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National Industrial Court

Tunde Bakare -VS- International Aviation College, Ilorin & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: June10, 2019                          Suit No: NICN/IL/04/2014

Between:

 

TundeBakare————————————————            Claimant

And

  1. International Aviation College, Ilorin
  2. Captain AbdulkarimAbdulmuminNuhu —————————Defendants

Rector, International Aviation

College, Ilorin

 

Representation:

Salmon Jawondoo with Idris A.A. Abdullahi for the Claimant.

Y.L. Akanbiwith Idris Suleiman Esq. for the Defendants

COURT’S JUDGMENT

  1. On February 28, 2014 the claimant filed this Complaint against the defendants; and by his amended Statement of Facts, he is seeking for the following reliefs:
  2. The sum of Nineteen Million, Four Hundred and Eighty Seven Thousand, Five Hundred and Thirty Seven Naira Forty Seven Kobo (N19, 487,537.47) only being the NET Arrears of salaries for the months of November and December 2013 and January 2014; Balance of Annual Leave Allowance for the years 2011/2012 and 2012/2013 and Annual Leave Allowance for 2013/2014; Outstanding balance of Annual Basic Allowance for the year 2011/2012, Annual Basic Allowance for the period of August 2012 to January 2014, (eighteen months) and 50 working days Annual Leave with pay or payment in lieu of annual leave for June2011/2012, 2012/2013 and 2013/2014; compensation for the accumulated leave for not less than two years and severance package.
  3. Two months take home salaries in the sum ofN1,416,676.66as compensation for keeping the claimant in Ilorin and off work.
  • An Order of injunction restraining the defendants, their servants, privies agents and or any person (s) and or authority or authorities acting through, for and or on behalf of the defendants from ejecting and or removing and or causing the ejection or removal of the claimant and or his belongings from the claimant’s official quarters or residence situate at and known as No. 14 Office Road, G.R.A. Ilorin, Kwara State, Nigeria until the claimant’s entitlements are fully paid by the defendants
  1. N2,000,000.00 general damages
  2. And for such further Order (s) as the Court may deem fit to make in the circumstances
  3. The costs of this action

 

  1. CASE OF THE CLAIMANT AS PLEADED

The case of the claimant is that the claimant was at the time material to this case an employee, a Flight Instructor with the defendants and remained so until his employment was determined by the defendants. He continued that after the termination of his employment; the defendants failed, refused and or neglected to settle or pay him his outstanding Arrears of salaries, Balance of Annual Leave Allowance, Annual Leave Allowance, annual leave with pay or payment in lieu of annual leaves, compensation for the accumulated leave and severance package despite demands by the claimant.Therefore, he filed this suit seeking for payment of all his entitlements.

  1. DEFENDANTS’ CASE AS PLEADED

The case of the defendants on the other hand is that the claimant was its former employee as a Flight instructor and that after the confirmation of his appointment, he was suspended from duty for the offence of misconduct before he was finally disengaged from the employment of the defendants. Upon his disengagement, the Claimant filed thissuit for his reliefs before this Court. To the defendants, the only sum due to the Claimant as at the time that his employment was terminated is the negotiated Annual Allowance for 2012/2013; which is the sum of N500,000.00 as, the maximum payable then was N2,250,000.00

During trial of the case, the Claimant testified for himself as CW 1 and while Mr. RasheedAiyelabergan, the Registrar of the 1st defendant testified on behalf of the Defendants as DW1. The Court directed counsel to the parties to file their final written addresses in line with the Rules of the Court and they complied with the direction.

 

 

  1. DEFENDANTS’ WRITTEN ARGUMENTS

In his final written address, counsel to the defendants formulated one issue for determination of the Court this way:

Whether having regards to the totality of the evidence adduced before the Court, the Claimant is entitled to his claims.

  1. Arguing this issue, counsel submitted that it is a settled principle of law that the burden of proof lies squarely on the person who asserts to prove his assertion, citing Section 131 (1) of the Evidence Act, 2011 and the case ofAndem v. Etim[2010] All FWLR (Pt. 543) 1865.He noted that the crux of the claimant’s case is rooted in his claims for non-payment of arrears of salaries and allowances as endorsed in the amended General Form of Complaint and as pleaded in the Statement of Facts establishing the Claimant’s cause of action. He went on that the claimant is not challenging the termination of his appointment.

Counsel submitted that the claimant’s entitlements and/or remuneration are spelt out in his letter of appointment (Document C.1), his Employment Agreement (Document C.2), the 1st Defendant’s Employees’ Policy Handbook, 2012 and those of 2013 (Documents C.7 & C.8 respectively).  To counsel, these documents governed the relationship between the Claimant and the 1st Defendant. He went on that the claimant’s claim for  Payment in lieu of leave for 2011/2012 (1 month net salary ofN708,338.33), his claim for Payment in lieu of leave for 2012/2013 (1 month net salary of N708,338.33), his claim for Payment in lieu of leave for 2013/2014 (of 1 month net salary ofN708,338.33), his claim for Two months’ take home salaries as compensation for accumulative leave; (which is N708,338.33 x 2 = N1,416,676.66), his Two months’ take home salaries in the sum of N1,416,676.66 as compensation for keeping the Claimant in Ilorin and off work; are all baseless for having no root in any of provisions/or in the terms and conditions of his employment.

  1. Counsel further contended that parties are bound by their contract agreements and that no party will be allowed by law to vary or contradict a written provision of the contract neither will any Court allow any of the parties to go outside the four corners of their contract of employment to decide theirrights and obligations under the contract; citing Oki[1990] 5 NWLR (Pt. 153) 721. He continued that the Provisions of Clause 12.6 of Document C.8 (the defendants’ Employees’ Hand Book Policy, 2013) prohibits any claim against the 1st Defendant, which does not emanate or forms part of the terms of the employment Agreement.

Counsel went on that while it was the evidence of the Claimant that the 1st Defendant as at the time of his disengagement, was owing him an outstanding Net Arrears of salaries for the months of November and December 2013 and January 2014; Annual Basis Allowance from August 2012 to January 2014, which is 18 months and for 50 working days’ annual leave with pay or payment in lieu of Annual leave for 2011/2012, 2012/2013 and 2013/2014;the Defendants admitted that when the Claimant’s employment was terminated, what the Defendants was owing the Claimant was the sum of N500,000.00; being the claimant’s Negotiated Annual Allowance for 2012/2013.

  1. Counsel again submitted that by a letter dated 29th day of October, 2013; (Document D.12) the Claimant was suspended from duty for his un-professional behaviours. By the content of Document C4 dated 23rd December, 2013; the claimant’s employment was finally terminated by the 1st To counsel, it is instructive to note that between the 29th October, 2013 and 23rd December, 2013 that the Claimant was suspended and sacked, the Clamant was not entitled to any payment as claimed in paragraph 24(1) (a) of his Statement of Fact. He continued that the Claimant is not entitled to the sum of N2,125,014.99 claimed for the months of November and December 2013 and for January 2014 having not worked for the Defendants for those period as by the parties’ agreement, the 1st defendant is only liable to pay the Claimant for the service rendered to them.

On the Claimant’s evidencein paragraph 29(1) (c), (d) and (e) of his Statement on Oath before the Court that he is entitled to 20 working days leave with pay for 2011/2012 and 10 working days with pay for 2012/2013;counsel submitted that the claimant hasno outstanding leave with the Defendants neither is the defendant owing him any leave allowance. He maintained that the Claimant only worked for just seven (7) months with the Defendants as at January 24, 2014 when his employment was terminated;whereas, the said allowance accrues for payment on annual basis; in December of every year.

  1. Counsel submitted in addition that by the Defendants’ employees’ policy handbooks (Documents C.7 and C.8) applicable to the claimant, as well as in the Claimant’s Employment Agreement (Document C.2); the Claimant was not allowed to commute or convert any leave to cash as being claimed by him before the Court, neither is he allowed to carry any un-sued vacation entitlement(s) to the following year;referring to paragraph 56 (c) at page 50 of the Document C8. He contended that it is trite that where an instrument mentioned specific thing or person; the intention is that those not mentioned are not intended to be included in the document:“expression uriusest exclusion alterius”meaning the express mention of one thing is the exclusion of another citing G. Ondo State v. A.G. Ekiti State [2001] LPELR-622 SC @ 66 and Abubakarv. Ali &Ors. [2015] LPELR 40359 CA @ 42 &S.E.C. v.Kasumu[2009] 10 NWLR (Pt. 1150) 509 @ 537; in the circumstance, the Claimant is not entitled to this claim in the paragraph 29(1) (c), (d) and (e) of his Statement on Oath.
  2. On the claimant’s total sum of N8,250,000.00 being balance of his Annual leave/vacation Allowance for 2011/2012 and 2012/2013 against the Defendants; counsel referred the Court to paragraph 16 of the Statement on Oath of Abdul-RasheedAiyelabegan and canvassed that the claimant was only entitled to 50% of his basic monthly salary as vacation allowance and that the Defendants relied on their circular dated 13th February, 2012 (Document D.3) which amended Section C @ page 53 of the Defendants’ policy handbook of 2011 upon the discovery of the typographical error of the 50% Annual salary to read 50% monthly salary and that same was served on the claimant without any form of protest by the claimant until he filed this present action before the Court, almost two years later. Counsel continued that the vacation allowance of the claimant was 50% of his basic monthly salary of N708,338.83 and that the claimant and other staff were paid their Annual leave allowances for 2011/2012 and 2012/2013 in line with the corrected policy in force at the period in question;now being claimed by the claimant and also being expressed as part-payment. He went on that the sum of N375,000 was so paid to the Claimant by the Defendants for the years 2011/2012 and 2012/2013, as 50% of his monthly salary of the Claimant as the actual sum the Claimant was entitled to as his annual leave allowance. And so, the Defendants are not owing the claimant any balance as being claimed nowby the claimant.

 

  1. Counsel to the defendants again submitted that the claimant having consented to the correction made on the policy handbook of 2011 by the Defendants and consequent upon, which the total sum of N375,000.00 was paid for two (2) consecutive yearsas Annual leave allowance as 50% of his monthly basis salary without any protest; is estopped from contending as he did under this claim in the court. To counsel, the vacation allowance of the Claimant was only 50% of his basic monthly salary, which has been paid to him vide (Document D.4). He continued that the claimant cannot also be allowed to approbate and reprobate on the same issue; having agreed to the modification done in (Document C.7) for which two consecutive payments were made to him; relying on the same repealed version to claim the balance, which amounts to gambling and dishonest attitude; citing Njaba L.G.C. v.Chogozie[2010] 16 NWLR (Pt. 1218) 166 @ 188 paragraphs F.G. andOkwionu[2016] 1 NWLR (Pt. 1492) 41 @ 66 paragraphs D.E.

 

  1. On the claimed sum of N900,000.00 as Annual Leave/Vacation Allowance for 2013/2014 that was the 10% of his Annual Basic salary of N9,000,000.00; counsel submitted that the claimant is not entitled to this claim, having worked for less than one year during the period in question, referring to paragraph 57 (b) of Document C.8 the defendant’s employees’ Hand Book of 2013 to the effect that an “Employees will only qualify for leave allowance after spending at least 6 (six) months with the college”. He went on that the Annual leave allowance is reckoned and paid on the basis of annual service rendered to the 1st

 

  1. On the claimant’s claim for N1,416,676.66 as compensation for keeping him in Ilorin and out of work, counsel submitted that the claimant is not entitled to any other allowance with the defendants other the Negotiated N500,000.00; which may even be further negotiated down since the court has no duty to impose any sum on either party.

While on the claim N2,000,000.00 as general damages, counsel argued that where the court found that the employment of an employee have been terminated wrongfully, the only remedy for such wrongful termination is the amount the employee would have been entitled to had the contract not been terminated. Counsel submitted that the Claimant is not entitled to any general damages as the Claimant is not even challenging any wrongful termination. He went on that the claimant never alleged any wrong doing against the Defendants that will warrant granting of general damages in his favour in his complaint before the Court. To counsel, general damages are not granted in vacuum but that they are damages which the law presume as flowing from the complained wrong by the victim; citing N.B.C.I. v. Dauphin (Nig.) Ltd.[2014] 16 NWLR (Pt. 1432) 90 and Ahmed v. C.B.N. [2013] 2 NWLR (Pt. 1339) 524.

  1. On the Claimant’s claim for injunction, he submitted that claim has become an academic exercise, the Claimant having given up possession of his official quarters to the Defendants; citing Agbakoba v. INEC [2008] 18 NWLR (Pt. 1119) 489 @ 546 – 547 paragraphs H-B.He urged the Court to dismiss this claim.

 

  1. CLAIMANT’S WRITTEN ARGUMENTS

In the claimant’s final written address, his counsel formulated issue for the determination of the court as:

Having regard to the state of pleadings, the instruments that regulated the employment of the claimant with the defendants and the evidence proffered by the parties, whether or not the claimant proved his entitlement to the heads of his claims.

  1. Arguing the said issue, counsel submitted that this case consists of heads of claims arising from contract of employment; which are regulated by Documents C.1, C.2, C.7 and C.8; citing University of Uyo v. Akpan[2014] All FWLR (Pt. 736) 472 at 511 and Cooperative Development Bank Plc. v. Ekanem[2014] All FWLR (Pt. 736) 833 at 845 & 847 that these four instruments are clear and unambiguous and should be accorded literal/ordinary meanings; citing Jev v. Iyortyom[2014] All FWLR (Pt. 747) 749 at 773 andWilliams v. Williams [2015] All FWLR (Pt. 782)1596 at 1614.
  2. On Arrears of net/take home salaries for the months of November and December 2013 and January 2014 (N708, 338.33 x 3 = N2,125,014.99) counsel submitted that from paragraphs 5 and 8 of the Amended Statement of Establishing the Cause of Action and paragraph 5 of the Amended Statement of Defencetogether with the content ofDocuments C1 and C2;the Monthly net /takehome pay of the claimant is N708, 338. 33(Documents 6-6F).The defence of the defendants to this head of claim is that the claimant had been put on suspension since 30th October, 2013 and that he is; therefore, not entitled to salaries for the months of November and December 2013 and January 2014;relying on Documents D 11 and D12.

 

Counsel continued to submit that Documents D.11 and D.12 are nullity and that the purported suspension of the claimant is of no effect. To counsel, by virtue of paragraph 2 of Article 79 A on page 71 of Document 8; only the Rector can suspend the claimant and that it is only in the absence of the Rector that the Registrar can do so. He maintained that Documents D10 and D11 are signed by one IbidapoShomade and RasheddAiyelabegan, the Registrar of the college and that there is no evidence that there was no Rector in place when the two documents were written and served on the claimant. Therefore, counsel contended that Documents D10 and D11 are nullity and of no effect; citing Wilson v. A. G. of Bendel State [1985] LPELP 3496, Pg. 1 at 30-34: [1985] 2 SC 191; F.C.D.A. v. Naibi [1990] 5 SCNJ 186 at 194.In addition, counsel contended that it is not stated in the letter that the suspension is without pay and as such, the claimant who remained in the employment of the defendants until 24th January 2014;is entitled to his unpaid salaries for the months of November 2013 to January 2014. He urged the Court to hold that the claimant has proved his entitlement to this head of claim.

 

  1. On the claimant’s claim for Annual Basic Allowance for 20 months from August 2012–January 2014; (which is N2,250,000.00/12 x 20 = N3,375,000.00), counsel submitted that this claim is rooted in Clause 4 ofDocuments C1 and Clause 7.2 of Document C2, which provides for benefit and additional allowance of N2,250,000.00 per annum and that this translates to N187,500.00 per month.He contended that from paragraph 20 (viii) of the Amended Statement of Claim and paragraph 9 (v) and (vi) of the Amended Statement of Defence, between August 2012 and January 2014 are 18 months for, which the defendants did not pay the claimant on this head of claim. He continued that contrary to the argument of the defendants in paragraph 9 (ii), (iii) and (iv) of their Amended Statement of Defence that the amount of N2,250,000.00 has been negotiated down to N1,500,000.00; the defendants did not place before the court the so called negotiated agreement.

 

  1. Counsel went on that,Clause 4 ofDocuments C.1 and Clause 7.2 of Document C.2 provide for claimant’s entitlement to N2, 250,000.00 benefits and additional allowance. Counsel also referred the court to Document C.11 dated 27th November, 2013 written by the defendants that an amount that had been negotiated down from N2,250,000.00 to N1,500,000.00 and that this would still be cancelled effective from 1st January, 2014.  Furthermore, counsel contended that Documents D.10 from the defendants also confirms that the sum of N750,000.00was paid to the claimant by the defendants in two installments of N375,000.00 per installment on 16/01/2013 and 20/12/2012 respectively were “Part payment” of benefit and additional allowance. Counsel urged the Court to hold that the claimant has proved this head of claim.

 

  1. On the claimant’s claim for Outstanding balance of Annual Basic Allowance for year 2011/2012 (N2, 250,000.00-N1,500,000.00) = N750,000.00; the claimant’s counsel adopts his submissions in paragraphs 4.8, 4.79. 4.10 and 4.11 of his final written address and further submitted that since by paragraph 9 (iv) of their Amended Statement of Defence, the defendants admitted that they paid to the claimant by three installments a total sum of 5M only as benefit and additional allowance for the year 2011/2012 and Document C16 dated 7th February, 2012 and Document C11 dated 27th November, 2013 show/confirm that the sum of N2,250,000.00 as benefit and additional allowance was never negotiated downward at any time until November 2013 when the defendants made Offer/attempt to cancel same with effect from January but was rejected by the claimant.He urged the Court to hold that the claimant is entitled to his unpaid balance of N750,000.000 as benefit and allowance for the year 2011/2012.

Moreover, counsel went on to submitted that by Document C.15of 28th February, 2012 the defendants who claimed that the allowance of N2, 250,000.00 had been negotiated down to N1,500,000.00 for 2011/2012 year admitted the fact the allowance is N2,250,000.00. Thus, it was premisedon these that the claimant has proved (D), the 20 Working days leave with pay or Payment in lieu of leave for 2011/2012 (1-month net salary = N708,338.33);(E) 10 Working days leave with pay or Payment in lieu of leave for 2012/2013 (1-month net salary = N354,169.16) and(F) 20 Working days leave with pay or Payment in lieu of leave for 2013/2014 (1-month net salary = N708,338.33). Counsel went on that these heads of claims are rooted in Clause 6 of Document 1, Clause 9 of Document 2 and Article B on page 53 of Document 7 titled “Annual Vacation Leave” and Article 55 on page 49 of Document C8 titled “Annual Leave” by virtue of which the claimant is entitled to 20 working days in a year. He referred the court to Article C on page 53 of Document C.13 and Article 55 on page 49 of C of Document C. 14 respectively.

  1. From paragraph 11 of the Amended Statement of Facts, counsel noted that the claimant was only allowed to go on his annual leave for ten days in year 2012/2013 while he was not allowed to go for same in year 2013/2014. That apart from the general denial of Paragraph 11 of the Amended Statement of Facts by the defendants in paragraph 8 of the Amended Statement of Defence, which does not amounts to denial or joinder of issues; the defendants did not deny and or join issues with the claimant on the facts averred in paragraph 11 of the Amended Statement of Facts, which is to the effect that throughout his four years with the defendants, he was only allowed to observe his annual leave for 10 Working days, citing Songo v. Akure[2014]All FWLR (Pt. 753) 1944 at 1966 and Chevron (Nig.) Ltd v. Titan Energy Ltd (2014) All FWLR (Pt. 758)884 at 909.

 

  1. On his claim(G) for Balance of Annual Leave/Vacation Allowance for 2011/2012 (i. e N4,500,000.00 –N375, 000.00 = N4,125 000.00) and (H) Balance of Annual Leave/Vacation Allowance for 2012/2013 (i. e N4,500,000.00 –N375, 000.00 = N4,125 000.00); counsel submitted that these heads of claims are predicated on Article D on Page 53 of Document C7. He went on that the defendants’ Employees’ Policy Hand Book 2011 (Documents C7) which provides for 50% of annual basic salary as leave allowance regulated the employment of the claimant with the defendants for the years 2011/2012 and 2012/2013. The claimant refers to Paragraphs 30 and 31 ofDocument C20(1st and 2nd Defendants’ Amended Statement of Defence) filed by the defendants in this court in Suit No: NICN/IL/02/2012 between Captain TundeOluwadare v. International Aviation College &Anor on 26th November, 2012. He submitted that the applicable instrument for the determination of the annual leave of the claimant for 2011/2012 and 2012/2013 is the defendants’ Employees’ Policy Hand Book 2011 (Documents C7),which provides for 50% of annual basic salary as leave allowance. He continued that Document C.7 came into force in January 2012 and remained in force until 2013 when it was reviewed and replaced with Employee’s Policy Hand Book 2013 (Documents C.8). Counsel argued that the leave allowance due and payable to the claimant for 2011/21012 and 2012/2013 before Employees’ Policy Hand Book 2013 (Documents C.8) came into operation is as provided in Employees’ Policy Hand Book 2011 (Documents C.7) which is 50% of the claimant’s annual salary which isN4,500,000.00. Since there is no dispute that what the defendants paid the claimant as leave allowance for each years of 2011/2012 and 2012/2013 is N375, 000.00 per year, the balanceof N4,125,000.00 for each yearremains outstanding and that the claimant is entitled to same. Counsel urged the court to award the sum of N8,250,000.00 representing the outstanding leave allowances for years 2011/2012 and 2012/2013.

 

  1. With respect to the claim of the defendants that the 50% of annual basic salary as Leave Allowance provided for in Document C.7 was corrected in February 2012 andchanged to 50% of monthly basic salary by a Resolution taken at the 11th meeting of the Board of Directors of the 1st defendant via a circular,Document D.3 dated 13th February, 2012; counsel to the claimant submitted that the defendants’ claim is nothing but a make belief constructed in an apparent bid to escape contractual obligation. He further submitted that Document D.3 does not assist the defendants as there is no evidence of service of same on the claimant.

 

  1. On the claimant’s claim (i); for Annual Leave/Vacation Allowance for 2013/2014 (10% of N9,000,000.00 = N900, 000.00), counsel submitted that this head of claim is anchored on Article 57A on Page 50 of Document C.8. He argued that since the tenure of employment of the claimant ran from 1st August and the period between August 2013 and January 24th, 2014 is more than six months and as such by virtue of Article 55 on page 49 of Document C8, the claimant is entitled to leave allowance for the year 2013/2014.

 

  1. Onthe claimant’s claim (J) for Two months’ take home salaries as compensation for accumulative Leave, (N708,338.33 X 2 = N1,416,676.66); counsel submitted that there is no dispute that throughout the four years and five months that the claimant served the defendants, the defendants denied him his entitlement/right to go on leave as shown by Documents C.9 and D.6. Therefore, the defendants are liable to compensate the claimant for this.

 

  1. On his claim (k) for Severance Package of (N9,000, 000.00/10 = N900,000.00); counsel stated that this head of claim is anchored on Article 92A at Page 79 of Document C.14 and submitted that the claimant who worked meritoriously for the defendants from 1stJuly, 2009 to 24th January, 2014 (4 years and 6 months) and was not dismissed from the services of the defendants is entitled to severance package of N900,000.00; which is 10% of his annual salary.

 

  1. On his claim forTwo months take home salaries in the sum of N1,416,676.66 as compensation for keeping the claimant in Ilorin and off work, counsel submitted that since the defendants refused to settle the claimant’s entitlement even after the expiration of the one month notice of termination despite demands, which kept the claimant in Ilorin and out work, the claimant is entitled to be compensated with the equivalent of the claimant’s take home pay for two months; which is reasonable in the circumstances. The claimant prays the court to award this head of claim.

 

  1. On his claim for the sum of N2, 000,000.00 as general damages; counsel submitted that by the provisions of Article 13 B of Document C.8, the claimant could only have been terminated after being issued with one verbal warning and one written warning with opportunity to answer;which was not done by the defendants in this case. Hence the claimant is entitled to the general damages of N2,000,00.00 being claimed.

 

  1. On the costs of this action, counsel submitted that by the conduct of the defendants in not settling the entitlements of the claimant as provided in the contracts of his employment with them, the claimant incurred filing and other incidental expenses; which are recoverable from the defendants as costs follows event, citing Orah v. Orah(2014) All FWLR (Pt. 759)1018 at 1073-73 andElechi v. Brown (2015) All FWLR (Pt. 792)1780 at 1797.

 

On the whole counsel submitted that the claimant has proved his entitlement to all the heads of his monetary claims; therefore, he is entitled to have them awarded to him by this court.

 

  1. The defendants filed a reply on point of law in which, their counsel citedCooperative Development Bank Plc. v. Ekanem(2014) All FWLR (Pt. 736), referred to at paragraphs 4.3 of the claimant’s final Written Address does; which he maintained that the said authority does not even exist as cited, he urged the Court to discountenance it. Counsel submitted that the case of University of Uyo v.Akpan[2014] All FWLR (PT. 736) 472 referred to by the claimant’s counsel was misunderstood by the said counsel.

 

  1. Responding to pages 4 and 5 of the claimant’s address; particularly at paragraphs 4.5 to 4.6, where the claimant referred to paragraph 2 of Article 7-9 on page 71 of document C8 and argued that it is one Abdul-RasheedAiyelabegan that signed his suspension letters; Documents D.11 and D12,counsel submitted that Wilson v. A.G. of Bendel State[1985] 1 PELP 3476, PG1 at 30-34and[1995] 2 SC 191 and C.D.A. v.Naibi[1990] 5 SCAJ 186 @ 194theycited remain good authorities for the point of law decided therein. To him, they are inapplicable to the peculiar facts of the present case. He referred the court to Buhariv. Yusuf[2003] 14 NWLR (Pt. 841) 446 andOgbonnav. A.G. Imo State (1992) 1 NWLR (PT. 220) 647 @ 686-688. He maintained that in construing the provision of a document, the meaning of the words used remain paramount.

 

  1. COURT’S DECISION

I have carefully read through the facts of this case as pleaded by the parties and their written arguments including their cited authorities; from all of this, I am of the considered view that the following issues are to be resolved between the parties:

  1. Whether or not the claimant is entitled to the total sum of N19, 487,537.47 being claimed under various sub-heads.
  2. Whether or not the claimant is entitled to the sum of N1,416,676.66 as two months’ compensation and the sum of N2,000,000.00 as General Damages

 

  1. Before coming to a decision on the merit of this case, let us settle some preliminary issues. Firstly, the 3rd relief as endorsed on the amended complaint is for a restraining order against the defendants etc. See page342 of the record. However, in paragraph 4.39 of his final written address, the claimant’s counsel stated that “this head of claim is spent and overtaken by event as the claimant had vacated his official accommodation”. In the circumstances, relief 3 of the claimant as endorsed on his amended complaint is according dismissed.

 

Furthermore, the claimant’s counsel referred the Court to some pleadings in various cases that this Court had handled and concluded years back and in other Divisions of the Court; without reproducing thesepleadings he wanted the Court to look at and without producing certified true copies of these processes on those said cases including the Court’s Judgments on them. It is my firm finding that this practice of the claimant’s counsel offends the provisions of Order 45 Rule 3 (1) of the NICN (Civil Procedure) Rules, 2017. Therefore, I hold that those references and citations are not helpful to the claimant inthis judgment and they are accordingly discountenanced.

 

  1. Also, in this case;the claimant is not contendingthat he was wrongfully dismissedneither is he challenging the termination of his employment by the defendants. Rather, he is onlyclaiming payment of some amount of money for various entitlements due to him during his employment relationship with the defendants. We should again bear in mind that this is a private employment, otherwise known as Master and Servant relationship. In such a situation, the Court will have to look at the instruments of the relationship otherwise known as the terms and conditions of the contract of employment in order to determine the rights and obligations of the parties therein.

What governs the employment relationship between the Parties

The law is that in cases of private employment, the first hurdle to cross by the Court is to examine the terms and conditions of the contract; such as the letter of appointment and any other service regulations connected with the Establishment of the employer; these include the provisions of any Statute or Decree, which relates to or regulates the service conditions of the Establishment, see Odiase v. Auchi Polytechnic, Auchi[2015]60 NLLR (Pt. 208)1 CA at 23-24, paragraphsF-A.

From paragraphs 3.04 of the defendants’ written address and paragraphs 2.2 and 4.2 of the written address of the claimant, the parties are in agreement that the terms and conditions regulating the employment of the claimant with the defendants are contained in and or regulated by the following documents:

  1. Letter of Offer of Employment dated 24th June, 2009 (Documents C1)
  2. Employment Agreement dated 1st July, 2011 (Document C2)
  3. The Employees’ Policy Hand Book of 2011(Document C7) and
  4. Employees’ Policy Hand Book of 2013 (Document C8).

 

It is trite that where more than one single document state the terms of a contract, such documents must be construed jointly in order to have total account of the said terms and conditions of the contracts; see Ladipo v. Chevron Nig. Ltd [2005]1 NWLR (Pt. 907) 277 at 289 paragraphs F-H. Therefore, I hold that the four listed documentsabove are to be construed jointly in order to determine the right, duties, obligations and liabilities of parties under the employment relationship. I further hold that the parties before the Court are bound by these documents, which they freely entered into.

  1. WHETHER THE CLAIMANT IS ENTITLED TO THE TOTAL SUM OF N19, 487,537.47 CLAIMED UNDER VARIOUS SUB-HEADS.

In order to make this easier to resolve, the various sub-claims, which added up to this total claimed sum will be handled serially.

 

  1. Arrears of net/take home salaries for the months of November & December 2013 and the month of January 2014 (N708,338.33 x 3 = 2,125,014.99)

Counsel to the claimant contended on this point that the suspension of the claimant from 30th October, 2013 by the defendants via Documents D.11 and D.12 is of no effect as it is only the Rector that can suspend the claimant.He went on that it is only in the absence of the Rector that the Registrar of the 1st defendant can suspendthe claimant as he did.To counsel, there is no evidence before the Court that there was no Rector in place when the two letters of suspension were written and served on the claimantand that it is not stated in these documents that the suspensions were without pay; and as such, the claimant remained in the employment of the defendants until 24th January 2014 when his employment was terminated by the defendants.Therefore, Documents D11 and D12 are nullity and of no effect and thatthe claimant is entitled to his unpaid salaries for the months of November 2013 to January 2014 as claimed.

  1. Are Documents D.11 & D.12 null and void?

Document D11 is at page 221 of the record. It is a letter titled ‘Temporary Suspension from flying operation” dated 27th October, 2013 and itstates that the claimant has been suspended from flying operations pending the outcome of investigation into the circumstances surrounding the grounding of5N-BNK on Saturday 26 October, 2013. The claimant was also directed to make himself available to the Disciplinary Committee on the issue on October 28, 2013 at the College’s Conference Room at 10am. It is signed by one IbidapoShomade, Ag. CFI.

 

In myconsidered view, Document D.11 is merely a notice of Temporary Suspension flying operation to enable the College look into the circumstances surrounding the grounding of 5N-BNK on Saturday 26 October, 2013. It is not a disciplinary measure as provided in the terms and conditions of the contract of employment between the parties. In the circumstance, I find and hold that Document D.11 was properly written as directed.I hold that the said letter does not have to be written by the Rector of the 1st defendant.

  1. Document D.12 is at page 222 of the record. It is a letter titled “Letter of Suspension from Duty” dated 29th October 2013 and written by the Registrar of the 1st The first and second paragraphs of this letterstate that:

Following report the management received on your un-professional behaviour by not contacting the control tower while on positive control of the Ilorin tower between 0840-0920 and shutting down the aircraft in the course of carrying out your duties which resulted in the grounding of the college Aircraft (5N-BNK) on Friday &Saturday 25th&26th/10/ 2013 and subsequent query issued in this regard, you refused to disclose the fact and also enter a snag on the said Aircraft after it was duly released for services with no previous snag;

 

The management has directed that you should proceed on indefinite suspension from duty with effect from 30th October 2013.

 

Paragraph 2 of Article 79 (A) of Document C.8 and page 68 of the record provides thus:

If the reply to the formal warning or query is insufficient, the employee may be suspended. This suspension shall be without pay. The power to suspend an employee shall rest squarely with the Rector or in his absence, the Registrar.

 

  1. The claimant alleged that his letter of suspension was wrongly signed by the Registrar of the College instead of the College Rector. He also showed the Court that the Rector did not sign the letter of suspension (Document D.12) and that the College Registrar signed it. Therefore, the claimant has satisfactorily proved before this Court that his allegation that his letter of suspension was wrongly issued by the defendants.The burden of proof now shifts to the defendants in line with the provision of section 136 (1) of the Evidence Act; to satisfy the Court that, even though the Registrar instead of the Rector of the 1st defendant signed the claimant’s suspension letter, the letter was still signed in compliance with their terms of employment. And this, the defendants failed to do. In the circumstances, I hold that the letter of suspension of the claimant from the 1st defendant was issued contrary to the parties’ term of employment as provided in of paragraph 2 of Article 79 (A) of Document C.8; the defendant’s Employees’ Policy Hand Book of 2013. I further hold that Document D.12, the letter of suspension in question was issued without authority, it is therefore; a nullity. Consequently, for the three months of the purported suspension, the claimant is deemed to have been in the employment working; and so, I hold that he is entitled to his salaries for the months of November & December 2013 and up to January 24, 2014 when his employment was eventually terminated by the defendants.This entitlement is calculated this way: N708, 338.33 x2 = N1,416,676.66. Plus; N708,338.33/31×24 = N548,390.96 i.e. N1,416,676.66 +N548,390.96 = N1,965,067.62. I hold that the claimant is entitled to claim from the defendants, the total sum of One Million, Nine Hundred and Sixty Five Thousand and Sixty Seven Naira Sixty Two Kobo (N1,965,067.62) only under this head.

 

  1. On the Annual Basic Allowance for 18 months being claimed from July 2012 – January 2014.

In paragraphs 19 (viii) and 29 (1) (b) of his Amended Statement of Facts, the claimant is seeking for payment of hisAnnual Basic Allowance from July 2012 to January 2014;which is a total of one year and six months (18 months) at the rate of N2,250,000.00 per annum;which to him, translates to the sum of Three Million, Seven Hundred and Fifty Thousand Naira (N3,375,000.00) only (if N2,250,000.00/12 X 18). However, in paragraphs 2, 9 (i) to (vi) of the defendants’ Amended Statement of Defence,it is stated that the claimant is not entitled to this claim. They went on that the payment of additional allowance is not specific in their terms of employment but that the said allowance can be negotiatedup to the sum of N2.250, 000.00 per annum. Their counsel further arguedthatas a result of the said negotiation; the claimant had been paid the sum of N1.5m for the period of 2011/2012 without complaint.They continued that the said allowance has even been further negotiated down to N500,000.00for year 2012/2013 butthatthe claimant refused to accept this; and so, the allowance for that year remains unpaid. See paragraphs 9(iii) &(iv) and 12 of their Amended Statement of Defence.

 

  1. The relevant portion of the parties’ agreement on this issue is Clause 4 of the letter of offer of employment,Documents C.1 at pages 23 of the record and Clause 7.2 of the Employment Agreement between the claimant and the 1st defendant;Document C.2 at page 29 of the record.Both terms provide that an employee will be entitled to benefits and additional allowance up to N2,250,000.00.Therefore, I agree with the defendants’ counsel and hold that this phrase, an employee will be entitled to benefits and additional allowance up to N2,250,000.00 means that the sum of N2,250,000.00 is the maximum or highest amount that can be paidto the employee (like the claimant) as additional annual allowanceby the 1st I further hold that it does not mean that the said sum must be mandatorily paid yearly asthe claimant’sallowance as contended before the Court.

 

  1. Even thoughthere is no specificamount of money agreed to by the parties as the additionalAnnual Basic Allowanceof the claimant under this headbefore the Court,I find from evidence that the defendants paid a total sum of N1.5m to the claimant as his additional annual allowance for year 2011/2012instalmentally, which the claimant did not reject. In the circumstance, I hold that the amount that the parties eventually agreed to as the claimant’s annual additional allowance in line with the provisions ofClause 4 ofDocuments C.1 and Clause 7.2 of Document C2 is the sum of N1.5m as paid to the claimant in year 2011/2012. I further hold that the claimant is entitled to claim from the defendants his additional allowances for 18months from July 2012 to January 2014; which is to be calculated this way: N1,500,000.00/12×18 = N2,250,000.00. Consequently, I hold that the claimant is entitled to the sum of Two Million, Two Hundred and Fifty Thousand Naira (N2,250,000.00) only as his accrued additional allowances for the said 18months.

 

  1. Whether the claimant is entitled to N750,000.00 as outstanding balance of his Annual Basic Allowance for the 2011/2012

The claimant is claiming the sum of N750,000.00 as the outstanding balance of his Annual Basic Allowance for the year 2011/2012 (calculated: N2,250,000.00-N1.5M = N750,000.00) in paragraph 29 (i) of his Amended Statement of Facts. His counsel argued this claim in paragraphs 4.12 & 4.13 of his final written address and referred to Documents C.15, C.16 & D.10 in support as evidence of the defendant admitting that the sum of N1.5M paid the claimant that year was part-payment of the total sum of N2,250,000.00 under this head.

 

Document D.10 is at pgs. 206 -207 & 212 & 213 of the record. It is a document through which some amount of money was paid by the 1st defendant into the account of the claimant and some of his colleagues. This document did not state that the money stated therein was part-payment of the N2,250,000.00. Also Document C.15 is at page 233 of the record. In it, the defendant merely acknowledged the claimant’s claim for allowance for up to N2,250,000.00 and that the request was receiving attention. Again Document C.16 at page 234 of the record; is the letter of the claimant’s counsel, MuritalaAdio Esq. from Adebayo Adelodun& Co. Legal Practitioner & Notaries; in whichcounsel stated his legal opinion that the claimant is entitled to accrued benefits. No specific amount of money is even mentioned in this document as the entitlement in question. In essence, there is nothing in these referred documents/exhibits before the Court that confirms that the defendants admitted that the claimant is entitled to a total sum of N2,250,000.00 as additional annual basic allowance and I so hold. I further hold that the claimant has failed to satisfy the Court that both parties eventually agreed to pay the maximum sum payable by their terms of employment as his additional annual basic allowance; and so, the claimant is not entitled to the sum of N750,000.00 from the 1st defendant as his balance under this head for year 2011/2012.

 

  1. On the claimant’s claims for payment in lieu of 50days accumulated leave

In paragraph 29(1) (c), (d) and (e) of his Amended Statement of Facts, the claimant claims as follows:

  1. 20 Working days leave with pay or Payment in lieu of leave for 2011/2012 (1-month net salary= N708,338.33)
  2. 10 Working days leave with pay or Payment in lieu of leave for 2012/2013 (N708,338.33/2=N354,169.16)
  3. 20 Working days leave with pay or Payment in lieu of leave for 2013/2014 (1month net salary= N708,338.33)

 

To the claimant’s counsel, the three claims are rooted in Clause 6 of Document C.1, Clause 9 of Document C.2 and Article B on page 53 of Document C.7 titled Annual Vacation Leave and Article 55 on page 49 of Document C.8 titled Annual Leave by virtue of which the claimant is entitled to 20 working days in a year.

  1. Document C.1 is at page 22 of the record, it is Letter of offer of Appointment; its clause 6sub-titled “Annual Leave” provides:

After confirmation, you will be entitled to Annual leave of 20 working days within any calendar year or as otherwise determined by the Company, excluding all statutory holidays, during which time your remuneration shall be paid in full. You shall however notify management one month prior to the date of such intended leave and management must agree to the proposed date of commencement of the leave period.”

 

  1. The Employees’ Policy Handbook of 2013 for the Defendants; (Document C.8), it is at page 39 to page 79 of the record, particularly paragraph 56 at page 47 of the record is on deferment of leave, provides thus:
  2. No employee shall be allowed to work continuously for more than 2 (two) years without taking his or her accumulated leave.
  3. Employee shall be compensated for an accumulated leave in the event of cessation of employment. Such payment shall not exceed 2 (two) years leave accumulated
  4. No leave shall be commuted to cash.

 

  1. In Document C.9 at page 121 of the record, the defendants acknowledged the receipt of the claimant’s application for annual leave for 2011/2012 and refused to grant same but allowed him the grace to carry same into 2012/2013. The defendants further advised the claimant to break same in to part of 10days each. It is worthy of note that what the claimant is seeking for here is payment of the sums ofN708,338.33;N354,169.16 and N708,338.33 respectively in lieu of his cumulated 50Working days leave for 2011/2012,2012/2013 and 2013/2014.

 

I find from evidence before me that the claimant has succeeded in proving that he is entitled to those periods of leave, part of which was actually refused expressly and deferred by the defendants. In paragraph 56(c) of Document C.8 under “Deferment of Leave”, it is provided that ‘No leave shall be commuted to cash’. This is a very clear and unambiguous provision/written term of the contract between the parties. There is no evidence before the Court the claimant did not receive his normal salary for the period in question. Rather, what the claimant is asking for here is for the Court to order the defendants to convert his unused 50days’ leave to cash for him. Nevertheless, he has not succeeded in referring the Court to any of his terms and conditions of employment that supports this prayer. It is the duty of this Court to ascribe ordinary grammatical meaning to the words of the terms and conditions of the claimant’s employment before the Court. See the cases ofJulius Berger Nigeria Plc.&Anor v. Toki Rainbow Community Bank ltd [2009] LPELR- CA/PH/365/2006 and International Standard Securities v. Union Bank of Nigeria Plc. (Registrar’s Department) [2009] LPELR-CA/A/127/05 on this principle of law.

  1. Since parties have agreed that no unused or deferred leave shall be commuted to cash, I hold that the claimant has no basis for claiming from the defendants, the sum of N708,338.33, N354,169.16 and N708,338.33 respectively,even though he has succeeded in proving that he actually had accumulated leave days unused while in the employment of the 1st defendant because parties are bound by the terms and conditions of their contract; see the cases of West African Examination Counsel v. Oshionebo[2015] 55 NLLA (Pt. 187) 165 at 185 paras A-D per Aderemi JCA at 189 paragraphs G-H.I further hold that the claimant is not entitled to claim from the defendants the sum of N708,338.33, N354,169.16 and N708,338.33 in lieu of his unused/deferred leaves for years 2011/2012, 2012/2013 and 2013/2014respectively.
  2. v.On the claimant’s claim for Balance of his annual Leave/Vacation Allowance for years 2011/2012, and 2012/2013.

In Paragraph 29 (f) & (g) of his amended statement of facts, the claimant is seeking for the balance of his annual leave allowances for years 2011/2012 and 2012/2013.He is contending that, by his terms of contract in Document C.7; the Employees’ Policy Hand Book of 2011, he is entitled to 50% of his annual Basic Salary as his Annual Leave Allowances for years 2011/2012 and 2012/2013.On the other hand, the defendants argued that the annual leave allowance of their employees as stated in Document C.7 was an error and a misprint; which they have corrected by a circular via Document D.3 to 50% of monthly Basic Salary of the employee.

 

  1. Document C.7 isthe Employees’ Policy Hand Book of the 1st defendant, 2011.In this document, particularly at page 86 of the record under Paragraph C on “Annual Leave Allowance”; it states that ‘Annual Leave Allowance will be paid to all qualified staff at the rate of 50% of Annual Basic Salary by December of every year and it became effective in January 2012; see paragraph 16 of the amended statement of defence.Document D.3 is the circular in question and it is at page 182 of the record. It states that it corrected the Annual Leave allowance of their employees to 50% of their monthly salaries. The defendants went on that it was the corrected allowance that 1st defendant paid to the claimant in years 2011/2012 and 2012/2013 as his annual leave allowances.

 

  1. At page 80 of the record is the part of Document C.7 where the claimant was expected to signas proof of his own consent to the agreement and that the said policy was actually issued to him and that he received it. Neither the name nor the signature of the claimant is on this part. Nevertheless, in Document C.22 at page 276 to page 293 of the record, the name of the claimant appears as No. 29 at page 287 of the record as one of the employees of the 1st defendant who accepted and signed for the copy of the Employees’ Policy Hand Book of 2011 (Document C.7) on January 18, 2012. This means that both parties have voluntarily entered into the terms and conditions of the contract in this document; see West African Examination Counsel v. Oshionebo[2015] 55 NLLA (Pt. 187) 165 at 185 paragraphs A-D. In the circumstance, I find and hold that both parties voluntarily agreed on the terms and conditions of the contract of employment in Document C.7.

 

  1. Document D.3; which the defendants contended that they issued to their employees to correct the error and misprint in Document C.7 on the leave allowance entitled to by the employees is at page 182 of the record. It is dated February 13, 2012 and that the circular takes effect from January 26, 2012 and, it is signed by the Acting Registrar of the College. There is no evidence before the court from the defendants that this document was served on and signed for by the claimant. In this instance, I find and hold that the defendants, who are contending that they made correction on a term and condition of the contract of employment in Document C.7 that have the burden of proving same to the satisfaction of the Court in line with the provision of section 136 (1) of the Evidence Act, 2011.But the defendants have failed to prove same. Consequently, I hold that the defendants cannot unilaterally change the term of employment in question without the consent and approval of the claimant; and so, the content of Document D.3 is of no effect to this employment contract between the claimant and the 1st Therefore, I again hold that the Annual leave allowance as stated in Document C.7 is applicable to the claimant’s annual leave allowances for years 2011/2012 and 2012/2013 respectively and that this term is binding on the defendants. In addition, I hold that the claimant’s annual leave allowance is 50% of his annual basic salary for each of the two years in question in line with his term of this contract in Paragraph C on “Annual Leave Allowance” in Document C.7.

 

  1. The parties are in agreement as to the annual basic salary of the claimant, which is N9,000,000.00 hence, 50% of the sum is N4,500,000.00. In the circumstance, I hold that for each of the two years, the claimant was entitled to N4,500,000.00 as his annual leave allowance. In addition, the parties are in agreement that for each of these two years; the defendants paid the sum of N375, 000.00 as the claimant’s annual leave allowance. See Document C.4 at page 183 to page 189 in particular, see page 189; No. 4 under schedule of annual leave allowance for 2012. In essence, the defendants have paid the total sum of N750,000.00 to the claimant under this head of claim. For this reason, N9,000,000.00 -N750,000.00 = N8,250,000.00. Consequently, I hold that the claimant is entitled to claim from the defendants a total sum of Eight Million, Two Hundred and Fifty Thousand Naira (N8,250,000.00) only as balance of his annual leave allowances for years 2011/2012 and 2012/2013 respectively.

 

  1. On the claimant’s claim for the sum of N900,000.00 as Annual Leave/Vacation Allowance for year 2013/2014.

In paragraph 29 (h) of the amended statement of facts, the claimant is claiming forthe sum of N900,000.00 as his Annual Leave/Vacation Allowance for year 2013/2014. Thus, the applicable term of the contract in question is inparagraph 57 (b) of the Document C.8; the Employees’ Policy Hand Book of 2013. This paragraph is at page 47 of the record and it provides thus:

Employees will only qualify for leave allowance after spending at least 6 (six) months with the college.

From the content of the letter of offer of employment; Document C. 1 at page 22 of the Court’s record, the claimant’s employment with the 1st defendant was with effect from 1st July, 2009. This means that by July 1, 2012 the claimant had completed four yearsin service with the defendants. And so, from July 2, 2013 to January 24, 2014 when the claimant’s employment was determined; he had served the defendants forat least 6months and 22days.For this reason, I hold that the claimant qualifiedto be paidhis leave allowancefor year 2013/2014,after spending at least 6 (six) months in service with the collegeas provided in this term in paragraph 57 (b) of the Document C.8.

  1. In paragraph 57(a) of Document C.8 at page 47 of the record, the claimant is entitled to 10% of his annual basic salary of N9,000,000.00 as his annual leave allowance; which is the sum of N900,000.00. Consequently, I hold that the claimant is entitled to the sum of Nine Hundred Thousand Naira (N900,000.00) only as his annual leave allowance for year 2013/2014.

 

  1. On the claimant’s claimfor two months’ salaries as compensation for accumulative Leave (i. e. N708,338.33 X 2 = N1,416,676.66)

In paragraph 29(j) of the amended statement of facts, the claimant is claiming for two months’ take home salary as compensation for his accumulatedleave (calculated this way: N708,338.33 X 2 = N1,416,676.66. There is no evidence lead by the claimant on this before the Court and the law is that averments in pleadings are mere paper tigers becausethey are not evidence. Therefore, it is wrong for any Court including this one to treat an unproved averment as evidence on the issue averred thereon; seeOmo-Agege v. Oghojafor[2011] NWLR (Pt. 1234) 341 at page 353, paragraphs G- H.

 

Besides, in Document C.2, which is the Employment Agreement between the parties at page 25 to page 34 of the record;particularly at page 32, its Clause 12.6 provides thus:

If IAC terminates this Agreement as provided for in this Clause 12, IAC shall only be liable to pay Employee for services performed to the satisfaction of IAC and completed as at the date of termination. Employee shall not have any other claim against IAC for damages or compensation of any nature whatsoever.

With the above term of this contract between the parties, coupled with the fact that the claimant did not prove the pleaded claim in this case, I find and hold that the claimant is not entitled to this relief and the relief is accordingly dismissed.

 

  1. On the claimant’s claim for Severance Package of N900,000.00

In paragraph 29(k) of the Amended Statement of Facts, the relief the claimant is seeking for the Severance Package of 10% of his Annual basic salary; which is calculated this way: N9,000,000.00/10= N900,000.00. The claimant’s counsel submitted that the claimant worked meritoriously for the defendants from 1st July, 2009 to 24th January, 2014 (which is for the period of 4 years, 6 months and some days); and particularlybecause he was not dismissed from the services of the defendants. To him,theclaimant is entitled to this severance package of N900,000.00 and he urged the court to award this claim to the claimant.

 

  1. Article 92of Document C.8 is on Severance Package; this document is the Employees’ Policy Hand Book of the 1st defendant, 2013. The Article isat page 76 of the record and it provides:

Based on the Management’s discretion, the college may pay severance fee to employee who have worked with the college for at least 3 (three) years, meritoriously.

 

The severance fee shall be Ten percent (10%) of the total annual salary earned by the employee in the service of the college.

 

However, employees that are dismissed from the college’s employ shall not be qualified for any severance fee.

  1. By the 3rd paragraph of this term of the agreement between the parties, it is only employees of the 1st defendant who are dismissed from the college’s employ that shall not be qualified for payment of any severance fee. In Law and in Logic, the converse of a proposition commands same respect as the preposition itself.Therefore, even though the payment of this severance benefit may be at the discretion of the Management of the 1st defendant;conversely, the condition in the 3rd paragraph of Article 92 of Document C.8 in this case means that if an employee of the 1st defendant is not dismissed, then he shall be paid his severance benefit. Parties are bound by the terms of the agreement they freely entered into; see the cases of Lagos State Govt.v. Toluwase [2013] 1 NWLR (Pt. 1336) at 555 and Best (Nig.) Ltd. v. Blackwood Hodge (Nig.) Ltd [2011] Vol. 1-2 MJSC55. In Labour Law, the principle is that ambiguity must be resolved in favour of the employee. Consequently, I find and hold that because the employment of the claimant was not dismissed by the 1st defendant, he shall be paid the sum of Nine Hundred Thousand Naira (N900,000.00) only as hisseverance benefit by the defendants.

 

  1. On the claimant’s claim fortwo months’ take home salaries in the sum of N1,416,676.66 as compensation for keeping him in Ilorin and off work.

In paragraph 29(k)(ii) of the Amended Statement of Facts, the claimant is seeking for payment of two months take home salaries of N1,416,676.66 as compensation from the defendants for keeping him in Ilorin and off work.As found and held in paragraph 53 of this judgment; Clause 12.6 of Document C.2, the Employment Agreement at page 25 to page 34 of the record; particularly at 32, is apt and the clauseprovides that:

If IAC terminates this Agreement as provided for in this Clause 12, IAC shall only be liable to pay Employee for services performed to the satisfaction of IAC and completed as at the date of termination. Employee shall not have any other claim against IAC for damages or compensation of any nature whatsoever.

 

With the above term of contract between the parties, the claimant has no basis for making this claim against the defendants. This is because,in a contractual relationship, parties are bound by the terms of their contract they voluntarily entered into.  Consequently, I hold that the claimant has failed to prove his entitlement to this relief. This claim fails and it is accordingly dismissed.

 

  1. On the claimant’s claim for the sum of N2,000,000.00 general damages.

In paragraph 29 (iv) of the Amended Statement of Facts, the claimant is claiming for the sum of N2, 000,000.00 as general damages from the defendants. His counsel contended that by the provisions of Article 13 B of Document C.8, the claimant could only have been terminated after being issued with one verbal warning and one written warning with opportunity to answer same and that the defendants did not comply with this term of their contract in this case. He went on that as a result of this none compliance; the claimant is entitled to award of general damages of N2,000,000.00 being claimed.

 

  1. It is worthy of note that, the claimant is notchallenging the termination of his appointment against the defendants as shown in his various claims before the court. Rather, he is praying for payment of diverse entitlements against the defendants. Therefore, the issue of unlawful or wrongful termination was never raised by the claimant before the court. The aim of an award of damages is not to make a windfall or excessive profit; see Adamu&Ors. v. Shifa Plastics Ind. Co (Nig.) Ltd &Ors[2014] 40 NLLR (Pt. 124) 559 at 585, paragraphsA-G. Since the claimant is not challenging the termination of his appointment in this suit, he cannot be claiming for damages for wrongful termination at this address stage.This is because, the Courtshave unswervingly stated that address of counsel, however brilliant, cannot take the place of evidence particularly where there is no evidence in support of the submission;see the cases of UBN Plc. &anor v. Ayodare& Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42, paragraphs F-G and Umejuru v. Odota[2009] All FWLR (Pt. 494) 1605 at 1623. Consequently, I hold that the claimant is not entitled to any general damage against the defendants in this case; and so this claim is dismissed.

 

  1. On the claimant’s claim for costs of this action

In paragraph 29(vi) of the Amended Statement of Facts, the claimant is claiming for cost of this action against the defendants. The claimant did not even specify the amount of money he is claiming here neither did he proffer any evidence in support of same in this case.The claimant is the one asserting the existence of this fact; and so, he has an obligationto prove same, see the cases of Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083 and Alade v. Alic Nig. Ltd. [2011] All FWLR (Pt. 563) 1849. Where no evidence is led to prove the averment in pleadings;Court considers such averment as vague and it will discountenance same. See the case of Help v. Silver (supra). The claimant’s claim for cost of this action is an invitation to this Court to speculate and this Court will not accede to this illicit and prohibitedinvitation. In the circumstances, I hold that this claim fails for lack of proof and it is accordingly dismissed.

 

  1. On the whole, I hold and order as follows in this judgment:
  2. I hold that the claimant’s relief for injunction and restraining order against the defendants etc. is now spent as the claimant had already moved out of the defendants’ premises. This relief is accordingly dismissed.
  3. I hold that all the facts referred to by the claimant’s counsel on other previous cases handled by this court in its other Divisions; of which counsel did not supply certified true copy of same are discountenanced in this judgment.
  • I hold that the claimant’s suspension via Document D.12 is contrary to the terms of his contract and the suspension is; therefore, a nullity and it is accordingly set aside. I further hold that he is entitled to his salaries for the months of November 2013 to January 24, 2014 when his employment was terminated; which is a total sum of N1,965,067.62) only under this head.
  1. I hold that the claimant is entitled to claim from the defendants his Annual basic allowance for 18 months from July 2012 to January 2014 at the rate of N1,500,000.00 per annum; which equals a total sum of N2,250,000.00.
  2. I hold that by the terms and conditions of his employment, the claimant is not entitled to claim for payment in lieu of his 50 cumulative Working days from years 2011/2012; 2012/2013 and 2013/2014 respectivelyas claimed in paragraphs 29(c), (d) &(e) of the amended Statement of Facts.
  3. I hold that the claimant is entitled to claim from the defendants, a total sum of N8,250,000.00 as the balance of his annual Leave/Vacation Allowances for years 2011/2012 and 2012/2013 respectively as claimed.
  • I hold that by the terms of the claimant’s contract of employment, he is entitled to claim the sum of N900, 000.00 as his Annual Leave/Vacation Allowance for year 2013/2014.
  • I hold that the claimant is not entitled to an outstanding balance ofN750, 000.00 Annual Basic Allowance for year 2011/2012.
  1. I hold that the claimant is not entitled to the sum of N1,416,676.66 as his two months’ take home salary as compensation for his accumulatedleave.
  2. I hold that the claimant is not excluded from enjoying Severance Package of N900,000.00 from the term of his employment. The Management of the 1st defendant shall; therefore, exercise its discretion by paying severance benefit the claimant.
  3. I hold that the claimant is not entitled to claim from the defendants, the sum of N1,416,676.66 as compensation for keeping the claimant in Ilorin and off work.
  • I hold that the claimant is not entitled to the sum of N2, 000,000.00 as general damages in this case.
  • I hold that the claimant is not entitled to the costs of this action.
  • I hereby order that the all the judgment sum in this case are to be paid to the claimant by the 1st defendant within 60days from today.

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

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

 

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