Download PDF
JUDGMENT Introduction & Claims 1. The Claimant commenced this suit by his Complaint dated and filed on 26/4/16 and sought the following reliefs against the Defendants - 1. A Declaration that in view of the facts and circumstances of the performance of the contract of employment by the parties, the 1st and 2nd Defendants are joint/common employers of the Claimant. 2. An Order of this Honourable Court compelling the Defendants to pay to the Claimant the sum of =N=1,849,379 (One Million, Eight Hundred and Forty Nine Thousand, Three Hundred and Seventy Nine Naira only) being the employee’s Severance/Disengagement Benefit after 8 years of service in accordance with the 1st Defendant’s policy. 3. 15% interest per annum on the above sum =N=1,849,379 being amount owed the Claimant from 31st December 2012, until judgment is delivered in this suit and thereafter at the rate of 10% per annum until liquidation of the awarded judgment sum. 4. The sum of =N=500,000 (Five Hundred Thousand Naira) as the costs of this action. 2. Claimant accompanied his General Form of Complaint with Statement of Facts, witness deposition, list and copies of documents to be relied on at trial. The Defendant entered an appearance on 7/3/17. It did not file any statement of defence. Case of the Claimant 3. Claimant opened his case on 16/1/17, testified in chief by adopting his witness deposition dated as his evidence in chief and tendered 11 documents as exhibits. The documents were admitted in evidence and marked as Exh. KA1-Exh. KA11 respectively. 4. The case of the Claimant as revealed from his pleadings and evidence led is that he was offered an appointment by the Defendants as a Librarian with effect from 3/8/05; that same was confirmed by the 1st Defendant on the 22/8/07 with an improved Gross pay and was issued an Offer of Appointment Letter dated the 22/8/06 and Daar Communication Staff Handbook; that after 5 years of faithfully and diligently working for the 1st Defendant as the Librarian, the Management of the 1st Defendant introduced new salary structure and reviewed the rank/grade of the Claimant via letters dated of 303/10 and 29/10/10; that in 2011, the Claimant was redeployed from the Library Services Department of Raypower FM (a Subsidiary company of the 1st Defendant) to the Marketing and Sales Department wherein he was issued with 1st Defendant Internal Control Policies and Procedure Manual 2011; that on the 18/1/13, he received a letter dated 31/9/12from the 1st Defendant terminating his employment with effect from the dat of the letter, which contravenes 1st Defendant Internal Control Polices and Procedure Manual 2011 being the condition of service regulating the Claimant’s employment with the Defendants and which required a three (3) months notice in writing prior to termination or the paying of one month salary in lieu of notice; that before the termination of his employment the 1st Defendant was owing him 9 months' salary arrears, out of which 6 months' salary arrears were paid by the 1st Defendant, a year after he was sacked. 5. It is the case of the Claimant that after he could not get the 1st Defendant to pay the 3 months balance arrears of his salary, he instructed his Solicitors to write a letter of demand to the Defendants, dated 20/10/15 for the payment of the 3 months balance arrears of salary and employee’s Severance/Disengagement Benefit after 8 years of service as provided for in the 1st Defendant Internal Control Policies and Procedure Manual 2011 amounting to =N=2,430,675.51 (Two Million, Four Hundred and Thirty Thousand, Six Hundred and Seventy Five Naira, Fifty One Kobo only) that the 1st Defendant wrote a reply letter to his Solicitor dated the 8/12/15 conceding to owing him the sum of =N=581,296.51 (Five Hundred and Eighty One Thousand, Two Hundred and Ninety Six Naira Only) being the 3 months salary arrears and the accrued pension and directed the Claimant to pick up a Bank cheque dated 29/12/15 in the said sum at the Directorate of Administration and Human Resources/Development of the 1st Defendant and that he signed a legal service agreement with his Solicitor, dated 2/2/16 and subsequently filed this suit on 20/4/16. 6. Under cross examination, Claimant stated that when he left the Defendant he was being owned nine months salaries; that he was subsequently paid 6 months out of the nine months outstanding; that three months salaries are outstanding now; that his monthly salary was =N=64,000.00; that he does not know if a copy of Exhibit KA8 was sent to the 2nd defendant and that he was later paid the sum of =N=581,296.51 by the Defendant as the amount owed him Final Submission of learned Counsel 7. Learned Counsel to the Defendant did not defend this action and did not file any final written address. In his final written address dated 30/5/18 and filed on 1/6/18, learned Counsel to the Claimant set down a lone issue for determination thus - Whether the Claimant has proved his case upon the preponderance of evidences tendered. 8. In arguing this lone issue, learned Counsel submitted that the issue raised by the Claimant was not challenged and hence should be believed by the Court; that Claimant was neither given 3 months' notice in writing prior to termination of his employment nor paid a month salary in lieu of notice. Counsel referred to Schedule 7 of Rule 9.8.14 of Exh. KA7. Counsel submitted that contract of employment or conditions of service is sacrosanct and an employer cannot be allowed to disregard same citing Strabag Construction Nigeria Limited v. John Adeyefa (2001) FWLR (Pt. 60) 1538 at 1541; that the fact that the Defendant issued Exh. KA5 was not in any way denied and that the exhibit provides for payment of gratuity to employees and the mode of calculating the gratuity payable. Learned Counsel prayed the Court to grant the reliefs sought by the Claimant same having been proved on the balance of probability and the preponderance of evidence led citing FBN Plc v. Onukwugha (2005)16 NWLR (Pt. 950) 120 at 153. Decision 9. I have read and understood all the processes filed by the Claimant in this case. Aside from the Memorandum of Appearance filed by the Defendant 7/3/17, the Defendant did not file any other process in this matter. I heard the oral testimony of the Claimant as well as watched his demeanor under cross examination. I also reviewed and evaluated all the exhibits tendered by the Claimant. Having done all this I set down a lone for the just determination of this case as follows - Whether the Claimant has proved his case to be entitled to all or any of the reliefs sought. 10. It is a trite law that in a civil case as this the burden of proof lies on the Claimant to discharge on the balance of probability. That burden is discharged by adducing cogent, credible and admissible evidence in support of his claim by the Claimant. The required evidence may be either oral or documentary or even both. Has the Claimant proved his entitlement to all or any of the 4 reliefs sought? The first relief sought by the Claimant is for a declaration that in view of the facts and circumstances of the performance of the contract of employment by the parties, the 1st and 2nd Defendants are joint/common employers of the Claimant. In his evidence in chief, Claimant averred that the 1st Defendant is a limited liability Company; that the 2nd Defendant is the Executive Chairman of the 1st Defendant and that he was employed by the 1st Defendant by an employment letter dated 3/8/05. Thus by Claimant evidence, 1st Defendant was his employer. Claimant has not tendered any evidence before me to support his assertion or claim for a declaration that both the 1st and 2nd Defendant are his joint employers. It is trite that declaratory reliefs are not granted as a matter of course but rather on the basis of cogent and admissible evidence. That cogent and admissible evidence is not before me to support the declaration sought by the Claimant. Thus the first relief sought is not proved. I thus refuse and dismiss same accordingly. 11. The second prayer sought by the Claimant is for an order of Court compelling the Defendants to pay to the Claimant the sum of =N=1,849,379 (One Million, Eight Hundred and Forty Nine Thousand, Three Hundred and Seventy Nine Naira only) being the employee’s Severance/Disengagement benefit after 8 years of service in accordance with the 1st Defendant’s policy. The case of the Claimant respecting this head of relief is that he worked for the 1st Defendant for a period of over 8 years and that in accordance with the policy of the 1st Defendant his severance entitlement is in the figure stated. Learned Counsel drew my attention to paragraph 15.2(i) of Exh. KA5. The paragraph states that the company shall pay retirement gratuity as follows: for each completed year of service up to 5 years 80% gross annual salary. Claimant did not tender his last pay slip or statement of Bank account in evidence to show his last salary with the 1st Defendant. However, Exh. KA4 dated 29/10/10 titled Review of Rank/Grade Level showed the last total annual salary of the Claimant to be the sum of =N=777,050.52. Certainly the 80% of that figure does not tally with the claim of the Claimant before this Court in the sum of =N=1,849,379.00. The Defendants did not defend this case. Notwithstanding this, the burden of proof remains always on he who approaches the Court for judicial redress to lead evidence in proof of same. 12. Only the Claimant led evidence. Learned Counsel to the Claimant had appropriately and correctly stated the position of the law to be that the Court is bound to accept and act on unchallenged piece of evidence. That correct proposition of the law is however subject to and only to the extent that the unchallenged piece of evidence is in proof of the relief sought by the Claimant. Thus where the alleged unchallenged evidence does not prove the claim before the Court, the Court will not and cannot be expected to act on it. It ought to be granted and perhaps need not be restated that where a party approaches the Court for judicial reliefs, the party's unchallenged evidence must be to establish the relief sought. Where the unchallenged evidence led is in proof of the remedies sought, certainly the Court has no choice but obliged to act on same. Where however the evidence led, though unchallenged, is not in proof of the claims before the Court, certainly no Court of law will hold that simply because the evidence is unchallenged then the relief sought must be granted. A Court of law is not a Father Christmas. A Court of law does not act on sentiment. A Court of law does not and will not speculate. The unchallenged evidence of the Claimant in this case does not prove his entitlement to the sum of =N=1,849,379.00 as his retirement or disengagement benefit. I therefore refuse and dismiss this claim for lack of proof. I have no hesitation in doing so. 13. Reliefs 3 and 4 as sought by the Claimant are for 15% interest on the sum claimed and =N=500,000.00 as cost of action. It is obvious that these 2 reliefs are predicated on the success of the main reliefs of the Claimant. It is also apparent from this Judgment that the 2 main reliefs sought have been refused and dismissed for lack of proof. That being the case the basis upon which these reliefs are to be granted is punctured. It is trite that you cannot put something on nothing and expect it to stay. No doubt it will collapse. I therefore refuse and dismiss the reliefs sought. 14. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I refuse and dismiss the case of the Claimant in its entirety for lack of proof by cogent, credible and admissible evidence. 15. I make no order as to cost. 16. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge