ALH. SALEH BUBA -vs- ADAMAWA STATE UNIVERSITY CONSULTANCY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

SUIT NO: NICN/YL/02/2017

DATE: MAY 17 2018

BETWEEN:

ALH. SALEH BUBA – CLAIMANT

AND

ADAMAWA STATE UNIVERSITY

CONSULTANCY SERVICES LTD – DEFENDANT

REPRESENTATION:

A.J Elias Esq., S,G Udoh Esq., and O. E Natayi Esq., – for Claimant;

Dr. J.S Wafinzida- for Defendant

JUDGMENT

The Claimant approached this court vide a General Form of Complaints filed along with the requisite frontloaded court processes on 26^th January 2017. By an Amended Complaint and Statement of Facts dated 3^rd November 2017, which order was granted on 7^th November 2017, the Claimant prays the court for the following Reliefs:

(i) A Declaration that the Claimant is an employee of the Defendant from 26^th July 2006 to 17^th May, 2013.

(ii) A Declaration that he Claimant is entitled to all his salaries, allowances and benefits from the Defendant accrued from 26^th July, 2006 to 17^th May, 2013.

(iii) The sum of N1,996,181.95 (One Million, Nine Hundred and Ninety Six Thousand, One Hundre4d and Eighty One naira Ninety-Five Kobo) only being unpaid salaries for 35 months from the month of July 2010 to May, 2013.

(iv) The sum of N245, 000.00 (Two Hundred and Forty-Five Thousand naira) only being allowance for first 28 days in office.

(v) The sum of N111, 531.66 (One Hundred and Eleven Thousand, Five Hundred and Thirty One naira Sixty-Six Kobo) only being leave grant for 2010, 2011 and 2012.

(vi) The sum of N57, 033.77 (Fifty Seven Thousand Thirty Three naira Seventy-Seven kobo) only being one month salary in lieu of notice of disengagement.

(vii) The sum of N390, 360.60 (Three Hundred and Ninety Thousand Three Hundred and Sixty naira Sixty Kobo) only being contract gratuity.

(viii) The sum of N3, 000,000.00 (Three Million Naira) only being general damages for the hardship and [traumatization] of the Claimant as a result of non-payment of the Claimant entitlement by the Defendant.

(ix) 20% interest on the judgment debt.

(x) Cost of litigation.

Upon service of the processes, the Defendant reacted, and on 13^th November, 2017 filed its Consequential Amended Statement of Defence dated 10^th November 2017, wherein it variously denied the Claimant’s claims and joined issues with the Claimant on his case. The Claimant then filed his Reply to the said Consequential Amended Statement of Defence dated 24^th November, 2017. Pleadings thereafter closed and the matter was set down for trial.

On 5^th December, 2017 the Claimant opened his case and testified for himself as his sole witness (CW). He adopted his Statement on Oath deposed to at the Registry of the court on 6^th November, 2017 and tendered seven (7) sets of documents admitted in evidence and marked as Exh.CS1-CS7.

From the pleadings and evidence led at the trial, the case of the Claimant is that he was employed by the Defendant sometime on 26^th July 2006 as an Administrative Officer for an initial period of two years (exh. CS1), and after a committed and resourceful work effort, the Defendant, by a letter dated 12^thAugust, 2009, extended his said appointment to another two year period, from 4^th September 2009 to 5^th September, 2011(exh.CS2), but that some time later, he received a letter dated 17^th December 2010 informing him of the temporary closure of Defendant company’s operation, stating that he should stay at home until the financial position of the company improves, and that payment of all outstanding salaries and allowances was assured(exh.CS3). He further testified that he was not paid even with the summary of outstanding claims in the Handover Note by the erstwhile General Manager prepared on 20^th October 2014(exh CS4), he also made efforts to even obtain an IOU loan to support himself during the period (exh CS5), and also made formal application demanding release of his salaries vide a letter dated 10^th November 2011, indicating the total outstanding sum due to him (exh.CS6). Rather, he later received another letter dated 17^th May 2013 informing him that he has been disengaged from the company (exh.CS7). He stated that he was owed many months areas of salaries before the financial crisis that hit the Defendant, and also owed leave grant for 2010 to 2012, and contract gratuity, as well as allowance for first 28 days in office. He stated that he was also entitled to be paid one-month salary in lieu of notice, flowing from his immediate disengagement in May 2013. On the whole, he claimed he was owed unpaid salaries for 35 months, spanning from the month of July 2010 to May 2013.

On the part of the Defendant, its sole witness Dr. Shehu Haruna (The General Manager of the Defendant), at the proceedings of 11th December, 2017 opened the Defendant’s case as DW. He adopted, as his evidence in chief, his Written Statement on Oath sworn to at the Court’s Registry on 13^thNovember, 2017, but did not tender any document in evidence as exhibit. His testimony is to the effect that the Defendant indeed employed the Claimant for a fixed tenure of two years and later renewed it for another two years, spanning from July 2006 to September 2011. He confirmed the Defendant’s admission of owing outstanding salaries and allowances from July 2010- October 2010, amounting to the sum of N228.135 representing 4 months’ salary at the rate of N57, 033.77 per month. The Defendant vigorously denied the assertion of the Claimant’s claim of entitlement to leave grant, contract gratuity, as well as allowance for first 28 days in office.

DW also stated that the Claimant’s entitlement to one month salary in lieu of notice was used in settling part of his accommodation bills of which the balance outstanding bill was magnanimously cancelled by the Defendant, after applying the set off. He contended that the Claimant’s employment did not extend beyond 5^thSeptember 2011, contrary to the Claimant’s assertion that was in the Defendant’s employment till May 2013 when he was formally disengaged.

Parties closed their respective case at the proceedings of 11^th December 2017, and matter was thereafter adjourned for filing of Final Written Addresses by both counsel. On 15^th March 2018, the Final Written Addresses filed and exchanged by both counsel were adopted after oral adumbration of issues set out for determination by both counsel.

COUNSEL’S SUBMISSIONS

Submissions by Defendant’s Counsel:

In his Final Written Address dated 20^th January 2018and filed on 22^nd January

2018, learned counsel for the Defendant, Dr. J.S Wafinzida, formulated two issues for determination, viz:

Whether or not the claimant did prove by his evidence adduced before this Hon. Court that he had been in the employment of the defendant from 26^th July, 2006 to 17^th May, 2013?
Whether or not the claimant is entitled to all wages, salaries and other benefits from the defendant for the period between 26^th July, 2006 to 17^th May, 2013?

On issue (i) -Whether or not the claimant did prove by his evidence adduced before this Hon. Court that he had been in the employment of the defendant from 26^th July, 2006 to 17^th May, 2013: Counsel submitted that the provisions of a written contract of service bind the parties thereto and it is outside the province of the court to look elsewhere for the ascertainment of the terms of the contract with respect to its duration or termination other that the written agreement forming the basis f the relationship between the parties concerned. He refers to paragraph 5 of exhibit CS1, and relying on NEPA v. Enyong (2003) ALLFWLR (Pt. 175) 452 @468, counsel argued that the contents of Exhibit CS 1 which is the contract of appointment dated 26^th July, 2006 that ushered the claimant into the services of the defendants is very clear and explicit. And that by the said exhibit, the appointment was for a period of two (2) years in the first instance, after which it may be renewed. He further submitted that the claimant being oblivious of the above fact, applied for extension of the contract appointment which approval was conveyed to the claimant via Exhibit CS.2 which extended the appointment for a period of two (2) years with effect from 4^th September, 2009 to 5^th September, 2011.

Counsel further contended that in the case of the claimant’s appointment, the extended appointment was deemed terminated by reason of effluxion of time by the 5^th of September, 2011 being the life span of Exhibit CS2. He placed reliance on Section 9(7) (a) of the Labour Act, cap L1 LFN, 2004 which provides that: ‘A contract shall be terminated, by the expiry of the period for which it was made’. He therefore urged the court to hold that from the statutory provisions above stated having regards to the use of the word “shall” which connotes compulsion, it can safely be concluded that where a contract is to subsist for a given period, it will come to an end at the expiration of that period and no notice or further act is required to terminate it.

It is counsel’s contention that as at 5^th September, 2011, there was no longer any employer/employee relationship between the defendant and the claimant as there is no evidence before the Court that there was any further renewal or extension of the contract that was deemed terminated by 5^th September, 2011.

Counsel maintained that the service of letter of disengagement (exhibit CS7) was quite unnecessary as there was no any subsisting employment between the parties in the eyes of the law that called for any disengagement. Also that even the payment of the one month salary made to the claimant by the defendant in lieu of notice was also not supposed to be made and that the claim of the claimant under paragraph 22 (vi) for the sum of Fifty Seven Thousand, Thirty Three naira, Seventy-Seven Kobo (N57, 033.77) being one month salary in lieu of notice of disengagement ought to be dismissed.

He further submitted that where a contract is subject to renewal (as in the case at hand) and the employer refuses to renew same, the contract of employment is deemed terminated, as an employer is not under any duty to renew any contract. He refers to the cases of Olanrewaju v. Afribank Nigeria Plc (2001) 90 LRCN 2764 @ 2766 and Lagos University College of Medicine v. Adegbite (1970) NCLR 247, to the effect that: ‘the employer is not under any obligation to renew the contract of employment.’

Concluding on the issue (i), learned Defendant’s counsel urged the court to hold that the claimant failed to establish by evidence that he had been in the defendant’s employment beyond the 5^th September, 2011. And also to hold that the claimant was only employed by the defendant between the period covering 26^th July, 2006 to 5^th September, 2011.

On issue (ii) – Whether or not the claimant is entitled to all wages, salaries and other benefits from the defendant for the period between 26^th July, 2006 to 17^th May, 2013: Counsel submitted that the claimant is not entitled to claim of salaries in the sum of One Million Nine Hundred and Ninety Six Thousand One Hundred and Eighty One naira, Ninety-Five Kobo (1,996,181.95) being unpaid salaries for 35 months from the months of July, 2010 to May 2013. But that the claimant is only entitled to the sum of Two Hundred and twenty-Eight Thousand, One Hundred and Thirty-Five Naira (N228, 135.00) as arrears of salaries for the months of July, 2010 to October, 2010 as admitted by the defendant in its paragraph 10 of the amended statement of defence.

Counsel further contended that following the financial challenge faced by the defendant in 2010, it will only be fair for the claimant to be paid for the period he worked for the defendant as doing otherwise will tantamount to reaping where the claimant did not sow.

On the claim by the claimant for the sum of Two Hundred and Forty-Five Thousand naira (N245,000.00), being allowance for first 28 days in office, counsel argued that this claim can only be ascertained from the contents of the defendant’s conditions of service as to whether the claimant is entitled to such benefit. He cited and relied on the Supreme Court’s decision in Okomu Oil Palm Co. v. Iserihienrhien (2001) 85 LRCN 873 @ Pp. 874- 875 to the effect that “It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts”. He submitted that in absence of any document establishing such term of contract, the Claimant is not entitled to such claim, which cannot be assumed.

On the claim of the sum of One Hundred and Eleven thousand, Five Hundred and Thirty One naira, Sixty-Six kobo (N111,531.66) being leave grant for 2010, 2011 and 2012, it is also submitted by the Defendant’s counsel that the claimant failed to exhibit any document before the court to show that he is entitled to the claim. He refers to Huble v. Nigerian Maritime Services Ltd (1970) NCLR 509, wherein Taylor CJ stated that: “In the absence of any term of the contract entitling an employee to an appropriate leave pay, if dismissed before the end of the term, I find myself unable to make any award on this head”. He urged the court to take side with this decision and hold that he claimant failed to prove entitlement to any leave pay and accordingly dismiss same.

On the claim of the sum of Three Hundred and Ninety Thousand, Three Hundred and Sixty naira Sixty kobo (N390,360.60) being contract gratuity, counsel submitted that it is trite law that while employee in appropriate cases has the right to gratuity, such right must be provided for in the contract of employment or as provided by statute.

Counsel argued that as the claimant’s employment contract with the defendant did not provide for any gratuity and the said contract not being one laced with statutory flavour, the Claimant is not entitled to gratuity.

On the Claimant’s claim for the sum of Three million naira (N3, 000,000.00) only being general damages for the hardship and [trumatization] as a result of non-payment of the claimant’s entitlement by the defendant, counsel contended that such is not tenable in law. He submitted that even in an action for breach of contract of employment, special damages can only be claimed and must be proved strictly. He refers to Edun v. Provost LACOED [1998] 13 NWLR (Pt.580) CA 52@ 66, wherein it was held that a court is not permitted to award damages that amount to double compensation to a party. On the authority of Garuba v. KLC Ltd (2005) 124 LRCN 460 at 462, counsel further contented that in employment claims employee is not entitled to damages as in damages in tort.

On the claim for award of 20% interest on the judgment debt, counsel submitted that the claimant is not entitled to the interest claimed, the claimant having failed to establish that he is entitled to all wages, salaries and other benefits from the defendant for the period between 26^th July 2006 to 17^th May 2013.

Finally learned counsel for the Defendant urged the court to hold that the claimant failed to prove his claim on the balance of probabilities as to his being in the defendant’s employment from 26^th July, 2006 to 17^th May, 2013. And that based on the defendant’s admission, the claimant is only entitled to the sum of two hundred and twenty-Eight thousand, One Hundred and thirty-Five naira (N228, 135.00) only being the claimant’s outstanding salaries for the months of July to October, 2010, he actually worked for the defendant.

Submissions by Claimant’s Counsel:

Learned Claimant’s counsel, Andrew M. Maigwi Esq., raised three legal issues for determination in his Final Written Address on behalf of the Claimant, viz:

1. Whether or not from the totality of evidence adduced before this Honourable Court, the claimant is an employee of the Defendant from 26^th July, 2006 to 17^th May, 2013?
Whether or not the Claimant’s is entitled to all his salaries, allowances and benefits from the defendant which has accrued from 26^th July, 2006 to 17^th May, 2013?
Whether or not from the totality of evidence adduced before this honoruable Court the Claimant has proved his case on a preponderance of evidence to warrant this Honorable court of grant the reliefs sought?

On issue 1- Whether or not from the totality of evidence adduced before this Honourable Court, the claimant is an employee of the Defendant from 26^th July, 2006 to 17^th May, 2013: Counsel contended that the contract agreement should stand as the Defendant recognized it up to the time of serving the termination letter (exhibit CS7) on the Claimant and never raised the issue of effluxion of time. He maintained that the employment relationship between the parties actually covered the period between July 2006 and May 2013, contrary to the position maintained by the Defendant’s counsel that the employment ceased by effluxion of time at the last date of the renewal of the employment in September 2011 as it was not further renewed.

Counsel further submitted that the Defendant admitted owing the outstanding sum based on the assurance it made in the disengagement letter (exh.CS7) that the payments would be made. And despite the assurance, the Claimant has not been paid any of his outstanding Salaries and arrears of allowances, and that based on the said assurance for payment of the outstanding salaries, the Defendant has admitted that the Claimant ought to be paid. He submitted that where an admission is made by a party or a fact is admitted, it requires no further proof by the other party. He refers to Cole v. Jibunoh [2016] 4 NWLR (Pt. 1503) SC519 wherein the Supreme Court re-emphasized the trite principle that “Fact admitted requires no proof…”

Counsel wondered if the Claimant was not an employee of the defendant why then was the Defendant communicating with him by serving him with the letter of temporary closure of work (exhibit CS3) and also disengagement letter (Exhibit CS7). According to the learned counsel, such exchange of correspondence clearly shows that the Claimant was still an employee of the Defendant till the day the disengagement letter was issued to him. He refers to Tallen & Ors v. Jang & Ors. (2011) LPELR – 9231 (C.A.).

He urged the court to hold that from the facts, evidence and the circumstance of this case, the Claimant was an employee of the Defendant from 26^th July 2006 to 17^th May 2013.

On issue (2) – Whether or not the Claimant is entitled to all his salaries, allowances and benefits from the defendant which has accrued from 26^th July 2006 to 17^th May 2013: It is the counsel’s contention that the Claimant is entitled to all his salaries, allowances and benefits from the Defendant from the period of 26^th July 2006 to 17^th May 2013, because he was a staff at that material time. The Claimant is therefore entitled to his unpaid salaries for 35 months from the month of July 2010 to May 2013 , amounting to the sum of N1,996,181.95 (One Million, Nine Hundred and Ninety Six Thousand, One hundred and Eighty One naira Ninety-five Kobo). And that Defendant only ordered him to stay at home pending the improvement of its financial status and assured him of the payment of salaries and allowances as soon as its financial situation improved as established by exhibit CS3. He then submitted that proof required in civil cases such as the instant suit is on the preponderance of evidence and where a claimant has successfully proved his case on preponderance of evidence, he is said to have discharged the onus of proof placed on him by law, and then the onus shifts to the Defendant. He cited and relied on Adekunle v. Aremu [1998] 1 NWLR (Pt. 533) CA 203.

Counsel further argued that the Claimant is also entitled to the sum of N245,000 (Two Hundred and Forty-Five Naira) only being the 28 days in office and the sum of N111,531.66 (One hundred Thousand, Five Hundred and Thirty One naira, Sixty-Six kobo) only being leave grant for 2010, 2011 and 2012 as it was agreed by the defendant in exhibit CS3, which was admitted, and the sum of N390,360.60 (three hundred and Ninety Thousand, three Hundred and Sixty naira Sixty kobo) only being contract gratuity.

He contended that the Claimant is entitled to damages for the hardship and traumatization he suffered as a result of non-payment of his entitlements by the Defendant. Counsel submitted that the claimant successfully pleaded and led credible evidence which was not controverted by the Defendant and urged the court to hold that from the facts and circumstances of this case the Claimant is entitled to the payment of all his salaries and outstanding allowances by the Defendant.

On issue (3)- Whether or not from the totality of evidence adduced before this honoruable Court the Claimant has proved his case on a preponderance of evidence to warrant this Honorable court of grant the reliefs sought : Counsel basically regurgitated the arguments canvassed on issue (2) in respect of how the Claimant discharged the burden of proof and presented evidence amounting to admission as they were not contradicted on cross-examination, and finally submitted that on the totality of the materials placed and evidence adduced before the court, the Claimant has discharged the burden of proof and proved his case on a preponderance of evidence to warrant the grant of his reliefs set out in the Statement of [Facts].

COURT’S DECISION

I have followed the proceedings with keen participation and have watched the witnesses testify. I have read the processes filed and exchanged by the parties and evaluated the pieces of evidence tendered as exhibits in the proceedings. I have also reviewed the Final Written Addresses filed by the respective counsel for the parties, and appraised the legal issues submitted for determination therein, and did my own independent research to sure-foot my reliance on legal authorities for my decision on this matter.

From the pleadings and evidence tendered, it is common ground between the parties that the Claimant was engaged by the Defendant as an Administrative Officer in its establishment, which employment has some basic terms, and some incidents were not disputed by the parties as follows:

The Claimant was employed on a fixed tenure for initial two years, starting (from 26^th July 2006 to 25^th July 2008) as per paragraph 5 of the Contract Appointment letter dated 26^th July 2006 – Exh. CS1, which states: “The appointment will be for a period of two years in the first instance after which it may be renewed”.

The Contract employment was extended for another two years period effective 4^th September 2009 to 5^th September 2011, as per the Defendant’s letter of Extension of Contract Appointment dated 12^th August 2009- CS2, which starting paragraph states: “ May I convey to you the approval granted by the Board of Directors ADSUCONS LTD for the extension of your appointment as Administrative Officer for a period of two years with effect from 4^th September 2009 to 5^th September 2011”

The Claimant’s monthly salary was N57, 033.77 as per paragraph 11 of the Claimant’s Amended Statement of Facts, which was not denied by the Defendant, but rather admitted and applied in computing the outstanding 4 months arrears of unpaid salaries from July 2010-October 2010, amounting to N228, 135 (4 x 57,033.77) owed to the Claimant before the temporary closure of the Defendant in December 2010, as admitted in Paragraph 17 of the Defendant’s Amended Statement of Defence.

The Defendant had a temporary closure of its operations as was conveyed to its Staff in the affected Units, inclusive of the Claimant, vide the Notice dated 17^th December 2010– Exh. CS3, which first-two paragraphs state: “This is to inform you that the company operations in these units have been [temporarily] suspended due to the poor state of its finances. Consequently you are hereby further informed to stay at home pending when you will be contacted to resume work. Be assured that the company is obliged to pay all your outstanding salaries and allowances as soon as its financial situation improves”.

No payment of the outstanding salaries or other accruing salaries was made to the Claimant and no information was given to him after he went home in compliance with the directive as per the Notice of Temporary Closure of Operations, as distilled from the testimonies of the parties during examination in chief and cross-examination at the trial and evidence tendered, as per Claimant’s Application for IOU dated 6^th October 2011- Exh. CS5 and Claimant’s Passionate Appeal for Release of Salaries and Claims dated 10^th November 2011- Exh.CS6. Claimant was asked under cross-examination: “is it true that the Defendant never informed you of any improvement in its funds since the letter of 17^th December 2010 ie Exh.CS3?”He answered: “I did not get any information from the Defendant about the improvement of their financial position. I am only aware that they have a thriving ‘pure water’ business within that period up till now”.

While waiting at home for further information from the Defendant about improvement of its financial position, the Claimant was served with a Letter of Disengagement dated 17^th May 2013- CS7, which reads:

“Dear Buba,

LETTER OF DISENGAGEMENT

With reference to the letter of your disengagement dated 26^th of November, 2012, which you claim not have received, I write again to inform you that the Company Board of Directors at its 16^th meeting held on 15^th November, 2012 decided to disengage you from the services of the company due to the lean financial status of the company.

In this regard, the Board has approved to pay you one month salary. However, the one month salary will be used to pay for your outstanding accommodation bill and the balance you owe the company has been cancelled.

By the copy of this letter, you are to handover all ADSUCONS properties in your possession to the security.

The Board expresses its appreciation for the services you rendered to the Company.

Dr. H. E. Shehu

GM ADSUCONS Ltd”.

However, the material areas in dispute by the parties and which form part of the triable issues at the proceedings and legal issues submitted for determination by the counsel for the parties in their respective Final Written Addresses are as follows:

Given the nature of the employment, whether the Claimant could be validly in employment of the Defendant after September 2011 (at the expiry of the extension letter). In other words, is there a legally subsisting employment relationship between the parties from October 2011to May 2013 (when the Claimant was served with the Defendant’s disengagement letter), as claimed by the Claimant and disputed by the Defendant?

Whether the Claimant is entitled to leave grant and first 28 days in office without express provision in the contract of employment and credible evidence led to establish same?

Whether the Claimant is entitled to one-month notice of termination or salary in lieu, in the circumstance of the employment relationship between the parties?

Whether there was a breach of the term(s) of the employment by the Defendant to warrant award of damages in favour of the Claimant?

Has the Claimant proved entitlement to any sum other than the sum of admitted by the Defendant being outstanding arrears of salaries for the 4 months of July to October 2010?

In my view, a dispassionate resolution of the above disputed material areas/issues by the parties would sufficiently answer and dispense with the issues set out for determination by both counsel in their respective Final Written Addresses.

It is imperative to proceed by a preliminary determination of the nature of the employment relationship between the Claimant and the Defendant. In other words, is Exh. CS1 (Contract Appointment) a fixed employment or a regular employment? An employment which has a fixed period and subject to renewal/extension before it can further subsist is an employment of a fixed tenure, as against an employment which duration is automatically renewed by operation of law until it is terminated or exhausted by attainment of certain conditions such as retirement age. Employment of fixed tenure is akin to Tenancy of fixed term and share common characteristics in duration and requirement for notice for termination. Both have fixed period of tenure and does not require notice for termination.

Relying on Nweke v. Ibe (1974) 4 ECSLR 54, the Court of Appeal, per Aboki JCA, in Hilda Josef v. Chief A.S Adole (2010) LPELR-4367(CA), highlighted the essential feature of lease or tenancy of fixed term which share similar characteristics with employment of fixed tenure thus: “The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit Notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until the determines by a notice to quit”.

I hold that this essential feature of tenancy of fixed term is the equivalent feature of employment of fixed tenure, which is the intention of S. 9(7) (a) of the Labour Act, cap L1 LFN, 2004, to the effect that ‘a contract shall be terminated by expiry of the period for which it is made’. I therefore agree with the submission of the learned Defendant’s counsel, Dr. J.S Wafinzida, that the Claimant’s extended appointment (exhibit CS2) was deemed terminated by reason of effluxion of time by 5^th September 2011 being the life span of the exhibit CS2.

On that note, I find and hold that the employment relationship between the Claimant and the Defendant is of fixed tenure and only renewable by the parties. Thus, it does not require any notice for termination or salary in lieu of notice. Also, upon a cursory review and evaluation of evidence tendered, I find that there is nowhere in the Exh. CS1 and CS2 (the original contract of employment and the renewal), that any such term of period of notice or salary in lieu of notice is indicated. In my view, any contrary interpretation of these exhibits would amount to relieving the parties of their obligations in their own contract by re-writing same to suit the exigency of one of the parties ordinarily bound to uphold their own contract. I so hold.

This is because parties are bound by the terms of their contract and it is for the court to give effect thereto and not to seize the opportunity of adjudication of the dispute between the parties in respect of their own contract to help either party to re-write the contract which terms are clear and unambiguous. The Supreme Court, in Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1375) S.C.550 @ 583, Paras.E-G, clarified the duty on court when interpreting written contract, and held thus:

“Where there is a written contract between parties, the main duty of the court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. In other words, the proper course for the court is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document”.

See also: [Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC 288; Oduye v. Nigeria Airways Ltd. [1987] 2 NWLR (Pt.55) 126

Having uncovered and determined the nature and legal implication of the employment relationship between the Claimant and the Defendant, it is time to determine whether the Claimant could be validly in employment of the Defendant after September 2011 (at the expiry of the extension letter). In other words, is there a legally subsisting employment relationship between the parties from October 2011to May 2013 (when the Claimant was served with the Defendant’s disengagement letter), as claimed by the Claimant and disputed by the Defendant? From the foregoing legal analysis, I find and hold that there is no legally subsisting employment relationship between the Claimant and the Defendant after the expiry of the extension period of the contract of employment in September 2011.

On whether the Claimant is entitled to leave grant, contract gratuity and first 28 days in office without express provision in the contract of employment and credible evidence led to establish same, I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties. In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court can lend its judicial arms to do otherwise.

On that note, I find and hold that since there is no provision for leave grant, contract gratuity and 28 days in office in the provisions of the contract documents (exh. CS 1 and CS2), and no credible evidence was laid at the trial to establish such entitlement by the Claimant, I am reluctant to award same. Accordingly the claims for leave allowance, contract gratuity and first 28 days in office fail and are hereby discountenanced and dismissed.

On whether the Claimant is entitled to one-month notice of termination or salary in lieu of notice in the circumstance of the employment relationship between the parties, I adopt my earlier finding on the essential feature of fixed tenure employment and hold that since the nature of the employment relationship between the Claimant and Defendant is of fixed tenure, there is no legal obligation to serve any notice of termination or pay salary in lieu of notice. Besides, there is no provision for such in the contract of employment between the parties tendered and admitted in evidence as exhibit CS1 and CS2, in the proceedings.

My attention was not drawn to any such provision in the parties’ contract, although if it was a regular employment, the term for reasonable notice or payment of estimated salary in lieu of notice, which is implied at common law, would have been invoked in absence of any express term on period of notice or salary in lieu. See: Honika Sawmill (Nig) Ltd v. Holf [1992]4NWLR(Pt.238)CA673, it was held that “where there is no express or specially implied provision for the determination of an appointment by notice, the common law will imply a presumption that appointment is terminable by reasonable notice given by either party”. But then, this is not the situation in the instant case, which is instead, a contract of fixed tenure.

In my considered view, payment of salary in lieu of notice is not automatically done as a set off for an alleged debt owed by the Claimant without presenting a reconciled account of the debt (which was not even established and proved at the trial) as presented by the Defendant in exhibit CS7, which stated in the second Paragraph, that: “In this regard, the Board has approved to pay you one month salary. However, the one month salary will be used to pay for your outstanding accommodation bill and the balance you owe the company has been cancelled”. Thus, salary in lieu of notice is to be paid at the relevant time and mere acknowledgment and expression of intention to pay in a termination letter without more, and even taken it as a set off without reconciliation of account, does not satisfy the requirement of payment of salary in lieu of notice where due and applicable. See: Chukwumah v. Shell Petroleum [1993]4 NWLR (Pt.289)512. However, again, this is not even needed in the circumstance of this case as already explained about the nature of the employment being of fixed tenure. Accordingly, the claim for salary in lieu of notice fails and is hereby discountenanced and dismissed. I so hold.

On whether there was a breach of the term(s) of the employment by the Defendant to warrant award of damages in favour of the Claimant, I agree with the submission of the Defendant’s counsel that damages are awarded following a breach, and where no breach is found to occur, no issue of damages should arise.

Having not established any material breach of the contract of employment other than owing of salaries which indebtedness is acknowledged (exh.CS3) with legal obligation to pay, I decline to find any damages awardable to the Claimant. Same is accordingly discountenanced and dismissed.

On the claim of 20% interest rate on judgment sum, the Claimant did not make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required to not only be specifically pleaded but also to provide sufficient evidence to ground its award. See: Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, where the apex court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused and dismissed.

On whether the Claimant proved entitlement to any sum other than the sum of money admitted by the Defendant being outstanding arrears of salaries for the 4 months of July to October 2010, it is settled principle of adjudication that what is admitted need no further proof. See: Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ 296, para. G-H, wherein the Court held that: “ By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.

The Defendant admitted in its pleadings and acknowledged the indebtedness to the Claimant during the trial. It admitted owing 4 months salaries and expressed willingness to pay. Once an admission is complete and unequivocal, the court can enter judgment in the sum partly admitted and proceed to determine the contested portion. See: K.S.M.H. v. M.I.E.E. [2012]3 NWLR (Pt. 1287) C.A. 258@ 281, Paras. B-D. According, judgment is hereby entered in favour of the Claimant on the admission of the Defendant of the sum of N228.135 representing 4 months’ salary at the rate of N57, 033.77 per month, for the months of July to October 2010.

However, is that the entire sum the Claimant is entitled to? Certainly not, since no evidence was established showing that the Defendant has paid the Claimant all the salaries which are due from July 2010 to September 2011, which is the period of the duration of the employment contract which was not paid for by the Defendant. There is also no clear evidence as to the legal implication of the temporary closure of the Defendant Company. The letter of notification did not also state that no payment would be made during the period of financial difficulty of the Defendant. Rather, it reinforced the employee’s entitlement to payments of outstanding entitlements only that they would go home to stay until further notice without coming to work and facing the agony of idleness at workplace. That does not in any way relieve the Defendant the obligation to pay for those additionally owed periods falling within the period of the Claimant’s fixed tenure of employment (November 2010 up to September 2011).

I therefore find and hold that the Claimant is also additionally entitled to be paid for the period of the months from November 2010 to September 2011 at the same monthly subsisting salary of N N57, 033.77, making a total of 11 months x N57, 033.77, amounting to the sum of N627, 371.47 (six hundred and twenty seven thousand, three hundred and seventy one naira forty seven kobo).

On the whole, and for clarity, the Claimant’s suit succeeds in part as per the terms of the Judgment, to the effect that the Defendant shall pay to the Claimant the sum of N228, 135.08 (two hundred and twenty eight thousand naira one hundred thirty five naira and eight kobo) being the amount of outstanding salaries of July to October 2010. The Defendant shall also additionally pay the Claimant the sum of N627, 371.47 (six hundred and twenty seven thousand, three hundred and seventy one naira forty seven kobo), covering the period of the months from November 2010 to September 2011 at the same monthly subsisting salary of N N57, 033.77 (11 months x N57, 033.77).

Accordingly, I make the following Orders to give effect to the terms of the Judgment:

The Defendant is hereby ordered to pay the Claimant a total sum of N 855, 506.55 ( eight hundred and fifty five thousand five hundred and six naira fifty five two kobo), representing the admitted sum of N228,135.08 (two hundred and twenty eight thousand naira one hundred thirty five naira and eight kobo) being the amount of outstanding salaries of July to October 2010, and the additionally awarded sum of N.627,371.47(six hundred and twenty seven thousand, three hundred and seventy one naira forty seven four kobo), covering the period of the months from November 2010 to September 2011 at the same monthly subsisting salary of N57, 033.77 (11 months x N57, 033.77).

All sums due and ordered to be paid shall be paid within two months of this Judgment. Otherwise, any default shall attract 10% interest rate per annum until finally liquidated.

Judgment is entered accordingly. I make no order as to cost.

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Hon. Justice N.C.S Ogbuanya

Presiding Judge.

17/5/18