Download PDF
REPRESENTATIONS M. O. AFESOSHI Esq., for the Claimant No Representation for the Defendant J U D G M E N T This suit was instituted by the Claimant by way of Complaint dated 13th day of August, 2014 and filed same day for the determination of the followings: A DECLARATION that the act of the Defendant absconding from her employment in breach of the term and agreement of her sponsorship in school is unconstitutional, illegal and wrongful. A DECLARATION that the conduct of the Defendant runs contrary to: The term of contract of service/employment and the bonds for sponsorship The term of agreement between the Defendant and the Claimant on the sponsorship for the Post-Graduate Degree (M.Sc) at the University of Technology, Malaysia C. AN ORDER for the award of Ten Million one Hundred and Twenty Eight Thousand Two Hundred and Seventy Four Naira Nine Kobo (N10,128,274.9) only, being General and special damages in the following order: The sum of Two Million Six Hundred and Fourteen Thousand One Hundred and Thirty Seven Naira Forty five kobo (N2,614,137.45) only, being amount due and refundable to the Claimant upon the breach by Defendant of the agreement by parties hereto: A sum of Three Hundred and Thirty Three Thousand, Nine Hundred and Ninety Seven Naira (N333,997.00) only being Three (3) Month’s Salary in lieu of Notice due and payable to Claimant consequent upon Defendant absconding from service without due notice to the Claimant. A sum of Six Hundred and Forty Nine Thousand Fifty Eight Naira Eighty Three Kobo (N649, 058.83) only representing her school fees paid by the Claimant’s Establishment during her M. Sc program in Malaysia. A sum of One Million Six Hundred and Thirty One Thousand Eighty One Naira Sixty Two Kobo (N1,631,981,62) only, representing salaries paid to her between June, 2010 when she commenced the Post Graduate Programme in Malaysia and August, 2012, when the Defendant absconded from service. The Defendant to pay to Claimant a sum of One Million and Five Hundred Thousand Naira (N1,500,000.00) only, being the cost of this Action. AN ORDER of this Honourable Court awarding a sum of Four Million Naira as General Damages for breach of contract. (d). AN ORDER of this Honourable Court compelling Defendant to forthwith return to Claimant all Government Property with her including the Identity Card (ID) issued on her appointment as a Civil Servant. SUMMARY OF STATEMENT OF FACTS The gist of the Statement of Facts is that Defendant, before the determination of her employment, was civil servant in Claimant’s establishment vide the Regularization of Appointment dated 12/01/2005. From her employment as a research Officer, she rose to the post of Geologist II. In the course of her employment, she applied for a master Degree program to the University of Technology, Malaysia, on the sponsorship of the Claimant on the understanding that after her Master Degree, even if she wanted to resign or determine her employment with Claimant, she would first of all put in 3 years. That this understanding which was put in writing as an Agreement/Bond between Claimant and Defendant was violated when in 2011, Defendant, after her master Degree in Malaysia, returned and gave a one month notice to Claimant of her intention to withdraw her services from Claimant’s establishment. This is not only in breach of the Agreement/Bond but a breach of the terms of her employment as she cannot give a 1 month notice but 3 months Notice or 3 Months salary in lieu of Notice. On the part of the Defendant, Defendant never entered appearance nor file any process with regard to this suit Hearing commenced on the 9th of November, 2015. Clamant called a sole witness through whom all the Exhibits in this suit were tendered. At the close of their case, Claimant filed a final written address dated 7th March, 2016 and filed on 14th March, 2016. CLAIMANT FINAL WRITTEN ADDRESS In Claimant’s final written address, Claimant formulated four (4) issues for determination, to wit: Whether or not the Claimant has shown that the Defendant absconded in breach of the contract employment. Whether or not the Defendant had breached the term of sponsorship agreement between her and Claimant. Whether or not the breach of the sponsorship Agreement has occasioned loss to Claimant Whether the Claimant is entitled to the reliefs Claimed. ARGUMENT Despite raising four issues, Claimant proffered a sole argument for all the issues:- Claimant’s Counsel submitted that by virtue of Exhibits i, ii – viii and xi, Claimant has been able to show that Defendant, in the course of Claimant’s employment, proceeded on her Master Degree program under the sponsorship of Claimant having entered an agreement in a Bond/ (See Exhibit xiii) which reveals, among other things, that the Defendant signed a bond to serve the Claimant for at least 3 years after completion of the training in Malaysia That rather than put in at least three years before disengaging from the services of Claimant after her study in Malaysia, Defendant returned and gave them a 1 month Notice of her intention to withdraw her services from the employment of Claimant. That these acts do not only violate the terms of the Bond but the terms of her employment which require 3 months’ Notice or 3 months’ salary in lieu of Notice. That despite all attempts to get her back to work, Defendant neglected to reach out to them. That in the light of the foregoing, Claimant set up a Disciplinary Committee which recommended for the dismissal of the Defendant and she was so dismissed vide a letter of dismissal dated 13th May, 2014 as evidenced by Exhibit xxix Furthermore, Learned Counsel submitted that from the facts above and the entire Exhibits tendered in this suit, Claimant has been able to prove that the acts of Defendant were not only unwarranted but same caused monetary loss to the Claimant. Hence, he urged the Court to grant all the reliefs sought in Claimant Claim. Learned Counsel referred Court to SS Authoria v. Federal Ministry of Agriculture and Anor (2011)22NLLR (pt. 63) 461 NIC where the Court held that absence from duty is a serious offence which by the provision of Rules No 030413 attracts summary dismissal See also Kopek v. Ekisola (2010) 41NSCQR 553@609 where the supreme Court held that “the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases. COURT Having gone through the Claimant’s Claim, evidence adduced and written submission of Counsel on behalf of the Claimant, this Court has distilled a sole issue for determination, to wit: “Whether given the circumstances, this Honourable Court can grant the claims of the Claimant.†For starters, this Court wishes to state that being that the Defendant did not enter appearance nor file any process in this suit; the Court shall limit itself to the case of the Claimant and evidence adduced in this case. From all the evidence adduced before this Honourable Court, this Court finds and it is satisfied that: Defendant used to be in the employment of Claimant. Defendant travelled to Malaysia for a Master Degree program and consequent upon that, she applied for a loan to defray her school fees. Claimant obliged her on the agreement that at the end of her study, she was expected to put in at least three years in the services of Claimant before considering withdrawing her services. On return from her study in Malaysia, Defendant wrote to withdraw her services citing her intention to save her marriage as a reason, and gave one month notice to that effect. Consequent on the above, Claimant who were against the withdrawal, made several entreaties to Defendant to reconsider her stand on her withdrawal yet Defendant failed to shift her grounds, hence Claimant proceeded on the processes of dismissal in absentia and finally dismissed the Defendant summarily vide an instrument dated 13/05/2014. The total sum the Claimant is claiming against the Defendant is N10, 128,274.9 and in giving the breakdown, Claimant listed:- N2,614,137.45 being amount due and refundable by Defendant for breach of contract by Defendant N333,997.10 being 3 months’ salary in lieu of notice N649,050.83 being school fees paid for Defendant N1,632,081.62 being salary paid the Defendant between June 2010 and August 2012 for the period Claimant went for her study and when she absconded from work N1,500,000.00 being the cost of this suit and N4,000,000.00 as General Damages This Court observes that the breakdown of the total sum exceeds N10, 128,274.9 arrived at by the Claimant. That said, this Court wishes to state that besides its finding on facts backed up with evidence, the monetary claims of the Claimant are sparsely backed up with substantiating evidence. Be that as it may, the Court will be hard put in granting all the monetary Claims of the Claimant in the absence of documentary evidence to back up same. Granted, in Claimant’s Exhibit xvi which is an instrument dated 4th June 2012 titled ‘Re: WITHDRAWAL OF SERVICE: MRS AWOYOMI OLUWATOYIN BIMBO’ which is a letter from Claimant to one Dr. Ekundayo Ayodeji who happens to be one of Defendant’s next of Kin (See Exhibit iii – Defendant Personal Data Form), Claimant alleged that the sum of the three months’ notice in lieu of salary is N333,997.00, the position of this Honourable Court on that is that this Court cannot act on the alleged amount in the absence of a documentary evidence (for example, Defendant’s Salary payment slip) stating the basic monthly salary of the Defendant as the job of the Court is not to speculate or act in vacuo. The Court ought to be furnished with something to act on and in the absence of that, the Court cannot act on mere speculation or conjecture, and I so hold. On the Claim of N1, 632,081.62 being salary paid to Defendant between June 2010 and August 2012, being the period Claimant was on study in Malaysia and the period Defendant absconded from work, this Court, besides observing that on the face of Exhibit XIV which is Defendant letter to Claimant notifying them of the withdrawal of services, the withdrawal took effect from 1st October, 2011. This Court wonders at the propriety of Claimant continuing paying the salaries of Defendant till August 2012 when Defendant had withdrawn her services since October 1st, 2011 after giving a 1 month notice which expired September 30th, 2011. In any event, just as earlier said, there is no documentary evidence before this Court to enable the Court calculate the said salary; nor is there any shred of evidence in Exhibit xii, which is the agreement bond between Claimant and Defendant, that in the event that Claimant did not put in three years on the completion of her master Degree program in Malaysia, she will refund the salary she was paid during that period. Rather, what the bond specifically states is a refund of the sponsorship sum which is N649, 058.83. This Court cannot impute into an agreement what is not stated in the agreement, and I so hold. Also, there is nothing before this Honourable to prove the N1, 500.000.00 (One Million Naira) claimed by the Claimant as the cost of this suit. From the finding and holding of the Court above, this Court wishes to state that it does not condone the acts of the Defendant in withdrawing her services from the Claimant by giving one month’s notice after entering a bond with Claimant to put in 3 years of service after her master degree program which was sponsored by Claimant. However, the position of the Court is that for the monetary awards Claimed by the Claimant to avail them, it lies in the Claimant to prove his case by preponderance of evidence before the Court can grant same. See Dr. Useni Uwah & Anor V. Dr. Edmundson T. Akpabio & Anor (2014) 2M.J.S.C (Pt.11) 108. This is so because in the absence of substantiating evidence, the Court cannot go outside the case to seek for evidence for the Court is limited to the evidence before it. From all that have been said above, this Court shall now proceed and determine the Claim of the Claimant as follows: Claim 1 Succeeds Claim 2 Succeeds Claim 3 Succeeds in part to the extent that Defendant shall pay Claimant the sum of N2, 649,058.83 being the total sum of: N649,058.83 - Representing Defendant’ school fees paid by Claimant N2,000,000.00 (Two Million Naira) being general damages herein awarded for breach of Contract by Defendant. Claim 4 succeeds Consequent on the foregoing, the Court hereby makes the following Declarations/ Orders: A DECLARATION that the act of the Defendant absconding from her employment in breach of the term and agreement of her sponsorship in school is unconstitutional, illegal and wrongful. A DECLARATION that the conduct of the Defendant runs contrary to: The term of contract and service/employment and the bonds for sponsorship. The term of agreement between the Defendant and the Claimant on the sponsorship for the Post-Graduate Degree (M.Sc) at the University of Technology, Malaysia. AN ORDER directing the Defendant to pay the sum of Two Million Six Hundred and Forty Nine Thousand Fifty Eight Naira Eighty Three Kobo (N2,649,58.83) being the total sum awarded by this Court for General and special damages AN ORDER directing the Defendant to forthwith return to Claimant all Government Property with her including the Identity Card (ID) issued on her appointment as a Civil Servant. Judgment is entered accordingly. ………………………………………… HON. JUSTICE M.N ESOWE