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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: January 12, 2016 SUIT NO. NICN/LA/543/2012 BETWEEN EVANGELIST KENNEDY O. OGBONNA - CLAIMANT AND 1. THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH DEFENDANTS 2. MR. KANISURU REPRESENTATION Y.A.Ajayi (Miss) Asst Chief State Counsel with C.W.Bello (Mrs), O.T.Akinbolade for the claimant. Godwin James for defendants. JUDGMENT The claimant filed this complaint on the 29th October 2012 seeking the following reliefs jointly and severally against the defendants: 1. A declaration that the non-payment of the claimant’s unpaid salaries from August 2011 to October 2012 and other allowances is unlawful. 2. A declaration that the claimant’s fundamental human rights of personal liberty and freedom of association were breached in the workplace. 3. A declaration that the claimant is entitled to special damages for unlawful detention, harassment and maltreatment. 4. SPECIFIC DAMAGES N a) Outstanding salaries for 14 months 252,000.00 b) Housing Allowance 49,000.00 c) Transport Allowance 28,000.00 d) Lunch Allowance 7,000.00 e) Duty Allowance 70,000.00 5. The sum of N15,000,000.00 as special damages for unlawful detention, harassment, false accusation and inhuman treatment. 6. 10% interest from the date the matter is filed till the date of judgment and thereafter 5% interest till the final liquidation of the indebtedness and for such further cost as adjudged by this Honourable Court. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon. The defendants entered appearance on 1st March 2013. On the 3rd February 2014, they filed an amended defence, a counterclaim together with the accompanying processes. The claimant filed a reply and a defence to the counter claim on 8th July 2013. The 1st defendant counter claimed as follows: (i) The sum of N8,400.00 (Eight Thousand, Four Hundred Naira) being twelve (12) days salary and allowance received by the claimant before he absconded from work between 20th – 31st of August 2011. (ii) The Sum of N7,000.00 being one month basic salary in lieu of notice which the claimant failed to give to the 1st defendant before he constructively resigned his appointment with the 1st defendant and absconded from duties without notice. (iii) Interest at the rate of 10% from 1st day of September 2011 till date of judgment and thereafter 5% interest till the date of final liquidation and for such further cost as adjudged by this Honourable Court. The case of the claimant on the pleadings is that he was employed by the defendant on 29th day of May 2011 as a Security Officer and his last monthly emolument was N18,000.00 (Eighteen Thousand Naira). The claimant pleaded that on the 28th September 2011 the defendants instigated his arrest and detention for several hours at Alapere Police Station on allegation that he stole property belonging to the church. The 2nd defendant harassed, maltreated and caused him to be arrested by the Police and during his detention, he was prevented from carrying out his normal duties. That the request for his release was refused by the Police who said that they had instructions from the defendants not to release him until he returns the boots and security uniform to the 1st defendant. The claimant pleaded that his appointment as a security officer was never terminated till date and that his entitlement was never paid. That he was frustrated and haunted out of employment by the defendants and did not abscond from duty. The claimant averred that his entire family suffered humiliation due to his detention at Alapere Police Station. He pleaded his salaries were not paid for 14 months from August 2011 till October 2012 which amounts to N252,000.00; that his housing allowance from August 2011 till date in the sum of N49,000.00 has not been paid and that the defendant owes him unpaid Transport Allowance from August 2011 which is N2,000.00 per month for 14 months which amounts to N28,000.00. The claimant averred that he worked for the defendants from 29th May 2011 till August 2011 and that he was paid for the month of August 2011. That he is entitled to duty allowance per month in the sum of N5,000.00 and for 14 months N70,000.00; lunch allowance per month in the sum of N500.00 and for 14 months N7,000.00. The claimant pleaded that he wrote a petition to the Office of the Public Defender to seek redress for his unpaid salaries and allowances upon which the Office of the Public Defender invited the defendants for a meeting for amicable settlement but they did not show up on the days scheduled for the meeting. The claimant avers that as a result of the foregoing situation occasioned by the defendant, he was damnified and suffered loss and damages. The claimant testified in support of his case. His evidence in chief was by his witness statement on oath which he identified and adopted. It was in terms of the pleadings. Under cross-examination, he told the court that he signed the attendance register daily. He said the last day he worked for the defendant was 22nd August 2011. He admitted that he was given a complete set of uniform by the defendant and that he returned the uniform on the 7th August 2011 and the Boots sometime in September 2011. The claimant then closed his case. The defendant’s case on the pleadings is that it employed the claimant by letter dated 29th March 2011 with effect from 1st April 2011, and he worked for 4 months and 15 days, up to the 19th day of August 2011. The defendants pleaded that on the 22nd day of August 2011, the 1st defendant paid the claimant’s salary for the month of August 2011 but after the 19th day of August 2011 the claimant failed to report to duty and absconded from work with 1st defendant’s properties without giving the 1st defendant notice of his intention to resign from the employment of the Church. The defendants pleaded that since the 19th day of August 2011, the defendants could not trace the claimant until the 3rd day of September 2011, when the 2nd defendant got him on the phone, and the claimant informed him that he could not work night shift and was not ready to work with the 1st defendant again. He was advised by the 2nd defendant to return all properties of the 1st defendant in his possession. The defendant averred that four days later on the 7th day of September 2011, the claimant brought his uniform without the boots and casually explained to the officer on duty that he could not trace the boots and he refused to collect his letter of termination of employment. That as a result of the pressure put on him by his Guarantor who the 2nd defendant contacted, on the 28th September 2011 the claimant came to the 1st defendant’s office still insisting he could not trace the boots. The 2nd defendant then reported the matter to the Police and handed the claimant over to the Police at Alapere Station. That contrary to the claimant’s claim that he could not trace the boots, he produced the boots to the Police within one hour. The defendants pleaded that they never instigated the Police, harassed nor maltreated the claimant; that they handed him over to the Police after he had been given several opportunities to return its property and never instructed the Police not to release him. The defendants pleaded that the claimant constructively terminated his appointment with the 1st defendant by abandoning his duties and disappearing with properties of the 1st defendant. They averred that they did not contribute to any humiliation of the claimant and stated that he was not beaten, abused, tortured or detained at the Police Station as he produced the boots within one hour of getting to the Police Station. The defendants pleaded that the claimant is not entitled to any salary or allowances after he absconded from his duty post; that he was fully paid for the period of 29th May 2011 to August 2011 when he worked for the 1st defendant. The defendants averred that the claimant is not entitled to allowances claimed for 14 months as he was no longer in the employment of the 1st defendant; that their Legal Adviser was at the office of the Public Defender and stated their position. The defendants stated that they have not caused any loss or damage to the claimant. The defendants called the 2nd defendant as witness Elder Joseph Kanisuru Olorunsogo (DW), the Chief Security Officer of the 1st defendant. His evidence in chief was by witness statement on oath which he identified and adopted. It was in the exact terms of the pleadings. Under cross-examination, DW told the court that claimant was kitted as a security man with uniforms and tools and was expected to be in his uniform while at work. DW said the defendants demanded for the return of the uniform and tools from the claimant; and that the claimant did not resign his appointment. The defendants then closed their case. The parties were directed to file their final addresses. The defendant’s final address is dated 28 July 2015 and filed the same day. The claimant’s final address is dated 9th September 2015 and filed the same day. The parties adopted their final addresses. Learned counsel to the defendant submitted the following issues for determination: I. Whether the claimant is still in employment of the 1st defendant and if he is entitled to the sum of N406,000.00 claimed as specific claim for unpaid salaries and allowances. II. Whether the court has jurisdiction over the issues in the claim under special damages and whether claimant has proven that he is entitled to the special damages of N15,000,000.00. III. Whether the claimant is entitled to any damages at all in this suit and if so how much is he so entitled? IV. Whether the defendants are entitled to and have proven the sum in counter claim in this suit. He submitted that claimant has admitted that he was paid for the month of August 2011, therefore he cannot make any claim for August 2011. That Exhibit D1 has shown that the claimant attended duty last on the 19th of August 2011 and therefore absconded. He argued that the evidence is unchallenged citing Ben V NSITF [2015] 52 N.L.L.R (Part 174), P.151, Overland Airways Ltd V Afolayan & Anor. [2015] N.L.L.R (Part 174), 214. Counsel submitted that the claimant failed to prove that he earned the salaries and allowances claimed in this suit so as to make the non-payment of same by the 1st defendant unlawful. Counsel submitted that the claimant’s case does not fall within the duty of an employer to provide work for an employee daily and duty to pay an employee as provided in Section 17 of the Labour Act, cap L1 LFN, 2004 because the claimant failed to present himself for work daily since 19th August 2011 without any reason. He submitted that the issue of the claimant’s duty period being changed from morning to night which arose during cross examination should be disregarded as the issue was not pleaded either in statement of facts or written statement on oath of the claimant citing Ben V NSITF (Supra). He further submitted that the claim for N15,000,000.00 being special damages for unlawful detention, harassment, false accusation, and inhumane treatment being a claim for tort and defamation are outside the jurisdiction of the National Industrial Court citing Isegen V Multi-Link Telecom Ltd [2014] 48 NLLR (Pt. 156) 249. Counsel argued that the claimant’s letter of employment dated 29/03/2011 made no provision for period of notice. He referred to Section 11(2) (b) of the Labour Act LFN 2004 and submitted that the claimant having worked with the 1st defendant for a period of six months f would have been entitled to one week notice if he had not constructively terminated his employment by absconding from his duty post since 19th August 2011. He further submitted that the Rules of this Honourable Court make no provisions for Pre- Judgment Interest of 10% as claimed by the claimant in this suit citing Lateef V Global Fleet Oil & Gas Ltd [2014] 48 NLLR (Pt. 155). On the counter claim, he submitted that the 1st defendant is entitled to one week’s salary in lieu of notice as provided by Section 11 (1) & (2) of the Labour Act and the sum of N8,400.00 being the pro-rated salary for 12 days (20th - 31st of August 2011), when the claimant did not work in the month of August 2011. Learned counsel to the claimant submitted the following issues for determination: 1) Whether the claimant is entitled to his salary arrears and allowances from August 2011 to October 2012. 2) Whether the defendant has adduced cogent and compelling evidence to establish his counter-claim. She submitted that in a written contract the court will not look outside the terms stipulated and agreed between the parties in determining the respective rights and obligations of the parties citing Sidmach Technologies Nigeria limited v Onuorah [2014] 46 NLLR (Pt. 148) 258 NIC. That the 1st defendant did not pay the claimant his salary and allowances from the August 2011 to October 2012 and sought to change the terms of the contract by making the claimant do night duty without informing him; the claimant is therefore entitled to damages. Where the terms of an employment are written and express, the parties are bound by the agreement citing Samson Babatunde Olanrewaju v Afribank Nigeria Plc [2001] 13 NWLR (Pt. 731) 691, [2001] 7 S.C (Pt. III) 1. She referred to Section 14 and 17 of the Labour Act and submitted that the claimant has proved that by failing to provide work for the claimant and the non-payment of his salary as stated in Exhibit CW1 the employer has breached a fundamental term of the contract between them and is therefore entitled to damages citing Overland Airways limited v Oladeji Afolayan and Caverton Helicopters Nigeria Limited. On the counter claim, counsel submitted that the 1st defendant failed to prove the counter-claim as required by Sections 135 and 136 of the Evidence Act citing we also refer Nsefik v Muna [2007] 10 NWLR (Pt. 1043) at 502 and Balogun v Yusuf [2010] 9 NWLR (Pt. 515) 537, Harway v Medicowa Nigeria Limited [2000] FWLR (Pt. 22) 1043. She then urged the court to enter judgement in favour of the claimant and dismiss the counter claim. I have carefully considered the processes, the evidence adduced and the submissions of the parties. The issue for determination is whether on the pleadings and evidence the claimant is entitled to judgement. The claimant has put in evidence his letter of appointment as a Security Officer by the 1st defendant with effect from 1st April 20 11 on a monthly salary of N18,000. There is no mode of termination of the contract by either party neither does the letter give the period of probation. Exhibit D1 which is the security attendance register shows that the last day the claimant reported for duty was 19th August 2011. I therefore find that the claimant worked for the 1st defendant for 4 months and 19 days only. The claimant has admitted that the defendant paid him for the month of August 2011 in his defence to the counter claim. The law is trite that facts admitted need no proof. There is therefore no basis for the claimant putting in a claim for his salary and allowances for the month of August 2011. Indeed, I find that the claimant collected his salary for the period August 20 to August 31, 2011 even though he did not work for the 1st defendant and he has not returned the money. The claimant has alleged that he was detained and arrested by the Police on the 28th September 2011 on the orders of the defendants. The evidence before the court shows that the claimant abandoned his duty post from the 20th August 2011. DW’s deposition that the defendants could not trace the claimant until the 3rd day of September 2011 when he got him on the phone, and the claimant informed him that he could not work night shift and was not ready to work with the 1st defendant again is unchallenged. I hold that the claimant abandoned his duty post. The claimant was advised by the 2nd defendant to return all properties of the 1st defendant in his possession. Exhibit D2 shows that on the 7th September 2011 he submitted the security uniforms and tools but did not submit the boots. I find that this was the reason for the defendants report to the Police and the claimant’s arrest. The defendants have a duty to report a suspected crime to the Police; and the Police have a duty to investigate the report. This is in line with law enforcement which is the duty of the Police. The claimant handed over the boots to the Police on the day he was arrested. I hold that the report made to the Police and the arrest of the claimant by the Police was justified. The claimant’s claim that his fundamental right to personal liberty was breached is without merit and I so hold. Learned counsel to the claimant has tried to set up a case in address stage which was never pleaded; specifically that the terms and conditions of the claimant’s employment were changed. A party cannot give evidence outside what was pleaded as it goes to no issue. All submissions in this regard are hereby discountenanced as this is not the case presented. See Ben v NSITF [2015] 52 NLLR (Pt 174) 214, Ogbogu v Ugwuegbu [2003] 4 SCNJ 79. The claimant’s letter of employment dated 29/03/2011 makes no provision for period of notice. However, Section 11 (1), (2) (b) & (6) of the Labour Act CAP L1 LFN 2004 provides that either party is entitled to one week notice or a payment in lieu of notice. The claimant upon failing to give one week’s notice to the 1st defendant is hereby ordered to pay the sum of N1,750.00 being one week basic salary in lieu of notice within 30 days. He is also to pay the sum of N8,400.00 being pro-rated salary and allowances for the period August 20th to August 31st 2011 which he collected without rendering any service to the defendant. This sum is also to be paid within 30 days. For all the reasons given above, the case of the claimant is dismissed in its entirety. The defendant’s counter claim is upheld. Costs of N10,000 is to be paid by the claimant to the defendants. Judgement is entered accordingly. ____________________________ Hon Justice O.A.Obaseki-Osaghae