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National Industrial Court

Ayanyemi Akinlolu -VS- International Aviation College,

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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: June 10, 2019                                                             Suit No: NICN/IL/03/2014

 

Between:

 

Ayanyemi Akinlolu                         ————                     Claimant

 

And

 

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

Rector, International Aviation College,

Ilorin

 

Representation

Salman Jawondo with Idris A. Abdullahi for the Claimant

YunusLamboAkanbi with A.Abdulkareem for the Defendants

 

COURT’S JUDGMENT

  1. On February 28, 2014 the claimant filed this suit against the defendants and by his Amended Complaint and Statement of Facts filed on June 13, 2014; he is seeking for the following reliefs:
  2. The sum of Eighteen Million, Ninety-One Thousand, Six Hundred and Ninety-One Naira and Sixty-Five Kobo (N18,091,691.65) only being the NET Arrearsunder the following sub-heads:
  3. Salaries for the months of November and December 2013 and January 2014;
  4. Balance of Annual Leave Allowance for the years 2011/2012 and 2012/2013;
  5. Annual Leave Allowance for 2013/2014;
  6. Outstanding balance of Annual Basic Allowance for the year 2011/2012;
  7. Annual Basic Allowance for the period of August 2012 to January 2014 (eighteen months) and;
  8. 50 working days Annual Leave with pay or payment in lieu of annual leave for June2011/2012, 2012/2013 and 2013/2014;
  9. Compensation for the accumulated leave for not less than two years and severance package.
  10. Two months take home salaries in the sum of N1,416,676.66 as compensation for keeping the claimant in Ilorin and off work.

iii. 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

 

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants entered conditional appearance and through their counsel and filed their Amended Statement of Defence with other defence processes in compliance with the Rules of this Court.

 

  1. CLAIMANT’S CASE AS PLEADED

The case of the claimant is that hewas a trained Pilot and that he was employed as a Flight Instructor by the 1stDefendant with effect from1st July, 2009via a letter of Offer of Employment dated 24th June 2009 andthat he remained with them until the defendants terminated his appointment with effect from January 24, 2014.He continued that the terms and conditions of his employment are expressly spelt out in his letter of Offer of Employment and in his Employment Agreement dated 1st July, 2009. 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 repeated demands by him. Therefore, he filed this suit seeking for payment of all his entitlements.

 

  1. THE DEFENDANTS’ CASE AS PLEADED

The defendantsconfirm the that the Claimant assumed duty with the 1stDefendant as a Flight instructor on the 1st day July 2009 as offered in the letter of employment together with Employment Agreements executed between the Claimant and the 1st Defendant containing the terms and conditions of the employment relationship.They also confirmed that the Claimant’s said appointment was confirmed with effect from June 1, 2011 via a letter dated December 6, 2012 and that this appointment was terminated with effect from 24th January, 2014. The only entitlement of the claimant that the defendants is his negotiated Annual Allowance for 2012/2013; which to them is the sum of N500,000.00 .

During hearing of the case, two witnesses testified for the claimant; C.W.1& C.W.2, they are Captain TundeOluwadareand AkinyeniAdemolaOlumagowa; the claimant in one of the sister cases with Suit No: NICN/IL/05/2014. Mr. RasheedAiyelabegan, the Registrar of the 1st defendant testified on behalf of the Defendants as DW1. Thereafter, the Court directed counsel to the parties to file their final written addresses by the Court and they complied with the direction.

 

  1. DEFENDANTS’WRITTEN ARGUMENTS

The Counsel to defendants filed his final written address and formulated one issue for determination of the court as:

Whether having regards to the state of pleadings and evidence, both oral and documentary placed before this Honourable Court by both parties, the Claimant has made out a case on preponderance of evidence to entitle him to various heads of claimclaimed against the Defendants.

 

  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 of Andem 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 of N708,338.33), 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 of N708,338.33), 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 their rights and obligations under the contract; citing Udogwu v. 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 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. On the Claimant’s evidence in 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 has no 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 Abubakar v. 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.

 

  1. 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 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 now by 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 years as 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. 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 hewas paid; 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. and Alaribe v. Okwionu[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 this 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 his final written address, the counsel’s claimant raised one issue for determination of the Court as well this way:

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.7, C. 8, C.13 & C.14 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 Defence together with the content of Documents D.5 & D.8; the Monthly net /takehome pay of the claimant is N708, 338. 33.To counsel, there is no dispute on the claimant’s arrears of his salaries for the months of December 2013 and January 2014. But that all the defendants are saying in paragraph 39 of their Amended Statement of Defence and the defendants’ solicitors’ letter of 10th February, 2014 (Documents D5/C18) is that, since the employment of the claimant came to an end on 24th January, 2014, he is only entitled to the sum of N566, 670.66 being payment for 24 days for January 2014. Counsel maintained that his is in paragraph 4 of Document C7, paragraph 7.2 of Document C8, Page 59 of Document C13 (Salaries and Wages) and Article 37 on page 42 of Document C14 all which provide for monthly salaries as against daily paythat the defendants want to import in to the contract. He urged the Court to hold that the claimant has proved his entitlement to this head of claim and to order the defendants to pay to the claimant the sum of N1,416,676.66as his two months’ arrears of salaries.

 

  1. On the claimant’s claim for Annual Basic Allowance for 20 months from August 2012 to 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 C7 and Clause 7.2 of Document C8, 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 11 (v) and (vi) of the Amended Statement of Defence, between August 2012 and January 2014 are 20 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 11 (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.7 and Clause 7.2 of Document C.8 provide for claimant’s entitlement to N2, 250,000.00 benefits and additional allowance. Counsel also referred the court to Document C.18 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.8 from the defendants also confirms that the sum of N750,000.00 was 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 4.6, 4.7,4.8 &4.9. of his final written address and further submitted that since by paragraph 11 (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 C.26of 7th February, 2012 and Document C.18of 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.
  2. Moreover, counsel went on to submitted that by Document C.25 of 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 premised on 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 C.7, Clause 9 of Document C.8 and Article B on page 53 of Document C,13 titled “Annual Vacation Leave” and Article 55 on page 49 of Document C,14 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 13 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 12 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 C.13. He went on that the defendants’ Employees’ Policy Hand Book 2011 (Documents C.13) 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 C30(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 C13), which provides for 50% of annual basic salary as leave allowance. He continued that Document C.13 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.14). 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.14) came into operation is as provided in Employees’ Policy Hand Book 2011 (Documents C.13) which is 50% of the claimant’s annual salary which is N4,500,000.00. 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.13 was corrected in February 2012 and changed 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.14. 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 C14, the claimant is entitled to leave allowance for the year 2013/2014.

 

  1. On the 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.15, C,17, C.20 and C.21. 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 1stJune, 2009 to 24th January, 2014 (4 years and 7 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 for two 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.14, 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 and Elechi 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. 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 Buhari v. Yusuf [2003] 14 NWLR (Pt. 841) 446 and Ogbonna v. 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. On October 8, 2014 this matter came up for mention and counsel to the claimant, Mr. Suleiman informed the Court that there were other sister cases filed with this one; which are: NICN/IL/04/2014, NICN/IL/05/2014 & NICN/IL/06/2014. He applied that this case be used as test case for them and that the decision in this case to abides in the other three sister cases. Mr. Abdulkareem, the defendants’ counsel in the four cases had no objection to the application and so, the Court granted it. See pages 1 to 3 of the proceedings file on this case.

 

However, on November 4, 2014 after C.W.1 – TundeOluwadare had adopted in evidence, his written Statement on Oath he made on 2/5/14 in respect of the 4 cases; counsel to the defendants, Mr. SakaRasakiAyodeji informed the Court that from that point on, the defendants preferred that this case be used as test case for only NICN/IL/05/2014 and NICN/IL/06/2014. He went on to apply that the case with Suit No: NICN/IL/04/2014 be handled separately and this Court granted that application. Therefore, with effect from November 4, 2014; the case at hand, NICN/IL/03/2014 has been used as test case for two other sister cases with Suit Nos.: NICN/IL/05/2014 and NICN/IL/06/2014 respectively. See the proceedings of this Court at pages 4 & 5 of the proceedings’ file on this instant case.

 

  1. Secondly, the 3rd relief as endorsed on the amended complaint in this case is for a restraining order against the defendants etc. See page 365 of the record. Nevertheless, in paragraph 4.36 of his final written address, the claimant’s counsel stated that “this head of claim (their relief 3) is spent and overtaken by event as the claimant had vacated his official accommodation”. In the circumstances, relief 3 as endorsed on this amended complaint is according dismissed.

 

  1. Thirdly, the claimant’s counsel referred the Court to some pleadings in various cases that this Court had handled and concluded years back in other Divisions of the Court; without reproducing the portions of these pleadings 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. For that reason, I hold that those references and citations are not helpful to the claimant in this judgment and they are accordingly discountenanced.

 

  1. Fourthly, in this case; the claimant is not challenging the determination of his employment by the defendants. Rather, he is only claiming payment of some amount of money for various entitlements due to him during his employment relationship with the defendants, which were not paid. We should again bear in mind that thisdisputecame out of a private employment 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.

 

  1. What are the terms and conditions of the Parties’ contract of employment?

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.

  1. The parties here are in agreement that the terms and conditions that regulated the employment of the claimant with the defendants are contained in the following documents:
  2. Letter of Offer of Employment dated 24thJune, 2009 (Documents C.7 at pg. 22 of the record on NICN/IL/05/2014).
  3. Employment Agreement dated 1stJuly, 2011 (Document C.8 at pg. 25 of the record on NICN/IL/05/2014)
  4. The Employees’ Policy Hand Book of 2011(referred to as Document C.13 at pg.39 of the record on NICN/IL/05/2014)
  5. Employees’ Policy Hand Book of 2013 (Document C.14 at pg. 72 of the record on NICN/IL/05/2014).

 

  1. It is trite that where more than one document state the terms and conditions 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 agree with the parties and hold that the four listed documents above contain the terms and conditions of the parties’ employment relationship. I further hold that these documents are to be construed jointly in order to determine the right, duties, obligations and liabilities of parties in the instant case. I again 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 N18, 091,691.65 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 determined one after the other.

 

  1. Arrears of net/take home salaries for the months of December 2013 and January 2014 (N708,338.33 x 2 = N1,416,676.66)

The defendants conceded to the fact that the claimant is entitled to his full salary for December 2013, having worked for the whole month. They, however;contended that since the claimant only worked for the defendants till January 24, 2014;he is only entitled to the sum of N566,670.66 for January 2014. On the other hand, counsel to the claimant argued that by paragraph 4 of Document C.7, paragraph 7.2 of Document C.8, Page 59 of Document C.13 (on Salaries and Wages) and Article 37 on page 42 of Document C.14;the terms and conditions of the employment of the partiesonly provide for payment of monthly salaries as against daily pay, which the defendants canvassing. So, he urged the Court to hold that the claimant is entitled to his full salary for the month of January 2014 as well.

 

  1. It is a well settled principle of law that where facts pleaded by a party are affirmed or acknowledged by the adversary; those factsneed no further proof; see the cases of Taiwo v. Adegboro [2011]All FWLR (Pt. 584) 52 SC; Ibadan LGPC Ltd v. Okunade [2000] 3 NWLR (Pt. 11) 45;Ekpemupolo v. Edremode [2009] 8 NWLR (Pt. 1142)166,196 andUnilorin v. Adesina [2009] All FWLR (Pt. 487)56 CA. Since the defendants have conceded that the claimant is entitled to full salary for the month of December 2013, I hold that the claimant is entitled to claim his full salary of N708,338.33for the month of December 2013 from the defendants.

 

  1. In respect of the claimant’s salary for January 2014; it is before the Court that the claimant worked only up to January 24, 2014 before his appointment was determined. Counsel to the claimant contended that by the terms and conditions of the claimant’s employment, he was to be paid monthly and not daily as canvassed by the defendants. He referred to paragraph 4 of Document C7, paragraph 7.2 of Document C8, Page 59 of Document C.13 on Salaries and Wages; and Article 37 on of Document C14 in support of his argument.I have read all the referred documents and none of them states that the claimant should be paid for days that he did not work; even though he was being paid monthly. In the circumstance, I hold that the argument of the claimant’s counsel here does not hold waters and so, it cannot stand. I agree with the defendants’ position on this point and further hold that the claimant is only entitled to payment for the days he worked for in January 2014, which are from January 1 to 24, 2014 that is the sum of N566,670.66. The claimant’s arrears of salaries for the months of December 2013 to January 24, 2014 is calculated like this:N708,338.33 for December 2013. From 1st to 24th January 2014, N708,338.33/31 x 24 = N548,965.96. Therefore, N708,338.33 + N548,965.95 = N1,256,304.29. In the circumstance, I hold that the claimant is entitled to the sum of One Million, Two Hundred and Fifty Six Thousand, Three Hundred andFour Naira, Twenty Nine kobo (N1,256,304.29) only under this head of claim.

 

  1. On the Annual Basic Allowance for 20 months being claimed from June 2012 – January 2014.

In paragraphs 19 (viii) and 29 (1) (b) of his Amended Statement of Facts, the claimant is seeking for payment of his Annual Basic Allowance from June 2012 to January 2014; which is a total of one year and six months (20 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 20). However, the defendants pleaded in their Amended Statement of Defence that the claimant is not entitled to this claim. They went on that payment of additional allowance is not specific in their terms of employment but that the said allowance can be negotiated up to the sum of N2.250, 000.00 per annum. They further argued that as 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 was even further negotiated down to N500,000.00 for year 2012/2013 but that the claimant refused to accept this.Hence, the allowance for that year remains unpaid;see paragraphs 9(iii) & (iv) and 11 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.7and Clause 7.2 of the Employment Agreement between the claimant and the 1st defendant; Document C.8. 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 paid to the employee (like the claimant) as additional annual allowance by the 1st I further hold that it does not mean that the said sum must be mandatorily paid yearly to the employees of the 1st defendant including the claimant, as allowances as contended by before the Court.

 

  1. Even though there is no specific amount of money permanently agreed to by the parties as the additional Annual Basic Allowance of the claimant under this head before 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 2011/2012 instalmentally, 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 of Clause 4 ofDocuments C.7 and Clause 7.2 of Document C8 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 20months from June 2012 to January 2014; which is to be calculated this way: N1,500,000.00/12×20 = N2,500,000.00. Consequently, I hold that the claimant is entitled to the sum of Two Million, Five Hundred Thousand Naira (N2,500,000.00) only as his accrued additional allowances for the said 20months.

 

  1. Whether the claimant is entitled to N750,000.00 as outstanding balance of his Annual Basic Allowance for 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 (g) of his Amended Statement of Facts. I have held above that the word “up to” as used in Clause 4 of Documents C7 and Clause 7.2 of Document C.8 means the maximum or highest of what can be paid by the 1st defendant to its employees under this heading and that it does not mean that the sum of N2,250,000.00 should be mandatorily paid yearly as the claimant is contending here. I further held above that, in line with the terms of this contract of employment, the parties agreed on the payment of N1.5m as the claimant’s additional annual basic allowance. Consequently, I hold under this head that claimant is not entitled to any outstanding balance.

 

  1. On the claimant’s claims for payment in lieu of 20days accumulated leave

In paragraph 29(c) 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 2013/2014 (1month net salary = N708,338.33)

 

To the claimant’s counsel, this claim is rooted in Clause 6 of Document C.7, Clause 9 of Document C.8 and Article B on page 53 of Document C.13 titled Annual Vacation Leave and Article 55 on page 49 of Document C.14 titled Annual Leave by virtue of which the claimant is entitled to 20 working days in a year.

 

  1. Document C.7 is Letter of offer of Appointment; its clause 6 sub-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.14), particularly its paragraph 56 on ‘deferment of leave’, provides:
  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. It is before the Court that by Document C.15 at page 112 of the record on NICN/IL/05/2014, 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 sum of N708,338.33in lieu of his cumulated 20working days leave for 2013/2014.

 

  1. I find from evidence before me that the claimant has succeeded in proving that he is entitled to this period of leave, 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, neither did the claimant lead evidence to the effect that the claimant was not paid his annual leave allowance for the said period. Rather, what the claimant is asking for here is for the Court to order the defendants to convert his unused 20days’ leave to cash for him. Nevertheless, counsel did not even refer the Court to any of the terms and conditions of his 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;even though he has succeeded in proving that he has 20days unused leave while in the employment of the 1st This is 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 in lieu of his unused/deferred leave for year 2013/2014.
  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 (d) & (e) 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.13; 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.13 is the Employees’ Policy Hand Book of the 1st defendant, 2011. In this document, particularly 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;this documentbecame effective in January 2012. Document D.3 is the circular that the defendants issued to correct the alleged error in Document C.13 andit 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. In this instance, Ifind 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.13have 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 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 on this employment contract between the claimant and the 1st Therefore, I again hold that the Annual leave allowance as stated in Document C.13 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 of Document C.13.

 

  1. The parties are in agreement on the annual basic salary of the claimant, which is the sum of N9,000,000.00; hence, 50% of this 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. Furthermore, 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 195 to 196 in particular, see page 196; No.2 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 (f) of the amended statement of facts, the claimant is claiming for the 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 in paragraph 57 (b) of the Document C.14; 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 21 of the Court’s record, the claimant’s employment with the 1st defendant is with effect from 1st July, 2009. This means that by July 1, 2012 the claimant had completed four years in 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 for at least 5months and 22days. This means that the claimant has not met the 6months requirement in paragraph 57 (b) of the Document C.14. For this reason, I hold that the claimant is not qualifiedto be paidhis leave allowance for year 2013/2014.

 

  1. In the same vein, by the term of the contract in paragraph 57(a) of Document C.14, the claimant is also not entitled to 10% of his annual basic salary of N9,000,000.00 as his annual leave allowance; because he has not for at least 6months in the said year. Consequently, I hold that the claimant is not entitled to the sum of Nine Hundred Thousand Naira (N900,000.00) only as claimed under this head.

 

  1. On the claimant’s claim for 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 accumulated leave (which he 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 since they 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.

 

  1. Besides, in Document C.8, which is the Employment Agreement between the parties; particularly,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 N1,416,676.66 as compensation 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, 8 months); 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 grant this prayer.

 

  1. Article 92of Document C.14 is on Severance Package; this document is the Employees’ Policy Hand Book of the 1st defendant, 2013. The Articleprovides:

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.14 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 his severance benefit by the defendant.

 

  1. On the claimant’s claim for two 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 (2)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 above in this judgment; Clause 12.6 of Document C.8, the Employment Agreement is apt and the clauseprovides that:

If IAC terminates this Agreement as provided for in 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 is hereby refused and it is accordingly dismissed.

 

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

In paragraph 29 (4) 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.14, 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 question. 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 not challenging 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 determination of his appointment in this suit, he cannot be claiming damages for wrongful termination at this address stage. This is because, the Courts have 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 from 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(6) 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 obligation to 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 on the amount to ward and this Court will not accede to this illicit and prohibited invitation. 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 further hold that the claimant is entitled to his salaries from December 2013 to January 24, 2014;a total sum of N1,256,729.29. only under this head.
  1. I hold that the claimant is entitled to claim from the defendants his Annual basic allowance for 20 months from July 2013 to January 2014 at the rate of N1,500,000.00 per annum; which equals a total sum of N2,500,000.00.
  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 20 cumulative working days for year 2013/2014 as claimed.
  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 the claimant is not entitled to claim the sum of N900,000.00 as his Annual Leave/Vacation Allowance for year 2013/2014 because he did not work forat least 6months that year as required by the term of contract.
  • I hold that the claimant is not entitled to an outstanding balance of N750, 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 accumulated leave.
  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, pay the severance fee to him.
  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 him 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 all judgment sums in this case are to be paid to the claimant by the 1st defendant within 60days from today.
  1. This judgment abides in the other sister cases with Suit Nos.: NICN/IL/05/2014 and NICN/IL/06/2014 respectively.

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

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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