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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: DECEMBER 15, 2014 SUIT NO. NICN/LA/450/2012 BETWEEN Mr. Bamidele Adekala - Claimant AND 1. Suru Suites and Hotels Limited 2. Mr. Edward Akinlade - Defendants REPRESENTATION Folorunso Ogunekun, for the claimant. Bidwell Onyeakosi, for the defendants. JUDGMENT The claimant by a complaint and the statement of facts both dated and filed on 4th September 2012 is claiming against the defendants the following reliefs – 1. A declaration that the termination of the claimant’s employment by the defendant on the 23rd day of April 2012 was illegal and contrary to the terms of agreement between the claimant and the respondent. 2. An order that the respondent should pay the three months pay in lieu of notice of termination of N1,125,00.00k (One Million, One Hundred and Twenty-Five Thousand Naira) as contained in the claimant’s termination letter dated 23rd of April 2012. 3. An order that the respondent should pay the sum of N2,750,000.00k (Two Million, Seven Hundred and Fifty Thousand Naira) to the claimant being the latter’s service charge according to the contractual agreement. 4. An order that the payments should attract 15% interest. 5. An order that the respondent should pay the sum of N10 Million (Ten Million Naira) being the cost of general damages to the claimant. Accompanying the complaint are the statement of facts, the claimant’s statement on oath, list of correspondence to be relied upon and copies of the correspondence. The defendant entered formal appearance by filing the memorandum of appearance, statement of defence, list of witness, statement on oath of the witness, list of documents to be relied upon and copies of the documents. In reaction, the claimant filed a reply to the defendant’s statement of defence. At the trial, the claimant testified on his own behalf as CW, while Olugboyega Falana, a Human Resource Personnel of Best Western Lagos Ikeja Hotel, a hotel under Suru Suites and Hotels Ltd, testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendants. The defendants’ written address is dated and filed on 3rd July 2014, while that of the claimant is dated 8th July 2014 but filed on 9th July 2014. The defendants did not file any reply on points of law. The case of the claimant is that he was employed by the defendant on 1st July 2010 as Head of Finance, which appointment was confirmed via a letter dated 6th June 2011. The claimant’s appointment was, however, terminated vide a letter dated ‘23rd April 2011’ with effect from 23rd April 2012. The letter of termination stipulated the claimant is to collect his final pay which includes three months’ pay in lieu of notice totaling N1,125,000.00k, an amount the claimant is accordingly claiming in this suit. The claimant is also claiming a service charge of N125,000 per month totaling N1,125,000 as well as general damages and interest on the sums. The case of the defendant on the other hand is that following the termination of the claimant’s employment on 23rd April 2012, a wrongly assessed entitlement was stated in the termination letter and on discovery of same the claimant was recalled to collect the rightly assessed termination but the claimant declined. The claimant was subsequently issued a cheque in terms of the correctly assessed terminal benefit which he refused and same was later paid into his salary account maintained with Prolific Microfinance Bank, bankers of the 1st defendant. The defendants also raised objection as to the propriety of joining the 2nd defendant (who is only a shareholder in the 1st defendant) in this suit. The defendants framed three issues for the determination of the Court. They are – 1. Whether the claimant has discharged the burden of proving that he is entitled to the reliefs sought for at paragraph 15(1), (2) and (3) of the statement of claim. 2. If issue 1 is resolved in the negative, whether the claimant is entitled to award of general damages and or interest on the sums claimed. 3. Whether the claimant has disclosed reasonable cause of action against the 2nd defendant to make him a necessary party in this suit. Regarding issue 1, the defendants contended that the reliefs claimed by the claimant against the defendants do not indicate what reliefs are claimed against each of the defendants; as such they are vague and do not even march the evidence on oath. That the gap created between the statement on oath and the pleadings is such that the Court cannot even fill, referring to J. S. Olawoyin v. AG, Northern Nigeria [1961] 2 SCNLR 5; [1961] 1 All NLR (Pt. 2) 269 at 271 and 276. The defendant also submitted that the entire documentary evidence tendered by the claimant in support of his pleadings do not connect or have the name of the 1st defendant mentioned on it as the maker or originator. That the claimant failed to join Best Western Hotels, Ikeja, being a necessary party, whose presence is crucial to the effective and final determination of the issues in controversy. The defendants proceeded to argue that, regarding relief 1 claimed by the claimant, the relationship of the claimant and the 1st defendant is founded on ordinary master and servant relationship; and given the contract of employment between the parties, it cannot be said that the termination of the claimant’s employment was illegal since additionally the contract of employment is not statutory. That relief 1 remains incompetent. In respect of relief 2, the defendants submitted that the termination letter cannot create a new contractual obligation outside of the employment and confirmation letters. To the defendants, the sum indicated on the termination was a wrong assessment; and the correct sum was paid into the claimant’s salary account number 1037651020 with Prolific Microfinance Bank Ltd. The defendants referred the Court to the letter of employment which states that that either party may terminate by giving three months’ notice or pay three months’ basic salary in lieu of notice. That the claimant’s basic salary per month was N150,000 and so his claim for three months’ basic salary in lieu of notice cannot be more than N450,000. To the defendants, every staff of the 1st defendant mandatorily maintains an account with Prolific Microfinance Bank Ltd. Regarding relief 3, the defendants contended that the claimant did not lead evidence to show that the service charges claimed by him are earned as provided under his employment letter. As to the claim for damages (issue 2), the defendants submitted that the claimant is not so entitled as the Court will not impose a willing servant on an unwilling master. In any event, that the measure of damages is the salary and entitlement of the servant for the duration of the notice (International drilling Co. (Nig.) Ltd v. Moses Eyeimofe Ajijala [1976] 2 SC 64 at 73 – 74) as damages are not meant to give the servant a windfall. That in the instant case, the claimant at best is entitled to three months’ basic salary and no more. In regards to issue 3, the defendants prayed the Court to hold that the facts contained in the claimant’s writ of summons, statement of facts and documentary evidence placed before the Court do not connect the 2nd defendant in any respect especially having regard to all the reliefs sought by the claimant. That as such, there is no reasonable cause of action against the 2nd defendant. The defendants then prayed the Court to resolve all issues in their favour. In reaction, the claimant first complained about the defendant not paying the cost of N10,000 awarded against the defendants at the Court’s sitting of 30th January 2014. The claimant then framed five issues for the determination of the Court, namely – (a) Whether it is absolutely right for the defendants to deliberately disobey the Honourable Court’s order. (b) Whether the claimant should be entitled to the claims sought. (c) Whether the documentary evidence could be the best credible evidence. (d) Whether a reasonable cause of action did arise between the claimant and the defendant. (e) Whether the claimant is entitled to general damages and interest. Regarding issue (a), the claimant contended that for the defendants to disobey the order of this Court made on 30th January 2014 amounts to gross contempt of court. The claimant did not, however, say what the Court should do as a result of the disobedience. On issue (b), the claimant contended that in addition to his oral evidence on oath, he tendered some documents before this Court which were admitted. Again, the claimant did not tell the Court what to do with this submission here. Regarding issue (c), the claimant contended that it is trite law that documentary evidence remains the best and credible evidence, while the defendants did not tender a single document. Once again, the claimant did not tell the Court what to do with this submission. On issue (d), the claimant submitted that there is a reasonable cause of action between him and the defendants. Even when the defendants submitted that they paid in a cheque on behalf of the claimant, the claimant submitted that no copy of the cheque was tendered before this Court; neither were the particulars of the account with Prolific Microfinance bank tendered before this Court. Regarding issue (e), the claimant submitted that he is entitled to some general damages and interest. That he was denied his entitlements since 2012 till date and so it is logical that he would have lost immense financial and some unquantifiable mental torture. In conclusion the claimant urged the Court to grant his prayers. Like I pointed out earlier, the defendants did not file any reply on points of law. I heard learned counsel and considered all the processes in this case. The sole issue before the Court is whether the claimant has made out a case in terms of his claims against the defendant. In considering the merit of the case, the defendant has raised as a preliminary point the propriety of having to sue the 2nd defendant in this suit. In paragraph 4 of the statement of facts, the claimant described the 2nd defendant as the Chairman/Chief Executive Officer/Group Managing Director of the 1st defendant; and in paragraph 5 of the claimant’s statement on oath, the 2nd defendant was described in like manner. The problem is that the 2nd defendant is not sued as such. He is sued in his personal capacity. The 1st defendant is a corporate entity with distinct personality and capable of suing and being sued. In that capacity, it is wrong for the claimant to sue the 2nd defendant in his personal capacity for a wrong committed by the 2nd defendant in its corporate capacity. I accordingly agree with the defence counsel that the 2nd defendant has been inappropriately sued in this case. All claims against the 2nd defendant must, therefore, fail; and I so find and hold. They are accordingly dismissed. The defendant also argued that the entire documentary evidence tendered by the claimant in support of his pleadings do not connect or have the name of the 1st defendant mentioned on it as the maker or originator, and so the claimant cannot claim against the 1st defendant. To start with, DW in evidence introduced himself as a Human Resource Personnel of Best Western Lagos Ikeja Hotel, a hotel under Suru Suites and Hotels Ltd. A look at Exhibit C2, the offer of employment, will show that ‘Suru Suites and Hotels Limited’ is indicated at the top right-hand part of the letter with RC 731905 written beneath it. Exhibit C3, the letter of confirmation, has Best Western Lagos Ikeja Hotel as the headed logo of the letter; and at the bottom of the letter are the words “Each Best western hotel is independently owned and operated. Owned by Suru Suites and Hotels Limited, and managed by African Sun limited”. Exhibit C4, the termination letter has “Best Western Plus Lagos Ikeja Hotel” as the headed logo of the letter and repeats the same words at the bottom of the letter as the words in Exhibit C3. What I gather from all of this is that all these outfits belong to a group owned by one and the same owners. The argument of the defendant here is simply relying on an undue technicality, a technicality created by the defence itself from which it hopes to benefit. Piecing the corporate veil means denouncing the argument of the defence in that regard. It is my finding and holding, therefore, that Best Western Hotels Ltd is one and the same with the 1st defendant in this suit. The argument of the defence counsel in that regard accordingly fails and so is dismissed. Like I pointed out earlier the issue before the Court is whether the claimant has proved his case; and in considering this issue, it will be most ideal to consider it in terms of the reliefs claimed by the claimant. Relief 1 is for “a declaration that the termination of the claimant’s employment by the defendant on the 23rd day of April 2012 was illegal and contrary to the terms of agreement between the claimant and the respondent”. To be able to know if this relief is grantable, regard must be hard to the terms of the employment contract. Both Exhibits C2 and D1 contain a clause on termination (clause 6), which is to the effect that either party may terminate the contract of employment by giving the necessary notice which in the case of the claimant (given his confirmation) is three months notice or payment of three months’ basic salary in lieu of notice. In terms of this clause, there is no doubt that the defendants when they terminated the employment of the claimant vide Exhibit C4 were in the right. Although Exhibit C4 is dated 23rd April 2011 and states that the termination is with effect from 23rd April 2012, the date “23rd April 2011” must be one made in error. This is because the claimant was confirmed vide a letter dated 6th June 2011. The claimant’s employment could not have been terminated before the claimant was confirmed. I, therefore, find and hold that the claimant’s employment was terminated on 23rd April 2012, not 23rd April 2011; as such the termination was with immediate effect. In this sense, the defendants were accordingly within the terms of the employment contract when they terminated the claimant’s employment; and I so find and hold. This means that relief 1 is not grantable. It fails and is accordingly dismissed. Relief 2 is for “an order that the respondent should pay the three months pay in lieu of notice of termination of N1,125,00.00k (One Million, One Hundred and Twenty-Five thousand Naira) as contained in the claimant’s termination letter dated 23rd of April 2012”. Exhibit C4 is the termination letter and puts the three months’ pay in lieu of notice as N1,125,000, the sum presently claimed by the claimant. The defendants’ argument here is that this sum is an error as it is not in consonance with the employment contract between the parties. As I indicated earlier, both Exhibits C2 and D1 contain a clause on termination (clause 6), which is to the effect that either party may terminate the contract of employment by giving the necessary notice which in the case of the claimant (given his confirmation) is three months notice or payment of three months’ basic salary in lieu of notice. Now, Exhibits C5(a), C5(b) and C5(c) are pay-slips and they all put the claimant’s basic salary at N150,000 per month. This means that the three months’ basic salary in lieu of notice due to the claimant from the defendant is N450,000. By the contract of employment between the parties, therefore, N450,000 is what is due and payable to the claimant; but the claimant is claiming N1,125,000 simply because that is the amount stated in Exhibit C4, the letter of termination. I am satisfied with the explanation of the defendant that the figure N1,125,000 is one that was given in error and so should be corrected. To draw a corollary, Obo v. Commissioner of Education [2001] 2 NWLR (Pt. 698) 625 held that where an employer inadvertently pays salaries into the account of an employee who is on study leave without pay, this is a mistake of fact and not of law and, therefore, the amount so mistakenly paid is recoverable. The case went on that where an employee who though might not have influenced or organized the continued payment of his salaries into his account begins to spend such salaries, which to his knowledge he is not entitled to rather than inform his employer, such spending is fraudulent. It is within the knowledge of the claimant that his basic salary per month is N150,000. So the claimant ought to know that the sum of N1,125,000 indicated in Exhibit C4 as his three months’ basic salary in lieu of notice is an error, an error of fact at that. This error is accordingly curable; and if the payment were to have been made to the claimant, it would have been recoverable. It is, therefore, my finding and holding that what is due and payable to the claimant as salary in lieu of notice is N450,000, not N1,125,000 as erroneously indicated in Exhibit C4. The defendants, however, argue that the said amount of N450,000 has been paid into the account of the claimant in a bank (Prolific Microfinance Bank Ltd) owned by the 1st defendant. In evidence and in their submission, the defendants would assert that every staff of the 1st defendant mandatorily maintains an account with Prolific Microfinance Bank Ltd. To start with, it is an unfair labour practice for an employer to own a bank and then compel his employees to open salary accounts with that bank. In Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd unreported Suit No. NIC/LA/30/2008 the judgment of which was delivered on 13th December 2012, this Court in a similar scenario held as follows – Also unfair labour practice is the respondent compelling the claimants to bank with Equatorial Trust Bank, a Bank that the respondent has an interest in, by paying the claimants’ salaries into accounts they were compelled to operate with the Bank since the claimants were not left with any option as to the choice of a Bank. In the instant case, therefore, I find that having to compel the claimant to open a salary account with Prolific Microfinance Bank Ltd, a Bank owned by the 1st defendant, is an unfair labour practice. The directive by the 1st defendant to so open the account is illegal, a nullity and of no effect whatsoever. The argument of the defendants that it paid the claimant entitlements into his account in Prolific Microfinance Bank Ltd unfortunately is not even substantiated by the defendant (given the denial by the claimant) before the Court. As such the sum of N450,000 is still due and payable by the 1st defendant to the claimant; and I so find and hold. Relief 3 is for “an order that the respondent should pay the sum of N2,750,000.00k (Two Million, Seven Hundred and Fifty Thousand Naira) to the claimant being the latter’s service charge according to the contractual agreement”. Exhibit C2 frontloaded by the claimant is the document that made provision for service charge in the following words: “Service charge = N125,000.00 Per Month, subject to sales/service charge earned”. In making this claim, the claimant assumed it is automatic. But like argued by the defendants, that is not the case. The claimant to be able to claim it must show that sales were made and the service charge was earned by him. This the claimant did not do. Nothing was shown to the Court to indicate that the claimant earned this head of entitlement. Relief 3 accordingly fails and is hereby dismissed. Relief 5 is for “an order that the respondent should pay the sum of N10 Million (Ten Million Naira) being the cost of general damages to the claimant”. The argument of the claimant for this head of claim is that he was denied his entitlements since 2012 till date and so it is logical that he would have lost immense financial and some unquantifiable mental torture. This is speculative and sentimental. The claimant has not shown how he arrived at the Ten Million Naira he is claiming here. In any event, I agree with the defendants that the measure of damages in a wrongful termination case is the amount due to the claimant in lieu of notice. N450,000 has already been awarded by this Court. The claim for general damages accordingly fails and so is dismissed. Relief 4 is for “an order that the payments should attract 15% interest”. By Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, this Court does not award pre-judgment interest. Relief 4 accordingly fails and is accordingly dismissed. On the whole, and for the avoidance of doubt, this Court orders as follows – 1. The 1st defendant shall pay to the claimant the sum of Four Hundred and Fifty Thousand Naira (N450,000) only representing payment of three months’ basic salary in lieu of notice due and payable to the claimant. 2. Cost of this suit is put at One Hundred Thousand Naira (100,000) only, which when added to the Ten Thousand Naira (N10,000) ordered to be paid at the Court’s sitting of 30th January 2014 makes total of One Hundred and Ten Thousand Naira (110,000) only. 3. All sums in orders 1 and 2 above are payable within 30 days of this judgment; failing which they shall attract interest at the rate of 10% per annum. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip