IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 24THDAY OF MARCH, 2020
SUIT NO. NICN/YEN/72/2016
WEST AFRICAN CATERING NIGERIA LTD………………….DEFENDANT
U.B. Ubaika, Esq. for the Claimant.
Nilson Oke, Esq. for the Defendant.
By a complaint dated and filed on 16th April 2016, the Claimant seeks the against the Defendant the following reliefs;
1. Salary for seven months (October 2007- April 2008)= N48,427 x 7 = N338,989
2. Annual leave allowance of
3. End of contract bonus of
4. Special damages (Legal Fees)
5. General damages
The Claimant filed his complaint along with other initiating processes while the Defendant entered a conditional appearance vide leave of the court granted on 2nd November 2017 and proceeded to file a notice of preliminary objection which was taken and a ruling was delivered on 14th March 2018 striking out the preliminary objection. The Defendant thereafter filed a statement of defence on 21st March 2018 thereby joining issues with the Claimant and the matter proceeded to trial.
The Claimant testified as CW1 by adopting his two statements on oath dated 26/4/2016 and 3/5/2018, and tendered the following exhibits;
i. Exhibit C1- Letter of leave dated 17/9/2007
ii. Exhibit C2- Solicitor’s letter dated 30/1/2008.
iii. Exhibit C3- Resignation letter dated 31/3/2008.
iv. Exhibit C4- Individual pay slip for August 2007.
v. Exhibit C5- Receipt dated 7/4/2016.
The Claimant was cross examined and his case closed thereafteras there was no reexamination.
The Defence presented two witness to wit, one Barr. Okwun Ekeand one Edwin Ochai who testified as DW1 and DW2 respectively. DW1 adopted his statement on oath dated 21/3/2018 and tendered the following documents;
i. Exhibit D1- Internal Memorandum dated 28/8/2007
ii. Exhibit D2- Transfer instructions dated 6/11/2007
iii. Exhibit D3- Payoff sheet
iv. Exhibit D4- Bank Statement of 4/3/2009
v. Exhibit D5- Staff Terminal Benefit Slip of 9/11/2007.
vi. Exhibit 1D1- Transfer instructions dated 1/11/2007 tendered through the Claimant during cross examination.
DW2 adopted his written deposition of 8/5/2018 on 29/4/2019. Both DW1 and DW2 were cross examined by the Claimant’s counsel and later discharged.
CASE OF THE CLAIMANT
The facts as contained in the statement of facts of the Claimant are that he was employed as a security officer by the Defendant in October 2003 but was not issued with a letter of employment. The Claimant stated that he was thereafter posted to man the ware house of the Defendant as a supervisor until September 2007 when the Defendant granted him approval to proceed on annual leave which he did but upon resumption from leave, he was asked by the Operations manager not to resume until he was asked to. This situation continued until April 2008 when the Claimant wrote a letter of resignation. The claimant thus asked for outstanding salaries, allowances and damages.
CASE OF THE DEFENDANT
The Defence filed by the Defendant reveals that the Claimant was her staff but that the employment of the Claimant with other staff of the Defendant was terminated and they were equally paid all their terminal benefits. The Defendant contends that the Claimant is not entitled to any of the reliefs before the court as all payments due to the Claimant and other staff of the Defendant were paid.
DEFENDANT’ S SUBMISSIONS
The Defendant’s final written address is dated 30th April 2019 but filed on 16th May 2019.It contains the following issues for determination.
1. Whether the Claimant’s employment not being in writing can be terminated orally and whether same was properly terminated by the Defendant.
2. Whether the Claimant’s claims should fail having regard to the pleadings and the evidence led.
3. Whether the Claimant is entitled to recover his professional fees to a Solicitor of his choice from the Defendant.
It is the submission of Counsel on issue one that an employee who alleges that certain terms apply and govern his employment must avail the court of such materials and also lead credible evidence in prove of same. That, it is not the business of the employer to prove such terms of employment or how they were breached. In support of that, Counsel cited the cases of Ibama V. S.P.D.C. (Nig.) Ltd (2005) 17 NWLR (pt. 954) 364 and Katto V. CBN (1999) 6 NWLR (pt. 607) 390.
Counsel argued that there is nothing pleaded by the Claimant or shown by evidence as to what regulates his employment or the mode of termination except exhibit B (pay slip) which cannot be of help to the Claimant.
Counsel submitted in relying on the case of Trade Bank Plc V. Dele Morenikeji (Nig.) Ltd (2005) 6 NWLR (pt. 921) 309 that the court is not expected to scout for non -existent evidence and cannot make a case for the Claimant.
Counsel argued that the law is settled that in a master/servant relationship, the master can terminate the employment of the servant with or without reason and whether it was wrongfully terminated, it still amounts to an effective termination. Counsel relied on the case of Lawrence Jingbgh V. Union Bank of Nigeria Plc (2001) 2 NWLR (pt. 696) 11.
Counsel submitted that by the decision in Ibrahim Geidam V. NEPA (2001) 2 NWLR (696) 45, the court cannot compel an unwilling employer to accept or keep a willing servant in a master/servant contract.
Counsel contends that in this suit, the employment of the Claimant was terminated in October 2007 against his claims that the employment relationship subsisted till when he resigned. Counsel contends also that there was no employment letter between the parties and the Claimant has not shown the existence of a particular mode of termination thus the notice of termination by the Defendant was a due notice terminating the employment of the Claimant and other staff (that is exhibit D1).
Counsel argued that the reply of the Claimant to its statement of defence failed to deny the fact that his employment was terminated.
On issue 2, It is the submission of Counsel that the Claimant must succeed in his claims. However the Claimant has failed to state what was his net pay to ascertain his entitlement to the alleged claim of end of contract bonus. According to Counsel, exhibit C4 which is the pay slip of the Claimant contains all that the Claimant was entitled to. This does not include end of contract bonus.
Counsel contended that that end of contract bonus is usually paid to workers who are employed for a specific contract that has to also end on a specific date hence the employment of the Claimant not being one of a specific job or time, he cannot be paid end of contract bonus.
Counsel submitted that the Claimant has contradicted himself in his claim for annual leave allowance. That is by exhibit C4, the basic salary of the Claimant is N5,565.00 after tax which the claimant had stated in his pleadings that he was entitled to one month basic salary as leave allowance, and in the same deposition, the Claimant stated that his annual leave allowance is N48,270. Counsel contends that such a claim is special in nature and the Claimant ought to specifically prove same and not to pick and choose the conflicting or speculative evidence. Counsel cited the case of S.D.C. Cem. Nig. Ltd V. Nagel & Co. Ltd (2003) 4 NLWR (pt. 811) 622.
Counsel submitted that the Claimant’s employment came to an end in October 2007 hence he is not entitled to any further salaries or claims thereafter. Counsel cited the case of C.C.B Nig. Ltd V. Nwankwo (1993) 4 NWLR (pt. 286) 159.
Counsel argued further that after the disengagement of the Claimant, the Defendant paid into the Fidelity bank account of the Claimant all his entitlements thus filing this suit thereafter to ask for seven months’ salary is a gold digging exercise which cannot be entertained by the court. To support this, Counsel referred to the case of G. Chilex Industries Ltd. V. Oceanic Bank International (Nig.) Ltd (2005) 14 NWLR (pt. 945).
Counsel further submitted that general damages cannot be awarded in actions for breach of contract whether it is contract of employment or contract for supply of goods as general damages belong to the realm of tort. In support of that, Counsel cited the case of Dr. Thomas O. Ndinwa V. Festus Igbinedion& Anor (2001) 5 NWLR (705) 140.
Counsel contends that the Claimant has not pleaded or shown that he suffered anything to be entitled to damages and even where damages are proved, the Claimant would be entitled to only one month salary in lieu of notice. Counsel relied on the case of C.C.B. Nig. Ltd V. Nwankwo (supra) 174.
With regards to issue 3, Counsel submitted that the claim for solicitor’s fees by the Claimant is not acceptable in law as the Claimant cannot shift the alleged solicitor’s fee to his adversary. To support this, Counsel cited the cases of Guiness (Nig.) Plc V. Nwoke (2000) 15 NWLR (pt. 689) 135, Nwanji V. Coastal Service (Nig.) Ltd (2004) 11 NWLR (pt. 885) 552, Ihkwoaba V. A.C.B. Ltd (1998) 10 NWLR (pt. 51) 590, Bluenest Hotels Ltd. V. Aerobell Nigeria Ltd (2018) LPELR- 43568 (CA) and Michael V. Access Bank Plc. (2017) LPELR- 41981 (CA).
Counsel finally urged the court to dismiss the entire case with cost.
The Claimant’s final written address is dated and filed on 6th June 2019 wherein a single issue is formulated for determination to wit: "Whether the Claimant is entitled to the judgment of this Honourable Court."
Counsel submits that it is not in doubt that there was an employment relationship between the Claimant and the Defendant as contained in paragraph 1 of the Statement of Facts. This fact of employment was admitted by the Defendant in paragraph 3 of the Statement of Defence.
Counsel contends that it is not in doubt also that the Claimant was not issued a letter of employment but that the Claimant was in the employment of the Defendant until September 2007 when he was instructed by the Defendant to proceed on annual leave between 17/9/2007 to 16/10/2007.
Counsel argues that at what point was the appointment of the Claimant terminated by the Defendant and how was it terminated? Counsel contends that the onus is on the Defence to provide answers to these questions and prove same. Citing the case of Bulet Int. Nig. Ltd. V. Olaniyi (20180 All FWLR (pt. 943) 500 and also sections 131,132 and 133 of the Evidence Act 2011.
Counsel submits that exhibit D1 relied upon by the Defendant as termination letter is rather a general circular and not an individual letter and the words contained therein are executory as they did not terminate the appointment of the Claimant, thus a formal letter of termination was required in this case. But no such letter of termination was served on the Claimant after the issuance of exhibit DW1.
Counsel argued that the position of the Defendant that there is no need for personal letter of termination since there was no initial letter of appointment is untenable in law as by the provisions of section 7(1) of the Labour Act, Cap L1, Laws of the Federation of Nigeria 2004, the Defendant is under a statutory obligation to give the Claimant a letter of employment stating out the terms and conditions of the employment.
Counsel argued also that even in the absence of the letter of employment stating the mode of termination, section 11 (1) (2) of the Labour Act makes it mandatory that notice for termination must be in accordance with the length of service and under section 11 (7) of the Labour Act all wages in money must be paid prior to termination.
Counsel contends that the Defendant has failed to prove by evidence that there was due notice of termination of the employment of the Claimant and cannot therefore resort to the case of oral termination. Counsel relied on the case of Brosette Manufacturing Nig. Ltd. V. M/S OlasIlemobola Ltd & 3 Ors. (2007) All FWLR (pt. 379) 1340.
Counsel submits also that in the light of the obvious breach of the provisions of the labour act, the Defendant cannot be allowed to benefit from his own wrong and rely on it to cause legal harm and damages to the Claimant. Citing the case of Brosette Manufacturing Nig. Ltd. V. M/S OlasIlemobola Ltd & 3 Ors. (supra) 1380.
Counsel contends also that exhibit D1 contradicts exhibit C1 dated 17/9/2007 as exhibit C1 which asked the Claimant to proceed on annual leave came much more later than exhibit D1 which was the purported letter of termination. That is exhibit C1 could not have asked the Claimant who was allegedly terminated on 28/8/2007 vide exhibit D1 to proceed on annual leave and resume on 16/10/2007. Aside the fact that employment of the Claimant was not terminated, there is also no evidence showing payment of terminal benefits to the Claimant.
It is the submission of Counsel that exhibit D4 which is the bank statement has not met the conditions of admissibility as a computer printout under section 84 of the Evidence Act. Thus compliance with section 84(2) of the Evidence Act is mandatory as held in the case of Dickson V. Sylva &Ors.
In relying on the cases of Brosette Manufacturing Nig. Ltd. V. M/S OlasIlemobola Ltd & 3 Ors. (supra) 1380 and Nwaogu V. Atuma (2013) 221 LRCN (pt. 2) 1,Counsel submits that a document wrongly admitted is invalid for all purposes and can be expunged by the same court that admitted it.
On the claim for annual leave, Counsel submitted that where a party claims more than what he is entitled to, the court can grant less as proven thus the court can grant N5,565.00 as the Defendant seems to have issues with the figure claimed.
Counsel submits that since the appointment of the Claimant did not terminate in September 2007, the evidence before the court shows that the Claimant resigned in April 2008. It therefore naturally follows that the Claimant is entitled to salaries to that date which is a period of 7 months.
Counsel argued that exhibit C4 shows Claimant’s earnings per month which is N48,427.00 and when multiplied by 7 months, it brings that total money claimed as salaries to
N338,989 which the Claimant is entitled to.
On the claim for general damages and recovery of illegal fees, it is the contention of Counsel that damages is compensation to a party resulting from wrongful act of the other party. The non- payment of salaries for seven months to the Claimant is one deserving compensation. Counsel relied on the case of British Airways V. Atoyebi (2015) All FWLR (pt. 766) 442.
Counsel further submits by relying on order 55 rule 1 of the rules of this court and the cases of Ukaegbu&ors. V. Nwokolo (2009) All FWLR (pt. 466) 1852, Rewane V. Okotie- Eboh (1960) SCNLR 461 and Charles Naude&Ors. V. Monday Simon (2014) All FWLR (pt. 753) 1878, that the court has the discretion to order cost in any proceeding to be paid and each case should be decided by the particular facts of the case.
Counsel therefore urged the court to answer the issue herein in the affirmative and grant the reliefs of the Claimant.
DECISION OF THE COURT
Having carefully considered the evidence adduced including exhibits tendered by the respective parties and the submissions of the respective Counsel. It therefore behooves on the court to resolve the following issue; whether the Claimant has discharged the onus of proof to be entitled to judgment.
In resolving this issue, I need to consider the claims of the Claimant alongside the evidence in support thereto. The Claimant is seeking to be paid seven months arrears of salaries on grounds that he did not receive a personal letter of termination of appointment from the Defendant until he willingly resigned in April 2008 vide exhibit C3. The Claimant stated that he was employed by the Defendant on 8th October 2003 but he was not issued with a letter of employment and that he later proceeded on annual leave between 17th September 2007 and 17th October 2007 as seen in exhibit C1.
The Defendant in her defence admitted that though the Claimant was her employee, the Company by exhibit D1 terminated the appointment of all her staff including the Claimant and equally paid each staff end of contract fee as shown by exhibits D2, D3, D4, D5 and 1D1.
Therefore, I must say that it is not in doubt that the Claimant was indeed an employee of the Defendant and was paid his monthly salaries until the purported termination in September 2007.
The law is settled in sections 131, 132 and 133 of the Evidence Act 2011 that in civil matters, a party must prove his case on the preponderance of evidence as the burden of proof lies on the one who asserts the affirmative as held in the case of Veepee Ind. Ltd. V. COCA Ind. Ltd (2008) All FWLR (pt.425) 1667. See also the cases of Aminu V. Hassan (2014) 5 NWLR (pt. 1400) 287 at 316, Odutola V. Aiyeleru (1985) 1 NWLR (pt. 11) 92 and Jolasun V. Bamgboye (2010) 44 NSCQR 94 @ 98.
The Claimant seeks arrears of salaries from October 2007 to April 2008 and the hurdle is on him to plead and lead positive and credible evidence in support thereof. However, there is no evidence such as bank statements of account of the Claimant for the period or pay slips to debunk the facts as contained in exhibits D4 (Bank Statements of account of the Defendant) that he was paid his end of contract entitlements. The Claimant admitted during cross examination on 21st March 2018 that he used to receive his salary through his bank account with Fidelity Bank Plc which is the only account he maintains with Fidelity bank but that not all his salaries and entitlements were paid through the bank.
Exhibit D3 is a payoff sheet prepared by the Defendant. It contains names of the staff the Defendant claimed to have terminated their employment by the issuance of exhibit D1. Against each name of staff is a figure paid by the Defendant as payoff and number 16 is the name of the Claimant with the figure of
N71,015. Exhibit D5 is a staff terminal benefit slip dated 9/11/2007 in the name of the Claimant prepared by the Defendant showing the entitlements of the Claimant from when he was employed in October 2003 to October 2007 when the employment came to an end. The total terminal benefit as shown on exhibit D5 is N161,514 (One Hundred & Sixty- One Thousand, Five Hundred & Fourteen Naira) only. Exhibits D2 which is the transfer instructions from the Defendant to the Manager of Fidelity bank, is dated 6/11/2007. Equally, exhibit ID1 which contains transfer instructions from the Defendant to the Manager, Fidelity Bank is dated 1/11/2007.
Both exhibits D2 and ID1 reveal that the total sum of money computed in exhibit D5 as
N161,514 (One Hundred & Sixty- One Thousand, Five Hundred & Fourteen Naira) only was paid into the Fidelity bank account of the Claimant. The Claimant has not denied this fact but stated under cross examination that not all of his entitlements have been paid but without enumerating the ones not paid.
The Claimant is alleging that he was in the employment of the Defendant irrespective of exhibit D1 which is the internal memo that terminated the appointment of staff of the Defendant including the Claimant, until April 2008 when he resigned. The evidence by the Claimant in support of this is exhibit C1 which is the letter of annual leave. Even though the Defence did not object to this exhibit, the exhibit seems irregular on the face of it as it is a photocopy of an original document but with the date fixed by blue ink. In fact the document is not legible as to whom is it addressed to and the date thereof. This alteration has left one to wonder the authenticity of the said document. It is the duty of the party who tenders a document to prove its genuiness and authenticity before the court can rely on it. See Offodile V. Onejime (2012) All FWLR (pt. 608) 946 at 966. However, even if the said exhibit C1 was regular, the fact still remains that the defendant determined the employment of her staff including the Claimant vide exhibit D1 and the subsequent payment of their respective terminal benefits brought the employment relationship to an end as at October 2007.
Besides this, the Claimant admitted during cross examination that he was aware that Jimaco Nig. Ltd took over the Defendant Company and some staff took up new appointment with it but he did not. The Claimant further contradicted himself by stating in the pleadings and his statement on oath, that when he resumed from the annual leave as contained in exhibit C1, the Operations Manager, Edwin Ochai asked him to continue with the leave till further notice. See paragraphs 5 of both statement of facts and the claimant's deposition. Meanwhile under cross examination on 8th May 2018, the Claimant stated that “when I resumed from annual leave, I was only informed by (Mr. Ochai), the Operations Manager that I should resume work at Willbross Nig. Ltd as one of the operation base but I was not told that my employment was terminated. Those affected by the termination took the advantage and joined Jimaco Nig. Ltd”.
The law is that where a witness gives conflicting versions in his evidence, such facts are deemed unreliable. In the Supreme Court case of Darego V. A.G.Leventis& 3 Ors. (2015) LER CA/L/481/2011, such evidence is not only conflicting but contradictory when a party gives an inconsistent account of the same event. See also the cases of Okonkwo V. Zurmi & Anor. (2018) LPELR- 46855(CA) and C.D.C. (Nig.) Ltd V. S.C.O.A (Nig.) Ltd (2007) 6 NWLR (pt. 1030) 300.
I am therefore of the view that the master/servant relationship between the Claimant and Defendant was determined by exhibit D1 and effected by the payment of end of contract terminal benefits as reflected by exhibits 1D1, D2, D4 and D5.
Even if exhibit C1 is believable and there is also no letter of termination of appointment to the Claimant, the law still remains static that it is the onerous duty of the Claimant to present cogent, compelling and credible evidence in support of his claims before the court as they are special heads of claims which cannot be granted for asking sake. See the cases of the Ibitokun V. Strabag (2010) 43 NSCQR 521 at 528 and that of Hamza V. Kure (2010) 42 NSCQR (pt.1) 592 at 595, wherein the Supreme Court held that the Plaintiff (Claimant) by law is required to plead and support what he has pleaded by credible and convincing evidence and that evidence should preponderate in civil matters before his claims can be acceded to by the court and where he fails to discharge the onus, his claim must fail.
Equally in the case ofUnion Bank of Nigeria Plc V. Alhaji Adams Ajabule& Anor (2011) LPER- SC 221/2005 or (2011) 18 NWLR (pt.1278) 152,the Supreme Court held that “the law is trite that unless pleaded and strictly proved, the court is not obliged to make any awards in that regard for special damages”. See also Osuji V. Isiocha (1989) 3 NWLR (pt.111) 623.
Therefore, the failure by the Claimant to provide evidence in respect of these specific heads will only leave the court to speculate and that is not the hallmark of a judicial order. In I.H.A.B.U.H.M.B V. Anyip (2011) 202 LRCN 51 at 55.
In Ajigbotosho V. R. Const. Co. Ltd (2018)281 LRCN 57, the Supreme Court held that for a claim in special damages to succeed, it must be specifically pleaded and strictly proved in evidence. Thus claims for special damages based on mere estimates or estimation of the Plaintiff (Claimant) is not precise but guess work and a court cannot issue an order on mere conjecture. See also NNPC v. Clifco Nig. Ltd  LPELR-2022 (SC) and Mr. Ignatius Anyanwu&ors V. Mr. Aloysius Uzowuaka&ors  LPELR-515(SC).
The Supreme Court has in the case of A.I.C. Ltd V. NNPC (2005) NWLR (pt.937) 60 held that a plaintiff (claimant) must succeed on the strength of his case and not on the weakness of the defence especially in a claim of this nature as the Claimant must provide the foundation upon which the court can rely on to safely land in his favour.
On the claim for payment of solicitor’s fees, I subscribe to the views of Uwaifor, JSC in the case of Nwanji V. Costal Services (Nig.) Ltd (2004) 11 NWLR (pt. 885) 552 that a claim for solicitor’s fees is unusual and difficult to accept in our country especially when there is no agreement between the parties and no justification for a grant of same.
Consequently, I find that the Claimant has not proved his case on the preponderance of evidence as required by sections 131, 132 and 133 of the Evidence Act 2011 (as amended) hence his claims as contained in the statement of facts fail and are accordingly dismissed.
Judgment is entered accordingly. I make no order as to cost.
HON. JUSTICE S.H. DANJIDDA