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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon, Justice J. T. Agbadu-Fishim - Judge DATE: April 14, 2010 SUIT NO. NIC/3772008 BETWEEN 1. Akinfemiwa Akinyinka 2. Ibrahim Aliu - Claimants AND 1. More Time CO2 Gas Plant Limited 2. Prince Kehinde Adeniyi - Defendants REPRESENTATION K. O. Adebayo, for the claimants and with him is Miss V. E. O. Oni. Olufemi Awojide Esq., for the defendants JUDGEMENT The claimants brought this action by way of general form of complaint dated 9th June 2008 and claimed against the defendants as follows - 1. A declaration that the termination of the claimants' employment by the defendants is unlawful. 2. An order mandating the defendants to pay the 1st claimant the sum of N253, 200 as special damages. Particulars of special damages for the 1st claimant - 1. Annual leave allowance 2004-2007 N36.000. 2. Allowance in-lieu of annual leave 2004-2007 N150,000 3. One month's salary in-lieu of notice of termination N30,000 4. Pension (employer's contribution) N37,200 3. An order mandating the defendants to pay the 2nd claimant the sum of N312,720 as special damages :- Particulars of special damages for the 2n claimant - 1. Annual leave allowance 2001-2007 N47,520 2. Allowance in lieu of annual leave 2001-2007 N198,000 3. One month's salary in-lieu of notice of termination N30,000 4. Pension (employer's contribution) N37,200 4. An order mandating the defendants to pay the 1st claimant the sum of N500,000 (Five Hundred Thousand Naira) as damages for the mental torture, agony, loss of self esteem, deteriorating health and the inability to cater for his family members as a result of the termination of employment by the defendants and the various deprivation and exploitation pleaded in the statement of facts. 5. An order mandating the defendants to pay the 2nd claimant the sum of N500,000 (Five Hundred Thousand Naira) as general damages for the mental torture, agony, loss of self esteem, deteriorating health and the inability to cater for his family members as a result of the termination of employment by the defendants and the various deprivation and exploitation pleaded in the statement of facts. 6. An order of court mandating the defendants to comply with the Pension Reforms Act 2004 in respect of the claimants. Attached to the complaint, is the list of documents accompanying the complaint, and the list of two witnesses. The 1st defendant filed a statement of defence dated and filed on the 22nd July 2008 together with the list of documents accompanying the statement of defence and the list of 3 witnesses. The 1st defendant also raised a counterclaim in which it made the following claims against the claimants. COUNTERCLAIM (28) The 1st defendant has suffered the following injuries which the claimants are liable for: (a) cost of repairing electric motor which is N100,000.00. (b) loss of income arising from stoppage of production for 3 shifts atN500,000.00 per shift, equals Nl,500,000.00. Whereof the 1st defendant counterclaims against the claimants the total sum of N1.6million as special damages andN500,000.00 as general damages. The claimants filed a reply to the 1st defendant's statement of defence and counterclaim which is dated 21st August 2008 and filed on the 22nd August 2008. The case of the 1st and 2nd claimants is that they were employed by the defendants as Electrician on the 9th July 2004 and Technician on the 13th August 2001 respectively. That by a letter dated 15th December 2007, which was addressed to each of them, they were suspended indefinitely by the defendants without a prior query or any form of opportunity to defend themselves against the allegation contained in the letter of suspension. They further alleged that in the course of and all through their years of employment with the defendants they were never allowed to observe their annual vacations, were not paid their annual leave allowance, allowance in lieu of leave, they were exposed to very poisonous gases and were not allowed to participate in the new contributory pension scheme as provided in the new Pensions Reform Act 2004. They also stated that by a letter to each of them dated 18th December 2007, the defendants terminated their employment and only paid them the salary for 14 days and their own contribution to the new pension scheme for the period of October 2005 to September 2007. They alleged that the defendants have refused to pay other outstanding allowances particularly annual leave allowance, allowance in lieu of annual leave, one month's salary in lieu of notice of termination and the employers own contribution to the pension scheme as provided under the Pension Reform Act 2004. The case of the 1st defendant is that its operations were halted on the night of 14th December 2007 when its plant tripped off while the 2nd claimant was on duty and that the 2nd claimant informed the 2nd defendant of the fault. The 2nd defendant then instructed the 1st claimant to report at the plant and investigate the cause of the trip-off. That the 1st claimant discovered that the electric motor had got burnt but he failed to brief the 2nd defendant as to how production can be resumed. The 1st defendant alleged that this damage to the plant put a halt to its operations and it suffered loss of income arising from stoppage of production for three shifts. That it was the negligence of the claimants through their failure in exercising due care and diligence in observing the working of the electric motor in the production line that caused the damage. The 1st defendant alleged that the claimants have acted in ways that are inimical to its interest and that they have in the past received verbal warnings and several queries for their bad conduct and dereliction of duty. That the claimants after being placed on indefinite suspension demanded that the 1st defendant allow them withdraw their services which request was granted consequent upon which letters of termination were issued to the claimants. The 1st defendant claimed that it would have recalled the claimants back but had no power to compel their resumption of work after they decided to withdraw their services and alleged that the 2nd claimant re-applied to work as Plant Operator. It denied preventing the claimants from participating in the contributory pension scheme. In the course of proceedings, the 2nd defendant who entered a conditional appearance brought an application for an order dismissing the complaints of the claimants against him for non¬disclosure of any reasonable cause of action and on the ground that he is not a proper party to this suit. On the 27* January 2009, the court ruled that the claimants have established a cause of action against the 2nd defendant and that the 2nd defendant is a necessary and proper party to this suit and struck out the application. After the court's ruling, the defendants and their counsel were absent from the subsequent proceedings without any reason. Hearing notices were ordered to be issued and served on the defendants and their counsel at every subsequent sitting of the court on the 5th March 2009, 9n June 2009, 15th July 2009, 5th November 2009 and 4th February 2010. This was complied with by the court registry. From the records of this court the 2nd defendant did not file a statement of defence to this action and did not take any further steps to defend himself. In the course of hearing, the claimants decided not to lead oral evidence but to argue their case on the record. They were ordered to file their written address which was duly served on the defendants but they filed no response. Learned counsel to the claimants orally adopted the claimants address and raised the following issues for determination in the written address: (a) What are the terms and conditions of the employment contract between each of the claimants and the defendants?. (b) Has there been breach of the employment contract by any of the parties prior to the termination of the contracts by the defendants? (c) Was the defendants' termination of the claimants' employment wrongful? (d) If the court finds that either of the parties has breached the contract of employment and that the defendants' termination of the claimants' employment is indeed wrongful, what reliefs may the court award in respect of the breach and wrongful termination? In their submission, learned counsel to the claimants stated that contracts of employment are generally regulated by the Labour Act Cap LI LFN 2004, other federal statutes, the oral or written agreement between the employer and the employees and where applicable the common law. He cited the case of Nwaubani v. Golden Guinea Breweries Pic [1995] 6 NWLR (Pt. 400) 184 at 188, and section 91 of the Labour Act for the definition of "worker" and argued that the claimants belong to the category of workers not protected by the Labour Act in view of the nature of their duties described in paragraphs 1, 2, 3, 4 and 5 of the statement of facts, duties which can be described as technical. He submitted that the employment of a person not governed by Labour law will be governed by the common law and cited David Laja v. Kaduna Textile Mills Ltd Case No. NCH/37/69, which was reported and discussed in Nigerian Labour and. Employment Law in Perspective, 2nd Edition by Oladosu Oguniyi, at page 30. Counsel then came to the conclusion that each of the claimants' contract of employment will, therefore, be regulated by the agreement between the parties as well as the common law. He however stated that in view of the possibility of the court finding that the claimants still fall under the categories of workers protected by the Labour Act, relevant sections of the Labour Act which are applicable to their case shall be referred to. Counsel stated that the claimants' letters of appointment merely spell out the details of their monthly wages and allowances, length of probation, confirmation, length of notice to be given by either party in the event of termination of the employment contract and hours of work. He argued that other terms and conditions which may be applicable can be found from some extra-contractual sources written and unwritten such as circulars, internal memos, works rule books, pension schemes, notices pasted in place of work and employees handbook or employment manual. In this respect he referred to page 44 of the textbook on Nigerian Labour and Employment Law by Oladosu Oguniyi. He referred to the letters of salary increment dated 25 August 2006 written by the 1st defendant to the claimants, the letter dated 20th March 2008 from the 1st defendant to the office of the Public Defender where the 1st defendant responded to the issues of leave allowance, allowance in lieu of leave, one month's salary in lieu of notice of termination and submitted that they are relevant in determining the issue of the claimants' wages. He submitted that the Pensions Reform Act Cap. P4 LFN 2004, especially section 9(1 )(c) adds some additional terms and conditions to the employment contract between the claimants and defendants. That section 9(l)(c) makes each of the claimants entitled to a contribution of a minimum of seven and a half percent by the employer to each of the claimants' pension fund. Counsel also submitted that by section 9(3) of the Pensions Act, the defendants are required to have a life insurance policy in favour of the claimants for a minimum of three times the annual total emolument of each of the claimants. He also submitted that by virtue of the provisions of section 102 of the Pensions Act 2004, which defines "employee" and "employer", the claimants are "employees" while the defendants are "employers" as they have more than five persons in their employment. The claimants' counsel also argued that although the defendants have not included the employer's contribution to the claimants' pension fund and the life insurance policy as terms and conditions of the employment contract, the provisions of sections 9(l)(c) and 9(3) of the Pensions Reform Act 2004 have become terms and conditions of the employment contract since its commencement date. Also, citing the Labour Act LFN 2004, counsel contended that sections 1 - 11, 13, 14, 15, 16, 17, 18, 19 and 20 are relevant particularly sections 7, 9, 11 and 18. He also referred to section 29 of the Factories Act Cap. Fl 2004, as being relevant to the claimants' case due to the nature of the defendants' business and the averment of the claimants in paragraph 14 of the statement of facts reproduced as follows: 14. The claimants aver that in the course of and all throughout their employment with the defendants, the defendants:- (a) Never allowed them to observe their annual vacation. (b) Did not pay them their annual leave allowance. (c) Did not pay them allowances in-lieu of leave. (d) Exposed them to very poisonous gases. Learned counsel contended that in addition to express and statutory terms and conditions of an employment contract, there are also "implied terms" such as "customs and practice terms." He cited Daniels v. Shell BP Petroleum Development [1962] 1 ANLR 19 and stated that the courts have held in a plethora of cases that custom and practice terms to be implied into an employment contract must be known to both parties especially the employee and the custom must have been practiced with great notoriety. That it is a well known and notorious practice that employers pay their employees full monthly wages and allowances even when the employees are on annual vacation or in lieu of annual vacation. Counsel argued that another well known and notorious practice among public and private organizations is for employers to pay their employees "thirteenth month" or Christmas Bonus." That the compensation mentioned by the defendants in the letter dated 20th March 2008 to the claimants' counsel can best be regarded as the thirteenth month" or "Christmas Bonus" but cannot be regarded as pay for the period when the claimants ought to have been on annual vacation. In respect of issue b, learned counsel to the claimants submitted that in addition to the 2n defendant's failure to file a defence, the 1st defendant in its statement of defence and counterclaim has not properly denied the claims of the claimants. That merely denying the claimants averments in paragraphs 14 - 28 of the statement of facts and putting them to the "strictest proof does not amount to adequate denial of an averment in pleadings. He further argued that the defendants' letter dated 20 March 2008 to the claimants' counsel amounts to an implied admission by the defendants that they breached the terms and conditions of the contract of employment by refusing to allow the claimants observe their annual vacation, by failing to pay them their annual leave allowance and salaries in lieu of leave, by paying only the claimants' contributions to the Pension Scheme and not the employer's own contributions and failure to take out a life insurance policy for the claimants, hi respect of compliance with the provisions of section 29 of the Factories Act, counsel submitted that the defendants did not plead any fact showing compliance with the provisions. That the defendant's letter dated 20th March 2008 merely varied the quantity and rate of leave allowance claimed by the claimants and did not give any annual leave allowance to the claimants for the year 2006 - 2007 despite having worked up to and including December 2007. The claimants counsel then referred to section 135(1) of the Evidence Act which provides that he who asserts must prove and submitted that the claimants have fulfilled the requirements of the section while the defendants have not especially in respect of the 1st defendant's counterclaims and statement of defence which contain mere allegations not backed up with any form of proof. That the claimants' denials of the 1st defendant's allegations put these allegations in issue and places the burden of proof on the 1st defendant to prove its case, which burden the 1st defendant failed to discharge. In respect of issue 1(c), the claimants' counsel submitted that any of the parties to a contract of employment may lawfully terminate the contract with or without reason, and that even if a party has a reason, that party must comply with the termination procedures stipulated in the employment contract and where applicable, the relevant statutes and common law. He cited Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 at 394, and Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 579 and submitted that the letter of appointment for each of the claimants stipulates the procedure for termination either before or after confirmation. That the defendants by their conduct confirmed the appointment of the claimants by increasing their salaries in the letter written to each of the claimants dated 25th August 2006 and the letter dated 20th March 2008 written by the 1st defendant to the claimants' counsel. Counsel cited the case of AIhaji Baba v. Nigerian Civil Aviation Training Centre & anor [1991] 5 NWLR 192 and argued that the 1st defendant has not established the negligence alleged in the statement of defence against the claimants and so they are not liable for the counterclaim. Counsel further argued that the defendants' allegation of misconduct against the claimants is unsubstantiated as they were never queried, nor brought before an investigative/disciplinary panel. That the 1st defendant suspended the claimants based on the 2nd defendant's allegations without giving them any opportunity to defend themselves. Consequently the principles of fair hearing have been breached by the defendants. That the failure of the defendants to give the claimants one month notice or one month's salary in lieu of notice contrary to the contract of employment has rendered the termination wrongful in law. In respect of issue d, learned counsel to the claimants submitted that the 2nd defendant's failure to file a statement of defence amounts to an admission in law, while the 1st defendant's silence on the issue of special damages also amounts to an admission. That it is trite law and in accordance with section 75 of the Evidence Act LFN 2004 that facts either expressly admitted or deemed to have been admitted need no further proof. That the 1st defendant's partial admission of the claimants' claims in its letter dated 20th March 2008 does not amount to a denial of the claimants' special damages and that the letter is part of the pleadings of the claimants exhibited in order to show the defendants' partial admission of the claimants claims. Counsel submitted that the claimants have made out their case for special damages in respect of annual leave allowance, allowance in lieu of leave, and employer's contributions to the pension scheme. He also submitted that the claimants' claim for general damages is as a result of the various breaches of the employment contract committed by the defendants, which amount to severe deprivation, exploitation and inhuman treatment, loss of accrued benefits to the claimants from proceeds of the investments for which pension funds administrators are empowered by law to put the contributions. He cited Malik v. BCCI SA (in liquidation) [1997] IRLR 403. He also submitted that the claim for an order mandating the defendants to comply with the provisions of the Pensions Reform Act 2004 is a deserved remedy because it is meant to mandate the defendants to comply with the law by paying the employers contributions and the sums stipulated to be paid as life insurance policy to the pension fund administrators. Finally the claimants' counsel urged the court to grant the claimants' reliefs as contained in their statement of facts and discountenance the 1st defendant's counterclaims. We have carefully considered all the facts of this case, the processes filed, and the documentary evidence exhibited by the parties, and the arguments raised by counsel. The second defendant did not file a statement of defence to this action even though he was represented by counsel. It is trite law that where a defendant fails to file a statement of defence, he is taken to have admitted the facts pleaded by the claimants and admitted facts need not be proved. See Consolidated Res Ltd v. Abofar Yen (Nig) Ltd [2007] 6 NWLR (Pt. 1030) 221 at 231 andAgbaneho v. UBN [2000] 23 WRN 1 at 14. We, therefore, hold that the facts pleaded by the claimants have been admitted by the 2nd defendant and this court shall determine the legal effect of the admitted facts. The 1st defendant filed its statement of defence and counterclaimed against the claimants but did not lead any evidence in support of the averments in its pleadings on negligence and its counterclaim. Pleadings do not constitute evidence and mere averment without evidence in proof of the facts pleaded is no proof. It is, therefore, our considered view that the averments of the 1st defendant in the statement of defence and counterclaim have been abandoned and go to no issue. See Help Ltd v. Silver Anchor Ltd [2006].5 MJSC 171, Ifeta v. SPDC Ltd [2006] 7 MJSC 123. hi all of this, however, the burden of proof in terms of the duty of the claimants to prove their case on the balance of probability is not taken away. The other issues now left to be resolved are whether the claimants fall under the category of workers as defined in the Labour Act LFN 2004, whether there has been a breach of the relevant statutes under consideration particularly the Labour Act, Factories Act and Pensions Reform Act by the defendants and whether the termination of the claimants' employment was unlawful. By virtue of section 91 of the Labour Act, worker means: any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include - (a) any person employed otherwise than for the purposes of the employer's business; or (b) persons exercising administrative, execxitive, technical or professional functions as public officers or otherwise. The first claimant was employed as an Electrician in 2004 on a cumulative monthly salary of N20,000 which was increased to N30,000 on August 25, 2006, while the second claimant was employed as a Technician on an annual basic salary of N36,000 and other allowances totaling Nl0,000 on August 13, 2001. His monthly salary was also increased on the 25th August 2006 to N30,000 per month. There was no breakdown of the salary increase by the 1st defendant to the claimants and, therefore, we do not know if it was the basic salary or allowances that was increased. We do not think that the nomenclature of Technician and Electrician disqualifies the claimants from belonging to the category of workers protected under the Labour Act. The claimants do not belong to the category of persons exercising "administrative, executive, technical or professional functions as public officers or otherwise" envisaged by the Labour Act and we are of the view that their job description places them in the category of junior workers who are covered by the provisions of the Labour Act, The learned author Professor E. E. Uvieghara in his book, Labour Law in Nigeria (Malthouse Press Ltd: Lagos), 2001 at page 104 has this to say about paragraph (b) under the definition of the term 'worker' in section 91 of the Labour Act — The exception in (b) presents little or no difficulty. Although there are no definitions of the terms administrative, executive, technical or professional functions, there seems no doubt that these functions do not embrace manual labour or clerical work. Such functions will appear to mean not only possession of skill but also the power of supervising, managing, controlling or directing others. We agree with this viewpoint of the learned author. There is nothing suggesting that the claimants in this case possess the power of supervising, managing, controlling or directing others to warrant their not being covered under the term 'worker' in the Labour Act. To determine whether there has been a breach of the employment contract and relevant provisions of the Labour Act, Pensions Reform Act and Factories Act, we shall begin by looking at the claimants' letters of employment which are similar. The name and address of both employer and employee are clearly stated, the nature of the employment, the salary and allowances, period of notice to be given by any party wishing to terminate and working days and time are clearly spelt out. We find that there is compliance with section 7(l)(a) - (g) of the Labour Act which makes provision for written particulars of terms of employment. The claimants averred that the defendants never allowed them to observe their annual vacation and did not pay them their annual leave allowance and their allowance in lieu of leave. Section 18(1) of the Labour Act provides that 'Every worker shall be entitled after twelve months' continuous service to a holiday with full pay' while section 18(3) provides that 'it shall be unlawful for an employer to pay wages in lieu of the holiday mentioned in subsection (1) of this section to a worker whose contract has not been terminated'. The 1st defendant in its letter to the claimants' counsel dated March 20, 2008 resolved to pay the claimants all their leave allowances from July 2004 to June 2007 for the 1st claimant and from August 2001 to July 2007 for the 2nd claimant. This amounts to a breach of section 18(1) of the Labour Act. The 1st claimant is entitled to annual leave allowance from July 2004 to December 2007 when his appointment was terminated while the 2n claimant is entitled to annual leave allowance from August 2001 to December 2007 when his appointment was terminated. The claimants did not provide any evidence of the basis or how they arrived at their calculation of leave allowance whether contained in the 1st defendant's staff manual or any other document used as guideline in the 1st defendant company. Rather they exhibited their own calculation which is at variance with that of the 1st defendant contained in its letter dated March 20 2008 to claimants counsel. However, in the calculations of both the claimants and the defendants as exhibited by the claimants (see the document titled 'Petition of Messrs Akinyinka Akinfemiwa and Aliu Ibrahim: Re: Invitation for a Meeting with Office of the Public Defendant' dated 1811 January 2008 with accompanying attachments), both parties are in agreement on the basic salary of each of the claimants, which is: for the 1st claimant, basic salary of N6,000 per month for years 2004 and 2005, and N9,000 per month for 2006 and 2007; and for the 2nd claimant, N3,000 per month for years 2001 and 2002, N3,600 for 2003, N6,000 for 2004 and 2005 and N9,000 for 2006 and 2007. We shall use these figures as the basis of the claimants' severance pay. In computing the claimants' entitlements, we rely on the provisions of section 18(l)(a) of the Labour Act, which provides for full pay for at least six (6) working days. We adopt six working days as the claimants' annual leave entitlement using an average of twenty working days in a month. As the defendants have terminated the employment of the claimants, they are also entitled to be paid wages in lieu of annual leave for the same period. This accords with section 18(3) reproduced above. The claimants also alleged that the defendants did not allow them participate in the new contributory pension scheme as provided under the Pensions Reform Act 2004 and did not comply with the provision of section 9(1 )(c) and 9(3) of the Act which makes each of the claimants entitled to a contribution of a minimum of seven and a half percent by the employer and a life insurance policy for a minimum of three times their annual total emolument respectively. By a letter written and dated 26th December 2007 addressed to each of the claimants by the 1st defendant and titled pay-off, only the claimants' contribution to the 'pension scheme' from October 2005 to September 2007 is included in the severance pay. The employer's own contribution to the scheme is not included. This, in our opinion, does not presuppose that the 1st defendant did not make its own contribution to the pension fund and breached section 9(1 )(c) as a result of its refusal to pay its own share of the contribution to the claimants. In one breadth the claimants allege that they were prevented from participating in the new pension scheme, yet they were paid their own contribution to the pension scheme in existence in the 1st defendant company. At this juncture it becomes imperative to look at other provisions of the Pensions Reform Act. Section 39(l)(a) and (d) provides as follows: 39(1) Notwithstanding any other provisions in this Act, any pension scheme in the private sector existing before the commencement of this Act may continue to exist: Provided that - (a) the pension scheme shall be fully funded and in case of any defined contribution scheme, contributions in favour of each employee together with the attributable income shall be computed and credited to a retirement savings account opened for the employee; (d) every employee in the existing scheme shall be free to exercise the option of coming under the Scheme established under section 1 of this Act and his employer shall compute and credit to his account his contributions and distributable income earned as at the date the employee exercises such an option subject to the regulations, rules and standards established by the commission. As the claimants allege that the defendants prevented them from participating in the new pension scheme under the Pension Reform Act, and they were paid their own contribution to the 'pension scheme,' it is our considered view that the 1st defendant was operating its own pension scheme for its staff. By the provisions of section 39(l)(a) reproduced above, it is not unlawful for the 1st defendant to operate its own pension scheme as long as its operations come within the provisions of section 39. The claimants have not established how they were prevented by the defendants from exercising their option of participating in the new scheme under the Act as contained in the provisions of section 39(l)(d) above. The objectives of the new pension scheme as provided in section 2(a) and (b) of the Pensions Reform Act is to - (a) ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory or Private Sector receives his retirement benefits as and when due. (b) assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age. The 1st and 2nd claimants worked in the 1st defendant's company for three years and six years respectively. They were not retired but had their employment terminated. Section 3(1) of the Pensions Reform Act provides that "no person shall be entitled to make any withdrawal from his retirement savings account opened under section 11 of this Act, before attaining the age of 50 years." The ages of the claimants are not disclosed. By the provisions of section 39 of the Act, all private sector pension schemes have been brought within the regulatory frame work of the National Pensions Commission and the Act. There is no provision in the Pensions Reform Act that on termination of an employee, the contributions of both the employee and the employer should be paid to the employee. Rather section 13 of the Pensions Reform Act provides that where an employee transfers his services to another organization, the same retirement savings account shall continue to be maintained by the employee. Therefore, we find that the 1st defendant's refund to the claimants of contribution to the pension scheme is clearly not a provision of the Pensions Reform Act and runs counter to it. The claimants are not entitled to the 1st defendant's contributions to the pension scheme or to make any drawings from their retirement savings account until retirement and attainment of the age of fifty. In respect of the life insurance policy which the claimants allege the defendants never took out on their behalf, the burden of proof is on the claimants. In a civil case such as this, the burden of proof rests on the party who asserts the affirmative of a particular issue, whether the claimant or defendant. See Ibrahim v. Ojomo [2004] 4 MJSC 143 at 160. The claimants must discharge this burden of proof of non-compliance with the Pension Reform Act to the reasonable satisfaction of the court. This they have not done. The claimants also aver that the defendants exposed them to poisonous gases in the premises without taking the necessary safety precautions as provided in section 29 of the Factories Act and this led to their deteriorating health. The 1st defendant in its statement of defence admitted in paragraph 2 that it is engaged in the production of CO2 gas. The claimants have not led any evidence to support the type of exposure they allegedly suffered or their deteriorating health condition, neither have they proved that the 1st defendant failed to provide suitable breathing apparatus. The claimants cannot rely on the weakness of the 1st defendant's case. The next issue to be resolved is whether the termination of the claimants' employment is unlawful. The letters of appointment of the claimants provide that either party may terminate the employment contract by giving one month's notice. Section 11(1) and (6) of the Labour Act provides as follows: (1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. (6) Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice. The content of the claimants' termination letters is reproduced as follows: Termination letter As regards to your request that the management should terminate your appointment instead of the suspension given to you earlier, the management has critically thought over it and has approved the termination of your appointment with immediate effect. Your earlier suspension was due to the damage caused to the Gas Plant by you and your unruly behaviour to the management of the company after several warnings. You are therefore advised to hand over the company's properties in your possession to your Supervisor.... The letters were signed by the 2nd defendant for the 1st defendant. Where an allegation is made against a person, he must be given the opportunity to make his representation or defend himself. The 1st defendant is wrong to terminate the appointment of the claimants without giving them the opportunity to defend themselves against the allegation of negligence and indiscipline. Furthermore the period of notice of one month stipulated in the contract of employment was not complied with, neither were the claimants paid one month's salary in lieu of notice. We, therefore, hold that the termination of the employment of the claimants is wrongful. The claimants have made a claim for N500,000 for general damages for mental torture, agony, loss of self esteem, deteriorating health, deprivation and inhuman treatment. In the claimants' letters of employment it is stated that "we work from Monday to Saturday and on Public holidays." We find that the denial of annual leave entitlement to the claimants all through their years of service to the 1st defendant coupled with the 1st defendant's work days is inhuman and so a deprivation of the right to annual leave under section 18 of the Labour Act. This is, therefore, an unfair labour practice which this court cannot close its eyes to. There has been a violation of a legal right which entitles the claimants to an award of general damages and its quantum need not be pleaded or proved. See Alhaji Gari v. Seirqfina Nig. Ltd [2008] 2 NWLR (Pt. 1070) 1 at 19, per Ba'Aba, JCA. hi respect of the claimants' claim for special damages, we are guided by the Supreme Court decision in the case of CECTCS and ors v. Ikot [2000] 23 WRN 142 at 152, where Achike, JSC had tins to say: Where the head for special damages is not challenged, both in the pleadings and evidence, nor controverted and the said evidence was supported by pleadings and the nature of the evidence by its.very nature was quite credible, then the trial court has no option but to accept and act on it. As per the employment contracts between the parties and on the authority of sections 18 and 19 of the Labour Act, we make the following orders: (1) The defendants shall pay to Akinfemiwa Akinyinka, the first claimant, the following sums of money as special damages: (i) Nine Thousand Naira (N9,000) being one month's basic salary in-lieu of notice of termination, (ii) Seven Thousand, Five Hundred and Five Naira, Seventy-Five Kobo (N7,505.75) being annual leave allowance, (iii) Twenty-Five Thousand and Nineteen Naira, Eighteen Kobo (N25,019.18) being wages in lieu of annual leave, (iv) Ninety Thousand Naira (N90,000) being general damages for denial of leave entitlement for three years. (2) The defendants shall pay to Ibrahim Aliu, the second claimant, the following sums of money as special damages: (i) Nine Thousand Naira (N9,000) being one month's basic salary in-lieu of notice of termination, (ii) Ten Thousand, Two Hundred and Fifteen Naira, Sixty-Two Kobo (N10,215.62) being annual leave allowance, (iii) Thirty-Six Thousand, Nine Hundred and Thirty-Two Naira, Five Kobo(N36,932.05) being wages in lieu of annual leave, (iv) One Hundred and Eighty Thousand Naira (N180,000) being general damages for denial of leave entitlement for six years. The 1st defendant's counterclaim is hereby dismissed. Judgment is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge