JUDGMENT Introduction and claims The claimant filed this complaint on the 25th February 2016 against the defendant claiming as follows: a. N7,596,000.00 debt being sales commission incentive and representing 3% of N253,200,000 worth of sales as per the MTN Supply Contract; b. 21% interest on N7,596.000.00 from August 2013 until judgment and 10% compound interest thereafter till debt is fully liquidated; c. N120,000.00 unpaid annual leave allowance for year 2012; d. N75,000.00 unpaid telephone allowance for 15-months; e. N10,000,000.00 as exemplary damages for traumatic nuisance to his person; f. N1,000,000.00 being the costs of this lawsuit; g. Accrued severance packages and redundancy benefits. h. Any other order or such orders as the court may deem fit to make due consideration being had over the prevailing circumstances. Accompanying the complaint is the statement of facts, claimant’s statement on oath and copies of the documents to be relied upon. The defendant entered appearance and filed an amended statement of defence, counter claim and accompanying processes on 29th September 2016. The defendant counterclaimed as follows: (a) The sum of N8,695.65 (Eight Thousand, Six Hundred and Ninety Five Naira, Sixty Five Kobo) being the sum total for the four (4) days which the claimant did not work in the month of July 2013. (b) The sum of N15,909.09 (Fifteen Thousand, Nine Hundred and Nine Naira, Nine Kobo) being the sum for the one (1) week notice which the claimant failed to give to terminate his employment. (c) 36% compound interest on the claim in paragraphs (a) and (b) above from 26th July 2013 and 8th August 2013 respectively until liquidated. (d) The sum of N1 Million being cost of prosecuting this action. The claimant filed a reply and a defence to the counter claim on 11th October 2016. The matter then went to trial. Case of the claimant The claimant’s case on the pleadings is that he is an Electrical Engineer. The defendant employed him by letter dated March 26th 2012, and by another letter dated 30th April 2013 the defendant varied his appointment with effect from 1st May, 2013. The claimant stated that he was a Sales Engineer until he resigned his appointment with the defendant,. The claimant averred that by the reason of his contract of employment he is entitled to: 3% commission on sales made by him above N10,000,000; Monthly Pension Fund Contributions; Annual leave allowance; Monthly telephone allowance; Severance packages and redundancy benefits upon resignation of his employment. The claimant stated that his employment with the defendant lasted for 15 months and that the defendant arbitrarily varied his contract of employment in a manner detrimental to his interest. He stated that on 30th April 2013, the defendant issued a letter unilaterally reducing his monthly basic salary from N120,000.00 to N50,000.00. The claimant stated that notwithstanding the defendant’s letter dated 30th April 2013, he diligently pursued all his pending sales contracts including the “frame agreement for the supply and delivery of transformers between the defendantand MTN Nigeria Communication Limited (“the supply contract”)”. The claimant stated that the agreement (“The Supply Contract”)” comprises the following Local Purchase Orders: LPO No. 180944 dated 15/5/13 worth N87,400,000; LPO No. 180943 dated 15/5/13 worth N106,800,000; LPO No. 180993 dated 15/5/13 worth N27,800,000; LPO No. 180992 dated 15/5/13 worth N31,200,000. The claimant stated that the total monetary value of the Supply Contract amounts to the total sum of N253, 200,000.00. The claimant stated that his pursuit of the contract yielded good and profitable results and is covered by Invoice No. EEN45/2013 with v goods worth N253,200,000.00. The claimant stated that the defendant instructed the client (MTN) to pay the sum into its Skye Bank Account No. 1770382205 which was paid to the defendant on or about Thursday 29th August 2013. The claimant averred that following the review of his employment terms by the defendant’s letter of 30th April 2013 which took effect from 1st May, 2013, he is entitled to 3% commission on sales by him above N10,000,000.00 which amounts to the sum of N7,596,000.00 unpaid by the defendant. The claimant stated that prior to his resignation he approached and held various meetings with the defendant and its officers and they consistently assured him of effecting his payment immediately as the client started taking deliveries of their orders even prior to his resignation. Following the defendant’s failure to remit his entitlement of 3% commission, the claimant stated that he instructed his lawyers to write a demand letter dated 18th September 2013 on the defendant. That rather than pay his commission, the defendant chose to intimidate and threaten him into abandoning his claims/entitlements and he lodged an official complaint at the Area ‘F’ Police Command, Ikeja. The claimant stated that he resigned his employment because of defendant’s disregard for the terms of the employment contract mutually agreed and contained in his contract of employment and infraction of international best practices in labour matters. The claimant averred that the defendant also owes him: N120,000.00 unpaid annual leave allowance for year 2012; and N75,000.00 unpaid telephone allowances for 15-months. The claimant stated that the defendant made monthly deductions from his salary but failed to remit same into his retirement savings account until after he wrote a demand letter and made a report to the regulatory authority (PENCOM). The claimant stated that he resigned from the employment of the defendant on 25th July, 2013 and he handed over to the company but the defendant failed to pay all his entitlements and commissions owed to him at the time of his resignation. That as a result of the actions of the defendant, he has suffered tremendous emotional and psychological disturbances and also incurred huge loss. The claimant stated that it is false that his sales performance was unsatisfactory because the Sales Representatives Sales Reports dated 22nd April, 2013 deliberately omitted information and facts to his advantage to paint him as a non performing employee. The claimant averred that he also facilitated the contract with the Benin Electricity Distribution Plc for the supply of 10 Units of 50 KVA transformers and that the terms of his contract of employment was substituted out of malice and out of defendant’s penchant for sharp practices. The claimant stated that nowhere in the letter dated 30/04/2013 was his prior sales efforts and sales excluded from the new terms and conditions introduced in the contract of employment and that the parties’ understanding was that all his prior sales efforts would come under the new terms and conditions. The claimant denied the counterclaim and stated that the counterclaim is unfounded and is not based on any evidence or contractual agreement and he urged the court to dismiss it. The claimant testified in support of his case. He adopted his statements on oath which were in terms of the pleadings, and he relied on his admitted documents. Under cross examination, the claimant informed the court that he was employed in March 2012 and was paid a salary of N120,000.00 monthly. He said he was given another contract in 2013 that reduced his monthly salary to N50,000.00 with a new term that he will receive 3% commission on sales with effect from 1st May 2013. The claimant admitted that he received his April salary and stated that he made a lot of sales before the 1st May. The claimant told the court he was not paid a commission then because his contract at the time did not make provision for commission. The claimant on being shown exhibit BO1 told the court that the prospecting and quotation started before January 2013. He said the contract was signed by the defendant and MTN before the 1st of May and that he signed the confidentiality agreement. He confirmed that he is not a Director or the Company Secretary of the defendant. The claimant then closed his case. Case of the defendant The case of the defendant on the pleadings is that it employed the claimant as a Sales Engineer and he was placed on six (6) months’ probation subject to further review and assessment of his performance by his head of department following which his appointment may be confirmed or probation extended which he accepted. The defendant averred that following an evaluation of all Sales Engineers/Representatives, it was observed that the claimant had failed in his sales performance duties from the date of commencement of his employment to 22nd April 2013 when the evaluation was carried out; and that during the entire period the claimant had only brought in sales totalling N4,200,000.00 (Four Million, Two Hundred Thousand Naira) which was unsatisfactory. The defendant stated that it then decided to convert the claimant’s employment to a sales performance based contract and on 30th April 2013 the terms of the revised contract were offered to the claimant and he accepted same. The defendant averred that the claimant’s revised contract of employment did not make provisions for annual leave or the payment of leave allowance but made annual leave subject to Nigerian Law. By virtue of the Labour Act, the law provides for six (6) working days leave after twelve (12) months of service. The contract between the parties incorporated this by reference xxx. The claimant became entitled to six (6) working days leave on 31st April 2013, but did not proceed on leave until his resignation on 25th July 2013. The defendant averred that the claimant worked from May 2012 to April 2013 in the first instance and from 1st May 2013 to July 2013 and then resigned his employment without giving any notice. The defendant stated that the revised contract made no provision for notice, but that by the Labour Act, the claimant having worked for more than three (3) months but less than two (2) years, ought to have given one (1) week notice. The defendant stated that the period of notice not given in addition to the days the claimant did not work but was paid is eleven (11) days which exceeds the period of annual leave which he was entitled to. The defendant stated that the claimant’s revised contract of employment dated 30th April 2013 was issued following the review and evaluation of his performance that was unsatisfactory. The defendant stated that during the entire period within which the claimant worked with the defendant, he only facilitated the sale of one 200kva 11/0.415kv at the sum of 2,100,000 to Likepole Consult on 20th December 2012 and the sale of one 200kva 11/0.415kv at the sum of 2,100,000 to Pericom Nigeria Limited on 6th December 2012. That following the said revised contract and the claimant’s continuous failure to meet his sales target arising from his inability to secure any sales contract for the defendant, the claimant resigned his employment with the defendant and that at no time did he broker and facilitate a sales contract with MTN Nigeria Communications Limited “MTN” on behalf of the defendant. The defendant stated that prior to the “supply contract”, it already had a working relationship with MTN and was a registered supplier with No. 14990. The relationship was through the MTN Dubai offices which culminated in both parties entering into a contractual relationship. The defendant stated that it had on 26th September 2012 first entered into an agreement with MTN for the supply of transformers executed by the defendant following the issuance by MTN of Purchase Order No. 170779 dated 2nd October 2012. Subsequently, it entered into a second agreement dated 1st January 2013 also for the supply of transformers; and that at the date of the contract the claimant’s employment had not been reviewed or revised and therefore he was not entitled to receive sales bonus. The defendant stated that it was based on the already existing track record of the defendant with MTN that the second contract was entered into, and that the job of the claimant together with other employees with respect to the contract with MTN was to follow up on orders, deliveries, payments and any other duty assigned by Engr. Mayyar Shamat or Mr. Moataz Ibrahim the Managing Director and Finance Manager of the defendant respectively who were also the official contact persons of the defendant on all MTN contracts. The defendant stated that it delivers goods to MTN after a Purchase Order has been drawn up in line with the agreement. The defendant stated that the contract value of the agreement with MTN was N253,200,000. It could not perform on any services on the agreement except approved by MTN through an issued purchase order and that the total invoiced amount for goods supplied to MTN was in line with the agreement of 1st January 2013 and issued purchase orders. The defendant averred that the claimant is not entitled to receive commission on sales from the MTN contract as the contract was not secured through his effort. The MTN contract dated 1st January 2013 was already executed by the respective parties prior to 1st May 2013 when the claimant was to be entitled to receive commissions on sales. The defendant averred that at no time did it have discussions with the claimant promising to pay him any money with regards to the MTN contract as the contract was not secured or brought in by him stated that it did not make threats, intimidate or harass the claimant. That rather, it was the claimant and his counsel who tried to intimidate the Managing Director into paying him money to avoid threatened embarrassment to the defendant. The defendant averred that it never breached the terms of its contract with the claimant who failed to secure sales entitling him to receive commissions and therefore not entitled to the sum of N7,596,000.00 (Seven Million, Five Hundred and Ninety-Six Thousand Naira) or any sum at all as commission. The defendant stated that it does not owe the claimant any sum at all and that the claimant was not entitled to telephone allowance. The defendant stated that it provided its sales representatives with a credit allowance from Etisalat based on its billing arrangement with Etisalat and the claimant was allotted airtime allowance of N5,000 monthly paid directly to Etisalat on a registered designated line 08095269572. The defendant stated that it has paid the claimant’s pension. The defendant stated that the claimant voluntarily resigned his employment without giving notice as required by law and no hand over notes were attached to his resignation letter. The defendant stated that at the time the claimant resigned his employment, it fulfilled all its contractual obligations to him and he is not entitled to any of the reliefs claimed. By way of counter claim, the defendant averred that the claimant failed to give the required one (1) week notice to terminate his employment and also received full payment of his salary for the month of July 2013 when he did not work for four (4) days in that month. The defendant claims the sum of N8,695.65 (Eight Thousand, Six Hundred and Ninety Five Naira, Sixty Five Kobo) being the sum total for the four (4) days which the claimant did not work in the month of July 2013, and the sum of N15,909.09 (Fifteen Thousand, Nine Hundred and Nine Naira, Nine Kobo) being one week payment in lieu of notice. The defendant called one witness Mohammed Balogun (DW). He adopted his statement on oath which was in terms of the pleadings and he relied on the defendant’s admitted documents. DW told the court that he was in the Admin/Sales Department as Administrative Manager and he was in charge of the movement and expenses of the claimant. He stated that an employee’s entitlement depends on his contract. DW said he was aware of the MTN contract and that he had no input in the contract. He said the MTN contract originated from Dubai and that no staff was paid sales commission on this contract. DW told the court that the claimant worked for about 11 months and did not proceed on leave during the period. He informed the court that the defendant gave each employee telephones with lines from Etisalat and that telephone cards bought by staff were reimbursed. The defendant then closed its case. Final Address The defendant’s final address is dated 25th July 2017 and is filed the same day. The claimant’s final address is dated 11th September 2017 and is filed the same day. The defendant’s reply on point of law is dated 29th September and is filed on 5th October 2017. Parties adopted their respective addresses. Learned counsel to the defendant submitted the following issues for determination 1. Whether by the contract of employment dated 26th March 2012 and the revised contract of employment dated 30th April 2013 which became effective the 1st May 2013, the claimant is entitled to receive sales commission of 3% on the MTN contract dated 10th January 2013 and executed by the defendant on 30th April 2013. 2. Whether the claimant is entitled to the sum of N120,000.00 as unpaid annual leave allowance for 2012 and the sum of N75,000.00 as telephone allowance after being provided with an Etisalat telephone line and corresponding credit by the defendant. 3. Whether the claimant is entitled to the sum of N10,000,000.00 as exemplary damages for traumatic nuisance to his person, the sum of N1,000,000.00 being the cost his lawsuit and any other sums as accrued severance packages and redundancy benefits. 4. Whether the defendant has proved its counter claim against the claimant. Learned counsel to the claimant in reaction submitted the following issues for determination: a. Whether the claimant is entitled to the sum of N7,596,000.00 (Seven Million, Five Hundred and Ninety Six Thousand Naira) representing 3% sales commission from the N253,200,000.00 (Two Hundred and Fifty Three Million, Two Hundred Thousand Naira) MTN Transformers Supply Contract and interest on the sum? b. Whether the claimant having been in the employment of the defendant for a period of over 15months is entitled to a leave period and leave allowance equivalent of his monthly salary of N120,000.00 (One Hundred and Twenty Thousand Naira)? c. Whether the claimant is entitled to all his unpaid telephone allowance the sum of N75,000.00 (Seventy Five Thousand Naira Only) for the over 15-months employment period? d. Whether the claimant is entitled to exemplary damages in the sum of N10,000,000.00 (Ten Million Naira) for all inconveniences suffered as a result of the defendant’s action? e. Whether the defendant is entitled to the reliefs contained in its counterclaim? Decision I have carefully considered the processes filed, the evidence led, the written submissions and authorities in the final addresses. The parties have in essence raised the same issues for determination. I will therefore adopt the issues submitted by the claimant. I will begin with the preliminary issue submitted by the claimant’s counsel that the evidence given by DW is hearsay evidence and inadmissible because DW was no longer in the services of the defendant and only read a file on the transaction. DW testified that he worked for the defendant as Administrative Manager when the claimant was in service; this was not controverted. The law is that an officer employed by a company can give evidence to establish any transaction on behalf of the company even if he was not the one who actually took part in the transaction provided he is fully briefed and documents relevant to the transaction are made available to him. See Interdrill Nig Ltd V UBA  MJSC Vol 3 – 4;  LPELR-41907, Saleh V Bank of the North Ltd  6 NWLR (Pt 976) 316. The evidence of DW is admissible as it is not hearsay evidence. Now, the burden of proof of establishing the terms of the contract of employment is on the claimant. As required, he has put in evidence his letter of appointment (exhibit C1), and the updated offer (exhibit C2). It is settled law that parties are bound by the contract of employment they freely enter into, and the contract of employment is the bedrock upon which the claimant must found his case. The court is not to look outside the terms stipulated or agreed by the parties in determining their rights and obligations. See Akinfe V UBA Plc  10 NWLR (Pt 1041) 185, Afribank Nigeria Plc V Osisanya  1 NWLR] (Pt 642) 592. It is also the law that once a party asserts, he/she must prove the assertion. See section 131 (1) & (2) of the Evidence Act 2011, Elegushi v Oseni  14 NWLR (Pt 945) 348. The claimant asserts that he is entitled to N7,596,000.00 as sales commission, N120,000.00 as unpaid annual leave allowance for year 2012 and N75,000.00 unpaid telephone allowance for 15-months. The claimant’s letter of appointment (exhibit C1) reveals that the defendant offered him employment as a Sales Engineer with effect from April 2nd 2012 on a gross monthly salary of N120,000.00. He was placed on six (6) months’ probation period and his performance was to be evaluated after three months. The claimant accepted the offer which did not make any provision for sales commission. On the 30th April 2013, the defendant wrote exhibit C2 to the claimant varying the terms of his contract of employment which he accepted by signing the column for acceptance. The relevant portion of the letter is reproduced as follows: Date: 30.04.2013 Dear Mr Babatunde Ojomo, Reference to the evaluation done for you upon your sales performance and reference to the several meetings you held with the Sales Director and Country Manager. Our updated offer to you that will be effective starting from 1st of May is as the following: Net Salary Net Monthly salary: 50,000 N (Fifty Thousand Naira) Allowances 1. Transportation Allowance: 20,000 N (Twenty Thousand Naira) which is 5,000 weekly. 2. Communication Allowance: 5,000 N(Five Thousand Naira) monthly. Benefits 1. Medical care: Covered based on the company policy. 2. Annual leave: Based on the Nigeria Labour law. Sales Commission: Sales done for below N5,000,000.00 (Five Million Naira) = 1.5% commission Sales done for between N5,000,000.00 & N10,000,000.00 = 2% commission Sales done for above N10,000,000.00 (Ten Million) = 3% commission. The foregoing represents the major elements of your employment with EL SEWEDY ELECTRIC NIGERIA LIMITED. If you are in agreement, please indicate by signing below in acceptance on or before 1st May 2013 to enable us proceed further. Hoping that our offer will be satisfactory. Best Regards, Accepted I find from this letter that the claimant and defendant had agreed that the employment relationship will be on the new terms and conditions contained in exhibit C2 with effect from 1st May 2013; and I so hold. The claimant admitted that he was paid his salary of N120,000.00 in the month of April 2013 and that he was not paid any commission on sales before the 1st May 2013 because his contract did not make any provision for commission. The MTN supply contract (exhibit BO1) is the main subject matter of this dispute and it is dated 1st January 2013. It was executed by MTN on 25th April 2013, and by the defendant on 30th April 2013. By the claimant’s own admission and exhibit C1, he was not entitled to receive sales commission between April 2012 and April 2013. I find that the claimant is not entitled to receive commission on the MTN agreement (exhibit BO1) made on the 1st January 2013 and executed by the parties before the 1st of May 2013. This is because the agreement was negotiated and concluded during the period the claimant’s employment was regulated by exhibit C1; and I so hold. Consequently, the claim for the sum of N7,596,000.00 (Seven Million, Five Hundred and Ninety Six Thousand Naira) representing 3% sales commission fails. The claimant has made a claim for the sum of N120,000.00 being unpaid annual leave allowance for year 2012. Exhibit C2 stipulates that annual leave will be based on Nigerian Labour Law. Section 18 (1) (a) of the Labour Act CAP L1 LFN 2010 provides that every worker shall be entitled after twelve months’ continuous service to a holiday with full pay of at least six working days. The claimant resumed for duties on the 2nd April 2012. He was therefore in continuous service for 9 months only in year 2012 and not entitled to a holiday with full pay of at least six working days. The labour Act does not make provision for leave allowance. This claim therefore fails. The claimant has also made a claim of N75,000.00 unpaid telephone allowance for 15-months. Exhibit C2 which came into effect on May 1, 2013 makes a provision of N5,000 monthly as communication allowance. There is no evidence that this sum was paid to the claimant between May 2013 and July 25, 2013 when he resigned. Exhibit D4 is the defendant’s Etisalat telephone bill and it is unhelpful to the defendant as it covers the period 01/02/2014 to 28/02/2014 which is after the claimant’s resignation. The defendant is ordered to pay the claimant the sum of N15,000.00 being his outstanding three months communication allowance within 14 days. The claimant’s case partially succeeds. The defendant/counter claimant has counter claimed for the sum of N8,695.65 being salary for four (4) days the claimant did not work in the month of July 2013. There is no evidence adduced by the defendant that it paid the claimant for the days he did not work in July having tendered his resignation on July 25, 2013. This claim fails. The defendant/counter claimant has also claimed the sum of N15,909.09 being the sum for one week pay in lieu of notice. The employment contract (exhibit C2) makes no provision for notice period. Therefore resort is to the provisions of section 11(2) (b) and 11(6) of the Labour Act. By this section, the claimant is to give the defendant one week notice, and the defendant is not prevented from accepting a payment in lieu of notice. The defendant has not shown how it arrived at the figure claimed considering the fact that the claimant’s monthly salary is N50,000. Furthermore, the defendant has not proved the interest element. I find that the counter claim has not been proved. It is hereby dismissed in its entirety. Each party is to bear its own costs. Judgement is entered accordingly. ___________________________ Hon Justice O.A.Obaseki-Osaghae.