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REPRESENTATION John Ofogbor with Ada Ewelukwa for the Claimant. Inam Wilson for the 1st Defendant with Olugbenga Akinlabi. Bola Oguntade for the 2nd Defendant. JUDGMENT The Claimant, by a General Form of Complaint dated 10th July 2012 approached the court for the following reliefs - A. The sum of N2,091,466.00 as the entitlements due to the Claimant as the end of service benefits; B. The sum of N2,000,000.00 being general damages for the trauma and untold hardship the Claimant was subjected to; C. An interest of 20% on the amount from time of judgment until it be fully paid; and D. The cost of this suit assessed as N200,000.00. The facts of this case are brief and straight forward. The Claimant according to his Statement of Facts was the pioneer staff of the 1st Defendant; he worked with the 1st Defendant for about ten years and rose to the position of Accountant; that the 2nd Defendant was the GM of the 1st Defendant; that he was forced or threatened to resign his appointment with the 1st Defendant by the 2nd Defendant with the promise that should he do so, he (the Claimant) would be paid all his end of service benefits. Among others, a major area of disagreement was in the amount due as and calculation of end of service benefit. While the 1st Defendant computed the Claimant's severance pay to be =N=210, 275.00 the Claimant claimed to be entitled to the sum of =N=2,091,446.00. Parties filed all requisite processes in this suit and frontloaded all documents to be relied on at the trial as required by the Rules of this Court. At the trial, Claimant testified for himself and tendered 15 Documents as Exhibits. Under Cross Examination by the 1st Defendant, Claimant admitted that his Letter of Employment, Code of Conduct and the 1st Defendant's Employee Manual formed part of his contract of employment with the 1st Defendant. According to him the other part is the Company Policy which are usually sent from time to time via e-mail and memos from the Head Office. He said he did not have any of those e-mails and memos which he alleged referred to the end of service entitlement. He admitted that end of service entitlement was not referred to in any of the Documents tendered. While being cross examined by the 2nd Defendant, Claimant admitted to not being aware that the 2nd Defendant was either a Director or a Shareholder of the 1st Defendant; that he was not aware that the 2nd Defendant was an employee of the 1st Defendant just like himself; that the 2nd Defendant gave him an option to resign and be paid his end of serve entitlement; that the 2nd Defendant told him to compute his end of service entitlement as he used to do for other staff and that the instruction was an oral one. Both Defendants opted not to call any witness. Rather they relied on the processes as filed. Both sides filed their final written addresses and put forward issues for determination by the court. The Claimant filed his Final Written Address on the 13th of November 2013 in which he put forward 2 issues for the determination of the court. The Issues are as follows - 1. Whether the Claimant is entitled to an end of service benefit in accordance with the policy of the 1st Defendant. 2. Whether the Claimant is in breach of the terms of his employment. In relation to Issue 1, learned Counsel submitted that payment of benefits or gratuity (or by whatever name so described) is not in the absolute discretion of the employer citing Adebuke v. West African Breweries Limited (1971)2 NCLR 363 at 375 per Fakayode J. Claimant submitted that he was aware of the policy of the 1st Defendant and the computation of end of service benefits and that his expectation could not be less. He cited PAN Limited v. Saliu Oje & Ors (1997)11 NWLR 625. Claimant further submitted that the 2nd Defendant having asked him to resign, that oral instruction formed a condition and a collateral contract to the payment of his end of service benefits. Learned counsel cited several judicial decisions including Majekodunmi & Anor v. NBN (1978) All NLR 98 at 99, ACB v. Nnaji & Anor. (1962) All NLR 1060; Best Nigeria Limited v. Blackwood Hodge (Nigeria) Limited (2011)1-2 MJSC 55; A.G. Rivers v. A. G Akwa Ibom State (2011)3 MJSC 1 and Udolisa v. Nwanosike (1973) ECSLR 653. Claimant submitted that by virtue of the position of the 2nd Defendant he was entitled to rely on the promise made by the latter. He relied on Trenco Nigeria Limited v. African Real Estate and Investment Co Limited & Anor (1978)All NLR 124 at 125; Shipcare v. Owners of the M/V Fortunato (2011)2-3 (Pt. 1) MJSC 1 at 17-18. On Issue 2, Claimant submitted that he was not in breach of any of the terms of his appointment. According to him, the action of the Defendants was an unfair treatment to him he being a foundation staff and an award winning Head of Section who served the 1st Defendant for 10 years. Learned Counsel further submitted that the Claimant was denied fair hearing especially in relation to the query issued to him. He cited Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968)All NLR 298; Tunji Bankole v. Nigeria Broadcasting Corporation (1968)All NLR 736 at 737; Adedoyin v. Governor, Ondo State (1983)4 NCLR 786 at 807; Eze v. Spring Bank Plc (2011)11 MJSC (Pt. 1) 1 at 16 and Orisakwe v. Governor of Imo State & Ors (1982)3 NCLR 743 at 753. Counsel urged the Court to give judgment in favour of the Claimant as per the Complaint, Statement of Facts and the Claimant's deposition. On the 28th October 2013 the 1st Defendant filed its Final Written Address. Learned Counsel for the 1st Defendant submitted three issues for determination as follows - 1. Whether the Claimant's contract of employment provides for payment of end of service benefits? If not, whether having regard to the facts and circumstances of this case, there was a collateral contract to pay severance benefit to the claimant? 2. Whether the Claimant has furnished sufficient materials in proof of his entitlement to receive end of service benefits upon which the Court can award the Claimant the sum of =N=2,091,466? 3. Whether there was a breach of the Claimant's contract of employment to entitle the Claimant to claim =N=2,000,000.00 as general damages? In relation to Issue 1, learned Counsel submitted that the Claimant both in his Statement of Facts and under cross examination admitted that his Letter of Employment dated 1st December 2009, Code of Conduct dated 2nd December 1999 and AC Nielsen Nigeria Ltd Employee Policy contained the terms and conditions of his contract of employment. Counsel further submitted that although the Claimant maintained that end of service benefit are contained in Defendant's policy usually sent through e-mails and memos, Claimant did not tender any such written policy before the Court. Counsel submitted that it was for the Claimant who alleged the existence of the policy to lead evidence in proof of same, citing Section 136(1) Evidence Act 2011, A.C.B Plc v. Emostrade Ltd (2002) NWLR (Pt. 770) 501 at p. 516, Nsionu v. Nsionu (2011)16 NWLR (Pt. 1274) 536 at 547 and Anike v. SPDC (2011)7 NWLR (Pt. 1246) 227 at 140. Counsel urged the court to hold that the Claimant, not having produced the alleged policy of the 1st Defendant which entitled him to the end of service benefit, no such policy exist. On Issue 2, learned Counsel submitted that the Claimant having failed to produce evidence of the existence of the Defendant's policy on end of service benefit, there was no basis for the said calculation. Counsel submitted further that Claimant has failed to prove the facts adduced. He cited Agbaruka v. FBN Ltd (2010)3 NWLR (Pt. 182) 465, Ajileye v. Kayode (1998)4 NWLR (Pt. 545) 184. Learned Counsel urged the Court to hold that the sum of =N=2,091,466.00 which was claimed as the entitlements due as his end of service benefits has not been proved. In relation to Issue 3, learned counsel submitted that general damages is not available in an action relating to contracts of employment even when a breach of contract is proved. According to him, in an ordinary Master and Servant relationship where there is a breach of contract available remedies are in damages usually calculated to cover the period of notice necessary to terminate the contract as stipulated in the contract of service together with other accrued entitlements, if any, citing Western Nigeria Development Corporation v. Abimbola (1966)1 All NLR 159. Counsel however submitted that in the instant case the evidence is that the Claimant voluntarily resigned from the employment of the 1st Defendant on 4th December, 2009 which resignation the 1st Defendant accepted. He submitted that there has been no breach of contract and urged the court to hold that the Claimant was not entitled to any general damages. The 2nd defendant filed his Final Written Address on the 14th Nov 2013 in which he put forward 3 issues for determination as follows - 1. Whether the writ of summons and statement of claim in this suit discloses any cause of action against the 2nd Defendant in this suit; 2. Whether the 2nd Defendant is a necessary party to this action considering the claims of the Claimant in this suit; and 3. Whether the 2nd Defendant is liable in respect of the Claimant's claim. On Issue 1, learned Counsel submitted that the totality of the evidence led by the claimant against the 2nd defendant was that the latter was the General Manager of the 1st Defendant at the material time when the Claimant was in the employment of the 1st Defendant; that the 2nd Defendant handed the Claimant a query dated 4th December 2009 and that both the 2nd Defendant and the 1st Defendant's MD, Sub-Saharan Africa advised the Claimant to resign his appointment. These averments, according to Counsel did not depict any reasonable cause of action against the 2nd Defendant. To him claims for end of service entitlement are usually brought by employees against employer; that 1st Defendant is the employer of the Claimant. He submitted further that whatever role the 2nd Defendant could have played while in the employment of the 1st he did for and on behalf of the 1st Defendant which is a corporate body with capacity to sue and be sued. Citing GMBH v. Rivway Lines Ltd (1998)5 NWLR (Pt. 549) 265 at 270 and Ezekiel Okoli v. Morecab Finance (Nogeria) Limited (2007)14 NWLR (Pt. 1053) 37 at 57 urged the court to resolve the 1st issue in favour of the 2nd Defendant. On Issue 2, learned counsel submitted that the 2nd Defendant was not a necessary party to this action considering the claim of the claimant; that the action was mainly one between a former employee (servant) and his former employer (master) and that there are no averments of wrong doing by the claimant against the 2nd Defendant. Citing Ige v. Farinde (1994)7 NWLR (Pt. 354) 42 at 65; Anabaronye v. Nwakaihe (1997)1 NWLR (Pt. 482) 374 at 381 and Green v. Green (1987)3 NWLR (Pt.61) 480 Counsel submitted that the 2nd Defendant was not a necessary party to this suit considering the claims of the Claimant. In relation to Issue 3 on whether the 2nd Defendant is liable in respect of the Claimant's claim, Counsel submitted that as admitted by the Claimant under cross examination, 2nd Defendant was not the employer of the Claimant. 2nd Defendant was indeed an employee of the 1st Defendant just like the Claimant; that the Claimant voluntarily resigned his appointment with the 1st Defendant and that the 2nd Defendant did not play any adverse role in any form. He therefore urged the court to resolve this issue also in favour of the 2nd Defendant. The 2nd Defendant also filed a Reply on Points of Law to the Claimant's Final Written Address. That Reply was dated and filed 20th November 2013. Suffice for me to state that the said Reply did not contain anything new deserving a mention here except that additional judicial authorities were cited on the same principles of law earlier contained in the 2nd Defendant's Final Written Address dated 10th November 2013 and filed 14th November 2013. I have patiently and judiciously examined all the processes filed in this case. I have also read the Final Written Addresses of learned Counsel of both sides. I also did listen with rapt attention to the oral submission of counsel in court. Following from the foregoing, i have narrowed the issues for determination in this case down to three as follows: 1. Whether there is policy on payment of end-of-service benefits by the 1st Defendant to which the Claimant is entitled. 2. Whether there was a breach of the Claimant's contract of employment to entitle the Claimant to a claim of =N=2,000,000.00 as General Damages. 3. Whether the 2nd Defendant is a proper and/or necessary party in this suit. The purport of issue 1 is to determine whether there is in existence a policy of the 1st Defendant regarding payment of end-of-service benefit to employees. For, it is the determination of the existence of the policy in the first place that necessarily leads to a determination of how much a party claiming same is entitled to under the policy. It is the contention of the Claimant that indeed that policy existed. Defendants disagreed. Claimant agreed under cross examination that his Letter of Employment (Doc. 1); Code of Conduct (Doc. 2) and 1st Defendant Employee Manual (Doc. 3) formed the basis of his contractual employment with the 1st defendant. None of these documents contained any reference or mention of end-of-service benefits for employee. According to the Claimant there were yet other documents which formed part of the policy of the 1st Defendant. These documents, according to Claimant under cross examination, were usually sent from the Head Office of the 1st Defendant via electronic mail and memos. According to CW1 (Claimant) in response to a question under cross examination ''I don't have any of those e-mails and memos though they were sent to me''. The principle of the law that he who asserts must prove has become so notorious that it becomes superfluous citing any judicial decision in support of same. The burden of proving the existence of such policy is on the Claimant who would invariably lose if no evidence is led in support of same. Unfortunately, while the Claimant claimed that in his capacity as the 1st Defendant's Accountant he had prepared end-of-service benefits for other staff in the past he did not call any of such former staff of the 1st Defendant to testify in his favour at trial. He also did not provide any previous payment vouchers attesting to same. The Claimant in the instant case did not discharge the burden of proof for him to have issue 1 resolved in his favour. Thus i find and hold that there is no evidence before the court (except the mere assertion of the claimant) on the existence of 1st Defendant's policy on payment of end-of-service benefits to employees. Issue 1 as stated above is resolved in favour of the 1st Defendant. Was there a breach of the Claimant's contract of employment to entitle him to a claim of =N=2,000,000.00 as General Damages? This is the question to which the 2nd issue seeks an answer. Claimant did not allege a breach of his contract of employment. The claim for =N=2,000,000.00 was, according to his claim as stated on the General Form of Complaint ''for trauma and untold hardship the Claimant was subjected to''. There is no evidence before me on the said trauma and untold hardship the Claimant was subjected and by who. However, Doc. 6 tendered by the Claimant attested to the fact that Claimant voluntarily resigned from his employment with the 1st Defendant. Under cross examination by the 1st Defendant, CW1 said among others as follows - ''I wrote Doc. 6 (Letter of Resignation of Appointment) outside Defendants office. Mr. Marshall and 2nd Defendant were not present when i wrote Doc 6. I was alone then''. Now, according to Kekere-Ekun JCA (as he then was) in UTC Nigeria Ltd v. Samuel Peters (2009) LPELR 8426 the principle governing the award of general damages are to wit: general damages are such as the law presume to be the direct, natural or probable consequences of the act complained of. See also NEPA v. Auwal (2011)5 NWLR (Pt. 1241) 571 at 579. I find it difficult to appreciate how the trauma and untold hardship could be traced to direct, natural or probable consequence of the act of the Defendants in whatever form or guise especially in the light of Doc. 6 which the Claimant voluntarily wrote and submitted to the 1st Defendant. The law is trite that in a master/servant relationship a breach of contract will definitely attract damages which will be calculated on the basis of the length of notice require to properly terminate such a contract. I find and hold that the Claimant has not proved a breach of his contract of employment with the 1st Defendant to support a claim for damages. I also find and hold that the Claimant by Doc. 6 which he tendered voluntarily terminated his contract of employment with the 1st Defendant and is thus, not entitled to any claim for damages. The determination of whether or not the 2nd Defendant is a proper and/or necessary party to the present suit is the fulcrum of Issue 3. A party is said to be a proper party where though not interested in the claim of the plaintiffs, is nonetheless made a party for some good reason. A necessary party on the other hand is one who is not only interested in the subject matter of the proceedings but also in whose absence the question to be settled between the existing parties cannot be properly settled. See Green v. Green (1987) NWLR (Pt. 61) 481. By his averment and under cross examination, CW1 attested to the fact that 2nd Defendant was an employee of the 1st Defendant at the material time. The only connection of the 2nd Defendant with this case therefore would be that he acted in an official capacity as an officer of the 1st Defendant. What then is the good reason for joining the 2nd Defendant as a party in this case? I see none. Now, could the issues in this case be properly and effectively resolve without making the 2nd Defendant a party to same? I answer this in affirmative. I therefore find and hold that the 2nd Defendant was neither a proper nor a necessary party to this suit. Finally, i believe that these three issues have adequately addressed all the diverse issues raised by all parties in this case. I find and resolve all the issues in favour of the Defendants. The claims of the Claimant as endorsed in his General Form of Complaint dated 10th July 2012 fail. Judgment is entered accordingly. I make no order as to cost. ____________________ Hon. Justice J. D. Peters Presiding Judge