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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: OCTOBER 8, 2015 SUIT NO: NICN/LA/386/2013 BETWEEN Adekola Oluwakemi Funlola - Claimant AND C & M Exchange - Defendant REPRESENTATION A. Adedoyin-Adeniyi with Jude Nbisike and Abimbola Oyeniyi (Miss) for the Claimant. Dickson Yakubu for the Defendant. JUDGMENT This action was instituted by the Claimant on the 23rd day of July, 2013. By the endorsement on her General Form of Complaint, the Claimant sought the following reliefs - a. The sum of Six Hundred and Twenty Nine Thousand, Eight Hundred and Eighty One Naira, Fifty Six Kobo (N629,881.56) being the salary due to the Claimant as at the time of this suit if her employment had not been unjustifiably terminated. b. Interest at the rate of Twenty Percent (20%) per annum until judgment is delivered and post judgment interest on the above sum at the rate of Fifteen Percent (15%) per annum, until the final liquidation of the judgment debt. c. The cost of instituting this action. d. An order compelling the Defendant to produce an update proof of the following:- i. Tax Clearance and/or evidence of PAYE Tax remittance from 21st January, 2008 till 21st December, 2012. ii. Evidence of NHF Deductions remittance from 21st January, 2008 till 21st December, 2012. iii. Evidence of Remittance of Pension Contribution from 21st January, 2008 till 21st December, 2012. The Claimant sought in the alternative - A. An order compelling the Defendant to pay the sum of One Million, Seventy Six Thousand, Two Hundred and Twenty Nine Naira, Sixty Four Kobo (N1,076,229.64) being the salary due to the Claimant as at time of filling this suit, plus PAYE Tax, NHF Deductions and Pension Deductions. B. Interest at the rate of Twenty Percent (20%) per annum till judgment is delivered and post judgment interest on the above sum at the rate of Fifteen percent (15%) per annum until the final liquidation of the judgment debt. Claimant frontloaded all the requisite processes as mandated by the Rules of this Court. The Defendant entered Appearance and filed its Statement of Defence on the 20th of August, 2014 and on the 4th of December, 2013, trial commenced in the suit. The Claimant opened her case on 4/12/13 and testified as CW1. Claimant adopted her witness statement on oath dated 23/7/13 as her evidence in chief and tendered 9 documents as exhibits. The documents were admitted without objection and marked as Exh. OF1 - Exh. OF9. The summary of the case for the Claimant as contained in her averments is that she was offered employment by the Defendant that the Defendant and deployed to Diamond Bank Head Office as a Secretary, that on the 18/2/09, upon full completion of one year probationary period the Claimant’s employment with the Defendant was confirmed; that after working for complete Five years in Diamond Bank Plc, the Defendant on the 21/1/12 terminated her appointment with immediate effect without any pay whatsoever; that the way and manner the Defendant terminated her employment is a complete breach of the conditions and terms of her offer of employment letter and this has caused her severe untold hardship; that the Defendant instead of stating reasons and giving the payment in lieu and other benefits open to its disengaged staff, chose to ignore the Claimant’s benefits for several months even at the pendency of this suit; that when it became apparent that the Defendant would not pay her anything the Claimant vide letters dated 4/3/13 and 20/5/13 humbly requested for the proof of the following deductions from her monthly salary as stated in her pay slip so as to fulfill some of her civil obligations to wit; a. Tax Clearance and/or evidence of PAYE Tax remittance from 21/1/08 till 21/12/12; b. Evidence of NHF Deductions remittance from 21/1/08 till 21/12/12 and c. Evidence of remittances of Pension Contributions from 21/1/08 till 21/12/12; that despite several pleas, entreaties, the Defendant refused to avail her of the proof of these Statutory Deductions from her salary and that she subsequently demanded for her entitlement through her Solicitor, but there was no response from the Defendant. Under cross examination on 19/2/14, CW1 testified that she joined Defendant in February, 2008 as a Miss Adekola; that she got married on 10/1/11 and became Mrs Awana; that her termination of appointment letter reads Adekola and not Awana and that is why she did not sue as Awana; that since her appointment was terminated she has not received any terminal benefits from the Defendant. Witness stated that she was employed by Defendant on 6/2/08 and was deployed to Diamond Bank as Secretary, Head Office; that she worked at the Diamond Bank Plc for 6 months before being posted to other branches such as Surulere, Ikeja, Ogba Branches; that the Defendant was her employer at all times; that she was never issued query by the Defendant while working with them; that with sudden termination of her employment she had nowhere to seek help except from friends to take care of her family; that before she got married she was responsible for sending her younger ones to school; that when she got married she had to continue to carry same responsibility because she was the only one working and also had a child to take care of; that when her employment was terminated, Defendant did not get in touch with her in relation to her terminal benefit; that she wrote to Defendant yet no reply at all; that termination of her employment is null and void because no reason was given for same as required by the policy of the Defendant; that the Court should grant her prayers as she does not want to work with the Defendant again and that she was never given any Form to fill in relation to Pension or NHF. On 9/4/14, the Defendant opened its case and called one Chika Agwulonu as its witness. DW1 adopted her written witness statement on oath made on 20/8/13 as her evidence in chief and tendered 10 documents as exhibits. The documents were admitted without objection and marked as Exh.D1-Exh. D6. This witness was not made available for cross examination. Learned Counsel had informed the Court the witness shortly after attending Court proceedings commenced her annual leave. She was subsequently substituted by another witness - Glory Shasanya. Glory Shasanya testified as DW2. On 16/3/15 witness adopted her written witness deposition made on5/3/15 as her evidence in chief and tendered four documents as exhibits. The documents were admitted as exhibits and marked Exh. D7-Exh. D10. Witness urged the Court to dismiss the case as filed. Under cross examination DW2 stated that Claimant’s appointment was terminated in accordance with the terms of appointment; that appointment may be terminated by giving a month’s notice or payment of a month's salary in lieu of notice; that Defendant prepared Claimant’s terminal benefit for her to collect but that Claimant has not come to collect the benefit; there is a process which Defendant follow when a staff’s appointment is terminated; that it is after confirming that a staff whose appointment is terminated does not owe that Defendant prepare staff terminal benefit; that the practice is for such staff to check from time to time for their terminal benefit that alternatively Defendant usually call them on phone; that Defendant normally does not write to invite them; that it was the responsibility of DW1 to react to Exh. OF 5B and that payment of tax is statutory for all employees. Witness added that sometimes in 2013 the National Housing Fund computerised its operation thus every staff has information with NHF; that Defendant needed to clear its names that all statutory requirements and deductions were complied with in reaction to the allegation contained in this suit that every statutory deduction is remitted to the appropriate authority and that in the case of tax it was remitted to the Lagos State Inland Revenue Service. At the close of trial on 16/3/15, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of Court. In his final written address, learned Counsel to the Defendant set down three issues for determination as follows - 1. Whether the Claimant has proved her case of wrongful and illegal termination of her employment. 2. Whether from the totality of evidence before the Honourable Court, the Claimant is entitled to her claim in this suit. Arguing issue 1, learned Counsel submitted that it is the duty of an employee who complains of wrongful and illegal termination of employment to prove same by placing before the Court the terms of contract of service which is the substratum upon which the employee must found his case, citing Mr. Gabriel Moradeyo Akinrinade v. NEPA (2005)2 CLRN 152 at 39-45 and Katto v. CBN (1991)6 NWLR (Pt. 607) 390 at 405. Counsel referred to Exh. OF1 which states among others that upon confirmation both parties reserve the right to terminate the appointment by giving a month's salary in lieu and that by Exh. OF4 by which Claimant's appointment was terminated. According to learned Counsel, Exh. D4 was the one month's salary in Diamond Bank Manager's cheque which the Claimant refused to accept. Learned Counsel submitted that by the evidence led the Claimant has not proved that the termination of her appointment was wrongful. Counsel urged the Court to so hold. On issue 2, learned Counsel submitted that the Claimant is not entitled to her claims beyond the amount the Defendant has conceded to in its statement of defence and written statement on oath. Learned Counsel submitted that the Claimant is entitled only to a month salary in lieu which is =N=89,105.54 representing one month's basic salary and unutilised leave days for the Claimant. Respecting the claim for =N=629,881.56 being the salary due to the Claimant as at the time of filing this suit, Counsel submitted that the claim is both unfounded and baseless being that the Claimant is demanding for seven months' basic salaries when in fact her appointment was duly terminated on 21/12/12 referring to paragraph 6 of the statement of fact. Counsel urged the Court to so hold citing Hausa v. FBN Plc (2009)9 NWLR (Pt. 671) 64. As regards the cost of instituting this suit, learned Counsel submitted that the Claimant failed to lead evidence of the circumstances entitling her to such cost. Regarding issue of Tax Clearance Certificate and/or PAYE Tax Remittance, Counsel submitted that the Defendant has led evidence that the failure of the Claimant to fill the requisite form made it impossible to process her Tax papers; that Exh. D9 is proof of NHF deductions and that with respect to evidence of remittance of Pensions contributions from 21/1/08 till 21/1/12 Exh. D10 is an update of such payment to Sigma Pensions Limited. Learned Counsel further submitted that the alternative prayer is unfounded as these are statutory deductions that are only payable to the requisite statutory agencies and not individuals and that the Claimant did not lead evidence as to the circumstance which entitles her to award of interest on the sum sought. Counsel therefore prayed the Court to dismiss the claims of the Claimant. Learned Counsel to the Claimant filed his final written address on 21/4/15 in which he canvassed the following four issues for determination - 1. Whether considering the facts of this case and the evidence adduced by parties, the Claimant has successfully established a case of wrongful termination of employment and thereby entitled to the claims against the Defendant?. 2. Whether the Diamond Bank Draft marked as Exh. D4 that was made after Defendant had received the Claimant’s Solicitor’s letter headed “Notice of Court Action”, is admissible in evidence?. 3. Whether the evidence and the documents tendered by Mrs. Chika Agwulonu will not be completely discountenanced by this Honourable Court, as a result of the substitution of the aforementioned witness?. 4. Whether the Decision of a 3rd Party, that is, Diamond Bank who is not a party to the contract can be used as an excuse for the non-performance of a contractual obligation?. With respect to issue 1, learned Counsel submitted that before a party on allegation of wrongful termination of employment can succeed, the party must place before the Court the contract of employment and the Court must look into the contract in its entirety citing FMF Limited v. Ekpo (2004)2 NWLR (Pt. 856) 100 at 128-129, Olanrewaju v. Afribank Nigeria Plc (2001)13 NWLR (Pt. 731) 11, Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378 at 412-413 and Kaydee Ventures Limited v. Minister, Federal Capital Territory (2010)7 NWLR (Pt. 1192) 171 at 224. Counsel submitted that from all the evidence and material facts before the Court, the Defendant did not comply with either of the conditions on the termination of Claimant's employment, to wit, payment of one month salary in lieu or by giving one month notice. Counsel prayed the Court to resolve this issue in favour of the Claimant. On issue 2, learned Counsel submitted that Exh. D4 was a mere afterthought and produced in anticipation of this suit and that it was procured by the Defendant when it was obvious that the Claimant was approaching the Court. Citing Section 83(3), Evidence Act, 2011, Consolidated Breweries Plc v. Aosowieren (2002) FWLR (Pt. 116) 959 (CA) and S.T. Hon's Law of Evidence in Nigeria; page 927 para. 3 submitted that the law is trite that statements and documents made in anticipation of Court proceedings are inadmissible. Counsel urged the Court to discountenance the said exhibit as admitted in error and reject same with all the evidence attached to it. Arguing issue 3, learned Counsel submitted that all the evidence given by Mrs. Chika Agwulomu who was substituted by Mrs. Glory Shasanya be expunged since the evidence and the exhibits (Exh. D1-Exh. D6) did not pass the test of cross examination. Counsel cited Buhari v. INEC (2008)19 NWLR (Pt. 1120) 246 at 415 where Tobi J.C.A (as he then was) stated - ''A Court of law is entitled not to place probative value on evidence which does not pass the test of cross examination''. According to learned Counsel, once that is done, it becomes apparent that the Defendant does not have any evidence and that in the words of the learned Counsel on page 18 of his final written address, ''... the testimony of Mrs. Chika Agwulonu is completely void and it does not stand on anything and as such, all evidence and documents presented by her can not be recognised by this Court while delivering its Judgment''. Counsel cited Rilwan & Partners v. Skye Bank Plc (2015)1 NWLR (Pt. 1441) 437 and submitted that where averments in pleadings are not supported by evidence, such averments are deemed abandoned. Counsel therefore urged the Court to dismiss the entire testimony of Mrs. Chika Agwulonu and all the documents tendered by her. Finally on issue 4, learned Counsel drew the attention of the Court to the excuse given by the Defendant that Diamond Bank caused the delay in the calculation of one month salary in lieu due to the Claimant. Counsel argued that such an excuse was frivolous as Diamond Bank was not a party to the contract of employment between the Claimant and the Defendant. Citing Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378, Counsel submitted that an agreement is binding only on the parties to it and not on third parties. Learned Counsel urged the Court to dismiss the defence of the Defendant and resolve all the issues raised in favour of the Claimant. I read, understood and reviewed all the processes filed by learned Counsel on either side. I evaluated all the documents tendered and admitted as exhibits; listened to and watched demeanour of the witnesses while testifying and listened with understanding to the oral submissions of both Counsel on this matter. Having done all these, I narrow the issue for the just determination of this case down to mainly 2 as follows - 1. Whether this Court is entitled to completely discountenance the testimony of and evidence led by DW1 - Mrs. Chika Agwulonu. 2. Whether the Claimant is entitled to any of the reliefs sought or any relief at all. On issue 1 and for a proper appreciation it is imperative to simply do a summary of the circumstances and the crux of the argument. DW1 testified in Court, adopted her written witness deposition as her evidence in chief and tendered 6 documents as exhibits. The 6 documents were admitted without objection and marked as Exh. D1-Exh. D6. That was on 9/4/14. Dickson Yakubu Esq. Counsel to the Defendant then sought and was granted an adjournment according to him ''to serve the other party relevant documents''. Unfortunately, that witness could no longer attend Court proceeding on the grounds, inter alia, of ill health. Thus another witness was brought in substitution. Now, learned Counsel to the Claimant has prayed the Court to completely discountenance all the evidence led by DW1 since she was not presented for cross examination. The 6 exhibits tendered and admitted via DW1 are as follows - 1. NHF update in favour of the Claimant; 2. Tax update in favour of the Claimant; 3. Pension update in favour of the Claimant; 4. Bank Draft for terminal benefit of the Claimant in the sum of =N=89,105.64 dated 16/7/13; 5. Lagos State Board of Internal Revenue Tax Form and 6. Federal Mortgage Bank of Nigeria Individual Registration Form for NHF. All these exhibits were frontloaded along with other originating processes when this case was filed on 23/7/13. There was no averment in any of the pleadings filed by the Claimant attacking any of these exhibits. When the documents were tendered for admission as exhibits on 9/4/14, learned Counsel to the Claimant Adeniyi-Adedoyin Esq. did not raise objection to the admissibility of any of them though Counsel had ample opportunity to do so. This Court has been urged, on the authority of the Judgment of His Lordship Tobi J.C.A (as he then was) in Buhari v. INEC (2008)19 NWLR (Pt. 1120) 246 to expunge the evidence of DW2 for not being subjected to cross examination. This Court as a trial Court is without doubt bound by the decisions of all appellate Courts of which the Court of Appeal is one and the Supreme Court the other. On the authority of Buhari v. INEC therefore I discountenance the testimony of DW1 - Mrs. Chika Agwulonu. But the essence of every Judgment is the doing of justice or rather dispensation of justice. By justice here is meant real justice or substantial justice as opposed to technical justice which amounts to nothing other than injustice. Now having expunged the testimony of DW1 as urged can this Court look at or place reliance on Exh. D1-Exh. D6 (or any of them) tendered by and admitted through DW1? I answer that question in the affirmative. The documents were frontloaded and copies also served on the Claimant. Copies are equally in the Court's file and thus formed part of the record of this Court. In Faturoti v. University of Lagos Suit No: NICN/LA/349/2012 Judgment of this Court delivered on 28/4/15, the argument was whether the Court could rely on and use the letter of appointment which though frontloaded by the Defendant but not tendered, not even by the Claimant. This Court, while holding that it could and would, stated that the case of Agbareh v. Mimra (2008) LPELR-235(SC) - ''... is a good authority for the proposition that a trial Court is entitled to look at the contents of its file or record and refer to it in consideration of any matter before it. It is thus certainly impossible for this Court to feign ignorance of processes filed and documents in this case if the Court is to do justice as required''. Aside from this, a trial Court is also permitted by law to draw inferences from evidence on record such as documents before it. See Adebayo & Ors. v. PDP & Ors. (2013) LRCN 69 at 122 and Olorunkunle & Ors. v. Adigun (2012)All FWLR (Pt. 614) 139. Thus I hold that Exh. D1- Exh. D6 are part of the record of this Court to which this Court can and will make resort, if necessary, for the just determination of this case. The second issue down set for determination is whether the Claimant is entitled to any of the reliefs sought or any relief at all. There is at least a consensus among parties that the relationship between the parties is one of master/servant. In other words, it is not an employment relationship with statutory flavour or statutorily regulated. In a relationship as this, the law is trite that either party is at liberty to determine the relationship subject to giving of requisite notice or payment of salary in lieu of notice. See Akinfe v. UBA Plc (2007)10 NWLR (Pt. 1041) 185. Indeed, by Exh. OF1 which is the Offer of Employment of the Claimant ''Upon confirmation, both parties reserve the right to terminate this appointment by giving a month's notice in writing or pay one-month's salary in lieu''. By paragraph 6 of her statement of facts, Claimant averred that her appointment was terminated by a letter dated 21/12/12 with immediate effect. Without much ado, the then existing relationship was effectively brought to an end by that letter. From that date, it is not open to the Claimant to regard the relationship as still subsisting. She could also not claim for any salary effective from that date of termination. The reason being that there is no basis for such a claim. The law is settled that the Court will not order salary to be paid a worker for services not rendered. See Cooperative Bank Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & Olatunbosun v, NISER, Council (1998)3 NWLR (Pt. 80) 25. Thus the claim for =N=629,881.56 being the salary due to the Claimant as at the time of filing this suit is refused and dismissed accordingly. The Defendant however in paragraph 16b of its statement of defence and paragraph 16b of statement on oath of its DW2 - Mrs. Glory Shasanya had stated thus - ''That having lawfully terminated the employment of the Claimant, the Claimant is not entitled to any emoluments, perquisites, allowances, monetary claims and/or damages whatsoever as claimed in his statement of facts, EXCEPT THE PAYMENT OF SUM OF =N=89,105.64 (Eighty Nine Thousand One Hundred and Five Naira, Sixty Four Kobo) representing one month basic salary in lieu of notice and unutilized leave days''. The facts of this case show that the Claimant's employment was terminated with immediate effect and that salary in lieu of a month's notice was not paid as required. Defendant having admitted Claimant's entitlement as per the above paragraphs of its pleadings, Defendant is ordered and directed to pay to the Claimant the sum of =N=89, 105. 64 admitted by the Defendant as representing one month basic salary in lieu of notice and unutilized leave days. The second relief is for interest at the rate of Twenty per cent (20%) per annum until judgment is delivered and post judgment interest on the above sum at the rate of Fifteen Percent (15%) per annum, until the final liquidation of the judgment debt. The claim for interest is predicated on the grant of the principal sum claimed. A claim for interest cannot stand on its own. Thus the claim for =N=629,881.56 as salary due to the Claimant having failed, this claim for interest must also fail. Thus it is refused and also dismissed. The Claimant also sought an order compelling the Defendant to produce an update proof of the following Tax Clearance and/or evidence of PAYE Tax remittance from 21st January, 2008 till 21st December, 2012. It is sufficient to simply state that the jurisdiction of this Court is limited to labour and related matters. This Court has no jurisdiction over Tax and such other sundry matters. Claimant may therefore take the issues up at the appropriate jurisdiction. On a prayer for the evidence of NHF Deductions remittance from 21st January, 2008 till 21st December, 2012, I find Exh. D7 both instructive and germane here. That exhibit is headed ''Federal Mortgage Bank of Nigeria NHF Statement of Account as at 31/12/13''. It carries the name of the Claimant. I hold that that exhibit, a 4-page document, is sufficient evidence as sought by the Claimant. On evidence of remittance of Pension Contribution from 21st January, 2008 till 21st December, 2012. Exh. D10 is a 5-page document. It is a statement of account as at 15/5/14 from Sigma Pensions PFA in respect of the Claimant. The transaction it covered relates to the period 2008-2014 and was signed by one Peter Adaji General Manager/CTO of Sigma Pensions Limited. I hold that that exhibit also answers the request of the Claimant respecting the statement of account of her pensions deductions. The Claimant sought in the alternative an order compelling the Defendant to pay the sum of One Million, Seventy Six Thousand, Two Hundred and Twenty Nine Naira, Sixty Four Kobo (N1,076,229.64) being the salary due to the Claimant as at time of filling this suit, plus PAYE Tax, NHF Deductions and Pension Deductions as well as interest at the rate of Twenty Percent (20%) per annum till judgment is delivered and post judgment interest on the above sum at the rate of Fifteen percent (15%) per annum until the final liquidation of the judgment debt. The reasons stated in this Judgment thus far have effectively addressed the alternative claims sought by the Claimant and by which same cannot be granted. Quite apart from the fact this Court has held that it has no jurisdiction in Tax and related matters and reasons contained in this Judgment, it is doubtful if any Court will order that valid Tax deductions be returned to the Claimant. For, government meets its obligation to the populace with revenue generated from pay as you earn taxes. The alternative reliefs sought including payment of interest rate are refused and dismissed. Finally and for the avoidance of doubt and for all the reasons as contained in this Judgment, 1. The claim for =N=629,881.56 being the salary due to the Claimant as at the time of filing this suit is refused and dismissed accordingly. 2. Defendant is ordered and directed to pay to the Claimant the sum of =N=89, 105. 64 admitted by the Defendant as representing one month basic salary in lieu of notice and unutilized leave days. 3. The claim for interest at the rate of Twenty per cent (20%) per annum until judgment is delivered and post judgment interest on the above sum at the rate of Fifteen Percent (15%) per annum, until the final liquidation of the judgment debt is refused and dismissed. 4. An order compelling the Defendant to produce an update proof of the Tax Clearance and/or evidence of PAYE Tax remittance from 21st January, 2008 till 21st December, 2012 is refused and dismissed for absence of jurisdiction to hear and adjudicate on Tax and related matters. 5. Exh. D7 is evidence of NHF Deductions remittance from 21st January, 2008 till 21st December, 2012 sought by the Claimant. 6. Exh. D10 a statement of account as at 15/5/14 from Sigma Pensions PFA in respect of the Claimant is evidence of remittance of Pension Contribution from 21st January, 2008 till 21st December, 2012 as sought by the Claimant. 7. The alternative prayers sought by the Claimants are refused and dismissed accordingly, there being no basis for them to be granted. All the terms of this Judgment shall be complied with within 30 days from today. There shall be no order as to cost. Judgment is entered accordingly ____________________ Hon. Justice J. D. Peters Presiding Judge