Download PDF
JUDGMENT In the Claimant’s amended statement of facts filed on 3rd November 2017 pursuant to the leave granted to him by this court on 24th October 2017, the Claimant sought the following reliefs against the Defendant: 1. The sum of N4,238,059.00 being the total amount payable to the Claimant consequent upon the performing of the duties of a senior accountant to the Defendant from June 2008 to November 2016. 2. The sum of N1,530,559.00 as the additional sum of money the Defendant ought to have paid to the Claimant with his terminal benefits upon retirement consequent upon his performance of the duties of a senior accountant from June 2008 to November 2016. 3. The sum of N3,500,040.00 at the rate of N700,008 per annum, being the sum payable to the Claimant as the company secretary to the Defendant from 2010 to 2014 (five years). 4. Cost of this action At the close of pleadings, trial in this matter commenced on the 25th day of April 2018. The Claimant testified for himself as CW1. One Yahaya Jibril, the Admin Manager of the Defendant testified on behalf of the Defendant as DW1. Hearing ended on the 25th day of May 2018 and parties were ordered to file final written addresses in accordance with the Rules of this court. These were filed and subsequently regularised. Parties adopted their respective final addresses on the 6th day of November 2018. CLAIMANT’S CASE The Claimant’s case, as stated in his pleading and evidence, is that he was employed as an accountant by the Defendant in a letter dated 16th January 2002 which was signed by him and the Executive Manager of the Defendant. His employment was later confirmed in a letter dated 24th June 2002. When he was employed in 2002, one Mr. E.C. Echata, a Senior Accountant, was his only senior in the Accounts Department of the Defendant. When the said Mr. E.C. Echata retired on 6th June 2008, the Claimant began performing the duties of the Senior Accountant until November 2016 when he too retired. The Claimant went on to make a table comparing the salaries which Mr. E.C. Echata was paid with his own salary as at May 2008 and he said the salary of Mr. Echata was higher than his own with N27,200.00. The Claimant also stated that applying the monthly 10% annual increment, the total amount he ought to have earned, in addition to the emoluments he was being paid from June 2008 when he started performing the functions of a Senior Accountant to November 2016 when he retired, is the sum of N4,238,059.00. He also said that the November 2016 salary paid to him had a shortfall of N58,306.60 because he was not being paid the salary due to a Senior Accountant even though he had been doing the work of a Senior Accountant since Mr. Echata retired in May 2008. The Claimant mentioned some documents he worked on in the position of a Senior Accountant. It is also the Claimant’s case that based on the NJIC agreement of 2005, which stipulated a retirement benefit of 1¾ months pay for each year for retired staff, he was supposed to have been paid additional sum of N1,530,556.00 if his monthly shortfall of N58,306.60 had been paid along with his last salary in November 2016. He said he performed the function of company secretary to the Defendant for 5 years from 2010 to 2014 but he was not paid any remuneration for his services. Before he was given the role of company secretary, the Defendant had been paying the sum of N700,008.00 annually to a firm, AOY Consult, who the Defendant contracted as its company secretary. The Claimant said he made several demands for payment of his services as Senior Accountant and Company Secretary, but the Defendant had always promised to pay. He has not been paid till date. The Claimant urged the court to grant his claims. During his testimony, the Claimant tendered several documents in evidence. These are Exhibits C1, C2, C3, C4a, C4b, C5, C6, C7a, C7b, C7c, C7d, C7e, C8, C9, C10, C11, C12, C13, C14, C15, C16, C17 and C18. DEFENDANT’S CASE In defence of the action, the Defendant filed a statement of defence and also called one witness. The witness is one Jibril Yahaya, an Administrative Manager of the Defendant. In the evidence of this witness, as well as in the facts pleaded in the Defendant’s statement of defence, it was stated that the Claimant was employed as an accountant in a letter dated 3/1/2002 executed by the Claimant and an Executive Manager in the Defendant. At the time of the Claimant’s employment, the Defendant had a number of senior employee accountants including Mr. E.C. Echata. The Claimant’s employment was confirmed in a letter dated 24/6/2002. As a senior employee and in accordance with the terms of the employment, the Defendant was at liberty to assign duties to the Claimant. Each of the Defendant’s employees have different and separate contracts of employment with the Defendant. While in the employment, the Claimant performed the duties of a senior employee in his trade as an accountant and such other duties the Defendant assigned to him from time to time. The Claimant was paid the agreed salaries and allowances as contained in his confirmation letter and he was duly paid his retirement benefits when he retired in 2016. When in 2012 there was vacancy in the position of company secretary, the Claimant was assigned to hold the position temporarily pending the appointment of a substantive company secretary. The assignment of the role of company secretary to the Claimant was not a distinct appointment by the Defendant. The Defendant did not, at any time, promise to pay the Claimant remuneration or salaries other than those contained in his confirmation letter. It was concluded that the Claimant is not entitled to any of the reliefs sought by him and the court was urged to dismiss the case of the Claimant. Upon the close of evidence, counsels for the parties filed their final written addresses which were adopted on 6/11/2018. DEFENDANT’s ADDRESS The Defendant in their final written address raised the following issues for determination to wit; a. Whether the Claimant is entitled to the sums claimed as additional remuneration for the performance of the duties of a senior accountant. b. Whether the Claimant is entitled to the sums claimed as additional remuneration for assuming the role of a Company Secretary. On Issue One, learned counsel for the Defendant submitted that the evidence adduced by the Claimant will not avail the Claimant and emphasized on the doctrine of privity of contract. Counsel argued that it was within the contemplation and agreement of the parties that the Defendant could entrust additional responsibilities to the Claimant. Consequently, Reliefs 1 and 2 contained in the Claimant’s Statement of Facts must necessarily fail. On Issue Two, learned counsel for the Defendant submitted that the Claimant had failed to show any duties or tasks performed by him as company secretary to the Defendant. Counsel further submitted that the Defendant is at liberty to assign the Claimant any other duty in any such capacity as the Defendant may decide. Counsel continued that the fact that the Defendant temporarily assigned him to hold fort pending the appointment of a company secretary cannot amount to a separate engagement by the Defendant. Counsel placed emphasis on the fact that the Claimant was not forced the take the job and had the option of resignation. Counsel urged the court to hold that the Claimant suit is an abuse of court process and to find in favour of the Defendant. I have duly reviewed other arguments proffered by counsel for the Defendant. Reference will be made to them if necessary, in the course of this judgment. CLAIMANTS ADDRESS The Claimant filed his final written address wherein learned counsel for the Claimant formulated the following issues for determination to wit: 1. Whether the Claimant is entitled to claim Nos 1 and 2 of the witness statement on oath for performing the duties of Senior Accountant. 2. Whether the Claimant is entitled to claim No 3 of the witness statement on oath for performing the duties of a Company Secretary to the Defendant. On Issue One, learned counsel for the Claimant placed reliance on the case of CHROME AIR SERVICES LIMITED vs. FIDELITY BANK PLC (2018) 5 NWLR (Pt. 1611) 160 at 175 PARA C-D and submitted that the Defendant is indeed indebted to the Claimant for the services he rendered to the Defendant as Senior Accountant which has not been paid for. In urging the court to find in favour of the Claimant, counsel submitted that the Defendant’s records will show that its staff never adduced any evidence indicating that any of their staff was deployed to work in 'other capacities' without being paid for working in such 'other capacities'. Further, learned counsel for the Claimant submitted that it is a person who has performed his obligations under a contractual agreement that can enforce such Contract. See OGUNDALU vs. MACJOB (2015) 8 NWLR (Pt. 1460) Pg. 96 at 133 Para C; BETA GLASS PLC vs. EPACO HOLDING (2011) 4 NWLR (Pt. 1237) Pg. 223 at 245 para C-O. Counsel argued that the remuneration of the Claimant may be veritable under the doctrine of Quantum meruit. See SAVANNAH BANK vs. OPANUBI (2004} Vol. 19 NSCQLR 295 at 312 paragraph A-C. On Issue Two, learned counsel for the Claimant placed reliance on the arguments in Issue One and submitted that the Claimant through his pleadings explained how he arrived at the figure he is claiming as damages for the services he rendered to the Defendant's Company. This piece of evidence is backed up by Exhibits C7 (1-5) which are Certified True Copies of documents from the Corporate Affairs Commission. Counsel contended that the Claimant has duly discharged the burden placed upon him by law and urged the Court to so hold. Further arguments proffered by counsel will be referred to in this judgment if necessary. DEFENDANT’S REPLY The Defendant filed a reply on points of law wherein counsel responded to the issues as itemized by the Claimant On Issue One, counsel placed reliance on the authority of AMODU vs. AMODE (1990) 5 NWLR (Pt. 150) 365 and submitted that a person is bound by his contract of employment hence the Claimant is not entitled to any remuneration other than what was agreed with the Defendant as shown in his contract. See also OIL & GAS EXPORT FREE ZONE AUTHORITY vs. OSANAKPO (SAN) (2009) LPELR-8504 (CA). Counsel further submitted that the Claimant had not satisfied the requirements for the invocation of the doctrine of legitimate expectation and urged the court to discountenance the arguments of counsel. On Issue 2, counsel submitted that the Companies and Allied Matters Act Cap C20 Laws Of the Federation does not impose any restrictions on the categories of persons who may be appointed as company secretary of a private company hence the argument of counsel that the Mr Barry Goddard was rejected by the authorities as Company Secretary on account of his Nationality is false and should be discountenanced by the court. Counsel urged the court to dismiss the suit and find in favour of the Defendant COURT’S DECISION I have carefully examined the facts of the Claimant’s case and I have also considered the reliefs he sought in the case upon those facts. The gist of his case is that he was employed by the Defendant as an Accountant in January 2002 and he was paid the agreed salaries of that position until he retired in November 2016. During his employment, he was made to perform the duties of a Senior Accountant and also the duties of a Company Secretary, but he was not paid the salaries of these positions whose duties he performed. His claims in this case include payment of the difference in the salary and terminal benefits of a Senior Accountant and the salary he was paid as an Accountant. He also claims for the salaries of Company Secretary using the amount that was paid to the last Company Secretary. The defence of the Defendant to the claims is that by virtue of the terms of the Claimant’s employment, the Defendant was at liberty to assign duties to the Claimant. The Claimant performed the duties of a senior employee in his trade as an Accountant and such other duties the Defendant assigned to him from time to time including the duties of a Company Secretary. It was also averred that the Defendant did not promise to pay the Claimant remuneration or salaries other than those contained in his confirmation letter and he was paid the agreed salaries and allowances. It is not in dispute that the claimant performed the duties of a Senior Accountant and that of a company secretary while in the Defendant’s employment. The Defendant averred that the Claimant merely acted in those offices by virtue of his employment but not as if he was promoted or appointed into those offices. The Claimant too did not present any evidence to show that he was promoted or appointment into the position of Senior Accountant or as the Company Secretary. It is clear to me that the Claimant was employed as an Accountant and it was by virtue of his employment as an Accountant that he was made to perform the duties of a Senior Accountant and at other times, Company Secretary. Exhibit C1 is the Claimant’s employment letter. He was appointed as an Accountant and one of the conditions of the employment contained in the letter is that: “the employee undertakes to serve the employer within Nigeria in such capacity as may from time to time be required by the employer”. The Claimant signed this document accepting the terms and conditions of the appointment. He also started work as an Accountant, which position he held until he retired in November 2016. By accepting the employment, the Claimant accepted that the Defendant may assign him to any duty during the employment at any time. He also undertook to serve the Defendant in whatever duty that was assigned to him. Now, pursuant to that term of the contract, the Defendant assigned the duties of a Senior Accountant to the Claimant, and at another time, the duties of a Company Secretary. There was no assurance from the Defendant or any agreement by the parties for a consequential increase in the salary of the Claimant to that of a Senior Accountant or of a Company Secretary. The Claimant was merely made to function in those positions by virtue of his employment with the Defendant. It is trite that the position an employee is to occupy in the employment is solely the decision of the employer. An employee or the court cannot dictate to an employer which post the employee is to occupy in employer’s employment neither can the court interfere in the decision of the employer on how it assigns duties or positions in its establishment. See UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD vs. AJIDE (2006) All FWLR (Pt. 326) 282. To grant the reliefs the Claimant sought in this action will have the effect of promoting the Claimant to the position of a Senior Accountant in the Defendant or appointing him for the Defendant as the Company Secretary. It is not the duty of this court to do so. In the employment, the Defendant has the right to assign any duty to the Claimant. When the Defendant assigned the Claimant to perform the duties of a Senior Accountant or the Company Secretary, the Defendant acted within the terms of the contract. To proceed to order the Defendant to pay the sums claimed by the Claimant for those duties, without an agreement between the parties for an increase in his salaries or a variation in the salaries of the Claimant, will amount to re-writing the employment contract for the parties. The courts are precluded from interfering in the terms of employment voluntarily agreed by the parties. The duty of the court is to merely interpret the terms of a written contract of employment. See W.A.E.C. vs. OSHIONEBO (2007) All FWLR (Pt.370) 1501 at 1517. Accordingly, this court may intervene only if there was an agreement for the payment of reviewed salaries for those additional duties, but the Defendant failed to pay. As it is, the duties of a Senior Accountant and Company Secretary performed by the Claimant were in the course of his employment with the Defendant. He was duly paid his salaries for the duties he performed for the Defendant in the employment until he retired. The Claimant has not made out any case for his claims. In my view, the case is frivolous. Without wasting any more time, I hereby dismiss this suit. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge