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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI.O.O DATED 2ND OF FEBRUARY, 2014 SUIT NO: NICN/LA/51/2013 BETWEEN OLUMIDE OGUNDAPO - CLAIMANT AND BI- COURTNEY AVIATION SERVICES LTD -DEFENDANT REPRESENTION- Dada Akingbade with him is Abosede Akisola and Orji Uka for the claimant Toyin Shuaib with him is Y. Galadima, O.M. Lawal-Daki, Eniola Abimbola. and O. Iwajomo Mrs. JUDGMENT The claimant’s case is that by a letter dated 22nd of January, 2007 he was employed by Resort International Limited a subsidiary of the defendant as the Deputy Head of information Technology Department and his employment was confirmed on the 22nd of October, 2008. By a letter dated 29th December, 2009 and effective from January 2010, he was transferred to the defendant with his terms of condition remaining the same as it was in his former employ (Resort International Ltd). This was accepted by the defendant through a letter dated 29th December, 2009 with his terms and conditions of service unchanged. He stated further that prior to his transfer to the defendant; he was entitled to a quarterly performance bonus. That he was paid from the 1st to 3rd quarter in 2009 but when he resumed with the defendant, he began to ask for his performance bonus. He was elevated to the position of the Head, IT and Facilities Management on the 18th March, 2011. That he was assured by the defendant that he would be paid his performance bonus, but was not actually paid until he was elevated to a new position of Senior Manager in June 2011with new terms and conditions. He stated that on the 13th of June, 2011 he resigned his appointment with the defendant and was cleared without any outstanding debt. That since his resignation he has been demanding for his performance bonus but the defendant failed to reply his demand letters or pay his bonus. It is in the light of this that claimant took out a complaint against the defendant on the 7th February, 2013, praying for these reliefs- 1. A Declaration that the non payment of the claimants performance bonus is a flagrant violation of staff conditions of service by the defendant. 2. AN ORDER directing the defendant to pay the claimant the performance bonus due from October 2009- May 2011 the total sum of Two Million Seven Hundred and Fifty Thousand Only. (N 2, 750,000). The claimant during trial testified for himself and tendered documents which were admitted and marked as Exhibits OO1-OO25. He testified that the defendant is owing him a performance bonus while in the course of his employment. That the payment of performance bonus is clearly stated in his employment letter from Resort International Limited but he does not know if same is in staff handbook. He admitted that his promotion letter did not mention performance bonus. He stated that he made several demands vide email for his performance bonus but all to no avail. The defendant on the other hand denies the averment of the claimant that he is entitle to performance bonus from its company. But admitted that it is part of the employment terms of its sister company Resort International Limited letter dated 22nd January, 2007 that certain employees after undergoing appraisal procedure and are found to have attained certain performance or agreed target with the Head of Risk Management and Head of Performance Management were entitled to a performance bonus package every quarter of the year. That the payment for 2009 was cancelled in the last quarter of 2009 due to the fact that the company was under performing. That the alleged payment made to one Mr Raphael Uchegbu was made in error and upon realization the chairman convened a preliminary hearing on the 18th of June, 2012 to investigate. That it was found out that Mr. Uchegbu had obtained the chairman’s approval to be paid his performance bonus to be paid by misrepresenting to the chairman that he had obtained the EMC’S requisite approval. That it made Mr. Uchegbu to refund that money. That the claimant is not entitled to any performance bonus in the sum of N2,750,000. It stressed that it never paid any quarterly performance bonus to the claimant between January 2008 – 3rd quarter in 2009 and the claimant was aware of its decision to stop payment of performance bonus. The defendant went on that as the time it employed the claimant, it had already stopped paying the bonus. That upon receiving the claimant’s resignation letter, it prepared his entitlement packages. It urged the court to dismiss the claimant’s claim as is frivolous. The defendant during trial testified through one Oladosu Sanusi and Raphael Uchegbu. They tendered in evidence documents which were admitted and marked Exhibits S.O, RU1-RU2. DW1 testified that communication is done vide email in the defendant’s office but where it’s done verbally all parties involved in the transactions must be present and aware. He admitted to be privy to the contract of the claimant. That the performance target is between the supervisor and the claimant as it is the supervisors that set target and it is based on the schedule of duty of an employee and it is then forwarded to the Human Resources. He denied that some staff were paid performance bonus as everyone including the claimant was informed that same was cancelled for the year 2009. He stated that promotion of a staff is usually an outcome of a performance appraisal. He admitted that successful performance is not necessary for given performance bonus. That he was not aware that the claimant was paid his performance bonus in 2009. DW2 on his part stated that the defendant had stopped payment of performance bonus since 2009 and that he wrongly obtained approval for payment of the performance bonus based on his misrepresentation of the EMC to the Chairman of the defendant’s company. He wrote a memo to the defendant's CEO after almost 8 months of the preliminary hearing that informed him that the performance bonus was paid to him in error and promised to pay back instalmentally. He started paying on 17th April, 2013, two months after claimant had filed this suit. He has soo far refunded N2,000,000 with an outstanding balance of N2,428,571.00. The claimant on the 18th of April, filed a reply to the defendant’s statement of defence where he stated that he was paid his quarterly bonus, no target was set as a condition precedent to receive quarterly bonus and at no time was the performance bonus cancelled as some staff were still paid their performance bonus from 1st of October, 2009 to April, 2013. He averred that he had consistently demanded for his performance allowance. That the defendant has no defence to the claims. The defendant at the close of trial filed its final written address on the 24th of July, 2015, in it a sole issue was distilled for the court’s determination; 1. Whether the claimant fulfilled the conditions precedent to entitle him to payment of performance bonus from October, 2009 to May, 2011. Counsel submitted that Exhibit OO1, states clearly that payment of performance bonus subject to; agreeing to set performance targets with Head of Information Technology and Head of performance Management and meeting the agreed performance target. He stated that the contention is whether the claimant met any set target to entitle him to payment of performance bonus. He submitted that claimant averred that he did meet all target set but did not place evidence to prove targets allegedly set by the defendant for each quarter which he purportedly met. He posited that the law is trite that he who asserts the affirmative has the burden of proving that fact. He cited the case of JOLASUN V BAMGBOYE [2010] 18 NWLR (PT 1225) 285. He also posited that the defendant adequately led evidence to show that no target were set which the claimant could have achieved to have entitled him to payment of performance bonus as same has been cancelled at an Executive Management Committee meeting of the defendant because the defendant was financially underperforming and this the claimant was well aware of and which made him not to request for same throughout his period at the defendant’s company . Counsel urged the court to hold that the claimant has not adequately discharged the burden of proof that rests on him. Counsel submitted that the documentary evidence before the court and the claimant’s testimony confirm that no one was paid performance bonus and that what the claimant was paid by Resort International Limited in the last quarter of 2009 and early January, 2010 were arrears owed by the said Resort International Limited prior to his transfer to the defendant. That though the claimant claims that one Mr. Uchegbu was paid “ performance bonus” after same had been cancelled, there is evidence to show that the said payment was approved and made in error and same had been refunded to the defendant. He urged the court to hold that the claimant’s entitlement to performance bonus has been extinguished by the defendant’s cancellation to same to which claimant is in the know and his request for same upon resignation is nothing more than an afterthought . He submitted that it is claimant claim that the defendant breached the staff conditions of service but failed to substantiate same to support his claim, thus his assertion ought to fail. Counsel urged the court to so hold. The claimant on the 21st of September, 2015 filed his final written address wherein he framed a sole issue for the court’s determination; ''Whether the claimant has sufficiently proved his claims to entitle him to the payment of performance bonus from October 2009 to May, 2011''. Learned claimant's counsel submitted that after the claimant had joined issues with the defendant with its reply, the defendant in a quagmire and in a bid to escape asked the DW2 to go and start paying back into the company’s account vide a teller dated 15th of May, 2014 and 5th and 6th of June, 2013 after it had been served the claimant’s reply to statement of defence. It thereafter amended it statement of defence dated 29th of October 2013 alleging therein that the money paid to Raphael Uchegbu was in error. That the claimant vide Exhibit OO1and OO4 has proven that he is entitled to performance bonus. Counsel also posited that claimant led evidence that during the previous payment, target was not incidental to payment rather the appraisal was done at the time of payment. He stated that the claimant having sufficiently substantiated his claims and discharged the burden thereon, is thus entitled to his performance bonus. Counsel submitted further that under oath DW2 was full of contradictions in that in his statement on oath he averred that the performance bonus was paid to him in error but under cross examination, he stated that the performance bonus was not paid but he was paid for a special assignment which he has been repaying back. He cited the case of PANACHE COMMUNICATIONS LTD V AIKHOMU [1994] 2 NWLR (PT 327) 420 where the court held “that where a witness gives evidence which contradicts its earlier evidence both evidence should be disregarded and ignored”. He stated that the DW2 admitted that the CEO is a member of the Executive Management that cancelled the performance bonus yet he also approved the payment of it three years after. That the DW2 also under oath, stated that he sent his request for performance bonus to the Chief Financial Officer yet it was approved by the chairman in error that how the performance bonus request by pass the Chief Financial Officer to the chairman is still unanswered by the defendant. Counsel submitted that the claimant has proved his case and is entitled to the payment of his performance bonus from October 2009- May, 2011. He urged the court to so hold. The defendant on the 7th of October, 2015 filed its reply on points of law where it submitted that for the claimant to succeed on his action, the court must be satisfied of all the following; i. There is a legal basis for the claim for performance bonus; ii. The conditions attached to the claims for the performance bonus was fulfilled and iii. Cancellation of the performance bonus by the defendant was refuted. Continuing counsel posited that it is not in dispute that Exhibit OO1 is the basis of the claimant’s claim for performance bonus but the point of divergence is whether the claimant meets the conditions precedent to earn the performance bonus and has proved same. In reply to the final submission made by the claimant with regards to its amended statement of defence, counsel submitted that it is the law that parties are bound by their agreement and that once pleading is amended the original pleading no longer has any effect in the proceedings. He cited the case of UZODINMA V IZUNASO (NO 2) [2011] 17 NWLR (PT 1275) 30 AT 88 PARA C-D. He submitted that a careful look at the performance bonus will reveal that the bonus is a conditional incentive and the argument that no target was set by the defendant cannot in any way assist the claimant’s claims. In response to the claimant submission that Exhibit RU2 was hurriedly prepared in anticipation of the instant suit, counsel posited that the document having been admitted in evidence at the trial, it is belated to attempt to raise any such argument in its final submission. That it is settled law that the arguments in the written address of counsel no matter how eloquent do not constitute evidence in written argument. He cited the case of EYA V OLOPADE [2011] 11 NWLR (PT. 1259) 505; INDEPENDENT NATIONAL ELECTORAL COMMISSION V NYAKO [2011] 12 NWLR (PT 1262)439. He stated that the claimant has failed to show that he has observed the condition precedent in Exhibit OO1 for the payment of performance bonus. He urged the court to so hold. I have carefully considered the processes filed in this case, I observed the demeanor of the three witnesses, documents tendered, the submission of counsel to both parties and the authorities cited in support of their respective arguments, it is in the light of all these that I frame this sole issue for the just determination of this suit; which is Whether or not the claimant has proven his claims for performance bonus to be entitled to same. The main crux of this suit is the claim of the claimant for payment of the N2,750,000.00 as performance bonus from October 2009- May 2011. It is a notorious position of the law that parties are bound by their contract and the court cannot rewrite or otherwise construe it if the terms are clear. See ALADE V. ALIC (Nig.) LTD. [2010] 19 NWLR (Pt. 1226) 111.SC, LARMIE V. DATA PROCESSING MAINTENANCE & SERVICES (D.P.M.) LTD. (2005) 12 SC (PT. 1) 93 AT 103. It is the age long principle of law also that he who asserts must prove. The claimant's main grouse is that he was transferred from the defendant's subsidiary company Resort International Ltd to the defendant's company on the 29th December, 2009 effectively in January 2010. According to him, his contract of service remains the same as it was in the former company. He stressed that he was paid his quarterly bonus for the 1st to the 3rd quarter in Resort international Ltd remaining the 4th quarter of 2009 which was not given to him. He stated further that he made several demands for it at the defendant's company but was not given to him. In proof of his claims, claimant tendered Exhibit OO1 his letter of employment and Exhibits OO3 and OO4, letter of transfer and his Acceptance letter into Bi-Courtney Aviation services limited dated 29th of December, 2009. It is not in contention that exhibit OO1 represents his contract of employment, thus it is the bedrock upon which his case would be found. The defendant on the other hand denies the above position of the claimant. But admitted that it was part of the employment terms of its subsidiary company Resort International Limited and contends that certain employees after undergoing appraisal procedure and are found to have attained certain performance or agreed target with the Head of Risk Management and Head of Performance Management were entitled to a performance bonus package every quarter of the year. That the payment for 2009 was cancelled in the last quarter of 2009 due to the fact that the company was under performing. It is not in doubt that claimant was an employee of the defendant upon his transfer from the subsidiary of the defendant Resort International Ltd. A careful perusal of Exhibit OO1 on record, which is the employment letter of the claimant, shows that the claimant is entitle to a quarterly performance bonus of N1,650,000.00. For ease of reference I reproduce Exhibit OO1; RESORT INTERNATIONAL LIMITED (RC. 186242) January, 22nd 2007 Mr. Olumide Ogundapo Plot 24 Rosanwo Street, Aguda Surulere, Lagos. Dear Mr. Olumide Ogundapo OFFER OF EMPLOYMENT With reference to your application and recent interview with our organization Resort International Limited, we found you suitable for the position you were considered for and pleased to offer you employment as the Deputy Head of our Information Technology Department- Manager Level 2 on the following terms and conditions: Base Compensation: You are entitled to annual gross compensation of N6,600,000 per annum (Six Million , Six Hundred Thousand Naira Only) before taxes. This compensation will be subject to necessary statutory deductions such as PAYE, pension Scheme, etc. A detailed breakdown of this offer is as shown below; Components N Basic Salary N5,416056.34 Housing Allowance N150,000.00 Transport Allowance N20,000.00 Lunch Allowance N 5,000 Entertainment Allowance N10,000.00 Utility Allowance N6,000.00 Total pay (Monthly Installment before tax &penison) N5,607,056.34 Leave Allowance N541,605.63 13th Month N451,338.03 Gross Pay N6,600,000.00 Performance Bonus Your performance bonus component of your package is N1,650,000(One Million Six Hundred and Fifty Thousand Naira only) payable to you quarterly based on clearly agreed performance targets with the Head of Information Technology and Head of Performance Management. Kindly ensure that your performance score card is discussed and signed off within two weeks of resumption” …. Also paragraph 3 of Exhibit OO4, which is the letter evincing his transfer and acceptance to the defendant's company, states amongst other things thus; '' Your remuneration and associated employment cost will be borne by Bi-Courtney Aviation Services Limited (BASL) effective January 2010. all other terms and conditions of your employment remain unchanged with particular reference to your Resort International Limited (RIL) offer of employment letter dated 22nd January, 2007” It is obvious from the above highlighted contents of both the claimant's offer of employment and transfer/acceptance letters that the claimant is entitled to a quarterly performance bonus in the sum of N1,650,000.00. It is also plain in exhibit OO4 that the defendant accepted to bear all the cost of claimant's salary and allowances effectively from January 2010, being the effective date of his transfer to the defendant. The defendant on its part is not denying the payment of performance bonus to the claimant and other staff, its contention however, is that the performance bonus was not automatic but contingent on an employee meeting set performance target and only employees who met the performance targets agreed with their supervisors were paid any performance bonus. A careful perusal of the record before the court reveals no evidence in support of the defendant’s aversion and no document to substantiate its position that the performance target set by the defendant was not met by the claimant. It is the law that no action is determined on the parties’ pleadings only, pleaded facts must be supported by credible evidence before they could be founded upon, except admitted facts that need no further proof. SEE ARAB CHEM LTD V PHARM RALPH OWODUENYI [2013] 10 NWLR (PT 1361) P 89 @103. I find that the claimant by exhibits OO1, OO3 and OO4 has proven that he is entitled to performance bonus. The only condition precedent to the payment of the performance bonus by exhibit OO1 is that ''clearly agreed targets with the Head of information Technology and Head of Performance Management''. Claimant complied with this requirement by exhibit OO19, i.e. the Bi-Courtney Aviation Services Ltd, Employee Performance Appraisal Form: Management Staff Year 2010. It is discovered by a thorough reading of same that the claimant's overall performance was 82.60%. and his overall performance grade was grade B+. It is germane to reproduce the comments made by his supervisor/appraisal thus- 1. Identified Strength of the employee ''Olumide demonstrated a high degree of dedication and responsibility in the discharge of his duties. He used his very good leadership qualities to deliver the IT agenda for the business, providing excellent services to all airline customers in the terminal. 4. Appraiser's overall comments on employee's performance and general attitude to work. ''Olumide demonstrated the capacity to not only lead he IT team but for higher/additional responsibility. He is focused and displays a high sense of responsibility. He is strongly recommended for promotion. The above captured comments made by the claimant supervisor/appraiser shows the outstanding performance of the claimant and same speaks for itself( res ipsa loquitur). I am not surprised that the claimant was promoted in June, 2011 subsequent to his appraisal as shown by exhibit OO19. By this exhibit the claimant has fulfilled his own part of the deal, leaving the defendant to pay the performance bonus which as stated above it agreed to pay. That agreement is binding on both parties and it is too late in the day to renege or resile from it. See the decision of the court of appeal in BALA V. SAKYENU [2013] LPELR, 21409; where Mbaba, JCA enunciated the age long position of the court thus- "Where parties have entered into a Contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement, just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctify of contract or agreement." (Pp. 19-20, paras. F-B). See also ARJAY v. A.M.S. LTD [2003] 7 NWLR (Pt. 820) 577. Taking a cue from the above two authorities, I find that the defendant is bound by the terms of its agreement with the claimant as per exhibit OO1 as regards payment of quarterly performance bonus to the claimant and therefore estopped from resiling from same. In fact DW1 stated that a staff successful performance is not tied to payment of performance bonus and equally confirmed that by exhibit OO1, claimant is to be paid quarterly performance bonus. DW1 also agreed with the claimant that a non performing staff would be shown the way out of the company. It is in the light of all these and the evidence on record that I find that claimant has proven that he is entitled to be paid a quarterly performance bonus by the defendant. Now, the burden of proof which rests on the claimant has shifted to the defendant who alleges that the performance bonus is cancelled to prove same. The defendant in doing so, called DW2 who as it is obvious on record was paid performance bonus in May, 2012. It is his testimony on oath that he was paid in error, hence he has started the refund of same. As at 24th of June, 2015 he has refunded the sum of N2,000,000 out of N4,428,571.00 he collected as performance bonus. DW2 tendered documents which were admitted as RU1 and RU2 respectively. It has become plain from exhibit RU1 that the defendant was not sure of the date it allegedly cancelled payment of the performance bonus. I say so in view of the letter dated 14/6/12, a memo from one Dudi to the Executive Management Committee, a committee of the defendant, stating that payment of performance bonus was cancelled in 2007 by the defendant, whilst by another memo written by DW2 to CEO dated 17th April, 2013 he stated that he realised that performance bonus has been cancelled since 2009. Meanwhile he wrote in the memo dated 4th February, 2013 that the performance bonus was approved by the Chairman in 2012, this according to DW2 was shown to the VC/ CEO Chairman of EMC and he equally agreed to the payment before it was paid to him by the defendant's finance department. DW2 admitted that the CEO is a member of the Executive Management that cancelled the performance bonus yet he also approved the payment of it three years after. DW2 also under oath, stated that he sent his request for performance bonus to the Chief Financial Officer yet it was approved by the chairman in error, how the performance bonus request by passed the Chief Financial Officer to the chairman is still unanswered by the defendant. He also tendered Transfer Receipts and various deposit slips from Zenith Bank. I took the liberty of going over all these to show that the defendant in its bid to proof that it has cancelled the performance bonus and in order for it to cover its tracks elicited these documents which in my humble view has failed to substantiate its contention and are all sham. It is also the defence of the defendant that the payment of performance bonus was cancelled in the last quarter of 2009 due to the fact that the company was under performing. A cursory look at each document shows that there is nothing on record to prove that the defendant as it wants the court to believe actually stopped or cancelled the quarterly payment of the performance bonus, all documents before the court tends to show that the bonus was paid until 2012 when according to the DW2 it was discovered by the defendant that he misrepresented to the Chairman with regards to his performance bonus which was falsely paid to him. This averment by the DW2 is not believed by the court as Exhibit OO20 Internal Memo dated 4th of May, 2012 a letter addressed to the Chief Financial Officer requesting him to approve DW2 performance benefit in line with the recommendation of the Executive Management Committee of BASL and as attached on the schedule says otherwise from his testimony on oath. The evidence of DW1, Dudi's memo dated 14th June, 2012 could not even help the case of the defendant, rather it succeeded in revealing to the court that the defendant issued this documents to deceive the court into believing its assertion that it cancelled the performance bonus since 2009. It is obvious that getting to proof the defendant's defence has been so tedious for it, hence all the inconsistencies in the evidence of its two witnesses and documents prepared for that purpose as identified supra. It is the law of common place that for a term of contract of employment to be waived, both parties to the contract must of a necessity agree to the waiver/ amendment or removal/cancellation of any part of the contract. A party cannot single handedly cancel a term of contract of agreement. The step taken by the defendant without the consent and or agreement of the claimant is wrongful. The Court in EKUNOLA V. A.C.B.N [2006] 14 NWLR (PT. 1000) 292; held that where benefits have accrued under a contract of employment, any clause in the condition of service or attempt by the adverse party to take away that benefit must be strictly construed. I need to reiterate that there is no single document on record in prove of the cancellation of payment of performance bonus by the defendant as held supra. Not even the minutes of meeting of the so called EMC or an internal memo from the Chairman or whoever has the power to so do. As if that is not enough the defendant has equally failed to substantiate its claim that the performance bonus was cancelled by the defendant's company due to under performance of the defendant. The defendant's averment at paragraph 4 of its 1st amended statement of defence was not given flesh to with any evidence. The defendant did not give any evidence in prove of this assertion. It is thus deemed abandoned. As the law is long settled that facts pleaded without evidence is deemed abandoned and same is to be discountenanced. It is in the light of all the above reasoning that I find that the defendant has woefully failed to substantiate its assertion that it cancelled the payment of performance bonus since 2009. I so find and hold. Claimant as evinced on record has severally demanded for the payment of his 2009-2011 performance bonus from the defendant all to no avail. See exhibits OO11, OO14, OO15, OO16, and OO17 , i.e. letters of demand written by the claimant since 2011 to December, 2012. This shows a deliberate attempt by the defendant to withhold the earnings of the claimant having worked for the period claimed. It is the law that payment of wages/salary and allowances is an essential responsibility of an employer to its employee, payment of which is to be made as at when due and failure to do so gives the employee the right of action to recover same. It is in that regard that I find and hold that the claimant has proven his claim and the non-payment of the claimant’s performance bonus by the defendant is wrongful. Consequent upon which I find and hold that the claimant is entitled to his performance bonus from October, 2009 to May, 2011 in the sum of N2, 750,000.00. This is to be paid by the defendant to the claimant within 14 days from today, failing which 21% interest is to be paid on the judgment sum. I award the cost of N50,000.00 to the claimant. Judgment is entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE