CORAM

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HONOURABLE JUSTICE O. Y. ANUWE

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PARTIES

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Mr. Mobolaji Ajani

APPELLANTS 

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1. Gado Agency Limited

2. Mr. Godwin Odemijie

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, CONTRACT OF EMPLOYMENT, DEFAMATION, JURISDICTION, SPECIAL DAMAGES, BURDEN OF PROOF, EVIDENCE, COUNTER CLAIM, LOAN AND DEBT RECOVERY, SALARY IN LIEU OF NOTICE, LEAVE ALLOWANCE, HANDOVER OF PROPERTIES, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Claimant, Mr. Mobolaji Ajani, was employed by the 1st Defendant, Gado Agency Limited — an advertising agency — as a Senior Producer on 1st December 2009. He was promoted to the position of Senior Manager/Head of Operations in April 2017, which remained his position until he voluntarily resigned in June 2019. On 16th June 2019, in compliance with the terms of his employment, the Claimant submitted a letter of resignation to the 1st Defendant with effect from 30th June 2019, expressing readiness to cooperate during the one-month notice period for proper handover of all official properties. The Defendants, through Mr. John Chukwuma, replied to the resignation letter, rejecting the notice period and directing that the resignation take effect immediately, with instructions for the Claimant to hand over all official items in his possession.

The Claimant asserted that he prepared and submitted his handover notes on 21st June 2019, returning all official properties including transactional documents, files, official computer, cameras, recorders, laptop computer, hard drives, Staff ID card, and other items. An inventory was acknowledged and confirmed by Mr. John Chukwuma. The Claimant contended that the Defendants remained indebted to him in the sum of N2,831,666, representing outstanding producer’s fees, allowances, prorated salary, and salary in lieu of notice for various productions including “Money and the Economy Radio Production,” “NAFDAC and Your Health Radio Production,” and “Nigerian Urban Reproductive Health Initiative (NURHI) Jingles.”

In addition, the Claimant complained that the Defendants published a disclaimer against him in the Leadership Newspaper of 10th September 2019, accompanied by his photograph, falsely alleging that he was in unlawful possession of the 1st Defendant’s Staff ID card. The Claimant alleged this publication was defamatory, was calculated to smear his reputation, had caused him loss of job opportunities, emotional trauma, and loss of income. The Claimant further alleged that even after his resignation, the Defendants continued to display his name, picture, and personal profile on their website without his consent, constituting an infringement of his intellectual property rights.

In defence, the Defendants denied owing the Claimant any remuneration whatsoever, contending that all works performed by the Claimant during employment were done pursuant to his contract and remunerated monthly. They alleged that the Claimant, on 14th June 2019, took the 1st Defendant’s recorder without consent for a private assignment, and that upon being confronted, he submitted his resignation letter. The Defendants further alleged that the Claimant failed to return his Staff ID card and the HP laptop assigned to him, handing over instead a completely different laptop. Accordingly, they published the disclaimer in the Leadership Newspaper. The Defendants also counterclaimed, seeking the return of the Staff ID card and HP laptop or payment of N250,000 for the laptop’s value, and recovery of outstanding loans allegedly advanced to the Claimant by both the 1st Defendant (N1,540,000) and the 2nd Defendant (N882,792).

The Court, after evaluating all evidence, struck out the Claimant’s defamation-related claims for want of jurisdiction, as defamation falls outside the subject matters prescribed for the National Industrial Court under Section 254C of the Constitution. The Court partially upheld the Claimant’s claims to the extent of his salary for the period 1st to 17th June 2019, dismissing all other claims. The Defendants’ counterclaim was entirely dismissed for failure of proof.

 

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HELD

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The Court struck out reliefs 2, 4, and 5 of the Claimant’s claims, which bordered on the tort of defamation, on the ground that the National Industrial Court lacks jurisdiction to entertain claims in defamation, as such claims fall outside the subject matters prescribed in Section 254C of the Constitution of the Federal Republic of Nigeria 1999. The Court declined to extend its jurisdiction by reason of the fact that the alleged tortious act occurred in the context of an employment relationship.

On the substantive employment claims, the Court dismissed the Claimant’s claims for producer’s fees for the various radio productions and NURHI Jingles on the ground that the Claimant failed to adduce evidence proving that the productions were real and that he in fact executed them. The claims for outstanding Annual Leave Allowance were also dismissed as the Claimant failed to plead or state his monthly salaries for each year of employment, rendering the computation unverifiable. The claim for salary in lieu of notice was likewise dismissed, as the Court held that an employee who voluntarily resigns from employment cannot demand salary in lieu of notice from the employer.

The Court however held that the Claimant was entitled to his salary for the period 1st to 17th June 2019, being the period he worked before his resignation took effect. The Defendants’ counterclaim was dismissed in its entirety. The Court found that the Defendants failed to prove that the HP laptop returned by the Claimant was different from the one issued to him, having produced no credible evidence to discharge that burden. With respect to the alleged loans, the Court found that the bank statements tendered by the Defendants disclosed payments made to the Claimant but did not indicate the purpose of such payments, and thus failed to prove the declaratory relief sought or the right to recover the sums as loans. Parties were ordered to bear their respective costs.

 

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ISSUES

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1. Whether this Court has jurisdiction to entertain the Claimant’s claims founded on the tort of defamation?

2. Whether the Claimant proved his entitlement to outstanding producer’s fees for the various radio productions and NURHI Jingles as claimed?

3. Whether the Claimant proved his entitlement to unpaid Annual Leave Allowance amounting to N500,000?

4. Whether the Claimant was entitled to salary in lieu of notice from the Defendants, having resigned voluntarily from the employment?

5. Whether the Claimant is entitled to prorated salary for the period 1st to 17th June 2019?

6. Whether the Defendants proved that the HP laptop returned by the Claimant upon his resignation was different from the one issued to him during his employment?

7. Whether the Defendants proved that the monies paid to the Claimant during his employment were loans, so as to entitle them to recover same by way of counter claim?

 

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RATIONES DECIDENDI

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JURISDICTION OF THE NATIONAL INDUSTRIAL COURT – WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN CLAIMS IN DEFAMATION ARISING FROM AN EMPLOYMENT RELATIONSHIP

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“The subject matters which this court can entertain are as spelt out in section 254C of the Constitution of the Federal Republic of Nigeria 1999. These subject matters within the jurisdiction of this Court do not include actions in defamation, which is an action in the realm of torts. See AKPAN vs. UNIVERSITY OF CALABAR (2016) LPELR-41242[CA]. See also ECOBANK (NIG). LTD vs. IDRIS (2021) LPELR-52806[CA], where the Court of Appeal held the view that cases or matters which border on the tort of defamation is not one of the subject matters within the jurisdiction of this court in section 254C[1], [2] and [3] of the 1999 Constitution. The Court of Appeal clarified that even if the tortuous action happened in the course of the employment, it cannot be used to expand the jurisdiction of this Court beyond its jurisdictional scope in section 254C[1], [2] and [3] of the 1999 Constitution.” – Per O. Y. Anuwe, J.

 

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CLAIM FOR PRODUCER’S FEES – OBLIGATION OF CLAIMANT TO PROVE THAT PRODUCTIONS WERE ACTUALLY EXECUTED

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“The claimant said the sums of money he is entitled to in sub paragraphs [a] to [d] of paragraph 31 of the statement of facts are producer’s fee for the various productions he referred to in the sub paragraphs. Although I have seen the term of the employment in the claimant’s promotion letter dated 25th April 2017 that he is entitled to production allowance at N10,000 per edition, I have not been shown the productions or programmes referred to in sub paragraphs [a] to [d] of paragraph 31 of the statement of facts for which he sought to be paid producer’s fee or allowance. It is not sufficient to simply seek to be paid for editions of some productions he did for the defendants and stop there. The claimant must go further to show that the productions are not fictional but real. I cannot be convinced that the claimant is entitled to producer’s fees until he proves that he did produce what he wants to be paid for. No such evidence has been shown to me. Claims for debt or money owed are claims in special damages. The claimant must prove.” – Per O. Y. Anuwe, J.

 

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CLAIM FOR ANNUAL LEAVE ALLOWANCE – REQUIREMENT TO PLEAD AND PROVE THE BASIS OF COMPUTATION

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“There is also the amount of N500,000 the claimant mentioned in paragraph 31[e] of the statement of facts as unpaid Annual Leave Allowance at 50% of monthly basic salary for 10 years. That is to say the claimant calculated N50,000 as 50% of his monthly salaries and multiplied it by 10 years. I find a number of faults with this claim. The claimant was employed in December 2009 and he resigned in June 2019. This period is not up to 10 years. Again, the claimant failed to place the basis upon which he arrived at the sum of N500,000 before the court. He did not plead or state in his evidence the amounts of his monthly salaries in each year of his employment. This failure creates a doubt as to how the claimant arrived at the sum he claims as outstanding leave allowance. I will not waste further time on this aspect of his claim than to dismiss it as unproved.” – Per O. Y. Anuwe, J.

 

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SALARY IN LIEU OF NOTICE – WHETHER AN EMPLOYEE WHO VOLUNTARILY RESIGNS IS ENTITLED TO SALARY IN LIEU OF NOTICE FROM THE EMPLOYER

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“Most importantly, the claimant did not even aver that the defendants terminated his employment. Evidence abundantly shows that it was the claimant who resigned from the employment. How then did he expect the defendants to pay him salary in lieu of notice? Perhaps, his belief is that the defendants terminated his employment when the defendants wrote to him, after he submitted his resignation letter, to inform him that his resignation should be immediate rather than lasting till the notice period. That is why he thinks he should be paid 1 month salary in lieu by the defendants. I disagree with the claimant. He brought the employment to an end by his notice of resignation. Accordingly, the defendants do not have any obligation to pay him salary in lieu of notice.” – Per O. Y. Anuwe, J.

 

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PRORATED SALARY UPON RESIGNATION – ENTITLEMENT OF AN EMPLOYEE TO SALARY FOR DAYS WORKED PRIOR TO EFFECTIVE DATE OF RESIGNATION

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“Since the claimant was an employee of the 1st defendant up to 17th June 2019, he is entitled to his salary for the days he worked for the 1st defendant in June 2019 before his resignation became effective. The claimant is entitled to the salary for the period from 1st June to 17th June 2019. The claimant however failed to mention the amount of his monthly salary as to enable the court determine whether the prorated amount is correct or not. This is more so that the defendants pleaded in paragraph 38 of the amended statement of defence that the claimant’s monthly salary between July 2018 and May 2019 was the sum of N104,915.63.” – Per O. Y. Anuwe, J.

 

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EFFECT OF EMPLOYER’S WAIVER OF NOTICE PERIOD – WHETHER DIRECTING IMMEDIATE RESIGNATION AMOUNTS TO TERMINATION OF EMPLOYMENT

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“By Exhibit C7, dated 16th June 2019, the claimant resigned from the 1st defendant’s employment with effect from 30th June 2019. The defendants responded in Exhibit C2, dated 17th June 2019, to inform the claimant that the resignation should be with immediate effect as the defendants cannot allow him to remain in the employment during the notice period. By the content of Exhibit C2, the defendants accepted the claimant’s resignation but commuted the notice period or waived the notice period. The implication is that the claimant, with the consent of the defendants, effectively resigned on 17th June 2019.” – Per O. Y. Anuwe, J.

 

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BURDEN OF PROOF IN CLAIMS REGARDING RETURN OF EMPLOYER’S PROPERTY – DUTY ON PARTY MAKING ASSERTION TO DISCHARGE BURDEN

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“When the defendants alleged that the laptop handed over by the claimant is different from the one he was given, one will expect that they will bring evidence to show the laptop given to the claimant and then produce the laptop handed over by the claimant in order to illustrate and establish to the court that what was given to the claimant is not what he handed over. The laptop handed over by the claimant was not produced for the court’s inspection and, other than the mere mention that the laptop given to the claimant was HP, there was no other description of the laptop. The defendants failed to discharge the burden placed on them with respect to their allegation. The result is that there is no evidence to prove that the HP laptop handed over by the claimant is not the same as the one he was given during the employment.” – Per O. Y. Anuwe, J.

 

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PROOF OF LOAN IN COUNTER CLAIM – BANK STATEMENTS ALONE INSUFFICIENT TO ESTABLISH THAT PAYMENTS MADE TO EMPLOYEE WERE LOANS

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“The defendants relied on bank statements to prove that the said monies given to the claimant were loans. Exhibit D12 is the 1st defendant’s statement of account with Zenith Bank. The statement is from the period 27/10/2017 to 30/5/2019. I have seen the transaction entries in the statement and I see some transaction in the name of the claimant being payments made to him but the entries did not disclose the purpose of the payments or what the payments were meant for. Exhibit D12 did not show that the monies paid to the claimant in the statement of account were loans. Exhibit D11 is the statement of account of the 2nd defendant with Zenith bank. The statement is from the period 10/01/2018 to 16/3/2019. I have similarly seen the transaction entries in the statement, and I see some transaction in the name of the claimant being payments made to him, but the entries did not disclose the purpose of the payments or what the payments were meant for. Exhibit D11 too did not show that the monies paid to the claimant in the statement of account were loans.” – Per O. Y. Anuwe, J.

 

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STANDARD OF PROOF FOR DECLARATORY RELIEF IN COUNTER CLAIM – REQUIREMENT FOR COGENT, CREDIBLE AND SATISFACTORY EVIDENCE

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“The question to consider therefore is whether the defendants proved that the monies were given to the claimant as loan as to entitle them to recover the monies from the claimant. This onus on the defendants became more pronounced in view of relief 2 where they sought the court to declare that they are entitled to recover the outstanding loans from the claimant. Being a declaratory claim, the defendants are required to prove, with cogent, credible and satisfactory evidence, that the sums were given to the claimant as loan. See ZACCALA vs. EDOSA [2018] 6 NWLR [Pt. 1616] 528.” – Per O. Y. Anuwe, J.

 

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INCONSISTENCY IN PLEADINGS AND COUNTER CLAIM – EFFECT OF DISCREPANCY BETWEEN AMOUNT PLEADED AND AMOUNT CLAIMED

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“Let me observe that there is an inconsistency between the amount pleaded by the defendants as owed to the 1st defendant by the claimant and the amount claimed by them in relief 3 of the counter claim. While the defendants pleaded in paragraphs 39 and 53 of the amended statement of defence and counter claim that the amount the claimant owed to the 1st defendant is the sum of N1,470,000, the amount they claimed in relief 3 of the counter claim is the sum of N1,540,000. It is also necessary to observe that there is a discrepancy in the amount mentioned by the defendants as owed to the 2nd defendant. In paragraph 43 of the amended statement of defence, the defendants pleaded the sum of N882,792 as the total indebtedness to the 2nd defendant while in paragraph 52, they pleaded the sum of N882,892. But the amount claimed in relief 3 of the counter claim, as the amount the claimant owes to the 2nd defendant, is the sum of N882,792.” – Per O. Y. Anuwe, J.

 

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JURISDICTION OF THE NATIONAL INDUSTRIAL COURT – TORTIOUS ACTS OCCURRING WITHIN EMPLOYMENT CONTEXT CANNOT EXPAND THE COURT’S CONSTITUTIONAL JURISDICTION

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“It is therefore obvious that this Court lacks jurisdiction to entertain the claims in reliefs 2, 4 and 5. These claims are struck out.” – Per O. Y. Anuwe, J.

 

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REFUSAL TO DETERMINE CONTROVERSY OVER STAFF ID CARD – PRINCIPLE OF AVOIDING PREJUDICE TO FUTURE LITIGATION

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“In my view, it will be prejudicial to the just determination of any action the claimant may decide to pursue on his allegation of defamation if I proceed to determine in this suit whether the claimant submitted his ID card or not. For this reason, I will refrain from making any pronouncement on the controversy about the claimant’s staff ID card.” – Per O. Y. Anuwe, J.

 

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CLAIM FOR REMUNERATION – CLAIMS FOR DEBT OR MONEY OWED ARE IN THE NATURE OF SPECIAL DAMAGES AND MUST BE SPECIFICALLY PLEADED AND PROVED

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“Other than Exhibits D11 and D12, the defendants did not produce any other documentary or cogent evidence to substantiate their allegation that the monies they called loans were indeed loans or money borrowed to the claimant. In the absence of any such concrete evidence, the result is that the defendants failed to prove the declaration they sought in relief 2 of the counter claim and accordingly failed to establish their entitlement to the sums claimed in relief 3 of the counter claim.” – Per O. Y. Anuwe, J.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 254C

 

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OTHER CITATIONS

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