Download PDF
JUDGMENT Introduction and Claims 1. By his General Form of Complaint, statement of facts, witness deposition as well as list and copies of all the documents to be relied upon at trial, the Claimant sought the following reliefs - 1. A declaration that the Defendant breached the terms of employment as contained in the Claimant's employment letter when it refused to pay the Claimant one month salary in lieu of notice upon the termination of Claimant's employment. 2. A declaration that the Defendant breached Section 11(5) of the Pension Reforms Act, 2014 when it failed and/or neglected to open a retirement savings account in the name of the Claimant. 3. Damages of =N=93,350.00 (Ninety Three Thousand, Two Hundred and Fifty Naira) being a month salary in lieu of a month notice. 4. Damages of =N=2,000,000.00 (Two Million Naira) for failure to open a Retirement Savings Account (RSA) in the name of the Claimant in accordance with Section 11(5) of the Pension Reforms Act, 2014. 5. An Order of Court compelling the Defendant to open a Retirement Savings Account (RSA) and remit all the arrears of pension into the account. 6. =N=150,000.00 (One Hundred and Fifty Thousand Naira) being the cost of prosecuting this matter. 2. The Defendant entered an appearance, filed its statement of defence along with all other frontloaded processes on 7/10/16 and by its amended statement of defence dated 17/7/17 counter claimed as follows - 1. An Order for the payment of =N=155,250 (One Hundred and Fifty Five Thousand, two Hundred and Fifty Naira) being money for products sold by him to customers which cheques were intentionally not presented for payments on time until they became stale. 2. An Order for the payment of the sum of =N=1,349,755 (One Million, Three Hundred and Forty Nine Thousand, Seven Hundred and Fifty Five Naira) representing the cost of products sold out on credit to customers of which the amount were still outstanding against the Claimant. 3. An Order for the payment of the sum =N=2,851,737 (Two Million, Eight Hundred and Fifty One Thousand, Seven Hundred and Thirty Seven Naira) being cost of the items which were unreasonably withheld in the custody of the Defendant without just cause. Case of the Claimant 3. Claimant opened his case on 20/2/19. He testified in chief by adopting his witness depositions dated 19/1/17 and 8/8/17 as his evidence in chief. He also tendered 11 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C11. 4. The case of the Claimant as revealed from his evidence in chief and exhibits tendered is that the Defendant terminated his employment without giving him a month notice or a month salary in lieu of notice of termination and that the Defendant did not open a Retirement Savings Account for him respecting his pension deductions. 5. While under cross examination, Claimant testified that he was not aware that his employment was governed by the Defendant Staff Handbook; that he went through his letter of employment when he was given; that he had never seen Defendant Handbook; that he was given several queries by the Defendant while with it; that the termination of his employment was based on unsatisfactory performance as determined by the Defendant; that Exh. C10(1-5) was prepared by him after the termination of his appointment; that the Defendant had a policy that once a product was about to expire, it would be distributed to the Representatives and the Representatives had to pay from their pockets; that the policy was unwritten; that over 1000 packets were shifted to him; that they were to expire in January and March 2016 and were shifted to him in September, 2015. Witness added that that at the time of handing over, there were cheques written by customers in his possession; that the cheques were not presented to be cashed because the customers did not give a go ahead to present them; that if presented and not cashed the Defendant would deduct some money from his salary as penalty; that he informed his superior as to why the cheques were not presented; that he was aware that communication with the Defendant was to be by memo; that the Defendant instructed him to hand over all property in his possession before he could be paid his entitlement; that he was invited to come and collect but he did not go; that he did not fill any Form concerning pension; that he did not work anywhere before joining the Defendant; that he complained orally to his superior about his pension and that the Defendant had always paid his salary as at when due. Case of the Defendant 6. The Defendant commenced its defence on 11/12/19. It called on Luke Alasa as its sole witness. DW1 adopted his witness deposition of 17/7/17 as his evidence in chief and tendered 9 documents as exhibits. The documents were admitted without objection and marked as Exh. D1-Exh. D9 respectively. 7. The case of the Defendant is that Claimant's employment was terminated for low performance which did not entitle him to any payment in lieu of notice; that Claimant did not open any retirement savings account while with the Defendant; that he was paid his full salaries and allowances without any deduction made for pension and that Claimant was indebted to it for the sums counter claimed. 8. Under cross examination, DW1 stated that he had official dealings with the Defendant in his capacity as Chief Security Officer; that he was called once to check drugs of over =N=2 Million expired in the custody of the Claimant which Claimant pretended to have sold; that the drugs should be in the custody of the Claimant because the Defendant requested that Claimant should pay for them; that he checked the drugs in his office; that Claimant did not request for vehicle to convey the expired drugs; that Claimant was not competent during his period with the Defendant; that that position did not change; that the Defendant is not owing Claimant salary arrears; that he could not remember the names of the customers of the Defendant who complained against the Claimant; that the Administrative Department gave PFA Form to the Claimant; that he could not remember the dates reminders were given to the Claimant to submit his PFA Form; that he did not know when drugs supplied to the Claimant before they expired; that he knew that series of queries were issued to the Claimant for non-performance; that he could not remember if the Defendant wrote a reply to Exh. C5 and that there was no reconciliation of account between Claimant and the Defendant. Submissions of learned Counsel 9. At the close of trial, learned Counsel to the Defendant filed his final written address on 30/12/19 and set down two issues for determination as follows - 1. Whether the Claimant has failed to prove his case and same ought to be dismissed. 2. Whether the Defendant has succeeded in its counter claim in this suit. 10. Arguing these issues, learned Counsel submitted, citing Akinrinade v. NEPA (2006)33 WRN 112-113 that when an employee complains that his employment has been wrongfully terminated he has the onus to exhibit his contract of employment and prove to the Court how the terms of the contract were breached; that Exh. C1 & Exh. D9 formed the contract of employment of the Claimant; that Claimant was in breach of clause 7.1 of Exh. D9 wherein he was found to be in dereliction of duty in that he failed to fulfill his obligations under the contract; that he was given products to sell but kept the products in till they expired citing Exh. D6; that employees have a duty to obey all lawful instructions citing Nwobosi v. ACB Limited (1995)6 NWLR (Pt. 404) 658 and that it was the culmination of all these facts that led to the termination of the employment of the Claimant. Counsel submitted that ordinarily, Claimant ought to have been dismissed but that the Defendant was magnanimous in terminating his employment and that Claimant is not entitled to any salary in lieu of notice of termination of employment. he urged the Court to so hold. On the claim for pension, learned Counsel submitted that Claimant did not open any Retirement Savings Account as mandated by section 11(3), Pension Reforms Act, 2014 and was paid his full salary and allowances for the entire period he worked with the Defendant without any deduction for pensions. Learned Counsel prayed the Court to resolve this issue in favor of the Defendant. 11. On issue 2, learned Counsel submitted that the Defendant is entitle to its counter claim noting that counter claim is a separate action of its own citing Maobson Inter-Link Associated Limited v. UTC Nigeria Plc (2013)9 NWLR (Pt. 1359) 197 at 209; that the sum of =N=1,349,755.00 represents the cost of products sold on credit by the Claimant and yet to be recovered while the sum of =N=2,851,737.00 represents the cost of items which were unreasonably withheld by the Claimant without just cause. Counsel prayed the Court to enter Judgment in favor of the Counter Claimant. 12. On behalf of the Claimant, a 25-page final written address was filed on 10/1/2020. In it, learned Counsel set down the following issues for determination - 1. Whether the Claimant has proved his case from the totality of the oral and documentary evidence before the honourable Court. 2. Whether the Defendant's counter claim is proved in view of the totality of the oral and documentary evidence before this honourable Court. 3. Whether the sole witness for the defence is a reliable and truthful witness. 13. In arguing these issues, learned Counsel submitted that Exh. C1 regulated the employment relationship of the parties and that it provided for either party to give one month notice or pay one month salary in lieu of notice of termination; that parties are bound by the terms of their written contract citing Iyase v. Uniben Teaching Hospital Management Board (2000)2 NWLR (Pt. 643) 45 at 59; that a salary in lieu of notice ought to be paid at the time of termination of employment citing Chukwurah v. Shell Petroleum (1993)4 NWLR (Pt. 289); that Claimant was invited to come for his entitlement by Exh. C4 3 weeks after the termination of Claimant's employment and that in any event, Claimant's salary was always paid into his Bank Account (Exh. C6) and hence if the Defendant had wanted to pay the entitlement it would have simply paid into the said account rather than inviting Claimant to come forward to collect same; that the issue of dereliction of duty as argued by the Defendant in the final written address never came up in the course of trial as the reason for the termination of Claimant's and that there is no evidence that Claimant was obliged a copy of Exh. D9 (Staff Handbook). 14. Counsel submitted further that under the Pension Reform Act 2014, the Defendant had an obligation to open a Retirement Savings Account for the Claimant with a sanction for failure to do so citing sections 11(5) & (6), Pension Reforms Act but that the Defendant failed to comply with the statutory provisions. Learned Counsel thus prayed the Court to resolve issue 1 in favor of the Claimant and grant the reliefs sought. 15. On whether the Defendant's counter claim is proved in view of the totality of the oral and documentary evidence before the Court, learned Counsel referred to Exh. C8 a memo from the Defendant penalising Claimant for any cheque of customer presented but not honoured. Counsel also referred to Exh. C4 in which the Defendant indicated that it would proceed to request the customers who issue the stale cheques to replace same and that there is no evidence that the said customers refused to replace the stale cheques. On the second counter claim, Counsel submitted that there is no evidence that reconciliation of account was done by the parties and neither did the Claimant or Defendant give evidence to the effect that Claimant sold the goods and that by Exh. C10 there was no reaction the request of the Claimant for an audit and a vehicle to move the goods in his possession the Defendant. Counsel submitted further that the sole witness of the Defendant is not a witness of truth; that the witness lied under oath when he claimed that Claimant did not request a vehicle to move the goods in custody to the Defendant despite Exh. C10 and that he also lied when he claimed that he checked the expired goods which were in the custody of the Claimant in his office since the drugs were in the custody of the Claimant he could not have checked them in his office. Citing Fubara v. INEC (2010)All FWLR (Pt. 544) 176 Counsel prayed the Court to discountenance the testimony of the DW1 as being unreliable. Finally, learned Counsel prayed the Court to grant the reliefs sought by the Claimant and dismiss the counter claims of the Defendant. Decision 16. I read and understood all the processes as filed by learned Counsel on either side. I patiently listened to the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the submissions of the both learned Counsel at the point of adopting their final written addresses. Having done all this, I adopt the 2 issues set down for determination by the Defendant for the just determination of this case. They are - 1. Whether the Claimant has failed to prove his case and same ought to be dismissed. 2. Whether the Defendant has succeeded in its counter claim in this suit. 17. By the adversarial nature of our adjudication, the burden is always on he who asserts to adduce cogent evidence in support of the assertion in order to be entitled to a positive disposition by the Court. both the statute law and the case law support this age long principle. Indeed, the principle has become so notorious that judicial notice is take of it to require no citation of authorities. The evidence required may be oral or documentary of both cognizance being taken of the fact that documentary evidence is often accorded more recognition. The first relief sought is for a declaration that the Defendant breached the terms of employment as contained in the Claimant's employment letter when it refused to pay the Claimant one month salary in lieu of notice upon the termination of Claimant's employment. Exh. C1 is the Offer of Employment letter given to the Claimant at the time of his employment. On Termination, the exhibit states that ''Either party giving one month's salary in lieu of notice can terminate this appointment''. Claimant's appointment was terminated with immediate effect by Exh. C2 dated 29/4/16. It was argued on behalf of the Defendant that Claimant's appointment was terminated in consonant with Exh. D9. That was the Staff Handbook of the Defendant. Now, in paragraph 3 of Claimant's Reply to Defence and Defence to Counter claim of the Defendants, Claimant had averred that he was not given that document by the Defendant and thereby put the Defendant to the strictest proof of the same. Throughout the trial, no iota of evidence was adduced by the Defendant to the effect that Claimant was obliged a copy of Exh. D9 or that indeed that exhibit formed part of the contact between it and the Claimant. In Defendant's Reply Address filed on 27/1/2020 particularly paragraph 1.4 learned Counsel had submitted inter alia that - ''In response to paragraph 3.1.8, we submit that the Defendant did not deny liability of the Claimant's one-month salary in lieu of notice, but that the Claimant failed to make himself available for payment. The Claimant has not come forward to collect the payment, ...''. 18. It is difficult to reconcile this position with the earlier submission of the learned Counsel to the Defendant in paragraph 4.14 of the Defendant's Final Written Address dated and filed 30/12/19 as follows ''We submit that the Claimant is not entitled for(sic) one month salary in lieu of notice of his termination of his employment''. This is nothing but blowing hot and cold at the same time often referred to as approbating and reprobating. The concept of approbating and reprobating is certainly not acceptable in legal practice or in adjudication. In a situation as such, it is either that learned Counsel is not seised of the case at hand or is simply being mischievous or indeed both. It is an attitude which even appellate Courts have had reason to frown at and condemn. As rightly pointed out by Georgewill, JCA in SCOA (Nig.) Plc v. TAAN & Ors. (2018)LPELR-CA - ''The law does frown seriously at such attitude of parties approbating and reprobating in the Court thinking perhaps that they might in so doing win some very cheap points in issue if the Court was so gullible as they thought it to be, but alas they were stopped right in their tract by the Court which saw through their unstable attitude on this issue ... It is the rule of equity that one cannot approbate and reprobate... It is a doctrine of justice and it is inequitable to blow hot and cold, this principle finds expression in Latin maxim 'Allegans Contraria Non Est Audiendus." 19. I find that Claimant was entitled by the terms of his employment to be paid a month's salary in lieu of notice of termination of employment. I also find that there is no evidence that he was indeed paid a month's salary in lieu of notice as required by Exh. C1.I thus grant the first reliefs sought. I declare that the Defendant breached the terms of employment as contained in the Claimant's employment letter when it refused to pay the Claimant one month salary in lieu of notice upon the termination of Claimant's employment. Having so found and as a consequential order, the Defendant is ordered to pay to the Claimant the sum of Ninety Three Thousand, Two Hundred and Fifty Naira (=N=93,350.00) being a month salary in lieu of a month notice. 20. The second relief sought by the Claimant is for a declaration that the Defendant breached Section 11(5) of the Pension Reforms Act, 2014 when it failed and/or neglected to open a retirement savings account in the name of the Claimant. In paragraph 6 of its amended statement of defence, it was the case of the Defendant that although PFA Form was given to the Claimant to fill and return, Claimant never did; that Claimant did not provide details of any existing PFA account despite reminders and that no deduction was made for pensions from the salary of the Claimant as he was fully paid less tax. Under the Pension Reforms Act, 2014, both the employer and the employee have statutory obligation to discharge respecting opening of a Retirement Savings Account. See Section 11(1) of the Act. However where an employee fails to open such account and provide details to his employer, the employer must, subject to the guidelines provided by the Commission, request a Pension Fund Administrator to open a nominal retirement savings account for the employee. That is the mandatory provision of Section 11(5) of the Act and there is a statutory penalty in section 11(6) of the same statute. It is apparent that the Defendant was in breach of this provision. That is my finding. I declare that the Defendant breached Section 11(5) of the Pension Reforms Act, 2014 when it failed and/or neglected to open a retirement savings account in the name of the Claimant. 21. Claimant sought payment to him of damages in the sum of Two Million Naira (=N=2,000,000.00) for failure to open a Retirement Savings Account (RSA) in his name in accordance with Section 11(5) of the Pension Reforms Act, 2014. I have found that the Defendant was in breach of the provision of the Pension Reforms Act for failure to open a retirement savings account in the name of the Claimant. Unfortunately, award of damages is not a sanction provided for such violation of statutory provision. Indeed, I find no sanction or penalty so provided for a breach of section 11(5) of the Act. In any event, the Defendant had averred that it did not make any deductions for pension from the salary of the Claimant throughout the period he worked with it and that Claimant was paid his full salary and allowances less tax. That averment was not in any way or manner contradicted by the Claimant even though he had an opportunity to do so in his Reply to the Statement of Defence and Defence to Counter claim. Claimant must thus be deemed to have admitted and conceded to same. See Eziaku v. Eziaku (2018) LPELR-(CA). Damages as an equitable remedy will only lie when a wrong is found committed against a party/ In the instant case, there is no evidence before me to the effect that any wrong was committed against the Claimant by the alleged act of the Defendant. I therefore refuse this plea for award of damages there being no basis for same. 22. The fifth relief sought is for an Order of Court compelling the Defendant to open a Retirement Savings Account (RSA) and remit all the arrears of pension into the account. The assertion of the Defendant that Claimant was paid his full salaries and allowances while working with it less tax only and that no deduction was made for pensions. This evidence remains unchallenged and un-contradicted. That evidence thus portends that there is no money of the Claimant still in the custody of the Defendant. Should the Court grant this prayer there is no money belonging to the Claimant which the Defendant would be ordered to pay into the said retirement savings account. This prayer is therefore liable to be refused and dismissed. I so do. 23. The Defendant is to bear the cost of this proceedings assessed at =N=100,000.00 only payable to the Claimant within 30 days from today. 24. The second issue for determination is whether the Defendant has succeeded in its counter claims in this suit. The law is trite that counter claim is akin to an independent and separate action of its own. The counter claimant is therefore under an obligation to adduce cogent and admissible evidence in support of his claims in order to be entitled to a grant of same by the Court. See Maobison Interlink Associate Limited v. U.T.C Nigeria Plc (2013) All FWLR (Pt. 694) 52. In this case, Defendant/Counter claimant sought 3 main counter claims. The first is for an Order for the payment of =N=155,250 (One Hundred and Fifty Five Thousand, two Hundred and Fifty Naira) being money for products sold by him to customers which cheques were intentionally not presented for payments on time until they became stale. The circumstances leading to the said cheques being stale are clear and not contested. In Exh. C4 a letter written by the Defendant to the learned Counsel to the Claimant, the Defendant had stated that - ''Nevertheless we will proceed to request the customers to issue new cheques to replace the stale ones. But if they refuse, we will have no choice bu to ask your client to pay for them''. 25. At trial, the Defendant did not lead any evidence to the effect that the customers who issued the stale cheque refused to replace the cheques after its request. There is therefore no sufficiently cogent evidence to enable the Court grant this head of counter claim. Same is refused and dismissed accordingly. The second and third heads of counter claims are for an Order for the payment of the sum of =N=1,349,755 (One Million, Three Hundred and Forty Nine Thousand, Seven Hundred and Fifty Five Naira) representing the cost of products sold out on credit to customers of which the amount were still outstanding against the Claimant and an Order for the payment of the sum =N=2,851,737 (Two Million, Eight Hundred and Fifty One Thousand, Seven Hundred and Thirty Seven Naira) being cost of the items which were unreasonably withheld in the custody of the Defendant without just cause. Both claims are for sums certain. They are akin to a claim for special damages which the law mandates must be specially pleaded and strictly proved. The proof is not subject to the claim being controverted or challenged. See Galinje J.C.A in ISC Services Limited v. Genak Continental Limited & Anor. (2006) LPELR-7662 CA). The sum of =N=1,349,755 was said to be for products sold by the Claimant on credit to customers which sum is still outstanding. The fact is that Defendant/Counter claimant is still a going concern. The customers to whom the goods were allegedly sold were customers of the Defendant. There is no evidence before me to the effect that Claimant ought not to have sold on credit and the existence of any policy of the Defendant to that effect. It is open to the Defendant to pursue its customers and recover its outstanding funds. The second was for the sum of Two Million, Eight Hundred and Fifty One Thousand, Seven Hundred and Thirty Seven Naira being cost of the items which were unreasonably withheld in the custody of the Defendant without just cause. I have evidence on record of the efforts of the Claimant requesting for vehicle to return the goods to the Defendant. I also have on record that no such vehicle was made available. Aside from this, how did the Defendant arrive at the sum claimed? I have no answer to this question. The bottom line is that I do not have, because the Defendant did not avail the Court enough evidence to support these two heads of counter claims. I have no hesitation is refusing and dismissing both for lack of proof by cogent, credible and admissible evidence. 26. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, 1. I declare that the Defendant breached the terms of employment as contained in the Claimant's employment letter when it refused to pay the Claimant one month salary in lieu of notice upon the termination of Claimant's employment. 2. The Defendant is ordered to pay to the Claimant the sum of Ninety Three Thousand, Two Hundred and Fifty Naira (=N=93,350.00) being a month salary in lieu of a month notice. 3. I declare that the Defendant breached Section 11(5) of the Pension Reforms Act, 2014 when it failed and/or neglected to open a retirement savings account in the name of the Claimant. 4. All other reliefs are refused and dismissed for lack of proof. 5. The Defendant is to bear the cost of this proceedings assessed at =N=100,000.00 only payable to the Claimant within 30 days from today. 6. All the heads of counter claims are refused and dismissed for absence of proof. 7. All the terms of this Judgment are to be complied with within 30 days from today. 27. Judgment is entered accordingly. __________________ Hon. Justice J. D. Peters Presiding Judge