Emiantor Ehifonria v Omatek Ventures Distribution Ltd

• Judge: Hon. Justice O.a. Obaseki-osaghae
• Judgment Date: 08 November 2012
• Respondent: Omatek Ventures Distribution Ltd
• Appellant: Emiantor Ehifonria
• Docket Number: NIC/LA/68/2011
• Court: National Industrial Court (Nigeria)

The claimant filed this complaint on the 13th July 2011 against the defendant praying for the following reliefs:
1. An Order compelling the defendant to pay to the claimant the following sums:
a. N3,780,606.50 (Three Million, Seven Hundred and Eighty Thousand, Six Hundred and Six Naira, Fifty kobo) being the claimant’s unpaid salaries, a month’s salary in lieu of notice and 2010 Leave Bonus.
b. N776,000.12 (Seven Hundred and Seventy-six Thousand Naira, Twelve kobo) being unpaid pensions for the entire period of his employment.
c. An order compelling the defendant to pay 25% on the above sums from when they became due and until they are paid.
2. An order compelling the defendant to pay the outstanding loan of the claimant with Ecobank Plc less the initial outstanding loan sum of N480,000.00 (Four Hundred and Eighty Thousand Naira).
3. N1,000,000.00 (One Million Naira only) as general damages for the late payment of the claimant’s salaries.

Accompanying the complaint is the statement of facts, name of witness to be called, copies of documents to be relied on at the trial. The defendant entered a conditional appearance and filed a statement of defence counterclaim, list of witness and copies of documents to be relied on at the trial on August 9, 2011. It counter claimed as follows:
(a) A declaration that the claimant/defendant to the counter-claim failure and/or
refusal to return the car upon leaving the employment of the counter-claimant
is unlawful and a breach of the car consumer agreement between the parties.
(b) The sum of N3,557,727.52 (Three million, five hundred and fifty-seven
thousand, seven hundred and twenty-seven Naira, fifty-two kobo) being the
outstanding balance due on the Car.

(c) The sum of N1,600,000.00 (One million, six hundred thousand Naira only)
being the sum paid for the hiring of cab for 200 days.

In reaction, the claimant filed a reply to the statement of defence and a defence to the counterclaim on the 22nd September 2011. The defendant responded by filing a reply to the defence to its counterclaim. The parties joined issues and the matter went to trial.

The case of the claimant on the pleadings is that he was employed by the defendant for the period 2nd May 2007 till June 2008 and April 2009 to September 2010 when his employment was terminated. He pleaded that he was promoted to the position of General Manager and was on a monthly salary of N650,000.00, with 20% of his salary dependent upon his sales performance which would be assessed quarterly and 80% fixed and not tied to performance. He pleaded that he was General Manager Finance and Administration at the Headquarters and not a Sales Marketer who would have a portion of his salary tied to quarterly performance. He pleaded that the defendant never conducted any quarterly assessments throughout his employment and did not pay him his fixed salary for seven months i.e. March 2010 to September 2010, his leave bonus and salary in lieu of notice. He pleaded that the defendant did not remit his pensions to his retirement savings account and did not make accurate deductions from his salaries in respect of his pensions.

The claimant pleaded that the defendant began deducting PAYE tax from his salary in April 2008 without giving him the tax receipts and also deducted various sums of money from his salary for tax clearance certificate but he was never given any tax clearance certificate. He pleaded that he took a personal loan of N2,400,000.00 from Ecobank Plc which the defendant guaranteed but due to defendant arbitrarily terminating his employment, he was unable to service the loan thereby leading to accumulation of interest. He pleaded that if the defendant had paid his outstanding salaries he would have been able to liquidate the outstanding principal and interest and that the defendant is responsible for his inability to repay the loan. He pleaded that in October 2009, the defendant gave him a Hyundai Tucson Car which had been used by a previous employee for 13 months to be purchased for the sum of N2,995,000.00. He pleaded that he paid a monthly instalment of N49,916.67 for 3 months to the defendant and that in December 2009 the defendants Group Managing Director instructed that the car be converted to an official car and that the terms of the car consumer agreement changed when the defendant changed the car to a status car in January 2010.

He pleaded that until his appointment was terminated the defendant stopped deducting payments for the vehicle. He pleaded that the car was used only for the defendants purposes from Monday to Saturday and Public Holidays. He pleaded that when the defendant terminated his employment, the defendant refused to pay him his outstanding salaries, entitlements and monies paid in respect of the car and sought to recover the car without indicating any intention to pay him and therefore he was forced to keep the car. The claimant testified as the only witness in support of his claims and his testimony was in the exact terms of his case on the pleadings.

Under cross examination, the claimant said he was in charge of audit controls, and verification of payments but that he was not in charge of finance. He said he informed the defendant of the name of his Pension Fund Manager. He said that he is aware that every staff is allocated to a profit centre and that he never had a target to meet. He said he did his job on procedures and control and met his target. He said he applied for a car lease and signed an agreement and was supposed to make monthly instalmental payments for 60 months. He said he did not make the repayments for 60 months because his employment was terminated. He said the defendant asked him to return the car but that the car was still in his possession.

He said the car was converted to a status car but there was no letter written to that effect. That his pay slips and review letter are evidence of the conversion to a status car. The claimant said the money he paid was under the car lease agreement and that he was a co-owner of the car with the company. He said the defendant guaranteed his loan from Ecobank and that he did not agree to indemnify the defendant on the loan repayment. He admitted that 20% of his salary was tied to his performance. In re-examination, he said he was not a signatory to the accounts of the defendant. The claimant then closed his case.

The case of the defendant on the pleadings is that the claimant was its employee promoted to the position of General Manager but that his conditions of service was reviewed further by a letter dated March 1, 2010. It pleaded that owing to the global meltdown, it had to adopt a new strategy to meet the reduction in the company’s turnover and a new company policy of creating ‘profit centre’ was discussed, agreed upon and formalized in the claimants review letter, the terms of which were duly accepted by the claimant. The defendant pleaded that the claimant was aware that he belongs to a department and profit centre and his profit centre is self dependent. It pleaded that the claimant was aware that all expenses including staff salaries are to be borne by the proceeds of the profit centre, but the profit centre could but meet its obligations due to the claimant’s failure to make sales and meet his set target. The defendant pleaded that the claimant was aware that 20% of his monthly salary will be withheld as bonus called ‘performance pay’ to be paid quarterly, strictly based on his ability to meet his set target and have a satisfactory...