DR. AUSTIN D. OSUHOR -VS- THE GOVERNING COUNCIL & 3 ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFROE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 12^TH FEBUARY, 2017

SUIT N0: NICN/ABJ/291/2016

BETWEEN

AUSTIN D. OSUHOR …………………………………………….APPLICANT

AND

THE GOVERNING COUNCIL
THE VICE CHANCELLOR …….…………………………… DEFENDANTS
THE REGISTRAR
THE BURSAR

REPRESENTATION

JOHNNY AGIM with J. OKORO, B. F. AGEDO for the claimant

S. OGBOJI with P. OGHAGBON for the defendants

JUDGEMENT

The claimant, by a General Form of Complaint with the accompanying frontloaded documents filed on 17^th August, 2016, approached the Court for the following reliefs:

1) A DECLARATION that the termination and or conversion of his employment to temporary staff was wrongful and in breach of the terms of his contract between Claimant and the Defendants.

2) A DECLARATION that the Claimant’s employment with the Defendants was termination and not a conversion.

3) A DECLARATION that the Claimant is entitled to N220,000.00 (TWO HUNDRED AND TWENTY THOUSAND NAIRA) only being monthly salary by virtue of the continuous engagement by the Defendants.

4) AN ORDER directing the Defendants to immediately pay the Claimant the sum of N1 ,366000.00 (ONE MILLION, THREE HUNDRED & SIXTY-SIX THOUSAND NAIRA) only being the outstanding balance of for period of seven (7) months from September, 2015 to April, 2016 at the monthly sum of N220,000.00 (TWO HUNDRED AND TWENTY THOUSAND NAIRA) only.

5) AN ORDER directing the Defendants to immediately pay the sum of N5,000,000.00 (FIVE MILLION NAIRA) only as damages for the breach of contract of employment between the Defendants and Claimant.

6) AN ORDER directing the Defendants to pay interest on the judgment sum at the rate of 10% per annum from the date of judgment until the judgment is fully liquidated.

Claimant’s Case
Claimant stated that the whole issue started in 2014, sometime on the 8^th, September when the 2^nd Defendant employed the Claimant to commence work as a Senior Lecturer and as a matter of urgency to commence work as the Acting Head of Department, Business Administration due to the fact that the National University Commission (N.U.C) would be visiting the University on inspection/verification exercise to the Department of Business Administration; and that the Claimant as Acting Head of Department would interface with the N.U.C officials for the verification exercise which took place on the 10^th of September 2014.

Though the Claimant commenced work in September and started teaching on the 6^th October, 2014 upon resumption of students, his letter of employment which was later issued to him was dated 13^th October, 2014. The contract of employment which was for one year ran its full course but as a practice at the University it is renewable subject to the Claimant applying for renewal one month prior to the expiration of the One Year contract of employment. The claimant exercised this option based on the advice of the school authority and applied for renewal in August 2015.

The Claimant averred that it was the common practice at the University that while waiting for renewal of contract of employment members of staff continue to work pending when they receive their letter confirming that their contract has been renewed. After the Claimant’s application for renewal and there was no response and his salaries were not paid; Claimant met the 2^ndDefendant who is the Vice Chancellor of the University to register his complaint but was promised again by the 2^nd Defendant that his complaint would be acted on but never did.

The Claimant having written to the Defendants for renewal and after working for seven (7) months according to the terms of the contract sought to be renewed without payment and no response to renew same, he downed tools by withdrawing his services to the defendants after he was orally informed by his superiors that his employment had been converted to that of a part-time lecturer.

The defendants filed their JOINT STATEMENT OF DEFENCE AND COUNTER CLAIM filed on 23^rd September, 2016.

Responding to paragraph 3 of the Statement of Fact, the Defendants deny that the Claimant was employed on 8^th September 2014 but that he was employed as can be gleamed from his employment letter on 13^thOctober, 2014.

In response to paragraphs 6 and 7 of the Statement of Fact, the Defendants averred that at no time was the Claimant advised by any of the Defendants to apply for a further renewal of his one year employment with the university; and that the Claimant was only invited to the meetings of the Senate and the Department because as at that time his employment contract of one year certain was still subsisting and as for the Departmental meeting, he was at that time on part time employment, and so still entitled to attend.

Defendants reacting to paragraphs 13, 14 and 15 of the Statement of Fact, averred that the Claimant despite being aware that part time lecturers are usually paid at the end of the session continuously appealed that his allowances be paid to him to meet some needs of his which were urgent and the University on compassionate grounds advanced him the said N174, 000. 00k (One Hundred and Seventy Four Thousand Naira) only, being payment for the number of hours to the credit of the Claimant.

Answering paragraphs 17 and 18 of the Statement of Fact, the Defendants denied owing the Claimant any amount of money as claimed therein and states that by the conversion of the Claimant’s employment to that of part time basis, the Claimant ceased to earn the said amount of N220. 000. 00k (Two Hundred and Twenty two Thousand Naira) only per month, hence cannot validly compute his salary at that rate from the time of the expiration of his temporary full time employment contract with the University.

COUNTER CLAIM OF THE DEFENDANTS AGAINST THE CLAIMANT.

The Defendants/Counter claimants hereby adopts and repeats paragraphs 1 to 14 of their statement of defence as if same were set out specifically for the purpose of this counter claim.

The Defendants aver that this suit was instituted against them for no just cause but purely out of malice and gold digging.

That the abscondment of the Claimant from his duties at the University without notice put the University to an unnecessary hardship and difficulty as they were compelled to get a substitute to carry on his responsibilities.
That the abrupt abscondment from his duties by the Claimant is a breach of his contract with the Defendants with its attendant consequences.

WHEREOF, the Defendants/Counter Claimant claim against the claimants/Defendant the following:

A DECLARATION of Court that the abscondment of the Claimant/Defendant from his duties in the University without any notice amounts to a breach of contract.

AN ORDER of Court directing the Claimant/Defendant to pay the Defendants/counter claimants the sum of N2, 500, 000. 00k (Two Million Five Hundred thousand Naira) only as damages for breach of contract.

The cost of this action.

CLAIMANT’S REPLY TO DEFENDANTS STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM filed on 6^th October, 2016.

Claimant admitted paragraphs 3 and 4 of Statement of Defence only to the extent that the Letter of Appointment is dated 13th October, 2014. However, he actually resumed work on the 8th of September, 2014 in view of the National University Commission (N.U.C) resource verification exercise which took place on Wednesday 10th September, 2014.

Replying paragraph 9 of the Statement of Defence, defendant stated that at no time did he appeal to be advanced of funds aside his legitimate demands for his salaries for the period worked or he would down tools and subsequently he got alert payment of N174,000.00 (One Hundred and Seventy-Four Thousand Naira) only and on enquiry from the Bursar (4^th Defendant) he was told it was his salary.

CLAIMANT’S REPLY TO DEFENDANTS COUNTER-CLAIM

Claimant deny paragraph 16 of Statement of Defence and Counter-Claim and state that Defendants claim is laughable as he does not have any personal bone to grind with the Defendants but only asking for his legitimate entitlement as a respected citizen of the country who deserves to be paid his legitimate wages.

Claimant in response to paragraph 17 and 18 of Statement of Defence and Counter-Claim stated that the Defendants were put on adequate notice as to what the consequences of their actions of not paying him his salaries from September, 2015 to April, 2016 would be which was his treat of downing tools if not complied to. Hence, Defendants claim that Claimant absconded from his duty post and caused them hardship is baseless and false.

The Claimant contended that the Defendants/Counter-Claimants are not entitled to any of their claims and prayed this Honourable court to dismiss this defence/counter-claim with substantial cost as the averments contained in their Statement of Defence afford no defence to the Claimants suit.

The Claimant urged this Honourable Court to find in his favour and grant his claims/prayers as contained in claimants Statement of Facts.

At the trial, the claimant testified on his own behalf as CW; while Francis T. Ochei , and Samson Obien both Staff of Veritas University Abuja , testified as DW1 and DW2 respectively. Thereafter, parties filed their respective written addresses. The defendant’s final written address is dated and filed on 29^th September 2017, while the claimant’s is dated and filed on6^th November, 2017. The defendant’s did not file a reply on points of law.

DEFENDANTS FINAL WRITTEN ADDRESS filed on 29^th September, 2017.

ISSUES
Whether the Claimant’s appointment was ever terminated by the 1^stDefendant.

Whether the Claimant’s appointment was not properly converted from that of temporary senior lecturer to part time lecturer by the Defendants.

Whether the Claimant is entitled to his previous salary of N220,000.00k (Two Hundred and Twenty Thousand Naira Only) after the conversion of his appointment from temporary senior lecturer to part time lecturer from the 12^th October 2015.

Whether the Defendants is in anyway whatsoever in breach their contract with the Claimant for him to be entitled to any damages.

Whether the Claimant is not liable to the 1st defendant for breach of contract having abruptly absconded from the service of the 1^st Defendant without any notice.

ON ISSUE 1
Whether the Claimant’s appointment was ever terminated by the 1^st Defendant.

Learned Counsel for the Defendant G. S. Igbojo Esq. relying on the case of KUPOLATI Vs MTN (NIG) COMM. LTD (2016) ALL F.W.L.R (PT 847) at P 499, Paras. A-B, submitted that:
“When a contract is reduced into writing, the writing gives the terms agreed upon. Where the parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to vary, subtract from or contradict the terms of the written contract”

He submitted that an agreement that terminates itself by its content endorsed by both parties voluntarily cannot be said to have been solely terminated by just one party to entitle the other party to any relief whatsoever. UWAH Vs AKPABIO (2014) ALL FWLR (PT 738) at P. 989, Paras. F-H.

Defendant Counsel submitted as held by the Supreme Court in the case of AJI Vs CBDA (2015) ALL F.W.L.R (PT 784) at P.166-167, Paras. D-E and Paras. F-A, that: “When an employee complains that his employment has been wrongfully terminated, he has the onus first to place before the court, the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is the defendant to an action brought by the employee to prove any of these issues. As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties………………….”

ON ISSUE 2
Whether the claimant’s appointment was not properly converted from that of temporary senior lecturer to part time lecturer by the 1^st Defendant.

It is counsel’s contention that the fact that the Claimant was aware of his status as a part time lecturer with the 1^stDefendant was clearly admitted by him during cross examination when he said he heard of his new statute as a part time lecturer via grape vine and by Paragraph 11 of his additional witness statement on oath where he stated that on inquiry from his superior, he was told verbally that he was now a part time lecturer. OMISORE Vs AREGBESOLA (2015) ALL FWLR (PT 813) at P.1735, Paras. E-F that: “Evidence obtained in cross examination on matters that are pleaded, that is on matter on which issues were joined is admissible. In the instant case where the 3rd respondent elicited evidence from appellant’s witnesses during cross examination which supported their pleaded facts, the lower court rightly held that the evidence elicited was properly admitted by the tribunal “.

ON ISSUE 3
Whether the Claimant is entitled to his previous salary of N220, 000.00k (Two Hundred and Twenty Thousand Naira Only) after the conversion of his appointment from temporary senior lecturer to part time lecturer from 12^th October 2015.

Citing the Supreme Court in case of OKEREKE Vs STATE (2016) ALL F.W.L.R (Pt 827) at P.794, Paras. C, Defence counsel submitted that: “Where facts are not disputed by both parties, they stand established and require not further proof”. He argued that flowing from the case of KUPOLATI Vs MTN COMM. LTD (SUPRA), it is only the content of the letter of appointment of the Claimant issued to him by the 1^stDefendant on l3^th October 2015 that can be legally contended with in this case as it was also held in the case of UWAH Vs AKPABIO (SUPRA) that: “Whenever parties enter into an agreement in writing they are bound by its terms and neither the parties nor the court is legally allowed to read into the agreement, terms on which the parties did not agree to”

ON ISSUE 4
Whether the 1^stDefendant is in any way whatsoever in breach of its contract with the Claimant for him to be entitled to any damages.

Defence Counsel relying on the case FBN PLC Vs IMASUEN & SONS (NIG) LTD (2014) ALL F.W.L.R (PT 725) at P.368, Paras. H, submitted that: “A breach of a contract occurs when one of the parties in breach has acted contrary to the terms of the contract” Defendant Counsel submitted that the Claimant in this case, very unfortunately built his case and claimed his reliefs entirely on terms he unilaterally introduced into the letter of appointment issued to him by the 1^st Defendant contrary to law; as it was held by the Supreme Court in the case of IDUFUUEKO Vs PFIZER PRODUCTS LTD (2014) ALL F.W.L.R (PT 745) at P.296, Paras. E-F.

Furthermore, that the Claimant cannot claim in law that his said 13^th October, 2014 appointment continued after 12^thOctober, 2015, as there was no such provision in the said letter of appointment for any type of renewal or continuation on the same terms for him to make such claim. LEWIS Vs U.B.A PLC (2016) ALL F.W.L.R (PT 833) at P.1879, Paras. G-H. It is defence counsel’s submission that the 1^st Defendant did not anywhere, whether from the content of its agreement with the Claimant or from evidence state that the Claimant’s appointment will continue on the same terms at its expiration on 12^th October 2015, hence the Claimant cannot on his own foist an unknown term of contract on the 1^stDefendant as it was held in the case of H.N.I.K.G Vs UBAPLC (2014) ALL F.W.L.R (PT 719).

ON ISSUE 5
Whether the Claimant is not liable to the 1^st Defendant for breach of contract having abruptly absconded from the service of the 1^st Defendant without any notice.

Counsel tot eh Defendants submitted as held in the case of F.B.N PLC Vs IMASUEN & SONS (NIG) LTD (2014) ALL F.W.L.R (PT 725) at P 368, para. H that: “A breach of contract occurs when one of the parties in breach has acted contrary to the terms of the contract”. Counsel noted that it is the Claimant’s personal response during cross examination that communication of staff and the 1^st Defendant should be in wring, yet he choose to breach his contract with the 1^stDefendant by abruptly stopping work without any notification thus causing the Defendant to suffer. F.B.N PLC Vs IMASUEN (SUPRA; S.P.D.C LTD Vs NWABUEZE (2014) ALL F.W.L.R (PT 724) at p. 137, Paras., A-B held that: “In action for breach of contract, the damages recoverable are the artless and likely consequences or losses logically foreseeable by the parties and ought to have been foreseen by them at the time of the contract — as ipso facto corollary to a breach by any of the parties” He submitted further that the Claimant having flagrantly breached the terms of his contract with the 1^st Defendant and admitting same before this court when he unequivocally stated that he down tools without any notice as situated by the 1^stDefendant which the Claimant admitted during cross examination should be in writing, the 1^st Defendant is entitled to damages. BRITISH AIRWAYS Vs ATOYEBI (2013) ALL F.W.L.R (Pt 658) at P 908-909, Paras H-C,

The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 6^th November, 2017.

ISSUES:-

1) Whether or not the Defendants from evidence on record, terminated the contract of employment of the Claimant and were in breach of the said contract of employment, and the Claimant is entitled to damages?

2) Whether from the evidence on printed record the Claimant is entitled to N220, 000.00 (Two Hundred and Twenty Thousand Naira) as monthly salary for the period of sevens he worked as a Senior lecturer for the Defendants?

3) Whether the Defendants by the record and evidence adduced in this case are entitled to their Counter-Claim?

ON ISSUE 1
Whether or not the Defendants from evidence on record, terminated the contract of employment of the Claimant and were in breach of the said contract of employment, and the Claimant is entitled to damages?

Learned Counsel to the Claimant Johnny Agi Esq. submitted that the contract was renewed by the parties based on the former terms after the Claimant applied for renewal and the Defendants urged him to continue to perform is usual duties under the old expired contract and that the

existence of a contract can be implied from the conduct of the parties to the contract. MUDIAGA-ODJE v. Y.P.S. (NIG.) LTD (2014) 5 NWLR (Pt. 1400) 412 at page 430 paras G-H, per Bage, JCA. Furthermore, it is counsel’s submission that there is no stipulation that a contract of employment cannot be made by conduct. Page 13 of E.E. Uvieghara, Labour Law in Nigeria (Malthouse Press Limited) 2001, particularly para 2 lines 7- 11 where the learned author quoted the court in ADETOBA v. GODWIN WORLD-WIDE LTD (1982) OGSLR 160-161 thus: “The general principles of contract apply to the creation of contract of service, and an agreement of service is equally enforceable… Whether it be expressed in writing, indeed, by word of mouth or by conduct “. The learned writer concluded thus: “….Thus, a contract of employment may be in writing, under seal, or it may be verbal…, It may be by conduct. An oral contract, no matter the status of the person so employed is as valid as a written contract “We further respectfully commend the court to see Section 54 of the National Industrial Court Act, 2006 on the meaning of ‘employer’ and ‘employee’. Claimant Counsel also submitted that based on Section 169 of the Evidence Act 2011, that the Defendants cannot deny the fact that the renewed contract was based on the old terms having urged the Claimant to continue working on the same old terms and have taken benefits from the Claimant’s services as a full-time employer. That the Defendants are estopped from denying that the Claimant is a full-time employee. MABAMIJE v. OTTO (2016) 13 NWLR (Pt. 1529) 171 SC particularly page 191 paras C-E per Rhodes Vivour, JSC.

It is counsel’s submission that the acts of the Defendants amounts to constructive termination of the Claimant’s contract of employment. MISS EBERE UKOJI v. STANDARD ALLIANCE LIFE ASSURANCE CO. LTD. (2014) 47 NWLR (Pt. 154) 531, the Court held that “an employer will be regarded as having constructively terminated an employment relationship if an employee resigns because the employer’s actions have either: Significantly changed the terms and conditions of the employment; or Had a material, adverse effect on the employee’s working condition.” He submitted that this was also the decision of this Honourable Court per Hon. Justice Dr Benedict Bakwaph Kanyip in the case of MR. PATRICK OBIORA MODILIM v. UNITED BANK FOR AFRICA PLC, Suit No.: NICN/LA/353/2012 delivered on the 19^th June 2014. Counsel to the claimant, urged the Court to hold that the employment contract of the Claimant was constructively terminated by the Defendants in line with the modern approach to employment contract principles as laid down by the English Court of Appeal in the leading case of NOTTINGHAM COUNTY COUNCIL v. MEIKIE (2005) ICR 1; TULLETT PREBON PLC v. BGC BROKERS (2011) IRLR 420.

Claimant Counsel further submitted that the constructive termination of the Claimant’s employment is contrary to the terms of the contract which ought to run for one year; and that the Claimant is entitled to damages against the Defendants having suffered loss of expected income. Per KARIBI-WHYTE, JSC in IMOLOAME v. W.A.E.C. (1992) NWLR (Pt. 265).

ON ISSUE 2
Whether from the evidence on record the Claimant is entitled to N220, 000.00 (Two Hundred and Twenty Thousand Naira) as monthly salary for the period of sevens he worked as a Senior Lecturer for the Defendants?

Claimant’s Counsel contended the Defendants having represented to the Claimant that he should continue to work based on the old terms and condition the contract to be renewed cannot turn around to contend in paragraph 11 of their Statement of Defence that the Claimant cannot compute his salary on the existing rate. The Defendants are bound by their representation and thereby estopped. Counsel continued that, assuming but not conceding that the contract was converted submitted that it is trite law that an agreement to vary the terms of a contract must be valid and that the purported alleged unilateral conversion from full time to part time is invalid. IDUFUEKO v. PFIZER PRODUCTS LTD. (2014) 12 NWLR (Pt. 1420) 97 at 101 ratio 4; ADEDOYIN v. AFRICAN PETROLEUM PLC (2014) 11 NWLR (Pt.1419) 415 at 441 para G.

It is counsel’s submission that the Defendants after leading the Claimant to work on the basis of the old terms and conditions, and taking the benefits therefrom cannot turn around through a back dated letter purporting to change the terms. A.-G., RIVERS STATE v. A. – G., AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) 31 particularly ratios 12 and 13. He argued that the facts which estopped the Defendants were sufficiently pleaded in paragraphs 7, 8, 9 and 11 of the Claimant’s Statement of Facts as well as in his Reply to Defendant’s Statement of Defence. D.T.T. ENTERPRISES (NIG.) CO. LTD. v. BUSARI (2011) ALL FWLR (563) 1818 S.C.

ON ISSUE 3
Whether the Defendants by the record and evidence adduced in this case are entitled to their Counter-Claim?

Learned Counsel submitted that before the Defendants/Counter-Claimants can be entitled to their counter-claim they must prove their counter-claim. OGBOJA v. ACCESS BANK PLC (2016) 2 NWLR (Pt.1496) 291 cit 320 held thus: “A counter-claim is a separate, independent and a distinct action. The counter Claimant must prove his claim before he can obtain Judgment. See Jeric (Nig.) Ltd v. Union Bank of Nig. Plc LPELR SC72/1998; (2000) 15 NWLR (Pt.691)447; R-Benkay (Nig.) Ltd. v. Cadbury (Nig.) Plc (2006) 6 NWLR (Pt.976)338.”

C.B.N. v. N.D.LC (2016) 3 NWLR (Pt.1498) 1 CA at page 47. Claimant Counsel further submitted that it is elementary law that he who alleges must prove and that the Counter-Claimants failed to dislodge the testimony of the Claimant in cross-examination and did not present any credible evidence to support their claim. JUKOK INT’L LTD. v. DIAMOND BANK PLC (2016) NWLR (Pt. 1507) 55 at 108.

It is counsel’s submission that the Defendants who are already in breach of the contract of employment and whose wrong forced the Claimant to down his tools cannot counter-claim and benefit from their own wrong. SAKA v. UUH (2010) 4 NWLR (Pt.1 184) 404 at 428 paras C-D. Counsel tot eh claimant continued. Arguing that, assuming but not conceding there was a breach submitted that the Counter- Claimants cannot legally claim for damages after being aware that the Claimant was going to down tools and the consequences of such but did nothing to mitigate a foreseeable injury. Per Musdapher, JSC in U.B.A PLC v. BTL INDUSTRIES LTD. (2007) ALL FWLR (Pt. 352) 1615 S.C. He submitted that the counter-claim for two million, five hundred thousand Naira by the Counter-Claimants since it is not for an ascertained amount is a claim for unliquidated damages. Therefore, that proof of the quantum of damages suffered is necessary and the Counter-Claimants have failed woefully to lead reliable evidence in this respect. RUTHLINZ INTER’I INVEST. LTD. v. IHEBUZOR (2016) 11 NWLR (Pt. 1524) 409 at 435, para H, per Orji-Abadua, JCA.

On the 14^th November 2017 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs he sought and whether there is any merit the defe4ndants counter claim.

For ease of reference the claimant’s claims are as follows

1) A DECLARATION that the termination and or conversion of his employment to temporary staff was wrongful and in breach of the terms of his contract between Claimant and the Defendants.

2) A DECLARATION that the Claimant’s employment with the Defendants was termination and not a conversion.

3) A DECLARATION that the Claimant is entitled to N220,000.00 (TWO HUNDRED AND TWENTY THOUSAND NAIRA) only being monthly salary by virtue of the continuous engagement by the Defendants.

6) AN ORDER directing the Defendants to pay interest on the judgment sum at the rate of 10% per annum from the date of judgment until the judgment is fully liquidated.

In reliefs 1)-3) the claimant is seeking declaratory reliefs to wit; the conversion of his employment with the defendants was wrongful, amounted to a termination of that appointment and he was entitled to his salary of N220, 000.00 monthly for additional the period he worked (September 2015-August 2016) to be deemed a continuous employment.

While in reliefs 4-6, the claimant seeks executory orders for payments of the balance of his salaries and damages plus post interest.

Before I delve into the merits of the case, it is necessary I address the objection of the claimant’s counsel to Exhibit D2. The claimant counsel in their final written address, having raised their objection in open court, contend that this document, purporting to convert the claimant’s employment to a part time employment, was tendered by DW1, who they argue was not the maker, arguing further that the maker was the 3^rd defendant and there was nothing before the court as to why the 3^rd defendant could not tender it, to the claimant, this document is inadmissible hearsay. Noting further that the frontloaded copy was not signed whilst Exhibit D2 bears a signature. The defendant did not join issues with the claimant as regards this objection.

With respect to the exhibit in question is Exhibit D2, it is pertinent to point out that the defendants had in their statement of defence clearly put the claimant on notice to produce the Letter converting him to a part time lecture. And although I agree with the claimant counsel that the maker of a document is in law is the person required to tend.er it unless adequate foundation is laid as to the inability or impracticality of the maker tendering the document. But having been put on notice and considering the provisions of Section 91 of the Evidence Act which provides as follows; –

Section 91 : Secondary evidence of the contents of the documents referred to in Section 89 (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it-

when the document to be proved is itself a notice;

when, from the nature of the case, the adverse party must know that he will be

required to produce it.

See also CHUKWURA V. NDUKA & ANOR. [2008] LPELR – 3985 [CA] P. 29 – 30, PARAS. B – A: Where the position of law is very well amplified in Buhari v. Obasanjo [2005] 13 NWLR [Pt. 941] 1 at 198 where the Supreme Court said as follows – “A party on whom Notice to produce is served is not under any obligation to produce

the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act…”

Furthermore, as a matter of law, documentary evidence can be admitted in the absence of the maker. See IGBODIM V. OBIANKE (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility

The position of the law as of today is that relevancy trumps admissibility. See the case of ANDREW & ORS. v. THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH & ORS. (2013) LPELR-20203(CA) where it was heled that “’Relevancy of a piece of evidence is the relationship it has with the facts or issues in the case or matter, which governs its admissibility. Admissibility on its part, as seen in the provisions above, is dependent on the law and principles of practice and so a piece of evidence may be relevant but depending on the position of the law, may not be admissible in evidence, though admissibility itself is based on relevancy generally. The law is that what is not relevant is not admissible in evidence as it would be of no use in a case. See AGUNBIADE V SASEGBON (1968) NMLR 223 AT 226; TORTI V. UKPABI (1984) 1 SC, 370; OYEDIRAN V. ALEBIOSU II (1992) 6 NWLR (249) 550 AT 559; FAWEHINMI V N.B.A. (NO.2) (1992) 2 NWLR (105) 558 AT 583; AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR (594) 170 AT 183.” per GARBA, J.C.A. (P. 11, PARAS. C-G)’”

In the instant case, although the maker was not called and no evidence presented as to why he was not called, the receiver of the document was the claimant and therefore was called in addition DW2, the person who purportedly delivered the document was in fact called by the defendants. Now I find that these and all other questions raised by the Claimant Counsel in respect of Exhibit D2, go to the issue of probative value i.e. the weight to be attached to the document and I shall address these subsequently in this judgement.

The claimant is seeking redress in the form of the balance due to him as salary and allowances for the Seven months (September, 2015 to April, 2016) he worked after the expiration of his contract with the defendants i.e. Exhibit C3 on his pre-existing salary rate contained in C3. It is the claimant’s case that he applied for a renewal of the contract before the expiration of Exhibit C3 which was contracted to run for one year only from 12^th October 2014 and at separate times during the seven months of additional services he rendered he was told by the 2^nd defendant to continue his service pending when a fresh contract would be effected, even when he learnt unofficially from his immediate supervisors that his contract had been effected but on part time basis he went again to the 2^nd defendant who assured him that the issue would be resolved and that he should continue to working. He latter reapplied in January, 2016 when he learnt that others were doing so but throughout this period he had not been paid any salary. In April, after complaining to his head of department that he would stop work having not received a formal letter of employment or any salary. On 27^th April, the claimant received a credit alert of N74, 000 from the defendant and upon due enquiry was informed that the amount represented his total entitlements for the seven months he had worked.

In order to determine the claimant’s relief, the court is required to find an existing legal binding contract between the parties for the period of seven months.

A close look at Exhibit C3, reveal a well drawn up contract, with specific terms and conditions stating salaries and responsibilities which the court can easily interpret as evincing a clear unambiguous intention to create legal obligation.

Now, the crux of this case I find, is the nature of the claimant’s appointment post 11^th October 2015, Clearly, it is not in doubt that Exhibit C 3 created a One year temporary appointment. It is also necessary to note that the said exhibitC3 made no mention of, or did not reserve any option of renewal. The fact that the claimant approached the 2^nd defendant who made promises of intention to sort things out I find, does not create a legal obligation that this court can uphold. With the expiration of Exhibit C3, the claimant required another contract to run from the 12^th October, 2015 but there is none before the court. The claimant has asked the court to find that his contract was continued by conduct, but would require some overt act of the defendant to expressly indicate their buy in into the continuation. And the claimant has not shown the court any overt act of the defendants from which the court can infer a buy in or commitment of the defendant to the contract being continued on its previous terms.

The fact that the claimant was allowed to work for seven months I find, cannot be considered the defendants overt act continuing the contract. As in law, written contract can only be varied by another written contract See the case of UNION BANK OF NIGERIA LIMITED & ANOR v. BENJAMIN NWAOKOLO (1995) LPELR-3385(SC) 1.

And even where the conduct of the parties is said to have varied a contract there must be an agreement to so vary and such must be discernable by the said conduct. I find no such conduct in this case. The claimant has not shown the court the legal basis to his claim and as such the case of the claimant therefore fails.

Now to the defendants Counter claim, the defendants are asking the court to grant the following reliefs;

A DECLARATION of Court that the abscondment of the Claimant/Defendant from his duties in the University without any notice amounts to a breach of contract.

AN ORDER of Court directing the Claimant/Defendant to pay the Defendants/counter claimants the sum of N2, 500, 000. 00k (Two Million Five Hundred Thousand Naira) only as damages for breach of contract

In reliefs a) and b), the claimant is asking the court to declare that the claimant in leaving the institution after teaching for seven months following the expiration of his contract i.e. Exhibit C3 had absconded from duty. Now, the defendants’ case is that they had offered the claimant a contract on part time bases on the 12^th October, 2015 and urge the court that in leaving the defendants, this contract breached for which the court should award them N2, 500, 000. 00k (Two Million Five Hundred Thousand Naira) only as damages for breach of contract.

It is the defendants case that the part time contract was evidenced by Exhibit D2.

Bearing in mind that the court is required to determine a legally enforceable contract as the bedrock of the defendant’s counterclaim or counter claimants claim and looking closely at Exhibit D2 become a necessity for the proper determination of this issue. Exhibit D2 reproduced below:

VERITAS UNIVERSITY ABUJA

Rev. Fr. Dr. Peter IK Okonkwo

Registrar

12^th October, 2015

Dr. Austin D. Osuhor,

Y20B Sunnyvale Estate,

Abuja.

Dear Dr. Osuhor

Appointment as a Part-Time Lecturer

The Vice chancellor has directed that your “Temporary appointment with the University as a Senior Lecturer be converted to a Part Time Appointment. Your new appointment takes immediate effect and you are to meet with your Head of Department for further briefing.

Please note that you will be paid your entitlements at the existing rate at the end of 2015/2016 academic session and subject to a written certification from your Head of Department.

Thank you

(Signed)

Rev. Fr. Dr. Peter IK Okonkwo CMF

Registrar

Vice Chancellor

Bursar

Dean College of Management Sciences

Head of Department of Business Administration

Principal Internal Auditor

The claimant had vehemently denied ever receiving this letter and the defendants called DW2 who testified that he has in fact himself dispatched / served the said letter to the claimant. The law has been restated in respect of “where there is an allegation that a document was sent to a person and that person denies receipt of such a document proof of receipt by that person can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document. NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B. followed in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082)

In the instant case, the defendant called DW2 who adopted his written statement on oath D4 and testified that he served the claimant the said letter. Now the question is: how credible is the DW2; in averment 2, Dw2 an Assistant Chief Clerical Officer averred that “On 12^th October, 2015 I was handed a letter dated 12^th October, 2015 b the Registrar of Veritas University to deliver to Dr. Austin Osuhor which I delivered to him personally” DW2 went on in averments 3 and 4 to state the person copied the said letter, that it was not sealed and he read through and understood the content and DW continued to narrate the contents of the said letter followed by the oath.

Nowhere in DW’s affidavit did he give any details of the actual dispatch, delivery or service of D2 on the claimant. Where was the service made, what time and in what office?, all these are details required to establish the facts. The averments to the contents and those copies I find, superfluous and of no import. Even in open court during his testimony after adopting his written statement on oath was limited to the words “I personally served D2 on the Claimant” and under cross examination he said the following:

Cross Examination by J. Agi Esq.

DW2 I am the Assistant Chief Clerical Officer

Agi What are your functions

DW2 I receive memos, record them and pass them to relevant persons

Agi Did you record this

DW2 Yes

Agi And the mail you received were all marked

DW2 All those going out but not those to Staff of the College

Agi So you do not have record of some of the memos you served

DW2 yes

Agi And you have no record of this memo you served

DW2 No

Agi So you have no record of when he was served

DW2 I have a log book for mail that went to the staff of the College

Agi That’s all.

Due to the lack of factual details as to the nature time and venue of the said service of the said DW2 together with his reticence in response to questions and the lack of records of the said dispatch, I am inclined to disbelieve DW2. Looking at his witness statement on oath D4 and his testimony in court, the absence of details and non-existence of basic secretarial decorum and records, I find that this witness unreliable and his testimony and evidence do not fit the bill or rise to the degree of being or giving witness’ evidence credible enough that the court would believe that the claimant was actually served with the document.

Now to the document itself. Bearing in mind that the court is required to determine the existence of a legally binding contractual relationship, I find that the fact that D2 was dated 12^th October, 2015 means it was dated after the expiration of the Temporary Contract and without more the court is unable to find the authority on which the expired contract could be continued afororti varied. Secondly, the letter makes no reference to the claimant’s earlier applications for renewal to enable the court construe a “buy in” of the claimant to the new contract. Bearing in mind that two persons or more are required to create a contract; the words “The Vice chancellor has directed that your “Temporary appointment with the University as a Senior Lecturer be converted to a Part Time Appointment” without an acceptance from the claimant, I find have no basis in a contract between parties. The claimant is required to accept the defendant’s terms and indicate so either by his letter applying for the renewal stating the terms desired, followed by the defendants acceptance of those terms of the claimant or by the defendants acknowledging the claimant’s request and stating the terms to governing the new or extended contract to which the claimant would be required to reply accepting same. The language of ‘directing’ and ‘converting’ unilaterally without any acquiescence from the claimant I find cannot create a contractual relationship.

Together with the fact that Exhibit D4 is bereft of any marking showing the claimant ever received it, I find that Exhibit D4 has no probative value and is hereby disregarded.

This means that the defendants have failed to show the court the binding contractual relationship between the defendants and the claimant in order to premise their claim for damages. The law is that you cannot put something on nothing and expect it to hold. MCFOY Vs. UAC 1960 A.C. 1. Without the subsistence of a valid contract, the question of breach of contract cannot be entertained. The defendants have failed to prove their case.

The defendants counter claim, I find has no merit and therefore fails.

All in all, I find that there is absolutely no merit in this suit, the claimant’s case lacks merit and fails and is dismissed, the defendants counterclaim also lacks merit and therefore also fails and is dismissed accordingly.