Download PDF
By a General Form of Complaint dated and filed on 6th of March, 2012 the claimant seek the following reliefs: 1. A declaration that the act of the defendant in not allowing the claimant to resume work amounts to termination of the claimant’s employment with the defendant. 2. A declaration that the claimant is entitled to be paid terminal benefits to the defendant. 3. An order of this Court directing the defendant to pay to the claimant the sum of N405,586.20 (Four Hundred and Five Thousand, Five Hundred and Eighty Six Naira, Twenty kobo) being his earned salaries from March 2011 to February, 2012 in accordance with the terms of his employment with the defendant company. 4. An order of this Court directing the Defendant to pay to the claimant the sum of N779,850.00 (Seven Hundred and Seventy Nine Thousand Eight Hundred and Fifty Naira) being his earned end of service benefits in accordance with the terms of his employment with the defendant company. 5. Special damages in the sum of N260,000.00 being fees incurred by the claimant as legal fees in the recovery of the Defendant’s indebtedness and prosecution of this suit, if the defendant pay the amount with costs to the claimant or his legal practitioner within 14 days of the service of this suit. Particulars of Special Damages incurred by the claimant: (i) Money spent at the Panti Police Station, to secure Administrative bail for the claimant. - N30,000.00 (ii) Legal Consultation - N50,000.00 (iii) Filling a suit at the National Industrial Court - N30,000.00 (iv) Prosecution of the case at the National Industrial Court - N150,000.00 Total N260,000.00 6. Post Judgment Interest on the sum at the rate of 10% interest per annum, until the final amount of the outstanding judgment sum has been liquidated. 7. Cost of Instituting as assessed by the claimant to be the sum of N1,000,000.00. Accompanying the complaint are Statement of facts, List of Documents dated 6th March 2012, Claimant’s witness Statement on oath sworn to on 14th May 2012. In reaction, the defendant filed a memorandum of appearance dated 3rd May, 2012. Statement of Defence and Counter Claim, List of Document and List of Witnesses. The claimant further filed a Notice of Objection to tendering of Documents as Exhibits, Reply to Statement of Defence and Defence to Counterclaim, Additional List of Documents and Additional Claimant’s Witness statement on Oath all dated and filed on 1st June, 2012. Pursuant to an order of court, the defendant filed an Amended Statement of Defence and Counter-Claim, Amended Statement of Witness on Oath, Amended List of Documents dated and filed on 31st October, 2012. The claimant’s case is that sometime on 15th May, 2006 he was employed by the defendant as a Security guard via a letter of employment dated 8th May, 2006. That he put in his best and by hard work contributed to the growth of the defendant as a result of which he was confirmed in five months by virtue of a letter dated 11th December, 2006. That since his employment and confirmation he has been committed to his work and has promoted the interest of the defendant. He further pleaded that due to his bravery, alertness and dedication to his work he was able to combat a fire incident that could have razed down the Ampicillin Unit of the defendant company and was commended by the defendant by virtue of a letter of commendation. That on 5th March, 2011 there was an attempted stealing by some staff of the defendant which took place in broad day light while he was on night duty during that week. That after the failed attempt to steal the defendant’s products, he was arrested on 9th of March, 2011 while at his duty post and detained at Zone D Police Command Mushin and at Lagos State Criminal Investigation Department, Panti, Yaba, Lagos. That the total number of staff arrested were 14 while investigation and interrogation lasted from 9th of March, 2011 to 23rd May, 2011. That after being granted bail by the Police he went to resume work along with other staff that were arrested but was stopped by the Chief Security Officer Mr. Ediseye Abiamowei who told him that until the conclusion of the investigation by the Police and being proved innocent he would not be allowed to resume work. The claimant further pleaded that since the day the said Chief Security Officer ordered him to go home till after investigation he has been trying to resume work without success. That at the end of investigation on 23rd of May, 2011 the claimant was cleared along with 4 others of the attempted stealing while those found culpable were handcuffed, taken to court and arraigned. That the defendant’s Solicitor and the Police advised him and four others that were cleared to report to their duty post the next day. That on resumption the following day he and the four other staff that were cleared were told by the Chief Security Officer that he has not been directed by the management to allow them to resume work. That since the Chief Security Officer is not the owner of the defendant, his refusal to allow him to resume work is due to the instruction of the defendant. That the act of the defendant is not only unlawful but a breach of the rules governing employer/employee relationship between him and the defendant. The claimant pleaded that the action of the defendant placed him in a condition of hopelessness and confusion as he did not know when he will be required to resume work. That in order to avoid a situation whereby he would be absent the day the Chief Security Officer would permit him to resume work he was going to his former duty post everyday to the extent that the Chief Security Officer pitied him but appeared helpless in the situation of things. He stated that when all hope seemed endless he instructed his Solicitors to write a letter dated 2nd August, 2011 to the defendant seeking two main reliefs either to reinstated him or terminate his appointment and pay him his entitlements. That upon receipt of his letter the defendant caused its Solicitors to write a reply letter dated 11th August, 2011 wherein the defendant alleged that he unilaterally disengaged from his employment. That his Solicitors drew his attention to the defendant’s reply and he was surprised and disappointed by the allegation of the defendant. That he instructed his Solicitors to write back and put the records straight and inform the defendant that he was still available, ready and willing to resume work. That the defendant indirectly and unilaterally terminated his employment claiming that he abandoned his duty post but failed, refused and neglected to pay him his entitlement as it is stated in the letter of appointment which is the agreement between the parties and his outstanding salaries from March, 2011 and February, 2012. The claimant stated that his entitlement flowing from his employment as a Security Guard without overtime are as follows: Basic Salary - N15,390.67 Transport - N7,002.83 Housing - N6,302.83 Medical allowance - N2,793.92 Shift - N2,308.60 Total N33,798.85 He pleaded that his monthly salary was N33,798.85 and his salary from March, 2011 to February, 2011 is N405,586.20. That he has put in over 5½ years of meritorious service in the service of the defendant and is entitled to End of Service Benefit as provided in section II Clause 30, 30.1 (Page 15) in the Defendant Staff Handbook. That his End of Service Benefit is as follows: 5 years 4.5 weeks pay for each year of service (i) Annual Basic Salary - N184,688.04 4.5 x 184,688.04 12 = N69,258.02 (ii) Annual Housing Allowance - N75,633.96 4.5 x 75,833.96 12 = N28,363.96 (iii) Annual Transport Allowance - N84,033.96 4.5 x 84,033.96 12 = N31,513.00 (iv) Annual Leave Allowance - N27,000.00 4.5 x 27,000.00 12 = N10,125.00 Total N139,259.98 x 5 ½ = N779,850.00 The claimant further pleaded that the defendant physically prevented him from resuming work and deliberately refused to issue him with a termination letter in order to avoid paying him his terminal benefits. That due to the persistent refusal to either allow him to resume work or terminate his appointment contrary to all expectations he approached his Solicitors to institute an action to recover his entitlements. That his Solicitors issued a fee note dated 13th February, 2012 to him charging the sum of N330,000.00 for his service. That he has suffered special damages in the sum of N260,000.00 being fees incurred as legal fees in his arrest and efforts made in the recovery of the defendant’s indebtedness and prosecution of this suit, if the defendant pay before enforcement of judgment of this court. That particulars of Special damages incurred by him are: 1. Money spent at the Panti Police Station to secure administrative bail - N30,000.00 2. Legal Consultation - N50,000.00 3. Filing this suit at the National Industrial Court - N30,000.00 4. Prosecution of the case at the National Industrial Court - N150,000.00 Total N260,000.00 He further pleaded that on 24th February, 2012 he paid the sum of N60,000.00 as deposit to enable his Solicitors to institute this suit fearing an outstanding sum of N170,000.00 when this case is settled in this court. That he has suffered immense financial loss as a result of the defendant’s continued failure to pay him his salaries and entitlements and that he has spent so much as transport money between March, 2011 and February, 2012 from Ogba, Lagos to the defendant’s office at Oshodi/Isolo, Lagos. That he has incurred substantial costs in his efforts to recover the indebtedness of the defendant and by payment of legal fees to the Solicitors he engaged to recover same. That in the circumstance, it is just and equitable that he should recover his entitlements from the defendant. The claimant repeated his reliefs as per his complaint. By its Amended Statement of Defence and counter claim the defendant pleaded a complaint against the claimant by one Mr. Kadiru Gbolade dated 07/10/2010, query to the claimant dated 08/10/2010, the claimant’s response dated 08/10/2010 and the suspension letter dated 11/10/2010. The defendant denied the import of attempted stealing in paragraph 8 of the Statement of Facts. It pleaded that there was a conspiracy by some of the defendant’s Store Personnel, Audit Staff, Drivers and Security men including the claimant herein to steal some of the defendant’s products including a vehicle with registration No. XT 690 EKY on 5th March, 2011. That in execution of this plot the Conspirators loaded 100 cartons of Emtrin Blisters and 80 cartons of Paracetamol tablets into the vehicle and the said vehicle was driven out of the defendant company without authority, proper inventory and clearance at the security point of the defendant’s head office/factory at Aswani Road, Isolo, Lagos. That as soon as the defendant discovered the theft, it made prompt report of the case to the police at Aswani Police Station on 5th March, 2011. That following the complaint, the police arrested some of the suspects and promptly recovered the vehicle and the stolen goods at Mile 2 Area of Lagos. The defendant pleaded Certified True Copy of the extract from Crime Diary of Aswani Police Station, the Certified True Copy of the statement made at Aswani Police Station by Mr. Ediseye Abiamowei – the Chief Security Officer of the defendant, the Certified True Copy of a letter for the release of the stolen defendant’s vehicle and products dated 17/03/2011, the certified True Copy of bond to produce used in releasing the recovered vehicle and goods to the defendant dated 18/03/2011. The defendant further pleaded that there was a failed attempt to steal the defendant products and that the suspects had actually succeeded in removing the defendant’s products from its premises at the defendant’s head office at Aswani Road, Isolo, Lagos. That it was not only the claimant that was invited but all the Security men of the defendant were invited for screening as information got to the defendant that its Security men had at one time or the other indulged in stealing company’s products. That investigation of the crime and interrogation was entirely by the Police who were doing the statutory duty. That since the 9th of March, 2011 after the claimant was arrested and granted bail, the claimant never reported to work, neither was the claimant ever stopped by anybody from resuming work at his former duty post. That claimant’s serial absence from work led the defendant to the irresistible conclusion that the claimant had unilaterally disengaged from its employment being that he was neither on leave nor given any leave of absence. That the claimant having unilaterally disengaged from the defendant’s employment without one month notice as he is required to give according to his contract of employment owes the defendant a one month salary in lieu of notice thereby not entitled to any monthly salary whatsoever. That the claimant having worked for the defendant from October 2006 to March 2011 is just 4 years and 5 months in the employment of the defendant and thereby not entitled to the End of Service Benefit as provided in the defendant’s Staff Handbook which provides a minimum of 5 years service to be so entitled. That even if the claimant served the defendant for up to 5 years he is still not entitled to the End of Service Benefit having absconded from work and thereby literally terminating his employment. The defendant pleaded that the claimant having abandoned his duty post and unilaterally disengaged from the defendant’s employment without notice is not entitled to any salary, entitlement, damages or cost whatsoever. That the claimant is not entitled to the claim in the Statement of Fact. By way of counter-claim, the defendant/counter-claimant repeated the averments paragraphs 1-12 of its Statement of Defence. It added that the claimant unilaterally disengaged from his employment with the counter claimant being that he was neither on leave nor given any leave of absence. It therefore claims the sum of N33,798.55 (Thirty Three Thousand, Seven Hundred and Ninety Eight Naira, Eighty Five Kobo) being the amount for the one month salary in lieu of notice owed by the claimant to the counter claimant. In his reply to Statement of Defence the claimant stated that the defendant gave him letter of commendation dated 23rd October, 2006. That if he was among any conspirators he would have also been hand cuffed and arraigned as those who were involved. That although the defendant did not allege that he was among the suspect that was promptly arrested, he was never invited to or arrested by Aswani Police Station and never appeared or reported at Aswani Police Station. That only nine (9) Security men were invited for screening, whereas the defendant has about 50 to 55 Security officers. That he is entitled to his claim because his employment is yet to be terminated as even the defendant’s Staff Identity Card No. EC/HRA/06/402 issued by the defendant is still with him. That having worked with the defendant for 5 years he is aware that it is the practice of the defendant to collect the Staff Identity Card of any employee whose services are no longer required. The claimant further states that his appointment was on the 8th of May, 2006 and he was not employed in October, 2006 as claimed by the defendant. That he never abandoned his duty post or unilaterally disengaged from the defendant’s employment. In defence of the counter-claim the claimant repeats his averment in his Statement of claim and reply to the Defendant’s Statement of Defence. That he never abandoned his duty post or unilaterally disengaged from the defendant’s employment. That the defendant/counter claimant is not entitled to the reliefs stated in paragraph 15 of the counter-claim. Trial in this suit commenced on 22nd January, 2013. The claimant testified for himself as CWI. He adopted his witness written Statement on Oath deposed on 14/5/2012 and his Additional Statement on Oath deposed to on 1/6/2012. The said statements are in exact terms as the claimant’s Statement of Defence and Defence to counter claim and will not be repeated here. During cross-examination, the CWI stated that he is doing business on his own since March, 2011. That he was sacked on allegation of attempted stealing. He stated that there were attempts to steal the defendant’s goods but the goods were recovered that same day at Mile 2 Area of Lagos. That the goods were taken from the headquarters warehouse located at Plot A, 3C, Oshodi/Isolo Expressway. That he was not the only one arrested and that they were 14 in number but was not charged to court. He admitted the defendant has a handbook and condition of service. That the Chief Security Officer himself effected his arrest with the Police and that he went back to the defendant company but was told that until the investigation is completed. That he instructed his lawyer to write to the defendant company and he did. The CWI stated that it is not true that he secured an employment after he left the defendant. He admitted being queried by the defendant in the course of his employment but did not remember how many queries and that the query was about a Junior Officer who he was to relieve the officer which he met in another location. That he was queried on the ground that he would have ordered the Junior Officer to go back to his duty post. That he was not the one on duty and could not have been queried for dereliction of duty. He stated that he was employed on 15th May, 2006 and remained a staff of the defendant but stopped going to work in the month of June, 2011 because he was not given access to the defendant’s office. That it is not true that the last day he worked was 9th March, 2011. The CWI stated that he was coming to work but was not allowed into the defendant’s premises though he was managing to secure the outside for the defendant. That it is not true that he was not working for the defendant since his arrest. That he was allowed to pick up his motorbike from the defendant premises. That he cannot remember how much he is owing the defendant co-operative Society Scheme until he checks his record. That he agree that he is owing the Co-operative Society the sum of N203,169.26. There was no re-examination. Ediseye Abiamowee, the defendant’s Chief Security Officer testified in chief for the defendant as DW1. He adopted his witness statement on oath deposed to on 31/10/2012 which is a repetition of the Amended Statement of Defence and Counter claim. During cross-examination, the DW1 told the court that the case of stealing was reported at Aswani Police Station. That he cannot remember the exact number of Security Officers that were taken to Panti Police Station but not all of them were hand cuffed and charged to court. That he is not the Managing Director or the Human Resources and Admin Manager of the defendant. That the claimant worked under him but when he did not report to work he tried to get in touch with him but he was unable to do that. He stated that he did not write to the defendant to tell them he did not see the claimant at work for some time. There was no re-examination and the defendant closed its case. Parties were thereafter ordered to file their Final Written Addresses. The defendant’s Final Written Address is dated and filed on 27/5/13 while the claimant’s Final Written Address is also dated and filed 13/6/2013. Counsel to the defendant formulated three issues for determination by this court as follows: 1. Whether the claimant by his long absence from work, is not in breach of the terms of his engagement in the defendant company and in unilateral disengagement of his employment with the defendant. 2. Whether the claimant was able to establish that he is entitled to terminal benefits from the defendant. 3. Whether the defendant is not entitled to its counter claim by reason of the breach of the contract of employment by the claimant. On issue one, Learned Counsel referred the court to the case of Ifeta v. SPDC (Nig) Ltd [2006] 8 NWLR (pt. 983) p. 585 on sanctity and bindingness of terms of contract on the parties and in this case the terms of the contract of employment are contained in the letter of employment dated 8th May, 2006 and the defendant’s Staff Handbook. He submitted that the critical issue which gave rise to this action is the absence of the claimant from work after his release from Police custody and whether his absence from work was due to the defendant preventing him from resuming or abandoned his work. He submitted that within the context of the terms of his employment the claimant abandoned his work with the defendant after he was released from Police detention. He argued that apart from the claimant’s contention that he was prevented from resuming work by the Chief Security Officer of the defendant there was no evidence before the court to show that the claimant attempted to resume work but was prevented by the defendant. That the claimant failed to call any of the said three staff who went to resume work with him as witnesses to testify to that assertion that he was prevented from doing so and he also failed to call any other witness to establish that he had made several attempts to resume work from the 15th of March, 2011 until the 2nd of August, 2011 when his Solicitors wrote to claim that the claimant had been trying to resume work. He submitted that the fact that the defendant denied that it prevented the claimant from resuming work, leaves him with the burden of proving that he was prevented by the defendant but the claimant did not discharge the burden. He submitted further that burden of proof always lies on him who asserts not upon him who denies, citing the case of United Bank for Africa Plc v. Jargaba [2007] 5 SC p. 1 at p. 19, Dagaci v. Dagaci [2006] 1 SC (pt. 1) p. 87. Learned Counsel submitted that averments are not evidence, citing the case of Durosaro v. Ayorinde [2005] 3 – 4 SC p. 14. That until a Plaintiff discharges the onus placed on him by law and in fact, the burden does not shift to the defendant and referred to the case of Ojo v. Gharoro [2006] 2 – 3 SC p. 105. He also referred the court to Article 35 and 36 of the defendant Staff Handbook that provides for absence from work and its consequences. Counsel submitted that notice of termination need not be served only in writing and that judicial notice is taken that notice of termination or dismissal from employment from either party in a contract of employment may be oral or by conduct. He cited the case of Ifeta v. S.P.D.C (Nig) Ltd [2006] 8 NWLR (pt. 983) p. 585. He submitted that by the terms of the contract of employment – Article 35 of the Staff Handbook, the defendant has only three days to wait before it can safely assume that an employee who has been absent for up to three days has abandoned his employment. That there is nothing in the condition of employment which requires the defendant to go in search of the claimant if he does not come to work. On issue two, Learned Counsel submitted that the terms of employment of the claimant with particular reference to Article 35 of the Staff Handbook give the defendant the liberty to safely assume that an employee who has absented himself from work for three days is taken to have abandoned his work and should be dismissed. He submitted that the claimant ceased to be defendant’s staff three days after his release from Police custody which is about the 17th of March, 2011. That by the terms of the contract of employment with the defendant, the claimant is entitled to terminal gratuity as a disengaged staff only if he has put in a minimum of five (5) years of service by virtue of Article 30 (1) of the Staff Handbook. He submitted that the claimant’s effective date of employment was 15th May, 2006 and he would be five years in service by 14th May, 2011 but the claimant stopped work in March, 2011 when he served notice of disengagement by conduct in view of his absence from duty for more than three days after his release from Police custody, therefore, the claimant was less than five years in service with the defendant and did not qualify for terminal gratuity. Learned Counsel submitted that reliefs (v – vii) of the claimant’s claim are bogus, gold digging and vexatious as the claimant has no assailable and sustainable claim for end of service benefits against the defendant and therefore entitled to none. On issue three, Learned Counsel submitted that while the act of the claimant in abandoning his work is considered in law as notice of disengagement of his employment, that notice did not cover the period prescribed in his contract of employment. He submitted that by Article 10 of the Staff Handbook, one month notice or one month basic salary in lieu of notice is required in the case of Junior Staff which is the category applicable to the claimant. He further submitted that as the claimant passed his notice of disengagement to the defendant by conduct and did not work for the defendant for the 30 days the notice is supposed to span, the defendant is entitled to payment from the claimant of his one month basic salary in lieu of notice. In conclusion, Learned Counsel urged this court to dismiss the claimant’s Suit with cost. Learned Counsel for the claimant raised three issues for determination by the court as follows: 1. Whether the claimant’s employment has been terminated as provided by the terms of contract between the parties. 2. Whether the claimant is entitled to the claims before this court having placed before the court compelling oral and documentary evidence to ground the claims. 3. Whether the defendant/counter claimant has ever demanded the sum of N33,798.85k as one month salary in lieu of notice from the claimant or has been able3 to establish its counter-claim. Arguing issue one, Learned Counsel to the claimant submitted that it is not the number of witnesses that a party call that determines the strength of a case but the quality of such witness and or exhibit. He referred the court to the claimant’s Solicitors letter dated 2nd August, 2011 which says that the claimant had not been allowed to resume work. He submitted that contrary to the defendant’s contention evidence that the claimant was not allowed to resume work is not such that require corroboration by another eye witness and that the claimant has not shifted the burden of proof of the refusal of the defendant to allow him entry to resume work rather he has proved the assertion on the high level of preponderance of evidence. He submitted that Article 35 of the Staff Handbook contemplates a situation where an employee is unable to attend work and has nothing to do with an employee who was not allowed to resume work on the premise that there is no instruction from management that such an employee having earlier been reported to the Police by the defendant company should be allowed to resume work. He submitted that from the tenor and clear expression of Article 36 of the Staff Handbook it relates to circumstances where an employee is involved in a Police case extraneous to the defendant company and that the provision will not aid the defendant. Learned Counsel cited Article 41 of the defendant Staff Handbook and submitted that it deals with an employee who feels aggrieved at work and cannot apply to an employee who has been restrained or stopped from resuming work on the conclusion of the defendant that the employee had unilaterally disengaged from his employment. That an employee who is not allowed to enter the premises of the defendant cannot be required to discuss with his Superior or Manager. He urged the court to discountenance the cases of Ifeta v. SPDC Nig Ltd (Supra) cited by the defendant as a misconception of law as the decision of the court in that case does not apply to this case at all. Learned Counsel submitted that on the part of the claimant he has placed compelling oral and documentary evidence to ground the claims and that the burden on the claimant to prove its entitlements to the claim based on employment has long been settled in decided cases, citing the case of Katto v. CBN [1999] 6 NWLR (pt. 607) p. 390 at p. 405, Amodu v. Amode [1990] 5 NWLR (pt. 150) p. 356, Iwuchukwu v. Nnizu [1994] 7 NWLR (pt. 357) p. 379. He further submitted that where the terms of contract of employment have been reduced in writing, the court is enjoined to consider the said contract of employment and nothing else in the determination of the rights of the parties to the action citing the case of Western Nigerian Development Corporation v. Abimbola [1966] 4 NSCC 172. Learned Counsel also referred the court to letter of employment dated 8th May, 2006 to submit that where parties have reduced the agreement between them in an employment matter into writing both parties are bound by the said agreement, citing the case of Alhassan v. A.B.U Zaria [2011] 11 NWLR (pt. 1259) p. 417. He submitted that by virtue of the letter of employment either party can only terminate the employment by giving the other party one month notice or salary in lieu thereof and that the facts before the court is clear that the defendant is yet terminate the employment of the claimant. He submitted that in an action of this nature the remedy available to an employee whose employment is wrongfully terminated in ordinary master and servant relationship is well established referring to the case of Katto v. CBN (Supra), Western Nigeria Dev. Corporation v. Abimbola (Supra) and Nigeria Produce Marketing Board v. Adewunmi [1972] 7 NSCC 662. On measure of damages for wrongful determination of employment, Learned Counsel cited the case of Institute of Health Ahmadu Bello University Hospital Management Board v. Anyip [2011] 12 NWLR (pt. 1260) p. 1, Archibong v. Duke [1921] 2 SC p. 127. He submitted that the defendant did not join issues with the claimant on his earned entitlement which is N779,850.00 and also did not cross-examine the claimant on it which was worked out in accordance with the defendant’s Staff Handbook. He referred the court to the case of A.C.B Plc v. N.T.S (Nig) Ltd [2007] 1 NWLR (pt. 1016) p. 596, Kosile v. Folarin [1989] 3 NWLR (pt. 107) p. 1. He submitted that the only cross-examination of the defendant on the claim of the claimant related to his claims in reliefs of the sum of N405,586.20 earned salaries from March, 2011 to February 2012 and the evidence extracted from the claimant that he is owing the defendant the sum of N203,169.26 which he got from the defendant’s co-operative society. He submitted that as Ministers in the temple of justice the claimant admits that the claims and entitlements of the claimants should be less the sum of N203,169.26 although the defendant did not counter claim for the said sum. That the admission of the claimant that he collected the said sum from the defendant’s co-operative society despite the fact that the defendant did not counter claim for the said amount really shows that the claimant is a witness of truth. On special damages, counsel submitted that the claimant prayed for special damages in prayers (iii), (iv) and (v) of his Statement of Facts and pleaded the details of the claims and in relief (v) the particulars of the special damages were clearly itemized and proved. On post judgment interest Learned Counsel referred the court to prayer (vi) and submitted that this court has the requisite jurisdiction to award post judgment interest in this suit in favour of the claimant citing Order 21 Rule 4 of National Industrial Court Rules, 2007, the cases of Berliet Nigeria Ltd v. Mustapha Kachalla [1999] 9 NWLR (pt. 420) p. 478, Ekwunife v. Wayne West Africa Ltd [1989] 5 NWLR (pt. 122) p. 422. He submitted that on the whole the claimant has proved its case and he is entitled to the reliefs he is claiming. On the issue three (3) Learned Counsel referred to Article 10 of the defendant’s Staff Handbook and submitted that the said Article is not in support of the defendant’s assertion that the claimant abandoned his work and same is considered in law as notice of disengagement of his employment. He submitted that a counter-claim is a separate claim which stands on its own merit citing the case of Ladunni v. Wema Bank Ltd [2011] 4 NWLR (pt. 1236) p. 44, Balogun v. Yusuff [2010] 9 NWLR (pt. 1200) p. 515. He submitted that there is no where the defendant alleged that it ever demanded from the claimant the sum of money it is now counter claiming as the said counter claim is a clear after thought which spring from the claimant’s claim. He submitted that a party counter-claiming is expected to put forward its claim exactly as if it was a claimant citing Olufosoye v. Fakorede [1993] 1 NWLR (pt. 272) p. 747, Kokoro-Owo & 3 Ors v. Ogunbambi & 8 Ors [1993] 8 NWLR (pt. 313) p. 637, Balogun v. Labiran [1988] 3 NWLR (pt. 80) p.66, Olusesi v. Oyelusi [1986] 3 NWLR (pt. 31) 634, Jallico Ltd v. Owoniboys Technical [1995] 4 SCNJ p. 256. Learned Counsel submitted that the counter claimant has not shown that it has a cause of action against the claimant referring to the case of Rinco Construction Co. Ltd v. Veepee Industries Ltd & Anor [2005] 9 NWLR (pt. 925) p. 85, Ibrahim v. Osin [1985] 3 NWLR (pt. 82) p. 257, Egbe v. Adefarasin [1985] 1 NWLR (pt. 3) p.549, Savage v. Uwaechime [1972] 3 SC p. 214. He submitted that the onus is on the counter-claimant to prove that the claimant abandoned his work and when he did so and that it demanded from him the one month salary in lieu of notice which the claimant failed to pay. He cited the case of Omosowan v. Chiedozie [1998] 9 NWLR (pt. 566) p. 477, Amede v. UBA [2008] 8 NWLR (pt. 1090) 623. He further submitted that the counter-claimant failed woefully to prove its allegation therefore the counter claim must fail citing the case of Macfoy v. United Africa Co. Ltd [1961] 3 All ER 1109. Concerning the termination of employment, Learned Counsel submitted that there is nowhere the defendant alleged that it ever terminated the employment of the claimant and urged the court to hold that the defendant has not terminated the employment of the claimant in accordance with either the Labour Act or the terms of employment agreement between the parties. I have carefully considered the processes filed, arguments of Counsel for both parties and the judicial authorities relied upon herein. In my view, the issues for determination by this court are: - Whether the claimant’s employment was terminated in accordance with the contract of service between the parties herein. - Whether the claimant is entitled to his arrears of salaries and end of service benefits in accordance with the terms and conditions of service. - Whether the defendant has proved its counter-claim. The claimant in this case was employed by the defendant as a Security Guard by virtue of a letter of employment dated the 8th day of May, 2006. The said letter of employment fixed the 15th May, 2006 as commencement date of the employment. The defendant equally has a Staff Handbook which in addition to the letter of employment regulates the employment relationship between the claimant and the defendant herein. The contract of employment regulating the relationship of the claimant and the defendant as well as the defendant’s Staff Handbook makes elaborate and clear provision for the termination of the contract of employment by either party. The term of contract of service are binding on the parties thereto. See Ladipo v. Chevron (Nig) Ltd [2005] 1 NWLR (pt. 907) p. 277 at p. 289, Baba v. N.C.A.T.C [1991] 5 NWLR (pt. 192) p. 388. It is important to reproduce the relevant part of the letter of employment and the Staff Handbook relating to termination of contract. The letter of employment states, “After the confirmation of your appointment, your employment shall be determinable by either party giving to the other one (1) calendar month notice of its intention to resign or pay one (1) month’s salary in lieu thereofâ€. Article 10 of the Staff Handbook states that: TERMINATION OF APPOINTMENT “Termination of appointments of confirmed staff shall be by one month notice or one month basic pay in lieu of notice for all junior staff, two months notice or two months basic pay in lieu of notice for senior staff and three months notice or three months basic pay in lieu of notice for managersâ€. Article 35 of the Staff Handbook: ABSENCE FROM WORK “An employee who is unable to attend work must try to inform the management within 24 hours of such inability. If he/she does not do so, or fails to give satisfactory explanation later, he/she will be regarded as having been absent without permission and will be liable to disciplinary action which may include forfeiture of rights to leave or remuneration during the period An employee who absents himself from work for 3 days without permission will be regarded as having abandoned his employment and will be dismissedâ€. The claimant gave evidence that after his arrest by the Police in connection with the stealing incident at the defendant’s office and subsequent bail he went to resume work at the defendant’s office but he was stopped by the defendant’s Chief Security Officer Mr. Ediseye Abiamowei under who he works and who informed him that until investigation is concluded and he is proven innocent he would not be allowed to resume work. He also stated that he wanted to resume work another day but the Chief Security Officer told him that he has not been directed by the management of the defendant to allow the claimant resume work. The defendant’s evidence was that after the claimant’s arrest and bail on 9th of March, 2011 that he never reported to work neither was he stopped from resuming work by anybody and that the claimant’s absence made the defendant to conclude that he unilaterally disengaged himself from his employment. In other words, the defendant took the action of the claimant as termination of the employment. In its argument, the defendant cited Article 35 of the Staff Handbook reproduced above to conclude that the claimant abandoned his job with the defendant. The conclusion of the defendant herein is erroneous because Article 35 of the Staff Handbook on its own does not terminate the employment of the claimant. It only gives the defendant the right to dismiss the claimant’s employment if he abandoned his employment for three (3) days which the defendant has not done. I believe the evidence of the claimant as he has been able to establish that he reported to work but was asked not to resume by the Chief Security Officer of the defendant until he receives instruction from the defendant management. In the circumstances and facts of this case, if the claimant failed to report to work, the Chief Security Officer under whom the claimant directly works would have alerted the management which would have exercised its power under article 35 of the staff handbook to dismiss him but he did not do so. This action supports the fact that the claimant was reporting to work at the material time. In the circumstance, I do not believe the evidence of the DW1 that after the arrest of the claimant and bail he never showed up for work. I am not convinced at all by this piece of evidence coming from the defendant. Equally not convincing is the DW1’s evidence that he tried to get in touch with the claimant but was unable to do so. In this era of mobile phone coupled with the fact that the claimant worked for about five (5) years with the defendant and directly under the DW1, it would not have been impossible to reach the claimant as DW1 would want the court to believe. However, the defendant in this Suit did not utilize its right under the Staff Handbook to effectively terminate the employment of the claimant if indeed he abandoned his work for three days as is required under Article 35 above. The dismissal under Article 35 is not deemed or taken as done or automatic. It requires the action of the defendant in order to bring the contract to an end. Therefore, the conduct of the defendant in not allowing the claimant to resume work amounts to constructive termination of the claimant, though it took no action to effectively terminate the employment. It therefore means that the employment of the Claimant with the Defendant subsists till the date of this judgment. The action of the Defendant in this suit is aptly captured in the book- The Law of Termination of Employment, page 156 Seventh Edition by Robert Upex as follows: Evaluation of whether the Defendant’s conduct is repudiation depends upon whether the conduct viewed objectively showed an intention no longer to be bound by the contract. It does not depend on whether the employer intended the conduct to be repudiatory or could reasonably have believed that it would be accepted as such nor is the fact that the employer acted on a genuine, though mistaken belief of fact, enough to prevent his conduct amounting to a repudiation. The conducts which amounts to constructive dismissal have been listed among others as “denying the employee access to the company’s premises, failing reasonably and promptly to afford the employee a reasonable opportunity to obtain redress of grievancesâ€. See Labour Law Fifth Edition by Simon Deakin and Gillian S. Morris page 411. See also the decision of this court in Gbadegesin v. Wema Bank Plc [2009] 15 N.L.L.R (pt. 40) p. 1, Ogunsowo v. Dana Motors Limited (Unreported) Suit No. NIC/LA/117/2011 delivered on 10th July, 2013. It is therefore my humble view that since the prevention of the Claimant from resuming work lasted for up to one year, this evinces an intention on the part of the Defendant to repudiate the contract of employment of the Claimant. In the circumstances, I hold that the action of the defendant amounts to repudiation of the Claimant’s employment by the Defendant but effective only from the date of this judgment. This means that the Claimant is entitled to be paid the backlog of his salary up to the date of this Judgment and End of Service Benefits. On issue two, the claimant claimed the sum of N405,586.20 (Four Hundred and Five Thousand, Five Hundred and Eighty Six Naira, Twenty kobo) being his arrears of salary from March, 2011 to February, 2012. This court having held that the employment of the claimant was repudiated by the conduct of the Defendant effective from the date of this judgment, the claimant is therefore entitled to his salaries from March, 2011 till the date of this judgment. Therefore, the Claimant is entitled to his arrears of his salaries for 19 months on the basis of N33,798.85 per month in the sum of N642,178.15 (Six Hundred and Forty Two Thousand, One Hundred and Seventy Eight Naira Fifteen Kobo) Concerning the End of Service Benefit under Article 30 of the Staff Handbook the defendant’s employee who is disengaged from service is entitled to terminal gratuity if he has put in a minimum of five years on the basis of 4.5 weeks pay for each year of service. The computation of the gratuity is made up of annual basic salary, annual housing allowance, annual transport allowance and annual leave allowance. This court has already held that the claimant’s employment comes to an end on the date of this judgment. Consequently, from the effective date of the claimant’s employment which is 15th day of May, 2006 to the date of this judgment which is today, the claimant has worked for more than five (5) years with the defendant. He is therefore entitled to his End of Service Benefits as prayed. The last issue for consideration is the defendant’s counter claim for the sum of N33,798.85 (Thirty Three Thousand, Seven Hundred and Ninety Eight Naira, Eighty Five Kobo) being the amount for one month salary in lieu of notice. The defendant counter claimant’s argument is to the fact that since the claimant unilaterally disengaged from service without giving it one month notice as required under the letter of employment and Staff Handbook, it ought to pay the one month salary in lieu of notice. I find this argument unsubstantiated. If indeed the claimant disengaged from service without notice since March, 2011 the defendant did not deem it fit to demand for the claimant’s one month salary in lieu of notice rather it waited for one year thereafter and at the instance of this suit to claim the said one month salary. The counter claim is an afterthought, in bad faith and cannot be granted by this court I so hold. For the avoidance of doubt, I hereby hold and order as follows: 1. That the action of the defendant in not allowing the claimant to resume work amounts to termination of the claimant’s employment with the defendant. The termination is to take effect from the date of this Judgment. 2. Consequently the defendant shall pay to the claimant the sum of N642,178.15 (Six Hundred and Forty Two Thousand, One Hundred and Seventy Eight Naira Fifteen Kobo) being the claimant’s arrears of salary from March, 2011 till the date of this judgment. 3. The defendant shall also pay to the claimant the sum of N779,850.00 (Seven Hundred and Seventy Nine Thousand, Eight Hundred and Fifty Naira only) being the claimant’s End of Service Benefit. 4. The defendant shall pay N50,000.00 (Fifty Thousand Naira only) cost. 5. The said sums shall be paid to the claimant less the admitted staff co-operative society debt of N203,196.26. 6. The counter-claim is hereby dismissed. 7. The order of this court shall be complied with within 30 days from the date of this judgment in accordance with Order 21 Rule 4 of National Industrial Court Rules, 2007. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge