IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE:THURSDAY SEPTEMBER 30, 2021
SUIT NO.NICN/EN/191/2013
BETWEEN:
MR. EL-AMINU YAKUBU………………………………….CLAIMANT
AND
BONTUS OIL AND GAS NIGERIA LTD
CHIEF UCHENNA B. OKAFOR
MR. GOZIE OKAFOR DEFENDANTS
MR. OKEY OBIABUMUO
APPEARANCES:
1. COUNSEL TO THE CLAIMANT ABSENT.
2. G.O. AYOGU WITH J.U. OKEKE – FOR THE DEFENDANTS.
JUDGMENT
INTRODUCTION
COMPLAINT commenced this suit 24th July 2013. The reliefs claimed in paragraph 32 of the Statement of Facts [SF] are:
(1a) From the first defendant an order for payment to the claimant of the February 2012 salary of N75,000.00 covering the month of notification of resignation in February to the date of resignation in March 2012: or
ALTERNATIVELY
(b) From the first defendant an order for the payment to the claimant of the February 2012 salary of N50,000.00 covering the month of notification in February of resignation to the date of resignation in March 2012.
(2a) A declaration that the first defendant’s reduction of the claimant’s salary from N75,000.00 to N50,000.00 from July 2008 to December 2009 is wrongful, illegal, unlawful and contrary to his agreement with the first defendant.
(b) An order of the court on the first defendant for the payment of the sum of N450,000.00 at the rate of N25,000.00 per month representing the monthly salary balance of the N75,000.00 due to the claimant from July 2006 to December 2009 a period of 18 months.
(c) A declaration that the further reduction of the claimant’s salary from the N75,000.00 to N30,000.00 from January, 2010 to February, 2012 is wrongful, illegal, unlawful and contrary to his agreement with the First Defendant.
(d) An order of the court on the first defendant for the payment to the claimant of the balance of N45,000.00 following the reduction of the claimant’s salary to N30,000.00 instead of the N75,000.00 from January 2010 to December 2012 a period of 26 months totally N1,175,000.00; OR
ALTERNATIVRLY
(3a) A declaration that the first defendant’s reduction of the claimant’s salary from N50,000.00 to N30,000.00 from January 2010 to February 2012 is wrongful, illegal, unlawful and contrary to his agreement with the said defendants.
(b) An order for immediate payment to the claimant by the 1st defendant of the sum of N520,000.00 being the balance of the salary of the claimant from January 2010 to February 2012 (26 months) at the rate of N20,000.00 per month.
(4a) A declaration that the claimant is entitled to the payment of his rent subsidy as promised and agreed with the first defendant at the time of his employment with the 1st defendant [sic]
(b) An order for the refund by the first defendant of the sum of N1,254,000.00 being the money spent on rent at the rate of N350,000.00 per annum from July 2008 to February 2012, a period of 3 years and 7 months the claimant was in the employ of the first defendant.
(5a) A declaration that the defendants were wrong in the seizure of the claimant’s OPEL OMEGA Car No. AG 372 KTE in February 2012 and subjecting him to a lot of hardship including the risk and expense of traveling from my State to Enugu for the purpose [sic]
(b) An order on the defendants, jointly and severally, for the immediate release of the car and payment of the sum of N10,000.00 per day being damages for loss of use and detention of the car from the 14th day of February 2012 to the date of judgment and thereafter until the car is released by the defendants.
(6) An order of perpetual injunction restraining the defendants by themselves, agents and privies from harassing, intimidating or in any way interfering with the life, movement or any business or work the claimant may engage on.
The defendants reacted to the above by filing their Amended Statement of Defence and Counterclaim [ASD&CC] 4th February 2016. The claimant reacted via Reply and Defence to Counterclaim [R&DCC] on 26th November 2013. The next thing is summary of the pleadings.
SUMMARY OF THE PLEADINGS
A: Statement of Facts
The claimant pleaded that, he was employed by the 1st defendant about 23rd June 2008. He pleaded that, he had agreement with the 2nd defendant, being the 1st defendant’s chairman that, his salary would be N75,000.00 monthly, payment of rent subsidy, transport and other allowances but, that, the 1st and 2nd defendants reneged when he resumed duties and started paying him N50,000.00 monthly. He pleaded that later, on 1st September, 2008, the 1st defendant gave him letter of “Offer of Probationary Employment” [OPE], where his salary was reflected as N50,000.00; and that, when he questioned this and the non-payment of rent, the 2nd defendant assured him that, these would be paid that, they only did what they did, to prevent agitation for salary increase. He pleaded that, subsequently in January 2010, the salary was further slashed to N30,000.00; and that, this continued until March 2012 when he left the company.
The claimant pleaded the arrears incurred as a result of these cuts as N450,000.00 on reducing N75,000.00 to N50,000.00; N1,170,000.00 on the reduction to N30,000 from, January 2010 to February 2012 at the rate of N45,000.00 and; N520,000.00 based on the OPE slash from N50,000.00 from January 2010 to February 2012, a period of 26 months. He pleaded further that, the 2nd defendant took the self-executed original and the counterpart copy of the OPE from him and failed to return them. He pleaded notice to produce the OPE and; that, based on the promise of the 1st and 2nd defendants, he continued to pay his rent of N350,000.00 per annum by borrowings: for three years seven months, culminating in N1,254,000.00. He pleaded, he was overused by being made to teach the 3rd and 4th defendants, apart from his normal schedules and overtime without allowance and that, after tapping his experience, the defendants made the office unbearable for him and he tendered his notice of resignation 12/2/2012. The claimant pleaded that, thereafter, he continued coming to office to prepare his handover but that, on 14th February 2012 his Opel Omega Car was seized by Messrs. Gozie Okafor [3rd defendant] and Okey Obiabumuo [4th defendant], who claimed they acted on the instruction of the 2nd defendant. He pleaded that; he thereafter came to office to complete his handing over and tendered his resignation letter on 12th March 2012.
He pleaded that, on this date, he demanded for his car and payment of his February 2012 salary and other outstanding salaries and allowances recounted earlier above and; that, the defendants kept promising. The claimant pleaded that; as a result, he had to come from Nasarawa State several times to Enugu State, to pursue his entitlements and the release of his seized car and thereby incurred expenses on transport and hotel accommodation. He pleaded that, he informed his friend Alhaji Bello and both of them went to the defendants to plead for the release of his car and payment of his outstanding entitlements; and that, the 3rd and 4th defendants apologised and stated that, the 2nd defendant, who was not around, had not given them the instruction to pay the entitlements and to release the car; and that, all his subsequent visits to press for these, proved abortive.
He pleaded that, he thereafter instructed his lawyer to write the 1st defendant and; he did, vide letter dated 3rd June 2013; which was ignored. He pleaded that, he had been denied the use of his car since 14th February 2012 to date and pleaded that, similar car generates N10,000.00 daily. He pleaded that, based on the defendants’ refusal to release his car and pay his outstanding entitlements and the costs incurred in pursuing these, he claimed the reliefs earlier stated above. That ends the claimant’s pleadings. I move to the defendants’ ASD&CC.
B: Amended Statement of Defence and Counterclaim [ASD&CC]
The defence counterpleaded that, the total package of the claimant was N50,000.00 and; that, he did not coach any staff of the 1st defendant. The defence counterpleaded that; the claimant was Depot Rep in charge of insurance audit/account and Petroleum Equalisation Fund [PEF] but, was derelict on his duties: by being a truant. The defence counterpleaded that, the appointment letter issued the claimant got lost in the course of changing office. The defence further counterpleaded that, two of their truckloads were unattended at the depot for two days due to claimant’s truancy and; that, this cost the 1st defendant a cumulative N470,000.00. The defence counterpleaded that, apart from being a truant, the claimant deliberately used to make himself incommunicado by switching off his phone, using other lines to which the company had no access, and had other jobs; and that, he went on MSc programme without the 1st defendant’s approval, which programme prevented him from having time for his employment with the 1st defendant, despite being on full time employment with the 1st defendant.
The defence counterpleaded that, the claimant was very careless and inefficient, leading to his drafts, PEF/Waybills claims being returned and thereby, causing the company losses. The defence also counterpleaded that, the claimant deliberately dumped the company’s PEF/waybills claims in the sack bags at the NNPC Depot till they expired after three months, causing the company millions; and that, some of these PEF/waybills were retrieved by another company’s rep and returned to the 1st defendant, when the claimant did not attend to his work, and could not be reached on phone. The defence counterpleaded that; the claimant began threatening the Good Samaritan. The defence pleaded the specific PEF/waybills. The defence counterpleaded that, the company became aware too late because of the volume of their transactions and because, the claimant constantly covered up his tracks; and that, the claimant is in league with some persons who wanted to run the company out of business.
The defence pleaded that, the claimant’s car was not seized and that, he had been issued a lot of queries and even refused to reply, leading to suspension. The defence counterpleaded that, the claimant had not handed over since his resignation and; that, the claimant had been reported to the PTDU-NUPENG, the union in charge in the line of business. The defence counterpleaded that, a report was lodged against one Tochukwu Okonkwo Chairman of AlphannaChuks Ltd for inciting the claimant against the 1st defendant and luring him to work for his company; and that, it was to cover up this, the claimant rushed court to frustrate the investigation. Thereafter, the defence moved to their CC.
The defence counterclaimed on the basis of paragraphs 1-32 of their pleadings and claimed the following reliefs:
i) A DECLARATION that the 1st and 2nd Defendants are entitled to their PEF/Waybills that was lost, misplaced, destroyed and dumped away by the Claimant.
ii) An ORDER [sic] of court mandating the Claimant to pay over same to the Defendants.
iii) General Damages for harm and injury done to its name, hard earned reputation and goodwill.
iv) Cost and other expenses sustained while defending this action.
The claimant reacted to the above in his Reply and Defence to Counter Claim [R&DCC] by counterpleading the CC that, he was not negligent to duties and that, contrarily, his efficiency earned him, several promotions and that, he did not leave the trucks in issue or any trucks unattended for two days and that, this was a fabrication. He counterpleaded the CC that, his phones were always on and; that, he always answered the defendants’ calls, unless if there was network problem, or the phone was being charged or during prayers; and that, he never switched off his phones to attend to other works. He counterpleaded further that, he was never warned by the defendants not to undergo MSc and; that, in any case, the lectures only started after he had left the company, while the lectures only took place thrice a week in the evening. He counterpleaded the CC that, he never lost or deliberately dumped any of the defendants’ PEF/Waybills claims at the depot. The claimant counterpleaded that, the position was that, any PEF/Waybills not processed were returned to the office and kept, like when fuel subsidy on Ago was removed, and the chairman duly informed; and that, the claim that, they removed them from the NNPC sack bag at depot was false.
The claimant counterpleaded that, all the PEF/Waybills frontloaded were the ones processed and duly enjoyed by the 1st defendant. The claimant replied that, the person he handed over to was the 4th defendant [Okey Obiabumuo] and that; he duly endorsed the handover notes. The claimant counterpleaded that, he was not in league with anyone to destroy the company; and that, the queries were issued as a witch-hunt, while the suspension letter was set aside because of his defence and; that, he never served any suspension in the company. The claimant replied that, the defendants’ letters dated 14th March 2012 and 12th July 2013 were written in anticipation of this suit/during the pendency of the suit.
The claimant replied that, the defence and CC were unfounded and should be discountenanced and signed off the R&DCC. Having carefully summarised the pleadings. The next thing is summary of the proceedings and evidence. There I go.
PROCEEDINGS AND EVIDENCE
The matter came up first, according to records, before His Lordship A Ibrahim J. of this Court on 18th October 2013. It was adjourned for further mention and again on 26th November 2013. On 6th December 2013, the defendants’ motion to regularise their Memo, Statement of Defence and Counter Claim [SD&CC] was granted unopposed. The case was thereafter adjourned for hearing and further adjourned on the 6th February 2014 due to absence of counsel to the parties. On 16th July 2014, the counsel for the claimant asked for adjournment and the matter was adjourned to 29th October 2014. On this date, the claimant asked for adjournment to debrief his counsel and secure the services of another. It was therefore adjourned to 2nd December 2014 for hearing.
The case was opened on this date, with the claimant testifying as CW1. CW1 adopted his Written Statement on Oath [WSO] deposed 24/07/13 and the second made 26/11/13. The case was subsequently adjourned the same date to 14/01/2015 for ruling on the admissibility of OPE. It came up next 01/06/2015 and adjourned again for want of service on the defence. It came up next 03/02/2016 [mistakenly written as Thursday 4th February 2016 at p. 14 by clerk’s endorsement, but signed off by the judge as 03/02/16 at p. 18 and the following day again by the clerk as Thursday 4th February 2016 at p. 22 and signed off at p. 31 by the judge as 4/2/16] and the OPE was admitted as Exhibit C1, while the case was later adjourned that day to the following day on ruling on the admissibility of letter of resignation and other documents. [Part of the record of was missing p. 23-26 (2 sheets, 4 pages).
This I discovered while writing the judgement and drew the attention of my clerk to it on Saturday 25th September 2021. I later resolved to continue with the judgment because, I was of the opinion that, it would not be fatal because, the documents were initially identified by description and paragraphs of the pleadings at p. 18 and all were subsequently admitted except one. And those admitted were listed at p. 31 of file. Therefore, whatever issue is to be made of it at appeal, can fairly be resolved, since the exhibits will be before the Court of Appeal – see Abisoye v. The State (2016) LPELR-40148 (CA) 15-17, C-A. It should be noted that, the parties adopted the records of previous proceedings instead of trial de novo. The Sale Agreement dated 4th January 2010 between Okechukwu Ilogbenu and Yakubu Aminu was marked rejected, while all others were admitted as Exhibits C2, C3, C4, C5(a), C5(b), C5(c), C5(d) and C6. That ends the issue of missing records. The examination-in-chief was closed at this stage, while the case proceeded to cross-examination.
Under cross-examination, the claimant maintained that, he was employed 23/6/2008. He referred to Exhibit C1 and stated that, his salary was N50,000 per month and; that, he was never paid N75,000 and; that, since he resigned, he had been a private consultant; and that, at the point of employment, he had BSc Accountancy, but did not make it available to his employer, but that, before his employment with the 1st defendant, he was a contract staff with the NNPC and; that, he was not forced to work for the employer. He said his rent was N350,000 per annum and; that, he did not engage in any other employment during the currency of the contract with the 1st defendant and; that, he was married to one [sic] with no child as at the point of testimony. He said the car was bought for private use and that, he did borrow to pay his rent between 2008-2012, but could not say the actual person from whom he borrowed the money. He said he borrowed on the promise of the Chairman of the company. At this point the case was adjourned for continuation.
The matter came up next on 30th January 2013 and on this date, the defendants moved their motion on notice for amendment of their Statement of Defence and Counter Claim [SD&CC] dated 7/1/16 but filed 12/1/16 and it was granted unopposed. The Amended Statement of Defence and Counter Claim [ASD&CC] was subsequently filed 04/02/2016 [p. 356]. The cross-examination continued. The claimant responded that, he did not have his admission letter for MSc with him and; that, he did not file same before the Court. He admitted that, there was no evidence showing before the Court that he was a contract staff with the NNPC but that; he filed it with his employer. He admitted that, he had no authorization to proceed on the MSc programme by his employer, to warrant filing same before the Court. He admitted that, he was issued query and he answered while his suspension was later withdrawn. He said he was aware of paragraph 17 of the Further Written Statement on Oath [FWSO] and; that, what he said there is the same as under cross-examination. He insisted that, his employment with the defendant company is on full time basis. He admitted that, the signature on the FWSO was his and; that, he signed it in this Court. He said PEF waybills that have been processed are normally kept by the PEF itself and that, he did not process PEF bridging claims for Mr. Tochukwu Okonkwo CEO of Alpha NNA Chukss Oil Ltd at the time when Chief Uchenna B. Okafor [the Chairman] then, instructed him to do so.
He said he did not know if Mr. Tochukwu Okonkwo was a shareholder or director in the 1st defendant company and that, since he left the company, he had cited [sic] the company’s? car at the head office of the 1st defendant company. He said he could not say if the car was at the company but that, it was confiscated and kept there, the 1st defendant’s office was in a filling station and; that, it is open to the public and that, he too could visit the filling station. He said he could not say the car was at the filling station, which is the company’s office. He said he did not remember the name of the Investigating Report Officer [IPO] and; that, Exhibit C3 was the only evidence he had incidenting what happened. He said he reported the incident, but would not know if the police visited the scene. He said he became aware of the defendant’s complaint against him to the PTD-NUPENG and reacted to it through his lawyer after seeing it from the processor of the defendant and; that, a copy of his reaction is with the Court.
He said it was not true that; he personally took his car to PTD-NUPENG office but that, it was confiscated and taken there. He admitted he wrote letters dated 30/9/13; 20/6/14; 27/11/13 and 23/6/14 and identified the copies. At this point, the learned defence OR CLAIMANT’S? counsel applied to tender these documents. This was objected and the case adjourned for ruling. It came up next 6th March 2017. The objection was upheld and the documents marked rejected, while the cross-examination continued. CW1 said his car was purchased N300,000. He admitted knowing Mr. Bala and; that, he assisted him in his work and that he introduced him to the 2nd defendant. He said Alhaji Mohammed Bello and K.K Kama signed as guarantors for him in his employment with the 1st defendant. The cross-examination was thereafter brought to an end without re-examination. The trial proceeded to examination-in-chief of CW2: Alhaji Mohammed Bello. He adopted his WSO made 24th July 2013 and the examination-in-chief was concluded, while cross-examination began in earnest.
Under cross-examination, CW2 admitted that, he was the one that signed as guarantor for the claimant and; that, his relationship with the claimant was as a result of his work with the oil industry but that, he had never worked for the 1st defendant. He said he did not know the internal working details of the 1st defendant and, was never present at the payment of the claimant’s salaries and; that, he had not reported the alleged seizure of the car to the police. The cross-examination was brought to an end without re-examination. The defence counsel thereafter prayed the Court to set aside the earlier date fixed for continuation because of difficulty in securing attendance of their witnesses and, the trial was adjourned without objection to new dates for defence. The defence counsel informed the Court of the new processes filed. Thereafter, defence opened with DW1: FELICIA EZENWA. DW1 adopted her WSO deposed 4/2/16 and the examination-in-chief was concluded, while the case proceeded to cross-examination.
Under cross-examination, DW1 said she plied her business at the NNPC, Enugu and; that, she was still operating the business and, that; the Processing Officer was Mr. Ebere, the Sales Manager NNPC. She gave the names of other previous officers and said, she could not remember the name of one of them from Makurdi. She admitted that she did not mention Ify in her WSO but that, he was in charge in 2012. She said she made her deposition before the Commissioner of Oath. She said she was not employee of the 1st defendant per se but, a sister and friend to the 2nd defendant. She said she had been processing PEF Forms for Micah Energy and Ezeuna Diamond & J.P. Resources. She said she worked for different companies at the same time. She said she knew the claimant and discussed the issue with him more than three times and; that, the claimant promised he would correct and give back to them.
She said she had the claimant’s number but not with her in the Court. She said she had the right to scrutinize the documents submitted by the claimant; and that, as a fellow DS, claimant too, had the right to check her documents and call her; and that, that was why she called him. She said DS meant Depot Representative and; that, she was assigned by the company to represent it, but answerable to Bontus Oil as far as Depot Committee is concerned, but that, she took her time to examine the documents of the 1st and 2nd defendants because, they were in the Faulty Box. She said she was aware of the obligation of the claimant to the 1st defendant and that that was why she called him. She said she was aware of his appointment but did not sight his appointment letter. She said she could not remember any of the dates in the claimant’s documents off head. She said she saw the claimant’s documents in the Faulty Box and called the Chairman to check because, documents in the Faulty Box have errors but that, she could not recall any specific errors but just called the Chairman to come and check. She said the documents expired after three months as stated by the NNPC. She said she was not a busybody because; she had the obligation to report any faulty document of her fellow to him so that he could carry it.
She said she was only a business colleague of the defendants and the claimant was a colleague of hers too, but that, he did not tell her about the difficulties that brought him to court, only that, she did not see him for a while. The cross-examination was brought to an end without re-examination, while the case was adjourned for hearing of the defendants’ application and continuation of trial. On 1st June 2017, the matter came up and the defendants withdrew their motion dated 13/3/17 and filed 31/3/17 and, it was struck out. The defence counsel thereafter moved another motion dated 13/3/17 but filed 25/4/17 for additional witnesses, while the Court deemed, in the absence of claimant’s counsel, his counter affidavit and address in opposition to the motion adopted. The application was granted while the case was adjourned for defence. It came up next 9th November 2017 and DW2: OKECHUKWU OBIABUMUO was fielded and he adopted his WSO. He said he was subpoenaed but that; he did not have the original copy of the subpoena because, it got lost. A copy was tendered and marked Exhibit D1 without objection, while the examination-in-chief was closed. The case thereafter proceeded to cross-examination.
Under cross-examination, he said he knew the 1st and 2nd defendants and that, Chief Uchenna Okafor was his former boss and colleague, while the 1st defendant was his employer; and he was employed as operational staff. He said his duties included daily running of the financial [sic] of the company. He said he was not a professional accountant but that, he read accounting in the university. He said he was employed in 2011 but that, he could not recollect if he was issued with a letter of appointment but that, he did not think he was given such. He said he met the claimant there when he joined the company and; that, he was the company’s representative at the depot. He said the claimant once told him that he read a course at the university, which he could not remember. He said he did not know one Alhaji Halim Mohammed Bello and; that, he could not remember if the claimant came to him with any person and that, he could not remember any such meeting. He said since he met the claimant in the company, he could not say if he had a guarantor and; that, he left the company in 2013 because; he got a better offer somewhere else.
He said his basic salary was N70,000 but that, he had other allowances. He said he remembered the claimant was undergoing a programme, but could not remember the course. He said the claimant had a car, the ownership of which he could not confirm and that, he did not know anything that happened to the car and; that, he was not directed to take the car’s key by his boss. He said he could not remember when he last saw the claimant with the car, but that, it must be sometime in 2012. He said he thought he knew the AP Petroleum Manager but could not put a face to the name Alhaji Halim Mohammed Bello. He said he knew many AP managers. He admitted he might have met him but could not place his face and name. He said he had seen the claimant with Capital Oil Manager and Oando and others. He said he only handled financial matters. The cross-examination was thereafter brought to an end. Under re-examination, he clarified that, Okey and Okechukwu meant the same thing; and the re-examination was concluded.
Thereafter, DW3: COMRADE ALOCIUS UGWU, was fielded. He said he was the Assistant Secretary NUPENG PTD Branch. He said he knew the parties in the suit. He identified his WSO and adopted it. Letter of complaint by the 1st defendant against the claimant was admitted as Exhibit D2. He said he was subpoenaed. Copy of the subpoena was marked as Exhibit D3 and the examination-in-chief was ended, while the cross-examination started in earnest.
Under cross-examination DW3 said, he did not write any correspondence in respect of the letter of complaint and that he did not report the issue of the letter to the present chairman. He said he knew the contents of the letter and was not aware that the complainant also wrote his letter of complaint to the Chairman PTD NUPENG at depot. He said he had seen Exhibit C6 but that; he had not come into contact with it in his work as Assistant Secretary. He said in paragraph 5 of his WSO, he referred to an abandoned car and that, he did not report to the police because, most of them used to park at their premises. He said they did not even know, he was the one that parked his car there and; that, he parked it there himself. He said they served the claimant invitation by phone and; that, they did not respondent to the claimant in writing and did not report to the police because, they were waiting for him to come and collect his car. He said he could not say but, if he saw the sales of AP from 2007-2014, he might know him and that he did not know AP representatives from the period in question and even the depot representatives, he only knew them by faces. He said he was not aware of the report made by the claimant to the police on his car.
At this stage, the cross-examination was brought to an end without re-examination and the trial proceeded to the examination-in-chief of DW4: MR. CHIGOZIE FRANCIS OKAFOR. He adopted his WSO. He referred to 12 documents, which he said were contained in the List of Documents as 1-10, 12-13 and they were admitted without objection and marked accordingly as Exhibits D4, D5, D6, D7, D8, D9, D10, D11, D12, D13, D14 and D15 respectively. The examination-in-chief was closed and DW4 was cross-examined.
Under cross-examination, DW4 said he was the Manager of Bontus Oil and; that, the claimant was their employee. He said he was not employed as Acting GM but that; the document showed he was so employed. He said they only had one depot representative and that, claimant was the Depot Representative, but that, he disengaged from them in 2012. He said he did receive his letter demanding for arrears of salaries and allowances. He said he had seen Exhibit C4 and that, it was written to Chief Uchenna Okafor, the Chairman of Bontus Oil and since he did not receive the letter, he did not respond. He said somehow, the claimant is a member of the PTD because; he dealt with them. He said the claimant earned N50,000 but that, he could not recall the allowances and that, that was only the basic salary he earned. He said he knew the claimant was a graduate. He said he knew Felicia Ezenwa who was also depot rep of another company.
He said he knew Mr. Bala that he used to work at the NNPC Depot and that, he knew him as Bala only. He said he had seen the cover page of bridging claims shown to him and; that, they were the documents delivered to them as bridging claims. He said the Chairman did not ask him to take possession of the claimant’s car. He said he did not know the claimant’s guarantor. He denied being the one that served the claimant with his letter of appointment. He said he always perused salaries and certified it before passing it to the Chairman. He said the claimant had been paid his salaries. He said he had been with the company since 2003 and knew when the claimant was employed. He said the bridging claims are part of the schedules of the claimant as a Depot Rep. The cross-examination was brought to an end at this point without re-examination. And the defence was closed, while the case was adjourned to 23/1/18 for adoption of the Final Written Addresses [FWAs].
On this date, defence counsel informed the Court that, the claimant served them with application for change of counsel and asked for adjournment. The defence opposed the application. The application was granted against the objection and the case further adjourned for adoption of FWAs. The case came next on 16th February 2018. On this date, the claimant’s learned counsel moved the motion to regularise their FWA filed 15/2/18 and it was granted unopposed. Thereafter, the matter was adjourned to 12th March 2018 for adoption of FWAs. However, before the next date, His Lordship Ibrahim J. answered the call of Allah! Subsequently, the matter came up before me for the first time on 27th March 2019. On this date, the claimant pleaded for adjournment because, his lawyer was absent and the case was adjourned without objection to 26th June 2019 for mention.
The matter came as adjourned, but on this date, the learned counsel to the defendant was absent and the case was adjourned to 25th September 2019 for hearing. It came up next 5th November 2019. On this date, the learned AYOGU for the defendants informed the Court that the claimant was in Court on 25th September 2019, while the defence was absent. The learned counsel further informed the Court that, the matter had been adjourned for judgment before the judge died. He asked for adjournment to enable them decide what to do. The case was thereafter adjourned to 18th February 2020 for hearing. On this date, the learned counsel to the claimant: E.C. AGOH informed the Court that, he had an understanding with the learned counsel to the defence and craved the indulgence of the Court to re-adopt the processes already before the court and the learned G.O. AYOGU for the defence concurred. Citing Order 62, R. 10(5) of the NICN Rules, the Court granted the application.
At this point the claimant stood up and was recognised by the Court to speak and he informed the Court that, he was meeting the two lawyers for the first time! He said a lot of other things that seemed uncoordinated but, ended by saying, he thought his FWA should be amended and; that, that was what he briefed his counsel to do and that; he felt he ought to be carried along. At this strange turn of events, the Court observed that, the reasonable thing to do was to adjourn the matter to allow the learned claimant’s counsel confer with his client and come back to report. The learned counsel retorted that the case was been handled pro-bono. While the learned counsel to the claimant was about to explain further and the Court said it was not ready to entertain arguments on the decision, the claimant, suddenly without the Court’s permission, stood up and angrily walked out of the Court with the look of trepidation on his face! Seeing this strange behaviour, the Court inquired from his learned counsel, if something was wrong with him and he said he suspected as such. The Court then observed that, it would appear that the learned counsel had not previously interacted with the claimant, otherwise, he would have noticed that something was wrong with him and do the needful. The case was adjourned to 6th April 2020 for the claimant and his counsel to tell the Court their decision.
In the interval, the COVID-19 Pandemic struck, shutting down the Court for months. The Court subsequently sat on 10th December 2020 and the claimant told the Court that, he mobilised his lawyer but he did not turn up and asked for adjournment. The claimant started another round of strange rigmaroles and the Court adjourned the case to 17th February 2021 for the claimant to bring his counsel. On this date, the learned counsel to the defence informed the Court that the claimant’s counsel filed motion to amend the claimant’s final written address and complained that, change of counsel application ought to be filed because, new counsel came from the Legal Aids Council. The learned counsel to the claimant thereafter asked for adjournment and the case was adjourned unopposed to 12th April 2021 for adoption and settlement of the issue of counsel. The Court could not sit on this date because of the industrial action embarked on by the Judiciary Staff Union of Nigeria [JUSUN].
The Court sat next 2nd July 2021 and the claimant’s lawyer did not turn up, while the claimant started another round of rigmaroles about his lawyer wanting adjournment and; that, he notified the Court’s clerk about this. The Court’s clerk [Anthony Ugwu] said the claimant was on phone with his counsel and; handed him the phone that, his lawyer wanted to talk to him. He said the lawyer said he wanted adjournment, while the claimant said no, that, he wanted his FWA to be adopted. Thereafter, the learned defence counsel opposed the motion to amend the claimant’s final written address but subsequently withdrew his opposition and the counter affidavit at the Court’s hints and; this was accordingly struck out. Thereafter, the Court drew the attention of the learned defence counsel to the letter addressed to the presiding judge and filed 2/7/21 by the claimant himself and the learned counsel said he had not been served. The Court gave him the file to read the copy and ordered that a copy be collected for the learned counsel from the Registry. The learned counsel read it and said he was not opposed to it.
The service copy was not forthcoming from the Registry as it was said; the claimant only brought two copies for filing. The Court observed on the strangeness of the letter: whether it was another address! The Court thereafter directed that, the issue of the officer who knowingly collected two copies for filing against the rules, be treated administratively. Thereafter, the Court asked the claimant what he wanted: whether he wanted to go on with the adoption and he said, “I want the Court to go on with the adoption of my Amended Final Written Address.” The Court thereafter invoked Order 45, Rule 7 of the NICN Rules to adopt, first the motion to regularise the claimant’s Amended Final Written Address [AFWA] in the absence of his counsel and granted same unopposed. The Court thereafter invoked the same provisions to adopt the AFWA.
Thereafter, the Court called on the defence to proceed to adopt their FWA. Learned G.O. AYOGU adopted the Defendants’ Final Written Address [DFWA] dated 24/11/2017 and filed 29/11/2017 and urged the Court to dismiss the suit. There was no Reply on Points of Law [RPL]. The matter was thereafter adjourned to July 19, 2021 for judgment. As judgment was not ready on this date, it was adjourned sine die; and when it became ready, the date was communicated to the learned counsel to the parties. The next thing is summary of the FWAs.
SUMMARY OF THE ADDRESSES OF COUNSEL
A: Defendants’ Counsel’s Address
Learned DR. CYRIL I. OBIKA franked DFWA. The learned counsel formulated six issues. They are:
a. Whether from the evidence before the Hon. Court, the Claimant can sustain his claims for non-payment and/or shortfalls in the payment of his salary. [sic]
b. Whether from evidence before the Hon. Court, the claimant can sustain his claims for non-payment of house rent subsidy of N350,000.00 per annum he claims was promised him by the 1st & 2nd Defendants. [sic]
c. Whether the Defendants seized and detained the Claimant’s Opel Car and liable to the payment of N10,000.00 per day to the Claimant as damages for loss. [sic]
d. Whether the Claimant was issued an appointment letter and his position and duties to the 1st Defendant. [sic]
e. Whether the Claimant was in-charge [sic] of the Defendants’ Petroleum Equalisation Funds (PEF) claims payment and therefore liable for non-processing of same because of carelessness and wickedness. [sic]
f. Whether the Claimant has not been careless, carefree and un-dedicated to his work, consequent upon which, the 1st and 2nd Defendants suffered loss and therefore entitling them to payment of the sums lost, from the Claimant and also damages and cost of this action. [sic]
Arguing issue (a), the learned counsel argued that, the fact that the claimant did not mention the entitlements allegedly owed in his letter of resignation showed that, he was not owed anything. The learned counsel argued that, these allegations were denied in their pleadings. The learned counsel cited Exhibit D14 or C2 [OPE], which contains N50,000 as the evidence of the claimant’s monthly salary, which the claimant collected throughout his stay in the company and confirmed under cross-examination and; that, thus, he was not owed anything. The learned counsel argued that, the claimant confirmed during cross-examination that, he was not compelled to work and submitted that, arising therefrom, if any promise made, was not fulfilled, he ought to have resigned. He submitted that, it was indefensible that the claimant failed to resign immediately the promise of N75,000 was unfulfilled from 23rd June 2008 to March 2012. The learned counsel argued that, the same thing is applicable to the reduction claimed from January 2010 to February 2012.
The learned counsel argued that, the fact that the claimant’s salary was N50,000 per month and yet he rented a house of N350,000 per annum and fueled and maintained his car signified he had other employments that made live above the salary the defendants paid him. The learned counsel conceded that, though, the claimant earned other allowances from the defendants. Thus, ended his argument on issue (a).
Under issue (b), the learned counsel was of the opinion that, there was no basis for the claimant’s claim for rent subsidy, as he did not indicate exactly what the promise of rent subsidy was. The learned counsel referred to paragraph 4(a) of the claimant’s pleadings. The learned counsel submitted that, the fact that the claimant paid three years consecutive rents without being reimbursed by the defendants signified the absence of any such promise. He also submitted that, the failure of the claimant to mention the names of those that borrowed him the monies to pay the rents in paragraph 17 the Statement of Facts and the claimant’s refusal to mention any, under cross-examination showed that, the averment is a sham. The learned counsel submitted that, extraneous issues cannot be read into written contracts and cited Lewis v. UBA Plc (2016) LPELR-406661 (SC) and signed off issue (b).
Under issue (c), the learned counsel argued that, the claimant’s averments at paragraph 21 of his SF that, his car was confiscated by the 2rd and 4th defendants on the order of the 2nd defendant, was refuted at paragraph 21 of the WSO of the 3rd defendant and that, this was confirmed by the evidence of DW2 [4th defendant], who was subpoenaed via Exhibit D1 because, he had left the company, in paragraph 2 of his WSO. The learned counsel submitted that, the claimant never controverted these averments under cross-examination. The learned counsel said DW3, Asst. Sec. PTD-NUPENG, subpoenaed via Exhibit D3, gave evidence to the effect that, the PTD-NUPENG received petition, via Exhibit D2 [Letter dated 14/03/2012] from the 1st defendant against the claimant; and that, the claimant dodged the efforts of the PTD-NUPENG, a trade union in the sector to mediate in the matter, by stating at the interaction on the issue that he was going to take relevant documents from his car and bolted away; and that, it was later the PTD-NUPENG discovered on enquiry that, the Opel car parked at the premises belonged to him. The learned counsel argued that, by this, the claimant failed to utilize the internal dispute resolution mechanism before rushing to Court. The learned counsel argued that, the DW3 stated that the PTD-NUPENG did not report the parking of the car at their premises to the police because, workers used to park their cars there.
The learned counsel argued that, the claimant who, via paragraph 13 of his WSO and 21 of the SF claimed that, he was informed of the instruction to seize his car on 14th February 2012, and after a month resigned without mentioning the seizure of his car. The learned counsel argued that, the fact that, it took the claimant more than a year to write to the police on the issue of seizure of his car shows that, the allegation is an afterthought. The learned counsel argued that, the Exhibit C3, by which the claimant wrote to the police, was dated 06/06/2013, whereas, the Exhibit C2, the letter of resignation, was dated 12/03/2012, and the issue of seizure of his car was not mentioned therein; and that, in actual fact, there is no proof that the letter actually got to the police. He argued that, the stamp on the letter did not indicate the rank and name of the policeman or the insignia of the police. The learned counsel argued that, the claimant said under cross-examination that, he did not know the name of the Investigating Police Officer [IPO] nor aware of the investigating activities and did not do any follow up.
The learned counsel argued that, the claimant also said under cross-examination that, he did not know where his car was. The learned counsel argued that, since the claimant testified that he bought the car for private use, how did he come about the making N10,000 daily; more so, when he did not give any evidence in support. The learned counsel submitted that, the implication is that, the claimant abandoned that head of claim. The learned counsel cited Isaac v. Imasuen (2016) Legapedia SC 8XBS. The learned counsel submitted that, Exhibit C3, was procured to prosecute this case and should therefore be discountenanced because, the claimant made it clear, it was prepared for the purposes of initiating this case and that, a look at the last paragraph of the report bore this. The learned counsel surmised that, it was clear that, the claimant abandoned his car at the NNPC depot of his free will and not that it was seized. There ended arguments on issue (C).
Under issue (d), the learned counsel was of the opinion that, in the course of changing office locations, a lot of materials got missing, including the claimant’s appointment letter and PEF Claims returned unprocessed, as pleaded in paragraphs 5 of the ASD & CC and 6 of the 3rd defendant’s WSO. The learned counsel cited Exhibit D14 [OPE] and stated that, by it, the claimant was employed as Ag. General Manager and enumerated his duties. The learned counsel cited Organ & Ors v. Nigeria Liquefied Natural Gas Ltd & Anor (2013) LPELR-20942 (SC) on the letter of appointment being the bedrock of contract of employment. There ended arguments on issue (d) and the learned counsel moved to issue (e), which is whether the claimant was liable for non-processing the PEF.
Under issue (e), the learned counsel argued that, the claimant admitted he was in charge of the PEF; and under cross-examination, that, on 30th January 2017, stated that he was not only responsible for the 1st defendant’s PEF but, was also responsible for processing PEF for Alpha Nna Chuks, to which he was introduced by the 2nd defendant. He submitted that, he abandoned his duties to the 1st defendant because of this. The learned counsel argued that, the defendants’ DW1 gave evidence that, being a colleague in the same line of business with the claimant, when she saw the PEF claims of the claimant in the query box, while she was there check for hers, she called the attention of the claimant to it and, he said he would come for them but on failure to come, she called the claimant’s office and was asked to bring the documents, which she did and upon inspection, it was found that, the PEF Claims/waybills had expired, having been outside the three-month deadline.
The learned counsel argued that, the DW1 countered the accusation that she was a busybody and said this happened normally in the course of her business that, each deport rep see one another as brothers and would quickly draw attention to waybills in the faulty box because of the short expiry time. The learned counsel submitted that, DW1’s evidence was not controverted. The learned counsel submitted that, as a result, the claimant is liable for the sums contained in Exhibits D4, D5, D6, D7, D8, D9 & D10, which cumulatively totaled N1,034,896: 38K and urged the Court to grant the CC. The learned counsel cited paragraph 14 of the ASD & CC and 15 of the WSO of the DW4. The learned counsel thereafter went to issue (f).
Under issue (f), which is whether the negligence of the claimant led to the loss, the learned counsel argued that, the claimant admitted in paragraph 17 of his FWSO that he was twice issued queries and suspension letter, which are presently Exhibits D11 and D12. The learned counsel argued that, in paragraph 7 of the FWSO, the claimant also admitted to have gone on MSc programme without approval of the 1st defendant; and submitted that, running this MSc at the same time with his full time employment was responsible for his negligence and the losses. The learned counsel cited Exhibits D2 & D13, which he said were letters of complaints against the claimant’s activities against the company in further buttress of the negligence. The learned counsel cited LCRI v. Mohammed (2005) 11 NWLR (Pt. 935) and submitted that, the conducts of the claimant warranted dismissal, even though; the defendants did not dismiss him. The learned counsel summed up by asking the Court to grant the defendants’ CC and dismiss the claimant’s suit. That ends the defendants’ address. I move to that of the claimant.
B: Claimant’s Counsel Address
Learned M.H. MARWAN OF THE LEGAL AID COUNCIL franked the claimant’s FWA. The learned counsel formulated two issues:
1. Whether looking at the surrounding facts and circumstances of this case as well as the exhibits tendered, the Claimant is entitled to the grant of all the Reliefs sought as per the Statement of Claim?
2. Whether the Defendants/CounterClaimants’ [sic] have made out a case for the grant of the Reliefs sought as per their Counterclaim?
Arguing issue 1, the learned counsel said, the claimant gave notice of resignation in February to take effect March 2012, and as such, entitled to the salary of February 2012; and submitted that, the defendants did not challenge the evidence that the claimant was not paid his February 2012 salary. The learned counsel cited Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218. The learned counsel submitted that, the claimant is therefore entitled to the relief. The learned counsel referred to reliefs (2c), 2(d), (3a), (4a), & (4b) and argued that, the claimant pleaded Monthly List of Payment between January 2010 to the time of his resignation and gave notice to the defendants to produce same in order to prove that, his salary was slashed to N30,000 between January 2010 to the time of his resignation. The learned counsel argued that, the refusal of the defendant to produce the document, amounts to withholding of evidence and referred the Court to Falke v. Biliri Local Govt Council & Ors (2016) LPELR-40772 35-36, E-C and S. 167(d) of the Evidence Act [EA] [THAT IS THE LAW]. The learned counsel submitted that, besides the hoarding of evidence, the evidence of the claimant on these reliefs remained unchallenged and therefore the claimant is entitled to reliefs (2c), (2d), (3a) & (3b).
The learned counsel thereafter moved to reliefs (4a) & (4b) on rent and submitted that, the claimant stated his entitlement in paragraph 4 of his WSO, which was not denied by the defendants and that, rather, the evidence of DW2 under cross-examination, was that, he too, was entitled to transport and rent allowances. The learned counsel submitted that, since the DW2 was entitled to these allowances at the same place of work, the claimant too must be entitled, as a co-senior staff and more so, a superior staff to the DW2. The learned counsel argued that, the defence only made reference to this issue in their FWA without any pleading and evidence challenging this and submitted that, argument is not a substitute for pleadings and evidence. The learned counsel moved to reliefs (2a) & (2b) on the reduction of claimant’s salary from N75,000 to N50,000 from July 2008 to December 2009 and referred to paragraphs 4, 5, & 7 of the claimant’s WSO and the evidence of DW2 under cross-examination that, his salary was N70,000 monthly; and submitted that, the inference to draw from the facts was that, the DW2 and the claimant had the same qualification and the claimant, having been employed before the DW2, must have been entitled to nothing less than that of the DW2. And as such, the claimant must be paid the N75,000 being claimed.
The learned counsel moved to reliefs (5a) & (5b), which is on the seizure of the claimant’s car and referred to paragraphs 13-17 of the claimant’s WSO as well as Exhibits C2, C3, C4, C5(a)-(d) and submitted that, the evidence of the DW3 under cross-examination laid credence to the seizure of his car. The learned counsel argued that, the evidence of DW2 [?] is that, he saw the claimant’s car at the parking lot of their office, but he DW3 did not report to the superior officer and that investigations showed that the claimant parked it there. The learned counsel argued that, it was impossible for the car confiscated at Railway Station Locomotive Gate by Ogui Road to find itself in the far away office of subpoenaed witness around Emene Depot. The learned counsel submitted that, the fact that, the defendants, who confiscated the vehicle, were the ones who subpoenaed the Comrade to give evidence, points to the fact that, they were in the know of how the car got there.
The learned counsel argued that, this was the reason why the learned defence counsel asked whether the claimant knew where his car was on that day and he said that, because they were finding it difficult to bring witness, they subpoenaed DW2 in respect of the car and Alpha Nnachuks issues. The learned counsel submitted that, these definitely have to do with looking for escape route. The learned counsel submitted that, the Alpha Nnachuks complaint purportedly written to the PTD Chairman to which the claimant responded via letter dated 30th September 2013, the receipt of which was duly acknowledged by the PTD on 26th September 2013, and which had been tendered before the Court, is a forgery. The learned counsel argued that, Comrade Alloy Agu ignored the response and decided to take side with the defendants.
The learned counsel argued further that, under cross-examination, the DW3 said, “we were working for him to come and collect his car” and submitted that, if the car was not confiscated, how come they were working for him to come and collect the car. The learned counsel submitted further that, the claimant could not have abandoned his car for more than seven years. The learned counsel argued that, CW2 [claimant’s guarantor] testified that, he saw the car in the 1st defendant’s office and was told about the seizure by Gozie and those who did it that, the 2nd defendant instructed them to so do and maintained this under cross-examination. The learned counsel submitted that, this shows that, the alleged parking of the car in the PTD office was a ruse to frame up the claimant with regard to the PTD complaints. The learned counsel urged the Court to observe that, the issue about Tochukwu Alpha Nnachuks had no exhibit or evidence before this Court. The learned counsel signed off by urging the Court to grant all the reliefs; and moved to issue 2, which is on the CC.
Under issue 2 [CC], the learned counsel observed that, of the four witnesses that testified for the defence, only two [DW1 & DW2] gave evidence in respect of reliefs (i) & (ii) under the CC. The learned counsel argued that, the defence did not show the waybills, Exhibits D4-D15, to DW1, who was a sister to the 2nd defendant, to identify them as the ones she allegedly picked up; and that, to make the matter worse, under cross-examination, DW1 said she did not know the dates carried by the waybills she allegedly picked up. The learned counsel submitted that, these documents were dumped. The learned counsel argued that, Mr. Chigizie was the 2nd defendant’s younger brother and 3rd defendant in this suit; and was not a manager at the time the claimant was in the 1st defendant and therefore, not in a position to tender any documents in respect of this case and to say the claimant erred in his work.
The learned counsel argued that, Mr. Chigozie was never a manager in the company and was just given the appellation because, he was a brother to the owner and that the real manager was one Mr. Joseph Mba, whom the defendants made Mr. Chigizie to replace as a witness. He submitted that this became necessary because, Mr. Joe had actually acknowledged some of the bridging claims acknowledgement certification the claimant handed over; and that, these were amongst the documents admitted for the claimant. The learned counsel referred to the one acknowledged 26th June, 2012 and that, this was even after the claimant resigned because, he kept going to the 1st defendant in respect of the items handed over and his seized car. The learned counsel surmised that, this showed that they lied that, they were looking for the claimant. The learned counsel argued that, the waybills tendered by the defence were cooked up, as even the figures when added did not tally. The learned counsel argued that, since the defence did not bring any evidence of fraud against the claimant, they are not entitled to the CC.
The learned counsel argued that, the claimant responded under cross-examination that, the PEF held processed waybills and those with problems returned to the marketers and not kept at the depot. The learned counsel argued that, that was what happened to these waybills and not the claimant’s fault. The learned counsel submitted that, the claimant did all on his part on the waybills timely and submitted that, the claimant therefore could not be responsible for what did not expire in his hand. The learned counsel submitted that, the alleged two trucks’ waybills allegedly unattended to were not brought to the Court and cited Dickson v. Sylva & Ors (2016) LPELR-41257 (SC) on the law that, a court is debarred in adversary adjudication to embark on inquisition. The learned counsel argued that, if the defence is claiming that the claimant has three numbers it did not have, how then did the defence know the claimant had the numbers. The learned counsel submitted that, the petition written by the 1st defendant to the NUPENG, it was a mere unsubstantiated allegation. The learned counsel submitted too, that, the defence failed to show that his reputation suffered any injury by the claimant’s conducts. The learned counsel finally urged the Court to dismiss the CC and grant all the claimant’s reliefs.
Thus ended the claimant’s FWA. The defence did not file Reply on Points of Law. The next thing therefore is my decision. In giving the Court’s decision, I wish to say that, I complied with all the necessary prerequisites. I gave all the processes and proceedings very thorough attention, as could be seen in my summaries above. I am aware that, I did not summarise the WSO of both sides. This is because, they are essentially same with the pleadings already duly summarised. I also did further researches on relevant authorities to assist in reaching a cathartic decision. Off to the most important aspect of judgments, I go.
RATIONES DECIDENDI
Before going further in this aspect of the case. Let me deal with a preliminary issue. That is the process filed by the claimant 2nd July 2021. I do not know the essence of the process. It is a product of overzealousness; and as such, I did not bother to treat it. It was not adopted before me and; since the claimant did not dispense with the address of his counsel, it becomes useless. I accordingly strike it out.
I go to the meat of the case. In deciding this case, I adopt the two concise issues formulated by the learned counsel to the claimant. They are concise and straight to the point against the unwieldy and prolix ones formulated by the defence. Though, I still shun them of their verbosity. The slightly reformulated issues are:
1. Considering the evidence adduced, whether the claimant is entitled to the reliefs claimed?
2. Whether the defendants proved the counterclaim and thereby entitled to the reliefs formulated?
Under issue 1, the first point of call is the law on whether subsequent oral agreement can vary a prior written contract. The Supreme Court stated the position in Ekwunife v. Wayne West Africa Limited (1989) LPELR-1104 (SC) 19-23, B-A, particularly at 19, D-E:
“The contention of the learned counsel for the respondent is, however, that as the contract was one in writing, it could only be varied in writing. In my opinion this contention was valid at common law…But Courts of equity took a contrary view and held that a contract in writing which by law is not of a class that must be evidenced in writing under the Statute of Frauds could be varied or rescinded by mutual agreement, whether oral or written…”
Thus, by the above, it is clear that, the position of the learned defence counsel that written agreement could not be varied by subsequent oral agreement is not the correct position of law. Written contract, being a product of the wills of the parties, ordinarily ought to, and is, actually variable by subsequent oral agreement, provided parties so agreed. Parties agreed in writing and could therefore agree orally to vary the contract. Agreement is the focal thing. Unless there was a provision in the written contract that, it could only be varied in writing or the contract is of a special nature that statute says, it must be in writing. Now, the contract herein, is one that, the law does not say must be in writing. It could be oral or written. That settled: what then is the evidence at stake?
The evidence from the claimant as CW1 is that, in essence, the contract was partly written and partly oral and that, he started the work before he was issued with the OPE [Exhibit C1 or D14] and the oral agreement was that, he would be paid N75,000.00, rent, transport and other allowances. Exhibit C1 [also D14] buttressed the fact that, the contract is not completely contained in it. At the first paragraph therein, is contained: Basic/ Allowances N50,000 per month and N600,000 per annum. When something is stated to be basic, it means the minimum or the least or the bare without flesh. The definition at google, quoting Longman Business Dictionary confirms my opinion above: “From Longman Business Dictionary basic salary (also base salary) your salary before extra money such as BONUS and COMMISSION…” – see https://www.Idoceonline.com accessed 30/09/2021. See also “An HR Glossary for HR Terms” at https://www.bamboo.com accessed [30/09/2021], where it was said of basic salary:
“Basic salary, also called base salary, is the amount of money a salaried employee regularly earns before any additions or deductions are applied to their earnings.
Additions and deductions to basic salary can significantly affect the size of an employee’s paycheck. These adjustments may include such things as added bonuses or deductions for the employee’s company health insurance premium.” [Underline for emphasis]
Thus, it is clear that, there are other parts of the claimant’s benefits that were not stated in the OPE but, clearly alluded to. The OPE [Exhibit C1 or D14], which is the 1st defendant’s document, testified against it and showed clearly, as quoted above that, there are other allowances not specified or catered for in it, and that, Exhibit C1 only catered for the basic salary. And I so hold. And where the situation is like this, because of the superior bargaining powers of the employer, the employee needs only the minimum evidence to prove entitlement to other benefits and what exactly those benefits were and the exact amount involved. As could be seen from Exhibit C1, it is a Standard Form Contract wherein; the only negotiable column contained therein is the basic salary, while all others are left out. There is evidence before the Court from DW2, who is the 4th defendant, that, he was entitled to both rent and transport allowances; and he happened to be a junior to the claimant and met the claimant on the job. DW4, under cross-examination, also inferentially confirmed the existence of the other allowances, when he said he could not recall the allowances the claimant was earning but that, the N50,000 was only basic salary. When these pieces of evidence, which are against the interest of the 1st defendant, are matched with the self-incriminating evidence contained in the OPE [Exhibit C1 or D14], the irrefutable conclusion to be reached, is that, the claimant proved the existence of promise to be paid other allowances aside the basic; and I so hold.
In the WSO, the claimant gave evidence of paying N350,000 as rent per annum and; that, he borrowed to pay same. But is that the type of evidence that can sustain this type of claim? I think not. This relates to special damages. It must be strictly proved, either by tendering the receipts for payment of the rents or evidence of the loans taken to pay the rents or calling the landlord or any other person that knew or witnessed the payments or borrowed the claimant money(s) to pay the rents, to testify. This he did not do. It simply means the evidence in his WSO with regard to this remains unsubstantiated – see Ishola v. Ishola & Anor (2014) LPELR-23082 (CA) 32, A-B. Hence, while he succeeded in proving entitlement to other allowances than the N50,000 basic, he failed to prove the exact amount of the rent to which he was entitled. He therefore failed to prove his entitlement to the N350,000 rent claimed.
As for the issue of what exactly the salary is, I found that, Exhibit C1 stated the salary to be N50,000 basic. I could not find that any evidence was adduced to prove that, this amount was actually reduced either by way of tendering the bank statements in which the claimant collected salary or otherwise by cash, to show the subsequent payment of N30,000. I cannot see that, I am satisfied that, there is reduction from the N50,000 to N30,000 or whatever. As to the aspect of reduction from N75,000 to N50,000, I cannot equally find satisfactory proof. The evidence is that, there was prior oral agreement to that effect, which was varied in written agreement – see Union Bank of Nigeria Limited v. Ozigi (1994) LPELR-3389 (SC) 16, D-E, to the effect that, subsequent reduction of oral agreement to written, invalidates the prior oral agreement. I am not unmindful of my earlier finding that; the contract was partly oral and partly written. Yes, this is correct and does not contradict the above-cited authority in view of my finding that, the said written contract shows that, there were other areas not covered. Hence, this authority holds for the terms fully covered in Exhibit C1 or D14; and since it covers the basic pay of N50,000, oral evidence cannot be brought to vary it; and I so hold.
But, as to the other aspects left out in the written agreement itself, definitely, oral evidence could be brought to establish them. Documents are construed by means of the words therein contained – see Bassey v. Umoh & Ors (2013) LPELR-20399 (CA) 14, B-C. The written contract [Exhibit C1 or D14] indicated clearly that, other terms of the contract were not covered and it must be so construed to allow the claimant bring in oral evidence in proof of these terms or parts. The defence has denied this and said the agreement was wholly N50,000 as contained in Exhibit C1 also tendered by the defence as Exhibit D14. Evidence on this point is therefore at equilibrium, and the claimant loses the point, apart from the fact that, oral evidence cannot be used to vary a point covered in relation to oral agreement subsequently reduced into writing – see Ibeabuchi v. Ibeabuch (2016) LPELR-41268 (CA) 34-35, C-D. The basic salary was therefore N50,000 only.
I come to the issue of seizure of the claimant’s car. The evidence is that, the car was seized on the order of the 2nd defendant [the Chairman of the 1st defendant] on 14th day of February 2012 by the 3rd and 4th defendants and; that, upon failure of personal repeated efforts to retrieve same, the claimant went to the 1st defendant with his guarantor and the 3rd and 4th defendants said they could not release same, except on the instruction of the 2nd defendant, who was not then around. The CW2 gave evidence that, he saw the car seized at the 1st defendant’s premises [para. 5 of CW2’S WSO] and his evidence on this point remained intact under cross-examination, as he was not cross-examined on that point. The evidence from the defence is that, the car was not seized, but the claimant drove it to the premises of the PTD-NUPENG and abandoned it there. They called the Asst. Sec. PTD-NUPENG and he testified as DW3 and claimed that, while the claimant came for interaction on the petition against him, he said he wanted to pick some documents in his car and absconded, leaving the car there.
He did not mention the specific document he told them he wanted to pick and its relevancy to the issue being allegedly investigated. He did not give the date the so-called panel sat on the issue nor the members of the so-called panel nor the representative of the 1st defendant therein at the panel and those who gave evidence against the claimant. And more importantly, he did not say the claimant abandoned the car in his presence but that, upon later investigation, he was so told; and here, the claimant had denied taking his car to the PTD-NUPENG and said the defendants took it there after seizing it, to firm up their allegations against him. DW2, who is the 4th defendant, testified and; under cross-examination, refused to frontally deny that the claimant came with anybody to press on the issue of the vehicle, saying that, he could not remember if the claimant came to him with any person nor could he remember any such meeting. He also said about the vehicle that, the claimant had a car but that he did not know anything that happened to the car nor the last time he saw the car and later that, he saw the car last in 2012. Where: he did not say.
Apart from these pieces of evidence being dodgy, they are prevaricative and failed to meet the standard required to controvert a positive accusation – see Dalice Property Development Company Ltd v. Alucon Limited & Ors (2017) LPELR-43236 (CA) 27-28, E-A. Though, on the rules of pleadings, the authority applies by extrapolation to questions and answers during cross-examination. Considering the circumstances of the pieces of evidence on this issue both under evidence-in-chief and cross-examination, it is logical and irresistible to arrive at the mathematical conclusion or inference that, the claimant’s car was seized by the defendants as alleged at the 1st defendant’s premises and; later, at some point, taken to the PTD-NUPENG; and I so hold. Even, on the scale of preponderance, which is the benchmark in civil suits, the evidence tilts in favour of the claimant and against the defendants on the issue of the seized car; and I equally so hold. It means the claimant has the point on the issue of the seized car.
Before I round up on issue 1, let me observe, the claimant only cited rent and transport allowances as specific examples of the other entitlements in the contract and; it is with regard to these that, he gave the least scintilla of substantiating evidence with respect to only rent. The evidence of N350,000 rent, I have found not sufficient to substantiate the claim to N300,000 per annum rent. He did not substantiate transport allowance at all. It follows that, the unspecified allowances cannot be treated and are deemed abandoned, while the one specified, he did not substantiate, as to the exact amount to which he was entitled. To attempt to arrive at the exact amount on the specified ones and the existences of the non-specified ones belongs to the realm of speculation from which, a court of law is forbidden to foray into – see Ayo v. The State (2007) LPELR-8817 (CA) 38, C-D. I cannot find too, that, the claimant proved his entitlement to the alleged unpaid February 2012 salary. This point is deemed abandoned too. In this realm, also belongs the claim for N10,000 monthly for the detinue. No evidence was offered to substantiate it. I also wish to add here that, the mere fact that, the claimant failed to substantiate his entitlement to other allowances is not the end of the matter. This aspect shall be considered anon during the consideration of the reliefs. Suffice to hold that, the claimant succeeds fully on the issue of seized car under issue 1. I move to issue 2, which deals with the CC.
I shall not waste time at all under this issue. Why? I am of the firm view that, the defendants dumped all the exhibits marshaled in respect of the PEF/Waybills of which the claimant was accused of mishandling and thereby allegedly causing the 1st defendant financial losses for which they claimed reliefs i)-iv) of the CC. Dumped documents have no evidential values – see Maku v. Al-Makura & Sons (2016) LPELR-48123 (SC) 35-41, D-A. I looked at the documents and could not make anything of them. I could not fathom how the documents were said to have had problems or rejected, as I could not find any stamp saying they were rejected. Even if I found such on them, the law precludes me, from fishing for these in the recess of my chambers, privately. The witness who tendered them for the defendants ought to have spoken to the documents by demonstrating in the courtroom, how exactly the documents had problems and the telltale marks on the documents, which the court would check and; if found, agree with the defendants.
This would also have given the claimant the opportunity to contradict the telltale signs if need be and give the court his own explanation of them and only then, would the court have been in a vantage position to resolve the issue one way or the other – see Oki & Anor v. Federal Ministry of Works and Hoausing & Anor (2019) LPELR-49251 (CA) 9-18, F. This was not done. All I gleaned from the records is that, the DW1 gave evidence about how she saw the documents in the Faulty Bags at the NNPC Depot and called the claimant, intimating him to come for them and; how, upon his refusal to come, she called the 2nd defendant and; upon instruction from the 2nd defendant, forwarded these documents to the 1st defendant: nothing more. Claimant’s counsel did not cross-examine on how to identify the telltale signs on the body of these documents, so, this aspect of the case [dumping] remains intact; and it follows that, the documents were not spoken to at all, either in-chief or under cross-examination. DW1 and the other three witnesses did not speak to these documents to establish how to discover they were actually rejected and; that, this led to financial losses for the defence. I therefore have no reservation at all, in dismissing the CC. The CC is hereby accordingly dismissed. With the dismissal, the reliefs claimed thereto become spent.
I now come to the issue of the reliefs to which the claimant is entitled, having determined in part, issue 1 in his favour. Following my findings and holdings before now, I have no hesitation in holding that; the claimant is entitled in full to relief (5a) and; partly 5(b), to the extent that, the defendants are hereby ordered to immediately release the claimant’s car. As to the other aspects of N10,000 daily special damages claimed, I could not find that the claimant adduced any cogent evidence to back up this claim. In fact, the claimant had admitted under cross-examination that, the car was for private use; hence, there was no basis to bring in issue of monies generated by vehicles of that type in commercial use. To that extent, that head of claim dies. But that does not end the matter of damages for detinue. Once detinue is proved, as in this case, general damages, which do not need proof, but follow as natural consequence of the injuries suffered as a result of the wrongful acts of the defendants, follow automatically – see P.I.P.C. Security Limited v. Vlachos & Anor (2007) LPELR-5150 (CA) 36-41, C.
In assessing the general damages, I take into consideration the fact that; this vehicle was impounded since 2012. This is 2021: 9 years ago! The claimant had been made to lose the use of his car since 9 years ago. I take into consideration that, depreciation must have visited the vehicle due to being left to the inclement weather for good nine years. I take judicial notice that; the vehicle must have become a relic by now. I take notice too that, the vehicle was bought N300,000.00 that time and, had been used too, by the claimant before the seizure. But I take note of the depreciation in the value of the Naira since nine years ago. I also take note that, the claimant did not specifically ask for aggravated or exemplary damages, but nevertheless, I take especial notice that, this is a labour matter in which this Court is specifically and specially burdened with the duty to look into issue of fairness in all labour and employment matters that come before it and apply international best practices in finding a solution thereto. This I shall deal with extenso anon. In the meanwhile, I award the claimant the sum of N1,000,000.00 [One Million Naira only] on the count of detinue.
I move to the issue of the other allowances, which the written agreement alluded to, and which I found proved that, they exist in the contract. Even though, I found that, the claimant gave two specific ones [rent and transport] but failed to lead cogent evidence to establish the specific amounts in respect of the rent, but not at all, in respect of transport, nonetheless, I am of the opinion that, the defendants must be liable for breaching these terms by brazenly saying the claimant was only entitled to N50,000 basic salary and no more. Ubi jus ibi remedium – see Amaechi v. INEC & Ors (2008) LPELR-446 (SC), 61, B; 96-97, B-A. It is clear that, the defendants did wrong, by leaving some terms of the contract vague only to take advantage of this vagueness, to say there were no further terms because, they were not specifically spelt out as such. This is an example of unfair labour practice in breach of S. 254C-(1)(f) of the 1999 Constitution [as altered]. Remedy must be found to discourage this type of attitude or labour practice. I have found that, Exhibit C1 or D14 was a Standard Form Contract hence, its provisions must be construed principally in favour of the claimant, especially so, in employment contract, where the law treats the employee as being in a disadvantage position. Any ambiguity therein must be resolved in favour of the claimant – see Black’s Law Dictionary, Deluxe Ninth ed. (2004) p. 373, for the meaning and import of Standard Form Contract.
This is where S. 254C-(1)(f) of the 1999 Constitution comes handy along with SS. 13, 14 & 19(d) of the National Industrial Court Act [NICA]. By virtue of S. 19(d) of the NICA, the Court is obliged to grant compensation or damages in any circumstance contemplated by the NICA or any Act of the National Assembly [NASS] and; by S. 14, the Court can award any relief it believes a party is entitled to, whether or not claimed, provided, it is supported by the facts of the case. Now, S. 7(6) of the NICA mandates this Court to have regard to international best practices, but added that, this shall be a question of fact. Now, S. 254C-(1)(f) of the 1999 Constitution [as altered] simply provides that, the Court shall have and exercise jurisdiction to the exclusion of all other courts in civil causes and matters:
“relating to or connected with unfair labour practice or international best practice in labour, employment and industrial relation matters…”
It is clear that, there are marked distinctions between S. 7(6) of the NICA and 254C-(1)(f) of the 1999 Constitution. First, the 1999 Constitution broadens the breadth, by adding unfair labour practices; and too, did away with the proviso that, international best practices must be a matter of fact. The implication is that, these constitutional provisions are now positive constitutional mandates, which the Court must dutifully look for and enforce in all industrial relations. It means, the Court must exercise its special knowledge of labour laws to import cutting edge positive innovations in deciding labour matters. Thus, international best practices became matters of law, which the Court is supposed to have at its bosom and must dutifully apply. They enjoy broad interpretation too, in line with the opinion of the Supreme Court that, positive constitutional provisions must be given broad interpretation – see AG Bendel State v. AGF & Ors (1981) LPELR-605 (SC) 131, D-E. The legal effect, is that, this Court, like its counterparts, subject to the jurisdiction of the International Labour Organisation [ILO], must constantly invade the domain of privacy [sanctity] of contracts in relevant situations to prevent unfair labour practices and entrench fair labour practices and international labour best practices, in order to be in comity with ILO compliant nations. This position of law has been recently recognised and endorsed by the Court of Appeal in Suit No. CA/L/1091/2016 - Sahara Energy Resources Limited v. Oyebola (delivered 3rd December 2020).
Although, it would appear that, the Court of Appeal seemed to limit its ambit to where such damages are directly claimed, but that was not the issue that directly came up in the case. Now, the international best practice in labour and employment litigations these days, is that, the courts are suo motu constantly invading the sanctity of contracts, to see if there is unfair labour practice and; where this is found established by the facts of the case, remedy it as appropriate – see Marshall Auerback, in a beautiful article, “Why Courts Are Ruling That Gig Economy is Paving Road to Serfdom”, Newsclick 22 Aug 2020 at https://www.newsclick.in accessed 24/08/2020 reviewed the attitude of courts across the world thus:
“Companies have consistently sought to deny their workers traditional benefits via labour law loopholes that courts across the world are rapidly closing…As the protections governing the traditional employer-employee relationship have been increasingly subverted, workers have responded by turning to the courts to rectify this loophole that has allowed their employment conditions to become a form of indentured servitude. And the courts are largely ruling in their favour…
A California superior court judge has recently denied injunctive relief to both Uber and Lyft, which means that they will be forced to comply with earlier rulings, and a California State statute, that mandated them to reclassify their workers as employees…These are consistent with a growing number of decisions in other countries, such as the UK, where Uber is now appealing a lower court ruling that its drivers should be classified as employees ‘entitled to employment protections such as a minimum wage and holiday pay,’ and in Canada, where the country’s Supreme Court has recently ruled that Uber drivers were entitled to sue for traditional benefits and vacation pay…Happily, our courts are finally beginning to draw a line to limit such egregious practices…” [Underline for emphasis]
See also the decision of this Court in Suit No. NICN/EN/53/2013 – Chukwudoro v. Oiltest Well Services Ltd [delivered 28th September 2020] in which, this issue was equally and more elaborately treated and the finding [at p. 58 thereof] that, the ILO prescribes dissuasive remedies in such instances. Based on the facts and circumstances of this case, it is clear that, unfair labour practice is established against the defendants with regard to practicing chicanery on employees by not making it clear what their terms of employment are from inception for the purposes of been able to exploit them and take cover under the guise that the terms of the contract are limited to the only benefit directly stated. Were it not for S. 91 of the Labour Act, which defines ‘worker’ to exclude persons carrying on administrative, executive and professional works; and agents, who carry out works outside the employer’s premises, and seems to capture the claimant, the claimant would have come directly under the purview of S. 7(1)(g)-(h) of the Labour Act, which mandates employer to issue within three months of employment, written appointment letters that cater for fringe allowances and special conditions.
Nevertheless, this shows the policy tilts in this area of the law that, the Nigerian law tilts towards written contract of employment with all terms, especially those relating to remunerations, clearly stated. Where this is not so, and it leads to a problem, as in this case, the employer must not be allowed to go scot free to continue her unsavoury chicaneries against hapless employees. To allow such a thing, would be to sidetrack the provisions of S. 254C-(1)(f) of the 1999 Constitution with contempt; and to make Nigeria a pariah in the comity of ILO compliant nations – see S. 254C-(1)(i) 1999 Constitution, which gives this Court the mandate to enforce international labour standards. In view of the foregoing, I hereby award N1,000,000 [One Million Naira only], as dissuasive damages, for failing to make clear what the other allowances were and for the practice of chicanery in failing to pay the claimant these other unnamed allowances alluded to in the written contract, contrary to S. 254C-(1)(f) of the 1999 Constitution. Damages are the elixirs or balms that soothe all injuries in civil law.
In all, the Court grants N1,000,000 [One Million Naira only] general damages for detinue and another N1,000,000 [One Million Naira only] damages for, failure to provide and pay the claimant the other allowances, other than the basic salary, alluded to. I also grant relief 6 in full. All other reliefs are refused, while the CC is dismissed. I also grant the sum of N200,000 [Two Hundred Thousand Naira only], as cost of prosecuting the suit. I take into consideration that, the suit was partly prosecuted by the Legal Aid Council and; that, the penultimate counsel said he was prosecuting it pro-bono. But the fact remains that, the case spanned eight years and the first counsel was not proved to be from the legal aid or to have prosecuted the case pro bono. I am aware from the records that, three different lawyers prosecuted the case to completion. Definitely, the claimant incurred cost and must be compensated and has been accordingly compensated in cost. The cumulative total sums awarded therefore is: N2,200,000.00 [Two Million, Two Hundred Thousand Naira only].
The judgment shall take immediate effect. And it shall attract 10% interest rate per annum till the judgment sums are fully paid.
Judgment is accordingly entered.
…………………………..
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
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