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NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 2nd February, 2015 Suit No. NICN/ABJ/241/2012 BETWEEN DR. GEORGE TAIWO IRELE CLAIMANT/APPLICANT AND NIGERIAN TURKISH NILE UNIVERSITY DEFENDANT/RESPONDENT REPRESENTATION S. A. Omole (Miss) for the Claimant. O. J. Aboje Esq for the Defendant. JUDGMENT The claimant commenced this suit by way of complaint dated and filed on the 9th November, 2012. By amended statement of facts granted by the court’s Order made on the 30th April, 2014 the claimant claims against the defendant are as follows:- 1. A DECLARATION of court that the defendant is bound under contract and under the law to regularize and issue a full time written contract of employment to the claimant after three months of temporary employment with the defendant. 2. A DECLARATION that the defendant violated the contract it entered into with the claimant together with the relevant labour laws of Nigeria as it relates to the claimant and the Terms and condition of running a University in Nigeria as issued by the Nigeria Universities Commission, the regulatory body for Universities in Nigeria. 3. A DACLARATION of court that by the several acts of the defendant allowing the claimant to continue working after three months when the defendant’s employment was or suppose or ought to have been regularized or brought to an end, the defendant has waived its right to say that the claimant is not a permanent staff of the defendant. 4. A DECLARATION of court that the claimant is entitled to the salary of a full time employee after three months of satisfactory employment with the defendant. 5. Special Damages of N300,000.00 (Three Hundred Thousand Naira) Only being the monthly remuneration due to the claimant from the defendant from the month of January 2010 to the month of December 2011 which the defendant has failed to pay to the claimant till date. 6. General Damage of N20,000,000.00 (Twenty Million Naira) Only against the defendant for discriminating against the claimant by not regularizing the claimant’s employment, for discriminating against the claimant on the grounds of his nationality and for failing to give the claimant all his entitlements. 7. Cost of this action. The complaint is accompanied by the claimant statement of facts, witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. The defendant on receipt of the complaint entered a conditional appearance dated 28th November, 2012 but filed on 29th November, 2012, with its statement of defence, list of witnesses, witness statement on Oath and list of documents to be relied upon at the trial. The matter went on trial, the claimant testified in his case and called two other witnesses who also testified on his behalf. The defendant called only one witness Mr. Mohammed Abubakar, Assistant Hostel Manager of the defendant. The trial was concluded on the 16th September, 2013 and the adoption was of final written address of the parties was fixed for the 18th November, 2013. But this could not take place and the suit suffered series of adjournments at the instance of the claimant. On the 5th of November, 2014 the final addresses of parties were adopted. The defendant in adopting its final address formulated two issues for the determination of the court which are:- 1. Whether considering the contractual agreement entered into by the parties which is exhibits 8 in this suit, the defendant can be said to be in breach to warrant the grant of the relief sought by the claimant in this suit. 2. Whether the claimant has established his case in accordance with law before this Honourable Court to enable him to the reliefs claimed in this suit. Issue One Whether considering the contractual agreement entered into by the parties, which is Exhibit PW8 in this suit, the defendant can be said to be in breach to warrant the grant of the reliefs sought by the claimant in the suit. The learned counsel to the defendant submitted that the law is that what is enforceable in a contract of employment or legally binding on the parties to it are the terms and conditions of employment, and nothing else. Any purported term(s) not contained in the terms of employment is not binding on the parties. The learned counsel said that the claims of employee against the employer must be confined to the terms and conditions of employment. See Union Bank of Nig. Plc V Edet (1993) 4 NWLR (Pt. 287) and Akauve Moses Osoh & 40 Ors V Unity Bank Plc (2003) 2 – 3 SC (PE1), whose compound reading is to the effect that what the court looks at to determine an employee’s claim against the employer is the terms and conditions of employment and nothing else. Counsel submitted that the contractual agreement entered into by the parties to this suit, which is Exhibit PW8 in this suit reveals that there was nothing to show that the employment of the claimant could be made permanent after a period of three months. What was offered to the claimant was an adjunct staff renewable on a semester basis. Counsel therefore posited that since the releifs claimed by the claimant cannot be found on the contents of the contract of employment, it cannot stand, and he urged this Honourable Court to so hold and dismiss the reliefs of the claimant in this suit, as that would be in tendem with the position of our court as manifested in the case of International Drilling Nig. Ltd. V Ajigala (1976) 1 All NLR 112 at 130. Counsel therefore, call on the court to give effect to the Exhibit “PW8” of the claimant’s complaint, which is a valid contract of employment between the parties in this suit as they are bound by its terms and conditions, as that would be in tandem with the Supreme Court’s decision in the case of International Drilling Nig. Ltd V Ajigala (supra) where the court said:- The only document that the court would look at in the determination of the suit relating to whether there was breach of contract of service or not was the service agreement between the parties; and nothing else. He equally referred the court to the case of Kaydee Ventures Ltd V Min. FCT (2010) 7 NWLR (Pt. 1192) P. 219 Paras. A – B, where the Supreme Court said:- Parties to a contract are deemed to have voluntarily entered into it and therefore bound by its terms. Where the contract is reduced into writing, it is that document that invariably constitutes the guide to its interpretation. And the parties will not be allowed to read into such contract terms upon which they reduced no agreement and thus not forming part of the contract. Counsel contended that the law that parties are bound by their agreement or contract. The court cannot and should not be called upon to give effect or grant to the claimant what was not contemplated or stated in the contract of employment. He urged the court therefore to resist granting what the parties never agreed upon, and give effect to the contract between the parties in this suit. He in this regard referred the court to the case of U.B.N. Ltd V Fajebe Foods Ltd (1998) 6 NWLR (Pt. 554) 380 at 406 where the court said:- It is assumed that before a party enters a written agreement and his signature is appended he has carefully perused the document and subject himself to the conditions therein with his eyes wide open. He will not later be allowed to depart from the contents of the documents and feign ignorance of its contents. After all a document speak for itself. The learned counsel to the defendant went on to submit that the claimant could not provide credible evidence to warrant the grant of the reliefs sought in this suit. The testimonies of the two witnesses of the claimant in this suit did not in any way establish the claimant’s suit. Counsel therefore urged the court to discountenance the testimonies of the claimant’s witnesses and dismiss the suit as lacking in merit, and resolve this issue in favour of the defendant. Issue Two Whether the claimant has established his case in accordance with law before this Honourable Court to entitle him to the reliefs claimed in this suit. On this issue counsel said that the claimant has failed woefully to establish his case in accordance with law. The law is that in a suit of this nature the claimant must proof his case. The claimant failed to provide this Honourable Court with credible evidence to establish his claim. The testimonies of the claimant’s witnesses did not in any way establish his case; thereby failed to discharge the burden of proving the lace placed on him. He referred the court to Sections 132 and 133 of the Evidence Act 2011 (HB 214). See also the case of Odukwe V Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; Per Iguh, JSC (Pp. 19 – 20) Paras G – A), where the court said:- Without doubt, the law is settled that in establishing his claim, the onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the relief claimed. To this end, the Plaintiff, must succeed on the strength of his own case and not on the weakness of the defendant’s case and if this onus is not discharged, the weakness of the defendant’s case will not help him. It is also the law that, in a suit of this nature the claimant should exhibit the terms and conditions of employment to enable court determine any breach. In the instant suit, the claimant exhibited the terms and conditions of employment in which it is clearly stated that the relationship between the claimant and defendant is an ‘adjunct appointment’. The Black’s Law Dictionary, Sixth Edition defines the word adjunct as “something added to another, but in a subordinate, auxiliary, or dependent positions”. Counsel submitted that the testimonies of the two witnesses called by the claimant did not in any way establish the case of the claimant. The witnesses of the claimant could not establish before this Honourable Court that the relationship between the claimant and the defendant was not adjunct as contained in the terms of contract. Instead, PW2 testified that he did not know whether there was a contract between the claimant and the defendant. This testimony is fatal to the claimant’s case as it did not in any way establish the claimant’s case. Similarly, PW1 in his cross-examination affirmed that apart from the letter of appointment given to him, there was no any other letter of appointment that was given to him. DW1 under cross-examination and re-examination further reiterated this fact. That in addition to the above PW2 in his cross-examination also avowed that he knew nothing about the contractual relationship between the claimant and defendant but PW1 had only told him about the contractual relationship that existed between the claimant and defendant. On the whole the counsel urged the court to discountenance the testimonies of the claimant’s witnesses, hold that the claimant failed to establish his case and dismiss it for lacking in merit. See Kaydee Ventures Ltd V Min. FCT (supra). Counsel further submitted that the claim of damages in this suit; either general or special by the claimant also has no basis in law as a claim of such nature are such as the law would presume to be direct, natural or probable consequence of the act complained of, and must be claimed specifically and proved strictly. The claimant failed woefully in this regard as he did not call or lead credible evidence to strictly prove the special damages he claimed in this suit or placed credible material before the court that the general damages claimed could be the direct, natural or probable consequence of the act complained of. In this regard counsel referred the court to the case of A.M. & Co (Nig.) Ltd V Volkswagen Nig. Ltd (2010) 7 NWLR (Pt. 1192) @ 143 Paras. A – B, where the court said:- General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of. And that special damages are those damages which are given in respect of any consequence reasonable and probably arising from the breach complained of …. Counsel therefore urged the court to discountenance the claimant’s claim in its entirely as he has failed to establish his claim in accordance with the laws. That in view of the above position of the law, the Honourable Court to uphold his argument on this second issue. The claimant counsel formulated issues for determination:- Whether by the pleadings and evidence led, the claimant, on a preponderance of evidence is entitled to the reliefs claimed? The marked feature of this case is that the defendant did not issue to the claimant form the date of his employment in September 2009 or from the 29th December, 2011 contended by the defendant to be the date of the commencement of the claimant’s employment to the date of the claimant filing this suit letter of suspension from employment or a letter terminating the claimant’s employment with the defendant. The counsel urged the court to notice that the bundle of complaints of the claimant leading to the claimant filing this suit and claiming the reliefs claimed is basically complaints founded on the failure of the claimant to adhere to agreements both oral and documentary (see paragraphs 3, 4, 5 of the statement of Fact and the witness statement on Oath of the claimant in support thereof and (Exhibit PW8) and failure to adhere to employment laws of the Federal Republic of Nigeria which binds the defendant. Claims 1, 2 and 3 contained in the Amended Statement of Facts of the claimant are set out thus:- 1. The claimant is a Nigerian, a doctorate degree holder in the field of economics. The claimant pleads all his qualifications and shall rely on them at the trial of this suit. 2. The defendant is a privately owned educational institution licensed by the Nigeria Universities Commission (NUC) to carry on the instruction of students to obtain degrees in various fields and in pursuit of its objectives employs academic and non-academic staff. 3. The claimant avers that on the introduction of a friend in the month of September 2009, the Registrar of the defendant, Dr. Ahmet Demirkol interviewed the claimant and contracted the services of the claimant as lecturer in the Department of Economics of the defendant. The letter of employment is pleaded which was issued to the claimant some months after the claimant had commenced work for the defendant. The claimant was taken on by the defendant as a Lecturer and Head of Department of Economics in the first year of the establishment/life of the defendant being 2009. To the counsel the claims of the claimant as restated above, is the kernel of the cause of action of the claimant against the defendant. In Momoh V CBN (2007) 14 NLR (Pt. 1055) P. 504 Pp at 529 – 530 Paras F – C the Court of Appeal held thus:- There are three types of employer/employee relationship with related consequences, and they are:- (a) Under the common law where, in the absence of a written contract, each party could abrogate the contract on a week’s or month’s notice or whatever the agreed period for payment of wages. (b) Where there is a written contract of employment between an employer and employee, in such a case, the court has a duty to determine the rights of the parties under the written contract. (C)i Public servants whose employment is provided for in a statute and/or conditions of service or agreements. ii Public Servants in the Civil Service. Counsel submitted that in the pleadings (paragraphs 3, 4 and 5 of the amended statement of facts) the claimant pleaded that he was employed by the claimant upon an oral interview and his services retained in the first semester of the 1st year of the life of the defendant being September, of the year 2009 and went on to plead the terms that was promised him by the defendant’s Registrar and Vice Chancellor. Evidence of the facts set out in the pleadings was given by the claimant in paragraphs 3, 4 and 5 of the statement on Oath of PW1 adopted in this court. By the pleadings and evidence led, the claimant asserts that his services were retained by the defendant orally in the month of September 2009 on a monthly salary of N100,000.00 (One Hundred Thousand Naira) Only to be reviewed upwards after three months to N300,000.00 (Three Hundred Thousand Naira) Only. The defendant on their part asserted that the claimant’s services were retained as a temporary staff only for a period of three months which commenced on the 29th day of December, 2010 as per Exhibit PW8. Counsel contended that the position of the defendant that the claimant’s employment commenced on the 29th day of December, 2010 is without any factual basis even though Exhibit PW8 relied upon by the defendant for her assertion that the claimant’s employment with the defendant commenced on the 29th December, 2010 has the commencement date of 29th December, 2010. Apart from Exhibit PW8, the defendant clearly admitted the pleadings of the claimant that the claimant had been employed with the defendant long since before the claimant received the letter of employment. Under cross examination of DW1 for the defendant, he was pointedly asked whether the claimant’s employment commenced in the 1st Semester of the first year of the life of the defendant and DW1 said yes. In Adike V Obiareri (2002) 4 NWLR (Pt. 758) P. 537 PP. at 566 Paras A – B the Supreme Court held thus:- There must be a correlation between two sets of facts before parties can come to issue. Thus, where, as in the instant, case, there is no nexus between the averments in the parties’ pleadings, it is wrong to contend that parties have joined issues. The Supreme Court further decided in the same Adike V Obiareri (supra) at page 568, paras D – F thus:- Facts admitted require no proof because an onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. If the plaintiff’s claim is admitted, that will be the end. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Assuming but never conceding that the claimant’s employment commenced on the 29th December, 2010 as postulated by the defendant relying on Exhibit PW8, counsel submitted that the defendant is still liable to the claimant for not regularizing the claimant’s employment after the month of March, 2010 which is a period of three months beyond Exhibit PW8. The claimant filed this suit on the 9th day of November, 2012. The import of this date when computed from the 29th December, 2010 is that the claimant was in the employment of the defendant for almost two years as a temporal employee without document issued to the claimant to define the nature of his employment. Section 7 of the Labour Act LFN 2004 provides thus:- 1. Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying – (a) The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed. (b) The name and address of the worker and the place and date of his engagement; (c) The nature of the employment; (d) If the contract is for a fixed term, the date when the contract expires; (e) The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 11 of this Act; (f) The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages; (g) Any terms and conditions relating to – (i) Hours of work; or (ii) Holidays and holiday pay; or (iii) Incapacity for work due to sickness or injury, including any provisions for sick pay; and (iv) Any special conditions of he contract. The express provision of Section 7 of the Labour Act LFN 2004 referred to above implies that after three months from the 29th December, 2010, the defendant was to issue to the claimant a written statement specifying the nature of the claimant’s employment as provided there-under. In this case, the defendant insist that the claimant’s employment is for a temporal period of three months (see paragraph 4 of the defendant’s statement of defence and also paragraph 8 of the statement on Oath of DW1). It is to be noted that the claimant was employed as a lecturer in Economics and the Head of that Department. A lecturer cannot be employed for three months because a particular lecturing period of a life of a University is four (4) months instead of three months. Perhaps this is why Exhibit PW8 (Letter of Employment) at Clause 3 – Adjunct Appointment – which the defendant claims is the category which the claimant falls under provides that “… an Adjunct Lecturer shall be on semester basis and in respect of particular course(s) assigned to the lecturer”. DW1 for the defendant was asked under cross examination if he knows how many months make up a semester of the life of the defendant and DW1 answered very clearly that it is four months. It is therefore a complete contradiction for the defendant to insist in its pleading and evidence that the claimant’s employment is for a period of three months only when Exhibit PW8 which the defendant is relying on heavily provides for a semester. Since the claimant’s employment is for three months of a semester only as contended by the defendant what was the claimant still doing with the defendant? Counsel then posits that Exhibit PW8 (letter of employment) is bereft of any legal logical interpretation as it works against itself. The defendant attributes three months to it as the only period offered the claimant when indeed a semester as provided by it is four months. The defendant in Clause 1 (viii) of Exhibit PW8 made provision for complaints as to rights and responsibilities yet asserts that an employment is for three months. There are loads of Exhibits and evidence before the court showing that the claimant raised the issue of his employment with the defendant to no avail. Clause 2 of Exhibit PW8 does not apply to the claimant because same deals ostensibly with foreign or Non-Nigerian employees of the defendant as Clause 2 clearly relates to contract appointment and makes provision for “work permit for expatriate staff”. In Agbi V Ogbeh (2005) 8 NWLR (Pt. 926) P. 40 PP at 138 Paras F – H the Court of Appeal held thus:- Where there are inconsistencies and contradictions in the evidence of a witness, the court should not attach probative value to it. He prayed this court not to attach any weigh or probative value to the evidence given by DW1 for the defendant. Counsel referred to Clause 3 of Exhibit PW8 does not have any period of terms for the giving of notices for termination contrary to the Labour Act LFN 2004. DW1 was asked under cross examination whether he has or knows of any letter terminating the claimants employment three months after the 29th December, 2010 or four months after the 29th December, 2010 and he said he does not have. What period of notice is the defendant or the claimant to give to the defendant if he desires to cut short his employment? There is none. He therefore prayed the court to hold that Exhibit PW8 is not a valid document defining the admitted relationship that operated between the claimant and the defendant for almost three years. That the defendant has insisted profusely that the employment of the claimant with her is on an “Adjunct” basis. The Oxford Learners’ Dictionary 7th Edition, edited by A. S Hornby defines the expression “adjunct” thus:- An adverb or a phrase that adds meaning to a verb (2) A thing that is added or attached to something large or more important. The Webster’s Revised Unabridged Dictionary defines ‘adjunct’ as “something joined or added to another thing but not essentially a part of it (2) A person joined to another in some duty or service. The Black Law Dictionary 9th Edition edited by Bryan A. Garner P. 48 defines the same expression “adjunct” thus:- Added in an accompanying object or circumstances attached in a subordinate or temporary capacity. From the foregoing definitions what is palpably clear and obvious is that an “adjunct lecturer” is a subordinate academic staff attached to a substantive lecturer as the claimant in this case was from inception employed to head the department of Economics of the defendant. For an Adjunct lecturer to find relevance ideally, he must of necessity be an extended limb of the full time lecturer. The purpose of an Adjunct lecturer in an academic setting is to assist and facilitate the substantive or attached lecturer to actualize his academic goals and object. It is for this reason(s) that the “adjunct lecturer” term of employment requires that his tenure be renewed from semester to semester. However, after employing the claimant who is a Cambridge trained P.H.D. degree holder (see Exhibits PW1, 2, 3, and 4), he was assigned with the following responsibilities; a. Head of Department of the Economic Department. b. Coordinator of the Business Administration Programme. c. Membership of senate. See paragraph 8 of claimant’s statement of fact. See also defendant’s Internal Memo of 19th January, 2011 (Exhibit PW6) indicating the claimant’s status within the defendant. Counsel said the fact is that whilst on paper the claimant was referred to as an ‘adjunct lecturer’, in fact rather than be attached to a substantive lecturer; other lecturers were attached to the claimant. This is a clear case of the claimant being employed and paid as an adjunct or auxiliary lecturer but made to work as a professor or permanent staff on a full time basis. Counsel submitted further that the claimant has proved his entitlement to both general and special damages. The essential purpose of the grant of damages is to put the claimant in the position that he would have been but for the act complained. For this legal proposition we are strengthened by the decision of the Court of Appeal in the case of Dauda V L.B.I. Company Ltd (2011) 5 NWLR (Pt. 124) P. 411 of 429 Paras. D – E. where the court posited thus:- The basic object of damages for breach of contract is to put the Plaintiff, so far as money can do it in the same situation as if the contract had been performed. The claimant in the instant suit is claiming both special and general damages. At this juncture it is imperative to proceed to deal with the criterion for the award of special damages. In the case of ASCON V Akinbami (2008) 3 FWLR (Pt. 432) P 4477 P 4497 Paras D – F the Court of Appeal pontificated thus:- Special damages must be strictly proved by the claimant who must show through credible evidence that he is entitled to the award of special damages. In the instant case, the claimant has shown by his pleadings and evidence that he was assigned responsibilities of a full-time staff and he never acted as an adjunct employee as the defendant wants his documents to reflect. In a nutshell, he was only an adjunct lecturer by nomenclature rather than in substance. Regarding general damages, it is the counsel submission that it is one that flows naturally from the violation of the claimant’s right. In most cases it is directed at correcting and or preventing the reoccurrence of such act(s) by the defendant. The Court of Appeal in the case of Dauda V L.B.I. Company Ltd (Supra) P. 429 Paras F – H defined general damages thus:- Are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed. The manner in which general damages is qualified is by relying on the opinion and Judgment of a reasonable person in the circumstance. Counsel therefore urged the court to find the claimant’s case as a fitting occasion to award general damages to ensure that the defendant refrains from such want on acts of corporate greed and unethical employment practices. Defendant’s reply on points of law. Submitted that the claimant in her final written address raised issues of law which the defendant seeks to reply as follows:- That the commencement date in exhibit PW8 (the letter of appointment) has no factual basis. The claimant in his written address posited that exhibit PW8, though stated the commencement date of the claimant’s employment, has no factual basis. On this issue, the position of the law is clear, as provided in Section 128 of the Evident Act 2011, to the effect that when a contract is reduced to writing, the document speaks for itself and does not need to be verified by oral evidence or any fact whatsoever. He referred the court to Section 128(1) of the Evidence Act which provides that:- When any Judgment of any court or any judicial or official proceeding, or any contract, ….. has been reduced to the form of a document, no evidence may be given of such ….. terms of such contract … except the document itself ….. nor any the contents of any such document be contradicted, altered, added to or verified by oral evidence ….. underlining mine for emphasis. It is settled law that written contract such as exhibit PW8 needs no factual basis as misconceived by the claimant. Counsel urged the court to discountenance this misconception of the law by the learned counsel to the claimant and hold that exhibit PW8 – the letter of appointment is a contract reduced to the form of document which binds the claimant as it relates to this suit, and does not require any factual basis as it is a valid document manifesting the contract between the parties in this suit. It was never contradicted by the parties in this suit. It is also the position of the defendant that since the claimant tendered exhibit PW8 and was not objected to by the defendant it goes further to fortify the contended position that the parties consented to the terms of the agreement. Therefore, the letter of appointment is a strong and credible instrument reflecting the terms and conditions of employment of the claimant with the Respondent, moreso, the Respondent did not object or doubt its credibility, no factual basis is further required of it than for the court to hold that the parties are bound by its express terms and conditions therein. Counsel submitted that the court should not have any hesitation on this position and take solace in the case of Olaniyan V University of Lagos (1985) NWLR (Pt. 9) 599, where the court said:- Contracts of employment like all other contracts; their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated. Counsel further referred the court to the following clauses in exhibit PW8 which are very clear and germane in the contract of employment of the claimant:- a. “Your appointment is an adjunct appointment”. b. “Your job shall commence on the 29th December, 2010”. The clauses are very on the type of appointment the claimant had and when the contract commenced. The court is urged to resist any attempt by the claimant to mislead this Honourable Court on this issue, as the learned counsel’s position is contrary to law, and should not be accepted by this court. Counsel urged the court to judiciously interpret the clauses in the contractual document and uphold that parties are bound by it, and discountenance the misconception of the law on this issue by the learned counsel to the claimant. This is the position of our courts and the law as decided in the case of UBN Plc V Soares (2012) 11 NWLR (Pt. 1312) @ 550 where it was stated that:- Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous. That under cross examination; DW1 for the defendant was pointedly asked whether the claimant’s employment commenced in the 1st semester of the first year of the defendant and DW1 said yes. The above statement was contained in the claimant’s written address as what transpired during cross examination, see paragraph 4.06 of the claimant’s written address. The claimant’s position is contrary to what DW1 said in the court on the said day. The learned counsel to the claimant in his quest to mislead this Honourable Court referred to something totally different from the DW1 testimony in court. For the purpose of putting the correct position before the court, on the day in question the following transpired. “Q: You are aware that the claimant was employed by the defendant in the 2nd Semester of the 1st year of the University. DW1: Yes”. Counsel submitted that the distortion of what a witness said, by counsel to the claimant in order to suit his client’s purpose bothers on ethical professional conduct. The response by DW1 to question put to him during cross examination was twisted round by the claimant’s counsel contrary to what the witness said in court in order to mislead the court. This attitude of the counsel to the claimant is contrary to the rules 32 (3) (f) of the Rules of Professional Conduct, 2007 to the effect that:- In appearing in his professional capacity before a court of tribunal, a lawyer shall not: Knowingly misquote the content of a paper, the testimony of a witness, the language of argument of the opposing counsel, or the language of a decision or a textbook. The courts have also emphatically warned that counsel must be conscientious in the performance of his duty. An attempt to mislead the court is unprofessional and unethical. The courts have held in the case of P.I.P.C.S. Ltd V Vlachos (2008) 4 NWLR (Pt. 1076) 1 at P. 17 Paras G – H that:- Counsel must be conscientious in the performance of their duties. They owe it a duty to assist the court to arrive at a just decision and they must not set out to confuse the court in order to satisfy their clients for a paltry sum. Unless lawyers perform their duties by dictate of their calling and conscience, the public (layman’s) perception of lawyers will never change. I must state, and with all emphasis, that lawyers are not liars, but Honourable gentlemen who are trained to assist litigants and the court. Their first duty is to the court as ministers in the temple of justice. Counsel therefore urged the court to disregard the contention of the learned counsel to the claimant aforesaid, be guided by the court’s record, and hold that the position portrayed to court in this regards did not reflect what the DW1 said as put forward by the claimant’s counsel. In consequence, the case of Adike V Obianeri citation relied on in aid of claimant position should be discountenance as it is of no moment. We urge the court to so hold and disregard the argument of learned counsel to the claimant in his written address, on this issue as it is misleading, and does not reflect what the witness said in court, as it has not assisted the claimant’s case. That the defendant is liable for not regularizing the claimant’s employment. In his final written address, the claimant contended that the defendant is liable for not regularizing the claimant’s employment. The claimant’s contention in this regards is far from correct, as the law is settled that parties are bound by their contract. Counsel referred the court once more to the case of UBN V Soares (supra). There is no where in exhibit PW8 (letter of appointment) where it stated that the claimant shall be given full employment after three months. Counsel urged the court to take cognisance of the said exhibit PW8 together with its terms and conditions of employment before the court, and hold that the defendant was not liable for not regularising his employment, as that was not part of the contract between parties. That defendant acted contrary to Section 7 of the Labour Act The claimant argued that the express provision of Section 7 of the Labour Act implied that the defendant issue to be the claimant a written statement specifying the nature (underlining mine for emphasis) of the claimant’s employment, and that defendant was in breach of this provision. On this cousnel submitted that a perusal of Section 7 of the Labour Act would reveal that the defendant was in full compliance as far as the contractual relationship between the parties in this suit was concerned. The letter of appointment of the claimant was issued in accordance with the said Act. Claimant contended that defendant did not specify the nature of employment, whereas it clearly stated it in exhibit PW8 (letter of appointment) as an adjunct appointment. If the provision of that law together with the letter of appointment in this suit are given its literal meaning the defendant is not an breach. The courts have held that the law should be given its literal interpretation, as manifested in the case of Duru V FRN (2013) LPELR (1930) SC where the court held thus:- I further agree with the learned Appellant’s counsel that the duty of the court of law is limited to interpreting the law within the context of its constitutive words. It is not within the province of the court to seek meaning to the statute outside the clear words the legislators employed. He therefore, submitted that the learned counsel to the claimant misconceived Section 7 of provision of the Labour Act and urged the court to so hold and discountenance claimant’s position as against the clear interpretation of law. For avoidance of doubt Section 7 (1) (c) & (h) of Labour Act CAP L1 LFN 2004 which learned counsel to the claimant relied upon in his position provides thus:- Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying – (c ) the nature of the employment;…. (h) any special conditions of the contract. From the foregoing provision it is evident that the contention of the claimant on this issue does not find favour under this section as it does not help the claimant’s case or apposite. The letter of appointment provided for the nature of employment of claimant, and other terms of the contract, as such did not violate Section 7 of the Labour Act. If anything the defendant complied with the provision of the law. He called on this court to so hold and discountenance the claimant position on this. Claim for special damages The defendant counsel went on to argue that the claimant posited in his final written address that the basis for his claim for special damages is on the fact the he was assigned the responsibilities of a full time staff and he never acted as an adjunct staff. On this point, the law is that special damages must not only be strictly proved, but by its nature, it must be a damage that arose after and as a result of the cause of action and not before it. See UBN V Chimaeze (2007) All FWLR (Pt. 364) 303 at 318 where the Court held thus:- Special damages are those that arose after and as a result of the cause of action and not before it. The claimant has not only failed in proving the nexus between the special damage his claims, and any wrong the Respondent committed, but has also failed to realise that special damages flows after and/or as a result of action of the cause of action. There is no proof whatsoever to warrant the grant of special damages, moreso, the claimant failed to prove before this Honourable Court that his employment with the defendant was not adjunct. He urged the court to so hold and refuse the claimant’s claim in this regard. Claim for general damages The defendant counsel submitted the claimant argued that his case is a fitting occasion to award general damages to ensure that the defendant refrains from such wanton acts of corporate greed and unethical employment practice. It is however the defendant position that this claim is also not founded or supported in any law instead; the law is that except for damages resulting from a breach, no other damages can be contemplated. This is the law as stated in the case of Gari V Seirafina (Nig) Ltd (2008) 2 NWLR (Pt. 1070) 1 at P. 22, Para, where the court said that:- Apart from damages naturally resulting from a breach, no other form of general damages can be contemplated. The defendant posited that exhibit PW8, remains the contract of employment between the parties, and from exhibit PW8, there is no breach whatsoever on the part of the defendant to warrant the grant of general damages. He urged the court to so hold and refuse the claimant’s claim. It is therefore the defendant’s position that the claimant has failed to establish his claims as required by law. The law places the onus on him to discharge the burden of proof. See Section 133 of the Evidence Act. The court should take cognisance of the law that the Plaintiff must establish his claim on the strength of his case and not on the weakness of the defence. The failure of the claimant to discharge this onus is detrimental to his case, as he has not been able to establish PW8 is false and not binding him and the Respondent. The defendant called on this Honourable Court to so hold, as that would find solace in our law as captured in the case of Matanmi & Ors. V Dada & Anor (2013) LPELR – 19929 (SC) where the Supreme Court held thus:- I agree with the learned counsel that the Plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the Plaintiffs in establishing their declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted, even on admission by the defendant where the Plaintiffs fail to establish their entitlement to the declaratory sought by their own evidence. Conclusion The defendant urged this Honourable Court to uphold his argument on point of law above, dismiss the claimant’s claim for failure to establish this case in accordance with law. I have considered the pleadings, the submissions, the oral evidence and the authorities cited by the learned counsel, the issue for the court to determine is:- Whether the claimant has discharged the burden of proof placed on him and consequently entitled to the reliefs sought. It is trite law that whoever desires any court to give Judgment as to any legal right or liability dependant on the existence facts which he asserts, must prove that those facts exists. In other words when a person is bound to prove the existence of a fact, the burden of proof lies on that person, the claimant is bound to lead evidence to prove that he is entitled to the reliefs sought against the defendant. From the pleadings of the claimant, the claimant complaints bothers on the facts that he was assured by the Registrar of the University that his employment is temporal for a period of three months only at a monthly salary of N100,000.00 and to be reviewed upward to N300,000.00 and would be permanent or full time after three months satisfactory performance. To the claimant these several promises were made verbally by the Registrar the Vice-Chancellor of the University but that the promises were not kept by them. The claimant claimed that he made his complaints to the Registrar and the Vice-Chancellor on the question of the regularization of his employment which has been a burning issue in the University. The claimant is demanding remuneration and other entitlements of a fully regularized staff of the defendant. The claimant accused the defendant of the breach of provisions of Section 7 of the labour Act which provides that employees must be provided with a written statement specified the nature of his employment. That Exhibit PW8 does not have any period of terms for the giving of notices for termination contrary to the Labour Act. That the defendant insisted that the employment of the claimant with her is an Adjunct basis. The claimant has argued that Exhibit PW8 is not a valid document defining the relationship operating between him and the defendant in that since the meaning of adjunct connotes a person joined to another in some duty or service, that this is not the case in this matter. In that the claimant was employed right from inception as Head of Department of Economics of the defendant, that rather than attaching the claimant a trained P.H. D. Degree holder to any lecturer other lecturers were attached to the claimant. It is clear that the claimant being employed as an adjunct lecture was made to work as a Professor or Permanent staff on full time basis. The defendant on its part submitted that the contractual relationship between the defendant and the claimant was manifested in the claimant’s letter of employment Exhibit PW8. That the relationship was temporal for a period of three months to commence on the 29th of December, 2010. The defendant denied making any oral or verbal promises to the claimant to make her appointment a permanent one. The question to answer now is whether or not from the totality of the evidence before the court, the claimant has discharged the onus of proof placed upon him to entitle him to the grant of the reliefs sought in the suit. It is trite that a valid contract comprises of a valid offer and a valid acceptance. A contract between the parties lies sorely and exclusively in the offer letter which was validly accepted by the claimant and there is no dispute as to that. This was the agreement between claimant and the defendant in this suit. This was the consideration that the claimant accepted. It is trite that in a contract of employment, parties are bound by the terms of contract. Thus in Amodu V Amode & Anor (2011) 23 NLLR (Pt. 66) 352 at 576 that:- It is trite law that parties in a contract are bound by its terms. The express terms of a contract of employment govern any aspect of the relationship between the employer and the employee. It is the defendant’s testimony that the claimant was offered an Adjunct appointment. Nika Fishing Co Ltd V Larvina Corporation (2008) 35 NSQ B2 P. 40 – 41 Niki Tobi JSC (as he then was) held that:- Parties are bound by the conditions and terms in a culprit they freely entered into. The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used. The offer letter of appointment for academic staff dated 3rd December, 2010 was issued to Dr. George Taiwo Irele by the Nigerian Turkey Nile University signed by the Registrar. This offer letter of employment containing the terms of employment which was pleaded and tendered Exhibit PW8 clearly stated I quote paragraph 1, that provides:- ……… we are pleased to offer you the post of lecturer in the Department of Economics, Faculty of Arts, Social and Management Sciences. Your appointmentis an Adjunct appointment. You will be joining as a part time member of the Nigerian Turkish Nile University Academic Staff Body, and take care of the economics in the above mentioned department. Subject to the discussion with you, this position will accrue the following remuneration and benefits (all figures are stated in Naira) are in accordance with the University’s laws and the terms as mandated by the National University Commission. Any clarifications with regards to the same are welcome. Basic Salary ………… Accommodation ……………… Other Allowances ……………… Total …………… N100,000.00 (One Hundred Thousand Naira) Only Please find attached the Terms and Conditions and Agreement documents for your perusal and consideration. These documents are to be signed, dated and returned to the Registrars office to confirm receipt, acceptance and consent. Your job shall commence on the 29th December, 2010. You are expected to contact the undersigned on the date of joining. Congratulations and welcome. We look forward to including you in our team and vision. SIGNED The Registrar For: Nigerian Turkish Nile University The terms and conditions of appointment was attached to the letter of appointment issued to the claimant Article 3 of the terms and conditions of appointment which provides for Adjunct appointment. i. The appointment of an Adjunct lecturer shall be on a semester basis and in respect of particular course(s) assigned to the lecturer. ii. An adjunct lecturer will be required to conduct lecturers and laboratory practical exercises for not less than a two (2) unit course per semester. He or she will also be required to examine the course(s) and take part as much as possible in other academic activities of the University. The claimant accepted the terms and conditions of the offer of appointment which states, he clearly understand the job description and responsibility that has been laid down for him and assure to fulfil the same to the highest academic standards. He signed the document on the 29th November, 2010. Where there is written contract of employment between an employer and employees, the court has a duty to determine the rights of the parties under the written contract. In the instant case, the claimant’s employment is regulated by the provisions of Exhibit PW8, some elements of the conditions have been reproduced above. The claimant seeks an order that the Exhibit PW8 is not a valid documents between him and the defendant and that the defendant is in breach of the contract of employment therefore. Evidentially, the claimant has not provided any other letter of employment apart from Exhibit PW8. He has not provided that the document was not signed by him or provided letter of assumption of employment that he reported to work earlier than 29th November, 2010 as stated in the letter of offer of appointment. It is the law that the contract of employment the bedrock upon which an aggrieved employee must found his case. The contract of employment determines the way and manner the claimant’s employment would be determined. Exhibit PW8 is a written contract of employment and the regulatory conditions of service, equity demands that the court should hold the parties bound by the terms of the employment agreement. See Arorami Rebbar Estate Ltd V Orogun (1999) 1 NWLR (Pt. 589) 302. Since a written contract offered by the defendant was accepted by the claimant it is a legal and valid contract between the claimant and the defendant at all times. The claimant has not been able to prove with credible evidence that the defendant breached the terms of the contract of employment or the provisions of the Labour law. The letter of offer clearly stated that the claimant will be joining the University as a part-time member, and to take care of the academic in the department of Economics, Faculty of Arts, Social and Management Sciences as an Adjunct lecture. So far there has been no other document produced by the claimant to the contrary. The offer letter is clear and unambiguous. In PAN Africa Int’l Supply Co Ltd & 1 Or V Jkpeez Impex Co Ltd & 1 Or (2010) 3 NWLR (Pt. 1182) 441 at 449 the Court of Appeal held:- Persons of full age and sound mind are bound by any agreement lawfully entered into by them. The duty of court is to enforce the agreement between parties and not to make agreement for the parties. In my view in construing the duties, rights and obligations of the claimant and the defendant is to confine myself to the words used in the letter of offer of appointment it shows clear intention of the parties that the claimant appointment is that of a part-time lecturer with the University and it stated the consideration to be paid to the claimant. It is therefore, my view that the claimant is not entitled to the N300,000.00 (Three Hundred Thousand Naira) Only as remuneration for the period from January 2010 to December 2011. On the claim of the claimant for N20,000,000.00 as general damages the defendant submitted that he did not provide any credible evidence to be entitled to this. Damages are not granted as a matter of course, but against the defendant for his wrongful act. They are presumed by law to be the direct natural and probable consequence of the act complained of and generally incapable of exact evaluation before damages are awarded, the defendant must have been found liable of the acts complained off and it is on that basis that the court would rest whatever damages it seeks fit to grant the claimant. For this reason the court declines to make any award on damages. For these reasons given above, the claimant claims fail and are hereby dismissed. Judgment is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE