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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE M. N. ESOWE 25TH FEBRUARY, 2015 SUIT N0: NICN/ABJ/30/2013 BETWEEN: MR. GODWIN JACK ……………………… CLAIMANT AND 1. TOTAL FACILITIES MANAGEMENT LIMITED DEFENDANTS 2. MR. JOSEPH ETIM REPRESENTATIONS 1) MIKE OMOSEGBON Esq., for the Claimant. 2) Defendant is not represented. J U D G M E N T The Claimant’s claims are as follows: i. The sum of N 1,000,000.00 (One Million Naira) being compensation for over time and leave allowances that remain unpaid and due to the Claimant since 2003 till 2012. ii. Damages of Nl, 000,000.00 (One Million Naira) iii. N500, 000.00 (Five Hundred Thousand Naira) being cost of litigation. INTRODUCTION: The claimant’s claims are as contained in his Statement of Facts dated 15th February, 2013 and listed above. In proof of his claims, the Claimant filed a Witness Statement on Oath dated 16th September, 2013, which he adopted as his evidence-in chief in this matter. He also tendered four (4) Exhibits and the Exhibits are Letter of Appointment dated 29th August, 2003 (Exhibit A1) Letter of Termination of Appointment dated 31st August, 2012(Exhibit A2), Notice to Remedy Breach of Employment terms written by the counsel and accordingly dated 22nd October 2012 (Exhibit A3) and Invoice Cash Receipt issued in favour of the Claimant dated 2st October, 2012(Exhibit A4). The 1st and 2nd Defendants only filed their pleadings dated 29th November, 2013 but no evidence was led on the said pleadings filed by the Defendants as the 2nd Defendants Witness Statement on Oath was never adopted in spite of several adjournments at the instance of their counsel. BRIEF FACTS OF THE CASE: The Claimant testified that pursuant to a letter of Employment No. TEM/ABJ/APP/01/04/15 dated 29th of August, 2003 the 1st Defendant offered him an appointment as a Gardner: The said letter of Appointment specified remuneraration condition of service mode of termination of appointment with relevant condition precedent; that upon being appointed in the capacity as a Gardner, he worked assiduously at a place of primary assignment with no query throughout service for the 1st Defendant; that by a letter dated 31st of August, 2012 the 1st Defendant acting through the Defendant caused a Notice of Termination of Appointment; that the said termination of appointment completely runs counter to the terms of appointment letter given to him on 29th August 2003; that the said Notice of Termination of Appointment fails to make compensation due to him under the letter of appointment as a Gardner; that it is against this background and personal efforts that he instructed the Law Firm of Lawcare Counsel & Solicitors to cause a letter dated 22nd of October, 2012 and acknowledged on 31st October, 2012 by the Officers of the 1st and 2nd Defendants to make a formal demand. After the evidence of the PW1, the defence counsel cross examined the witness and the matter accordingly adjourned for defence; which has since been foreclosed as the Defendants have failed and neglected to show due diligence in the defence of the matter filed against them by the claimant. ISSUES FOR DETERMINATION To the Claimant, the issues for determination based on evidence before the Court are as follows: (I) Whether or not it is safe for the Court to act on unchallenged and uncontroverted evidence before it. (ii) Whether the Claimant has not discharged the onus placed upon him by the circumstance of this case to be entitled to the reliefs sought in the claim. ARGUMENTS ON ISSUES RAISED On issue (i) “Whether or not it is safe for the Court to act on unchallenged and uncontroverted evidence before it.” The Defendants only filed their pleadings without evidence led on same, and where a party has the opportunity to lead evidence on facts pleaded, the effect is simple-and nothing for the court to consider in favour of default party. Counsel relied on the case of Egom v. Eno (2008) 12 NWLR (Pt 1098) Pg 320 @ PP 342-343 Paras. H-A: In the case of R.C.O. & S Ltd V. Rainbownet Ltd (2014) 5 NWLR (pt 1401) 516 @ 542 para D, the Court of Appeal held that it trite law that where evidence is not led in proof of pleaded facts such Statement of Claim or Defence deemed abandoned. He submitted that the case before the Court is a proper case where the Statement of Defence filed by the Defendants in this case can be deemed abandoned as the said Defendants have gone to sleep upon filing their pleading. From the foregoing, counsel urged the Court to resolve this issue in Claimant’s favour by placing reliance on the evidence adduced in support of facts pleaded by the Claimants with exhibits tendered thereto. Issue (ii) “Whether the Claimant has not discharged the onus placed upon him by the circumstance of this case to be entitled to the reliefs sought in the claim”. Counsel submitted that Section ii (1) of the Labour Act, CAP L1 states that 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. In the case of Odiase v. Auchi Polytechnic (1998) 4 NWLR (pt 546) Pg 477 @ 480, it was held that parties can agree on period of notice or payment of salary in lieu of notice. To counsel, it is on record that letter of Employment issued by the 1st Defendant specifies period of notice to be given and payment of salary in lieu of notice. And the document speaks for itself. The PW1 testified before the Court that he was given another letter terminating his appointment with the Defendant and the said letter terminating his appointment fell short of the conditions and terms contained in the appointment. In the case of Akumechiel v. Benue Cement Company Ltd (1997) 1 NWLR (pt 484) P. 695, the Court of Appeal, (per Mukhtar Coomasie JCA (as he then was) held that it is only when a contract of employment is silent that the Court will imply that a reasonable notice is necessary. He submitted that in the instance case, before the Court the letter of Employment has specified what will govern the issue of termination of employment between the parties, that is, between the Defendants and the Claimant hence what is required in the circumstance is for the court to give effect to the spirit and letter of the said document which has already been tendered as exhibit before the court in this case. In the case of F.C.D.A v. Nzelu (supra) @ p. 548 paras F-G, while relying on the case of Ogbonna v. A.G Imo state (1992) 1 NWLR (Pt 220) 647, the Court of Appeal held further that the principles followed in the interpretation of statutes are the same as those for the interpretation of documents. And that a document has to be read as a whole and given the natural meaning. And to give the documents tendered by the Pw1 before the Court in this case its natural meaning, would show how the Defendants have connected outside the dictates and terms of same based on the following reasons, namely: i. The terms of letter of employment issued by the 1st Defendant to the Claimant reads “Your appointment shall be confirmed subject to satisfactory performance During the probation period., this contract could be determined by either party giving one (1) month notice or payment of one (1) month’s salary in lieu of notice and afterward, three (3) month’s notice or payment in lieu of notice” ii. Notice of termination of employment dated 3rd August, 2012 issued by the 1st Defendant to the Claimant, reads: “Consequently, we hereby notify you that your services as a gardener with Total Facilities Management Limited at World Bank Office Abuja will no longer be required after 30th September, 2012. This letter therefore serves as the notice to that effect” Given the above excerpt, 31st August, 2012 and September, 2012 fall short of three (3) months required under the letter of employment which is one of the documents before the court. And no evidence of salary in lieu of the notice. This being the case the Supreme Court held in the case of O.A.D.J.H. (1993) 5 NWLR (pt 29) P 47 @ 62, per Karibi-white, JSC: “a master can terminate the contract of employment with his servant at any time and for any reason at all provide the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate the servant’s employment is not normally a relevant factor and the court will have no business with such motive but will only give effect to the contract of service between the parties” Furthermore in the case of Ezekwere v. Golden Guinea Brew. Ltd (2000) 8 NWLR Pt 670. Pp656-657, on Principle guiding termination of employment “A claim of general damages for wrongful dismissal is an acknowledgment by the plaintiff that his employment with his master had effectively come to an end, even if the termination had been wrongfully effected. In this kind of cases, the courts are reluctant to force a willing employee on unwilling employer or vice versa. The master/servant arrangement between them having been arrived at by their mutual agreement must be capable of being brought to an end by either one of them. If any of them follows the agreed method of bringing it to an end prematurely, then the matter ends there. If, on the other hand, he fails to comply with the agreed procedure, the common law rule that seeks to protect the sanctity of contracts will not let him go scot-free. That is why it regards such premature termination of the relationship as a wrongful affair. It is recognition of this rule of law that the courts, while reluctant to let the parties to continue the relationship, make the earning employer pay for his unjustifiable conduct by slapping him with an order for payment of damages to compensate the employee for being wrongfully put out of job” @ Pp 656-657 paras G-A (per Ikongbeh, JCA). It is pertinent to state that payment in lieu of notice is permissible, but such payment must be made at the termination of the contract and not afterwards. Thus according to Karibi-Whyte J.S.C.; in Chukwumah v. Shell Petroleum, (1993) 8 NWLR (Pt 289) 512 © 518 “where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice, and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of the contract. It is not sufficient that in the letter of termination, he offers to pay salary in lieu of notice” There is nothing on the record of this Court to show that the Defendants pay any salary in lieu of notice given to the Claimant. The standard of proof expected in civil suit is well expressed in the case of Mikano International Limited V. Ehumadu (2013) ALL FWLR (Pt 667) Pg. 658 at 699 paragraphs G-H: “A civil suit is only required to be proved on a balance of probabilities, and all the plaintiff needs to do is establish that his story is more likely to be true than the Respondent’s” (Per Augie JCA) Finally, based on the above authorities and submission, counsel humbly urged the Court to determine the issue in favour of the Claimant and accordingly grant all the reliefs contained in the statement of facts and as evidenced on the exhibits tendered before the court. The Court has carefully considered the suit before the Court and the submissions of counsel in this case, including the authourities and statutes referred to by them. It must be noted that the Defendant in this case filed a Notice of Preliminary Objection dated and filed on the 21st May 2013; same was argued by parties. It was based on the Competence of this case; and the Court in a Ruling dated 17th July 2013 overruled the Objection and ordered commencement of hearing of the matter. The Defendant filed his Statement of Defence on 26th November 2013 and a witness Statement on Oath on the 27th November 2013. Thereafter, he stopped coming to Court and was not represented. There was no evidence to support the Pleadings of the Defendants; and the Sworn Statement on oath was not adopted by any witness. There was no defence whatsoever before the Court.. . Thus in the case of Egom v. Eno (2008) 12 NWLR (Pt 1098) Pg 320 @ PP 342-343 Paras. H-A the Court held that: “Parties are bound by their pleadings and so is the court. Any facts pleaded but upon which no evidence is adduced is deemed abandoned; just as evidence led in respect of any fact not pleaded goes to no issue between the parties” (per Ngwuta JCA) The Court holds that the pleadings of the Defendant are deemed to have been abandoned for the purpose of this case. The Court shall now consider the two (2) Issues presented by the Claimant for consideration, to wit: (I) Whether or not it is safe for the Court to act on unchallenged and uncontroverted evidence before it. (ii) Whether the Claimant has not discharged the onus placed upon him by the circumstance of this case to be entitled to the reliefs sought in the claim. On issue 1, The Court agrees with the reasoning of the Claimant on this Issue. Furthermore, in the case of F.C.D.A. v. Nzelu (2014) 5 NWLR (Pt 1401) Pg. 565, © 581 Para. G, the Court of Appeal held that: “After all, unchallenged and uncontroverted evidence ought to play against that party who should have challenged or contradicted it but had failed to do so. The Court therefore resolves Issue 1 in the Negative. It is not safe for the Court to act on unchallenged and uncontroverted evidence before it. On Issue 2 ,i.e. Whether the Claimant has not discharged the onus placed upon him by the circumstance of this case to be entitled to the reliefs sought in the claim. The Court has nothing before it to urge in favor of the Defendant; and has no alternative but to place reliance on the evidence adduced in support of facts pleaded by the Claimant, and the Exhibits tendered by him. According to the Claimant, Pursuant to letter of employment No. TEM/ABJ/APP/01/04/15 dated 29th August 2003 the 1st Defendant offered him an appointment as a Gardner; wherein the said letter of appointment specified remuneration, condition of service, mode of termination of appointment with relevant condition precedent. That in the course of his appointment, the claimant worked hard and was not issued any query by the 1st Defendant. But that by a letter dated 31st of August, 2012 the 1st Defendant acting through the 2nd Defendant caused a Notice of Termination of Appointment to be issued to the claimant with effective date from 30th September 2012. That the said Notice of Termination of Appointment failed to make compensation due to the Claimant under the Letter of Appointment as a Gardner. That it is against this background that the Claimant instructed the Law Firm of Lawcare Counsel & Solicitors to make a formal demand, which he did through a letter dated 22nd of October, 2012 and acknowledged on 31st October, 2012 by the Officers of the 1st and 2nd Defendants. The 2nd arm of issue 2 is whether the Claimant is entitled to the reliefs sought in the claim. It will be recalled that the Claimants Claim is for: i. The sum of N 1,000,000.00 (One Million Naira) being compensation for over time and leave allowances that remain unpaid and due to the claimant since 2003 till 2012. ii. Damages of N1, 000,000.00 (One Million Naira) ii. N500, 000.00 (Five Hundred Thousand Naira) being cost of litigation. Even though the Claimant established his case, his Claims are preposterous. In his submissions he clearly stated the position of an employee’s employment in a purely master/servant contract of employment. It is trite Law, supported by a plethora of cases that where a contract of service gives a party a right of termination of contract by either party giving a particular length of notice or payment in lieu of notice and the latter course is chosen by the employer, the only obligation on the employer is that he must pay the employee the salary in lieu of notice at the termination of the contract. See C.B. N vs. Anika (2000) 13 NWLR (PT 683) 21 CA. The Letter of appointment of the Claimant as a gardener reads in part: “During the probation period, this contract could he determined by either party giving one month notice or payment of one month salary in lieu of notice and afterward, three months notice or payment in lieu of notice. Having been confirmed, the sudden termination of the employment of the Claimant attracted three months salary in lieu. The salary was agreed on N79, 200.00 per annum, with N28, 800, 00 housing allowance per annum; and 24,000.00 transport allowance per annum. This means he was earning an average of N132, 000,00 per annum; N11, 000 per month. His due payment in lieu therefore is N11, 000.00 X 3 months which equals N33, 000.00 only; and the Court so holds. On the claims of the Claimant therefore the Court rules as follows: A. Claim 1: Claim 1 is a specific claim and must be specifically pleaded and proved.. The Claimant is entitled to his 3 months’ salary in lieu of notice, i.e. N35,000.00 and not N1,000,000.00 (One Million Naira) being Compensation for over time and leave allowances that remain unpaid and due to the claimant since 2003 till 2012.This is because the issue of overtime was not proved; and the unpaid allowance was also not proved. B. Claim 2: The Defendant paid up only one month salary in lieu of notice in 2012, and has owed the for two months since then. The Court therefore awards the Claimant the sum of N100, 000.00 as Damages for the Defendants’ breaking the terms of their contract. C. This Court does not believe that the cost of litigation should be borne by the other party and is therefore unable to make any award on that sub-head, but however awards a cost of N100, 000.00 to the Claimants as general damages, and allowing the Claimant attend Court on the numerous days that the matter was adjourned at the instance of the Defendant. D. All monies listed above shall be paid by the Defendant within 30 days of this Judgment. This is the Judgment of the Court, and it is entered accordingly. …………………………………… HON JUSTICE M. N. ESOWE