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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: September 15, 2015 SUIT NO: NICN/LA/276/2013 BETWEEN MR. BARTHOLOMEW ADEWUSI - CLAIMANT/APPLICANT AND STANDARD FLOUR MILLS LIMITED - DEFENDANT /RESPONDENT REPRESENTATION Y.A.Ajayi (Asst Chief State Counsel) with C.W.Bello (Mrs) & O.T.Akinbolade (Miss) for claimant. Elias Ajadi Esq for defendant. JUDGMENT The claimant filed this complaint against the defendant on the 30th May 2013 seeking the following reliefs: 1. A declaration that the non-payment of the claimant’s salaries and allowance from 1st of August, 2011 to 15th of April, 2012 is unlawful. 2. A declaration that the claimant is entitled to be paid his salaries and allowances until judgment is given. 3. Arrears of salary increase (1st July, 2010 – 15th April 2012) - 488,504.72 4. Unpaid salary (1st August 2011 – 15th April 2012) - 830,221.43 5. Unenjoyed leave (7½ weeks) committed to cash - 183,137.08 6. Leave allowance for 2011 - 73,450.00 7. Christmas/end of year bonus 2011 - 61,206.33 8. Unpaid fuel allowance (Jan & Feb 2012) - 58,478.40 9. Leave allowance for 2012 (worked pro rata) - 25,000.00 Total sum N1,7,20,000.00 10. The claimant further claims 10% interest from the date the matter is filed till the date of judgment and thereafter 5% interest till the final liquidation of the indebtedness and for such further cost as adjudged by this Honourable Court. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon at the trial. The defendant entered appearance, filed its statement of defence, witness statement on oath and copies of documents on the 20th September 2013. The parties joined issues and the matter went to trial. The claimant’s case is that he was an employee of the defendant with a letter of appointment dated the 8th of January 2002 and his appointment was confirmed in April 2003. He pleaded that he was paid last in July 2011 with net income of N65,419.97; that his salary was reviewed upward from N75,468.35 to N97,673.78 with effect from 1st July 2010 but the salary review was never implemented nor reflected in his pay-slip. The claimant averred that from the 1st August 2011 the defendant defaulted in paying his salary till the date of his resignation on the 20th of February 2012. That the defendant is owing him a total of N1,720,000 (One Million Seven Hundred and Twenty Thousand Naira) which includes his leave allowances Christmas/end of year bonus and fuel allowance. The claimant pleaded that he wrote on the 19th September 2011 to the defendant through the Management Committee to pay him his salaries. That at the time he was working with the defendant he was the Area Sales Manager and his duty was the sale and marketing of the defendant’s product to end users on cash and carry basis and on credit to a few pre-approved customers. He pleaded that the defendant operates three types of credit arrangement to its customers which are the collaterised credit, bank guaranteed customers and post-dated cheques credit. That between 2008 and January 2011 many of the credit customers were supplied flour in line with the company’s policies and duly approved but some of the customers defaulted in their payments. The claimant pleaded that he made efforts together with the Credit Control Manager and the General Manager Sales to recover the out-standing but the customers did not pay in bulk. The claimant averred that in August 2011, he made a proposal to the Chairman - Chief Akindele that the debtors should be referred to the defendant’s Lawyer for recovery actions and that the defendants Solicitor Olumide Sofowora wrote the debtors who confirmed their indebtedness to the company. The claimant further averred that at a meeting called by the Chairman in July/August 2011, he announced that his salary along with that of some other staff would not be paid and he and the other affected staff were placed on technical suspension. The claimant stated that all the affected Sales Managers wrote a letter of appeal to the General Manager Sales and Marketing that the decision to have their salaries and allowances withheld be reconsidered with a view to having it rescinded. That when this appeal did not yield any result, he wrote the Chairman through the Management Committee appealing for his case to be reviewed and his salaries and allowances be paid to him. The claimant pleaded that left with no choice, he put in his letter of resignation of appointment and he gave three months’ notice in line with his contract of appointment. That on the 23rd of February 2012, he officially handed over all the company property in his care such as the operational vehicle, the customer profile showing the indebtedness of each customer within his area of coverage to the Administration Officer Mr. Giwa who acknowledged receiving these items. The claimant pleaded that as a result of the failure of the defendant to pay his entitlements and benefits upon resignation, he approached the Lagos State Office of the Public Defender seeking redress. That the Office of the Public Defender invited the defendant for a meeting with a view at amicable resolution of the dispute but the intervention was not successful. The claimant pleaded that as a result of the defendant’s refusal to pay him his entitlements he is damnified and impoverished and has suffered great loss and damages. The claimant testified in support of his case. His evidence in chief was by witness statement on oath which he adopted. It was in the exact terms of the pleadings. Under cross examination, the claimant told the court that he drew up a list of customers owing in the areas he covered and that at the time the list was prepared the amount outstanding was N26,179,014.00. The claimant said some of the customers were recalcitrant and said the goods supplied to them were defective. He told the court that some of the customers like Mrs A.Olorunyomi pledged her property as collateral to the defendant. The claimant admitted that at the time of his resignation majority of the customers’ indebtedness was outstanding. He told the court that his resignation was not to frustrate the recovery of the debts but that he resigned because he had no income as the defendant had stopped his salary. The claimant then closed his case. The case of the defendant on the pleadings is that sometime in January 2011, it observed that the company had a very large debit account portfolio occasioned by the inefficiency and/or reckless credit sales by some of her sales managers/representatives including the claimant. That as a result of this discovery, a meeting was scheduled between the management of the defendant and the sales managers/representatives involved in the credit sales wherein it was resolved that each sales manager/representative should compile list of customers on its distribution line together with the amount owed the company by the customer. The defendant pleaded that the claimant made a list of customers in his line of distribution who are indebted to the company which amount cumulatively as at then stood at N26,179,014.00 (Twenty Six Million, One Hundred and Seventy Nine Thousand, Fourteen Naira only). That the claimant by internal memo recommended that the defendant to seek the services of a Legal Practitioner for the recovery of the debt owed the company by customers under his line of distribution. While the defendant was still making concerted efforts with the claimant to see how to recover some of its funds still trapped in the hands of customers under claimant’s line of distribution and only known to the claimant, he put in his letter of resignation dated 20th February 2012 from the services of the defendant. The defendant pleaded that by its letter of 23rd February 2012, it declined to accept the resignation of the claimant on the ground amongst others, that his exit at that point in time will frustrate the recovery effort and that the customers only liaise with the claimant. The defendant averred that since the 20th of February 2012 when the claimant left its services, its recovery drive from customers in the claimant’s line of distribution has suffered serious set-back as some of the customers that were listed by the claimant as owing have denied any form of indebtedness to it. That the following customers: Adeola Olorunyomi, Oyinlola Azeez, Ivy Stores Enterprises and Oluwaseyi Ventures whom the claimant listed as owing the defendant in various sums have denied one way or the other that they do not owe the defendant. The defendant stated that the reason for the denial of indebtedness by these customers is because of their knowledge of the fact that the claimant who is the only person who can prove and/or explain the circumstance of their indebtedness, is no longer in the service of the defendant; and that since the claimant’s resignation from the services of the defendant was not accepted, there is no way his entitlement can be computed and paid. The defendant pleaded that in the circumstance of this case, the claimant has the responsibility of assisting it to recover the debts or at worst ensure that the debtor customers acknowledge their indebtedness to the defendant; and that the circumstance surrounding the exit of the claimant is evidence of complicity and/or conspiracy between the debtor customers and the claimant to convert claimant’s money to their own use. The defendant averred that as at 31st of March 2013, the amount outstanding is in excess of N5 Million. The defendant pleaded that its decision to put the claimant and other staff involved in the huge debit transaction on technical suspension was to ensure their total commitment towards recovery. It averred that its actions or inactions did not and cannot cause any form of loss or damage to the claimant and that his conduct disentitles him to any relief. The act of the claimant has occasioned huge embarrassment and financial loss to the defendant which entitled it to withhold any benefits due to the claimant if any at all. The defendant called one witness Lanre Giwa (DW) Administrative Officer in support of its case. His evidence in chief was by witness statement on oath which he adopted. It was in terms of the pleadings. DW told the court that there was a salary review, that the defendant short paid the claimant for some months and did not pay him for some other months because he was placed on technical suspension as the company does not have an operational manual. DW told the court that the claimant was not written a letter informing him of being placed on technical suspension. He admitted that he did not know what the management meant by technical suspension. DW informed the court that the claimant wrote a letter to the chairman that legal action be taken against defaulting customers; and that the defendant knows the customers and receives their sales proceeds. The defendant then closed its case. The parties were directed to file their final addresses. The defendant’s final address is dated 23rd March 2015 and filed the same day. The claimant’s final address is dated 27th April 2015. Learned counsel to the defendant submitted one issue for determination as follows: Whether from the pleadings and the oral testimony of the witness; the claimant has been able to establish his entitlements to the various reliefs sought before this Honourable Court. He submitted that the reliefs indorsed on the statement of claim supercedes the one contained on the writ citing Chief Lahan & Ors v Laloyetan & Ors. [1972] NSCC 460 @ 461; [1972] 6 S.C 106; NTA v Anigbo [1972] 5 SC 156; Enigbokan v American International Insurance Co. Ltd. [1994] 4 NWLR (Pt. 348) 1 @ 19; [1994] 6 SCNJ. He argued that where there is a variation between the indorsed reliefs in the general form of complaint and the statement of facts, the reliefs in the statement of facts supercede. He submitted that all the listed particulars contained in the general form of complaint and the declaratory reliefs included therein are deemed abandoned by the claimant referring to A-G Federation v A-G Abia State & Ors [2002] FWLR (Pt. 102) 1 SC @ 164. He submitted that the claimant now seeks different reliefs in the statement of facts which he must plead with particular details and thereafter establish by evidence. He urged the court to confine the consideration of the claimant’s case on the claims in the statement of facts. Counsel submitted that the burden of proving his entitlements to the reliefs for the sum of N1,720,000 being money owed as unpaid salaries and allowances rest solely with the claimant as he who asserts must prove citing Mr. Melford Agala & Ors v Chief Benjamin Okusin & Ors [2010] 10 NWLR (Pt. 1202) 451 at 434, Sections 131(2), 132, and 133 (1) Evidence Act 2011. He submitted that the claimant has not proved how he arrived at the sum he was allegedly being owed and interest since they are in the category of special damages which have to be strictly proved citing Union Bank of Nigeria Plc v Alhaji Adams Ajabule & Anor [2011] 18 NWLR (Pt. 1278) 152. He submitted that the court should not allow evidence to be given in respect of facts not pleaded citing Mogaji Lasisi Atanda & Ors v Salami Ajani & Ors [1989] 3 NWLR (Pt. 111) 511. Learned counsel submitted that the claimant did not comply with the terms of the employment contract by giving three months notice and urged the court to “find that claimant’s refusal to comply with the modus agreed for bringing his master-servant relationship to an end, notwithstanding his perceived maltreatment, robs him of claims of entitlement for it is the constant truth that two wrongs do not make a right” citing Hon. Commissioner for Education v Amadi [2013] 2-3 SC (Pt. II) 40. He then urged the court to refuse the claimant’s reliefs and to dismiss this suit. Learned counsel to the claimant raised three issues for determination as follows: 1. Whether the claimant is entitled to his salary, salary increase and allowance arrears. 2. Whether the purported technical suspension is in accordance with the terms and conditions of his employment and the law. 3. Whether withholding the claimant’s salary and allowance is lawful. She submitted that the contract of employment guides the relationship between the employee and employer and that parties are bound by the employment contract; the terms of which may be found in more than a single document. She cited Odeh v Asaba Textile Mills Plc [2004] All FWLR (Pt. 229), 2163 at 2173, Paul Okoro v Ogara & Ors [1964] 8 ENLR 9, Abdulahi Baba v Nigerian Civil Aviation Training Centre, Zaria [1991] 5 NWLR (Pt. 192) 388, Ondo State University v Folayan [1994] 7 NWLR (Pt. 354). It was her further submission that while it is a disruption of an employer’s business to fetter his right to discipline his servant, an employee should not be kept under suspension indefinitely without initiating and concluding disciplinary proceedings against him as this puts him under undue hardship and makes it impossible for him to seek some other employment referring to Shell Petroleum Development Company Nigeria limited v Omu [1998] 9 NWLR (Pt. 567) 672, Gbadegesin v Wema Bank Plc [2012] 28 NLLR (Pt. 80) 274 NIC. She submitted that on the evidence, the contract of employment did not give the defendant the power to suspend and that even where the power to suspend is given it must be exercised in compliance with the terms of the contract and the rules of natural justice must be observed citing Mobil Producing Unlimited & Anor v Udo Tom Udo [2008] LPELR 8440 CA, Mandah v Olukoya and Ors [2014] 40 NLLR (Pt. 124) 537 NIC, Sunday Emeje v National Institute for Pharmaceutical Research and Development [2010] LPELR - 8986 CA, Yussuf v V.O.N Limited Suit No. CA/L/351190; [1996] 7 NWLR (Pt. 463) 746 at 755. Learned counsel submitted that the claimant has established that the defendant owes him outstanding salaries and allowances. She then urged the court to grant judgement to the claimant. I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited. The issues for determination are: (i) whether the claimant carried out his duties in line with the defendant’s policies; (ii) whether the defendant can refuse to accept the claimant’s resignation; (iii) whether on the pleadings and evidence, the claimant ought to be entitled to the reliefs sought. I will begin with the preliminary issue raised by defence counsel that the endorsement on the complaint differs from the claims in the statement of facts and as such the endorsement on the complaint is deemed abandoned and the claims in the statement of facts is to be adjudicated upon. Order 3 Rule 2 (1) of the Rules of this Court 2007 provides as follows: “The Complaint shall state specifically the relief or reliefs claimed either singly or in the alternative and it shall not be necessary to ask for general or other relief which may be given as the Court may think just.” The Complaint has stated all the reliefs sought. The claimant has pleaded in paragraphs 4, 5, 6, 7, 8, 9 of the statement of facts the relevant facts and particulars and has established the cause of action with a general claim for interest. I hold that this is in compliance with the Rules of Court and the law on pleadings. The originating processes were filed together and I find no variance in the reliefs sought. The claimant has placed before the court his contract of employment, relevant service documents and his letter of resignation. These documents are not in dispute. In resolving the 1st issue for determination, the claimant in his pleadings made the following averments: 13. The claimant avers that between 2005 and January 2011 many of the credit customers were supplied flour in line with relevant company’s policies and duly approved by relevant authorities but some of these customers defaulted in their payments for the goods supplied to them. Attached are details of the credit customers’ indebtedness to the company. 14. The claimant states that efforts were made by him, the Credit Control Manager and the General Manager Sales to recover the out-standings but the customers did not pay in bulk. 15. The claimant avers that in August 2011, he forwarded a proposal on how he believes the monies could be recovered to the Chairman - Chief Akindele, which was that the debtors should be referred to the Company Lawyer for recovery actions. The claimant further led evidence in support of the pleadings. These averments were admitted by the defendant in paragraph 1 of the statement of defence. The law is settled that facts admitted need no further proof and there is no burden incumbent upon a party to prove facts which have been admitted by the adversary party. See Tijani Jolasun v. Napoleon Bamgboye [2010] 18 NWLR (Pt 1225) 285. I find that the claimant carried out his duties in line with the defendant’s laid down policies and I so hold. I also find from the evidence that the defendant engaged the services of Olumide Sofowora’s Chambers to recover the outstanding debts as proposed by the claimant and the Chambers had taken steps in this regard. The claimant has complained that his salary was reviewed upwards with effect from 1st July 2010 to N1,172,085.34 as contained in exhibit C8 but that this was never implemented. This fact has been established by exhibit C3 the claimant’s pay slip for the month of July 2011 which does not reflect the upward review. The claimant in his evidence also stated that from the 1st August 2011 up till the date of his resignation, the defendant refused to pay him his salary and allowances. The defendant never disputed the sums being claimed by the claimant in its statement of defence neither did it lead evidence to the contrary. DW under cross examination corroborated the claimant’s evidence. His evidence is reproduced as follows: Yes, there was a salary review. The claimant did not take a loan from the company. The company short paid him for some months and for some other months did not pay him as a result of technical suspension. The claimant was not written that he was on technical suspension. I do not know what the company means by technical suspension. There is nothing in exhibit C1 that talks about technical suspension. We do not have a company operations manual. There is no evidence before me that the claimant breached any of the defendant’s policies or procedures that would result in disciplinary measures being meted out against him in the form of a suspension. Furthermore, there is no evidence before me that he was queried or informed in writing that he was on technical suspension. I therefore do not find any justification for the said technical suspension. I find that the claimant’s salary and allowances were wrongfully withheld and denied him as a result of the technical suspension that does not form part of his employment contract. The defendant’s action was unlawful. The claimant is entitled to be paid his salary and allowances in full. I hold that the claimant on the evidence adduced has proved that he is entitled to the sum of N1,720,000.00 (One Million, Seven Hundred and Twenty Thousand Naira) being his outstanding salary and allowances as endorsed on the complaint and pleaded. I hereby order the defendant to pay the claimant this sum. The defendant has admitted in its pleadings and witness statement that it has not paid the claimant his terminal benefits because it has not accepted his resignation. The claimant in his evidence stated that it was because the defendant refused to pay his salary and allowances from 1st August 2011 he was forced to put in his resignation letter as contained in exhibits C10 and C11. The position of the law is that a notice of resignation takes effect not from the date of the letter or acceptance but from the date on which the letter is received by the employer. See WAEC v Oshinebo [2006] 12 NWLR (Pt 994) 258. In other words, once an employee tenders his resignation, the employer has no option but to accept as the resignation is not subject to rejection. See Adebayo Joseph & Ors v Kwara State Polytecnic & Ors [3013] LPELR- 21398. The rationale being that the Court will not foist an unwilling employee on a willing employer and vice versa. Idoniboye-Obu v NNPC [2003] 1 SCNJ 87.See Adefemi v Abegunde [2004] 15 NWLR (Pt 895) 1, Benson v Onitiri [1960] NSCC 52 at 62. The defendant is clearly in error to have withheld the claimant’s terminal benefits on the ground that it did not accept his resignation after it received the resignation letter and its properties on the 23rd February 2012. Learned counsel to the defendant in final address has submitted that the claimant breached the terms of the employment contract by not giving three months notice of his resignation. This is the first time this issue is being raised. This fact was not pleaded by the defendant to enable the claimant reply to it neither was it made an issue during the trial. The law is settled that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded. See Union Bank of Nigeria Plc v Alhaji Adams Ajabule & Anor [2011] 18 NWLR (Pt. 1278) 152, Mogaji Lasisi Atanda & Ors v Salami Ajani & Ors [1989] 3 NWLR (Pt. 111) 511. Furthermore, counsel cannot give evidence on behalf of a party at final address stage. This issue will therefore not be considered in this judgement. The claimant has asked for 5% interest till final liquidation of the indebtedness. By the provisions of Order 21 Rule 4 of the Rules of this Court, interest is to be granted at a rate not less that 10% per annum. For all the reasons given above, I hereby declare and make the following orders: 1. The non-payment of the claimant’s salaries and allowances from 1st August 2011 till his resignation is unlawful. 2. The claimant is entitled to be paid his outstanding salaries, allowances and terminal benefits. 3. The defendant is to pay the claimant the sum of NI,720,000.00 being outstanding salaries and allowances together with 10% interest per annum on this sum from 30th May 2013 till the date of this judgement. 4. This sum is to be paid within 30 days. Thereafter, 10% interest per annum on the judgement sum until it is fully liquidated. 5. Costs of N50,000.00 is to be paid by the defendant to the claimant. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae