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<p class="MsoNoSpacing"><b><u><span style="font-family:"Times New Roman","serif";color:#475050;mso-bidi-language: HE">Representation:<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">Q. E. Kesley (Mrs.) for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">K. D. Oguru for the Defendant<o:p></o:p></span></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#475050;mso-bidi-language:HE">JUDGMENT<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">This action was commenced by way of Complaint filed on the 17<sup>th</sup> day of May 2013, wherein the Claimant claimed against the Defendant, seeking the following reliefs: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">i.<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">The sum of <s>N</s>75,000.00 per month at an interest per month of the Money Rediscount Rate of 14.5 % per annum cumulatively effective the due date of every monthly salary respectively from the first due salary of April 2011 till the last due salary of December 2012 till same is fully liquidated (21 months). <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">ii.<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">The sum representing two month's total emolument for each year of unobserved leave period as payment in lieu of leave (2 years) and a month's total emolument, as allowance for year 2011 as contained in the conditions of service in the Defendant which the Defendant is maliciously withholding from the Claimant. The said payments to attract the same interest regime as in relief (i) from the due date till same is liquidated fully. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">iii.<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">The certificate from the relevant tax authority of the receipt of the deductions of pay as you earn from the Defendant on behalf of the Claimant or in the alternative, the sum deducted by the Defendant from the Claimant for tax purpose. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">iv.<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">The sum representing the Defendant's contribution to the pension scheme as applicable in the Laws of Nigeria or in the alternative the sum due to be contributed by the Defendant as its contribution on the legally regulated pension scheme per month at the same interest regime as in relief (i) above. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-bidi-language:HE">v.<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#1E2824;mso-bidi-language:HE">The sum of <s>N</s>1 million being the legal charges incurred by the Claimant to institute this action. Alternatively the sum of 10% per annum after judgment till the judgment debt is fully liquidated</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#414C46; mso-bidi-language:HE">. </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";color:#1E2824;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1E2824;mso-bidi-language:HE">The Complaint was filed along with an affidavit in verification of the complaint, Statement of Facts, Witness Statement on Oath, List of witnesses, List of documents and copies of documents to be relied upon at the trial. The Defendant, vide a motion for extension of time, entered appearance and filed a Statement of Defence along with the defence witness statement on oath. The Claimant subsequently filed a Reply to the Defendants’ Statement of Defence along with an additional statement on oath, an additional list of documents and copies of the said documents. Hearing commenced on 10<sup>th</sup> March 2015 and ended on 11<sup>th</sup> June 2015 on which day the Defendant’s counsel announced that the defence will rest its case on the case of the Claimant. The court then ordered parties to file their Final addresses in accordance with the rules of this court. The Claimant’s final address was filed on the 10<sup>th</sup> day of July 2015 vide a motion for extension of time. It was regularized on the 30<sup>th</sup> day of September 2015. The Defendant filed its address on the 21<sup>st</sup> day of October 2015. The Claimant was served with the Defendant’s Final Address on the 16<sup>th</sup> day of November 2015; and on 18<sup>th</sup> November 2015, the Claimant filed a reply on points of Law to the Defendant’s Final Address. Parties adopted their respective written addresses on the 24<sup>th</sup> day of February 2016. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; color:#1E2824;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1E2824;mso-bidi-language:HE">In the Claimant’s Final Written Address, Counsel proposed a sole issue for determination thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";color:#1E2824;mso-bidi-language:HE">Whether the claimant has proved that he is an employee of the</span></i><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";color:#B3C0C9;mso-bidi-language:HE">, </span></i><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";color:#1E2824;mso-bidi-language:HE">Defendant and thus entitled to all</span></i><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#797D85; mso-bidi-language:HE"> </span></i><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1E2824; mso-bidi-language:HE">of his reliefs set out in the writ as well as the statement of facts.<o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";color:#1E2824;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1E2824;mso-bidi-language:HE">In arguing this issue, Counsel stated that i</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1B2521;mso-bidi-language:HE">t is trite law that a contract of employment may be in any form and no</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#353F3B; mso-bidi-language:HE">t necessarily in </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1B2521;mso-bidi-language:HE">writing. Thus</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#353F3B;mso-bidi-language:HE">, </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#1B2521;mso-bidi-language:HE">a contract of employment may be inferred from the conduct of the parties if it can be shown that such a contract was intended although not expressed. Furthermore, a contract of employment may be oral unless there is a statute requiring it to be in writing or deed</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#4C5753;mso-bidi-language:HE">. See </span><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#1B2521;mso-bidi-language:HE">MOBIL PRODUCING NIG. UNLTD &ANOR vs. UDO TOM UDO (2009) All FWLR (Pt. 482)</span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#6B727A; mso-bidi-language:HE"> </span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">1177 at 1221 Paras. B – C</span></b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">. He submitted that the Claimant in paragraph 3 of the Statement of Fact and in evidence, the Claimant as CW1 averred that he was employed as a Project Assistant by the Defendant</span><span style="font-size: 12pt; font-family: 'Times New Roman', serif;">. </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#1B2521;mso-bidi-language:HE">He was not issued a letter of appointment despite his oral demand to that effect</span><span style="font-size: 12pt; font-family: 'Times New Roman', serif;">. </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">Claimant also tendered in evidence Exhibit A - a staff Identity Card issued to him by the</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#8F9299;mso-bidi-language:HE"> </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">Defendant</span><span style="font-size: 12pt; font-family: 'Times New Roman', serif;">. </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">In paragraph 5 of the witness statement of oath the Claimant averred that he was paid salary until March 2011 and tendered as Exhibit B1 - B7 copies of the Defendant</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";color:#353F3B;mso-bidi-language:HE">'</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#1B2521; mso-bidi-language:HE">s staff pay slips in his favour. He submitted further that it is settled law that if payments are made by way of wages or salaries this is indicative that a contract of employment has been entered into by the parties</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";color:#353F3B; mso-bidi-language:HE">. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel urged the court to hold that from the above stated facts as revealed in evidence, that the Claimant was an employee of the Defendant. It is counsel’s contention that it is the duty of an employer to provide his employee with statements of terms and conditions of employment. Employers are mandated by Section 7 of the Labour Act to give to their workers written statements of particulars of the terms and conditions of their employment not later than 3 months after the beginning of their period of employment. It is settled law that any employer who fails to give his employee a written statement of the terms and conditions of his employment is 'estopped' from relying on the failure of the said employee to tender in evidence the said terms and conditions of his employment. See <b>NWAKHOBA vs. DUMEZ (NIG.) LTD (2004) 3 NWLR (Pt. 861) 461 at 484</b>. Counsel argued that it is settled law that in the absence of a written contract of employment the provisions of Labour Act in Sections 7(1), 12(1), 17(1) and 18 will apply. Also, the Claimant in his pleadings and evidence has shown that he was paid salaries by the Defendant see Exhibit B1 - B7. The last amount paid to him as salary was <s>N</s>75,000.00 per month. The Claimant has also given evidence that from April 2011 to December 2012, he was not paid salaries. This piece of evidence was neither challenged nor contradicted by the Defendant. Counsel urged the Court to hold that the Claimant has established relief 1 in paragraph 23 of his statement of facts. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Again, it is the argument of Counsel that in paragraph 9 the of statement of facts and statement on oath of the Claimant, the Claimant averred that he did not go on leave nor was he paid any leave allowance at any time either in lieu. Thus, by the combined effect of Section 17(1) and 18 of the Labour Act, the Claimant is entitled to leave pay. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel went further to argue that the Defendant’s failure to lead evidence in the proceedings in support of their Statement of Defence means the following: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> i. That the averments in pleading do not constitute evidence therefore failure to lead evidence on facts pleaded amounts to abandonment of their averments. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:116%;mso-bidi-language: HE"> ii. </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">It also amounts to an admission of the evidence of the Claimant by the Defendant. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">See <b>ELEMUO vs. DIM (2002) FWLR (Pt. 126) 1004 at 1019. <o:p></o:p></b></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; mso-font-width:111%;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:111%;mso-bidi-language: HE">Counsel argued </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">that evidence unchallenged is deemed admitted and so it is open to this Court to act on the unchallenged evidence of Claimant that he is an employee of the Defendant. The Defence has also failed to contradict the evidence of CW1 in cross examination to show otherwise. <b>IGBINOVIA vs. AGBOIFO (2002) FWLR (Pt. 104) 505 at 516</b>. Counsel urged the Court to grant the reliefs sought by the Claimant because the Claimant has discharged on a minimum proof, the onus placed on him to establish his claim as required by law. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">In the Defendant’s final address, counsel submitted that only one issue arises for determination in this case, to wit: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-language:HE">Whether based on the pleadings in the instant case, the Claimant has established a cause of action under a contract of employment against the defendant. <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">He argued that the Supreme Court, in the case of <b>AMODU vs. AMODE (1990) 5 NWLR (Pt. 150) 356</b> held that in an action to enforce a contract, unless the express or implied terms of the contract sued upon are placed before the court, it will be impossible for the court to rationally adjudicate on the plaintiffs claim. Thus, in the instant case, the Claimant’s failure to state in his pleadings or evidence before this court the material facts as to the terms and conditions of his purported employment with the Defendant is fatal to his suit. He argued that from the Claimant's pleadings and evidence before this court, it was not stated whether the alleged contract of employment was for a fixed period, or for life, or whether it is determinable at a certain period. It is also not stated whether the contract was made orally or in writing. Neither the contract of employment nor any of its terms were pleaded. There is no evidential basis whatsoever upon which this court can grant the Claimant's reliefs (1)-(4). This is owing to the fact that these reliefs depend on the existence of a contract between the Claimant and the Defendant, which said contract the Claimant has the onus to prove.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel contended that the Claimant has failed to prove or establish that he is an employee. Thus, he cannot rely on Section 7 of the Labour Act because the said provision of law applies to employees and the Claimant has failed to establish that he is an employee of the Defendant. The Claimant failed to call any other witness to establish his allegations of the customary practices of the Defendant. See the cases <b>of KATTO vs. CENTRAL BANK OF NIGERIA (2001) FWLR (Pt. 53) 188 at 201; BORISHADE vs. NBN LTD (2007) 1 NWLR (Pt. 1015) 217 at 234. </b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE">It is Counsel’s submission that the failure of the Claimant to specifically plead the terms of the Claimant's alleged contract of employment and or his letter of appointment, which are the bedrock of the Claimant's case, makes it impossible for the court to rationally adjudicate on the Claimant's claim. He submitted further that to establish a case, a Claimant must properly plead the facts and lead credible evidence in support of the pleaded facts. The Claimant must rely on the strength of his own case and not on the weakness of the Defendant's case and if the onus upon him is not discharged, then the proper judgment is for the Defendant. See the cases<span style="color:#5A6061"> of </span><b>IHEKORONYE vs. NWAIWU HART (2000) FWLR (Pt. 15) 2571; EWO vs. ANI (2004) All FWLR (Pt. 200) 1484<span style="color:#5A6061">; </span>ADENIRAN vs. ALAO (2002) FWLR (Pt. 90) 1285</b>. </span><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; color:#5A6061;mso-bidi-language:HE"><o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-font-width:118%;mso-bidi-language: HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:118%;mso-bidi-language: HE">With respect to</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:105%;mso-bidi-language:HE"> the Claimant's relief (5), counsel submitted that this head of claim does not arise as a result of damage suffered by the Claimant in the course of any transaction between him and the Defendant, the said claim is unethical and contrary </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">to public policy. The Claimant is therefore not entitled to the said relief (5) or any other relief claimed. Counsel urged the Court to hold that the Claimant has not made out a case in law to warrant judgment in his favour howsoever. <i><o:p></o:p></i></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">In the Claimant’s Reply on Point of Law to Defendant's Final Written Address, counsel’s arguments are a replica of his arguments in his address and do not need to be rehashed at this point. However he made certain additional arguments as follows: he relied on <b>CBN vs. ARCHIBONG (2001) F.W.L.R (Pt. 58) 1032 at 1034</b> and argued that it is trite law that where there is no express contract of service<span style="color:#565A51">, </span>a court of law can invoke the general rules of court applicable to the nature of the contract of service<span style="color:#565A51">. </span>Thus, from the Claimant<span style="color:#565A51">'</span>s credible evidence and tendered Exh<span style="color:#565A51">i</span>bits showing that he was employed by the Defendant, this Court can infer that a contract of employment existed between the parties<span style="color:#565A51">. </span>He also argued that the case of <b>Katto vs. Central Bank of Nig. (supra) </b>cited by the Defendant's counsel is not apposite with the instant case because in the earlier case, the terms of the employment and condition of service was issued by the employer to the employee . While in the instant case, the Defendant withheld the term of employment as no term of employment nor condition of service was issued to the Claimant despite several demands as stated in paragraph 3 of the Claimant's statement of facts. <i><o:p></o:p></i></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif"; color:#3A3D31"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Furthermore, counsel contended that it is the law that the court may presume the existence of certain facts. Evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. See Section 167 (d) of the Evidence Act 2011 Cap E 14, Laws of the Federation of Nigeria. Thus, the Defendant cannot be allowed in law to benefit from the consequences of the failure by the Claimant to plead or tender such document in court.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Counsel urged th<a name="_GoBack"></a>e Court to hold that the submissions of the Defendant's counsel is misconceived and to dismiss same accordingly and enter judgment in favour of the Claimant as per his reliefs as stated in the statement of facts. <o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-indent:.5in"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Court’s Decision<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Having heard learned counsels for the parties in their final address, let me now consider the case presented before me. The fact of this case, as contained in the evidence adduced by the Claimant, is that he was employed by the Defendant in October 2008 as a Project Assistant. The Defendant did not issue him a letter of employment but gave him a staff identity card. During his employment, he was being paid salary till March 2011. His monthly salary was initially <s>N</s>30,000 but was increased to <s>N</s>75,000. The Claimant said the Defendant owes him his salary from April 2011 till December 2012 which were not and have not been paid to him. The Defendant had told him to be patient as the Defendant was expecting money from which to pay the Claimant. The Defendant did not allow him to go on annual leave until October 2011. He is entitled to a month’s full salary as leave allowance for leave taken and two month’s salary as payment in lieu of leave. The Claimant said he was never paid any leave allowance at any time either in lieu of leave or for leave taken. It is the Claimant’s further evidence that the Defendant provided him accommodation during the employment at various locations in Portharcourt up till the time the Claimant resigned from the employment. In August 2012, the Defendant’s Administrative Manager verbally informed the Claimant to vacate his accommodation without any reason. The Claimant said he told the Defendant to put the request in writing and his outstanding salaries should paid but the Defendant refused. By a letter dated 22<sup>nd</sup> November 2012, which he caused his solicitors to write, he gave notice of resignation to the Defendant effective 31<sup>st</sup> December 2012. On 18<sup>th</sup> December 2012, he also notified the Defendant through his solicitors of his intention to vacate the accommodation and requested for a joint inventory. A joint inventory was done on 11th January 2013. During his employment, he took part in the Defendant’s pension scheme and he provided the Defendant with the name of his pension Administrator and his pin number to enable payment of his pension contribution into his pension account. Also, the Defendant is to deduct PAY AS YOU EARN tax and remit same to the tax authority but the Defendant has neither issued receipt nor shown proof of having made the payment to the tax authority on behalf of the Claimant. The Claimant also said is he entitled to 150% of the total emoluments of his last salary multiplied by the number of years of service. He said this was contained in the Defendant’s memo pasted on the Defendant’s notice board. The Claimant stated that the Defendant has a condition of service for staff but the Defendant had refused to give it to anybody except pasting excerpts of it on the notice board and removed them without allowing staff to keep them. The Claimant also said he incurred special damages to the sum of <s>N</s>1,000,000.00 as legal fee charged him by his counsel. He concluded his evidence by restating the reliefs he sought against the Defendant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The following facts also emanated from the claimant during his cross examination. He did not write any application to the Defendant for employment. While he was working somewhere else at Abuja, he was approached by one Mr. Simon Peter Gusa, whom every staff addressed as the Defendant’s project Director. He resigned and joined the Defendant in Portharcourt. He was interviewed and employed but no appointment letter was given to him. He started work with the Defendant in October 2008. He was first employed as Project Assistant then promoted to Project Assistant I. The interview for his employment was the interaction he had before he was asked to resume. There was negotiation of terms with the Defendant’s project director at the Defendant’s office which terms include monthly salary of <s>N</s>30,000.00, accommodation, transportation, call card, his schedule of duties. He was not given any condition of service neither did he sign any. He does not have anything to show payment of his pension nor proof of his depositions in paragraph 19, 20, and 21 of his evidence. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The Defendant filed a statement of defence and a witness statement on oath on 16th July 2013 but the processes were deemed properly filed and served by order of this court on 4th March 2014. On 11th June 2015 when the Defendant was expected to open its defence, its counsel, K.D Oguru Esq., informed this court that the defendant chose to rest its case on that of the Claimant. In effect, the defendant did not call any evidence in this case. Let me state here that by filing statement of defence without calling any witness to substantiate facts pleaded in the defence is tantamount to no defence at all. Pleadings contain only material facts and not evidence. Pleadings are themselves not evidence. Therefore, when not supported by evidence, pleaded facts are deemed abandoned by the party and are liable to be struck out by the court. In <b>THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. EKE-SPIFF (2009) ALL FWLR (Pt. 467) 1 at 35</b>/<b>36</b>, it was stated thus- <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">“Where a defendant offers no evidence in support of his pleading, the evidence before the trial court goes one way with no other set of facts or evidence to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is naturally discharged on minimal proof”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">See also<b> NEPA vs. ADEBGERO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 803. </b>This court will therefore deem the pleadings filed by the Defendants as having been abandoned. The effect will be that the Defendants have no defence to the Claimant’s case. In this case, there is nothing against which to weigh the evidence of the Claimants. Therefore, the only material upon which this court will decide this matter is the facts and evidence presented by the Claimants. The further implication of this course taken by the defendant is that the facts and evidence presented by the Claimants have been admitted by the Defendant, having not challenged or controverted the facts. In <b>IYERE vs. BENDEL FEEDS AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1247</b> it was held-<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">“Where evidence given by a party is unchallenged or uncontroverted, a court of law must accept and act on it unless it is palpably incredible”. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:273.75pt"><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:273.75pt"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">I will now examine the claims of the Claimant to see if he is entitled to them on the evidence supplied by him. The Claimant said he was an employee of the Defendant. Although he said no appointment letter was given to him, he however showed the identity card issued to him by the Defendant, the pay slips with which his salaries were paid and he also gave evidence of accommodation given to him by virtue of his employment and other fact implying there was an employment relationship between him and the Defendant. These are evidence of employment between him and the Defendant. The Defendant’s counsel has argued that the Claimant’s claims should fail because he has not placed the terms and conditions of his employment before the court. It appears to me the Defendant’s counsel is expecting the Claimant to produce an appointment letter or the document containing the terms and condition of his employment before it can be said that the Claimant had a contract of service with the Defendant. I must say that this argument does not represent the position of the law. In the first place, the fact that the Claimant said he was not employed in writing does not mean there was no employment or no terms and condition of the employment. Employment can be made oral and the terms and conditions of the employment agreed orally by the parties. See <b>MOBIL PRODUCING NIG. UNLTD. vs. UDO (2009) All FWLR (Pt. 482) 1177</b>. In such a case, the employment contract is as valid as that in writing. Secondly, the terms and condition of a written contract are found in the content of the contract. The document or employment letter itself is not the terms and condition but the terms as agreed between the parties to regulate the relationship. The Claimant has said there was a condition of service but he does not have it because the Defendant refused to give it to him. The Claimant went on however to give evidence of the particulars of his entitlements in the employment and the terms and conditions of the employment he agreed with the defendant. He said they include monthly salary, accommodation, transportation, call card and the schedule of his duties. Now, if these were not the terms and conditions of the employment, the Defendant was expected to controvert or challenge the Claimant on it. The Defendant elected to keep quiet. The Claimant has stated certain terms and conditions of the contract which has not been rebutted by the Defendant. In my view, the Claimant has proved that he had a contract of employment with Defendant and has also placed terms of the contract before the court.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The Claimant seeks payment of his salary from April 2011 to December 2012. The Claimant said at the time of his employment, one of the terms agreed was payment of salary to him and he was being paid salary but the Defendant stopped paying him from April 2011 to the time he resigned from the Defendant’s employment in December 2012. The Claimant said his salary as at his last pay in March 2011 was <s>N</s>75,000.00. The Claimant tendered some pay slips in evidence as Exhibits B1 to B7. Exhibit B7 is the Claimant’s pay slip for March 2011. These facts were not controverted by the Defendant. I will accept them as the true position. The Claimant is entitled to his salaries due from April 2011 to December 2012. This is a period of 21 months at <s>N</s>75,000.00. The total salary owed to the Claimant for the period is the sum <s>N</s>1,575,000.00.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The summary of the Claimant’s reliefs (ii), (iii), (iv) and (v) are claims for: payment in lieu of leave; evidence of payment of tax deducted from the Claimant’s salary or payment to the Claimant the sum deducted by the Defendant from the Claimant’s salary for tax; the sum due to be contributed by the Defendant as its contribution to the Claimant’s pension; and refund of legal fees charged by his counsel for this suit. I have examined these claims in the light of the evidence adduced by the Claimant but I find that he has not been able to satisfy this court that he is entitled to the claims. Reliefs (ii), (iii) and (iv) are no more than speculative claims. The Claimant merely said he was entitled to a month’s full salary as leave allowance for leave taken and two month’s salary as payment in lieu of leave without evidence of what entitles him to the claim. When the Claimant stated the terms agreed with the Defendant at the time of employment, he didn’t say the oral terms include leave or payment in lieu of leave. I must make the point that it is the terms agreed by parties or the condition of service that guide the employment. It is the Claimant’s evidence that the Defendant has never allowed him to go on leave, perhaps, because it was not a term of the contract. Since the evidence of the Claimant has not mention leave as a term of the contract, this court cannot create terms for the parties. Notwithstanding that this suit is not defended, any order made with regards to leave, when the Claimant has not shown it as a term of the contract will amount to creating terms of the contract for the parties. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">With regards to the Claimant’s claim for pension contributions, the Claimant merely said during his employment, he took part in the Defendant’s pension scheme and he provided the Defendant with the name of his pension Administrator and his pin number to enable payment of his pension contribution into his pension account. The Claimant has not said the Defendant did not pay. Even if it can be assumed that his complaint is that the Defendant did not pay its part of the pension, the Claimant has failed to satisfy this court of that allegation. The Claimant said he has a pension account but did not tender it or produce any evidence to buttress his claim. The same speculative and evidential defect affects the Claimant’s for tax deductions. There is no evidence of deductions for tax or evidence that the Defendant deducted tax but did not remit to the tax authorities. I examined the Claimant’s pay slips but cannot find any deductions in the Claimant’s salaries for tax purposes. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">On the whole, I find that the Claimant is entitled to his 1<sup>st</sup> claim, only to the extent of the amount due as salary. All other reliefs fail and are hereby dismissed. The defendant is ordered to pay the sum of <b><s>N</s>1,575,000.00</b> <b>(One Million, Five Hundred and Seventy Five Thousand Naira)</b> to the Claimant as his outstanding salary from April 2011 to December 2012. This court has the discretion in Order 21 Rule 4 of the NIC Rules 2007, to order interest at a rate not less than 10% per annum to be paid upon any judgment sum. I am inclined to exercise that discretion in favour of the Claimant. Therefore, I hereby direct the Defendant to pay the above sum to the Claimant within 30 days from the date of this judgment after which it shall attract interest at the rate of 10% per annum until it is finally paid. No order as to cost.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Judge<o:p></o:p></span></p>