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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 18th December, 2014 SUIT NO: NICN/ABJ/115/2013 Between: Mr. John O. Amah Claimant AND Impresit Bakolori Plc Defendants REPRESENTATION Claimant present. Defendant absent; Yagazie Obinna Esq. for the claimant; Kola Oyedotun Esq. for the defendant. JUDGMENT By a complaint dated and filed the 8th day of May 2013, the claimant endorsed on his complaint a claim as follows (1) A declaration that the termination of the appointment of the claimant was unlawful, ultra vires, wrongful and of no effect. (2) An award of N2,799,100.00 being the total entitlement due to the claimant (3) An award of N500.000.00 being cost of this suit. (4) An award of 10% monthly interest on the entire judgment till same is fully liquidated. The claimant frontloaded his processes in accordance with the rules of court. The defendant entered appearance and also file his defence alongside his frontloaded processes in line with the rules of court. On the 2nd of December 2013, the claimant opened his case by calling only one witness and closed his case. The lone witness in the person of the claimant himself adopted his witness statement on oath and tendered the following exhibits (1) Witness statement on oath as exhibit JOA 01 (2) Letter of appointment is exhibit JOA 02 (3) Redundancy latter is exhibit JOA 03 (4) Claimant pay slip for June 2012 is exhibit JOA 04 (5) Solicitors letter is exhibit JOA 05 In cross examination, claimant told the court that he was employed by the defendant on 1st May 1980 and was given over N4M when he was disengaged on 31st January . 2003 6) The slip for February 2003 was tendered as exhibit JAO 06. Claimant stated that he was declared redundant in 2003 but recalled after seven years and was on grade level 10 when he was then declared redundant. Upon the recall, he was placed on level 8 in 2010 and he did not question the management decision in that regard. Claimant testified that Exhibits JOA 03 and 04 were collected to facilitate his case in court. The claimant was paid for August 2011 but was not paid for November 2012. The claimant rejected the letter dated December 13 2012 on a termination that was back dated to 20th June 2012 as he claimed that his employment was terminated in October 2012. Claimant stated further that his first appointment which lasted 23 years fetched him N4M from the defendant when he was declared redundant as he rejected the sum of N810,600 for the second employment /recall when he was also declared redundant, This money was rejected because, according to claimant, it does not reflect all the money being owned him including his 14 months’ salary arrears. The claimant therefore closed his case. After three adjournments at the instance of the defence to open his case and they were unable, the defence counsel finally decided to close its case by resting its case on the claimants case. On the 30th of September 2014, the parties adopted their final written addresses. In the claimants final written address, counsel formulated a lone issue for determination as follows: “Whether the claimant has proved his case to entitle him to judgment in line with his claim” Counsel submitted that the answer to the lone question is in the affirmative. Counsel stated that since the defendant did not call any evidence or witness all the averment and evidence of the claimant remain unchallenged. Counsel called in aid the case of Omoregbe Vs. Daniel Lawani 1981 3-4 SC 108 at 117; provost of LACOED Vs. EDUN 2004 Vol. 4 MJSC 94 ratio 4 Mainagge Vs. Haddad 1973 11 SC 35 Vol. Gwanima 2004 Vol. 12 MJSC 34. Counsel urged the court, based on the authority of Odulaye Vs. 11 MJSC to enter judgment in favour of the claimant. In his Final Written Address counsel for the defendant Mr. Kola Oyedotun formulated the following issues for determination namely (1) Whether the claimants entitlement was unlawful, ultra vires, wrongful and of on effect from the evidence before the court. (2) Whether the claimant is entitled to the sum of N2 799,100.00 as his total entitlement from the evidence before the court. On issue one, counsel submitted that the onus of proof on issue of wrongful termination of employment rest squarely on the claimant . Counsel cited the case of Agbi Vs. Ogbe 2006 NSCQR 1257 at 1277. Counsel contented that having admitted the facts pleaded in paragraphs 5 of the defendants statement of defence including exhibit JOA 06 and the redundancy letter Exhibits JOA 03, the court should act on them. He cited the case of Govt Akwa Ibom Vs. Uma 2006 FWLR Pt. 110 at 1793. Counsel contended further that since there is no prima facie case made out against the defendant there is no need for the defendant to call any witness. Counsel cited Obijiaku Vs. Offiah 1995 7 SC NJ 142. Counsel contended that issues of this nature where the defendant rest its case on the claimant needs a minimal proof, but contended that a defendant in such a circumstance will be entitle to judgment where the claimant did not lead evidence on a material fact and the evidence adduced is so patently discredited. He cited the case of Agbaje Vs. Agba Akin 2002 11 NWLR Pt. 778 397. Counsel urged the court to hold that the termination of claimant was lawful and the effective date is on 20th June 2012. On issue two, Mr. Oyedotun submitted that earned salary must be proved strictly as special damage which the claimant has refused or failed to prove in this case. Counsel call in aid of this principle A.G Oyo Vs. Fairlakes Hotels Ltd No.2 1989 5 NWLR (Pt. 121) 255 Counsel contended that claimant has not specifically and specially proved arrears of salaries for July 2011 to October 2012. Counsel contended that base on exhibits JOA 04 and JOA 06, the claimant is only entitled to the sum of N810,000.00 In conclusion, counsel submitted that an applicant who alleges that his contract of employment has been wrongly terminated has the onus to prove (1) The terms of the contract of employment (2) What manner the said term were breached by the employer and since he has not so proved, the court should dismiss the claim. Counsel also stated that if there is no notice given, the claimant is only entitle to the amount equivalent to the period of notice. He cited the case of Ologunde Vs. Carnaud Metal Box Toyo Glass Nig PLC 2004 & FR 44 at 56. Counsel further submitted that the claimant has not proved the issue of N500,000 claim specially and specifically and as such it should fail. He prayed the court to dismiss the entire claim of the claimant. I have painstakingly listened and read the entire submissions of counsel and the authorities cited. The defence has rested it case on the claimants. The implication in law is that the defendant has a complete answer in law to the case of the claimant as the claimant has not made out any prima facie case to warrant him calling any evidence in rebuttal. Once a counsel makes this announcement and addresses the court on it he must stand by his submission. See Atugbue Vs. Chime and Others 1963 All NLR 208. The legal position therefore is that the defendant is bound by the evidence called by the claimant. Consequently, where the defendant offered no evidence, the claimants evidence before the court under such circumstances clearly flows one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the claimant. The onus of proof in such a case is discharged on minimal proof. See the case of Broadline Ent. Ltd Vs. Moneterey corp 1995 9 NWLR (Pt. 417) 11 where however the defendant fails to call evidence the claimants is not relieve of his responsibility to prove his case. See the case of Munchika Chika Vs. Yahaya 2000 7 NWLR Pt. 301. In civil matters, the fate of every case depends on the pleadings and the evidence in support. The duty of the court therefore is to assess the evidence before him to see whether or not the claimant has discharge the burden of proof in a case before him. The standard of proof in a civil claim is proof on balance of probabilities see the case of FBN Vs. Onu kwugha 2005 16 NWLR Pt. 950 120 at 153. In the case of Newbreed Organisation Ltd Vs. Erhomosele 2006 5 NWLR (Pt. 974) 499 the court said “ when a defendant refuses to adduce evidence in his defence and rest his case on the evidence of the claimant, then he has himself to blame if the trial court finds for the plaintiff based on his evidence …..” An employee who seeks a declaration that the termination of his employment was wrongful must prove the following material facts (1) That he is an employee of the defendant (2) The terms and conditions of his employment. (3) The way and manner and by whom he can be removed. (4) The way and manner the terms and conditions of his employment were breached by his employer. See the case of NRW Ind Ltd Vs. Akingbulugbe 2011 11 NWLR 125 7 CA. It is not the duty of the employer to prove any of these facts. See Adams Vs. LSDPC 2000 5 NWLR (Pt. 656) 291; Afribank Nig Plc Vs. Osisanya 2000 I NWLR (Pt. 642) 592; Emokpae Vs. Uniben 2002 17 NWLR (Pt. 795) 139. The term and condition of an engagement can be in several documents. The letter of appointment exhibit JOA 02 is one of them. The staff hand book or any other document containing the senior staff conditions of service which was referred to in exhibits JOA 02 and 03 are not tendered or produced in this case. The condition stated in Akingbulugbe’s case cited above are not mutually exclusive. They must all co exist and must be proved by a claimant to entitle him to judgment. Exhibit 02 shows that the parties to this suit had a contract of employment. The terms and condition before the court are as stated in exhibit 02, the letter of appointment. The way, manner and by whom the claimant can be removed are absent; the way and manner the terms and conditions of his employment have been breach has not been proved before this court as the senior staff condition of service has not been placed before the court. He who asserts must proved. By Afribank Nig Plc Vs. Osisanya 2000 I NWLR Pt. 642 592 an employer is not bound to give reasons for terminating the appointment of his employer. Given a reason for the termination the onus lies on the employer to establish that reason. See the case of Angel shipping and Dyeing Ltd Vs. Ajah 2000 13 NWLR (Pt 685) 532. The claimant has not proved that the reason stated in exhibit 03 being redundancy is false. The defendant declared the claimants position redundant as from 20th June 2012. There is also no evidence before the court to show that the letter of redundancy exhibit 04 was received on the 13th of December 2012 but since the claimant has raised this issue as to the date of receipt of the redundancy letter, the onus shift to the defendant to show that in fact the letter was delivered and received on the 29th of June 2012. Since the defendant has failed to adduce any evidence to contradict or disprove this position but rather choose to rest its case on that of the claimant, I hold that the letter of redundancy was brought to the attention of the claimant on the 13th of December 2012 as testified by him; it should also be reminded that any pleading filed by the defendant which is not supported by evidence is deemed abandoned. The claimant is claiming half salary and full salaries for several months covering approximately fourteen months but there is no single pay slip tendered to show the half salaries received or the regular salaries received by him. The court, in this circumstance is then placed in a very difficult situation as to the actual amount of which the claimant is entitled to and how much he is entitled to as salary per month. There is no bank print out, neither is there any pay slip or correspondence. Moreover, the evidence is exhibit 01 stating the salary per month do not tally with the one in evidence in exhibit 02. Throughout the trial, there is no evidence of pension fund, bonus or leave allowance. There is also no evidence of N500, 000 being claimed as cost of this suit. No evidence whatsoever was led on these heads of special claims and special damages. It is trite law that special damages can only be proved strictly. I hold that all the prayers and claims in that regard fails. See the case of UTB Vs. Ozoemena 2007 All FWLR Pt. 358 at 1014. Based on the evidence before the court, I hold that exhibit JOA 04 containing the pay off allowance which is the net pay of N810,600.00 has been proved before the court. Judgment is therefore entered as follows; (1) The claimant is entitled to the pay off allowance of N810,000.00 from the defendant . (2) All other heads of claims fails and they are dismissed. (3) I award a cost of N50,000 in favour of the claimant and against the defendant; this judgment shall be satisfied within 30 days from today or else it shall attract 10% interest per annum. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge