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REPRESENTATION Nnaemeka Agu for the Claimant Obafemi Awoyemi for the Defendant JUDGMENT The Claimant in this suit by a General Form of Complaint dated 23/11/12 approached the Court for the following reliefs: a. A Declaration that the Claimant is and has been a lawful Steward and Cook of the Defendant from the 1st day of November 2007 b. The sum of =N=2,880,000.00 (Two Million Eight Hundred and Eighty Thousand Naira) being arrears of salaries and allowances from December, 2008 to November, 2012 c. Interest at the rate of 25% per annum from 1st December, 2010, until judgment and thereafter at the rate of 10% per annum until the whole judgment debt is paid. d. Regular and uninterrupted payment of salary and allowances from 1st December, 2012, until Either Party Terminates the Employment in accordance with Clauses b & c of the letter of Offer of Employment dated 6th March, 2008, including any review upwards of conditions of service of employees of the Defendant from 1st December, 2008 e. Cost of the action. Claimant's General Form of Complaint was accompanied by Statement of Facts, Written Statement on Oath of the Claimant, List of Witness to be called at trial as well as List and copies of documents to be relied on at the trial of this case. Defendant's Statement of Defence was filed on 19th December 2012. It was filed by one Obafemi Awoyemi of AXIOMS Solicitors. The Statement of Defence was accompanied by a Written Statement on Oath of Defendant's witness and List of Witnesses. On 25/1/13, Claimant filed a Reply to statement of defence which was dated 11/1/13. It is important for me to add that by a letter dated 9/10/13, learned Counsel for the Defendant, Obafemi Awoyemi, applied for the Certified True Copies of the record of proceedings in this case. The said CTC was received on 17/10/13 by one Adedokun Akintayo. I need to add at this stage that learned Counsel for the Defendant did little if at all to assist the Court in quick dispensation of justice in this matter. Indeed on two occasions in the course of hearing this case orders of cost were made against the learned Counsel. Counsel did not see any reason for him to obey these orders yet no step was taken by him either to set same aside or appeal against same. I have said it before and will not hesitate to say it for the umpteenth time that obedience to orders of Court is one of such professional courtesies traditionally expected from the Bar to the Bench. Failure by a Counsel to obey orders of Court is no doubt qualifies as species of professional misconduct in the legal profession. A learned Counsel who disobeys the order of a Court certainly does deserve to be given an audience by that Court or indeed any other Court for that matter. This is merely an aside. The case for the Claimant was that he was employed by the Defendant as a Steward and Cook on n initial salary and allowances of =N=480,000.00 which was increased to =N=720,000.00 per annum; that his compensation was reviewed upward by a letter dated 11/6/08; that his employment was confirmed by a letter dated 18/9/08 and that he never received query or warning from any superior officer of the Defendant including the Managing Director. Claimant further averred that he was posted to a new office of the Defendant where he reported on 22/12/08 at exactly 7:40 am but the Managing Director of the Defendant, Mr. Adolor Uwamu, furiously assaulted him without asking why he was he was late for about ten minutes; that despite that he knelt and explained that his lateness was caused by traffic hold up Defendant's Managing Director arrogantly ignored his plea for mercy and ordered the security personnel to bundle him out of the premises; that he continued to go to the premises of the Defendant but security personnel told him there was an order of Mr. Adolor Uwamu never to allow Claimant do his legitimate duty at the premises; that he was entitled to receive any increment by way of condition of employment review accruing to any employee since December, 2008 and that he had suffered tremendous hardship as his family could not feed once a day since his salary was suspended. The case for the Defendant was that the Managing Director of the Defendant gave clear and unequivocal oral instructions to the Claimant terminating his contract of service with the Defendant which termination was meant to take immediate effect; that Claimant was instructed by the Managing Director of the Defendant to go to the Admin/Human Resources Manager of the Defendant to receive his letter of termination of employment but he failed/refused to do so; that the Managing Director of the Defendant did not assault the Claimant in anyway whatsoever and neither did he order the security personnel to beat or otherwise physically del with the Claimant. It was also the case for the Defendant that upon the Claimant being informed of the termination of his appointment, Claimant became hysterical and getting to disturb the peace of the entire office environment hence Managing Director of Defendant called in the security to prevent the Claimant from further remaining on the premises and that Claimant is not entitled to the reliefs sought in his statement of claim. On 22/7/13, Claimant opened his case and testified in his case as a sole witness. CW1 adopted his written witness deposition dated 23/11/12 as his evidence in this case; stated that he was a staff of the Defendant; that his appointment was confirmed; that because of his hard work and dedication to duty, his compensation was reviewed upward even before his appointment was confirmed; that though he was willing to work but was always refused entrance to Defendant's premises by security staff on the order of the Managing Director of Defendant. Claimant tendered 4 documents as exhibits. These are 1. Letter of Offer of Employment dated 6/3/08-Exh. CW1; 2. Letter of Compensation Review dated 11/6/08-Exh. CW2; 3. Letter of Confirmation of Appointment dated 18/9/08-Exh. CW3 and 4. Letter of Demand from Claimant's Counsel dated 13/12/10-Exh. CW4. Under cross examination, Claimant testified that he is still a staff of the Defendant; that he reports for work every day but was always refused entrance; that his employment was confirmed; that his letter of employment did not state that his employment was for life or till he retire; that he did not agree that lateness to work for ten minutes could be issue for misconduct and that he was not directed to pick any letter at the Human Resources Office. In re-examination, Claimant stated that when he was given his letter of employment his expectation was to work with the Defendant till he retires. This case was adjourned couple of times at the instance of the Defendant for it to open its case. On 18/2/14, consequent upon an application by learned Counsel for the Claimant, this Court, pursuant to Order 19 Rule 10(3), National Industrial Court Rules 2007, closed the case of the Defendant and ordered learned Counsel to file and serve their final written addresses in accordance with the Rules of Court. Although there were evidence of service of Claimant's final written address on learned Counsel for the Defendant, learned Counsel did not file any written address. Claimant's final written address is a 6-page document dated 6/3/14 and filed on 10/3/14. In it learned Counsel set down 4 issues for determination as follows: 1. Whether ten minutes lateness to duty can constitute termination for cause in Clause B of Offer of Employment to deprive Claimant of right to two months notice in writing of termination of employment if Defendant intended to terminate the employment. 2. Whether a Party to a contract set out in clear terms thereof in a written document can be allowed to employ oral evidence to vary, subtract from and/or contradict the terms of the written document. 3. Whether Defendant can file and rely upon a purported termination letter of employment at the address level in contradiction to Order 9 Rule 1(c) of the Rules of Court. 4. Whether on the preponderance of un-contradicted oral and documentary evidence in this suit, the Claimant is not entitled to judgment. Arguing issue 1, learned Counsel submitted that a ten minutes lateness by the claimant cannot constitute termination for cause within clause c of the conditions of service in the offer of employment of the claimant as to deprive the claimant of his entitlement to two months notice if and when the defendant decides to terminate the employment. Counsel argued further that claimant had just been promoted and his emolument increased to =N=720,000.00 for hard work and diligence and there had not been any warning or query from any superior officer of the defendant. Counsel urged the court to hold that the action of the defendant in suspending the claimant is in total breach of the claimant's right as enshrined in the offer of employment voluntarily endorsed by the defendant and that the claimant is and has been the steward and cook of the defendant. On issue 2, learned Counsel submitted that it is the law that where parties to an agreement have set out the terms thereof in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument relying on UBN Ltd v. Sax Nigeria Ltd (1994)8 NWLR (Pt. 361) 150 and section 131(1), Evidence Act, 2011. With respect to issue 3, it was the submission of the learned Counsel that the defendant cannot at this level of final address be allowed to file and rely on any purported document whether letter of termination of employment having failed to avail itself the opportunity to file any document to be relied upon in accordance with Order 9 Rule 1(c), National Industrial Court Rules, 2007. Counsel urged the court to so hold. On issue 4, Counsel submitted that having regard to the preponderance of unchallenged evidence tendered by the claimant both oral and documentary, he urged the court to enter judgment in favour of the claimant. According to counsel, when the evidence of a plaintiff is unchallenged, the plaintiff is entitled to judgment, citing American Cyanamid Co. v. Vitality Pharmaceutical Limited (1991)2 NWLR (Pt. 171) 15 at 18. Regarding award of interest, Counsel submitted that a he although it is in the discretion of the court to award interest, he urged the court to award interest as claimed. I read all the processes filed by learned Counsel on either side in this case and listened also to the oral submission of the learned Counsel for the Claimant in Court amplifying his final written address. I have also had opportunity to review and evaluate all the exhibits tendered by the claimant in support of his claims. I need to reiterate the fact that the defendant in this case apart from filing its statement of defence, cross examining the claimant at trial, did not enter into its defence and neither did it file any final written address. This is despite the overwhelming evidence of proof of service on its Counsel. The fact remains that the Court has no power whatsoever to compel a party to defend an action or file any process for that matter if it does not feel like doing so. In much the same vein, the Court cannot compel a party to file an action for its adjudication. Notwithstanding the four issues set down for determination by the claimant, l have come to narrow the issue for the determination of this case to be - Whether the Claimant is still a staff of the Defendant; and if this issue is answered in the negative what are the entitlements of the Claimant in the circumstances of this case, if any? There is evidence before me pointing to the fact that Defendant employed the Claimant. See Exh. CW1(Letter of Offer of Employment) dated 6/3/08. That document contained, among others, remuneration package as well as 'Other Conditions'. Clauses b and c under 'Other Conditions' relate to issue of termination. The clauses provide thus: '(b) The company may terminate this appointment by giving a two month's written notice to you (save in respect of termination for cause, in which case no notice will be due). '(c) You may terminate this appointment by giving a two month's written notice to the company or payment of two month's salary in lieu of notice. The law is trite that contract of employment is the basis and foundation for a relationship between an employer and an employee and parties are bound by the terms of their agreement See BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR-9339 (SC). The truth of the matter is that the Court will not go outside this contract in determining the relationship or determining any issue that may arise between the parties but would rather consider the facts and the law and thereby give effect to their necessary intention of the parties, see S. E. Co. Ltd v. NBCJ (2006)7 NWLR (Pt. 978) 201. Now in Exh. CW1 either party has the right to determine the relationship between them. This right is exercisable by the giving of a two month's notice which notice must be in writing. Still within the said Exhibit, while Claimant may pay two month's salary in lieu of notice, Defendant appears to be under compulsion to give a written notice. Also under Clause b of Exh. CW1, Defendant may dispense with two month's written notice 'in respect of termination for cause'. Unfortunately, there is nowhere in Exh. CW1 or any exhibits tendered before me where an explanation is given of the meaning and ambit of 'termination for cause'. Exh. CW1 was prepared by the Defendant. The terms, conditions and the entire contents of that document were acceptable to the Defendant. Claimant merely agreed to them and signed as accepting same. By clause b of that document, Claimant was entitled to a two-month's written notice for the Defendant to terminate Claimant's appointment. That was not done by the Defendant. Such an act amounts to a breach of contractual terms of employment as contained in Exh. CW1. I so find and hold. Now, not having complied with the terms relating to termination of employment of the Claimant, is the Claimant still in the employment of the Defendant? Is the Claimant still a bona fide staff of the Defendant for all intents and purposes? It is the duty of the court to construe the surrounding circumstances and determine the intention of the parties from same. Can it be said from the circumstances of this case and can the Court hold that Claimant is still a staff of the Defendant? The law is trite that no court will force an unwilling employee on an a willing employer. In much the same vein, the Court will not force a willing employee on an unwilling employer. While cross examining the Claimant on 29/10/13, learned Counsel to the Defendant suggested to the effect that Claimant was shot out of the premises of the Defendant because the management of Defendant could no longer tolerate the Claimant. Though Claimant appropriately reacted by saying that was not the correct position, l find ample evidence to believe the Claimant. By Clause g of Exh. CW1, Claimant was on a probationary period of six months following which his appointment may be confirmed and so informed in writing. Yet within three months of his appointment and before confirmation of his appointment, his compensation was reviewed upward to almost double from =N=480, 000.00 to =N=720,000.00 per annum by Exh. CW2. The reason for this was contained in paragraph 2 of Exh. CW2 where the Defendant thanked the Claimant 'for your hard work and diligence in the course of work for the Seawolf Companies'. Certainly the content of Exh. CW2 is not consistent with the conduct of a staff whose conduct the Management could no longer tolerate. Neither is such a suggestion also consistent with a staff whose averment that '... I have never received a warning or query from any superior officer of the Defendant including the Managing Director' remained unchallenged and un-contradicted either by oral or documentary evidence. In my view and the law is settled and reiterated by the Supreme Court in Ugwuanyi v. NICON Insurance Plc (2013)LPELR-20092 that where evidence given by a party to any proceedings was not challenged by the opposite party who had opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it. See also Ogunyade v. Oshunkeye & Anor. (2007)7 S.C. (Pt. 11) 60. In a master/servant relationship, it is part of the duty of the employee to be willing and ready to discharge his responsibilities under the contract. He must be able, willing, ready and present himself physically for same. The employer on the other hand has a corresponding duty to among other things allow the employer an ample opportunity and make the environment conducive to discharge his duties and responsibilities. Where therefore the employee is willing and able but the employer's conduct becomes both unbearable and intolerable for the employee to discharge his duty; or where the employee is not afforded opportunity and space to discharge his duty under the contract of employment, then such is construed as constructive termination which is often referred to as constructive dismissal. As Lord Kerr pointed out in GISDA CYF v. Barratt (2010) LPELR-17827 (UKSC) a contract of employment could be terminated by one party without the other party actually aware of the termination. One of such instances is situation of constructive termination as in the instant case. The legendary Lord Denning M.R made an exposition of the position of the law in Western Excavating (ECC) Ltd v. Sharp (1978)Q.B 761 thus- 'If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound y one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, the he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once'. The case of Ebere Ukoji v. Standard Alliance Life Assurance Co. Limited Unreported Suit No:NICN/LA/48/2012 which judgment was delivered on 26/3/14 is a good authority for the proposition that the doctrine of constructive termination or constructive dismissal is applicable within the Nigerian labour and employment law regime. See also Oladosu Ogunniyi: Nigerian Labour and Employment Law in Perspective, Folio Publishers Limited, Ikeja, 2004. 2nd Edition pp. 462-464. In the instant case, in paragraph 9 of his witness statement on oath, Claimant averred that though he continued going to the premises of the Defendant to work, the security personnel said there was an order of Mr. Adolor Uwamu never to allow him do his legitimate duty on the premises. The same fact had been averred to in paragraph 10 of the Statement of Facts as follows: 'But notwithstanding the assault and the shame, the humiliated Claimant continued to go to the new place of his work to perform his lawful duties but the security personnel on instruction of the Managing Director, refused his entry into the premises.' In his evidence in chief on 22/7/13, Claimant stated that ''although l go to the Defendant's place every morning, l am always refused entrance by the security staff on the order of the Managing Director of the Defendant''. Claimant was willing and ready to discharge his contractual obligation. He presented himself for work every morning but was always refused entrance to do his work on the instruction of the Managing Director of the Defendant. This evidence remained unchallenged and un-contradicted. The law is trite that unchallenged and un-contradicted facts need no further proof. See Ugwuanyi v. NICON Insurance Plc (2013)LPELR-20092. From the available evidence before me, l find and hold that this case is an appropriate one for the application of the doctrine of constructive termination. I so hold. Relief d sought by the Claimant is for 'Regular and uninterrupted payment of salary and allowances from 1st December, 2012 until Either Party Terminates the Employment in accordance with Clauses b & c of the letter of Offer of Employment dated 6th March, 2008, including any review upwards of conditions of service of employees of the Defendant from 1st December, 2008'. To grant this relief will amount to forcing the willing employee on an unwilling employer. No Court will do that. This Court will also not do that. See Adebayo Sunday Joseph & Ors. v. Kwara State Polytechnic & Ors (2013) LPELR-21398 (CA). In answering the first leg of the issue set down for determination therefore, I find and hold that the Claimant is no longer a staff of the Defendant his employment having been constructively terminated by the unbearable conduct of the Defendant from the date of this judgment. The second leg of the issue set for determination relates to the entitlement of the Claimant in the circumstances of this case, if any. I have held that the employment of the Claimant has been constructively terminated by the unbearable conduct of the Defendant. The constructive termination is without the giving of the requisite notice. No doubt a Claimant is entitled to all outstanding salaries and allowances up till the date of constructive termination. By Exh. CW2, Claimant's compensation package was increased from =N=480,000.00 to =N=720,000.00 per annum. There is evidence before me that Claimant was not paid for the month of December 2008. From December 2008 to September 2014 is six years multiplied by =N=720,000.00. That comes to =N=4,320,000.00. I therefore find and hold that Claimant is entitled to be paid and here order Defendant to pay to the Claimant the sum of =N=4,320,000.00 being the outstanding salaries and allowances of the Claimant from December 2008 to September 2014. This is within the relief b of the Claimant. The relief c of the claimant is for interest at the rate of 25% per annum from 1st December 2010 until judgment and thereafter at the rate of 10% per annum until the whole judgment debt is paid. In relation to pre-judgment interest, N.M.B. Ltd v. Aiyedun In. Ltd (1998)2 NWLR (Pt. 537) 221 is a good authority for the proposition that the law treats the holder of such funds as a borrower of it on which interest must be paid. With regard to post-judgment interest monetary judgment attracts interest even where none is claimed, see Diamond Bank Ltd v. P.I.C. Ltd (2009)18 NWLR (Pt. 1172) 67. In any event award of post-judgment interest is sanctioned by the Rules of this Court, see Order 21 Rule 4, National Industrial Court Rules, 2007. I thus hold that the judgment sum awarded in this case shall attract 10% interest from the day the sum becomes due and payable. The last relief sought by the claimant is Cost of the action. There is no evidence led as regards this relief. There is however evidence as earlier indicated that the Court awarded some cost against the Defendant in the course of this trial which cost was not paid. In the circumstance, Defendant is ordered to pay the sum of Two Hundred Thousand Naira only (=N=200,000.00) as cost of this suit. Finally and for the avoidance of doubt, l hold as follows: 1. That Claimant is no longer a staff of the Defendant his employment having been constructively terminated by the unbearable and intolerable conduct of the Defendant from the date of this judgment. 2. That Claimant is entitled to be paid and the Defendant is ordered to pay to the Claimant the sum of =N=4,320,000.00 being the outstanding salaries and allowances of the Claimant from December 2008 to September 2014. 3. That interest of 10% is awarded as payable on entire judgment sum from the day the total sum becomes due and payable. 4. Cost of Two Hundred Thousand Naira (=N=200,000.00) is awarded payable by the Defendant to the Claimant. The total sum payable under and by virtue of this judgment shall be paid within Fourteen (14) days from the date of this judgment. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge