OGBONNA V NEPTUNE SOFTWARE LTD

OGBONNA V NEPTUNE SOFTWARE LTD


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

ON THE 8TH DAY OF OCTOBER, 2015


SUIT NO: NICN/LA/04/2014

CITATION: NIC (2015) 10 LLER 2

CORAM:
HON. JUSTICE J. D. PETERS


BETWEEN

EMEKA FRESHMAN OGBONNA

(CLAIMANTS)

AND

NEPTUNE SOFTWARE LIMITED

RESPONDENTS


REPRESENTATION
Jude Ezea for the Claimant.

Niran Orojimi for the Defendant.

PRONOUNCEMENTS

A. DAMAGES
1. General damages and exemplary damages–Legal principles guiding award of same

The position of the law is that General Damages may be awarded to assuage such loss which flows from the Defendant’s act. It needs not be specifically pleaded. It is said to arise from inference of law and need not be proved by evidence. It suffices if it is generally averred. Karibi-Whyte JSC in Yalaju-Amaye v. Associated Registered Engineering Contractors Limited & Ors. (1990)LPELR-SC.198/1986 espoused the law further when His lordship added that General Damages are presumed by the law to be the direct and probable consequence of the act complained of and that unlike special damages, it is incapable of substantially exact calculation. See also British Airways v. Atoyebi (2014)LPELR-SC.332/2010. Respecting exemplary damages, Iguh, JSC stated the law very clearly in Anthony Odiba v. Tule Azege (1998) LPELR-2215(SC), (1998)7 S.C (Pt. 1) 79 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. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men”. READ IN CONTEXT

B. EQUITABLE RELIEF
2. Lien–What amounts to?

Halsbury’s Law of England, 4th Edition paragraph 73 described the nature and formation of lien as follows; “Lien in its proper sense is a right which law gives, but it is useful to speak of lien by contract, and numerous instances of a right to detain goods as security depends for their effect on the validity, scope and construction of the governing contract. The Court has also described a lien in its primary or legal sense to mean ‘a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied’. READ IN CONTEXT

C. LABOUR LAW
3. Probationary Employment–Legal Status of a probationary employment. How may such employment be terminated?

In Simeon O. Ihezukwu v. University of Jos (1990) LPELR-1461(SC), (1990)7 S.C (Pt. 1) 18, the Supreme Court, per Wali, JSC, pointed out that the essence of probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period; that where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiration of that period. A major rationale for putting an employee on probation is simply to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment. An employment on probation is akin to a temporary employment; an employment under observation. An employer may decide whether or not to confirm such an appointment where the attached conditions are not met. I may as well add that an employer is not under an obligation to give notice of termination to an employee who is on probation until the employment is confirmed. This is because the employment relationship between the parties is an inchoate one. READ IN CONTEXT

4. Wrongful Termination of Employment–On the need to tender the contract of service, and on whom lies the duty to tender it and show that the termination was in violation of same;

…the law remains trite that in the determination of whether or not an employment is properly terminated the first port of call is the contract of service between the parties. It is thus the duty of the Claimant to lay before the Court the document containing his terms and conditions of employment and direct the attention of the Court to how the termination of his employment is not in compliance with the contract document. See Fakuade v. O.A.U.T.H (1993)5 NWLR (Pt. 291) 47 & Idoniboye-Ode v. NNPC (2003)5 NWLR (Pt. 805) 589 at 630. READ IN CONTEXT

JUDGEMENT

This case was commenced at the Lagos Judicial Division of the High Court of Lagos State by a writ of summons on 4/6/09. Pursuant to an order made on 22/10/13 by Olateru-Olagbegi, J of that Court, this case was transferred to this Court. The Claimant, by his Complaint filed on 27/2/14, sought the following reliefs against the Defendant –

  1. A Declaration that the termination of the Claimant’s employment by the Defendant is wrongful.
  2. A Declaration that the Defendant is liable to pay the Claimant the sum of Nine Hundred and One Thousand, Four
    Hundred and Seventy Eight Naira, Eighty Seven Kobo.
  3. Damages in the sum of Ten Million Naira (N10,000,000.00) for the wrongful harassment and intimidation of the
    Claimant by the Defendant.
  4. A Declaration that the Claimant holds his office car in lien pending the hearing and determination of this suit.
  5. Interest at the rate of 22% per annum from 7th May 2000 till full and final settlement of the judgment sum.
  6. Cost of this action.

The Claimant filed all requisite processes and frontloaded all documents intended to be relied upon as mandated by the Rules of this Court. The Defendant on the other hand filed its statement of defence along with all requisite frontloaded processes on 31/3/14 and counterclaimed as follows –

  1. An Order of this Honourable Court for immediate delivery up of the car or payment of =N=2,000,000.00 (Two
    Million Naira) being the value of the said car at the time of conversion and detention.
  2. An Order of the Court for delivery of the blackberry mobile phone or payment of =N=65,000.00 (Sixty Five

Thousand Naira) being the value of the phone at the time of conversion and detention.

  1. =N=400,000.00 (Four Hundred Thousand Naira) being the cost of car rentals from 11May 2009 to July 17, 2009
    and thereafter, =N=40,000.00 weekly.
  2. General and exemplary damages for conversion and detention at =N=10,000,000.00 (Ten Million Naira).
  3. Cost of this action.

Subsequently, the Claimant on 13/5/14 filed a reply and defence to counterclaim. The hearing of this case commenced on 30/6/14 when the Claimant testified as CW1, adopted his statement on oath dated 27/2/14 as his evidence in chief and tendered 6 documents as exhibits. The 6 documents were admitted without objection and marked as Exh. C1-Exh. C6.

The case for the Claimant as revealed by his pleadings is that he was employed by a letter dated 5/9/08 as Defendant’s Business Development Manager; that the letter contained his working conditions; that offer of employment was for a probationary period of six months in the first instance at the end of which the Defendant may confirm same based on satisfactory performance; that his appointment is subject to termination by one calendar month notice in writing on either side; that his employment was terminated by a letter dated 7/5/09 without requisite notice and without paying his salary for the month of April and other accrued allowances; that he holds on to his official car as a lien pending the outcome of this proceeding and that the Defendant failed to respond to letters written by the Claimant and hence this suit.

Under cross examination, CW1 testified that Mr. George Agu was his former Managing Director to whom he reported directly; that due process was not followed in the termination of his appointment; that he was never issued a query; that sometimes in February 2009, he was given a memo titled “Poor Performance”. According to the witness, as a result of Exh. C5, he sent a memo to the entire Team; that he was called on phone and told that his appointment had been terminated; that he was subsequently served a letter dated 7/5/09 terminating his appointment; that he was never advised to contact Account for his salary; that he was not allowed access to the Defendant; that he waited at the gate and eventually left; that he sent a letter to Defendant demanding his entitlement; that he expected a response to the letter; that the Defendant has his address and phone contacts; that he worked for 7 months and 6 days; that he did not want anything that would hinder his being paid so he asked for payment for just 6 months and that the Defendant did not give him a month’s notice as required thus he asked for a month salary in lieu. Witness added that if a staff does not go on leave there is what is called unearned leave allowance which is one of his claims; that it is for =N=90,000.00; that he was not given a letter of confirmation; that he however served the Defendant for over 6 months; that he is not aware that Defendant wrote him any letter; that no letter was served on him but that he is aware that the Defendant wrote his Referees; that 13th month was part of his total package and it was not paid; that he did not seize the property of the Defendant and that he asked Defendant to pay his entitlement and take its property but that the Defendant refused to. In reexamination CW1 stated that his letter of termination was served on him at the gate of Defendant by Security men.

The defence opened its case on 1/7/14. The case for the Defendant is that by a letter dated May 7, 2009; the Claimant/Defendant to Counterclaim was relieved of his employment because of poor performance on the job and his inability to produce result and/or live up to the demands of the job more than one month after proper notice/warning was issued to him; that on the same day, he was advised to liaise with the Accounts Department for his entitlement but rather than doing same, he chose to convert for his use and keep the Defendant/Counterclaimant’s assets and has since detained the said assets despite repeated demands made on him to return same; that the action of the Claimant/Defendant to the Counterclaim was premeditated as shown in his letter to the Defendant/Counterclaimant dated the 12th May, 2009 without a forwarding address; that the Defendant/Counterclaimant has severally called on the Claimant/Defendant to Counterclaim to come and collect his disengagement entitlement, and return its assets in his possession but the calls were completely rebuffed and instead, the Claimant/Defendant to the Counterclaim converted Defendant/Counter claimant assets and then headed to Court to ask for damages; that by a letter dated May 15, 2009, the Defendant/Counterclaimant’s Solicitors wrote to the Claimant/Defendant to the Counterclaim urging him to return the assets to the Defendant/Counterclaimant which entreaty the Claimant/Defendant to the Counterclaim rebuffed till date and claimed that he has taken the assets as a lien for his disengagement benefits and that the Defendant/Counterclaimant has by reason of the said seizure and conversion of its assets suffered great hardship and incurred a huge cost arising from daily rentals of vehicle for the use of its new Business Development Manager.

One Niran Orojinmi testified as DW1, adopted his statement on oath dated 31/3/14 as his evidence in chief and tendered one document as exhibit. The document was admitted and marked as Exh. D1. Under cross examination, DW1 stated that he practiced with Seun Omotoba & Co, Legal Practitioners; that at the time he took Exh. D1 he was acting for the Defendant; that he did not know the place where he took the photograph and that the car carried a Lagos plate number AP.

On 15/10/14, Ejim Emmanuel testified as DW2. DW2 adopted his witness statement on oath dated 31/3/14 as his evidence in chief and tendered 16 documents which were admitted as exhibits and marked as Exh. D2-Exh. D17. Under cross examination, DW2 stated that he was employed by Defendant in 2006; that Defendant’s address is 38, Warehouse Road Apapa, Lagos; that as an Accountant he was in charge of payment of staff salary; that Claimant was paid last sometimes in 2009; that Claimant was given 2 months’ notice; (referring to Exh. C5); that Claimant was the Head of the Unit; that the Claimant was the only one whose employment was terminated; that he is aware the Claimant was provided an official Car with a Driver; that the Driver only drives Claimant during the official hour; that the Driver was not in custody of the Car; that when the Claimant took the Car away without the knowledge of the Driver and Defendant, Defendant reported the matter to the Police; that the Driver was not personal Driver of the Claimant and that the Claimant was served his letter of termination in the office.

At the close of the trial, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of this Court. On 25/3/15, learned Counsel to the Defendant filed Defendant’s final written address. It was dated 24/3/15. In it, Counsel set down the following issues for determination –

  1. Whether the Claimant/Defendant to Counterclaim has a right of Lien over his official vehicle (Honda Civic) with registration No. CY 903 APP and a Blackberry phone properties of the Defendant/Counterclaimant.
  2. Assuming without conceding if the Honourable Court hold that the Claimant has a right of Lien whether the Claimant/Defendant to Counterclaim owes the Defendant counterclaimant a duty to care for its properties detained by the Claimant.
  3. Likewise if the answer to 1 above is in the negative whether the Defendant Counterclaimant is not entitled to the immediate recovery of its Vehicle and Blackberry phone and all the money it spent as a result of the Claimant detention of the properties without any valid order or authority to do so.
  4. Whether Exhibit C5 with Title “Poor Performance” amounts to a proper notice of the defendant Counterclaimant’s intention to terminate the appointment of the Claimant/Defendant to Counterclaim.

Arguing issue 1, learned Counsel submitted that a Lien may be created either by contract or by operation of the law; that the Claimant must show to the Court that he incurred certain expenses on the vehicle on behalf of the Defendant to give rise to lien, citing Balonwu v. Odunuko (1971) NCLR 388. Counsel submitted that there is no provision in the statute that gave right to an employee in a master/servant relationship as the instant case to detain the property of his employer as security for his arrears of salary; that the Claimant rebuffed all entreaties to come forward and collect his dues, referring to Exh. D13 & Exh. D14; that a lien does not arise in the instant case but rather that the action of the Claimant is tantamount to self help as he could have approached the Court to enforce the payment of his salary arrears and claim for wrongful termination of his employment. Learned Counsel further submitted that the Claimant has an outstanding salary for the month of April and 7 days in May and that the Defendant offered to pay the Claimant far more than his entire emolument as enumerated in Exh. D13. Counsel urged the Court to resolve this issue in favour of the Defendant.

In arguing issues 2 & 3 together, Counsel submitted that a right of lien comes with a corresponding duty which is to care for the property and that the Claimant has failed to show the Court efforts he has put in place to protect the properties in his care. Referring to the testimony of DW1, Counsel submitted that the car is in a bad shape and needs repair before it could be road worthy. Referring to Exh. D1, Exh. D8 & Exh. D15, Counsel pointed out that the vehicle was relatively new at the time of detention, road worthy, has insurance premium and serviced at the Honda Place. Counsel further submitted that the car was purchased with a Bank loan citing Exh. D7; that the Defendant is still paying back the loan with which it purchased the vehicle and that the Defendant was forced to enter into a car hire service arrangement in order to meet up with its business demand, citing Exh. D16. Counsel therefore urged the Court to hold the Claimant has no right to lien on the property detained and grant the counter claim of the Defendant/Counterclaimant.

Respecting issue 4, learned Counsel submitted that the Claimant was an employee under probation and as such is not entitled to notice of termination. Counsel submitted in alternative that Exh. C15 is a sufficient notice of termination.

Learned Counsel urged the Court to hold that the Claimant is not entitled to notice of termination in that his employment was not confirmed and that should the notice be held to be required that the Court should hold that Exh. C5 is good notice. Finally, learned Counsel urged the Court to dismiss the claims of the Claimant and grant all the counterclaims of the Defendant.

The final written address of the Claimant was filed on 28/4/15. In it learned Counsel set down the following three issues for determination –

  1. Whether the Claimant’s employment with the Defendant was properly terminated in accordance with the terms of his contract of employment.
  2. Whether in consideration of the circumstances of this case, the Defendant is indebted to the Claimant.
  3. Whether or not the Claimant has a right of lien over his official car.

Arguing issue 1, Counsel submitted that the Claimant’s employment was wrongly terminated contrary to the contract of employment of the Claimant; that Claimant was neither issued with a month’s notice nor paid one month salary in lieu of notice, referring to Exh. C1- Claimant’s Letter of Employment. Counsel further submitted that Exh. D2 tendered by the Defendant and titled Poor Performance of sales and Business Development does not suffice as a month calendar notice. This, according to Counsel, is because the letter lasted for three months before the Claimant was served a letter of termination of employment dated 7/5/09. Learned Counsel urged the Court to hold that the Claimant’s employment was wrongly terminated without compliance with the terms of the contract of employment citing Katto v. CBN (1999)6 NWLR (Pt. 67) 390.

On issue 2, learned Counsel submitted that the Defendant is indebted to the Claimant citing NBN Ltd v. Sarol W.A Ltd (1994)3 NWLR (Pt. 333) 435 at 460. Counsel referred to paragraph 9 of the statement of defence where the Defendant admitted owing the Claimant April 2009 salary and that Claimant needed not liaise with any department of the Defendant before he is laid his salary. Learned Counsel, citing Emetuma v. Ngwumahaike (1993)3 NWLR (Pt. 283) 613 at 627, Bendel Pilgrims Welfare Board v. Irawo (1995)1 NWLR (Pt. 369) 118 at 124 & Ejiniyi v. Adion (1993)7 NWLR (Pt. 305) 320 at 329, urged the Court to hold that the Defendant by his pleadings has admitted indebtedness to the Claimant for salaries for April and some days in May 2009.

With respect to issue 3, learned Counsel stated, referring to Halsbury’a Laws of England, Fourth Edition, Vol. 28 at page 221, that lien means a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation citing also Afrotec Tech. Services (Nig.) Limited v. MIA & Sons Limited (2000)15 NWLR (Pt. 692) 742. It was the submission of Counsel that the Claimant did not take away the car by force but that it was handed over to him by the Defendant in the course of his duty as employee of the defendant and that the Claimant has a right of lien over the official car until the Defendant liquidates its indebtedness to the Claimant citing Balanwo v. Odunuku (1971)2 NCLR 338. According to learned Counsel, the only asset which the Claimant holds as lien is his official car, that the averment of the Defendant of Claimant converting its blackberry is gold digging as the Defendant did not lead any evidence with respect to the said blackberry and that there is no evidence by way of receipt, purchase order, model tag or make of the said blackberry alleged to have been converted by the Claimant. Counsel cited Akinfosile v. Ijose (1960)SCNLR 447, Akpapuna v. Nzeka (1983)2 SCNLR 1 and Adekanbi v. Folani (1998)11 NWLR (Pt. 577) 498 at 502-503. Learned Counsel urged the Court to dismiss the counterclaims of the Defendant and enter Judgment in favour of the Claimant.

I read and understood all the processes filed by learned Counsel on either side in this case including the final written addresses filed. I reviewed as well all documents tendered and admitted as exhibits. I also listened to the oral submissions of learned Counsel and listened to and watched the demeanour of the witnesses called to testify in this case. Having done all this, I narrow the issue for the just determination of this case down to the following –

  1. Whether the employment of the Claimant was properly terminated.
  2. Whether the Claimant has a right of lien on his official car.
  3. Whether the Claimant has proved his case to be entitled to all or some of his claims.
  4. Whether the Defendant/Counterclaimant has proved its counterclaims to be entitled to all or some of them.

Respecting issue 1, the law remains trite that in the determination of whether or not an employment is properly terminated the first port of call is the contract of service between the parties. It is thus the duty of the Claimant to lay before the Court the document containing his terms and conditions of employment and direct the attention of the Court to how the termination of his employment is not in compliance with the contract document. See Fakuade v. O.A.U.T.H (1993)5 NWLR (Pt. 291) 47 & Idoniboye-Ode v. NNPC (2003)5 NWLR (Pt. 805) 589 at 630.(back to top?) There is consensus among the parties that the document dated 5/9/08 and titled Offer of Employment regulates the master/servant relationship between the parties. That document was tendered by the Claimant and admitted as Exh. C1. The same document was tendered by the Defendant and admitted as Exh. D2. It would therefore mean that the resolution of this issue depends on the construction of that document. Being a documentary evidence therefore no oral or parole evidence will be required to vary or add to the content of same. See Rangaza v. Microfinance Company Limited (2013)LPELR-20303(CA) & Afemai Micrifinance Bank Limited v. SEACOS Nigeria Limited (2014) LPELR-CA/B/98/2012. Within the context of that document, can it be said that the employment of the Claimant was properly terminated? The argument of the Claimant is that his appointment was not properly determined in that he was entitled to one calendar month notice in writing which was not given. That is the provision of Clause 12 of Exh. C1. It is however important that Exh. C1 be read holistically with attention paid to each of the Clauses especially as relates to issue of termination. Now I read Clause 2 of that exhibit. It states as follows –

”Your employment will be for a probationary period of six (6) months in the first instance, at the end of which your appointment may be confirmed based on satisfactory performance”.

Clause 12 cannot be read in isolation of Clause 2. Indeed, Clause 12 can only be construed and understood within the context of Clause 2. The need to comply with one calendar month in writing will arise after fulfillment of conditions stated in Clause 2. Was the employment of the Claimant confirmed? I find no evidence tending towards that. That being the case, I find and hold the appointment of the Claimant to be one on probation. In Simeon O. Ihezukwu v. University of Jos (1990) LPELR-1461(SC), (1990)7 S.C (Pt. 1) 18, the Supreme Court, per Wali, JSC, pointed out that the essence of probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period; that where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiration of that period. A major rationale for putting an employee on probation is simply to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment. An employment on probation is akin to a temporary employment; an employment under observation. An employer may decide whether or not to confirm such an appointment where the attached conditions are not met.

I may as well add that an employer is not under an obligation to give notice of termination to an employee who is on probation until the employment is confirmed. This is because the employment relationship between the parties is an inchoate one.(back to top?) Even on the face of the evidence as led in this case, could it be said that the Claimant was not given a notice of impending termination of his employment? Claimant tendered Exh. C5 dated 2/2/09 and under the subject ”Poor Performance of Sales and Business Development”. The exhibit, after stating that

“In recent time, the pipeline is looking bleak and little or no business and opportunities are in view. This trend makes nonsense of the current strategy and financial projections of the company. As head of this department, you are responsible”,

informed the Claimant that

“To ensure that the entire organisation do not collapse completely, decisive action including sack will be taken effective February 28 2009 if no impressive change is recorded in the department”.

Thus, even if the Claimant ought to be given a notice in writing (which I do not so hold) I find Exh. C5 as sufficient notice in writing to put him on alert that his probationary appointment was at stake in the absence of impressive change in his Department. The foregoing leads this Court to no alternative than to hold that the employment of the Claimant was properly determined by the Defendant.

The second issue is whether or not the Claimant has right of lien on his official car.

Halsbury’s Law of England, 4th Edition paragraph 73 described the nature and formation of lien as follows –

“Lien in its proper sense is a right which law gives, but it is useful to speak of lien by contract, and numerous instances of a right to detain goods as security depends for their effect on the validity, scope and construction of the governing contract”.

The Court has also described a lien in its primary or legal sense to mean ‘a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied’. (back to top?)

The relationship between the Claimant and the Defendant was one of master/servant. It was not one of Buyer/Seller. The law is clear that an employee whose employment is terminated may make claim for any end of service benefits that may be due to him. Exh. D6 was the letter of termination of employment of the Claimant. In second to the last paragraph of same, Claimant was directed to ‘kindly hand over all company properties in your custody to human resource department’. That was not done by the Claimant. I have no evidence before me to the effect that the Claimant returned the Defendant’s property in his custody and was not paid his due. I find no right of lien available to the Claimant in the instant case which he could validly exercise over the property of the Defendant. The step taken by the Claimant was not the appropriate step to take. His action regarding the vehicle of the Defendant amounted to self help and conversion. It would seem that the Claimant in this case has no iota of respect for judicial process especially where the outcome is not in his favour. For, as far back as five or six years ago, in Mr. Freshman Emeka Ogbonna v. C.O.P, Lagos State & 3 Ors. Suit No: M/769/09 Judgment delivered on 15/12/10 (Exh. D7), Dabiri J of the High Court of Lagos State had said as follows –

”… the affidavit of the Applicant was to the effect that he held onto the car of the 3rd Respondent when his entitlement was not paid, this court feels that is not the best option to make in the circumstance there are better and options to be taken i.e suing the 3rd Respondent for money owed or breach of contract, the action of the Applicant connotes criminal act and the Police inviting him for question does not tantamount to his right being abused or infringed”.

It is unfortunate that the Claimant while refusing to obey the Judgment of that Court was bold enough to approach this Court for judicial reliefs. There is no justification for the Claimant refusing to return the Defendant’s property when demanded and more so when he was told by a competent Court that he has no lien over same. I hold that the Claimant has no lien on his official car being property of the Defendant. I dare say that it amounts to insults not just to this Court but the judicial process in its entirety for the Claimant to refuse to obey the Judgment of Dabiri J and yet to have approached this Court for judicial intervention in his favour.

Issue 3 is whether the Claimant has proved his case to be entitled to all or some of his claims. The first claim is for a declaration that the termination of the Claimant’s employment by the Defendant is wrongful. This claim has been addressed by the resolution of issue 1 set down for determination. Therefore having so resolved issue 1, I hold and declare that the declaration sought is refused and dismissed.

The second claim is for a declaration that the Defendant is liable to pay the Claimant the sum of Nine Hundred and One Thousand, Four Hundred and Seventy Eight Naira, Eighty Seven Kobo. This figure is made up as follows (a). salary Arrears for April =N=313,591.35; (b). Leave allowance for 6 months & 11 days =N=36,000.00; (c). Unearned Leave Allowance=N=90,000.00; (d). Salary in lieu of 1 month notice =N=313,591.55; (e). 13th Month’s Deductions for 6 months, 11 days =N=44,295.77 and (f). 11 Days work of the month of May 2009 before the termination of his employment =N=104,000.00. In its amended statement of defence dated and filed 31/3/14, the Defendant admitted to owing the Claimant salary for the month of April. Both parties are thus in agreement that Claimant’s salary for April is outstanding. It is the law that facts upon which there is an admission do not require any further proof. See section 131, Evidence Act, 2011. The Defendant is here ordered and directed to pay to the Claimant the sum of =N=313,591.35 being the Claimant’s outstanding salary for April.

I find no evidence in proof of the claims (b)-(f). I find no basis for the claims for leave allowance and unearned leave allowance. This Court has held that the appointment of the Claimant was an inchoate one, or at best on a temporary basis not having been confirmed. Claimant did not adduce any evidence to support his claims for these entitlements. I have before now found and held that the Claimant was not entitled to one calendar month notice which would have entitled him to a claim for a month salary in lieu of notice. The same lack of proof is applicable to claim for 13th month’s deductions for 6 months as claimed. Respecting claim for 11 days work done in May before the termination of his employment, this claim is certainly misconceived. There is no evidence to prove that the Claimant worked for 11 days in May. Indeed, Claimant’s letter of termination of appointment, Exh. D6 was dated 7th May 2009 rather than 11th May 2009 and the Claimant adduced no evidence to contradict the content of that exhibit. A Claimant approaching the Court for judicial remedy has an obligation to adduce credible and cogent evidence in support of his claims. Mere averments do not translate to proof and failure to satisfactorily prove averments will leave the Court with no option than to refuse and dismiss such claims. Thus, not having been proved reliefs (b)-(f) under this head of claims are refused and dismissed.

The third claim is for ‘Damages in the sum of Ten Million Naira (=N=10,000,000.00) for the wrongful harassment and intimidation of the Claimant by the Defendant’. In paragraph 17 of his written statement on oath, the Claimant averred that –

”… the Defendant rather than paying my Salaries, Allowances and other entitlements resorted to using the men of Nigerian Police to harass me, my family members, guarantors and business associates”.

Aside from this deposition which the Claimant adopted as his evidence in chief, no other evidence was led respecting same. There is nothing from the side of the Claimant on the nature of the use of Nigeria Police for the harassment as alleged by the Claimant. However, the Defendant tendered Exh. D5 which was a copy of the petition it wrote against the Claimant to the Divisional Police Officer of Apapa Police Station on 19/5/09. The petition was merely a report on the disappearance of the Claimant with the property of the Defendant and an appeal to the Police by the Defendant to assist in locating his where about and recovery of its property from the Claimant. Even though that evidence was not tendered by the Claimant, it certainly did not amount to the use of the Police to harass and intimidate the Claimant. I so find and so hold. This claim for damages was not proved by cogent and credible evidence as required by law. I refuse and dismiss same accordingly.

The fourth claim is for ‘a declaration that the Claimant holds his office car in lien pending the hearing and determination of this suit’. In cognizance of the resolution of issue 2 as set down for determination, I refuse this declaration and dismiss same. For the reasons as stated in this Judgment, I find and hold that the Claimant has no lien over his official car in any form pending the hearing and determination of this suit.

The fifth claim is for interest at the rate of 22% per annum from 7th May 2000 till full and final settlement of the Judgment sum. There is no explanation before me on how the Claimant came about the rate of interest sought. However pursuant to Order 21 Rule 4, National Industrial Court Rules, 2007 which permits this Court to order interest rate not less than 10% per annum to be paid on any Judgment, I award interest at the rate of 10% per annum to be paid on the Judgment sum from the date of this Judgment until final liquidation.

The fourth issue for determination is: Whether the Defendant/Counterclaimant has proved its counterclaims to be entitled to all or some of them. By paragraph 16 of his amended statement of facts, the Claimant acknowledged being in possession of the said car and claimed to be holding the car as a lien pending the Judgment of this Court. Claimant in his relief 4 had sought a declaration of Court that he holds his official car in lien pending the hearing and determination of this suit. This Court has held in this Judgment that the Claimant has no such right of lien over the official car at all. The Defendant averred that it purchased the official car given to the Claimant with a loan from FBN Plc. In proof of this, Exh. D8 was tendered and admitted. Exh. D9 was the certificate of road worthiness of the car. Defendant further averred that the cost of the car as at the time the Claimant took same away was =N=2,000,000.00. The Claimant did not in any way or manner controvert the averment of the Defendant and its evidence in respect of the car. In his Reply and Defence to Defendant’s Counter claim dated and filed on 13/5/14, the Claimant simply stated in paragraph 2 that

”The Claimant admits only to the extent that only asset given to him by the defendant on his employment was a used 2007 Honda Civic Car which he now holds on lien pending the determination of this suit and put the defendant to the strictest proof thereof”.

I find the exhibits tendered and admitted sufficient proof of the averment under consideration. The Claimant also did not controvert the claim of the Defendant/Counterclaimant that the value of the car at the time of conversion was =N=2,000,000.00. The Claimant had opportunity to so controvert these averments. Not having done so, he must be deemed to have accepted same to be true and the Court is at liberty to rely on such evidence. See Nironwi v. Akingbulegbe (2013)37 NLLR (Pt. 114) 317 & Omoregbe v. Lawani (1980)3-4 S.C 108. Taking cognizance of the fact that the official car has been in the custody of the Claimant since May 2009 a period of over five years, to order him to deliver the car back to the Defendant will not meet the justice of this case. In any event, the Defendant sought an immediate delivery of the car or payment of Two Million Naira. Therefore, the Claimant is here ordered to pay to the Defendant the sum of Two Million Naira (=N=2,000,000.00) being the value of the said 2007 model Honda Civic Car at the time of conversion by the Claimant.

The second counterclaim is for an order Court for the delivery of the blackberry mobile phone or payment of Sixty Five Thousand Naira (=N=65,000.00) being the value of the phone at the time of conversion and detention. The Counter Claimant did not adduce any evidence in proof of this counterclaim. Not even a receipt for the purchase or document showing acknowledgment receipt of same by the Claimant. The Claimant also denied being given any such gadget by the Counterclaimant. I find this counter claim not proved. Same is therefore refused and dismissed.

The third head of counter claim is for Four Hundred Thousand Naira (=N=400,000.00 ) being the cost of car rentals from 11 May 2009 to July 17, 2009 and thereafter, =N=40,000.00 weekly. The sum claimed, according to the Defendant/Counterclaimant is the expenses incurred by it in renting car in order to carry on its business and what it will cost it per week to retain a car for the conduct of its business. In proof of this, the Counter Claimant tendered Exh. D16 – a bundle of Cash Sales Invoices from Ajilaran A. B. Olorunoje, Ifedapo Car Hire Services. Defendant/Counter Claimant had already been awarded the sum of Two Million Naira claimed as the value of the car of the Defendant as at the time of conversion and detention. Should this Court grant this prayer it will amount to double award or double punishment. This will not be in the interest of justice. Therefore the counterclaim for Four Hundred Thousand Naira(=N=400,000.00 ) being the cost of car rentals from 11 May 2009 to July 17, 2009 and thereafter, =N=40,000.00 weekly is refused and dismissed.

The fourth counter claim is for general and exemplary damages for conversion and detention at Ten Million Naira (=N=10,000,000.00). The position of the law is that General Damages may be awarded to assuage such loss which flows from the Defendant’s act. It needs not be specifically pleaded. It is said to arise from inference of law and need not be proved by evidence. It suffices if it is generally averred. Karibi-Whyte JSC in Yalaju-Amaye v. Associated Registered Engineering Contractors Limited & Ors. (1990)LPELR-SC.198/1986 espoused the law further when His lordship added that General Damages are presumed by the law to be the direct and probable consequence of the act complained of and that unlike special damages, it is incapable of substantially exact calculation. See also British Airways v. Atoyebi (2014)LPELR-SC.332/2010. Respecting exemplary damages, Iguh, JSC stated the law very clearly in Anthony Odiba v. Tule Azege (1998) LPELR-2215(SC), (1998)7 S.C (Pt. 1) 79 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. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men”.(back to top?)

Thus far, there is no doubt that the Claimant is guilty of having committed the wrongful act of detaining the property of the Defendant. It is left to examine whether, in the words of Iguh, JSC, the conduct of this Claimant is “high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men”. It is an accepted fact of this case that when the employment of the Claimant was terminated he was directed to return the property of the Defendant in his custody. Claimant did not return the property as directed. By a letter from the Defendant’s Solicitor, Exh. D4, Claimant was again requested to return the Defendant’s assets in his custody and liaise with the Accounts Department for his final entitlement. Claimant still did not. By Exh. D7, Judgment of Dabiri J of the High Court of Lagos State delivered on 15/12/10, Claimant was told that his action in holding on to the property of the Defendant was criminal. Yet he did not return the property to the Defendant. On 4/1/10, (See Exh. D18) the Defendant offered to pay the Claimant =N=623,183.10 in full and final settlement of its obligation, the Claimant through his Solicitors Paul C. Ananaba & Co on 13/1/10 (See Exh. D11) rejected the offer and insisted on the Defendant withdrawing the letter of termination of employment, accepting a letter of resignation instead and being paid One Million Naira otherwise there would be no deal. I find the conduct of the Claimant and Defendant to the Counter claim to fall within the parameters set by His Lordship Iguh, JSC in Odiba v. Azege. It is unfortunate that all reasonable efforts towards amicable resolution of this matter were deliberately and intentionally rebuffed by the Claimant. Claimant refused to comply with the Judgment of Dabiri J yet he was bold enough to approach this Court for judicial intervention to grant him reliefs he does not merit. Unfortunately, it was the same learned Counsel who represented the Claimant before Dabiri J at the High Court of Lagos State who also represented him in this case. Yet it was either the Claimant was not properly advised by his Counsel or he refused to heed the advice. Otherwise this case would not and should not have gotten to this stage. The circumstances of this case and especially the conduct of the Claimant/Defendant to Counter claim merits award of exemplary damages against him. I so find, hold and award the sum of One Million Naira (=N=1,000,000.00) as exemplary damages payable by the Claimant/Defendant to Counter claim to the Defendant/Counter Claimant for conversion and detention of the property of the Defendant/Counter Claimant.

Finally and for the avoidance of doubt and for all the reasons as contained in this Judgment,

  1. I declare that the termination of the Claimant’s employment is not wrongful.
  2. I declare that the Defendant is not liable to pay the Claimant the sum of Nine Hundred and One Thousand, Four Hundred and Seventy Eight Naira Eighty Seven Kobo as claimed.
  3. The Defendant is here ordered and directed to pay to the Claimant the sum of =N=313,591.35 being the Claimant’s outstanding salary for April.
  4. Claim for damages in the sum of Ten Million Naira (=N=10,000,000.00) for the wrongful harassment and intimidation of the Claimant by the Defendant is refused and dismissed.
  5. I declare that the Claimant has no right of lien on his official car in any form or manner pending the determination of this case as sought.
  6. The Claimant/Defendant to Counter claim is here ordered and directed to pay to the Defendant/Counter Claimant the sum of Two Million Naira (=N=2,000,000.00) being the value of the car (property of the Defendant/Counter Claimant) at the time of conversion and detention.
  7. An order of Court for delivery of the Blackberry mobile phone or payment of Sixty Five Thousand Naira (=N=65,000.00) only being the value of the phone at the time of conversion and detention is refused and dismissed.
  8. The counterclaim for Four Hundred Thousand Naira (=N=400,000.00 ) being the cost of car rentals from 11 May 2009 to July 17, 2009 and thereafter, =N=40,000.00 weekly is refused and dismissed.
  9. The Claimant/Defendant to Counter claim is to pay the sum of One Million Naira (=N=1,000,000.00) as exemplary damages to the Defendant/Counter Claimant for conversion and detention of the property of the Defendant/Counter Claimant.
  10. I award interest at the rate of 10% per annum to be paid on the Judgment sum on either side from the date of this Judgment until final liquidation.
  11. I make no order as to cost.
  12. All the terms of this Judgment shall be complied with within 30 days from the date of delivery.

Judgment is entered accordingly.