IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT LAGOS
Before His Lordship:-
HON. JUSTICE J. D. PETERS- JUDGE
SUIT NO: NICN/LA/375/2013
Mr. Olusegun Thomas Ejor.........................................................CLAIMANT
John Holt Plc.………………………………..DEFENDANT
A.R. Fatunde with M.O. Adegoke for the Claimant.
S.B. Onu for the Defendant.
The Claimant in this case by his General Form of Complaint filed on 16/6/13 approached this Court for the following reliefs -
1. Payment by the defendant to the claimant the sum of =N=11,157,897.28 being balance of his gratuity after deduction of the value of assets and outstanding being =N=1,965,790.23
2. Payment by the defendant to the claimant interests at the rate of 30% per annum on the =N=11,157,897.28 from 01 July 2008 to the date of judgment thereafter, interests at the prevailing bank rate until full and final payment of the judgment sum is liquidated.
The Claimant accompanied his originating process with all the documents required to be frontloaded along with same. The Defendant filed its amended statement of defence on 7/7/15. It accompanied same with Defendant's list of witnesses, written statements on oath of the Defendant's witnesses and copies of the documents to rely on at trial.
The brief facts of this case are that the Claimant retired from the services of the Defendant as a General Manager and claimed that the calculation of his retirement benefit ought to be made on the basis of his membership of SHOPDIS; that the Defendant contended that Claimant being a General Manager could not claim membership of SHOPDIS and hence could not take advantage of the calculation of retirement benefits as applicable to members of SHOPDIS. Claimant contended that he was indeed a member of SHOPDIS and as such entitled to the robust calculation of gratuity available to members of that association.
Case of the Claimant
The hearing of this case commenced on 27/5/14 when the Claimant testified as CW1. Witnesses adopted his written depositions dated 18/7/13 and 17/4/14 as his evidence and tendered 24 documents as exhibits. The documents were admitted as exhibits and marked as Exh. TE1 - Exh. TE24. Witness urged the Court to grant all the reliefs he sought. Under cross examination, Claimant testified that he refused to accept =N3=,907,110.92 paid to him as his gratuity in 2008; that Shop and Distributive Trade Senior Staff Association is also referred as SHOPDIS from the rank of General Manager and above at Defendant can be members of SHOPDIS; that there are allowances, deductions etc on pay slips given; that SHOPDIS is not indicated on his pay slips; that he joined Defendant with School Certificate and rose through the rank; that Defendant paid his salaries and allowances as at when due for over 30 years; that he left in 2008 and handed over the Shipping Unit to another General Manager; that he is not aware that the Shipping Unit was in tattered then; that he is aware the Shipping Unit is closed down now and that apart from his entitlement he has no issue at all with the Defendant. While being re-examined, the witness stated that he refused the money offered by the Defendant because he was entitled to more than was offered.
Claimant called one Adewale Gbemisola Fatai as his CW2 who was a subpoenaed witness. CW2 testified that he was a former staff of the Defendant; that he was the Divisional Finance Controller of the Defendant; that he agreed with paragraph 7 of the Claimant's Reply to the Statement of Defence and that the calculation was in order. Under cross examination, the witness stated that the Claimant is his friend as a former colleague; that he sued Defendant in the Lagos High Court; that it is a case similar to the Claimant; that he gives this testimony on facts based on his experience on how we calculate entitlement when he was with the Defendant; that if the Court believes his testimony it will assist him in his claim against the Defendant and that he will receive personal benefit on account of this testimony in relation to his case against the Defendant based on the collective agreement.
Martin Nwabuwa was called as CW3 also on subpoena. Witness stated that he used to work for the Defendant. While being cross examined the witness stated that the Claimant is his former colleague; that he has not seen Claimant for a long time; that he sued Defendant in the State High Court claiming his entitlement; that he does not know if Claimant sued Defendant at the High Court for his entitlements; that he took the Defendant to Public Petitions Committee of National Assembly on the same case while the case was pending at the Court; that he also sued the Defendant at the National Industrial Court; that he does not have any issue with the Defendant and that he is not happy that the Defendant has refused to pay his entitlements.
The 4th CW4 was Ola Oyegoke also called on subpoena. Witness testified that he is the General Secretary of the Shop and Distributive Trade Senior Staff Association (SHOPDIS); that he knows both the Claimant and the Defendant and that he has played some role between the Claimant and the Defendant; that the Claimant was a member of SHOPDIS and that he is aware that the Claimant has not been paid his gratuity. Under cross examination, CW4 stated that membership of SHOPDIS is optional and that the Company could decide on the category of staff that would be members of SHOPDIS. While being re-examined, the witness stated the arrangement for the Company to decide on the category of staff that would be member of SHOPDIS was only as at 2009.
Case of the Defendant
The Defendant opened its defence on 12/10/05. It called one Cheta Arize its Human capital Manager as its DW1. DW1 adopted its witness deposition dated 7/7/15 as her evidence in chief and tendered 6 documents as exhibits. The documents were admitted as exhibits and marked as Exh. D1-Exh. D6 and prayed the Court to dismiss the case of the Claimant. Under cross examination, DW1 testified that JMan on Exh. TE19 stands for John Holt Managers Association Dues; that the Due is paid to the Association’s account; that JMan is affiliated to Shop and Distribute Trade Senior Staff Association (SHOPDIS); that usually Exh.D3 is acknowledged by a new staff; that there is no provision for acknowledgement in Exh.D2 as we have in Exh.D3; that Claimant retired in 2008 as General Manager; that she knows Mr. Tony Uwoghiren who retired as a Senior Executive a step above General Manager; that the same terms and conditions apply to them; that she does not know if there is a Board Resolution on Exh.D2; that she does not know if the Defendant replied to either Exh.TE12 or Exh.TE21; that she is not aware of any Defendant’s policy that a staff cannot joined Trade Union; that however General Managers and above as well as staff of Human Resources are not members of any Trade Union; that Claimant served Defendant for 33 years; that she does not know if Claimant was informed in writing that he could not join trade union but it is a common knowledge in the Defendant that General Managers and above don’t join Trade Union and she does not know if the Defendant replied to any of Exh. TE8, TE 9, TE10 and TE11.
Defendant called one Okoje Adeche Boyi as its DW2 who simply adopted his witness deposition dated 7/7/15 as his evidence in chief. Under cross examination, the witness stated that he did not enclose any cheque to Exh.TE4; that as at December 2008 Defendants were still deducting JMan dues from the Claimant; that JMan is an affiliate of SHOPDIS though he does not have any document to support that position; that 26/10/09 was not the 1st time Defendant offered to pay Claimant’s benefits; that he does not know if there are responses to Exh.TE6, TE7, TE8, TE9 and TE10 as they were not addressed to him; that at the time Claimant was with Defendant the Division he headed recorded losses and the responsibility fell on him; that the documents relating to the said losses are with the Defendant and that he is not aware of any complain by SHOPDIS respecting the calculation of the benefit or the Claimant.
Submission on Behalf of the Defendant
At the conclusion of trial, learned Counsel on either side were directed to file their final written addresses. The final written address of the Defendant was dated and filed on 17/6/16. In it learned Counsel set the following lone issue down for determination -
Whether the Defendant's computation of the gratuity and entitlement of the Claimant was proper.
Arguing this lone issue, learned Counsel submitted that the computation of the Claimant's gratuity and entitlements were as contained in Exh. D4; that the same document contained the indebtedness of the Claimant to the Defendant; that both parties agreed and confirmed that Exh. D2 was signed by the Chairman of the Defendant and that by Exh. D1 membership of Shop and Distributive Senior Association (SHOPDIS) is limited to staff of the Defendant from the cadre of Administrative Assistant to Deputy General Manager and that the Claimant was not eligible for membership of SHOPDIS. Counsel cited Nigeria Seafares Collaborating Unions v. NUPENG & Anor. (2013)31 NLLR (Pt. 88) 84 on the right of a worker to decide on which Union to belong. Counsel submitted further that check off dues deducted from the Claimant was paid to JMAN and that that did not make the Claimant a member of SHOPDIS notwithstanding the affiliation of JMAN to SHOPDIS. Learned Counsel submitted that the Claimant has not led any evidence to establish any other valid computation of his gratuity and entitlement and that Claimant has failed to prove his claim, citing Tenumah v. Owelle Global Services Limited & Ors. (2013)34 NLLR (Pt. 98) 33 & Section 131(1), Evidence Act, 2011. On the Claimant's claim for interest, learned Counsel submitted that the Claimant did not lead evidence in support of the mere pleading that he is claiming 30% interest. Counsel cited RMAFC v. UES Ltd (2013)34 NLLR (Pt. 102) 715. Learned Counsel prayed the Court to dismiss the case of the Claimant.
Submission on Behalf of the Claimant
On 11/7/16, learned Counsel to the Claimant filed his final written address in which Counsel set down the following issues for determination -
1. Whether from the entire facts and circumstances of the pleadings and evidence adduced in this matter the Claimant has made out a case that entitle him to judgment for the various claims as stated and claimed herein?.
2. Whether the defendant’s evasive, inconsistent pleading and final written address on material facts which is also inconsistent with their evidence is enough and sufficient to defeat and deprive the Claimant from his claims?.
On issue 1, learned Counsel submitted that the available documentary evidence before the Court supports the case of the Claimant. Counsel referred to Exh. TE16 - Exh. TE24. Counsel submitted that Exh. D2 was not brought to the attention of the Claimant compared to Exh. D3; that indeed Exh. D2 was not in existence while the Claimant was in the employment of the Defendant adding that there is nothing in Exh. D2 that all existing agreements between the Defendant, its employees, John Holt Manager's Association (JMAN), the Shop and Distributive Trade Senior Staff Association including Exh. D3 shall no longer be applicable in matters of the Defendant employees' gratuity. Counsel urged the Court to hold that agreements made are meant to be honoured by the parties to same citing Jukok International v. Diamond Bank Plc (2016)6 NWLR (Pt. 1507) 55 at 108. According to learned Counsel, a holistic consideration of Exh. TE12, Exh. TE13 & Exh. TE23 completely displace Defendant's reliance on Exh. D2. Learned Counsel prayed the Court to resolve this issue in favour of the Claimant and grant his claims.
Respecting issue 2, learned Counsel argued that notwithstanding that the Defendant in Exh. TE19 & Exh. TE20 deducted Claimant's check off dues from his salary at source, Defendant failed and refused to provide the directives and instruction barring the Claimant from membership of a trade union and that the Defendant, by Exh. TE19 & Exh. TE20 has admitted the Claimant's membership of a trade union citing Oparaji v. Ahihia (2012)4 NWLR (Pt. 1290) 266 at 267-277. Counsel submitted that there is no evidence from the Defendant that the Claimant's severance package was paid contemporaneously in exchange for the letter of retirement as required by law citing Nigerian Society of Engineers v. Ozah (2015)6 NWLR (Pt. 1454) 76. Learned Counsel prayed the Court to grant all the claims of the Claimant as sought.
On 23/9/16, Counsel to the Defendant filed ''Defendant's Reply on Points of Law ...'' I read and also understood same. Having done so and the contents not having fallen within the what is expected of a reply, I elect not to include same or give a summary of it in this Judgment. See Procter & Gamble Nigeria Limited v. Nwanna Trading Stores Limited (2011) LPELR-4880 (CA).
I have read all the processes filed in this case including the final written addresses on either side as well as the reply address filed by the Defendant. I listened to and watched the demeanor of the witnesses called at trial. I also listened to the oral submissions of learned Counsel on both sides of the divide reviewed as well as evaluated all the exhibits tendered and admitted. Having done all this, I narrow the issues for the just determination of this case to the following -
1. Whether the Claimant was a member of Shop and Distributive Trade Senior Staff Association (SHOPDIS).
2. Whether the Claimant has proved all or any of his claims to be entitled to same.
The age long principle in civil trial remains that it is for the person making claims to prove by cogent, credible and admissible evidence his entitlement to the claims made. There appears to be no controversy on the entitlement of the Claimant to gratuity benefits from the Defendant. There are consensus by the parties that the Claimant was a former employee of the Defendant; that he retired after putting in about 33 years into the service of the Defendant. It is also agreed that the Claimant has not been paid any gratuity by the Defendant. The area of disagreement is the calculation of the entitlement of the Claimant. The main issue boils down to whether the gratuity entitlement of the Claimant was to be calculated on the basis of the Claimant being a member of Shop and Distributive Trade Senior Staff Association (SHOPDIS) as claimed by the Claimant or whether Claimant's entitlement is to be calculated on the basis of Exh. D2 as maintained by the Defendant. In order for the Claimant to claim gratuity as a member of SHOPDIS it is imperative for him to prove his membership of that Association. Thus, was the Claimant a member of SHOPDIS while in the employment of the Defendant? A resolution of this will determine whether the Claimant is eligible to take advantage of any benefit available to members of that Association.
Firstly, the Defendant had argued that the Claimant was only a member of John Holt Managers Association of Nigeria (JMAN) and not a member of Shop and Distributive Trade Senior Staff Association of Nigeria. By Exh. TE17 however, JMAN had written to SHOPDIS of its intention to reactivate its membership of with SHOPDIS. That letter was signed on 12/7/05 and the Defendant was so informed by Exh. TE16 dated 14/7/05. Indeed, that exhibit has an attachment which was a Form filled by the Claimant reactivating his membership of SHOPDIS. In it, the Claimant had authorised ''... the management of the above named company to deduct the sum of Three Percent (3%) of my basic salary every month as check-off dues to be made payable to the SHOP & DISTRIBUTIVE TRADE SENIOR STAFF ASSOCIATION''. Secondly, in Exh. TE12 SHOPDIS had written to the Defendant on behalf of the Claimant stating as follows -
'' Our attention has been drawn to the wrong implementation of the agreement reached between your Management and our Association on 14th August, 2008 under the auspices of the Federal Ministry of Labour''.
In paragraph 5 of the same exhibit, National General Secretary of SHOPDIS stated further - '
'We observed that the use of percentage as in the old arrangement is still being applied in the payments of gratuity benefits. For example, the payment made to Mr. Segun Thomas was calculated as follows: ...''.
Thirdly, in Exh. TE14 dated 22/9/09 written by SHPDIS to The Managing Director of the Defendant, the last paragraph of the letter stated thus ''Mr. Ejor was until his retirement a financial member of our Association''. Fourthly, Exh. TE19 & Exh. TE20 were some of the Pay slips of the Claimant while in the employment of the Defendant. In those 2 exhibits, part of the salaries of the Claimant was deducted as check off dues (Union dues). No doubt payment of check off dues is an essential evidence of membership of a trade union. The Defendant drew my attention to Exh. D1 to support the submission that the Claimant being a General Manager at the time of his retirement was excluded from membership of SHOPDIS. I note however that by Exh. TE3, Claimant's retirement was to become effective from 31/12/07. Yet, Exh. D1 was signed on 12/10/09 almost 2 years after the Claimant had retired from the service of the Defendant. It is therefore sufficient for me to simply hold and I so do that Exh. D1 was inapplicable to the Claimant since he had retired before its coming into force. From the abundance of evidence before me, it is impossible not to hold that the Claimant was a member of SHOPDIS while in the employment of the Defendant. I therefore resolve issue 1 set down for determination in favour of the Claimant and hold that the Claimant was a member of Shop and Distributive Trade Senior Staff Association (SHOPDIS prior to his retirement from the employment of the Defendant..
The second issue for determination is the Claimant has proved all or any of his claims to be entitled to same.
The first claim of the Claimant is payment by the Defendant to him of the sum of =N=11,157,897.28 being balance of his gratuity after deduction of the value of assets and outstanding being =N=1,965,790.23. It was the consensus among parties that the Claimant served the Defendant for 32 years and 10 months which was approximated to 33 years. By Exh. TE4, the Defendant based the calculation of Claimant's entitlement on 10% of annual total emolument for each completed year of service. Defendant also placed reliance on Exh. D2. Learned Counsel to the Claimant had urged the Court to discountenance Exh. D2. Though already admitted as exhibit, it is pertinent to ask as to what probative value to be attached to Exh. D2. That exhibit carries the following heading - ''Gratuity Policy for General managers and Above''. It carried a signature. There is no name of the author of that exhibit on it. The necessary intendment of that exhibit is to reduce the amount of money that would be due to an employee of the Defendant as gratuity upon retirement. Now, in paragraph 15 of his final written address, learned Counsel to the Defendant had submitted that ''Indeed both parties agreed and confirmed that Exhibit D2 was so signed by the Chairman of the Defendant''. I find no truth in that submission. I perused all the processes filled and there is no where such agreement and confirmation as alleged by learned Counsel could be found. There is also nothing as such in the testimonies of all the witnesses called at trial. I find Exh. D2 of no utility in determining this case. I accordingly attach to it no probative value. Rather than 10% of annual total emolument for each completed year as contained in Exh. TE4, Exh. TE13 which was the result of deliberate and exhaustive discussion between management of the Defendant and members of Shop and Distributive Trade Senior Staff Association the following formula was agreed upon for calculating gratuity of staff -
10-2 years - 6 weeks for each completed year of service
13-15 years - 7 weeks for each completed year of service based on total emolument
16-19 years - 8weeks pay for each completed year of service based on total emolument
20 years and above - 9 weeks pay for each completed year of service based on total emolument''.
This exhibit though signed on 3/7/09, it ''shall be used to calculate the accumulated gratuity of every qualifying Senior staff as at 30th September, 2007''.
It was on the basis of the formula contained in Exh. TE13 that SHOPDIS in its letter to the Managing Director of the Defendant dated 7/11/08 - Exh. TE12 calculated the gratuity entitlement of the Claimant and stated as follows -
''With the agreement of 14th August 2008, Mr. Ejor is entitled to the sum of =N=13,123,867.53 and this is computed as follows -
Basic Salary 1,019,031.52
Housing Allowance 543,750.00
Meal Subsidy 39,000.00
Total Emolument 2,297,781.52
N2,297,781.52 ÷52x9x33yrs = N13,123,867.53
The new agreement has no provision for the use of percentage in the computation of benefits under the gratuity scheme and we sincerely wonder why this is now being imported into it.
As a senior staff organisation, we are fully committed to the promotion of industrial peace and harmony and it is on the strength of this that we request that the provisions of the agreement should be properly implemented.
We are awaiting your prompt action''.
No reaction of the Defendant to this exhibit was tendered in the course of trial. I dare say that I have sufficient credible and cogent evidence before me pointing to the fact that the calculation of the gratuity benefit of the Claimant was as contained in the various documentary evidence he tendered and admitted in this case. I so find and so hold. I further hold that the gratuity entitlement of the Claimant is the sum of =N=13,123,867.53 as contained in Exh. TE12. In Exh. TE10, learned Counsel to the Claimant had acknowledged the value of the assets and outstanding from the Claimant to the Defendant to be in the sum of =N=1,965,790.23. When this sum is removed from the total sum of =N=13,123,867.53, the Claimant is left with the sum of =N=11,157,897.30. I here direct the Defendant to pay to the Claimant forthwith the sum of =N=11,157,897.30 being the amount due to the Claimant as his gratuity following his retirement and after the deduction of value of asset of the Defendant with the Claimant being =N=1,965,790.23.
The second head of claim of the Claimant is the payment by the defendant to the claimant interests at the rate of 30% per annum on the =N=11,157,897.28 from 01 July 2008 to the date of judgment thereafter, interests at the prevailing bank rate until full and final payment of the judgment sum is liquidated. The Claimant retired from the Defendant service on 31st December of 2007. That is about 9 years ago. Claimant's retirement benefit ought to have been paid shortly immediately after. This would have enabled the Claimant plan for his post retirement life style. No doubt had such money been paid by the Defendant and kept by the Claimant in an interest yielding commercial Bank Account it would have yielded some interest to the Claimant. The facts of this case and its surrounding circumstances support the award of interest in favour of the Claimant in this case and I so do. Thus I direct and order the Defendant to pay 15% interest per annum on the sum due under this Judgment from 2008 until final liquidation.
The Claimant approached this Court in this case in 2013. There have been several appearances of both the Claimant and his Counsel. Quite apart from the financial outlay involved in prosecuting this case, time no doubt is money. Had the Defendant paid the Claimant all that he was entitled to at the time, the necessity for this litigation would have been avoided. The circumstances of this case coupled with the generally accepted saying that cost follows events dictate that the Claimant be awarded cost. Therefore, I direct and order the Defendant to pay to the Claimant the cost of this action assessed at =N=100,000.00 only.
Before I draw a curtain on this Judgment, I am inclined to make a brief comment, albeit in the passing on one of the processes filed by the Defendant. After this case was adjourned for Judgment, learned Counsel for the Defendant on 25/10/16 filed a process headed ''Additional Judicial Authority: Certified True Copy of the Judgment of the National Industrial Court of Nigeria, Lagos Division Filled(sic) Pursuant to Section 12 of the National Industrial Court Act, 2006, Order 15 of National Industrial Court Rules, 2007 and Under the Inherent Jurisdiction of the Court''. The Judgment of this Court filed was the Judgment of my learned brother Amadi J delivered on 27/9/16. Let me quickly state that there is nothing in either the section of the statute cited or the Rules of Court cited directing the filing of the process filed. Secondly, I should emphasise that each case is decided on the facts peculiar to it. In any events diverse considerations go to assist the Court in reaching its decision including but not limited to demeanor of the witnesses called at trial. Thus, the Judgment in NICN/LA/272/2014 Gbemisola Adewale v. John Holt Plc was decided on the facts peculiar to it as presented by learned Counsel on either side. Besides, this Court is not bound by that decision.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment
1. I order and direct the Defendant to pay to the Claimant forthwith the sum of =N=11,157,897.30 being the amount due to the Claimant as his gratuity following his retirement and after the deduction of value of asset of the Defendant with the Claimant being =N=1,965,790.23.
2. I direct and order the Defendant to pay 15% interest per annum on the sum due under this Judgment from 2008 until final liquidation.
3. I award cost in the sum of =N=100,000.00 against the Defendant and payable to the Claimant.
All the terms of this Judgment shall be complied with within 30 days from today.
Judgment is entered accordingly.
Hon. Justice J. D. Peters