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Dr. Nosadeba E. Amiengheme -VS- Monsignor Sylvester E. U. Osigweh

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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: February 20, 2019     Suit No: NICN/AB/10/2015

Between:

 

Dr. Nosadeba E. Amiengheme                      —————————–              Claimant

 

And

 

Monsignor Sylvester E. U. Osigweh

(Carrying on Business in the Name and                               —————————–            Defendant

Style of Jesus is Love and Power Hospital)

 

Representation:

O.C. Omwumere with Anthony Regba for the claimant.

G.B Ozoana and Uche L. Ozoana for the defendant

 

COURT’S JUDGMENT

  1. On October 14, 2015 the claimant filed this suit against the defendant seeking for the following reliefs:
  2. ₦4,610,000.00 (Four Million, Six Hundred and Ten Thousand Naira) being total unpaid leave allowance from 2008 to 2015 and salaries in lieu of leave from 2008 to 2015.
  3. General damages.

iii.            Cost of the action.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through his counsel and filed his statement of defence with other processesin compliance with the Rules of this Court.

  1. CLAIMANT’S CASE AS PLEADED

The case of the claimant is that he was contracted by the Defendant to work in the hospital known as ‘Jesus is Love and Power Hospital’ and that the contract took effect from February 1, 2008. He avers further that by the terms of his contract, he was entitled to monthly salary, annual leave allowance at the rate of 20% of annual salary, annual leave and a month’s salary in lieu of annual leave. He again avers that in the course of the employment, his monthly salary was increased from ₦150, 000.00 to ₦200, 000.00 and that by the demand of in his workplace, he was unable to enjoy his annual leave; hence, the Defendant paid the agreed one month’s salary in lieu of the 2008/2009 annual leave, but that the defendant defaulted in payinghis annual leave allowance fromyear 2009. Claimant continued that in subsequent years, the Defendant failed to pay both annual leave allowance and salary in lieu of leave until the Claimant put in his letter of resignation dated 31/01/2015; which was to take effect on March 1, 2015.

  1. THE DEFENDANT’S CASE AS PLEADED

On the other hand,the case of the defendant is that the defendant is neither the proprietor nor the alter ego of‘Jesus is Love and Power Hospital’ and that there was never any form of employment agreement between the claimant and the ‘Jesus is Love and Power Hospital’ for any salary and allowances. He went on that the Hospital is of St. Mary’s Catholic Church, Alaja, Ifo, Ogun State; which belongs to the Roman Catholic Mission, Abeokuta Catholic Dioceses.Tothe defendant, theclaimant wasonly allowed to work at the Hospital on compassionate and humanitarian grounds in return; some allowances were paid to him depending on the income generated by the hospital,because it was a newly established hospital. The defendant avers further that the Hospitalgave such concession to the claimant due to the poor state of his health and with the belief that byhim working with the defendant; it will help the claimant in reinventing himself. Thus, the parties never at any time agree to pay the claimant any monthly salary neither was there any agreed allowance; and so, the defendant is not liable to the claimant at all on his claims.

During the hearing of this case, the claimant gave evidence as CW 1 while one Joseph Osigweh testified for the defendant as D.W.1. Thereafter, parties filed their final written addresses as directed by the Court.

  1. DEFENDANT’S WRITTEN ARGUMENTS

In his final written address,counsel to the defendant formulated asole issue for determination of the Courtthis way:

Whether the claimant has proved that he is an employee of the defendant to entitle him to the claim he made against the defendant.

Arguing this issue, counsel pointed out that while it is the case of the claimant that he was in full-fledge employmentof the defendant as the Medical Director of the Hospital, the defendant’s positionisthat the Hospital only helped or assisted the claimant on compassionate and humanitarian grounds, as a result of his health condition; referring to paragraph 15 of claimant’s written statement on oath and paragraph 5 of its Statement of Defence. Counsel submitted that there is no legally binding contract of employment between the claimant and the defendant on which to base the claim of the claimant against the defendant, citing Attorney General of Rivers State v. Attorney General of AkwaIbom State [2011] 3 SC 1 @ 37; 10-15; Orient Bank v. Bilante Ltd.1997] 8 NWLR (Pt. 515) 37 @ 41 andOmega Bank Nig. Plc. v. OBC Ltd [2000] 1 SC (Pt. 1) 49 @ 76 (lines 15-20).

  1. Counsel submitted that there is no letter of employment before the Court that the claimant only worked with the defendant on humanitarian ground and on a loose arraignment to enable him gather himself together after suffering from cerebrovascular accident or full blown stroke. Having not tendered any letter of employment, there is no way by which the claimant’s claim as stated in paragraph 4 of his Statement of Facts and paragraph 5 of his Written Statement on Oath can stand, as one cannot put something on nothing and expect it to stand.

Furthermore, counsel submitted that the claimant has failed to prove his case of being an employee of the defendant so as to enable him succeed in his claim as required by the provisions of section 131 (1) of the Evidence Act 2011. Therefore, he is not entitled to the relief sought, citing Calabar Cooperative Ltd v. Ekpo [2008] 1-2 SC. 229 @ 255.

6.CLAIMANT’S WRITTEN ARGUMENTS

In his final written address, counsel to the claimant formulated the following issues for the determination of the Court:

  1. Whether the claimant has proved his entitlement to unpaid leave allowance and salaries in lieu of leave from 2008 to 2015.
  2. Whether the claimant is entitled to damages and costs of the action brought to remedy the defendant’s breach of contract.

Arguing the first issue, counsel referred the Court to Order 1 Rule 10(2) of the Rules of this Court; paragraphs 3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14  of the Statement of Facts and also to Documents C1-C5, respectively. He maintained that from the contents of Documents C1 and C2, the defendant admittedthe claimant’s entitlement to his unpaid seven (7) years’ leave allowances and salaries in lieu thereof; all amounting to the sum of N4, 610,000.00and then sought to raise a set-off by saying “You will therefore forego your leave pay or you pay the hospital only N3, 900,000.00”. To counsel, there is no set-off or counterclaim in this case hence; the claimant’s case is unassailable and that same should be accepted as proved by the Court.

  1. Counsel argued again that the law must come to the protection of the claimant for he cannot be discriminated against because of his past medical history, which has no bearing with the discharge of his medical expertise in the defendant’s employment. Counsel’s position is that the Defendant has not contradicted or disproved the particulars of the allowances and salaries in lieu of leave clearly pleaded in paragraph 8 of the Statement of Facts. He went on that by paragraph 12 of his Statement of Defence, the Defendant made a general traverse of paragraph 8 of the Statement of Facts, which is insufficient in law. It is expressly stipulated in the Rules of Court that a general denial in any pleading shall not operate as denial of any specific fact contained in the pleading of the opposing party,relying also on Mobil Producing Nig. Unltd.v. Uwemeduno [2006] All FWLR (Pt. 313)116 at 135;Achilihu v. Anyatonwu [2013] All FWLR (Pt. 696) 483 at 508-509 and onsection 75 of Evidence Act, 2011 (as amended). He contended that the Claimant has proved his entitlement to his unpaid annual leave allowance and salary in lieu as particularized before the court.

 

  1. Arguing the second issue of whether the claimant is entitled to damages and costs of the action, counsel submitted that the defendant is liable in damages to the claimant for breach of contract. He went on that damages should be awarded to restore the claimant as far as money can, to the position he would have been if there had been no breach so asto compensate him for the defendant’s breach. It is trite that, once breach of contract is established, damages follow; citing Cameroon Airlines v. Otutuizu [2011] All FWLR (Pt. 570) 1260; U.B.N. Ltd v. Odusote Bookstores Ltd [1995] 9 NWLR (Pt. 421) 558; Shell DPC v. Jammal Engineering Ltd [1994] 4SC 33 andYa’u v. Dikwa[2001] FWLR (Pt. 62) 1987 at 2005.

To counsel, the Claimant is entitled to the cost of this suit, which he was compelled to undertake by reason of the Defendant’s breach; citing Naude v. Simon [2014] All FWLR (Pt. 753) 1878. Finally, counsel urged the court to enter judgment for the Claimant and to discountenance the frivolous defence of the defendant.

  1. REPLY ON POINTS OF LAW

 

Counsel to the defendant also filed a reply on point of law, wherein he referred the court to the case of Organ v. NLNG Ltd. [2003] NWLR (Pt. 1381) 506 @ 551 (lines F-G) in respect of paragraph 4.1 of his final written address that the four (4) pay slips issued to the claimant by the defendant in an employment that spanned to almost seven (7) years is irrelevant and that it is no substitute for the claimant’s letter of employment.

Responding to the arguments in paragraph 4.5 of the Claimant’s Final Written Address, the defendant’s counsel replied that the Claimant only tried to whip up sentiments as to the his health condition that he suffered cerebrovascular accident (or full blown stroke). To him, this is a relevant statement of fact, which the court would take judicial notice of; citing Ezeugo v. Ohanyere LRN Vol.2 P20 @ page 28 and urged the Court to dismiss the claimant’s case.

  1. COURT’S DECISION

I have gone through the facts of this case as pleaded and testified on by the parties, including the written arguments of counsel to the parties; from all of these, I am of the considered view that the only issue to resolve between the parties is:

Whether or not the claimant is entered to claim from the defendant:hissalaries in lieu of leave from years 2008 to 2015;General Damages and for Cost of this action.

It is worthy of note that the claimant’s case is premised on his contention that he was employed by the defendant hospital as the Managing Director of the said Hospital known as “Jesus is Love and Power Hospital.” This alleged employment is a private employment relationship otherwise known as Master and Servant relationship. In such instance, the first hurdle to cross is for the Court to identify what the terms and conditions of the employment are in order to determine the contractual responsibilitiesand rights of the employer and the employee. In doing this, the Court is bound to look at the employee’s letter of appointment, any service regulations connected with establishment of the employer and the provisions of any Statute or Decree; which relates to or regulates the service conditions of the Establishment. See the case of Odiase v. Auchi Polytechnic, Auchi[2015] 60 NLLR (Pt. 208)1 CA at 23-24, paraF-A. The letter of employment of the employee and its content is the bedrock on, which an aggrieved employee may found his case, ashe succeeds or fails on the said terms; see Nnoke v. Judicial Service Committee of the Federal Capital Territory [2015] 54 NLLR (Pt.184) 518 NICN at 597 paragraphs D-F.

  1. WAS THE CLAIMANT AN EMPLOYEE OF THE DEFENDANT HOSPITAL?

The claimant answered this question in the affirmative and went on to argue that he was employed as the Managing Director of the defendant Hospital, “Jesus is Love and Power Hospital”. The claimant maintained that his employment was partly oral and partly in writing. See his deposition in paragraph 4 of his written statement on oath at page 9 of the record. On the other hand, the defendant contended thatthe Hospital only helped and assisted the claimant on compassionate and humanitarian grounds by allowing him to function in the hospital as a Doctor so as to find his bearing because of his health condition (as he had suffered a full blown stroke) and that there was no legally binding contract of employment between the parties on, which the claimant can base his claims against the defendant; see the averments in paragraph 5 of his Statement of Defence and its denial in paragraph 15 of claimant’s written statement on oath.In such instance, the law is that where an employee alleges a breach of oral promise between himself and his employer in the course of performance of a specific assignment, he shall not be entitled to damages he is claiming where there is no evidence to corroborate the oral promised; see Adamu v. Shifa Plastic Ind. Co. (Nig.) Ltd & Co [2014] 40 NLLR (Pt. 124) 559 at 585, paragraph A-F.

12. In paragraphs 3 and 4 of his written Statement on Oath, the claimant testified thus:

  1. I say that by an agreement which was partly oral and partly by conduct and in writing made on or about the 1st of February, 2008 the Defendant agreed to employ me, the Claimant, who in turn agreed to serve the Defendant as the Medical Director in Defendant’s private hospital: Jesus Is Love and Power Hospital with effect from 1st of February, 2008.

 

  1. I say that the agreed terms and conditions of the pensionable employment were:
  2. Monthly salary……………………………………….    ₦150,0000
  3. Annual leave allowance ………………………     20% of Annual Salary
  4. Annual leave …………………………………………….    4 weeks
  5. A month Salary in lieu of annual leave

 

13. In further proof of his case, the claimant tendered 5 documents in evidence as exhibits; they are marked as Documents C1 to C5 by this Court.

Documents C.1 &C.1(a) at pages 16 & 16(a) of the record are one and the same, the latter is the larger prints of the former that is not legible. It is the claimant’s letter of resignation; dated 31.01.15; the resignation was to take effect from 01.03.15.

Document C.2 is the defendant’s letter to the claimant; see pages 17 & 18 of the record. It is dated 24th February 2015 with no title. It is written on the Lead Head paper of ‘Jesus is Love and Power Hospital’ with the Hospital’s address as: St. Mary’s Catholic Church, Alaja, Ifu, P. O. Box75 Ifu, Ogun State. Tel: 08020904733.

Paragraph 4 of this documentis numbered as 1; it is stated: “you are caught working in another Hospital neglecting the official employment”. In paragraph 2 numbered as 3 of Document C.2, it is also stated at page 18 of the record that: “— I drove to the Hospital, my own Hospital where you are the head. — I was operated upon without Anastasia from 6am to 10:45am, with the damage caused by bad handling, I was damaged and I was taken to South Africa Milpark Hospital. I had to be operated for bad handling of prostrate and colostomy costing me all N9,000,000.00 ”. Then in paragraph 3 of this same document at page 18 of the record, it is stated: “For been careless and negligence of you, you will pay half of the cost N4,500,000.00. — You will therefore forego leave pay or you pay the Hospital only N3,900,000.00. You are lucky that I am still alive. Note that you are not the first Medical Director of the Hospital”. Signed by Msgr. Sylvester, E. U. Osigweh Proprietor/Spiritual Director.

  1. From the content of Document C.2 as pointed out in this judgment; it is clear thatthe defendant, Monsignor Sylvester E. U. Osigweh admitted that he was the Proprietor and Spiritual Director of ‘Jesus is Love and Power Hospital’ at the material time. He also admitted that the claimant had official employment with this hospital and that the claimant was the head and the Managing Director of the hospital at a point; I so find and hold. I further hold that these admitted facts need no further proof; See the cases ofBaalo v. FRN[2016] LPELR-40500(SC); Ume &Ors v. Ibe [2016] LPELR-40080(CA) and Mr. SundayAdegbiteTaiwo v. SerahAdegboro&Anor. [2011] 11 NWLR (Pt. 1259) 562 at 583 per Bode Rhodes – Vivour, JSC. However, from the content of Document C.2, the defendant did not admit that the claimant is entitled to the sum of N4,610,000.00 as his unpaid seven (7) years’ leave allowances and salaries in lieu thereof as contended by the claimant’s counsel. All the defendant stated particularly in paragraph 3 at page 18 of the record is that, for been careless and negligent, the claimant will pay half of the cost N4,500,000.00 (which is half of the N9,000,000.00, the said cost of the defendant’s operation in South Africa)and that the claimant will forego leave pay or that the claimant will pay the Hospital only N3,900,000.00. Therefore, I find and hold thatthe defendant did not admit that the claimant is entitled to any specific amount of money as his salary or as his leave allowance.

 

  1. Furthermore, there is no evidence to corroborate the alleged oral agreement of the two parties and on those establishedby conduct as averred in paragraph 4 of the statement of facts and paragraph 4 of the written statement on oath of the claimant. The law is that the case of the claimant stands or falls upon his own evidence and not on the weakness of the defence; because he who asserts must prove, seeFederal Mortage Bank v. Ekpo[2005] All FWLR (Pt. 248)1667 at1681. And, it is not the duty of this Court to speculate neither is it the duty of Court to embark on a voyage of discovery of this fact as held in the case of Federal Mortage Bank v. Ekpo[2005] All FWLR (Pt. 248)1667 at1681.

 

  1. Additionally, in paragraph 8 of the Statement of Facts, the claimant avers that: “the Defendant failed and neglected to pay both annual leave allowance and a month salary in lieu of leave for the period beginning from February 2009 to 2015.” Then the claimant gave the particulars of this claim by stating what he was entitled to each year from 2008 to 2015 and that all totals N4,610,000.00. In paragraph 12 of the statement of defence, it is pleaded that “in further denial of paragraphs 5, 6, 7 and 8 of the claimant’s statement of facts the defendant states emphatically that the parties hereto never at any time agree to pay the claimant any monthly salary neither was there any allowances agreed to.” See evidence on this pleading in paragraph 10 of D.W1’s written statement on oath at page 44 of the record.

The claimant’s counsel argued that the defendant made a general traverse of the said paragraph 8; inter alia citing Achilihu v. Anyantonwu [2013] All FWLR (Pt. 696) 483 @ 508-509. The Court held in Achilihu v. Anyantonwu’scase (supra) that where an allegation is made by a claimant and the defendant decides to ignore the allegation by not giving any form of reply to the allegation; then the silence and lack of response of the defendant would be taken as an admissionand that no further proof or evidence would be needed. However, contrary to the claimant’s argument on this point, it is my considered view that by averring in paragraph 12 of the Statement of Defence that the defendant states emphatically that the parties hereto never at any time agree (sic) to pay the claimant any monthly salary neither was there any allowances(sic) agreed to; the defendant has specifically denied the averment in paragraph 8 of the Statement of facts. It is now the duty of the claimant to show the Court the ‘parties’ agreement’ on his annual leave allowanceto enable the Court to confirm the alleged agreement and to then calculate the sum of money he is entitled to in lieu of leavebut; the claimant has failed to do that here and I so find and hold. Consequently, I hold that the defendant did not admit the total sum of N4,610,000.00 the claimant is claiming in paragraph 8 of his statement of facts.

17. Document C.3 is the letter of demand for payment from the claimant’s counsel to the Hospital. Document C.4 is the letter of response of the Hospital’s counsel to Document C.3, while Document C.5 contains copies of four receipts on page 28 of the record.In essence, out of the five documents tendered in evidence by the claimant, his letter of appointment is not included neither is any of them containing the terms and conditions of his employment; even though the defendant admitted that he was employed by the Hospital as its head and Managing Director at a point. It is trite that the terms and conditions of the employment of the claimant with the defendant cannot be inferred,neither can it be presumed as the law is that; he who asserts must prove; see Kafaruv. Reliance Telecommunications Ltd [2015] 60 NLLR (Pt. 211) 627 at 641 paragraphs E-G. The claimant; who is contending that he is entitled to some allowances under his employment with the defendant is required to prove the agreed terms and conditions on the said allowance. These cannot be inferred but they must be expresslystated.

 

  1. Documents C5, C5(a) and C5(b) are at page 25 of the Court’s record. They are pay slips for February, April, May and June 2010. The name of the claimant is not reflected on the four Documents;and so, they are of no assistance to the case of the claimant. This means that there is nothing to corroborate the testimony of the claimant that he was on a specified salary while he was working with the defendant’s Hospital.

In addition, the claimant avers in paragraph 6 of the statement of facts and deposed in paragraph 6 of his written statement on oath that with effect from 1st of October, 2008 Defendant agreed to review his monthly salary to ₦200,000.00 (Two hundred Thousand Naira) which upward review also affected his annual leave allowance, referring to the pay slips (Documents C. 5, C.5(a) & C. 5(b) respectively). No such evidence is stated in these documents and even if they were, the documents were not issued in the claimant’s name.In essence, there is no evidenceof the terms and conditions of the claimant’s employment agreed upon by the parties before the Court and I so find.Again, the law is that the case of the claimant stands or falls upon his own evidence and not upon the weakness of the defence; see Federal Mortage Bank v. Ekpo[supra].

Consequently, I find and hold that the Court cannot effectively decide on the parties’ rights, obligations and liabilitiesin this case in the absence of the defendant’s admission on the sum of money that the parties agreed on as the salary and leave allowance of the claimant,and on how the leave allowance is to be calculated. It is not the duty of this Court to speculate neither is it the duty of this Court to embark on a voyage of discovery of theseunresolved issues; see the case of Federal Mortage Bank v. Ekpo[2005] All FWLR (Pt. 248)1667 at1681. Therefore, I hold, in addition that the claimant has failed to discharge the burden of proofinghis entitlement to the reliefs he is seeking for from the Court. The claimant’s claim for the sum of ₦4,610,000.00 as his unpaid leave allowance and his salaries in lieu of leave from 2009 to 2015 is accordingly dismissed for lack of evidence. Since the claimant has failed to prove his primary claim against the defendant, his other two claims for damages and cost; which are ancillary to the first claim, automatically fail as welland they are also dismissed.

  1. On the whole:
  2. I hold thatdefendant; Monsignor Sylvester E. U. Osigweh admitted that he was the Proprietor and Spiritual Director of ‘Jesus is Love and Power Hospital’ at the material time of the cause of action of this case.
  3. I hold that the defendant also admitted that the claimant had official employment with his hospital and that the claimant was the head and the Managing Director of the hospital at a point.

iii.   I further hold that the defendant did not admit that the claimant is entitled to the sum of N4,610,000.00as his unpaid leave allowances and salaries in lieu thereof.

  1.  I again hold that the claimantfailed to prove to the satisfaction of this Court that he is entitled to claim from the defendant any leave allowance and salaries in lieu thereof; and so his claim for N4,610,000.00 is dismissed.
  2. I hold that the claimant is neither entitled to General Damagesnor the Cost of this action from the defendant as his primary has been dismissed.
  3. This suit is accordingly dismissed for lack of evidence.

Judgment is entered accordingly.

I make no order as to cost.

 

 

Hon. Justice F. I. Kola-Olalere

 

Presiding Judge

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