CORAM

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HON. JUSTICE BASHAR A. ALKALI

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PARTIES

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MOHAMMED LAWAL IBRAHIM

APPELLANTS 

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INTERNATIONAL TOBACO COMPANY PLC

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, CONTRACT LAW, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, OUT-OF-STATION ALLOWANCE, TRANSFER AND TRANSFER ALLOWANCE, TERMINAL BENEFITS, BREACH OF CONTRACT, BURDEN OF PROOF, EVIDENCE, DAMAGES, GENERAL DAMAGES, SPECIAL DAMAGES, DOUBLE COMPENSATION, SILENCE AS ADMISSION, ESTOPPEL, BACKDATING OF DOCUMENTS

 

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SUMMARY OF FACTS

The Claimant, Mohammed Lawal Ibrahim, was a former employee of the Defendant, International Tobacco Company Plc, having signed a Service Agreement dated 1st September 2016 with his appointment subsequently confirmed on 13th February 2017. Upon appointment he was deployed to Lagos for approximately four months before being redeployed to Ilorin, Kwara State as a Promo-Officer from 2016 to 2019, where his job entailed organising and establishing markets for the Defendant’s products across the south-west states. While stationed in Ilorin, the Claimant was paid N7,200.00 per working day for each day’s work outside Ilorin — comprising N5,000 as accommodation and N2,200 for incidentals including feeding — as out-of-station allowance.

On 3rd November 2019, the Claimant was called on phone by the North Zonal Manager, Mr. Alao Adeleke, and directed to report in Kaduna State the following day. The Claimant arrived Kaduna on 5th November 2019. When the Claimant enquired of Mr. Adeleke whether he was being transferred to Kaduna, Mr. Adeleke informed him that the transfer had not yet been confirmed by the company, and that the Claimant would be working in Kaduna on an out-of-station assignment pending the company’s decision. The Claimant sent a formal email on 11th December 2019 to his line manager Mr. Adisa Olaniba — copied to Mr. Adeleke and Mr. Sunday Ogundipe — requesting to know whether his out-of-station assignment in Kaduna had been formalised as a transfer. The Defendant made no response. Mr. Adisa subsequently forwarded the email to the Defendant’s top management on 17th December 2019, yet still no response was given.

With no response forthcoming and uncertain of his status, the Claimant moved his family and personal effects from Ilorin to Zaria at his own expense of N85,000. In September 2021, his line manager informed him he had been suspended for allegedly re-stocking products while still holding stock, and directed him to hand over company property. The Claimant protested by letter dated 28th September 2021 to the Regional Manager North West and the Human Resources Manager. He was subsequently recalled but was stripped of his company van and directed to use a motorcycle — which was banned in Kaduna State — and resort to trekking and public transportation to access the market.

On 5th November 2021 — exactly 24 months after the Claimant arrived in Kaduna — the Defendant’s Human Resources Department sent the Claimant an email attaching a letter confirming his transfer, but the letter was backdated to 5th November 2019, depriving the Claimant of his accrued out-of-station entitlements. The Defendant’s Human Resources Manager subsequently apologised for the delay in sending the transfer letter.

The Defendant terminated the Claimant’s employment on 31st August 2022 by a letter sent via WhatsApp, computing his terminal entitlement at N454,373.53. The Claimant submitted all company properties to his line manager DW1 on 17th October 2022 vide a handwritten Handover Note. He also offered to pay the balance of N10,700 on a transportation float account of N20,000 (the remaining N9,300 being supported by expense receipts), but DW1 declined to collect the balance pending internal confirmation. After waiting more than two weeks, the Claimant paid N10,700 directly into the Defendant’s First Bank account on 8th November 2022 and notified the Defendant by email. Despite having computed and communicated the terminal entitlement, the Defendant withheld payment on the ground that the Claimant was required by policy to refund the entire N20,000 float in full — a policy that was never placed before the Court.

The Court held partially in favour of the Claimant, finding that: the Claimant was on out-of-station assignment from 5th November 2019 to 5th November 2021 based on the Defendant’s own representation and subsequent silence; the Defendant’s silence on Exhibit C3 amounted to an admission that the Claimant was on out-of-station assignment; the backdated transfer letter could not extinguish the Claimant’s accrued out-of-station allowances; the Claimant proved his entitlement to out-of-station allowance of N4,514,400; the Defendant’s refusal to pay terminal benefits was a breach of the Service Agreement made in bad faith and amounts to a charade; the claim for N85,000 transportation costs failed for lack of contractual basis; the claim for N150,000 resettlement grant was cloudy for lack of evidence; and the claims for general damages succeeded only to the extent of N1,000,000 to avoid double compensation.

 

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HELD

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The Court held partly in favour of the Claimant. The following declarations and orders were made: (1) that the Claimant was entitled to out-of-station allowance of N4,514,400 for 627 working days from 5th November 2019 to 5th November 2021; (2) that the Claimant’s transfer took effect from 5th November 2021 — the date of notification — and not from the backdated date of 5th November 2019; (3) that the Defendant’s failure to promptly pay the Claimant’s terminal benefits from 17th October 2022 (when properties were returned) and 8th November 2022 (when float balance was paid) constituted a breach of the Service Agreement; (4) that the Defendant’s willful and continued refusal to pay caused the Claimant untold hardship. The Court ordered payment of N4,514,400 out-of-station allowance, N454,373.53 terminal benefits, and N1,000,000 general damages, declining to award double general damages. The claims for N85,000 transportation costs and N150,000 resettlement grant were refused for lack of contractual and evidentiary basis respectively. All other reliefs were refused.

 

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ISSUES

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1.Whether the Defendant was liable to the Claimant for out-of-station allowance from 5th November 2019 to 5th November 2021, having willfully or negligently failed to make a decision as to the Claimant’s employment status?

2.Whether the Defendant’s refusal to immediately pay the Claimant his computed terminal entitlement after receiving all its properties from the Claimant constituted a breach of the Service Agreement warranting an award of damages?

3.Whether the Claimant was entitled to damages for the unpaid out-of-station allowance and for breach of the contract of employment, and whether the award of both special and general damages would constitute double compensation?

4.Whether the Claimant proved his entitlement to the sum of N85,000 as cost of transportation from Ilorin to Zaria?

5.Whether the Claimant proved his entitlement to N150,000 as resettlement/transfer allowance as contained in the backdated letter of transfer?

 

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RATIONES DECIDENDI

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UNCHALLENGED EVIDENCE — FAILURE TO CROSS-EXAMINE WITNESS ON MATERIAL FACT — CONSTITUTES TACIT ACCEPTANCE OF TRUTH OF THAT EVIDENCE — COURT MAY TREAT SILENCE AS ACCEPTANCE

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“Where a witness testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where, as in the instant case, the Defendants failed to do either, the trial court can take its silence as an acceptance that the Defendants did not dispute the fact.” – Per Alkali, J.

 

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DOCUMENTS ADMITTED IN EVIDENCE — NOT USEFUL WITHOUT ORAL EVIDENCE TO EXPLAIN PURPORT — COURT CANNOT CHOOSE OPTION FOR PARTIES — UNCHALLENGED EVIDENCE OF CLAIMANT PREFERRED

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“Documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their purport. Again, the Court is not in a position to choose the option for the parties. Instead of threading on the web of confusion as created by the defence, this Court will rather accept unchallenged evidence of the Claimant, which is the sum of N7,200 per night.” – Per Alkali, J.

 

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SILENCE IN CIRCUMSTANCES WHERE REPLY IS OBVIOUSLY EXPECTED — IN BUSINESS AND MERCANTILE TRANSACTIONS — IRREBUTTABLE PRESUMPTION OF ADMISSION BY CONDUCT OR REPRESENTATION — DEFENDANT’S MUTE MODE TREATED AS ADMISSION THAT CLAIMANT WAS ON OUT-OF-STATION ASSIGNMENT

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“Having failed to respond to Exhibit C3 by making the Claimant know his working status in Kaduna, the Court will deem the silence of the Defendant on Exhibit C3 admitting that the Claimant was on the out-of-station assignment. In business and mercantile transactions, where in the ordinary course of business a party states in a letter to another that he has agreed to do certain things, the party who receives that letter must answer if he means to dispute the facts that he did not agree. Where there is silence in circumstances in which a reply is obviously expected, an irrebutable presumption of admission by conduct or representation is raised.” – Per Alkali, J.

 

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BACKDATING OF TRANSFER LETTER — DECEPTION TO DENY EMPLOYEE ACCRUED ENTITLEMENTS — WILL NOT SAVE DEFENDANT FROM LIABILITY — TRANSFER TAKES EFFECT FROM DATE OF NOTIFICATION TO EMPLOYEE

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“To make its deception appears real, the letter of transfer that was received by the Claimant on the 5th of November 2021 vide email was dated the 5th of November 2019. This deception will not save the Defendant from paying the Claimant his out-of-station allowances.” – Per Alkali, J.

 

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DEFENDANT’S UNPLEADED AND UNDISCLOSED POLICY — COURT WILL NOT CONSIDER POLICY NOT PLACED BEFORE IT — WITHHOLDING TERMINAL ENTITLEMENT ON BASIS OF UNDISCLOSED POLICY IS BAD FAITH AND CHARADE

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“The alleged policy is not before this Court; thus, the Court will not belabour itself on the policy that is not before the Court. Assuming the Claimant must refund the entire N20,000 float advanced to the Claimant, is it not better to deduct the remaining balance that the Claimant has not refunded from the entitlement due to the Claimant from the Defendant? Withholding the settled entitlement of the Claimant is a demonstration of bad faith towards the Claimant. Refusal to pay the Claimant his final entitlement in the guise of an undisclosed policy of the Defendant is a charade and an act of malice.” – Per Alkali, J.

 

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UNILATERAL VARIATION OF CONTRACT — PARTY CANNOT SIT IN FOUR CORNERS OF HOME TO ALTER TERMS OF CONTRACT — ANY ATTEMPT TO UNILATERALLY VARY TERMS IS ILLEGAL, NULL AND VOID

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“A party to a contract cannot unilaterally sit in the four corners of his home to alter the terms of the contract. A party to an agreement is not at liberty to unilaterally vary the terms of the agreement, and any such attempt is illegal, null and void.” – Per Alkali, J.

 

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SPECIAL AND GENERAL DAMAGES — AWARD OF BOTH DOES NOT AMOUNT TO DOUBLE COMPENSATION — WHERE EACH CLAIM IS INDEPENDENTLY ESTABLISHED — DIFFERENT HEADS OF CLAIM MAY ATTRACT DIFFERENT AWARDS

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“The claim for out-of-station allowance and final entitlement are special damages in nature, which is not granted at the discretion of the Court. Awarding both special and general damages will not amount to double compensation.” – Per Alkali, J.

 

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DOUBLE COMPENSATION — LAW FROWNS ON DOUBLE COMPENSATION — WHERE PARTY HAS BEEN SUFFICIENTLY COMPENSATED FOR WRONG UNDER ONE HEAD IT WOULD AMOUNT TO DOUBLE COMPENSATION TO GRANT AWARD FOR SAME INJURY UNDER DIFFERENT HEAD — COURT WILL AWARD ONLY ONE SET OF GENERAL DAMAGES

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“I am, however, not comfortable with granting general damages for each of the claims successfully proved by the Claimant, as granting the same will amount to double compensation. The law frowns on double compensation. Where a party has been sufficiently compensated for a wrong under one head of claim, it would amount to double compensation to grant an award for the same injury under a different head.” – Per Alkali, J.

 

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BURDEN OF PROOF IN CIVIL CASES — CLAIMANT MUST PROVE CASE ON PREPONDERANCE OF EVIDENCE — ONCE CLAIMANT PROVES CLAIM ON BALANCE OF PROBABILITIES BURDEN SHIFTS TO DEFENDANT — FAILURE TO DISCHARGE BURDEN CAUSES CLAIM TO FAIL

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“It is important to start by reiterating the principle of law that the burden of proof is on the party who asserts a fact to prove it on the preponderance of evidence in civil cases. Once a claimant has proved his claim on the balance of probabilities and preponderance of evidence, the burden shifts to the defendant to prove any fact he relies on to establish his case. In this instant suit, the Claimant asserts some claims against the Defendant; the Claimant has the burden to prove the same; otherwise, the claim will fail like a pack of cards.” – Per Alkali, J.

 

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CLAIM FOR TRANSPORTATION EXPENSES ON TRANSFER — NO CONTRACTUAL BASIS — EMPLOYEE CANNOT HOLD EMPLOYER LIABLE FOR EXPENSES NOT PROVIDED FOR IN CONTRACT OR COLLECTIVE AGREEMENT — COURT WILL NOT MAKE DEFENDANT LIABLE FOR UNCONTRACTED EXPENSES

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“The sum of N85,000 that the Claimant claims against the Defendant is a figment of his imagination, as a party to a contract cannot unilaterally sit in the four corners of his home to alter the terms of the contract. Flowing from the foregoing, the Claimant cannot expect the Court to make the Defendant liable for his expenses incurred in the sum of N85,000 where there is no such agreement between the parties.” – Per Alkali, J.

 

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CLAIM FOR RESETTLEMENT GRANT — MUST BE SPECIFIC AND CERTAIN — WHERE CLAIM IS CLOUDY AND UNSUBSTANTIATED BY EVIDENCE COURT CANNOT GRANT SAME — COURT CANNOT RELY ON UNCERTAIN EVIDENCE TO COMPUTE SPECIFIC MONETARY CLAIMS

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“The Court cannot rely on this evidence to grant the claim for the resettlement grant of the Claimant as it is certain and specific to be used by the Court. It is therefore the finding of the Court that the claim of the Claimant for the sum of N150,000 as his resettlement grant is cloudy, as there is no evidence before the Court to warrant the grant of this claim. Therefore, same is refused.” – Per Alkali, J.

 

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DAMAGES AS FUNCTION OF LIABILITY — WHERE CLAIMANT FAILS TO ESTABLISH LIABILITY OF DEFENDANT CLAIMANT NOT ENTITLED TO AWARD OF DAMAGES — WHERE LIABILITY ESTABLISHED CLAIMANT ENTITLED TO BE AWARDED DAMAGES

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“Damages of whatever kind are a function of liability, and where a claimant fails to establish the liability of the defendant, then such Claimant will not be entitled to an award of damages. In this case, the Claimant has established that the Defendant breached their contract by not paying the Claimant his out-of-station allowance and final entitlement. Thus, the Claimant is entitled to be awarded damages.” – Per Alkali, J.

 

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FACT NOT IN DISPUTE NEEDS NO PROOF — UNDISPUTED FACTS ARE TAKEN AS ESTABLISHED — COURT PROCEEDS ON BASIS OF COMMON GROUND

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“The law is that a fact not in dispute need no proof.” – Per Alkali, J.

 

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CASES CITED

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STATUTES REFERRED TO

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• National Industrial Court of Nigeria (Civil Procedure) Rules 2017, Order 3 Rule 2

• Evidence Act 2011, Sections 131(1)(2) and 132

• Service Agreement dated 1st September 2016 (Exhibit C2)

• Offer of Provisional Appointment dated 15th March 2016 (Exhibit C1)

• AFBTE/FOBTOB Collective Agreement on Salaries, Allowances and Fringe Benefits (Exhibit DW02)

• International Tobacco Company Employee Handbook for Senior Staff (Exhibit DW01)

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1.M. B. Olorunmaiye Esq for the Claimant

2.J. O. Omisade Esq for the Defendant