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REPRESENTATION: Claimant present. Respondent absent. Comas Okpara for the Defendant. Claimant counsel absent. JUDGMENT This suit was commenced by a Complaint filed on the 30th of September 2014 endorsed with the following claims: Ten Million Naira (₦10,000,000) against the defendant for fraudulent misrepresentation of terms and status of employment of the Claimant. Ten Million Naira (₦10,000,000) against the defendant being the sum total of the payoff wages due to the Claimant had it been that the Claimant was put at his rightful position upon promotion(s) before his sudden retirement. One Million Naira (₦1,000,000) being compensation to the Claimant for being compelled by the defendant being the cost of litigation. In the Statement of Facts, the Claimant averred that he was employed via a letter dated 12th February 2007 and with a gross salary of Seven Hundred and Twenty Thousand Naira (₦720,000). That by virtue of the said letter, he was placed on 3months probation but was never told whether he has been confirmed or not. That the subsequent retention of the Claimant after the three months probationary period had implied by conduct that the Claimant had been confirmed as a permanent staff. The Claimant also averred that the employment letter was silent on the issue of the basis of assessment of pay off package for the Claimant in the event of termination of appointment. That the defendant did not at any time inform him of the basis of assessment of his retirement benefits or pay off package in case of his retirement or sudden termination of his contract. At paragraph 12, Clamant averred that he received a letter on the 13th June, 2014 from the defendant titled “Completion of Projectâ€. The said letter was dated 26th May 2014 and it informed the Claimant of the termination of his employment with the defendant with effect from 30th June, 2014. The Claimant also averred that he had worked for the defendant for 7 years without any promotion. In paragraph 14, it was the averment of the Claimant that the content of the said Exhibit C3 (completion of Project) letter revealed that the defendant had actually regarded the Claimant as an Adhoc Staff throughout the seven years that the Claimant worked for the defendant. That a further proof of this misrepresentation of the Claimant’s employment status was revealed in Colum 4 of a document titled 2014 Annual Leave for Technical Staff emanating from the defendant. The Claimant maintained that upon termination of his employment, the defendant undervalued the Claimant’s total retirement benefit to the paltry sum of Four Hundred and Twelve Thousand, Three Hundred and Forty Nine Naira Forty One Kobo (₦412,349.41). That he rejected this offer and sought for the basis of assessment and based on this, the defendant quickly furnished the Claimant with a sheet of paper which was entirely foreign to the Contract of employment. That he rejected the said basis of assessment and made it clear to the defendant that it was not contractual and cannot represent the intention of the parties. That the defendant then added an additional sum of Ninety Three Thousand, Nine Hundred and Fourteen Thousand Naira (₦93,914) to the initial offer making the total pay off package Five Hundred and Six Thousand Naira (₦506,000) but which he also rejected. The Claimant also averred that the defendant fraudulently concealed the fact that the employment of the Claimant was to be devoid of promotion and since this constituted a special term of the contract, it ought to be stated in the employment letter. In paragraph 24, the Claimant averred that the sum total of the defendants’ conduct during and after the said contract of employment reveals a fraudulent misrepresentation and concealment of vital facts and that these are contrary to law, equity, good conscience and public policy. The Defendant filed a Statement of Defence where in it admitted paragraphs 1, 2, 3 and 4 of the Claimants’ Statement of Facts and denied Para 5 stating that the Claimant did not and was not compelled to work on Sundays. Paragraphs 6, 7 and 8 was admitted while Para 9 was denied on the basis that the issue of termination of appointment is well spelt out in the Claimant’s offer of appointment and that the Claimant was offered a total sum of ₦506,264.12 as termination benefit, a sum in excess of his one month salary which includes the Claimant’s indemnities, end of the year benefits, annual leave allowance and special bonus. The Defendant also denied Para 10 and averred that the issue of termination and payoff or retirement benefit is as contained in the Claimant’s offer of appointment and that the Claimants retirement benefits is with the pension administrators. Paragraph 11 was also denied and in the averments, it was stated that the issue of promotion and condition for promotion is a management decision and that staff are well informed when necessary and that promotion is based on vacancy. That though the Claimant was not formally promoted, he continued to enjoy salary increase from ₦60,000.00 per month in 2007 to ₦93,914.73 at the time of termination of his appointment. Paragraph 12 and 13 was admitted while 14 and 15 were denied. Paragraph 16 was also denied and it was averred that there is no issue of retirement in the Claimants’ offer of appointment and that the sum of ₦506,264.12 is the termination benefit of the Claimant. The Defendant always maintained that the retirement benefits of the Claimant was also said to be with the pension administrators. In admitting Para. 17, the Defendant agreed that the Claimant rejected the offer of ₦506,264.12 but maintained that the Claimant never requested for any agreement or basis of assessment of his termination benefit. The Defendant also admitted Para 18 and denied 19, 20, 21 and averred that the Claimant never questioned his offer of employment neither did he raise the issues of promotion while in the employ of the Defendant. Para 22 was denied and it was averred that the Claimants conditions of Service was stated clearly in the offer of appointment which he accepted. Paragraphs 23 and 24 was also denied and the Defendant maintained that the Claimant’s appointment was terminated because of serious financial constraint. The Defendant filed a witness Statement on Oath along with documents to be relied on at the hearing. Indeed, after the hearing where the Claimant testified as CW1 and was cross examined. In like manner the Defendant called (1) one witness who testified and tendered exhibits and was cross examined. At the close of the hearing parties filed written addresses. In the Claimant Written Address, issues were formulated for determination. Issue one is: “What was the status of the Claimant in the eyes and mind of the Defendant at the time of the termination of his employment by the Defendant and of what material consequence was this status of the Claimant on the Claimant? The Claimants’ counsel submitted that from exhibit A (Offer of Appointment) it is clear that the intention of the parties is that the Claimant was being employed as a permanent or full staff in the company though he was to be on probation for 3 months after which he will be confirmed depending on his dedication and performance. That the use of the words “after which you will be confirmed†clearly shows that the confirmation ought to be formal and written confirmation. Counsel then urged the Court to apply the “contra proferentum†rule in interpreting that provision and citing the case of MARBURY V. MADISON 1 cranch 137 (1803) maintained that in applying this rule, the Court ought to hold that since the offer of appointment was drafted by the Defendant, a strict interpretation of that paragraph “probation†against the Defendant ought to apply. Claimant’s Counsel maintained that confirmation is a positive act and cannot be assumed and as such the non-termination of the Claimants’ employment after the probationary period cannot ipso facto be said to be a confirmation. The Claimant testified that the Defendant never confirmed his employment and during cross examination he was asked whether if his appointment was confirmed, there would have been a lot of difference and he answered in the affirmative. The DW1 during cross examination by Claimant’s counsel testified that the Claimants’ status as full staff was confirmed after 3 months and that there was no written letter to that effect but that it was confirmation by assumption as was the policy of the Defendant. Counsel submitted that between Exhibit A (offer of Appointment) and Exhibit B (Internal Memo) there was a contradiction showing a clear concealment of facts and also fraud because Exhibit A was intended by the parties to govern their contractual relationship while the Defendant purported to use Exhibit B to inform the Claimant that he was employed as a project (adhoc) staff for a particular project and that due to the completion of the said project, his services will no longer be required. Counsel further maintained that the bone of contention is not the mode of termination or wrongfulness or otherwise of the termination but rather the status of the employee during his 7 years’ service to the employer. Counsel cited the case of IHEZUKWU V. UNIVERSITY OF JOS (1990) 4 NWLR (pt. 146) 598 where the Supreme Court held that “An unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. Thus in the termination of the employment of an employee on probation, no particular procedure needs be followed. Once the employer is satisfied that there is good cause for the termination, and a reasonable notice is givenâ€. Counsel then argued that the Defendant never got the Claimant to sign any additional document (perhaps the terms and conditions of service) showing the policy and strange habit of the Defendant. He further argued that this is contrary to international best practice and a direct violation of Section 7 (1) (h) of the Labour Act which requires such a condition to be expressly stated in writing since it was a special condition of the contract. Reliance was placed on the case of MODILIM V UBA (no citation) per Justice B.B. Kanyip that the Defendant’s failure to confirm the appointment of the Claimant as a General Manager was a breach of his contract of employment contained in the offer letter and letter of commitment. Counsel concluded by saying that “confirmation by assumption†being non-contractual in this present case, is contrary to public policy and international best practice as it is injurious to the public. On issue two which is: Whether or not the Defendant was fraudulent and maliciously concealed or misrepresented some facts in his employment contract with the Claimant. Counsel submitted that issue one directly answers issue 2. That a written communication is a permanent, direct and congent evidence of the contents of the said communication itself. And that in view of this, the argument by the Defendant that the confirmation of the Claimant was by assumption cannot be sustained because it is equivalent to saying that the confirmation of the Claimant was by oral communication. Counsel then went on to state that though the Defendant claims that promotion was not made a condition of the contract, the promotion of a confirmed (full or permanent) staff is a practice of the trade and is in fact applicable as a convention in employments of such nature. That promotion is an expectation and is not synonymous with rise in pay and as such the Defendants’ non-disclosure of this special practice violates Section 7 (1) (h) of the Labour Act. Counsel also submitted that the confirmation by assumption (as claimed by the Defendant) clearly denied the Claimant the knowledge of the terms of the assumed confirmation including the basis of calculation of his severance package. That it will be manifestly unjust to claim (as the Defendant alleges) that in reality the severance package or termination benefit of the Claimant after over seven years of service to the Defendant is to be one month’s salary. That payment in lieu of notice is different from termination benefit and the two ought not to be treated as the same. Counsel submitted that an offer must be firm, definite and unequivocal in law and cited the case of ORIENT BANK (NIG) PLC VS BILANTE INT’I LTD (1997) 8 NWLR pt. 515 at p 76, ph. E-H. He concluded by stating that the Defendant was fraudulent and maliciously concealed and misrepresented some facts in his employment contract with the Claimant. In addressing issue three which is: Given the facts and circumstances of this case, what ought to be lawful or equitable basis of the calculation of the Claimant’s pay of package. Counsel submitted that in circumstances such as this where no reference is made to the basis of computation of a particular benefit, what is applicable to similar industries ought to be applied. That the Defendant ought to have adopted the standard applied by the Council for Regulation of Engineering in Nigeria (COREN) in calculating the pay-off package of the Claimant. Council then urged the Court to apply the said (COREN) standard given the fact that none of the parties called any witness to give evidence of the practice in similar industries. Counsel considered the legality or otherwise of the Defendant initiating the Claimants’ pension contribution after over four years of the Claimant’s employment with the Defendant and the effect on the Claimant. He then argued that according to the testimony of CW1 under cross examination, the Defendant opened a pension fund for the Claimant in March 2011 after four years of his employment and that this amounted to a serious breach of the Pension Act 2004. Because the Pension Act being a statute operational within Nigeria and being in existence at the time of the Claimants’ employment automatically created that right of the Claimant to a pension contribution fund from the onset of his employment. On issue five which is: Whether or not the Claimant is entitled to compensation for working on Sundays outside his contract with the Defendant Counsel submitted that according to Section 13 (7) of the Labour Act, where a worker works overtime, he shall be entitled to a corresponding time off not later than fourteen days after or to wages at overtime rates in lieu thereof. On the last issue Whether or not the Claimant is entitled to the reliefs he is seeking before this Honourable Court Counsel submitted that the Claimant having proved fraud, concealment of fact and misrepresentation by the Defendant in his contract with the Claimant is thereby entitled to the first relief in his claim as general damages for those contractual wrongs. Counsel then cited the case of GANIYU BADMUS & ANOR V. A.O. ABEGUNDE (1999) 71 L. R. C. N. p. 2912 and submitted that in assessing general damages, the Court ought to employ the opinion and judgment of a reasonable man. On the second relief, Counsel submitted that it ought to be assessed based on what is obtained in similar industries. Counsel then urged the court to calculate pro-rata what should have being the Claimants’ total pension benefit had it been that the Defendant had started the contribution at the onset of the Claimants’ employment and also order the Defendant to pay the Claimant the difference between what the benefit ought to have been and what the pension fund administrators have stated it to be. Counsel also urged the Court to grant the third relief and declared the last claim as abandoned. In the Defendants’ written address four issues were formulated thus: Whether or not the Defendant was fraudulent and concealed or misrepresented any fact in his appointment of the Claimant Whether the Claimant is entitled to be paid the sum of ₦10,000,000 as sum total of the payoff package due to the Claimant, had it been that the Claimant was put at his rightful position upon promotion. Whether or not the Claimant is entitled to compensation. For working on Sundays outside his terms of appointment with the Defendant. Whether or not the Claimant has proved his case before this Honourable Court. On the first issue, counsel submitted that there was no concealment, fraudulence or misrepresentation and that the terms of the offer were duly expressed in the offer of appointment. In paragraph 4.03 , counsel maintained that it was not stated anywhere in Exhibit A that the confirmation of the appointment would be in writing and that the Claimant never complained for more than the 7 years he worked with the Defendant and that this means that he had condoned and accepted the policy especially as he enjoyed salary increment. At 4.04, it was the Defendants’ argument that the Claimant has not been deprived any benefit because the confirmation was not in writing and that this does not in any way represent fraud or concealing and misinterpretation of facts. Counsel also stated at 4.06 that it showed the Claimant how it arrived at its termination benefit using the standard in the construction industry. At 4.09, it was counsel’s submission that the Defendant complied with the provision of Section 7(1) (h) of the Labour Act, and the case of ABUKOGBO V. AFRICAN TIMBER AND PLYWOOD LTD (1966) 2 ALL MR87 was cited to maintain his argument that where on employee gives the required notice, the validity of the termination cannot be challenged because the employer is under no obligation to give reasons. On the second issue, counsel submitted that the Claimant is not entitled to be paid N10,000,000.00 or any other sum because this claim is speculative and the Claimant was promoted by implication because he enjoyed salary increase. On issue three, counsel submitted that the Claimant had not provided evidence to support the allegation that he worked on Sundays and relied on the provision of Section 124(1) (a) and (b), 132, 133 (1) of the Evidence Act to state that he who asserts must prove. Counsel also went further to state at 4.16 that the Claimant is not an Engineer and as such cannot be treated as an Engineer when calculating the payoff package available to him. Counsel in answering issue four maintained that the Claimant has not proved his case to entitle him to the reliefs sought. That the Claimant only mentioned the issue of pension during cross examination and that to make this issue admissible, the Claimant has a duty to plead same according to the decision in SALAUDEEN V. MAMMAN (2000) 4 NWLR PT. 68663 Ratio 16. And also that no evidence was led as to what should have been the pension benefit if the Defendant had started the contribution at the beginning of the Claimants’ employment. As 4.25, counsel maintained that parties to an agreement are bound by the terms and conditions of the contract they signed according to the holding in ISHENO V. JULIUS BERGER NIG PLC (2012) 2 NILR 127 ratio 5. In conclusion, counsel maintained that the Defendant ought to be commended for giving the Claimant more that he is ordinarily entitled to because in the calculation of a payment in lieu of notice, only that part of the wages which a worker received in money, exclusive of overtime and other allowances shall be taken into account and this is provided for in Section 11(9) Labour Act. In the course of the trial, the following were tendered as Exhibits by the Claimant. Exhibits A and A1 as the SIRAJ NIG LTD Offer of Appointment Letter dated 12th February 2007. Exhibit B 1s a SIRAJ Internal memo dated 26th May, 2014 and headed Completion of Project. Exhibit B1 is the 2014 schedule Exhibit C is a document headed “Leave on duty entitlements†and revised on 18th August 2006 Exhibit C1 is the 2014 Annual Leave for Technical Staff. The Defendant tendered the following in their Defence Exhibit DA is the Zenith bank cheques dated 28th August 2014 Exhibit DA1 is a copy of the cheques dated 27th June 2014 in the sum of ₦3,449,580.67 Exhibit DA2 and DA3 is headed the Staff Salary June 2014 and dated June 27th 2014. Exhibit DB and DB1 is the Offer of Appointment Letter dated 12th February 2007 (A photocopy) Exhibit DA4 is the original of the cheques dated 27th June 2014 in the sum of ₦3,449,580.67. Exhibit DA5 and DA6 is the original of the document headed the staff salary May 2014 and dated May 28th 2014. Of these exhibits, exhibit A & A1 the letter of offer of appointment dated 12th February 2007 of the Claimant as written to him by the Defendant is paramount. It provides: “Further to your application for employment and your subsequent interview with the undersigned, we are pleased to offer you employment in the supervision department of our company. Effective date of commencement: 5th February 2007 Designation: Principal Technical Officer. Duty Station: Kwali Probation: You will be placed on three (3) months probation period after which your appointment will be confirmed depending on your dedication and performance. Annual Leave: You will be entitled to paid annual leave of 30 working days after every twelve months of service. Please note that annual leave is not granted by right of leave time maturity but by exigency of your duty. Working Hours: Mondays – Fridays 8.00am – 5.00pm Lunch Break 1.00Pm – 2pm Saturdays 8.00am – 1.00pm Please note that the nature of your job may require you to work beyond official working hours as may be deemed necessary from time to time. Salary: you will be paid a gross salary of ₦720,000.00 (Seven Hundred and twenty Thousand Naira only) per annum. Termination of Appointment: After Confirmation of Appointment, One month notice or one month salary in lieu of notice is required from either party to terminate this contract. Passport photograph: you are required to forward two recent passport photographs. This is in addition to a reference letter from any of your referees. Acceptance: Please sign a duplicate copy of this letter of appointment which will serve as your acceptance of the offer. By accepting this employment you hereby agree that you will exclusively work with Siraj Nigeria Limited and will not carry out any type of work that conflicts or competes with your employment with SIRAJ NIG. LTD†As it can be seen, the Exhibit A and A1 when viewed against the backdrop of the submissions of both parties in their written addresses and from the testimonies of both witnesses out of their pleadings as well as with the position of the law. It is to be noted as follows: The law is that generally the letter of employment must be resorted to in considering the rights and obligations of the parties. See MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR PT 145) 506. The Claimants letter of employment says the following: Though date 12th February 2007 it’s effective dated of commencement is given as the 5th of February 2007. That annual leave is not granted by right of leave time but by exigency of the Claimant’s duties As to working hours Sundays is not included. It is provided that the Claimant was to work from Monday to Saturdays. But it is stated after these that the nature of the job might require the Claimant to work beyond working hours. The Claimant accepted these terms and went on to work for the next 7 years and 4 months with the Defendant till his employment with the Defendant ended on the 1st of July 2014 or on the 30th of June 2014. The Claimant maintained that his appointment with the Defendant was not confirmed that he was treated as an adhoc staff and this was against international best practices and standards. But the case cited by his counsel on the international best practices was neither supplied neither was a citation provided. The Claimant also maintain that the Defendant in exhibit A & A1 fraudulently concealed and or misrepresented some special facts in the employment contract on the actual status of the claimant in the eyes and mind of the Defendant. That the exhibit contained a special undisclosed term that the Claimant would never be promoted. That the COREN STANDARD was not followed as a basis for the calculation of the Claimants severance package or termination benefit which was rejected by the Claimant. That the late initiation of the payment of the Claimant’s contributory pensions by the Defendant which denied the Claimant of his legitimate earnings, that the Claimant was not paid extra or compensated for working on Sundays. In the cross examination of the Claimant he told the Court that when he started work in 2007 his monthly salary was ₦60,000 and when he left the company it was ₦93,000. He admitted the increment over the years though he maintained was not promoted through the same number of years. He also admitted that from 2011 the Defendant was making deductions from his salaries and that he had not gone since the termination of this employment with the Defendant to his Pension Administrators. He admitted being paid his annual leave allowance for 2014 as well of 2013. Asked whether he knew how much the Defendant pays workers who work on Sundays he told the court that he does not know. He also maintained his appointment was never confirmed. He said if he were confirmed staff his terminal benefits would have been different. He was made to read out the clause on termination from exhibit A1 which he did. He insisted he was a member of COREN; the Council of Registered Engineers of Nigeria. He also said he did not find out in all the years he worked with the Defendant without promotion why his salary was being increased. In reexamination he said his balance with his PFA is ₦400,000. Under cross examination of the DW1 he admitted that the Claimant was a confirmed staff and insisted that in the calculation of payments to the Claimant by the defendant they made use of industry standards. That the COREN Standards did not apply to the Defendant. The Claimant through counsel gave no authority in support of this contention about recourse to COREN. With the contentions of the Claimant and the various heads of claims he claims against the Defendants I would go on to pronounce further on what I find to be factually true from all of the above and the law applicable as the case may be. The exhibit A & A1, the letter of Offer of Appointment does not say in any of its letters that the Claimant was an adhoc staff of the Defendant. Moreso, the evidence before the Court, apart from the assertions of the Claimant and the Defendant’s rebuttals nothing else indicates he was an adhoc staff and I find and hold that he was not treated as such. DW1 even admitted the Claimant was a confirmed staff. The implication of this is made very clear upon a reading of the clause on probation in exhibit A. I do not find any misrepresentation in the said exhibit. I so hold. On promotion, the law is that an employer is not obliged to promote an employee and as to whether the Court will grant relief of promotion to an employee the courts have held that promotion is neither automatic nor as of right. See ABENGA V. B.S.J.SC (2006) 14 NWLR (pt. 1000) 610 see also MORAKINYO VS. IBADAN CITY COUNCIL (1964) 3 NSCC 167 at 169. On this point it should however be borne in mind that a corollary of promotion is increment in salary which the Claimant got over the 7 + years period he worked for the Defendant. In the premises of the above I do not see any contravention of international labour standards in these regard. The law also is that in employment law the amount of damages awarded on termination of appointment is always the salary payable for the period of notice. In this instant case, it should be ₦93,000, but the Defendant has calculated other payments and made it up to ₦506,264.14 (Five Hundred and Six Thousand Two Hundred and Sixty Four Naira, Fourteen Kobo). See the case of EMMANUEL JEREMIAH VS ANTHONY ZIREGBE & ANOR (1996) 7 NWLR (pt. 460) 346. The Claimant formulated 6 issues for determination the most salient for consideration is the 6th which is, whether or not the Claimant is entitled to the reliefs he is seeking before this Court. I would answer by saying specifically he is entitled to the sum offered to him by the Defendant and that is the amount stated above in the Zenith Bank cheque dated 28th August 2014 which must be revalidated or re issued to the Claimant within 30 days of this judgments failing which interest would start to run at the rate of 10% per month on the said sum till it is liquidated. For reasons given earlier the other heads of claim of the Claimant fails. Other claims as to his pension should be pursued separately with his PFA. Judgment is entered accordingly. There are no awards as to costs. ________________________ HON. JUSTICE E. D. E. ISELE JUDGE