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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT CALABAR BEFORE HER LORDSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: July2, 2014 SUIT NO.NICN/CA/107/2012 BETWEEN Chief Erim Ndoma Egodo - Claimant AND Nogak Polytechnics Ltd. - Defendant REPRESENTATION Chief O.N.Egodo, with him Mrs J Williams Nelson, E.J Udo for claimant. S.A.Mgbe for defendant. JUDGEMENT The claimant filed this complaint against the defendant on the 7th December 2012 claiming as follows: 1. The sum of N455,119.06k (Four hundred and fifty five thousand, one hundred and nineteen naira, six kobo) only being the outstanding balances of salary due to the claimant from the defendant for the period of 20 months at the rate of N22,755.98k (Twenty two thousand, seven hundred and fifty five naira, ninety eight kobo) only beginning from the month of January, 2010 to 2nd October 2012 when the said claimant’s appointment was suddenly terminated by the said defendant. 2. The sum of N663,170,95k (Six hundred and sixty three thousand, one hundred and seventy naira, ninety five kobo) only being arrears of salaries due to the claimant from the defendant for 13 months which was left unpaid at the rate of N51,013.15k (Fifty one thousand and thirteen naira, fifteen kobo) only permonth within the 33 months the claimant worked for the defendant as Registrar. 3. The sum of N197,800.09k (One hundred and ninety seven thousand, eight hundred naira, and nine kobo) only being another arrears of 7 months salaries due to the claimant from the defendant for the year 2009. 4. The sum of N1,377.000 (One million, three hundred and seventy seven thousand naira) only being salaries the claimant ought tohave earned from October, 2012 to December, 2014 at the rate of N51,013.15k (Fifty one thousand and thirteen naira, fifteen kobo) only per month for the unexpired period of 27 months had the claimant’s appointment not been abruptly terminated in October, 2012 by the defendant. 5. The claimant’s total claim is for the sum of N2,654,445.06k (Two million, six hundred and fifty four thousand, four hundred and forty five naira, six kobo) only. 6. And the sum of N5,000,000.00 (Five million naira) only being general damages for breach of contract of employment and embarrassment suffered by the claimant as a result of the abrupt termination of his appointment by the defendant without a just cause. Accompanying the complaint is the statement of facts, name of witness, witness statement on oath and documents to be relied upon. The defendant did not file a memorandum of appearance or a defence all through the trial of this action. On the 25th February 2013, S.A MgbeEsq appeared on behalf of the defendant and prayed for an adjournment to enable him file a statement of defence and accompanying processes. This he did not do. Hearing notices were served on the defendant before the commencement of trial and during trial. The claimant’s case on the pleadings is that he retired as director of the Cross River State Civil Service in 1999. He pleaded that he was first appointed into the defendant’s institution on 22nd October, 2008 as Senior Assistant Registrar on Salary Grade Level CONTISS II Step II; and onthe 22nd July, 2009 was offered appointment as Administrative Officer on Salary Grade Level HATISS 9 with a basic salary of N226,232.04k (Two hundred and twenty six thousand, two hundred and thirty two naira, four kobo) only per annum. He averred that heaccepted the appointment and worked in this position for one full year but was paid salaries for five months at the rate of N28,257.17k (Twenty eight thousand, two hundred and fifty seven naira and seventeen kobo) only leaving a balance of seven months salary in the sum of N197,800.09k (One hundred and ninety seven thousand, eight hundred naira and nine kobo) only unpaid till date. The claimant pleaded that in 2010, he was appointed the Registrar of the defendanteffective 4thJanuary, 2010 for five years in the first term subject to renewal on satisfactory performance and good conduct and he accepted the appointment.He averred that the appointment was as a result of the re-organization directed by National Board for Technical Education (NBTE) in its last visit/inspection of the defendant in December,2009. The claimant pleaded that he was placed on Salary Grade Level HATISS 14 Step 2 with a basic salary of N428, 182.92k per annum. He averred that through out his stay in the defendant as Registrarfor thirty three months, he was paid salary for twenty months at the rate of N28,257.17kwhich was Administrative Officers salary leaving a balance of N22,755,98k unpaid each month; that the balance of salaries outstanding is in the sum of N455,119.06 (Four hundred and fifty five thousand, one hundred and nineteen naira, six kobo) only for the period of thirteen months. He pleaded that he is entitled to be paid his arrears of salaries for outstanding thirteen months in full in the sum of N663,170.98k at the rate of N51,013.15k per month being the Registrar’s grade level as reflected in his appointment letter. The claimant averred that since his appointment as a Registrar was to last for 5 years beginning from 4th January, 2010 to 3rd January, 2015 he is entitled to payment for the unexpired period of twenty seven months he ought to have served the defendant had his appointment not been terminated suddenly in the sum of N1,377,355.00 at the rate of N51,013.15k only per month.The claimant pleaded that the defendant terminated his appointment on 2/10/2012 and had in the past had his appointment severally terminated for no just cause; but that each time the defendant re-engaged him because of his ability. He pleaded that by his appointment as Registrar, his correct grade level is HATISS 14 Step II. That other Registrars before himwere placed on the aforesaid grade level. The claimant pleaded that the defendant relied on the scheme of service for the Federal Colleges of Education and Federal Polytechnics of 1989 to fix its own staff salaries and allowances. The claimant pleaded that when he was not paid his full entitlement as a Registrar, he protested to the Acting Rector at the time. He pleaded that the Chairman of the defendant in a memo dated 16/2/2012 directed the Acting Rector to place him on salary grade level HATISS 14 Step II on monthly salary of N51,013.15k (Fifty one thousand and thirteen naira, fifteen kobo) only per month but the said Acting Rector refused till date. The claimant pleaded that upon the termination of his appointment as Registrar, he wrote demanding the payment to him of his claim of arrears of salaries for the period he served in the defendant’s service. When the defendant did not respond to his aforesaid letter, he engaged the services of Joseph A. Eyo& Company to write a reminder to the defendant but the defendant again did not respond. The claimant gave evidence in support of his case. His evidence in chief was by witness statement on oath and he adopted it. It was in the exact terms of the pleadings. At the proceedings of the 4th November 2013, the cross examination was adjourned to 16th January 2014 at the instance of the defendant who informed the court that his counsel was in the High Court. On the 16th January 2013, neither the defendant nor its counsel was present in court to cross-examine the claimant or open the case of the defence. The case was then adjourned for final address. On the 25th March 2014, the day fixed for adoption of final address, the defendant was present in court and was represented by EniOkoi who informed the court that they had filed a motion for extension of time to file a statement of defence. In a considered ruling, the court ordered the defendant to file its reply to the claimant’s final address. The defendant filed no reply. The claimant’s final address is dated 4th February 2014 and filed the same day. Counsel submitted that the defendant breached the terms of the claimant’s letter of appointment as its Registrar and that parties are bound by the terms of the contract of employment citing Isheno v Julius Berger Nigeria Plc [2012] 2 N.L.L.R 127 at 151, Osisanya v Afribank Nigeria Plc [2012] 2 NIL 214 at 231-232. He stated that the claimant was not given any notice before his contract was terminated and finally submitted that the defendant has admitted the allegations. I have carefully considered the originating process, the documentary evidence and written submissions. This is an action not defended by the defendant. The effect of a party’s failure to call evidence in defence of a claim against him is that he is presumed to have admitted the case made against him by the other party and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd [2006] Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316.This however does not mean automatic victory for the claimant because he must succeed on the strength of his case and not rely on the fact that there is no defence before the court. The absence of evidence by the defendant does not exonerate the claimant of the burden of proof placed on him by law. See section 131 (1) & (2) of the Evidence Act 2011, Ogunyade v Oshunkeye [2007] 15 NWLR (Pt 1057) 218. The claimant must adduce credible evidence worthy of belief. Evidence does not become credible merely because it is unchallenged. See Akalonu v Omokaro [2003] 8 NWLR (Pt 821) 190. The issue to be determined is whether or not the claimant has adduced credible evidence in proof of his claims. The claimant’s first and second letters of appointment (exhibits C3 and C4) are before the court together with the defendant’s Staff Conditions of Service & Pension Scheme.He was offered appointment with effect from 1st July 2009 as Admin Officer II and placed on HATTIS 9 with a basic salary of N226,232.04 for a probationary period of two years subject to confirmation on satisfactory performance and conduct. The evidence before the court as contained in exhibit C4 is that before the expiration of the two years probationary period, the National Board for Technical Education (NBTE) directed that the defendant be reorganized. Consequently the claimant was offered a new appointment as Registrar of the defendant with effect from 4th January 2010 on the following terms as contained in exhibit C4: The appointment subsists for 5years only in the first instance and may be renewed for another 5year term—only on satisfactory performance and good conduct. And it is subject to confirmation by the Appointment and Promotions Committee of the Governing Council of the Polytechnic in due course. You will be placed on Hattis Salary Grade Level 14 step 2 with a basic salary of N428,182.92 (Four Hundred and Twenty Eight Thousand, One Hundred and Eighty-Two Naira and Ninety-two Kobo) only per annum. The claimant was appointed for a term of five years with effect from 4th January 2010. He had only spent thirty-two months as Registrar when his appointment was suddenly terminated by the defendant. The law is settled that parties are bound by the terms of the contract they freely enter into. Therefore, the claimant is entitled to salary and allowances for the unexpired period of the five years term after his appointment was terminated on 2nd October 2012 amounting to N1,377,000.00 (One Million, Three Hundred and Seventy Seven Thousand Naira). The claimant is asking for the sum of N197,800 .09k as arrears of salary for seven months in the year 2009. This claim is refused because he was appointed on 1st July 2009 as Admin Officer and by the 4th January 2010 he was on a new appointment as Registrar. In effect he only worked for six months in 2009 in this position. The claimant has admitted that he was paid salaries for five months and is therefore only entitled to salary arrears for one month in this position. On the issue of payment in lieu of notice raised, I find that the claimant is entitled to one month’s salary in lieu of notice as provided in Paragraph 8.6.4.2 of the defendant’s Staff Conditions of Service & Pension Scheme. I hereby order that theone month shall comprise his basic salary together with allowances. The claimant has exhibited the breakdown of the defendant’s approved basic salary and allowances and the letters of demand he wrote demanding for his correct salary as Registrar and other salary arrears owed to him by the defendant. Also exhibited is the letter of demand written by his Solicitor to the defendant.From the totality of the evidence before me, I am satisfied that the claimant has adduced credible evidence and has proved his case. He is entitled to judgement. I hereby order the defendant to pay the following sums to the claimant: 1. The sum of N455,119.06k (Four hundred and fifty five thousand, one hundred and nineteen naira, six kobo) being the outstanding balance of salary due to the claimant from the defendant for the period of 20 months at the rate of N22,755.98k (Twenty two thousand, seven hundred and fifty five naira, ninety eight kobo) only beginning from the month of January, 2010 to 2nd October 2012. 2. The sum of N663,170,95k (Six hundred and sixty three thousand, one hundred and seventy naira, ninety five kobo) being arrears of salaries due to the claimant from the defendant for 13 months which was left unpaid at the rate of N51,013.15k (Fifty one thousand and thirteen naira, fifteen kobo) per month within the 33 months the claimant worked for the defendant as Registrar. 3. The sum of N1,377.000 (One million, three hundred and seventy seven thousand naira) being salaries the claimant should earn from October, 2012 to December, 2014 at the rate of N51,013.15k (Fifty one thousand and thirteen naira, fifteen kobo) only per month for the unexpired period of 27 months. 4. The sum of N28,257.17k (Twenty Eight Thousand, Two Hundred and Fifty Seven Naira and Seventeen Kobo) being arrears of one month salary due to the claimant from the defendant for the year 2009. 5. One month salary being payment in lieu of notice for termination of employment. 6. Cost of N20,000.00 (Twenty Thousand Naira) to be paid to the claimant by the defendant. 7. All sums are to be paid within 30 days from the date of this judgement. Judgement is entered accordingly. ------------------------------------------- Hon Justice O.A.Obaseki-Osaghae Judgement is entered accordingly. ---------------------------------------- Hon Justice O.A.Obaseki-Osaghae