendant as a result of the petition against him on stock shortages and that he made statement at the police station.
CW1 admitted he wrote a letter of resignation that he wanted to seek greener pastures. He said he did not owe the 1st defendant, but that, it made him to write the letter of undertaking as a condition for releasing his letter of acceptance of resignation and to do handover. He said it was not his suggestion that he should write the undertaking but that of the Sales Consultant, who dictated the words. He said the police said they found it difficult to investigate the allegations of stealing and issuance of dud cheques made against him and that, he lost count of the number of times he reported at the police station after he was granted bail because, the police kept calling him to report and that it was not correct that his absence at the police station frustrated the investigation. He said it was not his belief that because, the 1st defendant had abundant resources, he should not ask for its shortages. He said he knew Mary-Rose Okeke as a former colleague at the 1st defendant and not as a friend. He said he had attended several interviews and that, in every place he had worked,they asked for his letters of resignation but that, the 1st defendant did not because,hehad worked withher before, but that, the 1st defendant asked for his letter of resignation the 1st time he worked withher.CW1 said the storekeeper, Mary-Rose Okeke, wrote that there was no shortage of stocks with him. The cross-examination was brought to an end at this stage, while CW1 was discharged.
On 4th May 2019 when the case came up for continuation of trial, the learned counsel to the claimant informed the Court that he would no longer call further witness and that he would be closing the claimant’s case. Thereafter, the defence opened its case with DW1. DW1 adopted his written deposition of 3rd December 2019 in support of the Statement of Defence. It is not necessary to summarise this written deposition because it is virtually a repetition of the Statement of Defence. DW1 tendered eight exhibits without opposition and they were accordingly marked D1 sequentially to D8 and the evidence-in-chief was endedwhile the case was adjourned for continuation. The case came up 10th March 2020 and DW1 was cross-examined.
During the cross-examination, DW1 admitted that he was not working in the same office at Enugu when the incident in issue happened and equally that he was not working in the store in Enugu to know that there were shortages. He admitted knowing Mary-Rose Okeke that worked in the 1st defendant’s office in Enugu. He also agreed that Mary-Rose Okeke was the storekeeper at the time the issue arose but added that; she also doubled as the admin officer.
DW1 admitted that he was not there personally when the claimant voluntarily acknowledged the shortages, but added that the record showed these. He said he was aware the claimant raised issues about the undertaking and the cheques and agreed equally that, the 1st defendant made the issuance of the undertaking and cheques conditions for releasing the claimant’s letter of acceptance of resignation. He said his office was stationed at Ilorin. He admitted he made statement to the police when the matter was under investigation. He said he had evidence of the statement he made at the police station before the Court. He said he did not agree that Mary-Rose Okeke was sacked because of her evidence contained in the affidavit to the police. He said the police did not charge the claimant to court because he wrote undertaking. Thus, the cross-examination was closed without re-examination and DW1 was thereafter discharged, while the learned counsel to the defence equally closed the case for the defence.
The case was thereafter adjourned for adoption of final written addresses, which could not come up on the 6th May 2020 as adjourned because of the total lockdown occasioned by the rampaging COVID-19 Pandemic. The adoption subsequently took place on 7th July 2020, in the absence of defence counsel, without excuse, whose final written address and Reply on Points of Law were consequently deemed adopted. The learned counsel to the claimant [O.A.U. ONYEAMA] thereafteradopted his final written address, whereupon the case was reserved for judgment on 21st July 2020. But the judgment was not ready on this date and was, as a result, adjourned sinedie. When it became ready, date was communicated to the learned counsel to the parties. Having done with summary of the proceedings and evidence before the Court, the next thing is to summarise the addresses of learned counsel.
SUMMARY OF FINAL WRITTEN ADDRESSES
SUNDAY I. ONUEGBU ESQ. franked the defendant’s final written address. The learned counsel formulated three issues, to wit:
1. Whether from the evidence before this Honourable Court, the Claimant’s Allegations of duress has been established; [sic]
2. Whether from the evidence before this Honourable Court, the Claimant is not bound by the undertaking it signed in favour of the 1st Defendant?
3. Whether from the evidence before this Honourable Court, the Claimant is entitled to other auxiliary reliefs?
Arguing issue 1, the learned counsel submitted that the claimant failed to sustain duress. The learned counsel referred to exhibits C5, C7 and C6(1-3) and submitted that, the defendants did the claimant a favour, by accepting the cheques when he could not immediately defray his conceded indebtedness. The learned counsel argued that, when the defendants detected the error in their calculation, they quickly informed the claimant and he issued another cheque accordingly.
The learned counsel argued that, failure to prove duress is proved because; the claimant agreed during cross-examination, that nobody held any coercive weapon to force him to sign the undertaking and to issue the cheques. The learned counsel argued that, the time lag, between 24th December 2015 and 8th January 2016, when the first undertaking and cheque were issued and the second undertaking and cheque, shows that, the claimant had enough time to lodge complaint on the alleged duress. The learned counsel submitted that, failure in this regard proved that there was no duress. The learned counsel argued that, the admission of the claimant that the 2nddefendant was not aware of his interview with another company on which basis he said he signed the documents in question shows that, the real reason for bringing this excuse forward was to avoid the claimant’s undertaking. The learned counsel argued that, the defendants rather relied on paragraph 8 of the contract of employment and the documents executed by the claimantto do what they did in this instance and submitted that, parties are bound by the terms of their contract, citing Atlas Petroleum International v. P.M. Communications (2017) LPELR-41957 (CA).
The learned counsel argued that, since the duress alleged is self-inflicted, the claimant is bound to perform his obligations and; that, failure of the claimant to pay his indebtedness entitled the defendant to withhold his final entitlements. The learned counsel submitted that,the defendants could raise issue of stock at any time, especially at the point of resignation. The learned counsel opined that, the argument of the claimant that the defendants were taking it against him because he wanted to resign could not hold because; there were too many unemployed people outside thus, making no employee indispensible. The learned counsel argued that, the claimant only opted to resign, to avoid paying for the shortages incurred under his control.
The learned counsel argued that, since there was no evidence of enmity between the claimant and the 2nd defendant before these events, malice could not be established and that the 2nd defendant merely acted to prevent a situation where the claimant would leave and the burden of his indebtedness would now shift to the 2nd defendant. The learned counsel cited the learned author, Fatula, in his book BusinessLaw on the factors that would anchor economic duress. The learned counsel submitted that, the claimant did not satisfy any of the enumerated factors to prove economic duress. The learned counsel cited Pao On & Ors v. Lau Yin & Anor (1979) 3 ALL ER 65, 78, F to the effect that, commercial pressure is not enough to sustain allegation of economic duress. Thus, ended issue 1 and the learned counsel moved to issue 2.
Under issue 2, which relates to whether the claimant is bound by the undertaking, the learned counsel argued that,the claimant is bound by the undertaking duly executed in exhibits C5 and C7. The learned counsel cited the Black’sLawDictionary [9th Ed.) and a case law on the definition of contract. The learned counsel submitted that, the claimant is bound because, there was no vitiating evidence against the contract, as demonstrated under issue 1. The learned counsel cited AG Nasaraw State v. AG Plateau State (2012) 10 NWLR (Pt. 1309) 449, E-F. The learned counsel cited paragraph 9 of Exhibit C18 to the effect that, the company has a right of setoff against any money the claimant was entitled to from the 1st defendant and that his total indebtedness was more than what the company owed him. The learned counsel argued that, the claimant’s undertaking was the impetus for releasing him. The learned counsel argued that, the claimant was not a trustworthy person because, he said under cross-examination that he could not lie to deceive, yet deceived the defendants by giving undertaking that he was not ready to honour. The learned counsel cited Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at 662 on approbating and reprobating and submitted that the claimant could not be allowed to enter into contract and opt out at will.
The learned counsel finally submitted that, based on paragraph 9 of the contract of employment and the undertaking, the defendant has the vires to setoff the debt owed it against the claimant’s entitlements. Thus, ended arguments on issue 2 and the learned counsel moved to his issue 3.
Under issue 3, which deals with whether the claimant is entitled to the other auxiliary reliefs, the learned counsel submitted that, there is no evidence in support of pre-judgment interest. The learned counsel further argued that, pre-judgment interest is granted where there is agreement to that effect or under mercantile custom or where supported by principle of equity like, breach of fiduciary duty. The learned counsel cited UBA v. Oranuba (2013) LPELR-20692 (CA) 49 and some other cases. The learned counsel also cited Agip (Nig) Plc v. Ossai & Ors (2016) LPELR-40976 (CA) and GFK Investment Ltd v. Nig Telecommunication Ltd (2009) 15 NWLR (Pt. 1164) 344 at 379, C-G to the effect that, prejudgment interest is a contradiction in terms because, it means, it would take effect retroactively and as such, could not be granted. The learned counsel, on the basis of the above authority, submitted that, the Court could not grant prejudgment interest in this regard. The learned counsel thereafter moved to the issue of punitive general damages.
On this, the learned counsel submitted that, different principles govern the award of punitive and general damages and cited Mobil Producing (Nig) Unlimited & Anor v. Udo (2008) 36 WRN 53 at 102.The learned counsel cited Julius Berger Plc v. Ugo (2015) LPELR-24408 (CA) 134 to the effect that, punitive damages could only be granted where malice aforethought and vindictiveness together with highhandedness and recklessness are proved. The learned counsel argued that, since the claimant did not sue on wrongful dismissal he could not have asked for damages because, he actually resigned. The learned counsel argued that, the claimant ordinarily ought to be punished for reneging on his agreement, as the defendants did not maliciously withhold his entitlements, but only refused to pay because of the claimant’s indebtedness to the 1st defendant. Thus, the address was brought to an end and; I move to the claimant’s final written address in rebuttal.
B. Claimant’s Final Written Address
CHIEF O.A.U. ONYEMA KSJI franked the claimant’s final written address. The learned counsel framed four issues for the determination of the case. They are:
1. Whether the act of undue influence/duress by the defendants against the claimant, entitles the claimant to the remedy of recission [sic] as regards the said transaction (issuing of the GTB Bank Cheque valued N945,755.00). [sic]
2. Whether the defendants complied with the terms of the ‘employee contractual agreement they entered into with the claimant,’ vis: the claimant’s appointment letter, and the letter of accepted resignation they gave to the claimant. [sic]
3. If the above issue is answered in the affirmative, are the defendants liable for breach of contract of employment they entered into with the claimant?
4. Whether the claimant is entitled to his claim in this suit. [sic].
Arguing issue 1, which is whether the claimant is entitled to rescission on undue influence, the learned counsel cited Bua v. Dauda (2003) 13 NWLR (Pt. 838) 657 and submitted that the defendants took undue advantage of the claimant’s need for the letter of acceptance of resignation to secure another employment, which made him to issue the undertaking and cheque against his will.The learned counsel argued that, the claimant is entitled to rescind the contract entered by undue influence and cited Alade v. ALIC (Nig) Ltd (2010) 19 NWLR (Pt. 1226) 111 and other cases. The learnedcounsel argued that, undue influence is proved by either direct evidence or circumstantial evidence and cited Pan Bisbilder Nigeria Ltd v. First Bank of Nigeria Ltd [supra] and submitted that, the claimant has met these requirements. The learned counsel cited paragraphs 8, 9 and 10 of the claimant’s written deposition as the evidence and that, this was corroborated when under cross-examination, DW1 accepted that the issuance of the cheque and undertaking were made preconditions for the release of the letter of acceptance of resignation.
On the basis of the above, the learned counsel urged the Court to order return of the cheque to the claimant; and thereafter moved to his issue 2.
Under issue 2, which dwells on whether the defendants complied with the terms of employment, the learned counsel argued that, the claimant complied with the terms of employment by giving notice of his resignation while the defendants have failed to comply with their obligations. The learned counsel cited infringement of clauses 7 and 8 of the terms. The learned counsel cited Imoloame v. WAEC (1002)? 9 NWLR (Pt. 265) and New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489 CA, 58-59, G-B.The learned counsel also referred to the evidence of the claimant as contained in paragraph 6-23 of his written deposition and that the storekeeper exonerated the claimant in the affidavit tendered as Exhibit C15. The learned counsel also referred to the evidence of DW1 under cross-examination to the effect that, DW1admitted that he was not working in Enugu with the claimant and did not also work in the store to know that there were shortages. The counsel submitted that, it is clear that DW1 knew nothing about the disputes between the claimant and the defendants and therefore, could not give evidence. On the basis of the foregoing, the learned counsel urged the Court to find for the claimant and moved to issue 3.
Under issue 3, which is on whether the defendants are liable for breach of contract, the learned counsel argued that, breach of contract makes the defaulting party liable for damages in favour of the injured party. The learned counsel cited Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 285) 512 and other cases. The learned counsel argued that, the 1st defendant, till date, is liable for; it has failed to pay the entitlements of the claimant. The learned counsel thereafter urged the Court to resolve the issue in favour of the claimant and moved to issue 4.
Under issue 4, which deals with reliefs claimed, the learned counsel argued that, the claimant has proved the ingredients of the cause of action and thus, entitled to the reliefs claimed. The learned counsel submitted that prove of undue influence makes the contract voidable and cited Alade v. Alic (Nig) Ltd [supra]. The learned counsel argued that, wherever there is breach of contract, the innocent party is entitled to damages and cited Warner v. Federal Hoausing Authority [supra]. The learned counsel also cited Osuji v. Isiocha (1983) 3 NWLR (Pt. 11) 623 at 635and Odumosu v. ACB Ltd (1976) 11 SC 55on general damages. The learned counsel argued that, it must be taken into consideration the fact that the claimant lost business opportunity in not being paid his entitlements on time to be invested. The learned counsel argued that, the claimant is entitled to general damages for the psychological trauma and that the award is at the discretion of the Court and cited Ogbona v. Ogbona (2014) AELR 2981 (CA). The learned counsel finally urged the Court to find for the claimant.
That being the end of the final written address of the claimant, I move to the Reply on Points of Law [RPL] filed by the learned counsel to the defendants.
C. Reply on Points of Law
SUNDAY I. ONUEGBU equally franked the RPL. On the point of law that there is undue influence, the learned counsel replied that the claimant only pleaded duress without stating the particulars and never pleaded undue influence. The learned counsel argued that, the elements of undue influence and duress are different. The learned counsel also submitted that parties and the court are bound by the pleadings and cited Emenike v. PDP & 3 Ors (2012) 12 NWLR (Pt. 1315) 556 at 603, B-C and Oyewusi v. Olagbami (2018) LPELR-44906 (SC) and another case. The learned counsel argued that, the claimant having failed to establish duress at trial couldn’t be allowed to raise undue influence in the address. The learned counsel replied that,the contention that DW1 knew nothing about the dispute is not correct, as DW1 is the National Sales Manager of the 1stdefendant; and by virtue of his position, must be aware of issues connected with sales and cited Saleh v. B.O.N Ltd (2006) 6 NWLR (Pt. 976) 316 at 327, A-B to the effect that, a company testifies through its servants, and that as such, any of the staff could give evidence, notwithstanding not being involved in the transaction. The learned counsel argued that, Exhibit C15, affidavit deposed by a listed witness that was not called could not be relied upon, as the deponent was not called.
On the issue of general damages, the learned counsel contended that, even if the defendants breached the contract, the claimant is not entitled to general damages and cited Chukwumah v. Shell Petroleum [supra] and Cooperative Development Bank Plc v. Essien (2001) 4 NWLR (Pt. 704) 492, E. The learned counsel brought his RPL to an end.
Having carefully summarised what I considered as replies on points of law, summary of the addresses has come to an end, I must now proceed to my main duty in judgment writing, which is determining who is right or wrong or whether the claimant has proved his case and entitled to any relief. In doing this, I make haste to say; I have taken cognisance of all the necessary prerequisites. I have carefully read all the processes in the file and noted the relevant ones and taken in the information contained therein. I have equally carefully read the focal authorities cited and did my further personal research on the laws relevant to a just determination of the issues involved. I have taken into consideration the evidence led. I am aware that I did not summarise the written depositions adopted in Court. This is due to the fact that, the written depositions are mere repetitions of the pleadings, which I have carefully summarised earlier on. I have however, carefully summarised the cross-examinations. I shall make references to the relevant parts of the pleadings and evidence,as occasions demand, when reviewing the facts of the case along with my decision. Off to my decision I go.
COURT’S DECISION
I have carefully read the issues formulated by both sides and found that, while those of the defendants are concise, they do not well articulate the actual issues thrown up by the facts of the case, while those of the claimant are verbose. In view of the foregoing, I will combine the issues from both sides and reformulate composite issues from them that cater for all the issues actually thrown up by the facts of this case. These reformulated issues are:
1. Whether the claimant has established the allegations of duress?
2. Whether the defendants are in breach of the terms of the contract with the claimant?
3. Whether the claimant is entitled to the reliefs claimed?
In resolving issue 1, which dovetails on whether the claimant established duress, I start with what is agreed between the parties and therefore, needs no further proof. It is common ground between the parties that the claimant gave the requisite notice of resignation. The areas of divergence are that, the defence claimed2nd defendant seized the letter of acceptance of resignation of the claimant because, the claimant had shortages in stocks or arrears of remittances on stockshe had to redeem as a condition for therelease of the letter and handing-over; and consequently, the claimant signed undertaken and issued a postdated cheque to make good his indebtedness. The claimant on the other hand, claimed that, he did not owe any debt on stocks, as alleged and that; he was forced to issue the undertaking and cheque. The second undertaking, which is the focal one, is dated 8th January 2016[Exhibits C7& D5] and the first letter of attempt to rescind the undertaking is dated 11th January 2016 [Exhibit C11]. There is a document dated 7th January 2016 titled “Enugu Regional Account Reconciliation” [Exhibit C9], which contains a deficit of N523, 421.36. The letter of acceptance of resignation is dated 14th December 2015 [Exhibits C4 &D6].The defendants acknowledged the receipt of the letter of 11th January 2016 [Exhibit C11] from the claimant’s counsel rescinding the letter of undertaking and the cheque issued.
By paragraphs 11 and 13 of the Statement of Defence, the defendants agreed that they received the letter from the claimant’s counsel rescinding the undertaking, but with a rider that, it was received after the petition to the Commissioner of Police dated 26th February 2016 [Exhibit D8]. I could not find evidence of the date the letter of 11th January 2016, from the claimant’s counsel, was received by the defendants,as the claimant did not tender the acknowledged copy or any proof its receipt. The claimant did not equally plead the date. It is taken therefore that the earliest date the defendants received the letter rescinding the undertaken was 26th February 2016. But it must be noted that, the defendants in paragraph 6 of Exhibit D8 [petition to the police] stated that the cheque in question was presented and dishonoured. This cheque was dated 31-01-2016 [Exhibit D4], while the undertaking was dated 8th January 2016. Since the cheque was dishonoured, it means from inception, the claimant never intended to honour the undertaking.
It is therefore irrelevant at what time the claimant’s lawyer delivered the letter rescinding the undertaking and asked for the dud cheque to be returned. So, the issue of not rescinding the duress on time does not arise, as the intended contract was never performed, as it was designed from the beginning to fail, as it turned out, the claimant never intended to honour his obligations therein, which was why the cheque bounced at presentation. Were it that the cheque was successfully cashed, that is when we could begin to talk about lateness in rescinding the duress. But as it is now, the duress was rescinded from the very point when the dud cheque and letter of undertaking were issued. It was a pure game of who outsmarted the other between the two sides. So, when the 1st defendant took the matter to the police, the claimant was dry and home to write rescinding the letter of undertaking and asking for return of the cheque because, that was the first time there was a possibility, though illegal, of having the agreement enforced.
After all, it is has never been blameworthy, but rather praiseworthy, for a victim to outsmart a rogue and glow in his freedom in peace, rest assured that the rogue will sooner than later realise his folly. The claimant, who had outsmarted his tormentors, was not obliged to rescind again what he had made unenforceable or had rescinded ab initio. It is only when the rogue takes another unabashedly devious, brazen and illegal means to enforce the roguish contract, which he, the victim had thought was closed that the victim needs to rescind and resist, which he, the claimant had artfully done in the instant case by buying his freedom from the police, who had joined in the illegality, and engaging a lawyer and finally coming to Court to assert his right. Evidence is on record that the claimant had to cough out N100,000 as part-payment of the debt before he could be released on bail by the police thus, buying his bail from the police. So, ratification, which is the fulcrum of failure to rescind duress on time, cannot be implied in the circumstances of this case.
Now, the real issue is: whether the claimant was actually forced to issue the letter of undertaking and the dud cheque. The Black’s Law Dictionary 8th ed. defines ‘duress of goods’ as:
“The act of seizing personal property by force or withholding it from an entitled party, and then extorting something as condition for its release.”
Another definition of ‘duress of goods’ says:
“Duress of goods occurs when one party withholds the goods of another party until the party enters into an illegal contract. This leaves the party with no alternative than to give in to the coercion.” [See “Duress” at https://www.corporatefinanceinstitute.com]
Concerning ‘economic duress’, it has been said, and I quote:
“Economic duress occurs when one party uses unlawful economic pressure to coerce another party into a contract that they would otherwise not agree to. It can also occur when one party threatens to cancel an existing contract unless the other party agrees to enter into another contract.” [https://www.corporatefinanceinstitute.com (supra)]
It is significant to note that the second and third definitions actually termed distrain and economic pressure as‘coercion’. Thus, the elements of duress are complete in the definitions. The defendants agreed they withheld the letter of acceptance of resignation of the claimant after it was issued and also refused to endorse the handover note as a lien to secure the payment of debts incurred on shortages on stocks by the claimant – see paragraphs 4, 5 & 9 of the Statement of Defence. Two things are clear from the above. One, it is clear that the claimant was entitled to the letter of acceptance of resignation and that this was withheld by the defendants. Thus, the 2nd defendant withheld a property to which the claimant was entitled. It is also clear from the above admission that the defendants, especially the 2nd defendant, withheld this letter as a means of compelling the payment of the debts allegedly owed by the claimants on stocks. If the defendants truly have a right to withhold the letter then, their conducts become right of lien – see Jagal Pharma Limited v. Hussaini & Anor (2013) LPELR-21871 (CA) 28, B-C – and if they lack legal right to withhold the letter as lien, their conducts in issue become extortion – see Hong v. The State (1966) LPELR-25314 (SC) 2, D-F.
It follows that, if the claimant truly owed the defendants, the defendants might lawfully hold on to his letter of acceptance of resignation as a lienand refuse to endorse his handover note as a lever to force the claimant to make good his debt. That is what is called right of lien. The reverse equally holds that, if the claimant did not owe the defendants, the defendants had no right whatsoever to hold on to his letter of acceptance of resignation and to refuse to endorse his handover note.That is what is called extortion. And in this scenario, it does not matter that it was the claimant that proposed the issuance of the postdated cheque and the letter of undertaking, so far the proposition came as a result of withholding the letter of acceptance of resignation to which the claimant was entitled. In any case, the claimant denied making the proposition under cross-examination. The important thing to note is that,the claimant would not have made such propositions, assuming he did make it, had his letter of acceptance of resignation been handed over to him without any conditions attached. Thus, it is the right to withhold the letter of acceptance of resignation that must be examined to make headway in this case, or put in another way, whether the claimant truly owed the 1st defendant.
To resolve the rightness or otherwise of the defendants conducts in issue and in determining whether duress exists in this case, it must be determined primarily,whether the claimant truly owed the defendants any debt. Once this issue is resolved one way or the other, the issue of duress coalesces or evaporates accordingly.It is clear that the theory of the defence is that, being that claimant owed the defendants above his final entitlements, the defendants have right of setoff against his final entitlements, and right of distrain over his letter of acceptance of resignation, as a sort of lien for the remaining debt. From this, it is clear that to resolve the problem, it is of focal importance that the existence or otherwise of the debt be first and foremost ascertained and determined. Absence of indebtedness presupposes ‘duress of goods’/‘economic duress’ and tortious/criminal extortion in favour of the claimant, while existence of indebtedness presupposes rights of setoff and distrain in favour of the defendants. As could be seen, everything revolves around whether truly there was a debt. We cannot by any means run away from an investigation of this focal question.
The document dated 7th January 2016 titled “Enugu Regional Account Reconciliation” [Exhibit C9], contains a deficit of N523, 421.36. Apart from this document tendered by the claimant, I could not find any other document tendered by the defendant to prove the debt of N945,755 made against the claimant. And, as could be seen, Exhibit C9 does not in any way establish that the claimant was indebted to the defendants, apart from not containing the deficit of N945,755 in issue. The defendant seemed to rely on the admission of the claimant in the letter of undertaking and the dud cheque to prove the indebtedness. This is a fatal error of judgment. I have found earlier on that the defendants agreed they exerted force to extract the letter of undertaking from the claimant by withholding the claimant’s letter of acceptance of resignation, as pleaded in paragraphs 4, 5 and 9 of their Statement of Defence and that, in order to justify their actions, it must be proved that the claimant actually owed the debt in question.
It follows that the defendants cannot rely on the letter of undertaking and the dud cheque to prove the existence of the debt because; these documents were clearly products of unwillingness that could only be justified if the claimant truly owed a debt.In any case, the claimant has denied the existence of any debt. Since the existence of the debt predates the letter of undertaking and issuance of the dud cheque, logically the letter of undertaking and the dud cheque could not be the evidence in proof of an alleged debt that predated them. The existence of the debt must therefore,first and foremost, be proved separate from the undertaking and the dud cheque. In proving the existence of the debts in question, the defendants clearly ought to have tendered the store ledger to show the stocks taken by the claimant that were not accounted for and the cost of the items in the stocks, totaling to the amount in issue or any other document duly endorsed by the claimant showing the deficit in issue. The law is that, he who asserts the positive has the burden of proof – see SPDC V. Olarewaju [2008] LPELR – 3046 [SC], 19, E-G.
The defendants asserted that the claimant owed them some debts, on account of which they justifiably seized his letter of acceptance of resignation as a lien; they must therefore prove the existence of such debt, to ground justification for the seizure of the claimant’s letter of acceptance of resignation. The defendants have failed to prove the existence of the debt or any other debt at all and; have, therefore failed to discharge the burden placed on them by law. It follows that the claimant did not owe the defendants any debt, and I so hold.
The claimant gave evidence that he needed the letter of acceptance of resignation desperately to enable him secure another job in the offing thus, showing his state of mind at the time he signed the letter of undertaking and the dud cheque. It is inconceivable that a man not owing another a debt would sign an undertaking of indebtedness backed up with a dud cheque out of his freewill without duress or undue influence. When the defendants could not establish any indebtedness against the claimant, logic and probability support the cogent inference that the defendants used undue influence and distrain [coercion] to obtain the letter of undertaking and the dud cheque from the claimant. There is no other rational explanation in the circumstances. The circumstantial evidence therefore, unequivocally and irresistibly points to only one direction: duress. Duress is therefore established against the defendants; and I so hold.
This is more particularly so in employment relations, where the law presumes the employer to have upper bargaining power, as is evident in the peculiar instance of this case, where the claimant needed the letter of acceptance of resignation urgently for another job. To have no alternative simply means to have no alternative that is not attended with harm. The claimant therefore had no alternative than to issue both the undertaking and the dud cheque, otherwise, he would have suffered the grave harm of losing a job opportunity or of not being able to secure any job in the near future, if he decided to institute action immediately, until the case runs its laborious and unduly long course. No rational person would choose such option while aware of the more viable option of just issuing dud cheque and letter of undertaking to escape the trap.
Having held that the claimant did not owe the defendants any debt, it follows that the defendants illegally withheld the claimant’s letter of acceptance of resignation and also illegally refused to endorse his handover note in order to extort him.Duress, is, by the foregoing, clearly established against the defendants; and I so hold.
It is thus, a misconception of law to argue that duress could only be proved by exertion of direct physical force. ‘Duress of goods’or ‘economic duress’ does not need the exertion of physical force on the victim to be sustained. It only needs distrain and illegal or unlawful demand for money or other thing to be sustained. The coercion is contained in the distrain or the use of unlawful economic pressure to coerce another party into a contract he would not have otherwise entered in a situation where there is no option for the victim.And having no option simply means having no option that is not attended with harm. The claimant has stated clearly under cross-examination, while admitting that no gun was pointed at him that, he was made to write the letter of undertaking as a condition precedent for the release of his letter of acceptance of resignation, that he signed under duress and needed the letter for a job prospect.
The fact that the defendants were aware that the claimant needed the letter urgently or that, at least, the letter was important for the future job prospect of the claimant, is established by the admission of the defendants that they withheld it as a lien to secure the alleged debt the claimant owed them. If the letter were not important, they would not have held on to it. So, they cannot argue with any conviction that they never knew the claimant needed it for another job opportunity. This is clearly a case of ‘duress of goods’and ‘economic duress’ as clearly articulated by the sources quoted above. Logic and probability are the litmus tests of cogency. The evidence of the claimant passed the tests while the evidence of the defence failed these tests woefully.
There is no doubt that in the circumstances of the case, the claimant had no choice than to write the letter of undertaking and issue the dud cheque to enable him secure the job in the offing or look for another job [greener pasture]. After all, paragraphs 6 and 8 of the written deposition to this effect were not countered in DW1’s written deposition and the claimant reiterated this under cross-examination. Were he to refuse and instead immediately proceed to file a suit in court, he would have lost the job opportunity and possibly not have gotten another up till date. This is a 2016 suit just being determined now! Economic-wise, it would have been totally unreasonable and foolhardy for the claimant to take the hard option of having to lose the job opportunity in the process of asserting his right by filing a case in court immediately to compel the defendants to issue him the letter, which would have dragged on till now! He took the better option by issuing the letter of undertaking backed by a dud cheque to the crooks, to get what rightly belongs to him from the defendants and; subsequently filing a suit to challenge the defendants from harassing him on the illegal contract, which was dead on arrival by the issuance of the dud cheque.
The case of the defence is made worse when their very storekeeper at Enugu,where the shortages in stocks and the consequential debts in question allegedly occurred, who is in the best position to know what happened with regard to the stocks, actually swore an affidavit to the effect that the claimant had no stock shortage and was not owing the defendants as alleged and that the defendants were in the habit of extorting their staffs at the point of exiting the 1st defendant-company – see Exhibit C15.
The arguments of the defendants that the Court should not take cognisance of this affidavit because the maker was not called to testify failed to take note of the fact that, this is an affidavit, which does not need the maker to be called or made available for cross-examination before the Court could rely on it, once properly tendered. A person who disagrees with the contents of an affidavit has to depose to a counter-affidavit and not that the maker of the affidavit should be made available for cross-examination – seeIlekure v. Otelabi & Ors (2017) LPELR-43414 (CA) 35, B-C. It is only when the contents of an affidavit and the counter-affidavit opposing it are irreconcilable and cannot be resolved by internal aids that the necessity of vivavoce evidence and cross-examination becomes necessary – Bawa v. Phenias (2006) LPELR-7577 (CA) 20, B-G.
The defendants did not have before me any counter-affidavit in opposition to this affidavit and did not dispute that their storekeeper was the maker. In fact, the evidence of the claimant at paragraph 17 of his written deposition of 16th June 2016 adopted in Court on 14th January 2019 that, it was actually the Police that directed the storekeeper to swear the affidavit in question as part of their investigation, was never denied by the defendants’ witness in his written deposition of 3rd December 2019 adopted in court on 4th December 2019. The claimant has done all that is needed to make the affidavit deposed to by the storekeeper of the defendants in Enugu cognizable before this Court by tendering a certified true copy of the affidavit as a public document and; since the defendants failed to depose to counter-affidavit, I am bound in law to accept as truth the evidence contained therein and;to hold that, the defendants conceded the truthfulness of the contents – see Osigwelem v. INEC (2008) LPELR-4805 (CA) 34-35, F-C.
The affidavit established firmly that the claimant owed the defendants no debt and that the defendants are in the habit of extorting their staffs that resigned. When this very evidence is juxtaposed with the fact that the defendant did not actually tender any document to prove lose of stock, it would be deduced that, the claimant has established a foolproof case of ‘duress of goods’and ‘economic duress’ against the defendants. This factual basis shows clearly that the defendants had no justifiable reason whatsoever to withhold the letter of acceptance of resignation of the claimant; and that, the defendants criminally extorted the claimant by withholding his letter of acceptance of resignation. Duress is therefore doubly proved against the defendants, and I so hold. In view of this, the claimant wins issue 1 while the defendants lose it. I move to issue 2.
Issue 2 relates to whether the defendants are in breach of the contract with the claimant. The letter of acceptance of resignation was released to claimant after the undertaking dated 8th January 2016 [Exhibits C7 & D5] – see paragraph 9 of the Statement of Defence. The notice of resignation of the claimant was supposed to end by January 31st2016. It means the defendants released the letter of acceptance of resignation within time. But the defendants are still in breach of clauses 9 & 13 of the contract [Exhibit C18] when they proceeded to extort the claimant and made him to sign an undertaking and to issue a cheque without lawful justification and refused to pay him his terminal benefits, which they held on to as a set off against the concocted debts, which, as the Court has found under issue 1 above,is inexistent.I therefore hold that the defendants are in breach of the contract and liable to pay forthwith to the claimant his retirement benefits as contained in Exhibit C4. I also order the defendants’ cooperative to pay to the claimant his contributions with immediate effect.In view of the foregoing, the claimant also wins issue 2 while the defendants lose it. I move to issue 3.
Issue 3 deals with the reliefs claimed. In view of the fact that the claimant wins issues 1 & 2 then, he must be entitled to the corollary reliefs. In view of this, I hold that the claimant is entitled to reliefs a, b, c, e, and gwithout any ado because, they are direct corollary to issues 1&2. I refuse relief d, which is on pre-judgment interest because; the claimant did not prove that he is entitled. I could not find that any agreement to that effect was contained in the contract between the parties [Exhibit C18]. Pre-judgment interest is not granted as a matter of course – see Peugeot Automobile (Nig) Ltd & Anor v. Abubakar (2016) LPELR-41602 (CA) 13-14, C-A.I also refuse relief (f), which deals with the order to return the dud cheque because, invariably, this has an indirect effect on the police, which is not joined as party in this suit. The document has been submitted to the police as part of their investigative activities. It would seem it couldn’t be recovered at the whims and caprices of the defendants anymore and I don’t really know any positive purpose its release to the claimant would serve.
On relief (i), I award post-judgment simple interest of 10% per annum from the date of this judgment till the judgment sums are fully paid. I cannot grant compound interest on post-judgment debts because; the judgmentsums were not debts incurred in commercial transactions nor, were there agreements to that effect in the contract between the parties. The rules of this Court only permit it to grant post-judgment interest per annum without mentioning whether it is compound or simple – see Order 47, Rule 7 of the NICN Rules.The tenor must definitely mean simple interest since right to compound interest must be specifically pleaded and strictly proved – see Elizade Nigeria Limited v. Tabek & Company Limited (2013) LPELR-21192 (CA) 19-20, B-C.
I now move to relief (h), which deals with general damages for the trauma suffered by the claimant for withholding his terminal benefits and by setting off the police to harass and humiliate him. In Shell Petroleum Dev. Co. Ltd v. Chief Victor Sunday Olarewaju [2008] LPELR – 3046 [SC] 28, A the Supreme Court approved the award of N3million general damages made by the trial court against the defendant for instigating the police to arrest and detain the plaintiff on unproved allegations arising from termination of employment in circumstances similar to the instant case in these words:
“I agree with the submission of the learned Senior Advocate of Nigeria for the respondent/cross-appellant that the arrest and detention of the respondent by the Police was instigated by the appellant/cross-respondent. Consequently, the appellant as defendant was liable as rightly in my view found by the learned trial Judge.”
It is not in dispute that the defendants herein instigated the Police to arrest the claimant – see Exhibit D8, a petition dated 29th February 2016 written to the Commissioner of Police, Enugu State by the defendants, urging the police to investigate the claimant on an allegation of fraud the claimant allegedly committed against the defendants. In this petition, the police was actually asked to recover the sums of N945,755 and N746,246.85 from the claimant and another person either jointly or severally.The police, by law, is not a debt recovery institution – Oceanic Securities International Limited v. Balogun & Ors (2012) LPELR-9218 (CA) 37-38, D-B. The claimant pleaded in paragraph 14, amongst other issues, the fact that the police made him to cough out N100,000 as deposit when they insisted that he must pay the alleged sums. I found that the defendants did not dispute this issue of depositing N100,000 in paragraphs 11-13 of their Statement of Defence.
The coughing out N100,000 as part-payment of the amount claimed by the defendants was further deposed to in paragraph 15 the claimant’s written deposition of 16th June 2016 adopted in Court and this was not counteracted in any form by the defendants in the written deposition of their witness sworn 3rd December 2019 and adopted in Court. This fact shows beyond doubt that the defendants did more than merely reporting the claimant to the Police for investigation but actually used the Police to harass and extort the claimant. So, this case is on all fours with the Supreme Court’s decision Shell Petroleum Dev. Co. Ltd V. Olarewaju[supra].
The evidence of the claimant at paragraph 17 of his written deposition of 16th June 2016 that he was actually detained by the Police and released on bail was not denied nor was the additional evidence that, when the initial police department investigating the allegations against him rendered a verdict of non-culpability in his favour, the defendants proceeded to lodge another allegation of stealing and issuance of dud cheque against him at another department – see paragraph 18 of the claimant’s written deposition of 16th June 2016. I do not think there is better evidence of using the police to harass and intimidate the claimant than this fact that, the same complaints were being reported against the claimant at different police departments just to make sure that the claimant did not have respite.This is a classical case of harassment and intimidation. Thus, I found proved, harassment and intimidation. In line with the Supreme Court’s approval of damages in similar employment relations matter in Shell Petroleum Dev. Co. Ltd V. Olarewaju [supra], I hold that the claimant herein is also entitled to damages in respect of instigating the police to arrest, detain, harass and extort him for no just cause.
I will also like to draw attention to the fact that, even without the Supreme Court’s authority cited above, the claimant would still be entitled to general damages in view of section 254C-(1)(f) of the 1999 Constitution [as altered], which creates a new head of injury in employment relations called ‘unfair labour practices’. The scenario above exemplifies a very good case of unfair labour practices. And by virtue of sections13, 14, 15 and 19(f) of the National Industrial Court Act, 2006 [NICA] in conjunction with the Supreme Court’s authority in Amaechi v. INEC & Ors (2008) LPELR-446 (SC), 96-97, B-Athis Court is imbued with the requisite statutory and common law powers to grant consequential damages, even if not claimed, where the injury is proved in employment relations over and above the remedies available in master-servant employments. I will come to this anon.
Now, I move to another aspect of the general damages, that is,the aspect dealing with withholding the claimant’s terminal benefits till date. Ordinarily, it would appear that common law does not recognise other forms of damages other than ordering the payment of the terminal benefits to which the claimant is entitled, even where it is proved that it was unreasonably or illegally withheld, as in this case. There were no remedies for traumas suffered by the employees whose terminal benefits were unjustifiably withheld. But with the advent of section 254C-(1)(f) of the 1999Constitution [as altered] which creates the new head of injury titled “unfair labour practices”, this Court is now bound to inquire into the fairness or otherwise of labour practices, even though, they are internal and decide in accordance with objective criterion of fairness, whether they are fair or not; and in doing this, the Court also takes into consideration international best practices in labour and employment relations.
ILO standards, instruments, treaties and conventions are the epitome of international best practices. For fuller discussion of this doctrine, I refer to the decision of this Court in Suit No. NICN/EN/53/2013 – Austin Chukwudoro v. Oiltest Well Services Limited [delivered 28th September 2020] p. 40-58. For withholding the terminal benefits of the claimant unjustifiably, the claimant is also entitled to damages. In a recent decision of the Court of Appeal in Julius Berger (Nig.) Plc v. Emmanuel (2020) LPELR-49603 (CA), it was held:
“I agree with the lower Court in its finding and the resolution thereof, that respondent having been stripped of his employment based on allegation which stigmatized him, the award of damages to the respondent was supportable in view of its powers under Section 14 of the National Industrial Court Act, 2006.”
The defendant not only stigmatized the claimant by peddling allegations of fraudulent conversion and outright stealing against him – see Exhibit D8 [defendants’ petition to the police]. They also instigated the police to arrest and detain him and also criminally extorted him – see Exhibits C12&16 [Police invitation stating cases of stealing, issuance of dud cheque and fraudulent conversion against the claimant] and paragraphs 17 & 18 of the claimant’s written deposition of 16th June 2016, where the claimant’s depositions that he was arrested, detained and coughed out N100,000 as part-payment of the alleged debt; and that, after investigation was completed and the initial department rendered a verdict of non-culpability, the defendants proceeded to lodge complaints of stealing and issuance of dud cheque against him in another police department, and these depositions were not controverted by the defendants, likewise the affidavit of the storekeeper containing similar facts and the more damaging evidence that the 1st defendant has the evil habit of extorting its employees at the point of exit [Exhibit C15].
I therefore unhesitatingly agree that the defendants were unjustifiably wicked against the claimant and that they humiliated him too. In view of the above, the claimant is eminently entitled to relief (h) on all conceivable grounds. The ILO had mandated that when clear and contemptuous violation of principal convention is proved or clear and egregious violation of statutory provisions is proved, the measure of damages must be that which would not only compensate the injured party but, that would also serve as deterrence to the defaulting party and those that would like to copy the egregious conduct. Even under common law this is an appropriate situation where aggravated or punitive or exemplary damages could be lawfully granted – see Odiba v. Azege (1998) LPELR-4465 (SC)15, B-F; 25-26, D-B; Adindu & Ors v. Wabara (2014) LPELR-22861 (CA) 46-47, D-A; African Int’l Ltd & Ors v. Asaolu (2005) LPELR-11340 (CA) and AICE Investment Company Limited & Anor v. Fidelity Bank Plc (2015) LPELR-25753 (CA) 11, A-C.To this extent, there is statutory provision mandating punitive damages in this instance and there is clear and egregious breach of section 254C-(1)(f) of the 1999 Constitution [as altered], which justify punitive damages.
The Court has a burdened duty placed on it by section 254C-(1)(f) of the 1999 Constitution to put an end to the unfair labour practice of employer of labour cooking up criminal allegations against their staff in order to deny them their terminal benefits and prevent them from exiting voluntarily. This practice is worse than enslaving employees. In Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1st edition, 2010) at 157, the ILO explained the principlesthat must guide the award of remedies in situations like this:
“From an international labour law perspectives, two important aspects must be taken into account in deciding on the redress:
1) The discriminatory consequences of the discrimination in employment and occupation must be eliminated;
2) the penalties must have a dissuasive effect on potential perpetrators of discrimination.”
Though, the excerpt is in the direct context of discrimination but the principle established is applicable in all cases where unfair labour practice is established, for discrimination is an aspect of unfair labour practices. In 2008, the Supreme Court approved the grant of N3million for unlawful arrest and detention instigated by the employer. This is 2020, that is, twelve years ago. Definitely the N3milllion naira thenis worth more than the 10million naira being claimed now and the Court has to take cognizance of the inflationary trends in measuring the appropriate damages – see Afolabi v. Alaremu (2011) LPELR-8894 (CA) 45-46, A-C.The Supreme Court has therefore given a yardstick by which the objectivity of damages that could be granted in situations like this could be measured. Another objective criterion that is normally used is that, the defendants are made liable for each and every day that the infringement continued, based on the salary scale of the victim. The defendants have since April 2016 till date withheld the terminal benefits of the claimant and also are still justifying the humiliating treatment meted out to the claimant till now, even leading evidence to the effect that the claimant fraudulently converted their monies and that the matter is still under investigation by the police, euphemism that they are still going to or intend to harass him with police.
I wonder the type of investigation the police have been doing since 2016 till date on a mere allegation of shortages in stocks, misappropriation/fraudulent conversion and issuance of dud cheque that they have not completed till date and charge the claimant accordingly! The allegation that the police turn themselves to a debt recovery agent and enforcer of a disputed contract between parties without the interposition of a competent court of justice might be a pointer to the police complicity in the harassment of the claimant. I will not go further than this because the police was not joined in the case. The Court of Appeal has deprecated the habit of the using the police to harass and intimidate in purely civil cases – see Santrade Investments Ltd & Ors. v. Tino Electronics Nigeria Ltd (2010) LPELR-4931 (CA) 25, D-Fwhile the Supreme Court too, has deprecated the habit of the police failing to perform their duties and turning themselves to debt-recovery agents or enforcers contracts without a judgment from a competent court – see CCC Thrift & Credit Society & Ors. v. Ekpo (2001) LPELR-6984 (CA) 38-39, D-E.
It simply means the defendants were actually intimidating and harassing the claimant and that the defendants are still threatening the claimant with police intimidation and harassment till date. In this wise, since the claimant has not been paid his terminal benefits till date, it is reasonable to make them account for each day the breach continued and for which the claimant suffered. Usually, the measure of damages in such situation is to put the claimant in the position he would have been has this injury not occurred. And the most logical way of doing this and objectively measuring the damages is to make the defendants to pay his salaries till the date of this judgment as if the claimant had remained in their employment till date. That is a sure means of dissuading the defendants from such future conducts and the would-be-copiers and at the same time compensating the claimant adequately. This means payment of the claimant’s salaries for 4 years. April 30 2016 to April 30 2020.
It is clear that in whatever way one looks at it, when account of the psychological trauma, intimidation, harassment, arrests, detention and extortion suffered by the claimant are taken along with the withholding of the claimant’s terminal benefits unjustifiably till date, claimant is eminently entitled to the N10million general damages claimed; and I so hold. It must be noted that general damages need not be strictly proved – Shell Petroleum Development Company Limited v. Nwabueze (2013) LPELR-21178 (CA) 28, C-F. When the defendants went to the extent of instigating the police to arrest and detain the claimant and also illegally withheld his final entitlements in addition to defaming the claimant and illegally extorting him, they have transgressed the realm of breach of contract to the realm of torts against the claimant.
In addition to the above, I think the defendants, who evidently had been in the outrageous habit of extorting their staffers at exit-points by crafting against them roguish debts thereby dodging payments of their terminal benefits in addition to extortions must be taught a lesson strong enough to dissuade them from continuing with this evil and cancerous habit, while the victim-claimant must be adequately compensated in accordance with ILO’s prescription and international best practices.
The claimant is thus entitled to exemplary/punitive damages by virtue of section 254C-(1)(f) of the 1999Constitution[as altered] in conjunction with sections 13, 14, 15, & 19(f) of the NICAin line with the best practices in labour and employment laws as exemplified in Xavier Beaudonnet ed. [supra] and the Court of Appeal’s decision in Julius Berger (Nig.) Plc v. Emmanuel (2020) LPELR-49603 (CA) [supra].The defendants are accordingly ordered to pay N10million damages to the claimant. In effect, I grant relief (h) in full. I also assessed the cost of this action at N500thousand.
I have treated all the reliefs and given my reasons for granting or refusing any of them. It is therefore fitting to bring the case to an end by enumerating in clear terms the reliefs granted.
CONCLUSION
In view of the above and for the sake of clarity, these are the reliefs granted:
a. A declaration that the refusal of the 1st defendant, through the instrumentality of the 2nd defendant, to pay the Claimant’s entitlement (full and final settlement, including his pension contributions) in their abundant recourses, after the Claimant had formally handed over all company’s properties in his possession, and his resignation accepted, is abuse of position and illegal.
b. An order of Court mandating the defendants to forthwith pay the Claimant’s full and final settlement, including his pension contributions as outlined in the acceptance of his resignation dated 14th December, 2015 without removing a dime.
c. An order mandating the defendants to get their cooperative to pay the claimant his entitlement/contributions with immediate effect.
d. A declaration that the Claimant is not owning the defendants any money as claimed by the 2nd defendant.
e. A perpetual injunction restraining the defendants from further using the Nigerian Police Force, or any other authority, to harass or intimidate the Claimant as regards the GTB BANK CHEQUE NO: 64997606 valued N945,755:00 or any appurtenant monetary claim accompanying the cheque.
f. An order of the Honourable court directing the defendants jointly and severally pay to the Claimant a punitive GENERAL DAMAGES of N10,000,000 (Ten Million Naira only), for the unmerited wickedness, intimidation, suppression, humiliation and harassment meted unto Claimant by withholding his entitlements, and dragging him up to the police station, for no just course.
g. An order of the honourable court awarding 10% simple interest-rate perannum on any judgment sum from the date of the award till any day the entire sum is totally liquidated.
h. Cost of this action assessed at 500thousand Naira only.
i. The judgment takes immediate effect.
Judgment is accordingly entered.
…………………………..
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURTOF NIGERIA
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