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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE O.O. OYEWUMI DATED 11th OF FEBRUARY, 2015 SUIT NO: NICN/LA/651/2012 BETWEEN MR. BASSEY OKON CLAIMANT AND UNIVERSAL INSURANCE COMPANY LIMITED DEFENDANT REPRESENTATION Ayobami Odeyemi with him is A. Chibundu (Mrs), Nnaji O.A (Miss), Sunday Adara, O.A Odimuko For the Claimant. Mr. Nwokoye N.N For the Defendant. JUDGMENT By a General Form of Complaint dated 16th of September, 2005 filed at the Lagos State High Court which was later transferred to this court in November 2012, the claimant claims against the defendant the following reliefs; 1. The sum of N465, 791.04 (Four Hundred and Sixty- Five Thousand, Seven Hundred and Ninety- one Naira, Four Kobo) only being the arrears of salaries and other entitlements outstanding as at 31st May, 2005 due to the claimant from the defendant and thereafter, the sum N9,011.20 representing the claimant’s salary per month from the month of June, 2005 till the determination of this suit. 2. Interest on the said arrears and other entitlements at the rate of 21% per annum from 1st April, 2002 until final liquidation of the judgment debt by the defendant. 3. General damages against the defendant company for the inconvenience, deprivation, mental and emotional distress caused the claimant by the company’s action. 4. N200,000.00 being the cost of this action. It is the claimant’s case that he was employed by the defendant as a messenger/ cleaner on the 9th of September, 1985. His employment was confirmed on the 17th of September, 1985 with an annual salary of N1,660.00. Claimant averred that he was made a full staff vide a letter dated 8th April, 1987 and in recognition of his selfless services rendered to the defendant’s company, claimant vide a letter dated 22nd of September, 1998 was made the Branch Manager/ Representative of the defendant’s company at Calabar. Claimant further averred that he was regularly paid his salary until April, 2002 when the defendant company stopped the payment of his salaries. Also in the same month, defendant stopped supplying the necessary working tools/ material and funds such as the imprest monthly allowance in the sum of N2,500.00 which was vital for the running of the day’s activities in the defendant’s Calabar branch. Claimant continued that despite the defendant’s lack of interest in the Calabar branch, he still worked tirelessly and was able to generate business for the company during the period and the proceeds paid into the defendant's account with United Bank for Africa. In his determination to keep the Calabar branch running and to keep the Company’s client, he wrote several memoranda dated 3rd February and 4th December, 2000, 21st January, 2002, 10th February and 2nd April, 2004 respectively to the Head Office Enugu notifying them of the challenges at his branch but same was not responded to by the defendant. Claimant went on that defendant relocated its headquarters from Enugu to Lagos in 2004 without intimating the Calabar Branch or the claimant of its movement. That he got to know upon enquiry from the neighbourhood of the defendant’s head office of its relocation. That upon his unyielding search, he visited the Lagos High Court where he found from the cause list of the court that the defendant is involved in a suit and thereupon discovered its new address as Plot 1204A, Amodu Ojikutu Street, Victoria Island, Lagos. Claimant traversed that upon discovery of the defendant’s new headquarters, he made a visit there, expressed his disappointment to the Managing Director and thereupon requested that he be paid his outstanding salaries and entitlements which have remained unpaid since 2002. The Managing Director requested him to return back to Calabar saying that he would come over to Calabar on the 25th -26th of April, 2005 and settle all outstanding bills and salaries. The defendant’s Managing Director never showed up as promised and the claimant after much waiting, instructed his solicitors vide a letter dated 1st of June, 2005 to formally demand his outstanding salaries and entitlement from the defendant. The defendant failed and neglected to respond to the letter. Claimant stated further that the defendant’s Calabar branch in March, 2005 was evicted from its rented office at No. 97 Goldie Street, Calabar. He also stated that he remains a bonafide employee of the defendant albeit the closure of the Calabar branch office. Claimant averred that the particulars of the arrears of salaries due to him as at 31st of May, 2005 and other entitlement as well as expenses incurred by the claimant in the course of his travel either to Enugu or Lagos are; a. Particulars of arrears of salaries/ entitlements: ARREARS OF SALARIES i. April 2002 – January 2003 (10 Months) At the rate of N6,009.84 per month N60,098.40 ii. February 2003 – May, 2005 (28 Months) At the rate of N9,011.20 per month N252,313.60 b. LEAVE ALLOWANCE i. 1998 – 2005 (8 years) at the rate of N7,000 per annum N56, 000.00 c. Transport fare from Calabar to Enugu on several occasion to deliver letters and correspondences N24, 328.00 d. Transport fare from Calabar to Lagos to trace the defendant’s company on three occasions N15, 480.00 e. Luncheon Vouchers from January 2002- May 2005 (892 working days) at the rate of N42.12 per day N37, 571.04 f. Borrowed fund to carry on the running of the Branch office. N20,000.00 TOTAL = N 465,791.04 The claimant during trial testified for himself and tendered documents which were admitted and marked as Exhibits BO1 – BO12. The defendant in response stated that the claimant was put on notice on the 15th March, 2004 to prepare the audit report of his department in Calabar furnishing the head office with assets and liabilities of the branch as his branch was closed and all entitlements accruing to the claimant and other staff would be paid by the new management. Defendant averred that the claimant did not seek the authority of the board of directors to borrow money for running the company and as such not liable. That the ownership of the defendant was formerly owned by the Eastern State Government of Nigeria before it was sold to a core investor in January, 2004. The defendant states that a trade dispute was declared by the Association of Bank and Insurance Senior Staffs Institutions by a letter dated 13th of May, 2004 and by a letter dated 26th of May, 2004 stated that all parties who had their employment terminated will be fully paid after handing over properly to the company. That the claimant employment was terminated vide a letter dated 27th of February, 2004 but still in possession of the defendant’s property thus not paid his entitlement. Defendant denies any increment of the claimant’s salary and stated that the claimant’s salary is N1,660.00. The defendant further denies 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 of the claimant's statement of facts and stated that the claimant did not travel with the authority of the defendant and thus not liable to whatever expenses incurred as a result of such a trip. Defendant prays the court to dismiss this suit as it is frivolous and speculative. The defendant during trial testified through Mr Peter Eze. He tendered documents which were admitted and marked as Exhibits PE. The claimant on the 4th of November, 2010 filed an additional statement on oath wherein he averred that he was not at any time intimated by the defendant of any change in its management neither did the defendant communicate to him as its Calabar Branch representative its intention of closing down its Enugu Head Office. That his appointment was never determined by the defendant on the 27th February, 2004 as he was still accorded the respect of a Branch Manager when by the defendant’s letter dated 5th of May, 2004 the defendant authorized the management of Unisure Guest House, GRA Enugu to allow him lodge in the Guest house as a Branch Manager. That he was never instructed to hand over the defendant property and he was not served any letter of termination and was not informed to audit the calabar branch record. He averred that his salary was reviewed by the defendant in course of his employment. That the then Assistant General Manager Finance showed him a memo in which staffs salaries including his has been reviewed effective from February, 2003 to N9,011.20. Claimant averred that he is a bonafide employee and branch manager of the Calabar branch of the defendant’s company until the unceremonious closure of the branch. He urged the court to grant his prayers and give judgment in its favour. The defendant on the 23rd of September, 2014 filed its written address where it raised three issues for determination; 1. Whether the claimant’s appointment was still subsisting having admitted in March 2005 the landlord carted away every property belonging to the defendant and the office was closed for business. 2. Whether the claimant is entitled to arrears of salaries and other entitlements. Plus interest at 21% per annum from April, 2002. 3. Whether the defendant is entitled to damages. On issue one, counsel submitted that by virtue of the letter served on the claimant in March 2005, he is no longer an employee of the defendant and this fact was admitted by the claimant in paragraph 33 and 35 of his statement that he stopped working for the defendant from March 2005. He stated that it is trite that facts admitted need no more prove. He cited in support SECTIONS 23 and 27 OF THE EVIDENCE ACT, 2011 and the case of EKPO V TOYO [2012] 8 NWLR (PT. 1303) PG. 460; OYEDELE V IFE U.T.H [1990] 6 NWLR (PT 155) at 1994 where it was held that an unwilling employer will not be compelled to keep an employer he no longer wants and the court cannot foist same on the employer. On issue two, Counsel also submitted that the refusal of claimant to handover the defendant’s properties in his possession made the defendant refuse to pay claimant’s entitlement. Counsel also submitted that claimant’s salary as stated in his employment letter is N 1,660.00 and the subsequent increase in the sum of N 6,000 and N9, 011.2 respectively and backed up with pay slips to show increase in salary is not supported by any letter to that effect from the defendant and there was no such increase. That it is the law that he who alleges must prove by credible evidence. He cited in support the case of FIRST BANK PLC V ASSOCIATED MOTORS CO. LTD [1998] 10 NWLR (PT. 570) PG 441 RATIO 11. Counsel also submitted that it never authorised the claimant to borrow money to fund the running of the office thus the defendant is not liable to the debt incurred by the claimant. He cited the case of A.C.B LTD V APUGO [1995] 1 NWLR (PT. 480) 194. On issue three, counsel submitted that from the totality of evidence, there is nothing to show that the claimant is entitled to damages. That damages follow event and it behoves on the claimant to show wrongful dismissal of which the measure is usually the amount of money that is payable during the period of notice to be given by the employer. He cited the case of ONALAJA V AFRICAN PETROLEUM LTD [1991] 7 NWLR (PT 206) 691 RATIO 1. Counsel also submitted that claimant did not tender any condition of service so as to guide the court on the basis to calculate his entitlement. That the claimant in this case did not suffer any loss thus his not entitled to salary not paid from 2002 to March 2005. Counsel urge the court to so hold. The claimant on the 2nd of October, 2014 filed its Written Address wherein he raised three issues for the court’s determination; 1. Whether the claimant has a contract of employment with the defendant company. 2. Whether the contract of employment existing between the claimant and the defendant has not been breached by the failure, refusal or neglect of the defendant to pay the claimant’s monthly salaries allowances and entitlements and reimburse all expenses incurred by the claimant in running the calabar branch office of the defendant. 3. Whether the claimant is entitled to be granted the sum of N465, 791. 04 with other reliefs being claimed in this suit On issue one, counsel submitted that by paragraph two of defendant statement of defence, it admitted that the claimant has a contract of employment with the defendant. He cited the case of N.I.I.A V ANYANFALU [2007] 2 NWLR (PT 1018), 246 AT 271. Counsel stated that the defendant did not lead any credible evidence in support of its assertion that the claimant’s employment was terminated as no letter of termination was tendered before the court thus the defence has no case. Counsel also stated that the defendant cannot rely on doctrine of frustration to discharge the existing contract between the claimant and the defendant because frustration occurs whenever the law recognises that without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from what was undertaken by the contract. He cited the case of A.G CROSS-RIVERS STATE V A.G FED [2012] 16 NWLR (PT. 1327) RATIO 5 Counsel submitted that frustration is not the case here as the landlord was after the property when the defendant defaulted in it rent. Counsel urge the court to hold issue one in his favour. On issue two, counsel submitted that a careful perusal of the pleadings filed by the defendant reveals that the defendant admitted not paying the claimant his arrears of salaries and entitlement because he failed to handover the defendant’s property in his possession and in which defendant is aware that the properties were carted away by the landlord of the premises occupied by the defendant’s calabar branch. Counsel stated that duly notified the defendant of the situation in his branch vides letters dated 10th of February, 2004 and 2nd April, 2004 Exhibits A 11 and A12 and by a letter dated 12th of April, 2005 Exhibit A16 informed the defendant that the landlord has taken possession of the company. He stated that the defendant company has no justification whatsoever to withhold his arrears of salary and entitlement and the act of doing so breached the claimant employment. Counsel urge the court to so hold. On issue three, counsel submitted that the sum of N465,791.04 are claims for arrears of salaries and other entitlement outstanding as at 31st of May, 2005. That some of claimant’s claims were supported with evidence which was not challenged by the defendant. As regards claimant’s claim for increment of his salary by the defendant to N6,009 in March 2002 and N9,011.20 February, 2003 respectively exhibits A18, A19 and A20 the claimant’s payslip was tendered by the claimant. Counsel submitted that under cross examination, DW1 admitted that claimant is entitled to leave bonus, other allowances and gratuity having worked for 19yrs. That the trips made by the claimant to Enugu, Lagos and the sum of money borrowed to run the branch were neither controverted nor challenged by the defendant and evidence adduced by the claimant in support of the claim by Exhibits A6, A7 and A21. He cited the case of OLUWOLE V ABUBAKARE [2004] 10 NWLR (PT. 882) 549 AT 569 D-G. Counsel submitted that having regard to the way and manner the defendant company deprived the claimant his salaries and other entitlement since April, 2002 , the claimant is entitled to interest of 21% per annum. He urged the court to hold in his favour. Upon an indepth and careful consideration of the processes filed in this case, the submission of Counsel to both parties and the authorities referred to in support of the arguments of both counsel. In my view, the issue for determination is whether or not the claimant is still in the employ of the defendant and whether the claimant has proven his claims to entitle him to the reliefs sought. It is the claimant assertion that he was employed by the defendant as a messenger/ cleaner on the 9th of September, 1985. His employment was confirmed on the 17th of September, 1985 with an annual salary of N1,660.00. Claimant gave evidence that he was made a full staff vide a letter dated 8th April, 1987 and in recognition of his selfless services rendered to the defendant’s company, claimant vide a letter dated 22nd of September, 1998 was made the Branch Manager/ Representative of the defendant’s Company at Calabar. Claimant stated that he was regularly paid his salary until April, 2002 when the defendant Company stopped the payment of his salaries. The defendant contended that the claimant was put on notice on the 15th March, 2004 to prepare the audit report of his department in Calabar furnishing the head office with assets and liabilities of the branch and handover to the company as his branch was closed and all entitlements accruing to the claimant and other staff would be paid by the new management. It is on record that amongst the documents adduced in evidence by the defendant includes a letter dated 27th of February, 2004 which purportedly terminated the claimant’s employment and instructed him to hand over to the internal Auditor on the 15th of March, 2004. However claimant in his additional statement of claim dated 4th of November, 2010 challenged the averment and stated that at no point in time was he informed of any change in its management and his termination was not determined on the 27th of February, 2004 as he was still accorded respect by the defendant as the Branch Manager of Calabar branch, when the defendant by a letter dated 5th of May, 2004 introduced him as its Branch Manager to allow him lodge into the guest house on one of his trips to Enugu. It is trite that termination of employment takes effect not from the date of termination but from the date in which such termination is communicated to the employee/ employer as the case may be. See the cases of MRS IJEOMA ANYAEHIE V FIDELITY BANK PLC UNREPORTED SUIT NO NICN/LA/622/2012 DELIVERED ON THE 23RD OF SEPTEMBER, 2014; HORWOOD V LINCONSHIRE COUNTY COUNCIL [2012] UKEAT 0462/11. There is nothing on record of this Court to show that the letter of termination of the claimant's employment was communicated to him. Also worthy of mention is the fact that the defendant neither controverted nor challenged the assertion of the claimant that he was still accorded respect by the defendant’s by a letter dated 5th of May, 2004 i.e. exhibit BO9 authorising the management of Unisure Guest to allow him lodge there as the defendant’s Branch Manager on one of his trips to Enugu after about two months of the purported letter of informing the claimant of defendant’s change in its management and claimant's termination of employment thus the assertion of claimant is deemed to be true and thus accepted by the court in the circumstances of this case. The Court will not condone the defendant's blowing hot and cold, or approbating and reprobating. An employer who has terminated the employment of its employee cannot at the same time write a letter on its letter head paper that he should be accorded the honour and respect of a branch Manager. No reasonable human can so act. Thus I find and hold that the letter dated 27th of February, 2004 which purportedly terminated the claimant’s employment was never communicated to the claimant as the defendant as seen never intended to terminate his employment, consequently the employment of the claimant in the employ of the defendant still subsists. However, the law is common that in a master servant relationship as it is in this case, the Court cannot foist on an employer an unwanted employee. See OSAKWE V NIG PAPER MILL LTD [1998] 10NWLR (PT.568). The letter purportedly written by the defendant on 27th February, 2004 and the non payment of the claimant salary since April, 2002 both evince an intention on the part of the Defendant to repudiate the contract of employment of the Claimant in this case. It is in this regard that, I find and hold that the defendant has by conduct determined the employment of the claimant, it should be clearly stated here however, that the termination takes effect from today being the date of this judgment and not on the 27th of February, 2004 as alleged by the defendant. As regards the second issue, It is the contention of claimant that the defendant company stopped the payment of his salaries in April, 2002. The defendant on the other hand admitted that the claimant is entitled to his salary in arrears and other entitlement but before he can claim them, he must have handed over the properties of the defendant. The claimant under oath stated that the said properties were in the possession of the landlord of the defendant as he was ejected out of the premises on the 1st of March, 2004. It is trite that facts admitted need no further proof. However the pertinent issue here is what was the last pay of the claimant, this will aid the Court to decide on his salary arrears to be paid by the defendant. It is claimant’s claim that his salary was increased by the defendant to N6,009.84 in March 2002 and N9,011.20 February, 2003 respectively. By Exhibit BO5 dated March, 2002 the payslip of the claimant reveals that the salary of the claimant from March, 2002 is the sum of N6,009.84. However, the claim of claimant that his salary was increased in February 2003 was not substantiated with any document. Therefore, the claimant’s claim that his salary was further increased in February 2003 in the sum of N9, 011.20 fails. The implication of this is that the Court will calculate his salary arrears based on his salary as per exhibit BO5, i.e. the sum of N6,009.84. I thus find and hold that claimant's salary in arrears is to be calculated from April 2002 till date i.e. 154 months multiply by the claimant's salary of N6,009.08 = N925,398.32. It is also the claim of the claimant that he is entitle to leave allowance of N7,000 per annum from 1998 till date. A perusal of the record could not show any evidence in support of his claim, consequently this clam fails as well. Claimant also claims for the sum of N24, 328.00 being the sum expended from his pocket as transportation fare from Calabar to Enugu to deliver letters and correspondences and the sum of N15, 480.00 as the transportation fare from Calabar to Lagos used by the claimant in search of the defendant’s company. The defence on the other hand denies the liability of the cost incurred by the claimant and submitted that it never authorised such a trip and thus such expenses should be borne by the claimant and not it. It is worthy of note that the sum of N24,328.00 being the sum expended from his pocket as transportation fare from Calabar to Enugu to deliver letters and correspondences is unsubstantiated by claimant in evidence as it is the law that reliefs sought for must be properly substantiated for by the party who seeks such claim. SEE PATRICK NJOKU V ACCESS BANK PLC SUIT NO NICN/LA/649/2012 DELIVERED ON THE 12TH OF MAY, 2014. Thus I find and hold that claimant’s claim for his transport fare from Calabar to Enugu fails. With respect to claimant's claim for transport fare from Calabar to Lagos, claimant adduced in evidence vide Exhibit BO10 the bus ticket, which reveals that the claimant made different trips from Calabar to Lagos on different dates as represented in Exhibit BO10 and the sum of money expended on each trip the total of which is N15,480. I find that the claimant has sufficiently established in evidence the sum for which he claims the sum of N15,480.00. The claim of N20,000, the claimant allegedly borrowed to carry on the business of defendant’s branch. A careful perusal of the courts records and evidence adduced show that the sum claimed by the claimant is unsupported in evidence as it is the law of common that he who asserts must prove. See. OKUBULE V OYAGBOLA [1990] 4NWLR (PT. 147) PG. 72; MR OMAGE JOHNSON V SUPREME PHARMACEUTICALS COMPANY AND ANOR UNREPORTED SUIT NO NICN/LA/53/2013 DELIVERED ON THE 15TH OF MAY, 2014. I find and hold that claimant’s claim for N20,000 fail and thus dismissed. I am empowered by section 14 of the National Industrial Court Act, 2006 to grant such remedies whatsoever as any of the parties may be entitled to in respect of any legal or equitable claim, and to ensure the final determination of the suit. See also the case law authority lending credence to this. The case of CHIKOZIE EZE &147 ORS V GOV. OF ABIA STATE & 2 ORS [2014] NWLR (PT 1426) AT PP 218-219, 221- 222 PARAS G-A. It is on this premise that I make these declarations and orders- 1. That the claimant's employment was not determined by the defendant's letter dated 27th February, 2002, as the purported letter of termination was never communicated to him by the defendant. 2. The claimant's employment relationship is hereby determined by the Court. 3. That the claimant’s salary in arrears from April 2002 till date, which is ( 154 months) at the rate of N6,009.08 = N925,398.32 shall be paid by the defendant within 30 days of this judgment. 4. That the claimant’s claim in the sum of N24,328.00, N56,000 leave allowance and N20,000 borrowed fund fail and dismissed. 5. It is ordered that the defendant shall pay the sum of N15,480.00 to the claimant as transport fare from Calabar to Lagos. 6. That the defendant shall pay the accrued terminal benefits of the claimant based on his status as a Branch Manager less any outstanding debt within one month of this judgment. 7. I award the sum of N6,009.08 as salary in lieu of notice to the claimant. 8. The claimant shall hand over any of the defendant's properties in his possession to the defendant. 9. I award the cost of N20, 000.00 to the claimant. Judgement is accordingly entered. HON. JUSTICE OYEWUMI O.O JUDGE.