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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HERLORDSHIP HON. JUSTICE OYEWUMI.O.O DATED 29TH OF JANUARY, 2015 SUIT NO: NICN/LA/344/2012 BETWEEN IFELAYO KAFARU - CLAIMANT AND RELIANCE TELECOMMUNICATIONS LIMITED - DEFENDANT REPRESENTION- Olayinka Owoeye with him are David Abegunde, Akintola Olaniyi, Sani Saheed and N.E Agada (Miss) for the Claimant. V.I Okafor with him are C.C Njoku, C.J Umeh and Chukwuma Edechime for the Defendant JUDGMENT The claimant was employed by the defendant as a Mechanical Engineer on the 1st day of February, 2007 till 1st of December, 2011. The defendant by a letter dated 30th of November, 2011, placed the claimant on compulsory leave without pay with instructions to fill out an exit clearance form and return all defendant’s properties within his possession. The grouse of the claimant is that he had not been paid his salary and terminal entitlement for seven (7) months from April 2011 to November, 2011 excluding August).The claimant stated that prior to being placed on compulsory leave, he had been posted to Kaduna to work on temporary basis and was neither paid his outstanding allowance nor transfer allowance. Upon completing the exit clearance and return of the defendant’s properties, the claimant’s arrears of salary, housing and leave allowances and entitlements was not paid to him. His salary in lieu of notice was not paid to him despite his request for same, he then instructed his solicitors to do a formal letter of demand to the defendant. After, several letters to the defendant, they replied on the 23rd day of February stating that the demand made for by the claimant was receiving due attention and that they would soon revert back as soon as possible. However the defendant did not make any positive move as regards the dues of the claimant. The claimant’s solicitors made another letter of demand on the 13th of March, 2012 to the defendant but they neither responded nor paid the claimant’s entitlement. It is in the light of this that he caused a General Form of Complaint on the 13th of July, 2012 to be filed against the defendant praying for this relief: 1. The sum of N1,194,894.00 (One Million, One Hundred and Ninety Four Thousand, Eight Hundred and Ninety Four) being the aggregate amount (covering outstanding Salaries, Salary in lieu of notice and terminal entitlements) due and payable to him. During trial, claimant testified for himself and tendered in evidence documents which were admitted and marked as Exhibit IK1 – IK11 The defence on the other hand, did not file any pleading in response to the claimant's Statement of Facts, inspite of the fact that several adjournments were granted to enable it do same. Hence the defence was foreclosed. The Court after granting adjournments at the instance of the defendant to enable it defend his case but failed or refused to do so, allowed the claimant to file his final written address on the 24th of June, 2014 and adopted same on 20th of October, 2014, wherein he framed a sole issue for the court’s determination; 1. Whether the claimant has sufficiently proved his claim as to be entitled to have judgment entered in his favour. Learned claimant's counsel submitted that in a civil action a party must plead facts and support same with evidence to prove thereof. He cited the case of PURIFICATION TECHNIQUE (NIG) LTD V JUBRIL [2012] 18 NWLR (PT. 1331) PG. 109 SC. Continuing, he submitted that it is evinced on the records before the court, that the claimant has sufficiently discharged the burden of proof placed on him. That where a party testifies on a material fact and if the adverse party fails to cross-examine him on same, it is deemed that the adverse party accepts such evidence. He cited the case of ADESULE V MAYOWA [2011] 13 NWLR (PT 1263) 135 AT 170. Counsel submitted that the willful neglect of defendant to file a defence as well as cross-examine the claimant ought to be accepted by the court as they require no further proof and it thus settled law that facts admitted needs no further proof. He cited the case of POPOOLA V BABTUNDE [2012]7 NWLR (PT. 1299) PG 302 AT 331. It is counsel’s contention that parties are bound by terms of their contract and a contract of employment is not an exception. He cited UBN V SOARES [2012] 11 NWLR (PT 1312) 550. He submitted that by exhibit IK1 the claimant’s letter of employment dated 24th of January, 2007, the claimant is entitled to one month’s salary in lieu of notice. Counsel submitted that the claimant has sufficiently proved his claim and is entitled to judgment in his favour. Having perused the processes filed, the sworn deposition of the claimant, evidenced adduced and the written address, the only issue begging for the court’s verdict is whether or not the claimant has proven his case to entitle him to the reliefs sought. It is pertinent to state that it is on record that one Chukwuma Edechime and one Chris Njoku both legal Practitioners of Veritas Chambers appeared at different times for the defendant but did not defend the suit brought against it despite the service of court processes and hearing notices issued and served on it. It is settled law that unchallenged evidence must be believed by the court unless such evidence is manifestly unreliable. See OGUNYADE V OSHUNKEYE [2007] ALL FWLR (PT 389), 1175 AT 1192-1193.The decision of the court goes one way since there is nothing against the evidence given by the claimant. However, the claimant is not absolved from evidential proof to discharge which lies on him. See OGUNYADE V OSHUNKEYE Supra. It is the case of the claimant that he was employed by the defendant as a Mechanical Engineer on the 1st day of February, 2007 till 1st of December, 2011. By a letter dated 30th of November, 2011, he was placed on compulsory leave without pay with instructions to fill out an exit clearance form and return all defendant’s properties within his possessions. That he had not been paid his salary and terminal entitlement for seven (7) months from April 2011 to November, 2011 excluding August) and the claimant’s arrears of salary, housing, leave allowances and entitlements was not paid to him. His salary in lieu of notice was not equally paid to him despite his request for same. It is trite that in a master servant relationship, an employer has the right to terminate his servant’s employment for good or bad reasons or for no reasons at all. The basic issue considered normally in the resolution of a dispute between a master and his servant is whether the contract of service is determined in accordance with the way and manner the terms of employment was couched. See. JIMOH IKHILE V FEDERAL AIRPORT AUTHORITY OF NIGERIA [2014] 44 NLLR (PT.139) 164. It is worthy of note that the only document that would be considered by the Court as the representing the terms of employment of the claimant is his letter of employment i.e. exhibit IK1. The Court will not go outside the terms enshrined in this letter. The terms expressed and agreed to by both parties includes his salaries and allowances, Notice on termination which is one month notice or one month salary in lieu of notice from either of the parties. Exhibit IK2 dated 30th of November, 2011, i.e the letter of termination of claimant's employment, states the mode in which the claimant’s contract of employment was determined. It is hereunder reproduced for avoidance of doubt thus-- ''Wednesday, November 30th, 2011 IFELAYO KAFARU ENGINERRING KADUNA Dear IFELAYO KAFARU, COMPANY RESTRUCTURING The Board and Management of Reliance Telecommunications Limited wishes to inform you that it has embarked on a Restructuring/Re-financing exercise which is very expedient for the long term sustainability of the company. In view of the above, it has decided to temporarily shut down locations and operations, to achieve cohesive coordination of the processes. I am therefore compelled to inform you to proceed on compulsory leave without pay effective 1stDecember, 2011. All company properties in your possession are to be forwarded to your Business Unit Coordination (BUC) or Ag. National Sales Coordinator. The company reaffirms its commitment to the restructuring exercise geared towards reviving the company that all of us love so much. You will duly be notified when the full operations will resume. The finance department has been advised to compute your entitlements after a clearance report from your BUC or Divisional head as the case may be. We implore you to stay positive and check from time to time on the latest development. Much obliged for your kind understanding. Yours faithfully, For: Reliance Telecommunications Ltd Trading as ZOO Mobile Edwin Moore Momife Managing Director/CEO'' The defendant urged the claimant to proceed on compulsory leave without pay. There is no term in exhibit IK1 stipulating that the defendant has power to so do. Their reason as evinced in the letter is that the defendant is embarking on a restructuring exercise of the company. This can also be likened to suspension of the claimant without pay and there is equally no such provision in the terms of employment of the claimant. Suspension according to the Court in the case law authority of AKINYANJU V UNIVERSITY OF ILORIN [2005] 7 NWLR (PT. 923) 87, is to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. Thus to ask the claimant to proceed on compulsory leave without pay or any act contrary to the terms of service is contravention of the contract of employment. The law is also that where there is no justification for putting an employee on hold, he is to be paid his salary, or other half of his salary if he is put on half pay. See ACB LTD V UFONDU [1997] 10 NWLR (PT. 523) 169. In this instance the claimant's employment was halted without pay. The law is that the defendant shall pay the salary of the claimant from the period his employment was put on hold uptill the time he is called back, or up till the time of this judgment. Considering the circumstances of this case, it is the finding of the court that the employment relationship between the claimant and the defendant has been determined by the conduct of the defendant. I so find and hold The claimant in this suit claims the sum of N1, 194,894.00 (One Million, One Hundred and Ninety Four Thousand, Eight Hundred and Ninety Four) being the total amount (covering outstanding Salaries, Salary in lieu of notice and terminal entitlements) due and payable to him. The claimant tendered Exhibit IK10, the Exit Clearance wherein the defendant computed the claimant's outstanding salaries for seven months that is from (April to November excluding August) in the sum of N447,087, salary in lieu of notice in the sum of N63, 441.00, housing allowance in the sum of N229, 824.00 and leave allowance in the sum of N43,092.00 all summing up to N780,444.00. The defendant having failed to controvert the claimant’s evidence is deemed to admit same and thus believed by the court as it is the law of common, that fact admitted need no further proof. See N.B.A V MABAWONKU [2013] 15 NWLR (PT. 1378) P. 603 AT P 620. Thus the claimant is entitled to the sum ofN780,444.00. It is the contention of the claimant that he is entitled to the sum of N414, 450.00 being Out of Station allowance and expenses. However, same assertion was not led in evidence as the onus of proving that he is entitled to such allowance rests clearly on the claimant’s shoulders to satisfy the court by adducing evidence in prove of same. It is settled law that he who asserts must prove and facts not led in evidence goes to no issue. See. MR. S. ANAJA V UNITED BANK FOR AFRICA PLC [2014] 4 ACELR 78. Hence claimant’s claim for the sum of N414, 450.00 fail and therefore discountenanced. In conclusion, it is my finding that the claimant’s claims succeed in parts. For the avoidance of doubts the claimant shall be entitled to the following; 1. It is declared that the defendant's order directing the claimant to proceed on compulsory leave without pay is wrongful. 2. The claimant shall be paid the sum of N780,444.00 being the total sum of his outstanding salaries for seven months that is from (April to November excluding August), and one month salary in lieu of notice, Housing and leave allowances. 3. The claimant is not entitled to the sum of N414, 450.00. 4. The sum of N 50,000 is awarded to the claimant as cost of action this action. 5. All the judgment sum shall be paid within 30 days of this judgment failing which 10% interest per annum shall be paid. Judgment is accordingly entered. Hon. Justice Oyebiola O. Oyewumi Judge.