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JUDGMENT The claimant took up a complaint dated and filed on 13th September 2011 against the defendants praying for – a) A declaration that the defendants’ refusal to sign the contract agreement between them and the claimant is illegal, unlawful and calculated to defraud the claimant. b) A declaration that the defendants’ refusal to sign the contract agreement is contrary to the international labour best practice and it amounts to an unfair labour practice. c) A declaration that the failure of the defendants to comply with the terms of the unsigned contract agreement is a fundamental breach of the contract of employment between the defendants and the claimant. d) A declaration that the advertorial publication in the Nigerian Tribune of Wednesday 2nd of January 2008 was done mala fide and calculated to pass off the image and good will of the claimant as an hotelier of international repute. e) An order compelling the defendants to pay the sum of $7,000 (Seven Thousand US Dollars) being the claimant’s salary for the month of December 2007. f) An order compelling the defendants to pay the sum of $14,000 (Fourteen Thousand US Dollars) being two (2) months; salary in lieu of notice. g) An order compelling the defendants to pay the sum of $34,000 (Thirty-Four Thousand US Dollars) being the short fall on the claimant’s salary between the month of June 2006 and November 2007. h) An order compelling the defendants to pay the sum of N250,000 (Two Hundred and Fifty Thousand Naira) being the cost of his return ticket to Israel. i) An order compelling the defendants to pay the sum of N5,000,000 (Five Million Naira) as damages for passing off the claimant’s goodwill and images as an hotelier of international repute. j) General damages against the defendants in favour of the claimant for discomfort, inconvenience, embarrassment and ridicule occasioned by the defendants; advertorial publication as contained in the Nigerian Tribune of 2nd January 2008 at pages 20 and 21. Accompanying the complaint is the statement of facts, a list of witnesses and a list of 11 documents to be relied upon together with copies of the documents. In reaction, the defendants entered appearance by filing their memorandum of appearance dated 13th October 2011 but filed on 14th October 2011. The defendants also filed a motion on notice brought pursuant to Order 11 Rule 1 of the National Industrial Court (NIC) Rules 2007 and section 7(1)(a), (b) and (c) of the NIC Act 2006 praying the Court strike out the suit for want of jurisdiction. The defendants, however, did not join issues with the claimant by filing their statement of defence and the accompanying defence processes. In a considered ruling at its sitting of 1st February 2012, this Court ruled that the preliminary objection of the defendants lacked merit and so the Court has the jurisdiction to hear the claims of the claimant in virtue of section 254C of the 1999 Constitution, amended. The defendants were then asked to pay the cost of N20,000 (Twenty Thousand Naira) before the next adjourned date. The Court then ordered that the matter shall proceed to hearing. The Court had, however, at its sitting of 26th October 2011 suo motu raised the issue of its jurisdiction and competence to hear and determine the claims as to reliefs d), i) and j) of the claimant’s complaint; whereupon the claimant, at the Court’s sitting of 6th December 2011, orally applied to have the said reliefs d), i) and j) struck out. This the Court did. When the case came up for hearing on 1st March 2012, because the defendants did not comply with order of this Court to pay the cost awarded at the Court’s sitting of 1st February 2012 and that the defendants were yet to file their defence processes, on the authority of Order 19 Rule 4 and Order 8 Rule 5(1) of the NIC Rules 2007, the Court barred the defendants from taking further part in the proceedings and then permitted the claimant to open its case. The claimant’s counsel called in one witness, the claimant himself. The claimant is Jewish and hails from Israel. In his testimony, the claimant informed the Court that he is at the moment the Financial Controller of EMI Systems at 4A Lawrence Street, Ikoyi, Lagos. He acknowledged knowing the defendants. He stated that he was the General Manager of Kwara Hotel, Ilorin. That it was at Kwara Hotel that he met with Senator Smart Adeyemi, the second the defendant in this suit. That at the conclusion of his contract with Kwara Hotel, he left for Israel, where the second defendant called him on phone to come and manage the second defendant’s hotel which is the first defendant. That after much negotiations, they agreed on the terms and conditions of the employment as follows: $7,000 per month as salary, official car, official residence, N50,000 local allowance, 3 annual trips to Israel, medical care in Nigeria and emergency medical flight insurance. The claimant continued that the second defendant also promised that once in Nigeria, the content of these conditions which they agreed on via phone discussions would be formalized in a contract agreement. The claimant further testified that he received a letter of employment, sent through DHL, from the second defendant’s lawyer, referring to Document 2 in the list of documents frontloaded. That he used this letter to process his entry visa at the Nigerian Embassy in Tel Aviv. That he was given the visa and he came to Nigeria. He continued that when he came to Nigeria, the second defendant directed him to his lawyer, Biola Adimula, who drafted the contract agreement, which he (the claimant) signed; but which the second defendant did not sign given that the second defendant at that time won senatorial election and it was difficult to pin him down for his signature. That despite the non-signing of the agreement by the second defendant, the claimant started work as General Manager of the first defendant, and he continued as such. That all this while, all approaches to the second defendant to sign the agreement failed. The claimant testified that he (the claimant) even contacted the second defendant’s wife but to no avail. The claimant continued that all the conditions agreed on were implemented except for the $7,000 and the 3 annual trips to Israel which were only partially implemented. That sometime in December 2006, the second defendant gave him (the claimant) a cheque of N1 million meant for salary and allowances for November, which however bounced. That the second defendant did not pay him regularly. The claimant went on to testify that on 21st December 2007, he received a letter titled, “Termination of Oral Contract”. That as a result, he prepared his handover notes according to the terms of termination letter and then handed over to Ayo Eyitayo, The Senior Manager. The claimant the left the office and the hotel immediately on same date. The claimant then testified that he was not paid any terminal benefits, neither was he given any notice of termination. He said that he cannot remember any significant event or incident that occurred as a result of the termination. However, that after the termination, the hotel continued to hold out to the public that he was still with the hotel, referring to Document 8 in the list of documents frontloaded. That even when he was searching for a job, he was continually reminded that he was still with the first defendant. He continued hat after the publication in Document 8, he asked his lawyer to write to the defendants demanding for his salary and entitlements, referring to Documents 9 and 10 in the list of documents frontloaded. He informed the Court that he as a hotelier, he won awards in Israel. He then urged the Court to enter judgment in his favour as per the reliefs contained in the complaint. There was no cross-examination as the defendants were earlier barred from participating in the proceedings. The Court thereafter ordered the claimant to file his written address, which the claimant did on 16th March 2012. The claimant’s written address was served on the defendants’ counsel on 20th March 2012; and the defendant’s counsel acknowledged this in Court. It was, however, on 28th March 2012 that the defendant filed a motion dated 26th March 2012 praying for the following orders: leave to re-open the case of the claimant and permitting the defendants to cross-examine the claimant on his evidence; extension of time within which to file the defence processes; and a deeming order deeming the defence processes as properly filed and served. In a considered ruling on 19th April 2012, this Court dismissed the defendants’ motion holding that it lacks merit, the defendants having not acted in good faith or with sufficient diligence as not to overreach the claimant given the timing in filing the application to re-open the case of the claimant. The Court in that ruling discountenanced the defendants’ plea as to fair hearing given that they had all the opportunity to do what is right but chose not to. The defendants were then ordered to file and serve their written address in reply to the claimant’s within 21 days. Instead of filing their written address, the defendants filed a motion on notice dated 28th May 2012 but filed on 30th May 2012 praying this Court to stay further proceedings in the case given that they applied to they intend to apply to the Court of Appeal against the ruling of this Court of 19th April 2012. The exhibited notice of appeal showed that the intended application at the Court of Appeal is for leave of the Court of Appeal to extend the time within which the defendants can seek leave to appeal. The Court rejected the application for stay at its sitting of 14th June 2012 and then asked the claimant to adopt its written address, which the claimant’s counsel did. The defendants’ counsel on being asked told the Court that they did not file any written address. The claimant’s written address is dated 15th March 2012 but filed on 16th March 2012. From the written address at paragraph 2.1, the case of the claimant is that “the defendants failed to comply with the terms of the unsigned contract agreement and for payment of arrears of salaries and terminal benefits”. The claimant the raised two issues for the determination of this Court, which are – 1. Whether the claimant has established his case based on the evidence adduced to warrant him to be entitled to the reliefs sought. 2. If issue 1 is resolved in favour of the claimant, whether the claimant is not entitled to the reliefs sought as per his General Form of Complaint. Regarding issue 1, the claimant commenced his submissions by referring the Court to sections 131(1) and 133(1) and (2) of the Evidence Act 2011 dealing with the burden of proof. The claimant then submitted that with the evidence given by the claimant and the documents tendered by him, the following are some of the facts that were established on the balance of evidence or preponderance of evidence – (a) That the claimant is an employee of the defendants. (b) That there was a contract of employment drawn up by the defendants’ solicitors but the second defendant refused to sign the said contract. (c) That the defendants complied partially with the terms of the unsigned contract agreement by providing official car and a driver, and official accommodation to the claimant. (d) That the defendants issued the claimant N1,000,000 (One Million Naira) cheque that was never honoured. (e) That ‘the defendant’, contrary to the unsigned agreement between the defendants and the claimant, the defendants refused to pay the sum of $7,000 (US Dollars) as salary for the month of June 2006 to November 2007. (f) That the claimant’s salary was short by $2,000 (US Dollars) per month for 17 (seventeen) months. (g) That ‘the defendant’ did not pay him the sum of $14,000 (US Dollars) being two (2) months’ salary in lieu of notice. To the claimant, in civil cases the standard of proof is based on the preponderance of evidence, citing Ayanru v. Madilas [2007] 10 NWLR (Pt. 1043) (the page number was not supplied). The claimant continued that when a defendant has any defence to the claim of the claimant, he will be allowed by the Rules of this Court particularly Order 9 Rule 1 to file within 14 days of service of the claimant’s complaint and the accompanying documents on the defendants. That in the instant case, the claimant’s complaint and accompanying documents as stipulated by Order 3 of the Rules of this Court were served on the defendants and consequent upon which the memorandum of appearance was filed by the defendants’ counsel on 14th October 2011. That the defendants have not challenged, controverted or denied the claimant’s evidence. That it is trite that unchallenged/undenied evidence is deemed admitted, citing Balogun v. E.O.C.B (Nig.) Ltd [2007] 5 NWLR (Pt. 1028) 584 at 600 E – F. More importantly, that the defendants who are well informed about the pendency of this suit chose to file a defence to the claim of the claimant, hence the evidence of the claimant was unchallenged, referring to NBA v. Ekemezie [2008] 12 NWLR (Pt. 1100) 330 G – H. To the claimant, therefore, the facts before the Court are the facts as represented by the claimant and they represent the truth of the matter because there is no other fact to prove otherwise. The claimant then urged the Court to resolve issue 1 in favour of the claimant, the defendants having not denied any of the evidence adduced by the claimant. Regarding issue 2 i.e. whether if issue 1 is resolved in favour of the claimant, the claimant is thereby entitled to the reliefs prayed for, the claimant submitted in the affirmative. To the claimant, he has shown that he was employed by the defendants and the defendants failed to fulfill their contractual obligations. Also that the claimant established by his pleadings and evidence before this Court that the defendants treated him unfairly by representing to the teaming members of the public that he was still the Manager of the first defendant long after his employment with the defendants had been terminated by the defendants. That the misrepresentation made by the defendants to the public about the employment of the claimant long after the termination of same was calculated to take advantage of the claimant’s reputation as a hotelier of international repute which amount to unfair labour practice of which the claimant is entitled to damages. The claimant continued that it is his evidence that the defendants’ publication in the Nigerian Tribune publication of Wednesday 2nd January 2008 wherein the defendants misrepresented to the public that the claimant was still working for them affected his prospect of getting employment and it also lowered his standing before his friends and family that accused him of lying that his employment with the defendants had been terminated. The claimant went on to submit that the law is that where there is a wrong there is a remedy, aptly captured by the Latin maxim of ubi jus ibi remedium, referring the Court to Omoyinmi v. Ogunsiji [2008] 2 NWLR (Pt. 1075) 490 B – D. On this authority, the claimant submitted that he is entitled to a remedy to redress the injustice done to him by the defendants’ publication in the Nigerian Tribune publication of Wednesday 2nd January 2008. In conclusion, the claimant submitted that he is entitled to the reliefs sought vide the General Form of Complaint and the other frontloaded processes before this Court, urging the Court to so hold. In considering the claims of the claimant as well as his submissions, I must right away dispense with the claimant’s argument regarding the defendants’ publication in the Nigerian Tribune publication of Wednesday 2nd January 2008. The claimant’s case here is that having to represent him as being in employment even when the said employment was terminated constitutes unfair labour practice on the part of the defendants. In addition, that the said misrepresentation lowered his standing before his friends and family who accused him of lying that his employment with the defendants had been terminated. That for all of this, he is entitled to a remedy to redress the injustice done to him by the said defendants’ publication. In the first place, the only claim of the claimant regarding unfair labour practice is relief b) which is that the refusal of the defendants to sign the contract agreement amounts to unfair labour practice. For the claimant to now argue that to represent him as being in employment even when the said employment was terminated constitutes unfair labour practice on the part of the defendants is outside the case of the claimant. Secondly, the claimant earlier applied that reliefs d), i) and j) be struck out. All of these reliefs relate to the publication in the Nigeria Tribune. For the claimant to now argue that the said publication lowered his standing before his friends and family and for which he is entitled to be compensated by way of damages is reintroducing through the back door what has already been struck out. All the argument of the claimant in that regard, therefore, lacks merit and is hereby discountenanced for present purposes. This said, the main issue for the determination of this Court is whether the claimant has proved his case to warrant the grant of the remaining reliefs he claims. That a defendant did not lead evidence or defend an action against him does not mean that the claimant will automatically be granted his claims. He must still prove his case to the satisfaction of the Court given that the burden of proof is discharged on the balance of probabilities. See sections 131 – 134 of the Evidence Act 2011. The inability of the defendants to defend this case approximates closely to a defendant who is absent from the hearing of a case; here Order 19 Rule 2 of the Rules of this Court provide that the claimant may proof the claim in so far as the burden of proof lies upon him. As I indicated earlier, the case of the claimant, from the written address at paragraph 2.1, is that “the defendants failed to comply with the terms of the unsigned contract agreement and for payment of arrears of salaries and terminal benefits”. So even when the claimant personally gave evidence as to the terms and conditions of his employment, the testimony was essentially in terms of Document 4 frontloaded, the unsigned contract agreement between Prince Smart Adeyemi (the second defendant) and Sholomo Hasson (the claimant). This Court cannot determine the claims of the claimant without first determining the status of the unsigned contract agreement more so when reliefs a), b) and c) are hinged on it. For emphasis reliefs a), b) and c) are as follows – a) A declaration that the defendants’ refusal to sign the contract agreement between them and the claimant is illegal, unlawful and calculated to defraud the claimant. b) A declaration that the defendants’ refusal to sign the contract agreement is contrary to the international labour best practice and it amounts to an unfair labour practice. c) A declaration that the failure of the defendants to comply with the terms of the unsigned contract agreement is a fundamental breach of the contract of employment between the defendants and the claimant. It is trite learning that a contract of employment need not be in writing. It may be oral or implied. See Professor Chioma Kanu Agomo’s Nigerian Employment and Labour Relations Law and Practice (Concept Publications Ltd: Lagos), 2011 at page 74. If this represents the law, then a plea that the refusal to sign the contract agreement cannot be branded unlawful or an unfair labour practice as the claimant argued. Even when section 7 of the Labour Act Cap. L1 LFN 2004 stipulates for a written statement specifying the terms and conditions of a worker to be given by an employer not later than 5 months after the beginning of a worker’s period of employment, it must be appreciated that this applies only to workers as defined under section 91, a definition that excludes the claimant in this case. It also follows that the claimant cannot claim that the refusal to comply with the terms of an unsigned contract agreement is a fundamental breach of contract of employment between the defendants and the parties. If by law there is no obligation to have a written contract of employment in the first place, there cannot be any fundamental breach between the parties as the claimant would want this Court to believe. For these reasons, therefore, reliefs a), b) and c) claimed by the claimant are not grantable. They are accordingly rejected. This leaves out the claims as to $7,000 being the claimant’s salary for the month of December 2007, $14,000 being two months; salary in lieu of notice, $34,000 being the shortfalls on the claimant’s salary between the month of June 2006 and November 2007, and N250,000 being the cost of return ticket to Israel. The question, therefore, is whether the claimant’s has made out a case for these sums of money. To start with, Document 2 frontloaded by the claimant is an offer of appointment to the claimant dated 27th April 2006 from Mrs. Biola Adimula, a counsel acting for the second defendant. The offer of appointment in the second paragraph reads thus – It is our instruction to inform you that, our client desire to engage your services in the management of his new Hotel business, located within the GRA, a high browse area of Ilorin, Kwara State of Nigeria, starting from the 1st day of June, 2006. You are therefore expected to arrive Nigeria in the last week of May, 2006 to discuss the terms and conditions of your employment. Kindly make your response known to the undersigned either by phone or through the email, so that necessary arrangement could be made for your arrival (the emboldened part of the letter is Mrs. Adimula’s). From this offer of appointment, the terms and conditions of the employment of the claimant were to be discussed between the parties. In oral testimony, the claimant testified that via phone conversations with the second defendant both parties agreed on the terms and conditions of the employment as follows: $7,000 per month as salary, official car, official residence, N50,000 local allowance, 3 annual trips to Israel, medical care in Nigeria and emergency medical flight insurance. The claimant continued that the second defendant also promised that once in Nigeria, the content of these conditions would be formalized in a contract agreement. It is Document 4, the unsigned contract agreement, which the claimant frontloaded as evidence of the terms and conditions agreed upon. In fact, the claims of the claimant are essentially based on the unsigned contract agreement. For instance, clause 6 of the unsigned contract agreement provides that the monthly salary of the claimant shall be US $5,000 till February 2007. Thereafter, if the performance of the claimant is satisfactory to the second defendant, then the monthly salary will go up to US $7,000. In the clause on termination, either party has the right to terminate the contract upon giving two months’ notice or payment of two months’ salary in lieu. The claim of the claimant in relief g) is for $34,000 being the shortfalls on the claimant’s salary between June 2006 and November 2007 i.e. for seventeen months. Yet by clause 6 of the unsigned agreement, the claimant was not entitled to $7,000 until his performance is satisfactory to the second defendant. Document 6 frontloaded by the claimant is the letter of termination of the oral contract of employment and stipulates in paragraph (b) that the claimant only worked excellently for the first six months. This disparity in the evidence casts doubt on the probative value of the evidence of the claimant. The claim of the claimant in relief f) is for $14,000 being two months’ salary in lieu of notice. It is hinged on the clause on termination in the unsigned contract agreement. Once again, the letter of termination (Document 6) in paragraph (a) stipulates that the contract of employment between the parties was meant to be for six months only. Document 2 (the letter of offer of appointment) did not specify the time frame of the contract of employment between the parties. In fact Document 6, the unsigned agreement, in clause 15 is silent on the duration of the contract. The closest to a time frame is clause 6 of the unsigned contract which gives till February 2007 before the claimant can be considered for a salary raise to $7,000 per month. What all of this show is that the parties were never ad idem regarding the terms and conditions of the contract of employment between them. In oral testimony, the claimant testified that all the conditions agreed on were implemented except for the $7,000 and the 3 annual trips to Israel which were only partially implemented. That sometime in December 2006, the second defendant gave him (the claimant) a cheque of N1 million meant for salary and allowances for November, which however bounced. The claimant did not make any claim as to the 3 annual trips to Israel; neither did he make any regarding the N1 million cheque that bounced. As for the $7,000 monthly salary, I have already indicated that there are doubts on the probative value of the evidence in that regard. The same is true of the evidence regarding notice of termination or payment in lieu. The provision in the unsigned agreement regarding the period of notice differs from what the termination letter stipulates, which is that the duration of the contract itself was supposed to be six months; in which even, there is no need for a period of notice. The claim for N250,000 as cost of return ticket to Israel is not substantiated and so cannot be granted. In general, therefore, since the claimant cannot rely on an unsigned document as the basis for any claim against the defendants, I find that the claimant has not proved his case on balance of probabilities. For all the reasons given, I hold that the claimant has not proved his case to the satisfaction of the Court. The case accordingly dismissed. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip