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The claimant had filed a complaint on 6th January, 2011 praying against the defendant as follows: A declaration and an order that the claimant is entitled to the following terminal packages: 1. 3 months’ salary in lieu of notice at N100,000.00 (One Hundred Thousand Naira) per month as per the conditions of employment contained in the employment letter of the 1st April, 2005. 2. December 2010 service charge N32,000.00, January 2011 service charge N30,000.00. 3. January 2011 salary N68,000.00. 4. February and March 2011 salaries at N100,000.00 = N200,000.00. 5. 2009 and 2010 Leave allowance to be calculated on pro rata basis. 6. Agreed long service package to be calculated on 1 month’s salary multiplied by the number of years put in by the claimant. 7. An order compelling the defendant to pay the claimant all his established terminal benefits forthwith. 8. Cost. The complaint was filed along with the statement of facts, claimant’s list of witnesses, claimant’s list of documents to rely on at the trial. The defendant in reaction entered appearance and filed a statement of defence and counter claim, defendant’s list of witnesses and list of documents to be relied on. The claimant also filed a reply to statement of defence and defence to counter claim. The claimant also filed a list of additional witness and list of additional documents to rely on. The counter claimant equally filed a reply to defence to counter claim. From the statement of facts, the case of the claimant is that he was an employee of the defendant which is a company registered in Nigeria with its office at No. 9A, Karimu Kotun Street, Victoria Island, Lagos. That he was employed by the defendant in 2001 and the employment was formalized in the year 2005 vide the defendant’s letter of employment dated the 25th day of April, 2005. That as at the time the claimant joined the defendant’s company in 2001, the company was as at its formative stage and the claimant was drafted in by the defendant to help build the company, as a result of the wealth of experience of the claimant. The claimant also averred that he joined the defendant when its skeletal office was at Commercial House, Allen Avenue, Ikeja in 2001 when the company started before they moved to Saka Tinubu Street, Victoria Island, Lagos in 2002 and to its present place at Karimu Kotun Street, Victoria Island, Lagos in 2004 and it took off operation in 2005 during which his employment was formalized. The claimant further pleaded that he worked with the defendant all these years without blemish, discharging his duties diligently and contributed immensely to the rapid growth and development of the defendant that is worth more than N50,000,000.00 (Fifty Million Naira) as at today. That although he is not the owner of the defendant but his goodwill and good cooking projected the image of the defendant and customers saw their cooking as second to none within the vicinity. That this was the trend of events till the year 2011 when the defendant through its letter dated the 29th March, 2011 terminated his employment for reasons stated in the said letter. That he was directed in the letter to submit all the defendant’s property with him to it which he did and demanded for the payment of his terminal benefits which the defendant has refused to pay till date. Also that after series of demands for the payment of his terminal benefits he instructed his Solicitors Ukachi Emeka & Co. to write to it demanding for the payment of his terminal benefits on 6th May, 2011. The claimant pleaded that his initial salary was N55,750.00 per month and his total package per annum was N669,000.00 and the said salary was reviewed in 2007/2008 to N68,000.00 per month and in February 2011 his salary was reviewed to N100,000.00 which was the last salary he received from the defendant before the termination of his appointment. The claimant insisted that the letter of 29th March, 2011 did not dismiss him from the defendant’s employment rather his appointment was terminated. He then claimed as per his complaint. The defendant on its part filed a statement of defence and a counterclaim. In response, the defendant averred that the claimant was not employed because of his wealth of experience as he had none, but because he could be trained on the job. The defendant also averred that upon the claimant’s employment he was put through the defendant’s standard familiarization procedure, which is a structured and comprehensive guidance to familiarizing new comers with both the organization and their own responsibilities which comprised of an introductory period, induction period and an instruction period. The defendant also averred that it began its operations on the 14th of February, 2003 at Saka Tinubu Street, Victoria Island, Lagos. That No. 42 Community Road is the residence of the Managing Director’s parents. That the claimant’s history of gross misconduct can be traced to the year 2009 when it was discovered that he was having extra marital affair with a female staff of the defendant, Rhoda Erobame, who was then the Procurement Officer. That it was later discovered that both of them took advantage of their office to enrich themselves dishonestly. The defendant also pleaded that in the course of investigations, the management came across pictures of their lavish vacation to Ghana, which was financed from the proceeds of their crime. That investigation culminated in the dismissal of the claimant and his mistress on the 12th March, 2010. The defendant further averred that upon his dismissal, the claimant begged to be reinstated promising to be of good behavior, but his pleas were not entertained. That in act of desperation, the claimant went to the defendant’s Managing Director’s father begging for some intervention on his behalf as he had a wife and children who relied on his income from the job for their welfare and upkeep. That the defendant’s Managing Director’s father, believing the claimant had learned his lessons and turned a new leaf, intervened and the claimant was reinstated. The defendant averred that upon the claimant’s reinstatement, he was transferred to the Abuja outlet which was franchised as a way of expansion. That not long after his resumption at Abuja, the franchise became dissatisfied with his performance and the claimant was then transferred back to Lagos on account of the franchisee’s growing complaints. That upon the claimant’s resumption in Lagos, he continued to misconduct himself. That at the Lekki outlet, the claimant without authorization brought in a former employee, Usman Sunday, who now works for a competitor to practice the defendant’s menu in the defendant’s kitchen. That this act of gross misconduct was reported to management by the Chief Cook (Lekki) Mr. Olumide Sipasi. That in the course of investigation the Chief Cook’s report, it was discovered that the claimant had been paid to expose the defendant’s trade secrets. That at no time was the claimant employed as a cook, as he was employed as a General Manager and his responsibility was to report to the Managing Director on matters relating to the marketing and sales of the company’s products”. The defendant also pleaded that what constitutes a dismissal in any particular case will ever remain a question of fact, that the claimant’s employment was determined by summary dismissal and not by termination. The defendant also averred that on account of the claimant’s brazen acts of gross misconduct and in line with his contract of employment, it exercised its powers of summary dismissal. That the claimant still owes vast sums of unpaid loans and embezzled funds. That this suit discloses no reasonable cause of action and an attempt by the claimant to benefit from his wrong doing and same be dismissed with substantial cost. The defendant also counter claimed against the claimant as follows: (1) That the counter claimant’s Lekki outlet, the defendant to counter claim brought in Mr. Sunday Usman, a former employee who now works for Wang Tan Chinese Restaurant on Ajose Adeogun Street, Victoria Island Lagos (a major competitor) to expose the counter claimant’s signature dishes (secret menu). (2) That prior to his summary dismissal, when the counter claimant gave the defendant to counter claim an opportunity to defend himself, he did not deny the above stated fact. (3) The defendant to counter claim is still heavily indebted to the counter claimant for monies loaned to him which he is yet to repay. PARTICULARS OF INDEBTEDNESS 3.1 N83,998.24 : 31 August 2010 3.2 N110,000.00 : 01 February 2011 3.3 N491,775.00 : 01 March 2011 3.4 N185,000.00 : 11March 2011 Total: N870,773.24 That further to the above, it has suffered damages as a result of the defendant to counter claim’s dishonesty, betrayal and this suit. PARTICULARS OF SPECIAL DAMAGES 1. Solicitors fees - N1,000,000.00 PARTICULARS OF EXEMPLARY DAMAGES 1. N1,000,000.00 for the defendant to counter claims blameworthy conduct. Whereas the counter claimant claims against the defendant to counter claim as follows: (1) An order directing the defendant to counter claim to pay the counter claimant the sum of N870,773.24 with interest at the rate of 21% per annum being the total sum owed the counter claimant as per particulars set out in above. (2) An order directing the defendant to counter claim to pay the counter claimant the sum of N1,000,000.00 incurred in this suit. (3) An order directing the defendant to counter claim to pay the counter claimant the sum of N1,000,000.00 being exemplary damages for the defendant to counter claims blameworthy conduct. In reply to the statement of defence and defence to counter claim, the claimant responded as follows: (1) That he had 8 years experience in the industry already before coming in touch with one Olumide Adegbite, the Managing Director of the defendant company who wooed him to work with the defendant. (2) That he had worked with Airport Chinese Restaurant from (1993 – 1996), Osata Suraju Gen. Stores & Chinese Restaurant (1997 – 2000) and Sunrise Chinese Restaurant (2000) from where he met Mr. Olumide Adegbite who came to consult the management of Sunrise Chinese Restaurant to help him set up his own Chinese Restaurant. Defending the counter claim, the defendant to the counter claim denies each and every allegation contained in the counter claim. The defendant to the counter claim denied that he breached any contract with the counter claimant and never invited anybody to cook in the kitchen apart from the authorized staff. That he was never given an opportunity to defend himself before he was hurriedly terminated. He denied owing the counter claimant any money in form of IOU at the time of his termination. That the sums enumerated in the counter claim as particulars of indebtedness are cheques given to the defendant to cash for the counter claimant, which he cashed and gave it to the counter claimant or disbursed by the counter claimant for the personal purpose of the claimant. He urged the court to dismiss the counter claim with substantial cost. The counter claimant also filed a reply to the defendant’s defence to the counter claim wherein it joins issues with the defendant to counter claim in support of claims in its averments. Trial commenced and the claimant testified for himself as PW1. He swore by the Holy Quran and told the court that he knows the respondent which he worked with for 10 years. He said he stopped working with the defendant in 2011 when he was sacked. He said he worked with the defendant as a General Manager in charge of Marcopolo Chinese Restaurant. That he was given a letter of employment. That he was also given a termination letter. PW1 told the court that on that fateful day, the Managing Director of the defendant Mr. Olumide Adegbite called him and on the phone asked him why he brought one Usman Sunday a former staff to the kitchen. That he responded that he did not invite the said Usman Sunday but Mr. Olumide Adegbite told him that he was informed that the claimant is the one that called in the said Usman. He told the court that on the day in question, he was off duty and that he will see him the next day to explain things to him. But that Mr. Adegbite the Managing Director insisted that the claimant invited the said Usman to enter the defendant’s kitchen and cook. That all these communication took place on phone since he was off duty. That afterwards Mr. Adegbite then sent a text message to him to the effect that he was tired of his nonsense and abuse of privilege, that he did not think he needs him in the company. PW1 said he tried to call the Managing Director four times but that he refused to pick his calls, he then replied the said Mr. Olumide Adegbite by text message that he did not invite the said Usman Sunday. DW1 told the court that he then called Mr. Ibrahim Wakawa, the General Manager of the Victoria Island outlet of the defendant to inform him of what has happened, but he did not pick his call. That when he got to the premises of the defendant he was informed by the security that he was not to be allowed into the premises, he was then handed over a termination letter that same night at about 12 midnight. That when he received the termination letter, all attempts to reach the Managing Director did not yield success. That he joined the defendant in March 2001 as a Consultant and as a staff. The claimant further told the court that he and the Managing Director started work in 2001. He said the appointment letter given to him in 2001 was taken away by Armed Robbers who attacked his house and took away his bag of documents where this letter was contained. That in 2005 he was given a fresh appointment letter which is a continuation of his appointment. The witness said he worked for the defendant for 10 years. That since his dismissal, he has not been paid his terminal benefits. He denied that he was employed and trained by the defendant. He maintained that he set up the company with the Managing Director. He denied that he was earlier dismissed on charges of embezzlement and after begging he was reinstated. He denied ever been queried. He also denied that he brought anybody to cook for the defendant and he never invited Sunday Usman. He also denied owing the defendant, that he paid all his loans since 2010 through salary deduction. He prayed the court to grant his claims as prayed. Under cross examination, PW1 agreed that people approached him to help them set up a Chinese Restaurant. He also said he was never sacked before. Under re-examination, PW1 answered that despite the fact that people approached him to help open a Chinese Restaurant for them, yet he did not oblige them. The second witness for the claimant is Mr. Usman Sunday hereinafter known as PW2. He swore by the Holy Bible to speak the truth. PW2 said he knows the parties in this suit. He told the court that he knows the claimant because when he PW2 worked in the defendant as a Chef, the claimant was the Manager. PW2 said he worked in the defendant company as a 2nd Chef. He agreed that sometime in March 2011, he went to the defendant’s office in Lekki Phase One. That on that day he went to visit his former colleagues. That he stopped working with the defendant in November 2010. That apart from the day in question, he had also visited the defendant’s office to collect his service charge which they did not pay him. That he went there to visit Kehinde, Idowu and Adeolu. That all of them are staff of the defendant. That when he visited them, he was accosted at the gate by the security who asked him who he was looking for and he responded that he was looking for Kehinde Adelekan. PW2 told the court that the security man then went in to inform Kehinde. After that the security man came to inform him that Kehinde said he should come inside. That when he got inside, Kehinde asked him to help prepare food for a customer and that he even joked and asked how much he would be paid. That he then helped Kehinde to prepare the food order. After that he left, that he even asked for the claimant but was told that the claimant was not on duty that day. PW2 denied that he came to the defendant’s office at the invitation of the claimant. That he only visited his friends because they also visit him. There was no cross examination of PW2. The claimant thereafter closed his case. The claimant closed his case on the 21st March, 2012. The matter was adjourned to 21/5/2012 for defence. On the day slated for defence, the defendant’s counsel informed the court that the defendant’s witness was not in court and then asked for an adjournment. This was on 21st of May, 2012. On the 3rd August, 2012 when this case again came up for hearing the respondent’s counsel was absent but nevertheless this court adjourned the matter and ordered that hearing notice be issued and served on the defendant. On the 15th October, 2012 when this matter came up for defence, the defendant’s counsel informed the court that he has just filed a preliminary objection which was yet to be served on the claimant. The claimant opposed the defendant and urged the defendant to proceed with the business of the day which was for defence. The defendant’s counsel refused and this court nevertheless adjourned the matter for hearing of the said application. On the next adjourned date the defendant’s counsel moved his application for amendment, despite the fact that the claimant has already closed his case, the claimant counsel did not object to the said application for amendment. It was therefore granted and the matter adjourned again at the instance of the defendant for hearing of the said preliminary objection. By the next adjourned date the defendant’s counsel was absent and so the defendant’s preliminary objection was struck out due to the absence of the defendant’s counsel. The matter was again adjourned due to the absence of the defendant’s counsel for defence. When the matter came up for defence, again the defendant’s counsel informed the court that his witness was not in court. The court then foreclosed the defendant from defending this case. The court thereafter ordered parties to file their final written addresses and adjourned for adoption of final addresses. On the date set for adoption of final addresses, the defendant’s counsel was not in court and no reason given for the absence. The defendant’s counsel also did not file defendant’s final addresses, this court therefore foreclosed the defendant from filing final addresses. The claimant’s counsel who was in court adopted his final addresses this was on 14/1/2014. In his written address dated 9th December, 2013 but filed on the 19th December 2013, the claimant’s counsel raised one issue for determination viz: Whether the claimant has proved his case in this matter to entitle him to relief sought in this matter. The claimant’s counsel submitted that the claimant has proved his case beyond all reasonable doubt to entitle him to the relief sought in this matter. That the claimant has led evidence to the fact that he was employed by the defendant in 2001 and the employment was formalized in April 2005 vide the defendant’s letter of employed dated April 1, 2005. That his employment was terminated in March 2011 vide the defendant’s letter dated March 29, 2011 without his terminal benefits paid. That the claimant also led evidence that he is entitle to the following benefits: (i) 3 months’ salary in lieu of notice at N100,000.00 per month as per the conditions of service contained in the employment letter of 1st April, 2005. (ii) Service charges for December 2010 and January 2011 at N32,000.00 and N30,000.00 respectively. (iii) January 2011 salary of N68,000.00. (iv) Salaries of February and March 2011 respectively at N100,000.00 each amounting to N200,000.00. (v) Leave allowance of 2009 and 2010 to be calculated on a prorata basis respectively. (vi) Agreed long service package to be calculated on 1 month’s salary of the number of years put in by the claimant which is N100,000.00 x 10 years which equals to N1 Million. Learned Counsel submitted that these claims were never disputed, controverted nor challenged by the defendant in its statement of defence or oral evidence, rather the defendant’s contention is that the claimant was summarily dismissed from service. That it is elementary principle of law that facts pleaded and not controverted or challenged by the other party is deemed to have been abandoned. That the defendant alleged several issues in its statement of defence but failed to substantiate the issues pleaded through oral or credible evidence. That in essence, the unsubstantiated issues are deemed to be abandoned and remain unsubstantiated. The claimant’s counsel submitted that the defendant cannot terminate or dismiss the claimant on an unsubstantiated allegation or gross misconduct and urged this court to so hold. The claimant’s counsel finally urged the court to enter judgment in favour of the claimant accordingly and to also dismiss the unproved counterclaim of the defendant as it lacks merit and award cost in favour of the claimant. I have read and reviewed all the processes filed in this case. I have also listened to the evidence of the claimant’s witnesses and have in addition read the written address filed by counsel to the claimant. As I have noted before in this Judgment, the defendant’s counsel Mr. I. Ubahakwe exhibited so much unbecoming behavior in the conduct of this case, a behavior which left much to be desired. Mr. Ubahakwe exhibited rude and disrespectful behavior before the court which is condemnable to say the least. Despite several adjournments at the instance of the defendant, he failed to call in the defendant’s witness nor file the defendant’s final address and in most of the occasions refused to attend court and had no courtesy to advance any reason for his absence. I therefore deplore in strong terms the unwholesome conduct of the defendant counsel. This court is therefore left with no option but to consider only the evidence of the claimant. The first relief sought by the claimant is a declaration that his three months’ salary in lieu of notice of termination be paid to him. On the issue I have perused the letter of termination of the claimant’s appointment frontloaded by the defendant. It reads inter alia as follows: March 29, 2011 Muyiwa Agbomeji 10, Hakeem Lasisi Close, Shasha, Lagos. Dear Mr. Agbomeji, TERMINATION OF APPOINTMENT We wish to inform you of the Management’s decision to terminate your appointment from the company with immediate effect. ………………………………………………………… …………………………………………………………………………………………………..…..…..………………………………………………………………………………………….. You are to submit all the company’s property in your possession including your identity card to the Head, Finance & Admin. We wish you the best in your future endeavour. Yours faithfully, Sgd. Sgd. Afeez Giwa Olumide Adegbite Head, Finance & Operations. Managing Director As can be seen from the relevant portions of the claimant’s letter of termination, it is not in dispute that the claimant’s appointment was terminated by the defendant and the termination was with immediate effect, that means it took effect from the 29th March 2011, the date of the said termination letter and the claimant received same as can be seen from the acknowledgment of receipt by the claimant. The claimant’s letter of appointment which is the contract of employment itself that binds the parties provides thus – on item 9 which deals with termination 9. TERMINATION This appointment may be termination by either party at any time by giving three months notice or payment of three months’ salary in lieu of notice. From the tenor of the letter of termination of the claimant’s appointment reproduced above it is clear that the defendant terminated the claimant’s appointment with immediate effect. That is to say the claimant was not given the mandatory three months notice provided by the claimant’s letter of appointment which is the contract that binds the parties. See C.O.E Ekiadelor v. Osayande [2010] 6 NWLR (pt. 1191) p. 423. It is trite that parties are bound by the terms of their contract. It is trite that the letters of employment containing the terms and conditions of employment formed the basis of the contract of service between the parties. It is also trite that the courts will uphold the sanctity of parties’ intention and give effect to an agreement voluntarily entered into by the parties. See Sona Breweries Plc v. Sir Shina Peters & Anor. [2005] 1 NWLR (pt. 908) 478 at 489, CBN v. System Application Products Nigeria Ltd [2005] 3 NWLR (pt. 911) 152 at 186 and Nkwocha China Ors v. Pan Oceanic Oil Corporation Nig. Ltd. Unreported Suit No. NICN/LA/64/2013 delivered on March 24, 2014. I am therefore of the considered view that the defendant by not giving the claimant three months notice of termination or paid the claimant the three months in lieu of termination, has not complied with the terms of the contract. The law is that where a contract of employment is terminable on notice the damages which can be considered to be the natural and probable consequence of terminating the employment without the requisite notice cannot be more than what the employee could have earned during the period of notice. See Afribank (Nig) Plc v. Osisanya [2000] 1 NWLR (pt. 642) p. 592. I therefore hold that the defendant should pay the claimant three months salary in lieu of notice of the said termination which is N167,250.00 (One Hundred and Sixty Seven Thousand, Two Hundred and Fifty Naira) as per the claimant’s letter of appointment. As to whether the claimant’s salary was reviewed, there is no evidence before me to show that the claimant’s salary was reviewed in 2007/2008 to N68,000.00 and in February 2011 to N100,000.00 as alleged by the claimant. Therefore in my view the claimant’s claim on these amounts fail. The claimant also claims service charge of N32,000.00 for December 2010 and N30,000.00 for January 2011. The claimant did not however lead any evidence to prove how he is entitled to this claim. I have also not seen any provision for payment of such entitlement in the claimant’s letter of appointment. The claimant has not also placed any conditions of service which entitles him to such payment. In the absence of such proof I hold that this claim also fails. It is trite also that any pleading that is not supported by evidence goes to no issue. In the case of Ochim v. Ekpechi [2000] 5 NWLR (pt. 656) p. 225 at 240 it was held that, “Pleadings not admitted are as good as dead unless proved in court or where the court can take judicial notice, in which case proof is not necessary. Since pleadings have neither brain not mouths to think and talk, it is the duty of the party to lead evidence on his pleadings. Where no evidence is led, the court will assume that the pleadings are abandoned. The appellants in the instant case having not led evidence in proof of paragraph 13 of their amended statement of defence are deemed to have abandoned the said paragraph…” See also Ajuwon v. Akanni [1993] 9 NWLR (pt. 316) p. 182 at p.p. 200 paras F – G, 204 paras E – F. On the other claims by the claimant, for instance, the claims for outstanding salaries for the months of February and March 2011, 2009 and 2010 leave allowance and long service package, the claimant did not also lead evidence to prove any of them. As for long service package the claimant frontloaded his 2005 appointment letter which when calculated up to the time of his termination shows that the claimant worked for six years. Since there is no reference to any conditions of service which makes provisions for terminal benefits for number of years spent in the defendant’s employment, I am unable to award any amount claimed in this regard. I therefore find and hold that these claims equally fail as there is no provisions for such in letter of employment of the claimant on the basis of which the court could find in his favour. As regards the counterclaim, there is no sufficient evidence on the part of the defendant to prove same. As I have said earlier the defendant did not lead any evidence to prove the counterclaim more so that no written address was filed by the defendant in proof of its counterclaim. Since there was no evidence led to prove the averments in the counterclaim, the entire counterclaim therefore fails. See Ochim v. Ekpechi (supra). On the whole, I therefore find and hold that the claimant’s claim succeeds only to the extent of his three months’ salary in lieu of notice of termination which stands at N167,250.00 (One Hundred and Sixty Seven Thousand, Two Hundred and Fifty Naira). For the avoidance of doubt, I hold that the claimant’s termination is wrongful. 1. The claimant is to be paid N167,250.00 (One Hundred and Sixty Seven Thousand, Two Hundred and Fifty Naira) as his three months salaries in lieu of notice. 2. The defendant shall also pay N50,000.00 as cost to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge