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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: September 22, 2014 SUIT NO. NICN/PHC/68/2013 Between Barrister Mrs. Ezinne Onoh - Claimant And Petro-Energy Resources Limited - Defendant Representation: F. O. Omosigho; with him, E. U. Akor for the Claimant B. U. Ejesu, with the brief of G. C. N. Okocha, for the Defendant JUDGMENT The claimant took up a complaint dated and filed on the 23rd day of May 2013 against the defendant praying for the following reliefs – The sum of Four Million, One Hundred and Seventy Nine Thousand, Four Hundred and Ninety Naira (N4,179,490.00) only, with breakdown as follows: a) One month consolidated salary in lieu of notice – N168,800.00 b) End of Service benefits for 5yrs and 8 months – N956,533.00 c) Contributory Pensions for 19 months – N338,580.00 d) Lunch Subsidy – N964,500.00 e) Gratuity for 5years and 8 months – N673,200.00 f) Interest rate at 23percent of N338,580.00 being and representing pensions contribution from the 1st day of August 2011 till judgment is delivered in this suit, thereafter 10% of the Judgment sum until the judgment sum is liquidated. g) The sum of 1 million Naira as general damages for the difficulties, hardship that the act of the defendant has exposed the Claimant. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. On the 25th day of September 2013, the matter came up for the first time in court. Even though the defendant did not enter appearance, one Mrs. C. N. Okafor appeared for the Defendant, and gave an indication of their willingness to explore settlement. Subsequently, the Defendant never appeared again, either to report settlement or to defend the action. The Claimant through its counsel, after a number of adjournments without progress, indicated that settlement had broken down, and the case was subsequently set down for hearing. The Claimant on the 3rd day of February 2014 filed a further list of document to be relied on. The case proceeded to hearing on the 10th day of January 2014. The Claimant testified on behalf of herself as CW1; and she tendered eight (8) exhibits admitted as Exhibits C1 – C8. Hearing was concluded by the 10th day of February 2014, and at the close of the case for the Claimant, the defendant having not filed any appearance or defence processes, was on the application of Counsel to the Claimant, foreclosed from defending the action, in accordance with Order 19 rule 2 of the Rules of this Court. The Claimant was ordered to file her written address in accordance with Order 19 Rule 13 of the Rules of this Court. Leave was also granted to the defendant to file its written address if any, in accordance with the Rules. The Claimant’s written address which was filed on the 19th day of March 2014 vide a motion for extension of time was served on the defendant on the 20th day of March 2014. The brief facts of the case as distilled from the pleadings and the testimony of the Claimant, is that she was first employed by the defendant as a Legal/Personnel Officer on the 1st day of August 2007 at an agreed monthly salary of N100,000.00 (One Hundred Thousand Naira) only. She was confirmed on the 30th day of July 2008, and on the 20th day of December 2009, her monthly salary was reviewed upwards, to the tune of N160,000.00 (One Hundred and Sixty Thousand Naira) only. On the 20th December 2010, the Claimant’s salary was again reviewed up to N168,800.00 (One Hundred and Sixty Eight Thousand, Eight Hundred Naira) only, with a new designation of head, Legal/Human Resources. The Claimant’s claims are governed by the defendant’s Staff Condition of Service which was admitted as Exhibit C5. The Claimant testified that the defendant on the 1st day of March 2013 issued her a redundancy letter (Exhibit C7) to the effect that her services were no longer required. This Claimant stated was done without due regard to the Staff Conditions of Service, hence this action. The Claimant’s final written address raised the following two (2) issues for the determination of the court: 1. Whether from the adduced evidence, the Claimant has proved her case against the Defendant. 2. Whether the Claimant is entitled to the Claims as sought. On issue one, it was the submission of the Claimant that a claim is circumscribed by the reliefs claimed. The duty of Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same, she may at the end of the day obtain all the reliefs claimed or less. She never gets more, nor does she obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. She referred the court to the case of Gabriel Ativie vs. Kabel Metal Nigeria Ltd. (2008) 3 FWLR SC 4117 @ 4119 ratio 1. Counsel to the claimant submitted further that the evidence of the Claimant remains unchallenged since the defendant has refused, failed and neglected to adduce evidence in its defence. The implication in law of an unproven defence is that it has no defence or the defence is deemed abandoned. He referred the court to the case of Newbreed Org. Ltd. vs. Erhomosele (2006) 2 SC (Pt. 1) 136 @ 150 paras. 5 – 40. It was counsel’s further submission that in all civil suits, the onus to prove particular facts or a case in general is on the party who asserts, and since civil suits are determined on the balance of probability and preponderance of evidence, a party who proves his/her case will obtain judgment based on such preponderance of evidence and balance of probability in his/her favour. See Newbreed Org. Ltd. vs. Erhomosele (Supra). The position of the law is that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it unless it is palpably incredible. See Iyere vs. Bendel Feed and Floor Mill (2008) 7 – 12 SC 151 @ 187. Both the statement of claim and Claimant’s deposition in this suit were never challenged nor controverted in any way by the Defendant. Counsel therefore asked the Court to accept the evidence of the Claimant as the only evidence in this matter and act on them. Claimant’s claims are provided and supported by Defendant’s Condition of service (Exhibit C5) as follows: (a) One month Consolidated Salary in lieu of Notice. See Section 2, paragraph 4.1, page 8, under the heading “Termination”. (b) End of Service Benefits for 5 years and 8 months period which Claimant was in the Employment of the Defendant. See Defendant condition of service Exhibit C5 Section 2 (S.2.10.2): “Any personnel who has faithfully discharged his/her duties, rendering continuous service, to the company for a period of three (3) years and above, shall be entitled to receive end of service benefit, being one month gross pay for each completed year of service, provided he has not been summarily dismissed”. (c) Contributory Pension for 19 months. See paragraph 5 of the Statement of Claim: “That from the 1st day of August, 2011 to the 31st day of March 2013, the Defendant deducted from the Claimant’s basic salary, her Contributory Pensions for the period aforementioned without remitting same to the Claimant’s Retirement’s Savings Account. The Bank Statement of the Retirement Saving Account of the Claimant is hereby pleaded”. See Exhibit C6 which is the bank statement of Claimant’s retirement savings account, to show that Defendant did not remit the Deducted contribution to the Claimant’s Retirement saving Account. Counsel then made copious reference to Section 11 of the Pension Reform Act 2004 No. 2. (d) On lunch Subsidy; see S.4 (4.5) of Defendant’s condition of service Exhibit C5 (e) On gratuity for 5 years and 8 months, see Section 3(3.11) of the condition of service. (f) On housing, see Section 4 (4.2) of the Defendant’s condition of service Exhibit C5. (g) On utility; see Section 4 (4.4) of Exhibit C5. (h) On transport Allowance; see Section 4 (4.3) of Exhibit C5 The Claimant went on that when an employee asserts that his/her employment has been wrongfully terminated, he/she has the duty to place before the court the terms of the contract of employment and to prove in what manner the said terms were breached by the employer. In this case, it is the case of the Claimant that her appointment was wrongfully terminated by the Defendant. That the Defendant terminated her employment without following the provisions of the conditions of service, Exhibit C5 and within the period her entitlements due to her has not been paid, and those entitlements are provided for and supported by Exhibit C5. See the case of Akihfe vs. UBA (2007) 3 FWLR (Pt. 385) CA 5271 @ 5275 ratio 3. It was submitted that the Defendant did not follow the procedure as in the Defendant’s condition of service i.e. Exhibit C5 and Labour Act. In the case of Morton Sundour Fabrics Ltd vs. Shaw (1966) 2 K.I.R. 1 DC, it was held that a warning of possible termination of the contract is not the kind of notice required to bring a contract of employment to an end. Counsel referred the court to Section 11 of Labour Act (1974). By Section 2.10.1 of Exhibit C5, either the Company or the employee may terminate the contract of employment on the ground that a notice to that effect was made in writing, stating the intention. It is outside the province of the court to look for terms of termination other than from the contract. See Texaco Nigeria Plc vs. Kehinde (2002) FWLR (Pt. 94) 143 @ 157 CA. The court’s attention was drawn to Exhibit C5; and the court was urged to note that the Defendant did not at all follow the procedure laid down in the conditions of service especially in section 2 (4.1) page 8 with the heading “Termination” Section 2 (2.10), with the heading “Resignation/Employment Termination” and the whole section 3, with the heading “Benefits” they were discountenanced and breached by the Defendant. Counsel stated that what the law requires from a Complainant who asserts that his Employment/Appointment is wrongfully terminated is for the employee to place the terms and conditions or contract before the court and prove the manner of breach of the terms: NITEL Plc vs. Ocholi (2001) FWLR (Pt. 74) 254 @ 2 81 – 2,288, 288 – 9 CA. On issue two whether the Claimant is entitled to the claims sought, it is the case of the Claimant that her employment was terminated without due notice given to her. Section 2, (2.9) page 8 of Exhibit C5 provides for one month notice or one month salary in lieu of notice. The Claimant’s employment was however terminated by the Defendant through Exhibit C7, without notice or one month basic salary in lieu as provided by Defendant’s condition of service. In cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. Relying on the case of ZIIDECH vs. Rivers State Civil Service Commission (2001) FWLR (Pt. 46) 821 CA, counsel submitted that the only remedy is a claim for damages for wrongful dismissal. Where there is no provision for notice of termination in the condition of service, the law presumes reasonable Notice or payment of Salary in lieu thereof. And in case of wrongful termination, damages are the servants’ appropriate remedy in law. See the case of ZIIDECH vs. Rivers State Civil Service Commission (2001) FWLR (Pt. 46) 821 CA. On the measure of damages for wrongful termination of employment, Counsel submitted that in an action for damages for wrongful dismissal as in this case, which is grounded on breach of contract of employment, the normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it. He referred the court to the case of Shell Petroleum Company of Nigeria Ltd. vs. Mr. Joseph Ifeta (2006) 4 SC (Pt. 1) 136. All that the Claimant is claiming are her entitlement at the period she was still in the employment of the Defendant. In concluding, the Claimant’s counsel cited the case of Gabriel Ativie vs. Kabel Metal Nigeria Ltd. (Supra) and the case of Ifeta vs. Shell (2006) 4 SC (Pt. 1) 136 @ 162 para 30, and urged the court to act on the evidence before it and grant the claim of the Claimant as contained in the Statement of Claim and the Writ, as the Claimant has proved her case as required by law, and her evidence being unchallenged, remains the only evidence before the court. I have considered the totality of the evidence before the court. After granting a number of adjournments to enable the parties settle this matter, the claimant’s counsel informed this court on 28th November 2013 of failure of settlement. The matter consequently proceeded to hearing on the claimant’s case alone as the defendant did not file any process nor call evidence in this suit. The counsel to the claimant adopted his written address on 16th June 2014 and this suit was adjourned to the 24th July 2014 for judgment, a date which could not hold due to the intervening event of the Judiciary Staff Union Strike and the subsequent Court vacation. Meanwhile, the defendant filed a motion on notice dated 24th June 2014 together with terms of settlement between the parties and signed by the parties and their respective counsels. The defendant has sought the leave of this court to enter the terms of the settlement as the judgment of this court in the suit. Before I proceed to rule on the motion and consider the terms of the settlement as executed by the parties, it is necessary to first examine the case presented by the claimant before this court to which the terms of the settlement is intended to replace. It is the case of the Claimant that she was employed by the defendant on 1st August 2007 and have since remained in the employment until 1st March 2013 when she was given Exhibit C7 terminating her employment. It is the claimant’s contention that by the terms of the condition of service of the defendant, she is entitled to one month notice of termination or one month salary in lieu of notice. The claimant’s case is that she was not given a month’s notice and neither was any salary in lieu, including other sums she was entitled to at the time of her termination, paid to her. These are the sums the claimant now claims in this suit. From the claimant’s case, as shown on the statement of facts, she does not claim under alleged wrongfulness of termination of her employment, rather her suit is to recover sums lawfully due to her by virtue of her employment. This indication is obvious in paragraph 13 of the statement of fact including the reality that no relief for a declaration of wrongfulness of her termination is sought in the Complaint. The issue to be determined in this suit therefore is whether the claimant is entitled to the sums claimed. To appreciate the claims of the claimant, it is necessary to set them out again, even at the risk of repetition. Her claims against the defendant are- a. One month consolidated salary in lieu of notice – N168,800.00 b. End of Service benefits for 5yrs and 8 months – N956,533.00 c. Contributory Pensions for 19 months – N338,580.00 d. Lunch Subsidy – N964,500.00 e. Gratuity for 5years and 8 months – N673,200.00 f. Interest rate at 23percent of N338,580.00 being and representing pensions contribution from the 1st day of August 2011 till judgment is delivered in this suit, thereafter 10% of the Judgment sum until the judgment sum is liquidated. g. The sum of 1 million Naira as general damages for the difficulties, hardship that the act of the defendant has exposed the Claimant In order to be entitled her claims, the burden of proof is on the claimant to prove her how she became entitled to the sums claimed. It is her case that she is entitled to the sums by virtue of the terms of the condition of service of the defendant. The claimant is therefore expected to give cogent evidence of the claim and the conditions of service of the defendant on which she relies. See NITEL PLC vs. OCHOLI (2001) FWLR (Pt. 74) 254 at 281. She testified that at the time of her termination, the entitlements due to her were not and has not been paid to her. The claimant tendered the condition of service of the defendant and it was admitted in evidence and marked exhibit C5. The exhibit is the condition of service of the defendant company and the evidence of the claimant shows that the terms of exhibit C5 governs her employment with the defendant since the time of confirmation of her employment. The claimant has further pleaded and particularized the claims in paragraph 6 of the statement of facts and has also given evidence to support the claims. It is her evidence that the sums are what she is entitled to up to 31st March 3013. The claimant claims the sum of N168,800.00 as one-month’s salary in lieu of notice. Section 2 (2.9) at page 8 of Exhibit C5 provides for one month notice or one month salary in lieu of notice. The Claimant’s employment was terminated by the Defendant through Exhibit C7 dated 1st March 2013 indicating that the termination takes effect the same day, without giving one-month notice or payment of one-month salary in lieu of notice. It is trite that an employer can terminate the appointment of its employee at any time but conditions prescribed for termination must be followed. See SHELL PETROLEUM CO. LTD vs. IFETA (2001) FWLR (Pt. 80) 1614 at 1629. In this case, since Exhibit C7 does not meet the criteria of one-month notice, the defendant is expected to pay the claimant 1 month salary in lieu. The defendant, in Exhibit C7, did offer to pay the claimant a computed sum as End of Service Benefit. This, it is clear, is not the expected 1 month’s salary to be paid to the claimant. In paragraph 6 of the statement of fact, the claimant has set out sums representing her monthly consolidated salary- including basic, housing, utility, security and transport as covered in Section 4 of exhibit C5- to the tune of N168,800.00. This is the sum the claimant now claims from the defendant as one-month salary in lieu of notice. The other various sums claimed by the claimant in reliefs b, c, d and e are supported by the defendant’s condition of service and statute. The claimant is entitled to these claims by virtue of the terms of Exhibit C5 in the manner set out as follows- i. The claimant claims for End of Service Benefits for 5 years and 8 months period which the Claimant was in the Employment of the Defendant are supported by section 2 (2.10) of exhibit C5, having spent above 3 years in the employ of the defendant. The defendant has admitted the entitlement of the claimant to this claim in exhibit C7. ii. The claimant testified that her contributory pension for upward 19 months was deducted by the defendant but the defendant failed to remit both the claimant’s and the defendant own part of the pension contribution to the claimant’s Retirements Savings Account. Exhibit C6, which is the Claimant’s retirement savings statement of account, was tendered in evidence to buttress the assertion. In view of the mandatory provision of section 11 (5) b, of the Pension Reform Act 2004, the defendant is liable to the claimant’s on this claim. This claim is also supported in section 3 (3.12) of exhibit C5. iii. The claimants claim for gratuity for 5 years and 8 months is supported by Section 3 (3.11) of exhibit C5. iv. The claim for lunch subsidy is supported in section 4 (4.5) of exhibit C5. v. As for reliefs f and g, the claimant’s claim for 23% interest on the pensions contribution and 1 million Naira general damages are not supported by exhibit C5 and she has not proved these claims. Generally, claim for interest has to be pleaded and proved while it is settled that general damages are not awarded in master/servant relationship. As a consequence, the claimant is not entitled to the claims. The defendant did not defend this suit nor did it call any evidence in this suit. CW1 was also not cross examined by the defendant. The effect is that the evidence of the Claimant is unchallenged and uncontroverted. I find the evidence adduced by the claimant to be credible and I am disposed to accept and act on it. See IYERE vs. BENDEL FEED AND FLOOR MILL (2008) 7 – 12 SC 151 at 187. The terms of Exhibit C5 were not observed by the defendant when it terminated the Defendant’s employment and I find that the claimant’s benefits have not been paid to her. I am of the view that the claimant has proved her case and should ordinary be entitled to judgment as per her complaint. However, I am inclined to consider the grant of the claims of the claimant in another angle, in view of the intervening event that has now come up, which is the motion on notice and the terms of settlement that have now been filed by the defendant. It is a rule of practice that parties may settle their dispute in the course of trial. Such a settlement is a compromise which the parties then submit to court for its blessings, in the form of judgment. I must mention that the claimant has no objection to the motion. This gesture, coupled with the fact that the claimant has subscribed to the terms of settlement, is indicative of the fact that she has elected to forego the rights accruing to her under the findings of the court and accept something less in the interest of peace. I am of the view therefore that the reliefs sought in the motion ought to be granted and they are accordingly granted. The terms of the settlement, which is dated 23rd June 2014, contain the follows terms- 1. That upon execution of this agreement, the Defendant shall pay to the Claimant the sum of N1,954,246.00 (One Million, Nine Hundred and Fifty-Four Thousand, Two Hundred and Forty-Six Naira) only, (the receipt of which the Claimant hereby acknowledges) in full and final settlement of all the Claimant's claims in this suit. 2. That the Claimant shall upon receipt of the above amount extract the sum of N338,580.00 representing her unremitted contributory pensions for 19 Months and remit same into her Pension Account. 3. That the Claimant has agreed to accept the payments above as full and final settlement of any claim she may have with respect to the above subject-matter and drop her claims in this suit and all other claims relating to or arising out of her employment with the Defendant. 4. Both parties have voluntarily agreed to these terms herein contained and since the earlier leave of court obtained for settlement of this suit out-of-court had elapsed, shall apply for another leave of court to enter this agreement as consent Judgment on behalf of both Parties. The defendant’s motion has annexed to it an Access Bank cheque No. 00000027 for the sum of N1,954,246.00 in the name of the claimant and an acknowledgment of receipt of the sum signed by the claimant as the full and final settlement of her claims in the suit. This indicates that the claimant has already received the sum. In view of the fact that the terms of settlement is a contract where new rights are created between the parties in substitution for the claims pending before the court, notwithstanding my findings in this case, since the parties have resolved to be bound in this suit by the terms as agreed by them, I hereby order as follows:- 1. The sum of N1,954,246.00 (One Million, Nine Hundred and Fifty-Four Thousand, Two Hundred and Forty-Six Naira) only, paid by the defendant to the claimant and received by the claimant constitutes the full settlement of all the claimant’s claims in this suit. 2. The claimant is ordered to immediately remove the sum of N338,580.00 (Three Hundred and Thirty Eight Thousand, Five Hundred and Eighty Naira) only, representing 19 months pension contributions not remitted by the defendant, from the sum received from the defendant and pay same into her pension account. No cost is awarded. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge