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JUDGMENT 1. Introduction & Claims On 8/6/16, the Claimant filed his General Form of Complain & Statement of Facts along with all other frontloaded processes and sought the following reliefs against the Defendant - 1. Three Million, Eight Hundred Thousand, Eight Hundred and Three Naira, Ninety Seven Kobo (=N=3,800,803.97). The total VOLUNTARY EMPLOYMENT SAVING SCHEME (VESS) contributed from March 2013 to date and handshake payable after the car deductions 2. =N=20,000,000.00 exemplary Damages 3. Costs The Defendant entered an appearance on 15/7/16. The statement of defence filed by the Defendant was accompanied by witness' statement on oath as well as copies of documents to be relied on at trial. 2. Case of the Claimant The Claimant opened his case on 5/4/17 and testified as CW1. CW1 adopted his witness deposition dated 8/6/16 as his evidence in chief and tendered 7 documents as exhibits. the documents were admitted in evidence without objection and marked as Exh. C1-Exh. C7. Under cross examination 2 additional documents were tendered through the witness. They were admitted and marked as Exh. C8 & Exh. C9 respectively. The case of the Claimant, in brief, as revealed from his witness deposition is that he was employed by the Defendant between August 2013 as a Divisional Sales Manager; that he was taken to Enugu division (DSM); that he was diligent in his duty; that in the course of his service to the Defendant he was awarded a Certificate of Appreciation in recognition of his three years outstanding contributions to the Defendant; that he was dedicated, hardworking, resourceful; that the relationship with his bosses are very conducive as he got along very well with staff and Management of the Defendants Company; that between April 1st 2014 – April 2016, he was transferred to Benin 2 years (DSM) he was the best performing Manager for the year 2016; that during the course of his service and as stated in the letter of his employment he made monthly contribution to the STANBIC IBTC GUINESS voluntary Employment saving Scheme from 7/10/2013 up to 5/4/2016 to the tune of Three Million, Two Hundred and Six Thousand, Four Hundred and Twenty Nine Naira, Eighty – Two kobo; that he was sent a mail by the Management to come to the Headquarters as the company was restructuring, they invited him to a meeting and informed him that they are letting me to due to restructuring; that his employment was terminated by a letter dated 14/4/16; that he was given two months salaries in lieu of notice; that he was informed he would receive another Three Million, Six Hundred and Ninety-Four Thousand, Two Hundred and Ninety-Four Naira – One Kobo as Compensation for loss of office and also a performance bonus for the end of the final year as contained in his letter of employment dated 22/8/13; that after agreement which enable him purchase his company car from the compensation package given to him which was deducted at source, the Management refused to release his VESS and the balance of the handshake after the Defendant had agreed that it would pay all his entitlement and he would release all the company properties in his possession. Claimant further testified that before now the Defendant had entered into an agreement with the Labour Union in March 2016 for the Compensation to paid for staff rendered redundant and this agreement includes payment of leave and Housing allowance to the Ex-employee; that however, contrary to the Company’s laid down practice and agreement entered with the Labour Union, he received a mail dated 22/4/16 in which the Management declared they are withholding his contributions and entitlements; that he instructed his Solicitor to write a Letter of demand to the Defendant for the immediate release of my entitlement and that the said entitlement in the sum of Three Million, Eight Hundred Thousand, Eight Hundred and Three Naira, Ninety-Seven Kobo (=N=3,800,803.97) has not been paid to him till date. Under cross examination, the Claimant testified that he exited the Defendant in April 2016, that he was paid 2 months' salary and a handshake amounting to =N=5.1 Million sometimes in May 2016; that his salary on the average was about =N=800,000.00 monthly; that Housing Loan was paid at the beginning of every year as well as leave allowance; that annual bonus was also paid depending on the total performance of the Defendant; that he did not obtain any loan from the Defendant; that Housing Loan is not a loan as such but a subsidy; that the loan is not to be repaid; that he was paid Leave allowance in March 2016; that it would not be right for the Defendant to prorate the Housing Allowance from January to April when he exited Defendant; that the Defendant communicated to him that his Housing Allowance was prorated; that his Housing Allowance was about =N=3.5 Million; that Leave Allowance was about =N=1.1 Million; that the Defendant informed him that this was also prorated; that he wrote some letters to the Defendant via e-mail and that he would recognise them if shown to him. It was also the evidence of the Claimant under cross examination that he was not a Union member being a Management staff; that the Defendant's car is in his custody; that it was offered to him by the Defendant for the sum of =N=2.5 Million and that he has not paid for the car. 3. Case of the Defendant The Defendant opened its case on 12/3/18 and called on Omololu Bankole as its DW1. The witness adopted his witness deposition dated10/1/18 as his evidence in chief and tendered 3 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D3. Additional document was tendered through this witness under cross examination. Same was admitted in evidence and marked as Exh. D4. The case of the Defendant is that it employed the Claimant in 2013 as a Divisional sales Manager; that the Claimant served in various States as its employee from August 2013 to 2016 when his employment was terminated; that the Claimant was a contributor to the Voluntary Employee Saving Scheme (VESS) while he was with the Defendant; that the Claimant's VESS payments are with it owing to the Claimant's unacknowledged indebtedness to it; that it is withholding the Claimant's VESS contribution to enable it deduct the amount owed by the Claimant after which the balance will be released to him; that the Claimant at the time of termination of his employment indebted to the Defendant to the tune of =N=1,752,153.29 and that the Claimant was unable to collect his Voluntary Employee Saving Scheme contribution due to his indebtedness to it. While being cross examined this witness stated that he had been a Human Resources Administrator since 2014; that Employee Handbook is given to all employees of the Defendant; that he does not know how much the Defendant has been paid as his final entitlement; that Claimant's Voluntary Employee Savings Scheme is with Stambic IBTC; that Claimant would not be able to access the money because his final entitlement with the Defendant is negative; that his savings have to be paid to the Defendant to defray his indebtedness and that Claimant's account with IBTC is in Claimant's name. 4. Submissions of learned Counsel At the close of trial and pursuant to the direction of the Court, learned counsel to the Defendant filed a final written address on 8/6/2018. In it, learned Counsel set down a lone issue as follows - Whether from the evidence adduced before this Honorable Court, the Claimant has made out a case to sustain his reliefs before this Honourable Court. Arguing this lone issue learned Counsel submitted that the totality of the claim of the Claimant is based on the non-payment of the Voluntary Employment Savings Scheme (VESS) which is domiciled in the Stanbic IBTC Asset Management; that the Defendant tendered e-mail dated 22nd April, 2016 which was admitted as Exhibit D1 and the Claimant tendered same mail as Exhibit C5; that the e-mail which computed and set out the final entitlements of the Claimant was not disputed nor controverted by the Claimants. Citing the case 7’Up Bottling Company Plc v. Emmanuel (2013) LPELR-21104 (CA) Counsel submitted that it is a basic principle of law that facts not denied or controverted are deemed admitted and correct. The learned Counsel also stated that the Defendant company does not provide Housing but gives a Housing Subsidy; that the Claimant is not entitled to any exemplary damages as the Defendant followed the letters of the law in the termination process of the Claimant’s employment with the defendant citing Odiba & Anor v. Muemue (1999) LPELR-2216 (SC); Odiba v. Azege (1998) LPELR-2215 (SC) and finally that the Claimant has not made out a case to sustain his reliefs. Counsel prayed the court to dismiss the case of the Claimant. Learned Counsel to the Claimant filed his final written address on 20/6/18. In it counsel set down the following issues for determination- 1. Whether the Claimant is entitled to his full claim as stipulated in the Claimant’s letter of employment and Defendant Company employee handbook (WORKING IN GUINESS - CONDITIONS OF SERVICE FOR MANAGEMENT STAFF) of 2010 at the time of termination of his employment by reason of restructuring by the Defendant. 2. Whether the Claimant is entitled to exemplary damages as a result of the Defendant’s singular action of instructing Stanbic IBTC Bank to freeze the Claimant’s account with it thereby withholding the payment of his Voluntary Employee Saving Scheme (VESS) without following due process. 3. Whether or not a company hand book (WORKING IN GUINESS-CONDITIONS OF SERVICE FOR MANAGEMENT STAFF) of 2010 can be used to determine the controversies relating to the computation of the Claimant’s alleged indebtedness to the Defendant Company. Arguing these issues, learned Counsel submitted that the general position of the law is that an agreement is an agreement; that the Claimant entered into contractual agreement with the Defendant and that the contract of service is the bedrock upon which the aggrieved employee must found his case, he succeeds or fails upon the terms thereof citing the case of Engr. Ahmed Sharu v. Fed Polytechnic Kaura Namoda & Anor (2016) 67 NLLR (part 238) 143 NIC; Central Bank of Nig & Anor v. Mrs. Agnes M. Igwillo (2011) NLLR (part 69) pg 299 SC. With Regards to issue 2, learned Counsel submitted that the relationship between the Claimant and Stanbic IBTC is one of Banker/Customer relationship which is covered by contract and not subject to third party interference by the Defendant Company; that the Defendant has no right of set off as to place a lien on the Claimant’s account; that the Defendant’s practice of instructing a third party Bank to instruct them to freeze their employees finds amounts to unfair trade practice which is not only unfair but oppressive & illegal citing the case of Rutam Motors v. Nusade (2007) 8 NLLR (Pt 221) 483. In relation to issue 3, learned Counsel submitted that the Defendant has failed to prove the existence of the alleged loan for which they are holding on to the Claimant's entitlements as calculated in Exh. C2 and that the Court should grant all the reliefs sought by the Claimant & discountenance the Defense argument as it lacks substance and is frivolous. The Defendant’s Counsel filed a reply on point of law on the 4/7/18 and canvassed that the Defendant has been fair on the Claimant as it paid two (2) months salaries in lieu of notice upon termination of the Claimant’s appointment. 5. Decision The simple facts of this case as revealed in both pleadings and evidence led are that Mr. Henry Okpe the Claimant was employed by the Defendant; that while in the employment of the Defendant he was paid both housing allowance (or paid some money to assist him with his housing needs in accordance with the policy of the Defendant); that he was also paid some leave allowance; that while with the Defendant he was part of a scheme called Voluntary Employee Saving Scheme (VESS); that without any failing on his side the Defendant terminated his employment; that the Defendant paid him his entitlement but refused to pay his contribution to the Voluntary Employee Savings Scheme on the ground that Claimant must refund the housing allowance paid upfront which Defendant now regarded as a loan as well as the leave allowance already paid to him. Having read all the processes filed by either side, heard the testimonies of the witnesses called, carefully watched their demeanor and evaluated all the exhibits tendered and admitted, I narrow the issue for the just determination of this case to be - Whether the Claimant has discharged the burden of proof placed on him for a grant of all or some of the reliefs sought. The age-long principle of law is that he who approaches the Court for judicial redress has the burden of proving his entitlement to the reliefs sought. The proof required is by evidence which may be oral, documentary or both. The need for proof is however always dispensed with in the face of clear and unambiguous admission of material facts. For, facts admitted need no further proof. It appears to me that only a rather grey but technical areas call for judicial intervention in this case. There is a consensus by the parties that the Claimant contributed to the Voluntary Employee Saving Scheme in the sum of =N=3,206,429.82 See Exh. C3. It is also agreed that the Claimant was entitled to a Handshake in the sum of =N=3,253,498.82 See Exh. D3. Both sums when added come down to =N=6,459,928.64. The parties also have no dispute respecting the value of the car sold to the Claimant in the sum of =N=2,595,124.21. When this latter sum is deducted from the total sum due to the Claimant the balance remains =N=3,864,804.43. The major areas of disagreement are essentially 2. The first is Housing Support paid to the Claimant in the sum of =N=2,015,069.95 which the Defendant contends is a loan to be repaid by the Claimant. The second is Leave Allowance also paid to the Claimant in the sum of =N=836,254.03. Now was the payment for Housing Support a loan repayable by employees of the Defendant? The Defendant tendered Exh. D4 in support of its position. Clause 19 of that exhibit on page 17 deals with Housing. It states thus - ''The company does not provide housing accommodation for its Managers. All Managers are expected to arrange their own accommodation. However, Housing Subsidy is paid in lump sum annually to assist towards the cost of rent and furnishing. Details can be obtained from your HR Business Partner''. Again, I ask, is the Housing Subsidy a loan repayable? Thesaurus: English (United Kingdom) explained Subsidy to mean financial support; financial assistance; funding; financial backing; grant; subvention. I find the argument of the learned Counsel for the Defendant to the effect that the Housing Subsidy was a loan to the Claimant difficult to swallow. The meaning of subsidy is clear enough not to warrant difficulty in comprehension. In the context of this case, the exhibits tendered and the entire surrounding circumstances, the housing subsidy was not a loan. Rather it was a grant, some form of assistance for which no repayment was expected or anticipated. I so find and so hold. In any event, if as argued by the Defence that it is a loan what are the terms and conditions attaching to it? Without much ado, I further hold that from Exh. D4 tendered and relied upon by the Defendant, I find no provision stating that any leave allowance paid to staff is repayable under any condition or circumstances. See Clause 13 of Exh. D4. It is trite that parties are bound by their contractual terms. See SCOA (Nigeria) Plc v. TAAN & Ors. (2018) LPELR (CA). Aside from the reasons as stated here as to why both the Housing Subsidy and Leave Allowance are not repayable by the Claimant, for yet equitable rationale both are not to be repaid. Both payments were normal entitlements of the Claimant. The Claimant was willing and able to continue to work for the Defendant. The Claimant no doubt put in his best for the growth of the Defendant. Exh. C5 issued to the Claimant by the Defendant - ''in recognition of your outstanding contributions to Guinness Nigeria'' attests to the contribution of the Claimant to the Defendant. Again in Exh. D2, the Defendant had written to the Claimant and concluded thus - ''Once again, thank you for your valued contribution to Guinness Nigeria and we wish you the very best in your future endeavours''. Now, notwithstanding all these recognitions of valuable contributions of the Claimant, the Defendant on its own volition and without any fault on the side the Claimant abruptly terminated the employment relationship between them; put a stop to Claimant's means of livelihood and survival and returned him to the already filled up Nigerian unemployment market. To therefore call on the Claimant to return payments legitimately earned is both un-equitable and unconscionable. The Defendant is directed and ordered to pay to the Claimant the sum of =N=3,864,124.21 being the Claimant's contribution to Voluntary Employee Saving Scheme and Handshake after deduction of the cost of the car sold to him by the Defendant. The Claimant also sought payment to him of the sum of =N=20,000,000.00 as exemplary damages. Exemplary damages as a specie of damages are not awarded or recoverable as matter of course. The law is settled beyond peradventure that in order to justify an award of exemplary damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. The conduct of the defendant has to be shown to be high-handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiffs rights, or disregarding every principle which actuates the conduct of civilised men. See Odiba v. Azege (1998) LPELR (2215) 1 at 25. The exemplary damages are usually awarded if the Defendant's conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence and contumelious disregard of the plaintiffs rights. See Odogu v. A-G, Federation (1996) LPELR (2228) 1 at 12, G. K. F. Investment Nigeria Limited v. NITEL Plc. (2009) LPELR (1294) 1 at 31-32 and see more recently FBN & Ors. v. Chukwu (2018) LPELR-45148 (CA). I have examined the whole gamut of this case and the conduct of the Defendant. I do not find the conduct of the Defendant to fall within the rubric to merit award of exemplary damages. Agreed that failure of the Defendant to pay the Claimant his due entitlement is wrongful Such a conduct is however not one to come within the Judgment of His Lordship Oredola JCA as he then was in FBN & Ors. v. Chukwu (supra). I thus refuse and dismiss the claim for exemplary damages as claimed for lacking merit. This case was filed on 8/6/16. There have been about 9 appearances in all. Cost, it is said, follows event. I award the sum of =N=100,000.00 to be paid by the Defendant to the Claimant as cost of this proceedings. Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, 1. The Defendant is directed and ordered to pay to the Claimant the sum of =N=3,864,124.21 being the Claimant's contribution to Voluntary Employee saving Scheme and Handshake after deduction of the cost of the car sold to him by the Defendant. 2. I refuse and dismiss the claim for exemplary damages as claimed for lacking merit. 3. I award the sum of =N=100,000.00 to be paid by the Defendant to the Claimant as cost of this proceedings. 4. The Judgment sum in this case shall attract interest at the rate of 20% per annum from today until final liquidation. 5. All the terms of this Judgment be complied with within 30 days from today. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge