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    IN THE NATIONAL INDUSTRIAL COURT

    IN THE IBADAN JUDICIAL DIVISION

    HOLDEN AT IBADAN

    BEFORE HON. JUSTICE J. D. PETERS

     

    DATE: 11th JANUARY, 2021                                           

    SUIT NO: NICN/AB/07/2015

     

    BETWEEN

    Mrs. Gloria Ijeoma Ugoh                            …         …         ….        …                     Claimant

     

    AND

    1.                  Bio-Organics Nutrient Systems Ltd

    2.                  BNSL Foods, Feeds & Veterinary             …                                             Defendants

    Pharmaceutical Limited

    REPRESENTATION

    Chinyere Stella Ogbu for the Claimant

    D. A. Awosika with Damilola Olowookere for the 1st Defendant

    B.O. Osiyale for the 2nd Defendant

     

     

    JUDGMENT

     

    1.     Introduction & Claims

    1.         This suit was initially commenced by way of complaint and statement of facts dated the 21/7/15 against the 1st Defendant. Trial had been concluded and date fixed for address before the Claimant sought leave of the Court to join the 2nd Defendant to the suit. Pursuant to the order of this Honourable Court dated 25/4/18, the 2nd Defendant was joined as a party to this suit. In her amended statement of facts dated 1/6/18, the Claimant sought the following reliefs against the Defendants –

    1.      A Declaration that the Claimant is entitled to be paid all her outstanding salaries, benefits, entitlements, emoluments, allowances or however called being unjustly withheld and deprived her by the Defendants upon her exit from the company since February 2015.

    2.      A Declaration that the Claimant is entitled to be paid the sum of =N=7,109,792.00 (Seven Million One Hundred and Nine Thousand Seven Hundred and Ninety-Two Naira) being the gratuity payable to her for 20 years of service to the Defendants using the calculations in the schedule to the Pension Reform Act, 2014 forthwith.

    3.      An Order compelling the Defendants to pay to the Claimant the sum of =N=7,109,792.00 (Seven Million One Hundred and Ninety-Two Naira) being the gratuity payable to her for 20 years of service to the Defendants using the calculation in the schedule to the Pension Reform Act, 2014 forthwith.

    4.      An Order Compelling the Defendants to pay to the Claimant her due salary for the month of January 2015 in the sum of =N=444,362.00 (Four Hundred and Forty Thousand, Three Hundred and Sixty-Two Naira only) being her unpaid salary for January 2015 forthwith.

    5.      An Order compelling the Defendants to pay to the Claimant her 13th Month pay for 2014 in the sum of =N=333,271.50 (Three Hundred and Thirty-Three Thousand, Two Hundred and Seventy-One Naira and Fifty Kobo).

    6.      An Order compelling the Defendants to pay to the Claimant her salary for the month of February 2015 prorated till 9/2/15 in the sum of =N=142,830.64 (One Hundred and Forty-Two Thousand, Eight Hundred and Thirty Naira and Sixty-Four Kobo) forthwith.

    7.      An Order compelling the Defendants to pay the Claimant the sum of =N=1,412,436.36 (One Million, four Hundred and Twelve Thousand, Four Hundred and Thirty-Six Naira, Thirty-Six Kobo) being the Claimant’s unpaid salary for the month of March and April 2015, the balance of her February 2015 salary and prorated May, 2015 salary.

    8.      An Order compelling the Defendants to pay to the Claimant her due leave allowance for 2014 prorated by the Defendants to 8 months in the sum of =N=148,429.08 (One Hundred and Forty-Eight Thousand, Four Hundred and Twenty-Nine Naira, Eight Kobo) forthwith.

    9.      An Order compelling the Defendants to remit to the Claimant’s Retirement Savings Account with Stanbic IBTC Pension Managers Limited all outstanding pension contributions duly deducted from the Claimant’s salaries together with the statutory contributions by the Defendant toward the fund in the sum of =N=1,963,635.59 (One Million, Nine Hundred and Sixty Three Thousand Six Hundred and Thirty Five Naira, Fifty Nine Kobo) and to make proof of its compliance available to  the Claimant forthwith.

    10. The sum of =N=10 Million as damages for the loss of job opportunity caused the Claimant by the Defendants in failing to accept the Claimant’s resignation timeously and or deal with dispatch all issues affecting the Claimant’s resignation as well as for emotional shock and trauma, damage to her character, career and person.

    11. An Order compelling the Defendants to remit to the Ogun State Government Inland Revenue Services all outstanding (PAYE) taxes duly deducted from the Claimant’s income but unremitted and to make proof of its compliance available to Claimant forthwith.

    12. The sum of =N=600,000.00 (Six Hundred Thousand Naira) only as Solicitors’ fees.

    13. Cost of and expenses incidental to these proceedings.

    14. And for such order and other Orders as the Honourable Court may deem it fit to make in the circumstances     

    2.         Consequent upon the order of the Honourable Court on 25/4/18 joining the 2nd Defendant to this suit, the 1st Defendant filed its Statement of Defence dated 6/6/18 to reflect the joinder of the 2nd Defendant whilst the 2nd Defendant filed its Statement of Defence on 20/6/18.

     

    2.         Case of the Claimant

    3.         The Claimant opened her case on 19/3/19, testified as CW1, adopted her witness statement on oath of 1/6/18 as her evidence in chief and tendered 16 documents as exhibits. The documents were admitted in evidence and marked as Exh. GU1 – Exh. GU16 respectively.

     

    4.         The case of the Claimant as revealed from the pleadings and evidence led is that the Claimant was first employed by the Defendants particularly, the 1st Defendant vide letter of offer of employment dated 5/5/94; that she rose through the ranks by dint of hard work and continued personal self-development to the position of Product Manager a position she occupied till her employment came to an abrupt end on 9/2/15; that the circumstances surrounding the cessation of her employment with the Defendants were that the Claimant went away for a short vacation (official leave) sometimes in January, 2015 and upon her resumption, she realized that her internet connections were not working; that and upon further inquiries from the ICT Department, she was informed that the then Managing Director, John Westerhoff had directed that she be disconnected; that she immediately sought to have an audience with the said Managing Director, who deferred the audience till later in the evening; that the meeting and other acts of hostility towards the Claimant by some members of staff of the Defendants particularly the 1st Defendant left the Claimant with no option than to resign; that she tendered her letter of resignation dated 9th February, the Defendant did not accept her resignation but instead placed her on indefinite suspension; that the Defendants refused, failed and or neglected to pay her January, 2015 salary; that the Defendant never contacted her again in respect of her said indefinite suspension until the Claimant wrote a letter to members of the Board of Directors and the Claimant had no choice than to enlist the services of her Solicitors who entered into several correspondences with the 1st Defendant.

     

    5.         Claimant averred further that despite the fact that the 1st Defendant capitulated and accepted the Claimant’s resignation, it failed, refused and neglected to pay the Claimant’s terminal benefits which led to the institution of this proceeding; that it was while these proceedings were pending that the 1st Defendant sold or transferred the company to the 2nd Defendant leading to the joining of the 2nd Defendant as a party to these proceedings; that while these proceedings were pending, the Defendants paid to the Claimant her January, 2015 salary and February, 2015 prorated salary and has since then refused to pay other outstanding terminal benefits of the Claimant which they have hitherto agreed to pay.

     

    6.         While being cross examined, the Claimant testified that she is not contesting her resignation of 9/2/15; that she received a letter from 1st Defendant detailing her terminal benefits about 3 months after she left; that she received the letter but the calculation was not correct; that only the January salary and February prorated salary were correct; that she was not in 1st Defendant office between 10/2/15 and 25/5/15; that she resigned as Product Manager of 1st Defendant; that she was employed by former MD as Secretary Grade 3 May 1994; that the 1st Defendant is a vitamin and mineral technology provider in this country; that she does not know she was liked by former MD because she was doing her job; that as at May 1994 when she joined 1st Defendant she had her WAEC and Diploma in Secretarial Studies; that as at the time she joined, the 1st Defendant had a Staff Handbook; that the 1st Defendant has a gratuity policy; that deductions made from her salary were reflected in the pay slip; that she does not have the pay slips; that she does not have any correspondence with Ogun State Inland Revenue regarding remittances of her PAYE deductions and that there is no agreement between her and the 1st Defendant that the 1st Defendant would pay her legal fees. In re-examination, CW1 stated that she joined the 1st Defendant with WAEC; that she later had Diploma in Accounting, B.Sc in Business Admin from Unilag and an Executive M.B.A and that she also attended training both locally and foreign.

    3.         Case of the Defendants

    7.         The 1st Defendant opened its case on 12/2/2020 and called one Romeo Ese Michael as its lone witness testifying as DW1. The witness adopted his witness deposition dated 6/6/18 as his evidence in chief and tendered 6 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1 to Exh. D5 respectively.

     

    8.         The case of the 1st Defendant is that the Claimant was an employee of the 1st Defendant before she resigned her appointment by a letter dated 9/2/15 which was rejected because the Claimant was under investigation; that the Claimant lobbied members of the Board particularly Dr. Acholonu to have her suspension raised; that the 1st Defendant despite a near bankruptcy situation has paid the Claimant her January salary in the sum of =N=445,362.00 and February 2015 salary prorated till 9th February, 2015 in the sum of =N=142,830.64; that Claimant’s pension remittances were duly done under the Nigerian Social Insurance Trust Fund Scheme; that after the enactment of the Pension Reform Act, the pension of the Claimant was duly remitted to her Pension Fund Administrator of choice; that the 1st Defendant is not indebted to the Claimant in the sum of =N=1,963,635.59 being the Claimant’s unremitted pension contribution; that the 1st Defendant was only following normal cooperate procedure by refusing to accept the resignation of the Claimant giving the ongoing investigation of financial recklessness levelled against the Claimant; that the action of the 1st Defendant did not cost the Claimant any job or caused a blight in her career as the Claimant is the source of her own misfortune; that the payment of gratuity is solely within the prerogative of the 1st Defendant; that this Honorable Court does not have jurisdiction on the issue of tax which falls squarely on the Federal High Court and that the 1st Defendant is not liable to pay the Claimant’s Solicitors fees as same was not instructed by the 1st Defendant.

     

    9.         Under cross examination DW1 testified that the 1st Defendant accepted Claimant’s resignation; that the Claimant has been paid what she is entitled to in line with the policy of 1st Defendant and informed accordingly; that the mode of payment was not specified in the file he read; that the file is an in-house file of the 1st Defendant; that he does not  know if clarification were made to the Claimant on the calculation of her gratuity; that the 1st Defendant did not deduct pension from Claimant’s salary as at 2015; that Exh.D1 is not a confidential document meant for Ese Festus alone; that he does not agree that Claimant is entitled to gratuity; that if there is agreement for payment of 13th month salary the Claimant is entitled to it; that the Claimant was Logistic and Inventory Manager as at the time Exh. D1 was made; that officially Claimant was not the Finance Manager of the 1st Defendant but unofficially she was performing that role as given to her by Dr. Acholonu; that he became Official Receiver after Claimant had left 1st Defendant; that he was not happy with some of the reports in the file; that the Claimant was not a Director of 1st Defendant but close to the founder of 1st Defendant; that the 1st and 2nd Defendants are 2 different companies and that he sold assets of 1st Defendant to the 2nd Defendant but 2nd Defendant did not take over 1st Defendant.

     

    10.       The witness added that the Claimant was never an employee of the 2nd Defendant; that the 2nd Defendant did not acquire controlling interest in the 1st Defendant; that certain assets of 1st Defendant were sold to the 2nd Defendant by virtue of his appointment by Sterling Bank Plc to recover 1st Defendant indebtedness to it; that the proceeds of the sale to 2nd Defendant were paid to Sterling Bank Plc; that by the payment the Sterling Bank Plc discharged the indebtedness of 1st Defendant to it; that the 1st Defendant has not been wound up though not viable and that if at all there is any obligation respecting severance benefit of the Claimant that should be for the 1st Defendant but that there is none for the 1st Defendant to discharge again.

     

    11.       The case as canvassed by the 2nd Defendant is that the Claimant’s case rests on a clear misrepresentation of facts and erroneous assumption that the 1st Defendant merely changed its name to that of the 2nd Defendant and/or that the 1st Defendant was sold to the 2nd Defendant; that rather the 2nd Defendant is a different and distinct legal personality from the 1st Defendant and they are both not connected in any way; that based on the historical mismanagement and events which culminated in the appointment by Sterling Bank Plc of Romeo Ese Michael as Receiver Manager over the moribund assets and liabilities of the 1st Defendant, the 1st Defendant ceased to carry-on business at its former premises, situate at Km. 26, Lagos-Ibadan Express-Way, Ibafo, Ogun State; that following the sale of its said moribund assets and liabilities, pursuant to an Asset Sale and Purchase Agreement entered into between the Receiver Manager (duly appointed by Sterling Bank Plc, pursuant to a Deed of Debenture duly executed in favour of the Sterling Bank Plc by the 1st Defendant)  and FS Capital Limited (as Purchaser of all the said assets and liabilities of the Defendant); that in spite of the sale of the 1st Defendant’s assets and liabilities to FS Capital Limited, the 1st Defendant was not wound-up and thus remains a valid legal entity, competent to sue and be sued; that the Receiver Manager, in pursuance of the powers vested in him under the relevant sections of the Companies and Allied Matters Act (CAMA) LFN 2004, incorporated the 2nd Defendant to manage and operate only the transferred assets (without liabilities) and that this suit can be resolved between the Claimant and the 1st Defendant only as no reasonable cause of action is disclosed against the 2nd Defendant.

     

    12.       Under cross examination, the witness stated that the Directors of 2nd Defendant are Mr. Sam Amani, Stella Odumegu, HRH Eze Festus Odumegu and that he does not know who owns FS Capital Limited.

    4.         Submissions of learned Counsel

    13.       The final written address of the 2nd Defendant was dated and filed on 5/3/2020. In it learned Counsel set down 2 issues for determination as follows –

     

    1.      Whether the Claimant, by failure or neglect to file a Reply/Additional witness Statement on Oath in support of her Reply to the 2nd Defendant’s Statement of Defence dated 13th November 2018, is deemed to have abandoned the said reply and consequently admitted the averments in 2nd Defendant’s Defence.

    2.      Whether from a combination of all the material facts presented and the evidence led in this suit, the Claimant has been able to prove that she is entitled to the reliefs set out in her statement of Facts against the 2nd Defendant.

    14.       Arguing issue 1, learned Counsel submitted that the Claimant filed a reply dated 13/11/108 in response to the 2nd Defendant’s Statement of Defence; that the said Reply was neither accompanied with an Additional Statement on Oath nor evidence led in respect of the said Reply at trial and that the implication of such pleadings without any evidence led in support is that such is deemed abandoned citing Adegbite v. Ogunfaolu (1990)4 NWLR (Pt. 146) 578 & Adegbesan & Anor. v. Ilesanmi (2017) LPELR-42552 (CA). Learned Counsel prayed the Court to hold that the said Reply goes to no issue as regards proof of the case of the Claimant.

     

    15.       On issue 2, learned Counsel submitted that the Claimant has failed to prove that she is entitled to any of the reliefs sought in the Statement of Facts against the 2nd Defendant; that the Claimant failed to disclose any reasonable cause of action against the 2nd Defendant other than the erroneous and misleading averment in paragraph 3 of the Statement of Facts that the 2nd Defendant has acquired controlling shares in the 1st Defendant; that Claimant has presented nothing whatsoever to link the 2nd Defendant to the Claimant’s cause of action citing Rinco Construction Co Limited v. VeePee Industries Limited & Anor. (2005) LPELR-2949(SC); that the 2nd Defendant has not acquired the controlling shares in the 1st Defendant and that the 1st Defendant is a distinct and separate entity from the 2nd Defendant and that the 1st Defendant is still a going concern. Learned Counsel added that the Claimant has failed to establish that the 2nd Defendant is liable to her for any of the reliefs sought; that it is not enough to merely aver that the 2nd Defendant has acquired controlling shares in the 1sr Defendant, the Claimant must prove the fact with supporting evidence which the Claimant has failed to do citing Sections 131- 133, Evidence Act, 2011, Ebeani Nwavu v. Chief Patrick Okoye & Ors. (2009) All FWLR (Pt. 451) 815 and that the absence of any specific denial of the facts and evidence led by the 2nd Defendant, the Claimant is deemed to have admitted the facts contained in the 2nd Defendant’s Statement of Defence and the evidence led in support. Learned Claimant prayed the Court to dismiss the case of the Clamant against the 2nd Defendant in its entirety.

     

    16.       A 33-page final written address dated 9/3/2020 was filed on behalf of the 1st Defendant on 10/3/2020. Learned Counsel set down a lone issue for determination as follows –

     

    Whether by virtue of the evidence adduced before this Honourable Court, the Claimant has proved her entitlement to the reliefs sought in her Amended Statement of Facts.                   

     

    17.       In arguing this lone issue, learned Counsel, as a preliminary point, submitted that it is clear from the records of the Court that the Claimant filed a Reply to the 1st Defendant’s Statement of Defence and same dated 13/11/18; that the said Reply was not accompanied by a deposition on oath and that the said Reply lacks merit without a written statement on oath citing Adegbesan v. Ilesanmi (2017) LPELR-42552. Counsel prayed the Court to so hold.

     

    18.       Respecting the first relief sought by the Claimant, learned Counsel submitted that the 1st Defendant has in the normal course of doing business paid the said sum being claimed by the Claimant; that the position was affirmed by DW1 during cross examination as well as Exh. D4 which was not controverted by the Claimant in any way; that in the absence of anything to the contrary, Claimant must be deemed to have admitted that she has been paid her outstanding salaries, citing FBN Plc v. Oniyangi (2000)1 NWLR (Pt. 661) 497.

     

    19.       On the second relief gratuity for 20 years of service using the calculation in the schedule to the Pensions Reforms Act, 2014, learned Counsel submitted that it is for the Claimant to prove entitlement to this relief which Claimant has failed to do; that although the Pension Reform Act, 2014 relates to calculations of pensions, it is not relevant in the instant case; that entitlement of an employee to gratuity and other terminal benefits is subject to the terms and conditions of engagement citing Mr. Linus E. Ukah v. Chemlap Nig. Limited (Unreported) Suit No: NICN/LA/348/2015 Judgment of which was delivered on 12/12/19; that Claimant ought to have calculated her pension and gratuity in line with Exh. D2 & Exh. D3 being the Staff Handbook and 1st Defendant’s Gratuity Policy and that the Claimant has neither led evidence to show how she came about the said amount claimed nor has she made a graphical explanation of how she came about the said sum. Counsel prayed the Court to so hold. Counsel submitted that once this head of relief fails then the Court is bound to refuse and dismiss the 3rd relief as well.

     

    20.       Respecting relief 4 which is to compel the Defendants to pay to the Claimant her due salary for the month of January, 2015 in the sum of =N=444,362.00 being her unpaid salary for the month of January, learned Counsel submitted that this relief is hinged on the resolution of relief 1 and that Claimant having failed to prove her entitlement to relief 1, relief 4 must also be refused and dismissed. On relief 5 which is for the payment of 13th month pay for 2014 in the sum of =N=333,271.50, Counsel submitted that the purport of 13th month bonus/salary is clearly stated in Art. 48(8) of Exh. D2 which has the heading Award/Gifts/Celebrations which contains matters that fall within the discretion of the Company; that the payment of 13th month is discretionary and not mandatory or compulsory and that the Company cannot be compelled to pay same.

     

    21.       Relief 6 is for the payment of salary for the month of February 2015 prorated till 9th February in the sum of =N=142,830.64. On this learned Counsel submitted that the evidence led by the Defendant to the effect same has been paid to the Claimant was not challenged or controverted by the Claimant. Counsel urged the Court to dismiss this head of relief.

     

    22.       On relief 7 to compel the Defendants to pay to the Claimant the sum of =N=1,412,436.36 as Claimant’s unpaid salary for the months of March, April, balance of February 2015 salary and prorated May 2015 salary, learned Counsel submitted that the Claimant by her testimony under cross examination stated clearly that she was not in the office of the 1st Defendant from 10th February 2015 to 25th May, 2015; that it is apparent that Claimant did not return to the 1st Defendant after she dropped her letter of resignation and that the Court will not order payment of salaries for services not rendered citing Mr. Lanre Lookman Yusuf v. International Cooperation Industry Nigeria Limited (Unreported) Suit No: NICN/LA/615/2016 Judgment of which was delivered on 12/12/19. Counsel prayed the Court to refuse and dismiss this relief. On the claim for payment of leave allowance for 2014 prorated by Defendants to 8 months in the sum of =N=148,429.08, Counsel submitted that leave allowance is an annual allowance; that Claimant only becomes entitled to same on the completion of 12 months’ work and that the Claimant not having completed 12 months of work with the 1st Defendant is not entitled to leave allowance. Counsel prayed the Court to hold. On the prayer for an order to compel the Defendants to remit to the Claimant’s Retirement Savings Account with Stanbic IBTC Pension Managers Limited all outstanding pension contributions duly deducted from Claimant’s salary together with statutory contributions by the Defendant in the sum of =N=1,963,635.59; Counsel submitted that the pension deductions of the Claimant was duly remitted to the Nigeria Social Insurance Trust Fund (NSITF) citing Exh. D5 and that after the enactment of the Pension Reform Act, Claimant’s pension was duly remitted to her Pension Fund Administrator citing Exh. GU15; that there is no evidence to support the assertion that 1st Defendant deducted or failed to remit same to appropriate authority citing Falae v. Obasanjo (No. 2) (1994)4 NWLR (Pt. 599) 476. Counsel prayed the Court to so hold.

     

    23.       Relief 10 is for payment of =N=10,000,000.00 as damages for the loss of job opportunity caused the Claimant by the Defendants’ in failing to accept Claimant’s resignation timeously and/or deal with dispatch all issues affecting Claimant’s resignation. On this learned Counsel submitted that this claim falls under general damages; that on the authority of Owena Mass Transportation Company Limited v. Imafidon (2011) LPELR-4810(CA), general damages flow naturally from the wrongful act of a Defendant complained of; that the facts adduced by the Claimant are not sufficient to ground a claim for general damages and that the Court cannot grant a prayer for general damages where there is no breach of contractual relationship between the parties as it relates to the subject matter of the suit citing ACME Builders Limited v. Kaduna State Water Board & Anor. (1999)2 NWLR (Pt. 590) 288. Counsel urged the Court to refuse and dismiss this head of relief.

     

    24.       On relief 11, learned Counsel submitted that the Claimant has placed no evidence before the Court to support her entitlement to same; that the relief which relates to payment of Tax to Ogun State Government is not within the jurisdiction of this Court citing Section 272(1), Constitution of the Federal Republic of Nigeria. 1999 (as amended) & Henry Nwobisi v. Bridgeways Global Projects Limited (Unreported) Suit No: NICN/LA/147/2013 Judgment of which was delivered on 9/10/14. Counsel prayed the court to dismiss this relief.

     

    25.       Finally, the Claimant sought payment of the sum of =N=600,000.00 as Solicitor’s fees. On this, learned Counsel submitted that this claim is a claim for special damages; that it must be particularized and strictly proved; that an admission of same is not enough citing NNPC v. Clifco Nigeria Limited (2011) LPELR-2022(SC) & 7Up Bottling Company Plc v. Augustus (2012) LPELR-20873(CA); that there is no evidence in support of this claim; that there is no agreement by the parties to same and that claims for payment of Solicitor’s fees has been condemned by the Courts in numerous cases citing Guinness (Nig.) Plc v. Nwoke (2000)15 NWLR (Pt. 689) 135 & Nwangi v. Coastal Services (Nig.) Limited (2004)11 NWLR (Pt. 885) 552.

     

    26.       Learned Counsel urged the Court to resolve the lone issue set down for determination in favor of the Defendant and against the Claimant. Counsel urged the Court to dismiss the case of the Claimant in its entirety. 

     

    27.       A 31-page final written address dated 31/3/2020 was filed on behalf of the Claimant on 15/6/2020. In it learned Counsel canvassed the following 3 issues for determination –

    1.                 Whether the Claimant effectively resigned from the employment of the Defendants.

    2.                 What terminal benefits became payable to the Claimant upon successful resignation from the Defendants.

    3.                 Whether the Claimant is not entitled to all her ancillary reliefs in this case.

    28.       Before arguing the issues set down, learned Counsel canvassed argument on what she called 3 Preliminary Issues. The issues are –

     

    1.      Whether the exhibits of the 1st Defendant are validly filed and paid for at the Registry of the Honouralbe Court so as to entitle this Honourable court to use them in this case.

    2.      What is the position of the Reply to Statement of Defence filed by the Claimant in response to the Defence of the 1st and 2nd Defendants respective statement of Defence in this case.

    3.      Whether the Claimant has a valid cause of action against the 2nd Defendant

    29.       On the first preliminary issue, learned Counsel submitted that the 1st Defendant’s statement of defence dated 6/6/18 which the 1st Defendant relied on at trial did not have any accompanying documents; that the 1st Defendant simply filed a list of documents with no documents attached and that the documents tendered at trial as exhibits were those attached to the statement of defence dated 14/4/16 by Messrs Pentagon Partners the former Counsel to the 1st Defendant which the current Counsel D.A. Awosika & Co abandoned when it filed the statement of defence of 6/6/18; that upon joining the 2nd Defendant on 14/3/18, the order for consequential amendment led to Claimant’s amended statement of claim dated 1/6/18 and the Defendants’ respective defences of 6/6/18 and 20/6/18; that once pleadings are amended, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried citing Archbishop Peter Yariyok Jatau v. Alh. Mansur Ahmed (2003)5 MJSC 186 at 194. Counsel urged the Court to hold that the documents sought to be relied on by the 1st Defendant as exhibits having not been properly filed and paid for cannot be used in these proceedings citing Patrick Uzuagbe Okolo & Anor. v. Union Bank of Nigeria (2004)2 MJSC 69 at 77. 

     

    30.       On the second preliminary issue, learned Counsel submitted that the Defendants are totally misguided and their submission that the said Reply not being accompanied by written statement on oath is deemed abandoned are erroneous. Counsel cited Order 33 Rule 1 of the Rules of this Court; submitted that there is no requirement by the Rules of this Court that a Reply to statement of defence ought to be accompanied by a Written Statement on Oath; that the Defendants cannot import into the Rules of what was not there and that on the authority of Garba & Anor. v. Banna (2014) LPELR-24308(CA) a Reply statement on oath is that sworn evidence of a Claimant which seeks to prove facts in his Reply statement as a result of the fresh, unique, novel and further averments introduced to the Defendant’s statement of defence outside the Claimant’s statement of claim; that there were no fresh or novel issues introduced into the statement of defence as the Defendants simply defended the allegations laid before the Court. Counsel prayed the Court to discountenance the argument of the Defendants in this respect.

     

    31.       On the third preliminary issue, learned Counsel submitted that by the pleadings of the parties and Exh. D6, it is apparent that the 2nd Defendant is a subsidiary of the 1st Defendant and having a controlling share of the 1st Defendant; that being part and parcel of the 1st Defendant, the 2nd Defendant is a co-employer of the Claimant citing Donatus I. Onumalobi v. NNPC & Anor. (2004)1 NLLR (Pt. 12) 304 at 323. Counsel urged the Court to hold that the Claimant has a reasonable cause of action against the 2nd Defendant.

     

    32.       Now respecting the mains 3 issues set down for determination, learned Counsel argued issues 1 and 2 together. Counsel submitted that the Claimant effectively resigned her appointment with the Defendants; that by Exh. GU11, the 1st Defendant accepted the resignation; that what ought to follow was the payment to the Claimant her terminal entitlement; that notwithstanding Exh. GU11, the 1st Defendant refused to take steps to calculate and pay to the Claimant her severance benefits; that there is no controversies respecting the entitlement of the Claimant to gratuity; that 1st Defendant by Exh. GU13 calculated the said gratuity to be the sum of =N=4,443,620.00. Counsel prayed the Court to enter Judgment on admission in favour of the Claimant in the sum of =N=4,443,620.00. Counsel added that if the Court holds that the Defendant does not have any valid exhibit before the Court, then the only parameter available for calculating the Claimant’s gratuity is as contained in the schedule to Pension Reform Act and hence the Claimant should be paid the total sum of =N=7,109,792.00. Learned Counsel urged the Court to so hold.

     

    33.       Respecting issue 3, learned Counsel submitted that the Claimant has established via her evidence and the admission of the Defendants that she is entitled to her claims; that the agreement as to her terminal benefits are contained in Exh. GU6; that 1st Defendant after accepting Claimant’s resignation by Exh. GU11, listed the terminal benefits to include salary due till the last day worked, 13th month bonus and gratuity for 20 years of service. Counsel prayed the Court to so hold.

     

    34.       Counsel submitted that suspending an employee without pay is unfair labour practice citing Oyewumi Oyetayo v. Zenith Bank Plc (2012)27 NLLR (Pt. 84) 370 at 420; that from the time Claimant was placed on an indefinite suspension till the day her resignation was accepted on 20/5/15 she was and remained an employee of the Defendants and that it is unconscionable to deny payment of salaries to an employee who remained in their employment. Counsel urged the Court to hold as such.

     

    35.       On the claim for the sum of =N=1,963,635.56 being outstanding unremitted pensions contribution duly deducted from the salary but not remitted to Stambic IBTC Pensions, Counsel submitted that Exh. GU15 is the letter of the claimant demanding that the Defendants update the said pension payment; that this piece of evidence was not challenged; that the document speaks for itself; that the amount deducted is as stated on Exh. GU13 and that the amount claimed is not special damages as argued by the Defendants. Counsel prayed the Court to hold that the Defendants have no defence to this head of claim and grant same.

     

    36.       Counsel submitted that the PAYE taxes deducted were not remitted to the appropriate government agency; that the Defendants did not deny that they deducted tax from the salary of the Claimant; that all that the Claimant is asking is that the money deducted from her salary as tax be applied for the purpose for which it was deducted referring to Exh. GU13.

     

    37.       On the issue of damages, learned Counsel submitted that damages flow naturally from the wrongful act of a Defendant complained of citing Shell v. Tiebo (2005)9 NWLR (Pt. 931) 431 at 466; that the action of the Defendants wrongfully affected the Claimant and that it is only natural that the Claimant be compensated by the award of damages. Learned Counsel prayed the Court to grant all the prayers of the Claimant with cost against the Defendants.

     

    38.       The 1st Defendant filed a Reply on Point of Law on 24/6/2020 replying to the issue raised as to the validity of the 1st Defendant’s exhibit by making recourse to Paragraph of Appendix 3 made pursuant to Order 67 Rule 2 of the Rules of this Court, Counsel submitted that the 1st Defendant’s exhibits were pleaded in its amended statement of defence and listed in the list of exhibits to be relied on at trial; that the requisite fees were duly calculated by the Court Registry and paid for by the 1st Defendant; that in any event the exhibits are part of the record of the Court; that the Law empowers the Court to consider any document in its record for the just and effectual determination of the case before it citing Section 122(m), Evidence Act, 2011 and that the extant legislation governing the reception of document in a Court of Law is not the Rules of Court but the Evidence Act. Counsel submitted in reaction to the position of the Claimant on her Reply to statement of defence that a reply to a statement of defence forms part of the pleadings and ought to be accompanied by witness deposition which must be adopted to give it validity before the Court citing Nwabufo v. UBA Plc & Anor. (2019) LPELR-47881(CA).

     

    39.       Respecting the argument that the 2nd Defendant is a co-employer of the Claimant, Counsel submitted that the 2nd Defendant is a separate and distinct entity from the 1st Defendant; that the 2nd Defendant as corporate entity cannot be held responsible for the act of the 1st Defendant which is also a corporate body with capacity to sue and be sued; that Claimant having resigned before the incorporation of the 2nd Defendant and not from the evidence before the Court in receipt of any letter of appointment or employment from the 2nd Defendant cannot be regarded as a co-employee of the 2nd Defendant and even assuming without conceding that the 2nd Defendant is a subsidiary of the 1st Defendant, the mere fact that the Claimant was an employee of the 1st Defendant does not automatically make her an employee/co-employee of the 2nd Defendant company citing Obaje v. Nigeria Airspace Management Agency (2019)PELR-19958(CA). Counsel prayed the Court to dismiss the case of the Claimant.

     

    40.       The 2nd Defendant also filed a reply on points of law on24/6/2020. The crux of the argument canvassed by the learned Counsel is that the employment of the Claimant being her personal contract executed with the 1st Defendant cannot be transferred to the 2nd Defendant who was neither a party to the said contract nor an employer of the Claimant and that on the authority of African Continental Seaways Limited v. N.D.R.G.W. Limited (1977)LPELR-209(SC) the Claimant needs to show with clear proof that the 2nd Defendant is a subsidiary or holding company of the 1st Defendant and that Claimant has failed to do this. Counsel thus urged the Court to dismiss the case of the Claimant in its entirety.

     

    5.         Decision

    41.       I read and clearly understood all the processes filed by all the learned Counsel in this case. I heard the oral testimonies of the witnesses called at trial and watched their demeanor. I in addition heard the oral argument canvassed by all the learned Counsel at the stage of adopting their final written addresses and replies on points of law. Having done all this, I narrow the issues for the just determination of this case to be as follows -

    1.      Whether the Claimant, by failure or neglect to file a Reply/Additional witness Statement on Oath in support of her Reply to the 2nd Defendant’s Statement of Defence dated 13th November 2018, is deemed to have abandoned the said reply and consequently admitted the averments in 2nd Defendant’s Defence.

    2.      Whether the exhibits of the 1st Defendant are validly filed and paid for at the Registry of the Honouralbe Court so as to entitle this Honourable court to use them in this case.

    3.      Whether the Claimant has adduced cogent, credible and admissible evidence in support of her claims to be entitled to any or some of the reliefs sought.

    42.       The first issue for determination as set down is whether the Claimant, by failure or neglect to file a Reply/Additional witness Statement on Oath in support of her Reply to the 2nd Defendant’s Statement of Defence dated 13th November 2018, is deemed to have abandoned the said reply and consequently admitted the averments in 2nd Defendant’s Defence. On 13/11/18, the Claimant filed a Reply to 2nd Defendant’s statement of defence. 2nd Defendant’s statement of defence was filed on 20/6/18. The 10-paragraph reply was not accompanied by any deposition on oath. Has the Claimant abandoned her reply in the absence of an accompanying oath? That was the argument canvassed by the learned Counsel to the 2nd Defendant.

     

    43.       A Reply is part of the pleadings of the parties to an action. Averments in pleadings are not evidence. The reason for this is understandable cognizance of the fact that pleadings are not on oath. They are not sworn before any Commissioner for Oaths or any officer of the Court with power to administer oath. Thus, pleadings are required to be supported by a deposition on oath. The deposition on oath becomes an evidence upon which the Court can act. The deposition once adopted becomes an evidence. Where therefore a pleading be it statement of facts, statement of defence or a reply to a statement of defence is not supported by deposition on oath, whatever is contained in it cannot be acted upon by the Court it not being evidence and there being no evidence in support of same. In circumstances as that the content of the pleadings not supported by a deposition is deemed abandoned by the party concerned. See Alalade & Ors. v. Ododo & Ors.(2019) LPELR-46888(CA). The Court of Appeal had earlier in Rajco Int'l Ltd v. Le Cavalier Motels & Restaurants Ltd & Ors. (2016) LPELR-40082(CA) bluntly restated the position in the following words –

     

    “The law is trite that pleadings, however strong and convincing the averments may be without evidence in proof thereof goes to no issue. Evidence is required to be led to prove the facts relied on by the party or to sustain allegations raised in the pleadings. In other words, an averment of facts in a pleading is not an evidence and can never be so construed. The facts so averred must of necessity be proved by evidence except those facts admitted by the adverse party. See UBN v. Astra Buildings (WA) Ltd (2010) 41 NSCQR (Pt. 2) 1016; Buhari v. Obasanjo (2005)2 NWLR (Pt. 910)241; Yusuf v. Oyetunde (1998) 12 NWLR (Pt. 579)483.

     

    It follows therefore that pleadings do not constitute evidence and where such pleading is not supported by evidence either oral or documentary, it is deemed to have been abandoned. See Newbreed Organisation Ltd v. Erhomosele (2006)5 NWLR (Pt. 974) 499; Ezeanah v. Atta  (2004) 2 SCNJ 200; (2004)7 NWLR (Pt. 873)468; Magnusson v. Koiki (1993)12 SCNJ 114; Mohammed v. Klargester (Nig.) Ltd (2002) 14 NWLR (Pt. 987)335; Chime v. Chime (2001) 3 NWLR (2001)3 NWLR (Pt. 701) 527; Garba v. Lobi Banks (2003) FWLR

     

    The consequential effect is that in the instant case, the Respondents, having not at the trial, adduced evidence in support of their pleadings, same is accordingly deemed abandoned”.

     

    44.       It may be correct, as canvassed by the learned Counsel to the Claimant, that the Rules of this Court do not require the filing of a statement on oath along with a reply to a statement of defence. However, it is clear that averments in pleadings irrespective of the name given to that pleadings remains mere averments, then the pleadings must be accompanied by a statement on oath which will serve as oral evidence once adopted. On the authorities therefore I resolve issue 1 in favor of the Defendants and hold that in the absence of deposition on oath accompanying the Claimant’s Reply to the Statement of Defence of the 2nd Defendant the averments in the said reply are deemed abandoned there being no evidence in support of the same.

     

    45.       The second issue set down for determination is whether the exhibits of the 1st Defendant are validly filed and paid for at the Registry of the Honouralbe Court so as to entitle this Honourable court to use them in this case.

     

    46.       The 1st Defendant opened its case on 18/2/2020. On that day, it tendered 5 documents as exhibits. Learned Counsel to the Claimant did not object to the tendering and/or admissibility of any of these documents. Neither did the learned Counsel express a desire to contest their admissibility at the stage of adoption of final written addresses. The argument of the learned Counsel to the Claimant is that 1st Defendant simply filed a list of documents to be relied on at trial; that it did not file and pay for the documents at the Registry of this Court and that the documents tendered and admitted were those filed by the former Counsel representing the 1st Defendant and that at the time current Counsel D. A. Awosika & Partners filed the amended defence processes no documents to be used at trial were filed along with them.

     

    47.       I start off by noting that of a truth the 1st Defendant did not accompany its defence process with copies of the documents to be relied on at trial. In other words, the 1st Defendant did not frontload the documents listed as required by the Rules of Court. However, it filed a list of documents. I note that the documents eventually tendered were the same as listed and nothing else. Thirdly, at the time of tendering these documents, there was no objection at all from the learned Counsel to the Claimant. Of critical importance is the fact that learned Counsel to the Claimant did not argue that the documents tendered by the 1st Defendant were not pleaded or that they were relevant to the case of the 1st Defendant. I find the documents pleaded. I also find the documents relevant to the case of the 1st Defendant. Accordingly, I hold them admissible and are properly admitted for use by the Court. Now, learned Counsel had cited Patrick Uzuagbe Okolo & Anor. v. Union Bank of Nigeria (2004)2 M.J.S.C 69 at 77 before me and quoted the following paragraph as emanating from the Supreme Court –

     

    “Payment of filing fees is a precondition to or condition precedent to the court’s assumption of jurisdiction. Where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. This is because the Rules of court make it mandatory for a party to pay filing fees”.  

     

    48.       I searched for the Law Report cited before me respecting that Judgment. I could not find same. However, I find the Judgment as reported in the Law Pavilion Electronic Law Report. I find it reported in (1999) LPELR-2464(SC). The only issue raised in that case for the determination of the Supreme Court of Nigeria was whether it is proper to allow the applicants to further amend their pleadings before the main appeal is heard in the Supreme Court. I read the lead Ruling of Akintola Olufemi Ejiwumi JSC of blessed memory. The issue of payment of filing fees or anything as such was never canvassed by learned Counsel. There was also no such pronouncement either by his lordship Ejiwumi JSC or any member of the Panel which included Karibi-Whyte JSC, Ogbuegbu, JSC, Uthman Mohammed JSC and Aloysius Iyorgyer Katsina-Alu, JSC (as he then was). It might be that I did not read the Ruling of the Supreme Court properly or that I did not have the correct law report. The fact however remains that the statement quoted by the learned Counsel to the Claimant and credited to the Supreme Court in that case was wrongly attributed to the apex Court in the land.

     

    49.       Finally, on this point, it is important for me to stress it that the said documents tendered by the 1st Defendant are already part and parcel of the record of this Court. It is trite that if a Court is to be able to do justice to a cause or matter before it, it must have access to all relevant documents in the case. For it is then and then only that it will be able to do real justice as opposed to technical justice which has since been consigned to the dustbin of history. Thus, even if these documents were not tendered the law permits this Court to take a look at them being in its record in order to reach the justice of the case. See Agbareh & Anor. v. Mimra (2005) LPELR-235 (SC) & Onuorah & Ors. v. Obi & Ors. (2014) LPELR-24369(CA). I thus resolve the second issue for determination in favor of the Defendants and against the Claimant.

     

    50.       The third issue for determination is whether the Claimant has adduced cogent, credible and admissible evidence in support of her claims to be entitled to any or some of the reliefs sought.

     

    51.       It is a trite principle of law that requires no authority in support that he who asserts must prove same to be awarded the relief sought. The expected proof may be by oral or documentary evidence or both. Both the statute law and the case law authorities support this position as stated. Claimant sought about 13 distinct reliefs before this Court in this case. The first is for a Declaration that the Claimant is entitled to be paid all her outstanding salaries, benefits, entitlements, emoluments, allowances or however called being unjustly withheld and deprived her by the Defendants upon her exit from the company since February 2015. This is a declaratory relief and declaratory reliefs are discretionary reliefs. The discretion must however be exercised judicially subject to the applicant making available to the Court all material facts. See Uwandu v. Chinagorom (2019) LPELR-46909(CA). By Exh. GU7 dated 9/2/15 Claimant resigned her appointment with the 1st Defendant. It was accepted by Exh. GU11 dated 29/5/15 effective from 9/2/15. By Exh. GU11, Claimant was informed that –

     

    “The Accounts department shall make available the following: Salary due till the last day worked (February 9th, 2015), all yearly payables prorate (13th month bonus, annual leave allowances due) and Gratuity for 20 years of service”.

     

    52.       The law is trite that an employee has the right to resign and there is no discretion to accept same by the employer. See Aderemi v Abegunde (2004)15 NWLR (Pt. 895) 1 & WAEC v. Oshionebo (2006)12 NWLR (Pt. 994) 258. The moment an employment relationship is severed by either side the consideration is any post-employment rights that may be available to the employee. Exh. GU11 conveyed the same position of the law. I find that the Claimant has proved her entitlement to this relief. Accordingly, I grant same. I declare that the Claimant is entitled to be paid all her outstanding salaries, benefits, entitlements, emoluments, allowances or however called being unjustly withheld and deprived her by the Defendants upon her exit from the company since February 2015.

     

    53.       The second relief sought is for a Declaration that the Claimant is entitled to be paid the sum of =N=7,109,792.00 (Seven Million One Hundred and Nine Thousand Seven Hundred and Ninety-Two Naira) being the gratuity payable to her for 20 years of service to the Defendants using the calculations in the schedule to the Pension Reform Act, 2014 forthwith. Claimant pleaded and while testifying in chief stated that she is entitled to be paid the sum of =N=7,109,792.00 as her gratuity for 20 years of service using the calculations in the schedule to the Pension Reform Act, 2014. I dare say that the sum claimed by the Claimant is a sum certain which is akin to special damages. The law expects that such claim be specifically pleaded and strictly proved. Ariwoola JSC in the case of Ighedo & Anor. v. PHCN (2018) LPELR-43863 (SC) gave a succinct exposition of the rules that apply to when and how special damages should be awarded thus –

     

    "It is trite law that "where the precise amount of a particular item has become clear before the trial, either because it has already occurred or so becomes crystallized or because it can be measured with complete accuracy, this exact loss must be pleaded as special damages."

     

    54.       In the recent case of Ajigbotosho v. RCC (2018) LPELR-44774 (SC) the Supreme Court of Nigeria per Muhammad JSC (as he then was) now CJN stressed the importance of proving every item claimed before an award of special damages may be granted when it held thus -

     

    “It is settled that a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted”.

     

    55.       It is not clear to me how the Claimant arrived at the amount claimed. The only evidence before the Court is that the Claimant used the calculation in the Pension Reforms Act, 2014. Again, what is that calculation? What is the figure used in the schedule to the Pension Reform Act?  There is no answer to any of these critical questions. It would seem that the learned Counsel to the Claimant expected the Court to go search for the Pension Reform Act, 2014 and do the calculation in order to arrive at the figure claimed by the Claimant. Such expectations can only further add to the onerous task of adjudication. That is not the duty of the judex. It is the duty of the Counsel who holds himself out as a professional to place before the Court all material facts which will enable the Court to fairly and firmly decide between the contending litigants. The requisite material facts are not placed before me. The consequence being that this head of claim is not proved. I therefore refuse and dismiss same accordingly and without hesitation.

     

    56.       The third relief sought is for an Order compelling the Defendants to pay to the Claimant the sum of =N=7,109,792.00 (Seven Million One Hundred and Ninety-Two Naira) being the gratuity payable to her for 20 years of service to the Defendants using the calculation in the schedule to the Pension Reform Act, 2014 forthwith. This relief is predicated on the declaratory relief sought above. This Court has refused and dismissed the declaratory relief. That being the case there is no leg upon which this head of claim can stand. It is trite that you cannot put something on nothing and expect it to stay there. It will certainly collapse. This head of claim must therefore fail. It fails. I dismiss it accordingly.

     

    57.       The fourth relief sought is for an Order compelling the Defendants to pay to the Claimant her due salary for the month of January 2015 in the sum of =N=444,362.00 (Four Hundred and Forty Thousand, Three Hundred and Sixty-Two Naira only) being her unpaid salary for January 2015 forthwith. In paragraph 25 of her Reply to the 1st Defendant’s statement of defence, Claimant averred that her January and prorated February salary was paid to her by the 1st Defendant in September of 2015. Also, while testifying under cross examination, Claimant testified that while this case was pending, the 1st Defendant paid her January salary as well as prorated salary for February 2015. Indeed, Exh. D5 which was not in any way or manner controverted attested to the fact that Claimant had been paid. In much the same vein, on page 7 of her final written address, learned Counsel to the Claimant again affirmed the fact that the 1st Defendant had already paid the sum under this head of claim to the Claimant. It is a trite law that facts admitted need no further proof. Since it has been paid no basis exist to further order payment of the same sum of money to the Claimant. Accordingly, I refuse and dismiss this head of claim.

     

    58.       The fifth relief sought is for an Order compelling the Defendants to pay to the Claimant her 13th Month pay for 2014 in the sum of =N=333,271.50 (Three Hundred and Thirty-Three Thousand, Two Hundred and Seventy-One Naira and Fifty Kobo). By the second paragraph of Exh. GU12, Claimant’s Counsel had demanded on behalf of the Claimant the calculation of all Claimant’s “outstanding salaries, entitlements, emoluments, gratuity and benefits howsoever called …”. In response to the request of the Counsel, the 1st Defendant prepared Exh. GU13 along with the accompanying attachment. The page 2 of that exhibit is headed Mrs. Gloria Ugoh’s Terminal Benefits. The 4th item on that page is 13th Month Pay (2014) in the sum of =N=333,271.50. If this is not an admission by the 1st Defendant of Claimant’s entitlement to the 13th month pay, then it cannot be anything else. Learned Counsel to the 1st Defendant drew my attention to Article 48(8) of Exh. D2 – Staff Handbook with the heading Award/Gifts/Celebrations and submitted on page 14 of his final written address that –

     

    “The payment of 13th Month Bonus falls under this category and the same is equivalent to 75% of the monthly gross pay of an employee. It is our submission that the payment of this bonus is discretionary and not mandatory or compulsory and the company cannot be compelled(sic) exercise its discretion in a particular way. It is our further submission that a staff cannot compel his/her entitlement to same and/or the payment of same by the company”.

     

    59.       This argument, with a lot respect to the learned Counsel, will not fly. There is no evidence before me to support any inference that the Claimant tried or is trying to compel the 1st Defendant to pay her the 13th month bonus. Indeed, from the moment the 1st Defendant prepared and sent Exh. GU13 to the Claimant, the payment of the 13th month bonus ceased to be within its discretionary power. 1st Defendant as the employer had virtually everything at its disposal. On its own volition and without any prompting or pressure prepared Exh. GU13. Claimant had no input into same. It is my finding that the Claimant is entitled to the 13th month bonus pay. I thus grant the relief as sought. 1st Defendant is ordered to pay the Claimant her 13th Month pay for 2014 in the sum of =N=333,271.50 (Three Hundred and Thirty-Three Thousand, Two Hundred and Seventy-One Naira and Fifty Kobo) as admitted.

     

    60.       The sixth relief sought is for an Order compelling the Defendants to pay to the Claimant her salary for the month of February 2015 prorated till 9/2/15 in the sum of =N=142,830.64 (One Hundred and Forty-Two Thousand, Eight Hundred and Thirty Naira and Sixty-Four Kobo) forthwith. The 4th sought was refused and dismissed on the ground inter alia that the sum of money had been paid as admitted by the Claimant. The same is applicable to this relief. Both in her pleadings and under cross examination, Claimant admitted that while this case was pending in Court the 1st Defendant paid certain amount of money into her account. It included the salary for the month of February prorated till 9/2/15. Therefore, I refuse and dismiss this relief as sought.

     

    61.       The seventh relief sought is for an Order compelling the Defendants to pay the Claimant the sum of =N=1,412,436.36 (One Million, four Hundred and Twelve Thousand, Four Hundred and Thirty-Six Naira, Thirty-Six Kobo) being the Claimant’s unpaid salary for the month of March and April 2015, the balance of her February 2015 salary and prorated May, 2015 salary. In the determination of this head of claim certain questions become critical and crucial. For instance, when did the Claimant resign her appointment with the 1st Defendant? Did the Claimant work with the Defendants till May 2015? Claimant resigned her appointment by Exh. GU7 dated 9/2/15 which was received the same day. It is trite that a letter of resignation becomes effective from the day it is received by the employer. It is also trite that while an employee has the right to resign, there is no discretion inherent in an employer on whether or not to accept the resignation. The rationale must be understood within the context of employment relationship being a voluntary one with either party having the right to opt out of same subject to complying with the applicable terms and conditions of engagement.

     

    62.       Besides, while under cross examination on 4/12/19, in response to a direct question the Claimant said between 10/2/15 and 25/5/15 she was not in the office of the 1st Defendant. In other words that she did not work for the 1st Defendant during the period for which salary and emoluments of office are sought for her by her Counsel. It is a trite law that no Court of law will order payment of salaries for services not rendered. See Mr. Lanre Lookman Yusuf v. International Co-Operation Ind. Nig. Limited Suit No: NICN/LA/615/2016 Judgment of which was delivered on 12/12/19 relying on Olatunbosun v. NISER (1988) 3 NWLR (Pt. 80) 25 at 55-56, N.M.B. v. Adewunmi (1972) 11 SC 111 at 117 & Adekunle v. W.R.F.C (1963) W.R.N.L.R 6 at 11. I refuse and dismiss this relief for there being no basis to grant same.

     

    63.       Claimant’s eighth relief is for an Order compelling the Defendants to pay to the Claimant her due leave allowance for 2014 prorated by the Defendants to 8 months in the sum of =N=148,429.08 (One Hundred and Forty-Eight Thousand, Four Hundred and Twenty-Nine Naira, Eight Kobo) forthwith. Exh. GU13 voluntarily made by the 1st Defendant and sent to the Claimant indicated that part of Claimant’s terminal benefits is Leave Allowance 2014 (prorata) 8 months in the sum of =N=148,429.08. There is no evidence before me to the effect that same was at any time during the pendency of this suit paid to the Claimant. I hold that Exh. GU13 is an admission by the 1st Defendant respecting this relief. It is accordingly granted. 1st Defendant is ordered to pay to the Claimant her due leave allowance for 2014 prorated by the Defendants to 8 months in the sum of =N=148,429.08 (One Hundred and Forty-Eight Thousand, Four Hundred and Twenty-Nine Naira, Eight Kobo) forthwith.

     

    64.       Claimant also sought an Order compelling the Defendants to remit to the Claimant’s Retirement Savings Account with Stanbic IBTC Pension Managers Limited all outstanding pension contributions duly deducted from the Claimant’s salaries together with the statutory contributions by the Defendant toward the fund in the sum of =N=1,963,635.59 (One Million, Nine Hundred and Sixty Three Thousand Six Hundred and Thirty Five Naira, Fifty Nine Kobo) and to make proof of its compliance available to the Claimant forthwith. This relief is akin to a claim for special damages being a claim for a sum certain. Not only must the relevant facts be pleaded, they must also be strictly proved. Aside her pleadings and evidence in chief, the Claimant tendered Exh.GU15 in support of her entitlement to this relief. While page 1 of the exhibit is a covering letter from Counsel to the Claimant, pages 2 to 5 are statement of pension account of the Claimant from Stanbic IBTC Pension Managers. It is imperative for the Claimant to adequately inform the Court how she arrived at the sum of One Million, Nine Hundred and Sixty-Three Thousand Six Hundred and Thirty-Five Naira, Fifty-Nine Kobo claimed as unremitted pension deductions. Claimant ought to inform the Court how much was deducted monthly, remittances for how many months are outstanding and the total sum on the basis of the information provided. The sum of money claimed under this head of claim is not proved as required by law. I refuse and dismiss same accordingly.

     

    65.       Claimant sought payment to her of the sum of =N=10million as damages for the loss of job opportunity caused her by the Defendants in failing to accept her resignation timeously and or deal with dispatch all issues affecting her resignation as well as for emotional shock and trauma, damage to her character, career and person. The nature of general damages is that it needs not be specifically pleaded and strictly proved

     

    66.       Nimpar JCA in RCC Limited v. Akpan (2019) LPELR-48142(CA), relying on Federal Mortgage Finance Ltd. vs. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez vs. Ogboli (1972) 2 SC 196 and Waso v. Kalia (1978) 3 SC 21 restated the position thus -

     

    “It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation”.

     

    67.       Even at that, there is still a burden on a Claimant for general damages to adduce sufficiently cogent evidence that will support any exercise of discretion of Court in his favor. The case of the Claimant as canvassed respecting this relief is that the conduct of the Defendants in refusing “to accept her resignation timeously and/or dealing with issues concerning her disengagement with dispatch cost her an important job opportunity as well as damaged her career greatly”. In proof of this and in support of her claim for general damages, Claimant tendered Exh. GU16. That exhibit was an invitation for job interview. It was nothing other than just that. Now, did the Claimant attend the interview? Was she asked to bring her certificate of discharge? Was she offered the said position as sought? I have no answer to any of these critical enquiries. I am inclined to refuse and dismiss this relief same not having been proved. I so do without hesitation.

     

    68.       Claimant also sought an Order compelling the Defendants to remit to the Ogun State Government Inland Revenue Services all outstanding (PAYE) taxes duly deducted from the Claimant’s income but unremitted and to make proof of its compliance available to Claimant forthwith. This relief borders on tax matters. In my earlier Judgment in Mr. Henry Nwosisi    v. Bridgeways Global Projects Ltd. Suit No: NICN/LA/147/2013 on page 9 of the Judgment which was delivered on 9/10/14, I had stated that - 

     

    “Issues relating to taxation are not within the jurisdiction of this Court. See section 9, National Industrial Court Act 2007 and see also Section 254C, Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010.To therefore make a pronouncement on this issue will amount to unnecessarily expanding the jurisdiction of this Court. That claim is refused accordingly”.

     

    69.       I have no reason to change the position adopted at that time even now. Accordingly, I refuse and dismiss this head of claim.

     

    70.       Claimant also sought to be paid the sum of =N=600,000.00 (Six Hundred Thousand Naira) only as Solicitors’ fees. This relief is like a claim for special damages. To succeed, the law expects that it be specifically pleaded and strictly proved. Aside from the averments of the Claimant, there is no evidence of specific pleading and strict proof. Not even a receipt issued to the Claimant by her Legal Practitioner. Accordingly, I refuse and dismiss this relief without hesitation.

     

    71.       In addition, the Claimant sought cost of and expenses incidental to these proceedings. Cost is said to follow events. This matter was instituted in 2015. If the 1st Defendant had paid to the Claimant all her legitimate entitlements, there would have been no need for the filing of this suit. It is also beyond doubt that Claimant incurred some expenses as a result of this suit. Accordingly, 1st Defendant is ordered to pay to the Claimant the sum of =N=100,000.00 as cost of this proceedings.

     

    72.       Finally, Claimant sought such order and other Orders as the Honourable Court may deem it fit to make in the circumstances. It is customary for learned Counsel to seek such omnibus prayers in matters generally and matters of this nature in particular. Such prayer more often than not enables the Court to do what is considered the justice of the case. What is the justice of this case respecting gratuity of the Claimant? Is the Claimant entitled to gratuity from the 1st Defendant? I answer in the affirmative. The sum sought by the Claimant had been refused and dismissed by this Court for lack of sufficient and cogent proof. But should that be the end of the matter? There is evidence before me to the effect that the Claimant was employed by the 1st Defendant by Exh. GU1 on 5/5/94. There is evidence that by Exh. GU7 dated 9/2/15 and accepted by Exh. GU11, Claimant resigned her appointment with the 1st Defendant. Exh. D2 evidenced the existence of a gratuity policy at the 1st Defendant. Indeed, the first three paragraphs of that exhibit stated that –

     

    “Gratuity shall be interpreted by management, as an extension of goodwill for the meritorious effort of dedicated staff of the company.

     

    The company policy regarding gratuity payment shall appy across Junior, Senior and Management staff. The company reserves the absolute responsibility to adopt its gratuity computation formula.

     

    The company gratuity computation formula shall remain as Half Monthly Gross Salary for every year served: irrespective of the number or years the employee has served the company”.

     

    73.       Now, Exh. D3 – Staff Handbook has similar provision respecting gratuity policy of the 1st Defendant and method for calculation of same. Under Article 22b of Exh. D3 for employees who served above 15 but below 24 years the calculation is Half gross monthly salary per completed year of service. The second page of Exh. GU13 with the heading Mrs Gloria Ugoh’s Terminal Benefits put the gratuity due to the Claimant for 20 years of service at =N=4,443,620.00. When the method of calculation under both Exh. D2 & Exh. D3 are applied using the January salary of the Claimant in the sum of =N=444,362.00 (as stated by the 1st Defendant in Exh. GU13) the figure arrived at by the 1st Defendant is to me correct as the gratuity entitlement of the Claimant. Already, a declaration had been made that the Claimant is entitled to all her severance benefit having resigned from the services of the 1st Defendant. One of such benefits is her gratuity. The 1st Defendant is here ordered to pay to the Claimant the sum of =N=4,443,620.00 being her gratuity as calculated by the 1st Defendant and to which the Claimant is entitled.

     

    74.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment –

     

    1.      I hold that the exhibits of the 1st Defendant were validly filed and paid for at the Registry of the Honorable Court and the Court is entitled to make use of them they being part of the record of this Court.

    2.      I hold that in the absence of deposition on oath accompanying the Claimant’s Reply to the statement of Defence of the 2nd Defendant, the averments in the said reply are deemed abandoned there being no evidence in support of the same.

    3.      I declare that the Claimant is entitled to be paid all her outstanding salaries, benefits, entitlements, emoluments, allowances or however called being unjustly withheld and deprived her by the Defendants upon her exit from the company since February 2015.

    4.      1st Defendant is ordered to pay the Claimant her 13th Month pay for 2014 in the sum of =N=333,271.50 (Three Hundred and Thirty-Three Thousand, Two Hundred and Seventy-One Naira and Fifty Kobo) as admitted.

    5.   1st Defendant is ordered to pay to the Claimant her due leave allowance for 2014 prorated by the Defendants to 8 months in the sum of =N=148,429.08 (One Hundred and Forty-Eight Thousand, Four Hundred and Twenty-Nine Naira, Eight Kobo) forthwith.

    6.   The 1st Defendant is here ordered to pay to the Claimant the sum of =N=4,443,620.00 being her gratuity as calculated by the 1st Defendant and to which the Claimant is entitled.

    7.   1st Defendant is ordered to pay to the Claimant the sum of =N=100,000.00 as cost of this action.

     

    75.       All the terms of this Judgment are to be complied with within 30 days from today.

     

    76.       Judgment is entered accordingly.

     

     

     

     

    ____________________

    Hon. Justice J. D. Peters

    Presiding Judge