IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: November 11, 2020 SUIT NO. NICN/LA/204/2015
OLUYINKA ADEJUMO - CLAIMANT
GRAND PETROLEUM AND CHEMICALS LTD - DEFENDANT
Emmanuel C. Ekeanyanwu, with E. Chukwurah for the claimant.
Okechukwu Okereke for the defendant.
Introduction and claims
The claimant filed this complaint against the defendant on the 27th May 2015 and by his statement of facts he is seeking the following reliefs:
General damages in the sum of N500,000.00 (Five Hundred Thousand Naira) against the defendant for all embarrassment and harassment by the defendant leasing company.
Payment of arrears on the unpaid portion of our client’s salary for 5 months from July 2014 to November, 2014 in the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) (with 21% interest added thereon).
Payment of outstanding salaries from January, 2015 till date at N685,000.00 (Six Hundred and Eighty-Five Thousand Naira) per month.
Payment of refund of claimant’s contribution on the lease vehicle in the sum of N1,846,000.05 (One Million, Eight Hundred and Forty Six Thousand and Five Kobo only) and accrued interest.
Payment of the outstanding leave allowance for 2014/15 in the sum of N748,000.00 (Seven Hundred and Forty-Eight Thousand Naira).
Payment of one month salary in consideration for other claimant “Leave due” but not taken in the sum of N734,000.00 (Seven Hundred and Thirty-Four Thousand Naira).
The sum of N500,000.00 (Five Hundred Thousand Naira) being the costs incurred in the prosecution of this suit.
Accompanying the complaint is the statement of facts, witness statements on oath and copies of documents to be relied upon. The defendant filed its statement of defence on 16th October 2015 together with the accompanying processes.
Case of the claimant
The case of the claimant on the pleadings is that the defendant employed him as a General Manager on the 2nd of May, 2013 and that based on his appraisals his performance was satisfactory for the period he worked with the defendant. The claimant stated that sometime in June 2014, the defendant informed him and other staff of the company of the need to place them on half of their salary due to financial difficulties. The claimant further stated that the defendant pledged to subsequently pay him and other concerned staff the arrears on the unpaid portion of salaries when its financial position improves and the defendant immediately effected its decision to pay half salaries from June 2014. The claimant averred that on the 15th December 2014, he proceeded on his annual leave in line with the terms of his contract of employment and he occasionally came in to attend to urgent business matters at the office. He stated that prior to his resumption date the Human Resources Manager Mr. Adelaja Abiodun informed him by a telephone call that he was needed for a meeting with Executive Management of the defendant.
The claimant averred that he notified the defendant of his inability to attend the meeting through the as he had travelled out of Lagos and requested for a rescheduling to 4pm on the same day, and he was asked to call one of the conveners of the meeting to intimate him of this position. The claimant stated that he called the convener of the meeting, Mr. Oboko and he was informed by telephone call that the defendant had taken a decision to suspend him. The claimant averred that on the 19th January, 2015, he was sent a memo titled “Re: Outstanding Indebtedness” where the defendant affirmed his suspension without pay with an instruction that he follow up on the recovery of debts which occurred during his employment. The claimant stated that in response he sent a mail for further clarifications, dated 20th January, 2015. The claimant stated that the issue of outstanding debts approximating N90,000,000.00 (Ninety Million Naira) alleged to have been facilitated by him, are businesses duly approved and sanctioned by top management staff of the defendant.
The claimant averred that during the period he was in the defendant’s employment, the defendant approved a lease car Camry Saloon A.T registered in the defendant’s name as No LU 496 Eky to him; and that during the period of his employment he contributed N1,846,000.05 (One Million, Eight Hundred and Forty Six Thousand, and Five Kobo only) to a lease car of about N5.4 m (Five Million, Four Hundred Thousand Naira) with an assurance that he will pay 60% and the defendant 40%. The claimant stated that after the notice of suspension, the subsidiary anchoring the lease mounted pressure on him to return the vehicle and he received calls from their CSO’s, of their instructions to retrieve the car from him, and for fear of embarrassment, he returned the vehicle to the leasing subsidiary. The claimant averred that he engaged the law Firms of Pat Dappa & Associates and instructed them to write the defendant in respect of the arbitrary suspension and non-payment of arrears of salary and other benefits. The claimant stated that the defendant responded to his Solicitor’s letter and failed to address the issue of payment of arrears of salary and other claims, and that the defendant has no defence to this action.
The claimant testified in proof of his case. He adopted his statement on oath which was in terms of the pleadings; and he relied on his admitted documents. Under cross-examination, the claimant informed the court that the defendant is a member of a group of companies. The claimant told the court that he did not place before the court his conditions of service as it was not made available to him. He denied that it is not correct that he has no evidence that he met his targets, and stated that there was no specific target set for him. The claimant stated that he was not given an official car, and that he was compelled to apply to the sister company for lease of a vehicle. He admitted that he accepted the letter of offer and conditions (exhibit C5a & C5b) and the lease vehicle was released to him. The claimant informed the court that he commenced his leave on December 15, 2014 and was to resume on the 21st of January 2015 but he did not because he was served with a letter of indefinite suspension dated 19th January 2015 and was recalled in writing (exhibitOA2) after about one month. The claimant confirmed that he came into the office when he was on leave to sign cheques and admitted that he did not resume duty after he was recalled.
The claimant admitted that he knows a company called Deran Energy Company Limited and that he worked with the company. He denied that the company Deran Energy paid money into his salary account. The claimant told the court that as General Manager, he reports to the Group and stated that the defendant did not declare a profit. He said David Obaseki Ohioma who was the National Sales Manager and other staff were involved in the decision to take a half salary cut. The claimant told the court that David Ohioma has since exited from the defendant and that he is not aware if he asked for the balance of his salary, nor for a refund of his lease contribution. The claimant confirmed that he applied for his annual leave and went on leave. The claimant’s case was then closed.
Case of the defendant
The case of the defendant on the pleadings is that the claimant was its employed as its General Manager between the 2nd May, 2013 and 25th February, 2015 and was its chief executive officer when he abandoned his duty post without any reason or excuse whatsoever. The defendant stated that it was also a subsidiary in a group of companies and that the appraisal of the claimant by the group Executives were based on facts presented by the claimant which as events subsequently showed were a misrepresentation of the true state of affairs in the defendant company. The defendant averred that the claimant’s performance was not satisfactory; and stated that the claimant had held out himself to have the requisite skill and capacity to turn around the dwindling financial state of the company towards profitability. It was on the basis of the claimant’s assurances that he was entrusted with the direction and management of the company. The defendant stated that the claimant acted contrary to his mandate and saddled it with a heavy debt burden that worsened its financial state. The defendant averred that while the claimant was in its employment, he secretly used Deran Energy Company Limited a Company in which himself and his wife are the only shareholders to carry on business transactions with it’s sister company Nosak Plastics Limited without disclosing his interest.
The defendant stated that it is engaged in the production and marketing of lubricants and allied petroleum and chemical products and that eight (8) months after the claimant assumed duties as the General Manager, he recommended to the Group Management Reprom Company Nigeria Limited as a reputable company to enjoy credit purchases, and his recommendation was approved. The defendant stated that the recommendation was approved and this resulted in the company making orders to the tune of Eighty One Million, Four Hundred and Thirty Five Thousand, One Hundred Naira (N81,435,100.00k). The said Reprom Company Nigeria Limited was subsequently found to be of no repute and till date has failed to make payment. The defendant further averred that the claimant and Mr David Obaseki Ohioma on or around November, 2013 recommended to the Group Management to approve an order for a company known as Borini Prono and Company Nigeria Limited to the tune of Eight Million, Two Hundred and Thirty Five Thousand, Three Hundred and Forty Three Naira Forty Four Kobo (N8,235,343.44k) only. That till date no payment has been made to this company for this order. The defendant averred that the claimant brought the company to its financial knees as a going concern.
The defendant stated that as its Chief Executive Officer, the claimant refused and/or neglected to approve a private motor comprehensive insurance policy for two company Nissan Almera cars contrary to its laid down policy and as a result of this failure on the part of the claimant, the two cars were subsequently involved in an accident that resulted in a write off and there was no insurance policy in place to claim from. The defendant lost the sum of Five Million, Three Hundred Thousand Naira (N5,300,000.00k) because of this claimant’s managerial incompetence. The defendant stated that the claimant also neglected to approve the renewal of the staff Group Life Policy cover for 2013 - 2014. As a result, when Boko Haram insurgents killed one of the defendant’s staff along Damaturu - Maiduguri road, the defendant was forced to pay the sum of Four Million, Six Hundred and Eighty Thousand Naira (N4,680,000.00k) in compensation, a loss that would have been mitigated if the life insurance cover was in place. The defendant stated that the claimant singlehandedly negotiated raw material purchases without following the guidelines which required that such purchase should be backed with requisite invoices.
The defendant stated that at this time the claimant originated false rumors that its business was closed down to further the business interest of his Company Deran Energy Company Ltd that was in secret competition with it, when in fact it was open for business and was being managed by the claimant. The defendant further stated that owing to the inability of the claimant to turn the fortunes of the company around which was the basis of offering him employment as a General Manager, the option before it was to appoint a new management or wind up the Company; and these options were communicated to the management under the leadership of the claimant. The defendant stated that the claimant proposed a salary cut instead of termination of the entire management staff and after discussing the modalities approved its execution; and there was no agreement that when the fortune of the company improves arrears would be paid. The defendant further stated that the agreement was that the payment of half salary would be terminated as soon as the financial fortunes of the company improves; and this did not improve until the defendant abandoned his duties. The defendant averred that none of the affected staff have asked for payment of arrears of the unpaid half salary since the understanding was clear to all the staff involved, and on the 24th December, 2014 the claimant’s salary for the month of December, 2014 was paid into his account at Diamond Bank Plc.
The defendant averred that the claimant while on his annual vacation only came to the office after close of work to sign cheques which he was supposed to have signed before proceeding on his annual vacation. The claimant had in applying for his annual leave indicated that Messrs. Abiodun Adelaja and Chuks Osakwe would oversee his responsibility in his absence but decided to assign Mr. Joseph Oboko, the Chief Operating Officer of Nosak Haulage Limited, a sister company to supervise the defendant in his absence. The defendant stated that the claimant’s new resumption date was 16th January, 2015; and that on 12th January, 2015 Mr. Oboko sent an email to the claimant requesting to meet with him and his management team for the review of the 2015 budget of the defendant and asked the claimant to indicate the time convenient for him for the meeting but claimant did not respond to the mail. On the 15th January, 2015 the Human Resources Manager Mr. Abiodun Adelaja, on the instruction of Mr. Joseph Oboko sent another email to the claimant informing him that Mr. Joseph Oboko has requested for a meeting with the senior management staff of the defendant and the claimant did not respond to the mail or resume on this due date 16th January, 2015. The defendant stated that the Human Resource Manager called the claimant after his leave expired and informed him that he was needed for a meeting with the Executive Management of the defendant.
The defendant stated that on the 19th January, 2015 another meeting was fixed to discuss the outstanding indebtedness of the defendant’s customers particularly Riprom Company Nigeria Limited and Borini-Prono and Company Nigeria Limited as well as the company’s budget for 2015. The Human Resources Manager was instructed to call and inform the claimant and request his presence at the meeting and the claimant’s response was that the time for the meeting was not convenient. The defendant stated that when the claimant spoke with Mr. Oboko, he indicated that the time convenient to him was 4.00pm the meeting was re-scheduled for 4.00pm on 19th January, 2015 and the claimant did not indicate that he was out of town. In the circumstances of the failure of the claimant to resume from his vacation on the due date without any excuse and/or explanation as well as not responding to two (2) previous memos for a meeting to discuss the financial health of the defendant, the defendant stated that it was frustrated into suspending the claimant as indicated in the memo of 19th January, 2015. The defendant further stated that it suspected that the claimant had another job because during his annual leave, a photograph was published in the Newspapers where the claimant was described as GM Alsa Petrochemical Ind. Limited and that it suspected the claimant’s involvement with Masters Energy Industries Limited and wrote to the company for confirmation but did not receive a reply.
The defendant stated that its sister company is Enterprise Assets Leasing Company Limited whose core business is leasing; and that it takes advantage of this relationship to assist its staff and personnel to purchase cars under a user/buyer scheme. The defendant further stated that in June, 2013 the claimant applied for a lease of a Toyota Camry A.T. from Enterprise Assets Leasing Company Limited, and because it made an undertaking to be responsible for the part payment of the lease, the car was released to it by the leasing company. The defendant stated that by a letter dated the 7th June, 2013 it made an offer to the claimant which he accepted and it released the car to the claimant. The defendant stated that the claimant used the car and made rental payments for approximately seventeen months and has not made any further rental payment till date. That it was a condition of the lease agreement that the claimant has to be faithful in the payment of the rental installment to the end to be entitled to a transfer of ownership of the car to him. The defendant averred that the agreement did not provide for refund of rental payment in the event of default on the part of the claimant in faithfully paying his monthly rentals.
The defendant averred that by a letter dated the 20th February, 2015 it requested the claimant to produce the leased car for inspection and he refused to but instead by a letter dated the 24th February, 2015 returned the leased car to Enterprise Asset Leasing Limited, and it replied the claimant’s letter. The defendant stated that the claimant was regularly paid fuel and maintenance allowance in respect of the leased car; and stated that Mr. David Ohioma who resigned on the 5th December, 2014 also enjoyed the same lease facility on the same terms and condition as the claimant. By a letter dated 12th January, 2015, Enterprise Assets Leasing Limited requested to repossess the leased car, or in the alternative Mr. David Ohioma pay the outstanding balance on the car so that ownership could be transferred to him. The defendant averred that Mr David Ohioma by a letter dated 20th January, 2015 elected to continue his lease on a commercial basis and that after full liquidation of the lease cost, the ownership of the car was transferred to him.
The defendant stated that on the 25th February, 2015 the claimant was recalled from suspension and he failed to either return to his duties or formally resign his employment. That upon receipt of his Solicitor’s letter dated the 24th February, 2015, it replied and reminded the Solicitor that the claimant has been re-called from his suspension and any other claim would be addressed, if and when he resumes. The defendant stated that the claimant proceeded on his annual leave for 2013/2014 on the 9th December, 2014 and was paid his leave allowance but failed to resume on the due date of 16th January, 2015. The defendant further stated that at the time the claimant abandoned his employment he had not become entitled to 2014/2015 annual leave and there is no provision in the claimant's contract of employment for a pro-rated annual leave. The defendant averred that the terms and conditions of the claimant’s employment is contained in his letter of employment as well as the Nosak Group Human Resource Manual.
The defendant called Abiodun Ikechukwu Adelaja (DW) Human Resource Manager. He adopted his statement on oath and relied on the defendant’s admitted documents. DW stated that he is conversant with the transactions in the defendant and that the claimant was employed based on his past experience. He told the court that there is no document before the court to show that the claimant’s company transacted business with Nosak. DW told the court that the claimant did not recommend that the defendant give credit facilities to a company with a high profile debt; and that the defendant was aware of the credit facilities given by the claimant. DW said the defendant was not bound to approve all business recommendations; and explained that it is standard practice that all staff must be covered by group life insurance policy. DW also explained that though exhibit C1 does not state that the claimant can be suspended without pay, the staff handbook stipulates other policies. He told the court that the defendant did not pay the half salary from July to Nov 2014 and that he was appointed to oversee the office of the claimant when he was on annual leave.
DW confirmed that the claimant came to work at odd hours during his annual leave, and he stated that the claimant did not stand as guarantor to any of the defendant’s debtors. He said he was told that the claimant rescheduled the meeting to 4pm. DW said he could not remember if in the car lease agreement, there is a provision to refund the sum paid by the claimant. DW told the court that to the best of his knowledge, the claimant did not come to the office upon the lifting of his suspension from work; and that there was no officer above the claimant. The defendant then closed his case.
The defendant’s final address is dated 17th December 2018 and is filed 18th December 2018. The claimant’s final address is dated 22nd March 2019 and is filed the same day. The defendant’s reply is dated 1st April 2019 and is filed on 2nd April 2019.
Learned counsel to the defendant submitted the following issues for determination:
Whether there is a competent witness statement on oath in support of the claimant’s statement of facts in this suit.
Whether the claimant as a lessee who failed to fulfill the terms of his lease is entitled to a refund of the rent paid for the use of the leased property? (Relief d in the Statement of Facts).
In view of the agreement between the claimant and defendant, whether the claimant has failed to prove his entitlement to any further salary payment between July, 2014 to November, 2014. (Relief b in the Statement of Facts).
Whether the claimant who abandoned his employment with the defendant is entitled to salaries and allowances without having worked with the defendant? (Relief c, e & f in the Statement of Facts).
Whether the claimant has no right to claim from the defendant general damages and the cost of ventilating his alleged grievances in the Court of law? (Relief a & g in the Statement of Facts).
He submitted that where the claim endorsed on the writ of summons is different from the claim endorsed on the statement of claim, the endorsement in the statement of claim supersedes that of the writ of summons citing Garan v Olomu  LPELR-20340; Udechukwu v Okwuka  1 ESC, 70,  SCNLR. He stated that since the endorsement on the complaint is different from the endorsement in the statement of facts, the claim on the statement of facts supersedes the writ of summons.
Learned counsel stated that the claimant’s statement on oath bears two different dates 25th May 2015, and 27th May 2015 and submitted that this offends Section 6 of the Oaths Act which specifies a date and a place, and section119(2) (b) of the Evidence Act. He further submitted that the claimant’s statement on oath is incompetent for non compliance with the law; and that there is no evidence by the claimant to support his claims citing N.N.B Plc V IBW Enterprises Nig Ltd  6 NWLR (Pt 554) 446 at 454, MTN Nig Communications Ltd V ESuola  LPELR-43952.
Learned counsel submitted that the Court has no jurisdiction to entertain the issue of the leased vehicle because there is no provision in section 254C of the 1999 Constitution for the Court to entertain claims relating to lease contract not arising out of employment. He further submitted that assuming without conceding that the Court has jurisdiction, that the claimant is not entitled to recover the rent he paid for the use of the leased car, and Enterprise Assets Leasing Limited has not been made a party to this suit. He cited Akibiya V Sambo  2 LRN 237, Babatola V Aladejana  12 NWLR (Pt 728) 597. Counsel argued that the claimant is estopped from rescinding the agreement with the defendant to accept half salary in lieu of termination and winding up; and that the claimant cannot be paid salaries and allowance when he abandoned his duties. He submitted that the claimant failed to prove his entitlement to general damage and that his claim for costs is unethical and contrary to public policy citing Guiness Nig Plc V Nwoke  15 NWLR (Pt 689) 135 at 150. He then urged the Court to dismiss the suit.
Learned counsel to the claimant submitted the following issues for determination:
Whether CW1’s statement on oath has evidential value?
Whether the claimant is entitled to refund of N1,846,000.05 (One Million, Eight Hundred and Forty Six Thousand and Five Kobo only) being money had and received by the defendant in respect of the agreement in Exhibit C5?
Whether the claimant is not entitled to payment of his unpaid half salaries from July, 2014 to November, 2014 with 10% interest thereon in the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira)?
Whether the claimant is entitled to general damages in this suit?
Whether the claimant is still an employee of the defendant and therefore entitled to salaries and allowances from the defendant till the termination of his employment?
He submitted that the statement on oath was signed by the claimant before the Commissioner for Oath and is therefore valid and competent, and that any other mistake is a defect in form which is curable by section 113 of the Evidence Act. He cited Orija V Akogun  10 NWLR (Pt 1150) 437, Euro-Bati Concept S.A. V T.I.C Ltd  18 NWLR (Pt 744) 165 at 170. Learned counsel referred to exhibit C5 and submitted that the car lease agreement emanated from the contract of employment between the claimant and the defendant. He submitted that parties are bound by the contract of employment and that on the evidence adduced, the claimant is entitled to his unpaid half salaries and interest citing UBN Plc V Soares  11 NWLR (pt 1312) 550 (CA), M.H.(Nig) Ltd V Oke Fiena  6 NWLR (Pt 1244) 514 at 533. It was the submission of learned counsel that the claimant is still an employee of the defendant and is entitled to an award of general damages. He then urged the Court to enter judgement for the claimant.
Replying on point of law, learned counsel to the defendant submitted that “inferentially admitted” is an unknown phrase, as an admission must be unequivocal and without a shred of doubt; there was no admission by the defendant. He cited Abu & Anor. v Okigwe & Anor.  LPELR 48988 (CA).
I have carefully considered all the processes filed, the evidence adduced by the parties, submissions and authorities canvassed by counsel in their final addresses. I will begin with the preliminary issues raised by learned counsel to the defendant. The first is that the Court has no jurisdiction to entertain the issue of the leased vehicle. In determining jurisdiction, the Court must examine the statute conferring it with jurisdiction and the claimant’s claim as endorsed on the complaint and the statement of facts, Emeka V Okadigbo & Ors  LPELR-9338 (SC), Savannah Bank (Nig) Plc V Saba  14 NWLR (Pt 1638) 56, Inakoju V Adeleke  4 NWLR (Pt 1025) 423, Adeyemi V Opeyori  9-10 SC 31, WAEC V Akinola Akinkunmi  9 NWLR (Pt 1091) 151, John Shoy Intl. Ltd v F.H.A  14 NWLR (Pt.1544) 427 at 446B. This issue has been brought up for the first time in final address after conclusion of trial and evidence has been taken. Section 254C (1) (a) of the 1999 Constitution as amended provides as follows:
254C-(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
The evidence adduced shows that the lease of the Toyota Camry vehicle is between the claimant as Lessee and the defendant as Lessor and the mode of payment was by deduction at source from the claimant’s monthly salary. The pleadings of the parties, and the evidence of DW is that it assists its staff to purchase cars under a user/buyer scheme. I find that this is a matter that falls within the jurisdiction of the court being incidental to and connected with the claimant’s employment. I hereby assume jurisdiction on the entirety of this matter.
The second preliminary issue is that the claimant’s statement on oath bears two different dates 25th May 2015, and 27th May 2015; and that this offends Section 6 of the Oaths Act and section 119(2) (b) of the Evidence Act rendering the claimant’s statement on oath incompetent for non compliance. The originating processes were filed on 27th May 2015 at 12.06pm and they are dated the 25th May 2015, with the exception of the complaint that is dated 27th May 2015. The verifying affidavit, the claimant’s statement on oath, and the 2nd witness statement on oath were all sworn to before the Commissioner for Oaths on the 27th May 2015 at the Registry of this Court in Lagos. The claimant has complied with the provisions of the law and I hold that the statement on oath is incompetent for the purposes of this Judgment.
The sole issue for determination in this judgment is whether on the pleadings and evidence the claimant ought to be entitled to his claims. The law is settled that the burden of proof of establishing the terms of the contract of employment is on the claimant. The claimant has put in evidence his letter of employment (exhibit C1), bank statements (exhibit C2), internal memos (exhibit C3 & C4), offer letter and release letter (exhibits C5a & C5 b), letter of return (exhibit C6), indefinite suspension (exhibits C7), recall (exhibit OA2), lease (exhibit OA1). The claimant is seeking an order for payment of the balance of his salaries from July 2014 to November 2014. The law is settled that when parties freely enter into a contract, they are bound by the terms of the contract. See Isheno V Julius Berger Nig Plc  6 NWLR (Pt 1084) 582 at 609, Hilary Farms Ltd VMV ‘Mahtra’ 14 NWLR (Pt 1054) 210 at 230 – 231, A-G Nasarawa State V A-G Plateau State  10 NWLR (Pt 1309) 419. By the terms of his employment contract (exhibit C1) the claimant’s total emolument per annum is N8,000,000.00 (Eight Million Naira), his gross salary per annum N7,026,656.00 (Seven Million, Twenty Six Thousand, Six Hundred & Fifty Six Naira); and I find that there is no condition attached to the payment of his salary in the contract of employment.
The evidence adduced is that the claimant and other employees had to take a salary cut of 50% from June 2014 due to financial difficulties of the defendant. The claimant’s statement of account (exhibit C2) shows that his salary for the months of May and June was N403,801.76. The salary paid to the claimant for the months of July, August, September, October, November was N154,355.47, and an additional N50,000.00 was paid for the months of July and October. The claimant insists that the defendant pledged to pay the arrears on the unpaid portion of the salaries when its financial position improves, but the defendant disputes this. There is no documentary evidence before the court on any agreement by the parties on a pay cut. It is the law that a party cannot unilaterally alter, modify or vary the contents of a contract in the absence of an agreement from the other party, see Unity Bank Plc V Olatunji  LPELR-24027 (CA). The International Labour Organisation (ILO) frowns at any act of unilateral deduction of workers’ wages. The Protection of Wages Convention, 1949 No. 95 specifically provides in Article 8 that -
Deduction from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions may be made.
This Article has been incorporated into domestic legislation; and thus Section 5(1) of the Labour Act Cap L1, LFN 2004 provides that:
Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or to any payment to the employer by the worker, for or in respect of any fines:
Provided that, with the prior consent in writing of an authorised labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker.
The application of this International best practice can be seen in the following decisions of the Court, Mr Tolulope Olusoga V Grosvenor Intergrated Shirts Limited (unreported) Suit No: NICN/LA/555/2015 judgement delivered on February 11, 2019, Adebusola Adedayo Omole V Mainstreet Bank Microfinance Bank Ltd (Unreported) NICN/LA/341/2012 judgement delivered on 3rd April 2014, Silvio Augusto Vallejo V Brittania-U Nig Ltd & Anor (unreported) NICN/LA/515/2014 judgement delivered on January 16, 2020. It is not the duty of the court to alter or vary the terms of the employment contract, Sona Breweries Plc V Peters  1 NWLR (Pt 908) 478, Wema Bank Plc V Osilaru  10 NWLR (pt 1094) 150. I find that the reduction of the claimant’s salary is contrary to the contract of employment, and section 5 (1) of the Labour Act; and the defendant is liable to pay the claimant the balance outstanding on his salaries. The salary paid to the claimant for the month of December 2014 is N408,369.08. The defendant is hereby ordered to pay the claimant the balance of his salary for 5 months in the sum of N1,020,922.70 (One Million, Twenty Thousand, Nine Hundred & Twenty Two Naira, Seventy Kobo).
The claimant has made a claim for payment of his salary from January 2015 till date at N685,000.00 per month and also for leave allowance. By the claimant’s own evidence under cross examination, he stated that he was to resume duties after his leave on the 21st January 2015 but he did not resume because he was placed on indefinite suspension by the defendant. He admitted that the defendant recalled him from indefinite suspension by exhibit OA2 which was effective from 25th February 2015 but he did not resume his duties. The claimant’s excuse for failing to resume duties was that he was denied access into the defendant. Once a party asserts, he/she must prove the assertion, section 131 (1) & (2) and 132 of the Evidence Act 2011. There is no proof that the claimant was denied access or locked out. I find that the claimant abandoned his duties as the defendant’s General Manager after he was recalled from indefinite suspension on 25th Februaury 2015. By this action, the claimant wrongfully terminated the contract of employment without giving the defendant one month’s notice in writing as stipulated in the contract of employment exhibit C1. However, the defendant did not counterclaim for this. I find that the claimant was paid his leave allowance for 2014 in the sum of N733,344.00 as evidenced by exhibit D5 and that he has no outstanding leave or leave allowance due to him. Consequently the claim for salaries from January 2015 till date and leave allowance/leave due fails.
The claimant has made a claim for the refund of his contribution on the lease vehicle in the sum of N1,846,000.05 and accrued interest. The claimant stated that he was compelled to apply for the lease of a vehicle but he did not adduce any evidence in proof of this. Rather, he admitted that he was given a letter of offer and he accepted all the conditions contained in the offer letter. The letter of offer for the lease facility and the letter of release of the vehicle (exhibits C5a & C5b) are in evidence. The claimant is the Lessee and the defendant the Lessor. The monthly rental is N97,158.25 in a ratio of 60% and 40% user buyer scheme, and the mode of payment by deduction at source from the claimant’s monthly salary. The claimant is to pay the monthly rentals on due dates and is to grant unhindered access/surrender the asset whenever the Lessor or its agents decides to carry out repossession of the asset due to default; the car remains the property of the defendant until all the agreed lease rentals are paid. The law is settled that when parties freely enter into a contract, they are bound by the terms of the contract. See Isheno V Julius Berger Nig Plc  6 NWLR (Pt 1084) 582 at 609, Afro Tech Services Ltd V Mia & Sons Ltd  FWLR (Pt 35) 643.
The defendant by exhibit OA1 requested the claimant to bring the leased vehicle for inspection to ascertain the condition and usage. The claimant returned the leased vehicle and stated as follows in exhibit C6: “It has become expedient, upon your request that I return this Vehicle. This is particularly so, given my indefinite suspension without pay from Grand Petroleum, by reason of which I am presently unable to sustain instalmental payments under the lease/purchase arrangement”. By this statement, the claimant opted not to continue with the lease of the vehicle upon his exit from the defendant in spite of the defendant’s letter to him dated March 4, 2015 (exhibit D15) wherein the defendant informed him as follows: “you are aware of the lease policy which provides the lessee the opportunity of continuing with the lease upon exit from the company or pay down on the outstanding principal sum of the car and take possession as the case may be”. There is no provision in exhibit C5a and C5b for the refund of monthly rental paid by the claimant. The claim for the refund of the sum of N1,846,000.05 is hereby refused.
The claimant has made a claim for general damages for embarrassment and harassment by the defendant leasing company. There is no proof of this. The claim is unsubstantiated.
On the whole, the claimant’s case succeeds only on the unpaid 50% portion of his salary for five months. The defendant is hereby ordered to pay the claimant the balance of his salary for 5 months in the sum of N1,020,922.70 (One Million, Twenty Thousand, Nine Hundred & Twenty Two Naira, Seventy Kobo) within 30 days. Thereafter, the sum will attract interest at the rate of 15% per annum until liquidation. Costs of N100,000.00 awarded the claimant.
Judgement is entered accordingly.
Hon Justice O.A.Obaseki-Osaghae