IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 12TH OF MAY, 2020 SUIT NO.: NICN/ABJ/53/2019
1. NWAEKE SOLOMON OKECHUKWU…………. CLAIMANTS
2. ATANU ALOLO GLADYS
CHICASON GROUP OF COMPANIES LTD …………. DEFENDANT
EmekaUgwuowo with him is I.N Chukwu, I.M Okonkwofor the claimants.
ObinnaUdeogwu with him is A.E James for the defendant.
1. It is the case of the claimants that they were employed by the defendant on the 20th of April, 2010 and 30th of July, 2008 as Assistant Manager Accounts Administration and Accounts Administration Officer respectively. That their employment was confirmed on the 22nd July, 2011 and 15th May, 2009. They averred that they performed their job diligently but were surprised when their employment was terminated on the 19th of December, 2018 without notice or three months’ salary in lieu of notice in the case of 1st claimant and one month salary in lieu of notice for the 2nd claimant. That the defendant has also refused to pay them the sum of N360,000 and N50,000.00 respectively as arrears of three months and one month salary. They averred that the defendant refused to remit to the Federal Inland Revenue Service (FIRS)the sum of N101, 342.4 and N34, 560 being sums deducted as tax and pension for 24 months and 2 months respectively for the 1st claimant and N76, 248.96 and N27, 360.00 as sums deducted as tax and pension for the 2nd claimant and interest thereon. They equally pleaded that the defendant has refused to pay them the sum of N1,009,800 and N932,220 respectively being the claim for gratuity. That throughletters written by their solicitor they demanded these sums from the defendant but to no avail.
2. It is against this backdrop that the claimants by a General form of Complaint dated 11th of March, 2019 and filed on 13th March, 2019 claims against the defendant as follows:
I.A declaration of this Honourable Court that the claimants’ appointment with the defendant is still subsisting and that the termination letter issued on the 19th of December, 2018 is null and void for not complying with the terms in the confirmation of appointment letter.
2. An Order of this Honourable Court directing the defendant to pay the 1stclaimant the sum of N377,443.20 (Three Hundred and Seventy-Seven Thousand, Four Hundred and Forty-Three Naira, Twenty Kobo) as his salary or ninety days’ notice respectively as contained in the confirmation of appointment letter.
3.An Order of this Honourable Court directing the payment of the sum of N377,443.20 (Three Hundred and Seventy-Seven Thousand, Four Hundred and Forty-Three Naira, Twenty Kobo) to the 1st claimant which is the salary for the month of January- March and for such months as the case would last.
4. An Order of this HonourableCourt directing the payment of the sum of N927,96 (Nine Hundred and Twenty-Seven Thousand, Ninety-Six Naira) as the 2nd claimant salary or one month notice respectively as contained in the confirmation of appointment letter.
5. An Order of thisHonourable Court directing the payment of the sum of N288,000.00 (Two Hundred and Eighty-Eight Thousand Naira) to the 2nd claimant, which is her salary for the month of January- March and for such months as the case would last.
6. An Order of this Honourable Court directing the defendant to remit to the Federal Inland Revenue Service (FIRS) the sum of N101,342.4 (One Hundred and One Thousand, Three Hundred and Forty Two Naira, Four Kobo) and N34,560 (Thirty Four Thousand, Five Hundred and Sixty Naira) being pension for 24 months and 2 months respectively for the 1st claimant and N76,248.96 and N27,360.00 for the 2nd claimant and interest therein.
7.An Order of this Honorable Court directing the defendant to pay the sum of N1009,800 being the total sum of gratuity of the 1st claimant and the sum of N932,220 for the 2nd claimant.
8.An order of this Honorable Court directing the defendant to pay the claimants the sum of N1,000,000.00 (One Million Naira) as the cost of this suit.
9. An Order of this Honorable Court directing the defendant to pay the claimants the sum of N10,000,000 (Ten Million Naira) as general damages.
10. AND for such further orders that this Honorable Court would deem fit tomake in this circumstance.
3. The defendant on the other hand filed its defence and other accompanying processes on the 2nd of September, 2019. It denied all the allegations in the claimants’ statement of facts and averred that the employment of the claimants were validly determined on the 19th December, 2018upon discovery that the claimants wereperpetrating fraud against it. That it is not owing the claimants any salary in arrears and it has remitted the claimants’ pension to their Pension Fund Administrators. It pleaded that it is not indebted to the claimants in any sum of money whatsoever as gratuity and urged the Court to dismiss the claims of the claimants in its entirety.
4. During trial, both parties by consent urged the Court to invoke the provisions of Order 38 Rule 33, which is a provision that allows parties argue their respective cases on record. The Court ordered as prayed. The import of which is that parties by their agreement dispensed with calling of witnesses to testify vivo voce. In other words the Court will consider their respective cases on the basis of the processes filed (i. e. pleadings, witness statement on oath of each parties and documents frontloaded by the parties if any). All that will be required of them is to file their final written addresses, adopt same and adumbrate further on it if they so desire.It is consequent upon this that parties filed their respective final written addresses.
5. Claimants on the 16th of January, 2020 filed their final written address first, this is pursuant to Order 38 Rule 33(2) of NIC Rules, 2017 and counsel on their behalf raised a lone issue thus;
Whether the claimants have proved their case by preponderance of documentary evidence thereby entitling them to their claims before this honourable Court.
6. Counsel submitted that the defendant failed to comply with the terms of contract it entered into with the claimants when it failed to issue the claimants the requisite notice upon termination of employment, when it refused to remit to the FIRS the deducted tax from the claimants salary and when it failed to remit the claimants deducted pension to their pension fund managers. He cited Sections 11(4), 9(2), 11 (6)of the Labour Act Cap 198 Laws of the Federation of Nigeria and the case of Adeniran A Adeyemo v Oyo State Public Service  1 SCNJ 83. It is counsel’s submission that the 1st claimantsalary as at the time his employment was terminated is in the sum of N145,000 and the 2nd claimant is the sum of N120,000. He equally stated that they were not afforded fair hearing before their employment were terminated.
7. The defendant on the 13th of February, 2020 filed its written address wherein it adopted the sole issue framed by the claimant thus;
Whether the claimants have proved their case by preponderance of documentary evidence thereby entitling them to their claims before this honourable Court.
8. Counsel submitted thatthe burden of proof lies on the claimant to prove all their claims as placed before the Court and they have woefully failed to prove that the termination of their appointment is null and void as they failed to show crediblythat their employment was terminated without payment of three months’ salary in lieu. Counsel contended that assuming but not conceding that the termination of the claimants’ employment did not comply with their appointment, it does not make the termination null and void as the employment relation is one of master and servant and not statutory and also the claim for reinstatement by the claimant cannot be granted in this respect. He relied on the cases of Obanye v UBN PLC  VOL 4 WRN SC 50; Chukwuma v SPDC Ltd  4NWLR (Pt 289) 512. He submitted that claimants placed no cogent prove on claims 2 and 4 to show that they were not paid salary in lieu of notice and that the sum as claimed in the general form of complaint and pleadings are in contradistinction and as such there was no averment or evidence in support of this claim and therefore it must fail.
9. Counsel with regards to claimants’ claim 6 stated that the claimants have failed to prove that their salaries were deducted for the purposes of tax and pension and they equally failed to provide their IBTC pension financial statement to prove their claim. He also submitted that the claimants have also failed to show that they are entitled to be paid gratuity upon termination and therefore urged the Court to so hold. In all counsel submitted that the claimants in the entirety of their claims have woefully failed to prove any. He then urged the Court to dismiss this suit in its entirety.
10. Claimants on the 25th of February, 2020 filed their reply on point of law where they argued that by Section 136 of the Evidence Act, 2011 onus of proof has shifted to the defendant when by paragraphs 5, 6, 7 and 8 of the claimants pleadings they averred that they were not given notice or salary in lieu of termination of their appointment and that other money due to them was not paid by the defendant. That it now behooves on the defendant to show vide documentary evidence that it paid them. Counsel submitted that the defendant admitted that it did not give notice nor did it pay salary in lieu of notice when it stated in its pleadings that their employment were terminated on the ground of interim Police report, therefore it has admitted so and there is no need to prove by tendering of statement of account by the claimant. He cited the case of Ibadan LGPC Ltd v Okunade  3 NWLR (Pt 911) 45 CA; Akpa v Umoh  (Pt 627) 349 SC, and urged the Court to so hold.
11. I have given a careful and in-depth consideration of the processes filed by the claimant, the defence filed by the defendant, the witness depositions of both parties, the written addresses filed by learned counsel on both divide and the relevant statutory and case law authorities cited therein; it is premised on this that I distilled this issue for the Court’s determinationviz;
Whether or not the claimants have proven their case to entitle them to their claims
12. It is the claimants claim that their employment still subsists with the defendant as their letters of termination dated 19th of December, 2018 did not comply with the terms of their employment. To the defendant,reinstatement is not conceivable with the employment relation between the parties as it is not one that is statutorily flavoured.It is trite that in law, an employment founded on master-servant relationship for personal service without any statutory flavour does not enjoy the relief of reinstatement. The Courts are thus very reluctant and in fact lack the competence to force a willing servant upon an unwilling master in a contract of employment for personal service without statutory flavour. Differently put in a master servant relationship reinstatement is not an option because the law is settled that the Court cannot impose an employee on an unwilling employer. See the cases of Odibo v First Bank  LPELR 46628 CA; UBN Ltd v. Ogboh  2 NWLR (Pt. 380) 647; First Bank of NigPlc v. EfobiEffiong Bam  LPELR 4160 (CA).In a master-servant relationship both parties having by their mutual agreementmade certain terms and condition capable of being brought to an end by either one of them.All that is expected of either of them is to follow the procedure for determination of the relationship as agreed by them in bringing it to an end, albeit prematurely, then the matter ends there. If, on the other hand. A party fails to comply with the agreed procedure contained in the terms of employment, the common law rule that seeks to protect the sanctity of contracts will not let him off the hookor scot free. In such a scenario the premature termination of the relationship would be held to be wrongful and not null and void as prayed by the claimants. It is in recognition of this position of law that the Courts, will be reluctant to force the parties to continue the relationship, hence the parlance that a Court cannot foist a willing servant on anunwilling employer. The only remedy available for such an employee is an order for payment of damages to compensate the employee for being wrongfully put out of job.The employment of the claimants in this case is devoid of statutory flavor as there is nothing evincing so, hence they are not entitled to this claim. I so find and hold.
13. The claimants equally claims vide their reliefs 2 and 3 that the 1st claimant is entitled to the sum of N377,443.20 as his salary for January to March and or his ninety days notice in lieu of his termination and for such months as the case would last. The defendant on the other hand stated that claimants have failed to cogently plead and prove their claims and also that the sum as pleaded in their statement of fact as the sum for salary in lieu of notice is in contrast with the sum claimed. It is the law that he who asserts must prove the existence of its assertion. The 1st claimant employment was determined vide exhibit N1 dated 19th of December, 2018 with effect from 31st of December, 2018. The letter further stated that one-month basic salary being payment in lieu of notice and other benefits due to him less his liabilities will be paid to him. However, by exhibit N his letter of employment dated 20th of April, 2010, provides that;“Termination of Appointment: After confirmation either party will be given three months’ notice or three months’ salary in lieu of notice in case of termination of employment”It is settled law that a formal contract of employment is the substratum upon which the contract rests and thus parties who willingly enter into it must be bound by the terms of the contract.See the case of SCOA (Nig) Plc v Ifebuzoh  LPELR 46784 CA.It is clear from exhibit N that to determine the relationship between the 1stclaimant and the defendant, a party who seeks to terminate the relationship is expected to give the other party three months’ notice or three months’ salary in lieu of same. By a letter dated July, 30th 2008, the 2nd claimant was appointed by the defendant and in her letter of appointment the period of notice for termination is one month notice or salary in lieu of notice. In this instant case, the defendant by letters dated 19th December, 2018,terminated the claimants’ employment and sought to pay one month basic salary in lieu of notice contrary to the agreed term of three months’ notice or salary in lieu.It is in view of the outer disregard of the terms and condition of employment by the defendant that I find that the defendant has wrongfully terminated claimants’ employment. What is the right order to make in the circumstance? The only lawful order to make is for damages which is salary in lieu of notice for the 1st claimant three months’ salary in lieu of notice while regarding the 2nd claimant is a month salary in lieu of notice. I found on record claimants payslip. The 1st claimant’s monthly pay less tax and pension is N125,814.40; for the 2nd claimant it is N96,927.96 per month. Three months’ salary in lieu of notice for the 1st claimant is N377,443,20; While a month salary in lieu of notice for the 2nd claimant is N96,927.96. It is in consequence that I award the sum of N377,443.20 and N96,927.96 respectively to both claimants as salary in lieu of notice.
14. With regards to the claims of salary from the date of termination till today 12th of May, 2018, it is notorious that an employee is not entitled to salaries for work not doneand thus this claim fails.I so find and hold.
15. It is the claimants’ further prayer that the 2nd claimant is entitled to the sum of N288,000.00 which is her salary for the month of January- March and for such months as the case would last.The defendant stated that the claimant is not entitled to this claims as she has failed to prove same. It is both fundamental and basic principle of law that the burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side.Therefore, whoever desires any Court to give judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. See the cases ofOkoye&Ors v. Nwankwo LPELR-23172(SC);Akinbade&Anor v. Babatunde& ORS  LPELR-43463 SC.It is of utmost importance for the claimant to canvass cogent evidence in prove of this claim. Specifically put, it is incumbent on the 2nd claimant to substantiate her right to payment of salary from January to March and till the conclusion of this case. Salary is an agreed or fixed recompense or emolument for work done or services rendered and usually paid to an employee by an employer at regular intervals, mostly monthly. 2nd claimant’s employment was terminated by the defendant in December, 2018. In other words she was not at work in January to March and thereafter. I found no such evidence or prove of her entitlement to salary from January to March 2019 and thereafter. The law is that pleadings and evidence are the skeletons bones and blood that gives life to a case before a competent Court to adjudicate upon, the absence of which makes the case before the Court dead on arrival as there is nothing in which the Court will rely on to grant her prayers.Facts pleaded but not supported by evidencethe law is trite, go to no issue and must be discountenanced. See the case of UBA Plc v. Mage Ltd &Anor  LPELR 42444 CA. In effect, the failure of the claimants to plead and prove their claims to salary from January to March and till judgment goes to no issue and thus discountenanced. I so find and hold.
16. Claimants equally claims the sum of N101,342.4 and N34,560 being pension and tax deductions for 24 months and 2 months respectively for the 1st claimant and N76,248.96 and N27,360.00 for the 2nd claimant to be remitted to the Federal Inland Revenue Service FIRS and their PFA. It is a statutory obligation of every employer of labour in this clime to remit certain amount of money from its employee’s salary as tax to the FIRS as well as into the Pension Fund Administrator of its employees. By Sections 2(b) and 11 (5) of the Pension Reforms Act 2014, an employer of labour is statutorily mandated to remit atleast 7.5% of the employee’s salary as well as to contribute 7.5% also into an account to be opened by its employee with a pension Administrator of his choice. Section 11(5) provides thus – “An employer shall deduct from source the monthly contribution of the employee in his employment and not later than 7 working days from the day the employee is paid his salary, remit an amount comprising the employee's contribution under paragraph (a) of this subsection and the employer's contribution to the custodian specified by the pension fund administrator of the employee to the exclusive order of such pension fund administrator”. That said, I checked the record of Court and found at pages 24 and 25 print out from the 1st claimant’s IBTC Pension fund managers, wherein it was stated that no contributions have been made into his retirement savings account in the last 4 months. This was on the 14th October, 2018, while as noted earlier in this judgment claimants employment was terminated on 19th December, 2018. The implication of this is that the defendant did not remit money deducted from 1st claimant’s account into his IBTC RSA account since June till he was sacked, i.e. is 6 months before his employment was terminated by the defendant. It is seen on the 1st claimant’s payslip for the month of December, 2018, that the sum of N7,680.00 and N4,222.60 were deducted from 1st claimant’s salary as pension and tax. For the 2nd claimant, her payslip for the month of September, 2018, evinces that the sum of N6,080.00 and N3,177.04 was equally deducted from her salary as her pension contribution and tax paid. (See pages 22 and 24 of the case file.). This has clearly proven that the defendant has been deducting monies from the salaries of the claimants as contributions for pension and tax. Now, it is the defendant’s reaction to this by paragraph 7 of its statement of defence that it has paid the claimants pension and nothing more, it did not tender any document to controvert the claimants claim. The point being made therefore is that pleadings must be proved by evidence, failure of which it goes to nothing as pleadings do not take the place of evidence. See Eseha&Anor v. Aboma  LPELR-46433CA. The defendant did not respond or controvert the non payment of their tax into the FIRS. Thus, the defendant is deemed to have admitted that it failed to remit monies deducted from the claimants’ salary into the tax authority. Exhibit N3 on record are letters dated 23rd September 2019 and 3rd October 2019 respectively, letter written to the tax office by the 1st claimant requesting for his tax status and response from the FCT-IRS stating that his employer the defendant failed to pay his tax from July 2017 to 2018. This is a clear indication that the defendant did not remit monies deducted from the claimants’ salary into the appropriate tax authority. Now, regarding the claimants’ pension, it is obvious by the documents from the IBTC PFA of the 1st claimant as stated supra that the defendant failed to remit his pension contribution into his account for 6 months before terminating his employment. It also goes without saying that the defendant did not remit its counterpart contribution of 7.5% into his account. I say this because the defendant who asserts that it has remitted monies into the claimants PFA accounts did not proffer any evidence in proof of its assertion to challenge or controvert the claimants’ cogent and credible evidence on record.It is in this regards that I find claimants evidence credible and cogent, I believe the claimants and thus hold that the defendant failed to remit claimants pension and tax into the appropriate statutory bodies. Consequent upon which I resolve this issue in favour of the claimants. Accordingly, I make an order that the defendant is to remit all the monies deducted from the salaries of the claimants in the sum of N101,342.4 and N34,560 and N76,248.96 and N27,360.00 as tax and pension contribution into their respective RSA accounts and FCT IRS within 7 days and evidence of paymentsubmitted to the Court.
17. Claimants by their relief 7 are seeking for payment of the sum of N1,009,800.00 and N932,220 as gratuity for the 1st and 2nd claimants respectively. The onus of proving entitlement to this claim rests solely on the shoulders of the claimants. I have searched through the case file and from the records before me, I find no evidence or documents to substantiate the claimants’ entitlement to gratuity. Their letters of employment which in this case is the only term and condition of their employment, has no clause in favour of their claim. I have held supra that by merely pleading or stating in a complaint that a party is entitle to certain claims without more, cannot enure the right to that claim in a party who failed to canvass credible evidence in support of same. I therefore have no hesitation in making a finding that claimants failed to prove their relief 7, it is thus dismissed.
18. The claimants are equally claiming the sum of N1,000,000.00 as cost of this suit. It is the law that cost is at the discretion of Court and is to be made within the parameters set down by the law. See Gbarabe v Registered Trustees of The Methodist Church  LPELR - 8378 (CA); NNPC Pension v. Vita Construction Ltd  LPELR - 41259 (CA); Chukwuanu v.UchenduOrs (2016) LPELR - 41022 (CA). It is also a general rule of law that cost follow events and a successful party is entitled to cost.See also First Bank v Oronsaye  LPELR 47205 CA.By Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 cost is awarded at the discretion of the Court. A successful party in a suit is reasonably expected to be awarded some cost. I find the claimants to have succeeded in their claims for the most parts, thus they are entitled to cost in the sum of N50, 000.00 (Fifty Thousand Naira) jointly. I so find and hold.
19. With regards to the claimants claims for general damages in the sum of N10, 000,000.00.General Damages is such as the law presumes to be natural or probable consequence of the defendant's act, and it need not be specifically pleaded. The defendant in this suit having wrongfully determined the employment of the claimants,they are entitled to damages, which in this present is the salary in lieu of notice which has been awarded supra to the claimants. Award for another damages will in law amount to double compensation and Courts frowns at such. This claim therefore fails. I so find and hold.
20. In sum, I find that claimants’ case succeeds in the most part, I thus make these declarations and orders-
1. That the claimant’s employment no longer subsists in the defendant employment.
2. That the 1st and 2ndclaimants’ employment was determined wrongfully.
3. The 1st claimant is entitled to be paid three months’ salary in lieu of notice; while the 2nd claimant is entitled to one month salary in lieu of notice.
4. That claimants claims 3,5, 7 and 9 fail.
5. Cost is awarded in the sum of Fifty Thousand Naira jointly to both claimants.
6. This judgment is to be complied within to be paid within 30 days.
Judgment is entered accordingly
Hon. Justice Oyewumi Oyebiola O.