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National Industrial Court

Group Captain Ovo Israel Olasope (Rtd) -VS- Tai Solarin University of

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

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

Date: January 08, 2019       Suit No: NICN/IB/98/2014

Between:

Group Captain OvoIsrealOlasope (Rtd)    ———————————–       Claimant

And

Tai Solarin University of Education           ———————————-      Defendant

 

Representation:

AdediranAdeyemo for the claimant

AdetunjiMureuna for the defendant

 

COURT’S JUDGMENT

  1. On July 11, 2014 the claimant filed this complaint against the defendant and by his amended complaint and statement of facts filed on September 22, 2017 at pages 222 to 226 of the record; the claimant is seeking for the following reliefs:
  2. The sum of N4.820,000:00 (Four Million, Eight Hundred and Twenty Thousand Naira) as monies owned the Claimant as unpaid salaries and security imprests for 13 months loaned by the claimant to the defendant on request to finance security spending of the defendant for several months in the years 2012 and 2013 when the defendant was unable to pay security imprests.
  3. Such amount of monies as may be found due from the defendant to the claimant representing 3 years’ leave allowance and driver and car maintenance allowances.

iii.            Costs.

Other initiating processes were filed along with the complaint and the amended complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its 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 he was at all material times the Chief Security Officer of the Defendant andthat the contract of employment between him and the defendant was for one year in the first instance;then renewable, subject to satisfactory report on performance and the submission of a medical report. He avers further that during the time of his employment with the defendant, he performed his dutiescreditably and outstandingly well that apart from his monthly salary, he was been paid certain amount of money as monthly imprest from the University’s security fund. The claimant continued that the defendant stopped the payment of the security imprest few months after the change of the Vice Chancellor of the defendant. Also, he avers that despite the fact that he gave the defendant the necessary notice of having his contract renewed, the defendant for no reason refused to renew his contract and also failed to pay the arrears ofImprest that he spent on the University.

  1. DEFENDANT’S CASE AS PLEADED

The case of the defendant on the other hand is that the claimant was her former Chief Security Officer placed on contract of appointment wherein he was entitled to monthly salaries; which did not includepersonal payment ofimprest. It avers further that the monthly imprest given to the claimant was for the monthly running of the Security Department; purchase of consumables and other items that will enhance and facilitate the running of the department efficiently and also for payment of some allowances to other security bodies assisting to secure peace within defendant. The defendant avers in addition that instead of using the imprest for these purposes, the claimant treated the monthly imprestso paid to him as his additional personal salary or allowance. The defendant again avers that it was not indebted to the claimant for its inability to pay the imprest fund as this did not significantly hinder the discharge of the duties of the Security Department. Hence, the defendant does not owe the claimant the sum as claimed.

During hearing of the case, the claimant testified as CW1 while OloladeOgunbanjo, testified on behalf of the defendant as DW1. In line with the Rules of this Court,this Court directed counsel to the parties to file their final written addresses and both counsel complied with the direction. However, before the date for adoption of their final written addresses, counsel to the claimant filed a motion for amendment of his complaint and statement of facts; of which the defendant vehemently objected to the amendment. This took a while before it was resolved and then counsel to the parties eventually adopted their final written addresses in Port Harcourt.

  1. DEFENDANT’S WRITTEN ARGUMENTS

In the defendant ‘final written address, counsel raised‘Preliminary Objection’ to this suit pursuant to Order 11 Rule 1 (3) of the National Industrial Court of Nigeria practice direction 2012; because this address was filed in 2016 before the new Rules of Court came into operation in January 2017; Section 55 and 56(1) & (2) of Tai Solarin University of Education (TASUED) Law, 2005 and under the inherent jurisdiction of this Court.He prayed the court to strike out the Writ of Summons and other processes filed by the Claimant for being incompetent on the ground that the Claimant failed to comply with the mandatory requirement prescribed by the law, to serve on the Defendant, the required pre-action notice.Counsel formulated anissue for determination of the Court in his written address in support of the objection this way:

Whether in the light of Sections 55 and 56 of the TAI Solarin University of Education law, this court has jurisdiction to entertain and determine this suit, the Claimant having failed to comply with the mandatory requirement of the law to serve on the Defendant a proper/valid pre-action Notice before the commencement of this action.

Arguing this issue, counsel submitted that by Section 55 of the TAI Solarin University of Education law of Ogun State, 2005;service of any notice on the defendant is to be effected by delivering same or by sending it by registered post addressed to the Registrar of the University. While by section 56(1) & (2)of the TAI Solarin University of Education Law of Ogun State, 2005:“No Suit is to be instituted against the defendant or officer or servant of the defendant until at least three months after written notice of intention to commence same have been served on the defendant by the intending Plaintiff or his agent; and such notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims”.

Counsel contended that the service and address of the Claimant’s letter ofJanuary 6, 2014 to “the Vice Chancellor, Tai Solarin University of Education, Ijagun, Ogun State, Nigeria” instead of the Registrar of the University as required by the law is non-compliance; which connotes that no notice was sent within the meaning of section 55 of the Tai Solarin University of Education law; hence renders this suit incompetent. He referred the Court to the cases of N.S.L Ltd v. A.G. Lagos State [2009] 11 NWLR (Pt. 1152) 304 at 313, Obi v. INEC [2007] 11 NWLR (Pt. 1046) 565; Oliver v. Dangote Ind. Ltd [2009] 10 NWLR (Pt. 1150); Amadi v. N.N.P.C [2000] 10 NWLR (Pt. 674) S.C 76 at 107 D-E: Ugwuanyi v. NICON Ind Plc. [2013] NWLR (Pt. 1366) S.C. 546 at 608 A-B;and to paragraphs 17 and 18 of the Statement of Claims. He urged the Court to dismiss the claimant’s case for non-compliance with the statutory condition precedence.

  1. Alternatively, counsel submitted that the Claimant’s letter of January 6, 2014 Document C.6 gave 14 (Fourteen) days’ notice as against the required 3(three) months’ notice mandated by the law. That the wordings of this letter are clear and unambiguous, and the same should be given its literal meaning; citing Mbani v. Bosi [2006] 11 NWLR (Pt. 991) 400 @ 417 D,;Akaighe v. Idama [1964] All NLR (reprint) 319 at 322. That where a statutory pre-requisite such as in section 56(1) and (2) is provided, same much be satisfied and that failure to do what the statute states is fatal as same renders the suit incompetent and liable to be struck out,referring toOdoemelam v. Amadiume (supra).

In his final written address, counsel to the defendant formulated one issue for the determination of the Court on the substantive suit thus:

Whether the claimant is entitled to the reliefs sought in the statement of claim.

Arguing this issue, counsel referred the court to paragraph 5 of the offer letter;Document C1, and to the cases of:Kaydee Ventures Ltd v. Min FCT [2010] 7 NWLR(Pt. 1192) pgs. 203 – 204 paras F-A andA.T. (Nig.) Ltd v. U.B.N Plc. [2010] 1NWLR (Pt. 1175) page 383 paras B-C.He submitted that parties are bound by the terms of their contract. He further contended that from the evidence before the court, the Claimant is a contract staff; so he was not entitled to promotions, annual salary increment, gratuities and pension. Counsel went on that the claimant was not personally entitled to imprest, referring to paragraph 4 of the statement of Defence and that there is no provision in the letter of offer of his employment dated September 16, 2010;Document C1 either implicitly or explicitly that entitles the claimant to such facilities.

  1. Again the defendant’s counsel refers the Court to paragraphs 9, 11, 14 of the claimant’s reply to the statement of defence dated September 23, 2015 where the claimant stated that he used his personal monies to cater for the needs of the Security department as if that was the regular practice, in which he also claimed that he had an agreement with the school authorities that they would indemnify him later. In addition, counsel submitted that not only is that allegation untrue and injurious, but that a quick perusal of the contract of employment between bothparties would show that the claimant is a contract staff and that he was not mandated to use his personal funds to run the school’s security department;these facts were admitted by the Claimant under cross examination. He maintained that it is trite that he who asserts a fact must prove same; the claimant has asserted that he has used his personal funds to facilitate the day to day running of the Security Department of the defendant but he has failed to place relevant evidence or documents which would help the court determine the validity of the claimant’s allegations. He referred the Court to the cases of:Ukpo v. Ngaji [2010] 4 NWLR (Pt.1174) Pg. 203 at paras G; S.SandGmbh v. T.D Ind. Ltd. 11 NWLR (Pt. 1206) Pg. 606 at paras E-F.

Counsel went on that, based on the contract of Employment between the parties, the Claimant is only entitled to one month of leave and that he is not entitled to either car or driver maintenance allowance. To counsel, Parties are bound by the terms and conditions of the contract of employment between them, citing Alhassan v. ABU Zaria [2013] 11NWLR (Pt. 1259) page 470 paras C- D. He continuedthat there is no foundation for the Claimant’s claim for 3 years’ leave allowanceswith driver and car maintenance allowances before the Court. He further referred toIbama v. S.P.D.C [2003] 17 NWLR (Pt. 954) page 379 Paras.C-E and toAladev. Alice [2010] 19 NWLR (Pt. 1226) Pg. 127 at paras F-H and then tosection 135(1) of the Evidence Act Cap E14 LFN, 2004.

  1. CLAIMANT’S WRITTEN ARGUMENTS

Responding to the preliminary objection raised by the defendant, counsel to the claimant refers to the case of Ntiero v. NPA [2008] 10 NWLR (Pt. 1094)pg. 129 at pg. 132in his final written address; which is to effect that pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of legal action against such a person.

On whether notice should have been served on the Registrar as opposed to the Vice Chancellor of the defendant, counsel submitted that the case of Amadi v. NNPC [2000] 10 NWLR (Pt. 674) 107 cited by the counsel to the defendant is not applicable to this case. He contended that non-compliance with such provisions as complained of by the defendant in Tai Solarin University Statute is an irregularity, which should not be confused with a total lack of Jurisdiction. He referred the Court to the cases of:Mobil Prod (Nig.) Unltd v. Lasepa[2002] 18 NWLR (Pt. 798) 1; Bright v. ED Lines Ltd &Anor[1952] 20 NLR 79 andKatsina Local Authority v.Makudawa[1971] 7 NSCC 119.

  1. On the effect of 14 days’ notice given by the claimant as against 3months notice; counsel submitted that the letter written by the claimant’s counsel was served on the defendant on January 7, 2014 and that this action was filed on July 11, 2014; therebyallowing the defendant to be on notice for a period of 6months and 5days before insttuting this case. Counsel maintained that the said notice is not defective, citing ITC Plc. v. NAFDAC [2007] 10 NWLR (Pt. 1043) 618&620;Amadi v. NNPC [2000] 10 NWLR (Pt. 674) 76: [2000] FWLR 1425 – 1594 (Pt. 9) 1587 andMobil Producing (Nig.) Unltd. vLasepa [2002] 18 NWLR (Pt. 789) at pg. 36.
  2. In respect of the substantive matter before the Court, counsel to the claimant formulated the following issues for the determination of the court:
  3. Whether there was an agreement between the parties that the claimant should give loan to the defendant to pay security imprests when the defendant was unable to pay?
  4. Whether the defendant can unilaterally resile from the agreement?

iii.             Whether the defendant is not obliged to pay back the loan from the claimant or further in the alternative: Whether the claimant should be not indemnified for his loss?

Arguing the first issue, counsel submitted that Civil cases in the High Courts are conducted by pleadings and evidence and general traverse are not allowed and that fact admitted in pleadings need no further proof; citing Adelekev.Anike[2006] 16 NWLR (Pt. 1004) 131 andIfeta v. SPDC (Nig.) Ltd [2006] 8 NWLR (Pt. 983).Counsel noted that in paragraph 4 (b) and (c) of the statement of defence, the defendant admitted paragraphs 12 and 13 of the statement of Claims. To counsel, it is clear that the defendant had an agreement with the claimant to pay security imprests as claimed by the claimant, which is distinct from salaries covered by Document C.1. Counsel argued that an agreement can be made and given effect to whether in writing or verbally done or even established by conduct of the parties from which the agreement can be inferred; citing VTC (Nig.) Plc.v. Philips [2012] 6 NWLR (Pt. 1295) 136 & 163. Counsel went on that the defendant has admitted that it paid the sum of N288,000.00 (Two Hundred and Eighty Eight Thousand Naira Only) for the months of February to June 2013 in paragraph 9 of the statement of defence and to counsel, this shows a unilateral change of the terms and conditions of the agreement.

  1. Arguing issue twoofwhether the defendant could on its own unilaterally resile from the agreement,counsel submitted that the defendantwithout meeting with the claimant on it problem; determined the contract and also failed to inform the claimant to stop financing the security spending between July and October 2013. He submitted that the principle of “pactasuntservanda” means/requires that the agreement of a party to a contract which is not fraudulent is to be observed and honoured by gentlemen;citingAG Nasarawa State v. A.G. Plateau State [2012] 10 NWLR (Pt. 1309) 419 at 458. He urged the court to enforce the agreement.

Arguing issue three of whether the defendant is not obliged to pay back its loan from the claimant or to indemnify him for his loss, counsel submitted that by virtue of section 151 of the Evidence Act, where a person has by his declaration, act or omission intentionally cause or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing; referring to A.G. Nasarawa State v. A.G Plateau State [2012] 10 NWLR (Pt. 1309) 419 at 458.

Additionally, counsel argued that the first Vice Chancellor of the defendant asked the claimant to give them a loan to finance the security imprests when the defendant could not afford it, to him; the present Vice Chancellor is expected to continue with that agreement. He argued further that this present V.C. also asked for a reduction of N70,000.00 (Seventy Thousand Naira) from the imprestagreement verbally and distance from Document C.1. Counsel noted that the defendant has not denied that the security imprests were paid by the first Vice Chancellor for the months of October 2011 to April 2012 before the defendant had financial problems.His position is that the agreement on the loan from the claimant by the defendantwas oral but that documentary exhibits can be used as acid test to resolve conflict on oral evidence; citing UTC (Nig.) Plc. v. Philips [2012] 6NWLR (Pt. 1295) 136.

  1. On whether the claimant should not be indemnified for his loss, counsel submitted that Indemnity has been defined as a duty to make good any loss, damage or liability incurred by another. To counsel, an injured party is entitled to claim reimbursement for loss and damage from the other party who has the duty to make good his covenant from which he cannot renege, citingOyebanjiv.Fowowe [2008] All FWLR 786 at 797 and the Block’s Law Dictionary 9th Edition at page 784. Counsel contended that the agreement between the parties on payment of imprests was oral and that the defendant has wronged the claimant by not paying back monies he lent the defendant to pay for security imprests when the defendant was unable to pay same. He again submitted that when there is a legal wrong, there must be a legal ready; citing Adepojuv.Afonja[1994]8 NWLR (Pt. 363) 437 at 451 and 452.Counsel urged the Court to so hold and to grant the claimant’s prayers/reliefs.

  1. COURT’S DECISION

I have carefully read true the facts of this case as pleaded and the arguments of both counsel in their final written addresses including the authorities they cited; from all of this I am of the considered view that the following issues require resolution of the Court on the case:

  1. Whether or not the claimant’s suit is incompetent and so, the Court lacks jurisdiction to try same by virtue of the provisions of sections 55 and 56 of TaiSolarin University of Education Law, 2005.
  2. Whether the claimant is entitled to the relief sought for before the Court.

  1. ON THE COMPETENCY OF THIS SUIT

In his final written address, counsel to the defendant raised objection to the competency of this suit which he titled ‘Preliminary Objection’; see page 125 of the record. It should be noted that because this objection was raised in the final written address after the trial of this case, it is not a preliminary objection but an objection simplicitaas this opposition was not raised at the beginning of the case before trial commenced. I hope the defendant bears that in mind.

In his objection, counsel to the defendant prayed the court to strike out this suit for being incompetent.The law is that, issue of Jurisdiction is very fundamental and as a threshold issue, it should be determined at the earliest stage of the proceedings or as soon as it is raised. This is because, if a Court has no jurisdiction to hear and determine a case, its proceedings on that case remains a nullityab initio; no matter how well conducted and decided. The reason being that a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication; see Anyanwu v. Ogunewe[2014] 8 NWLR (Pt. 1410)SC 437 at 476 paragraphs G-H.

The defendant’s objection to the jurisdiction of this Court as raised in its final written address is rooted in two grounds: a) that the service of pre-action notice (Document C6) is incompetent because same was addressed to the Vice Chancellor of the Defendant as against the Registrar required by sections 55 and 56 of the TaiSolarin University of Education law of Ogun State 2005; b)That the pre-action notice (Document C6) gave the defendant 14 days’ notice as against the required 3 months’ notice in this law.

  1. Section 55 of TaiSolarin University of Education Law of Ogun State, 2005 is on Service of Notices and it provides:

Services upon the University of any Notice, Order or other Documents, may be effected by delivering the same or by sending it by registered post addressed to the Registrar of the University.

Section 56 of this Law is on Restriction of Suits and Execution, it states:

(1)           No Suit shall be commenced against the University until at least three months after written notice of intention to commence the same shall have been served on the University by the intending Plaintiff or his agent; and such notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims.

(2)           For the avoidance of doubt, it is hereby declared that no suit shall be commenced against an officer or servant of the University, in any case where the University is vicariously liable for any alleged act, neglect or default of the officer or servant in the performance or intended performance of his duties, unless three months at least has elapsed after written notice of intention to commence the same shall have been served on the University by the intending Plaintiff or his agent.

  1. It is worthy of note that the operative word in Section 55 of TAI Solarin University of Education law of Ogun State 2005 is “May”and this is indicative of discretion or choice, between two or more alternatives; but the context in which word appears must be the controlling factor; see ICAN &Anor v. AG Federation &Ors [2003] LPELR-5741(CA); [2004] 3 NWLR (Pt.859)186..

The controlling factor of the operation of the word “may” as used in section 55 of TAI Solarin University of Education law of Ogun State, 2005 is that the service of any notice (including pre-action notice) on the defendantmay be done by (a) delivering the same to the Registrar of the University or (b) by sending it by registered post to the Registrar of the University.In the case of ICAN &Anor v. A.G. Federation &Ors(Supra), the Court held that ‘ — as a general rule, the word ‘MAY’ will not be treated as a word of command, unless, there is something in the context or subject-matter of the act to indicate that it was used in such sense. In construction of statutes and presumably also, in construction of Federal rules, the word ‘MAY’ as opposed to ‘SHALL’ is indicative of discretion or choice, between two or more alternative, but the context in which word appears must be the controlling factor.’ See also the case of Alhaji Chief A.B. Bakare v. A.-G., Federation & 2 Ors. [1990] 5 NWLR (Pt.152) page 516 in which the word ‘MAY’ was interpreted by the Supreme Court perKayodeEso, J.S.C. to be directory and not mandatory.

The defendant’s counsel has not satisfied the Court with his argument that the word ‘May’ as used in section 55 of TAI Solarin University of Education law of Ogun State, 2005 means compulsion or that it is mandatory. It is my firm view therefore, thatthe word ‘MAY’ will not be treated as a word of command in the case at hand because there is nothing in section 55 of the Law or the subject-matter in section 55 of TAI Solarin University of Education law of Ogun State, 2005 to indicate that this word ‘May’ was used as a command. This means that the claimant in the instant case can exercise his discretion of serving his pre-action notice on the defendant by effecting same on or by sending it by registered post to the Registrar of the University or serve the defendant the said notice through another means to ultimately ensure that the notice gets to the defendant and I so find and hold.

  1. At page 19 of the record is Document C6, titled ‘Demand for monies Owned Former CSO on refusal to renew contract’ and dated 6th of January 2014.This letter is addressed to and received for the V.C. of the defendant by oneTalih I.F. on January 7, 2014. By serving Document C.6 on the Vice Chancellor of the defendant directly and not to the Registrar of the defendant as required insection 55 of TAI Solarin University of Education law of Ogun State 2005; I find and hold that the notice in question was irregularly served on the defendant. I further find and hold that the mode of service of Document C.6 in question on the defendanthas not vitiated the said service in any way,as the claimant simply exercised his discretion in serving the pre-action notice as allowed by the operative word “May” in section 55 of the TAI Solarin University of Education Law of Ogun State, 2005.

In the instant case, the defendant is not contending that it did not receive the pre-action notice at all from the claimant; its contention is that the University received the said notice through a wrong officer of the University. The long and short is that the defendant eventually received the notice in question, which is the main goal of this section. In Nigercare Development CoLtdv. ASWB [2008] 9 NWLR (Pt. 1093) 498 at 526-527 para H-C, Per Tobi JSC held that ‘the rationale behind the requirement for pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties without recourse to adjudication by the court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties’. See also the cases of See alsoGbadamosiv. Nigeria Railway Corporation [2007] All FWLR (Pt. 367) 855and Amadi v. NNPC [2000] 6 SC (Part 1) 66. Going by the above decision of the Supreme Court, I hold that although the service of Document C.6 on the defendant was irregular; the irregularity has not made the said noticeincompetent or invalid.

  1. On Whether the content of Document C.6 gave adequate notice to the Defendant

In the second to the last paragraph of Document C.6 at page 20 of the record, the claimant states thus:

TAKE NOTICE therefore, that if you do not pay into these chambers the demanded sums totally N4,820,000.00 — plus other payments for leave and monetization of car and drivers maintenance allowance within 14 days from the receipt of this letter we shall be left with no other alternative than to assist our client to sue.

The argument ofcounsel to the defendant is that the 14 days’ notice so given by the claimant’s counsel as against 3months’ noticerequired by the provision of section 56 of the law renders this suit against the defendant incompetent. Counsel to the claimant on the other hand, submitted that, even though 14 days is stated in Document C.6, which was served on the defendant on January 7, 2014; the claimant did not file this actionuntil July 11, 2014. To the claimant’s counsel, the claimanteventually gave the defendant 6months and 5days notice before the instituting of this case.

  1. The claimant’s pre-action notice is aletter; titled ‘Demand for Monies Owed Former CSO on Refusal to Renew Contract’; see in particular, the last two paragraphs of this letter (Document C.6) at page 20 of the record. It was written by the claimant’s counsel on January 6, 2014 and received by the defendant on January 7, 2014; whilethis suit was filed on July 11, 2014. In essence, the claimant allowed the defendant to be on this notice of his intention to sue for a period of over six months before this case was instituted. In my considered view, the claimant ensured that three months at least has elapsed after hiswritten notice of intention to commence action against the University in Document C.6 had lapsed; before he instituted this suit, in compliance with the provision of section 56 (2) of the Tai Solarin University of Education law of Ogun State, 2005. In the circumstances, I find and hold that the defendant was adequately in the know of the claimant’s intention to institute this action in advance. I further hold that the defendant had ample time of over of 6months for a possible amicable settlement of this matter with the claimant if it wanted to do that more than the required 3months’s notice stated in the Law before the claimant instituted this action for this Court’s adjudication. I am; therefore, satisfied that the claimant had substantially complied with the provision of section 56 (2) of Tai Solarin University of Education law of Ogun State, 2005 by filing this suit 6monthsafter the pre-action notice was given to the defendant via Document C.6 and I so hold. I again hold that this suit is not premature and so, this Court has jurisdiction to adjudicate on it. Consequently, the objection in question of the defendant lacks merit and it is accordingly dismissed.

  1. Whether the claimant is entitled to the reliefs he is claiming

As reflected above, the claimant’s claims against the defendant are for the sum of N4,820,000.00 (Four Million, Eight Hundred and Twenty Thousand Naira) as monies the defendant owes the claimant as unpaid salaries and security imprests for 13 months. He is also claiming such amount of monies as may be found due to him from the defendant representing his 3 years leave allowance, and as monetizing his driver and car maintenance allowance. He is then claiming cost of this action. In order to prove his entitlement to these claims, the claimant tendered and relied on 6 documents marked asDocuments C.1 to C.6 in this case.In a contractual relationship,the Law is that parties are bound by the terms of their contract which they voluntarily entered into; and in determining the respective rights, duties and obligations of the parties in that contract;reference will be made to the content (the terms and conditions) of the said contract. It is also trite that the party who asserts the existence of a fact or who is alleging a breach of the contract must prove same; see the cases of Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558, Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083 and the provisions of section 137(1) of the EvidenceAct, 2011.

In the case at hand, none of the documents relied on by the claimant supportshis claims. The claimant also failed to provide any other evidence neither did he show the Court any termor condition of his contract of employment with the defendant to back uphis claimfor monthly imprest as an example. In order words, there is nothing in the claimant’s exhibits;(Documents C1,C2, C3, C3(a),C4, C4(a), C5& C.6)stating either directly or by inference that the claimant is entitled to the payment of monthly imprestin addition to his salaries. It is trite that parties are bound by the terms of their contract and the Court has a duty to ensure that what is not included in the terms and conditions of the contractis not introduced in to the contract. See the cases of AminueIsola Investment Limited v. Afri Bank Nigeria Plc [2014] All FWLR (Pt. 716) SC 498. Alagoa JSC at 520-521 para B-A and Atoki v. Ecobank Nigeria Plc [2014] 47 NLLR (Pt 151) 33 at 121, parar F-H.

  1. In paragraphs 10 and 11 of the Statement of Facts, the claimant avers that it was the former Vice Chancellor of the defendantthat appealed to him orally to assist the University to pay the monies needed as Security Imprest Funds at the material time because the defendant was short of funds and was committed to spending a lot money on the National University Commission accreditation of zone departments of the University. He went on that when the new Vice Chancellor came, he brought this to his notice and that the new V.C. agreed to pay the owed amount of N2,880,000.00 (Two million, eight hundred and eighty thousand naira) “when the finances of the University got better” and he is settled down in office. In paragraph 8 of the Statement of Defence, the defendant denied anyof such agreements with the claimant.To the defendant, Security Imprest is not a personal emolument of the claimant like his salary or allowance.

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 where there is no evidence or corroboration of the oral promise; see Adamu v. Shifa Plastic Ind. Co. (Nig.) Ltd & Co [2014] 40 NLLR (Pt. 124) 559 at 585, para A-F. Theclaimant’salleged oral agreement with the defendant on payment of monthly imprestwas never corroborated by testimony of another witness and there is no document to back up that piece of evidence before the Court.In other words, there is no evidence before the Court to prove that any of the Vice –Chancellors of the defendant agreed to pay arrears of security imprest to the claimant. The only fact on this issueare the claimant’s averment in the Statement of Facts and his testimony in his written statement on oath; which have been denied by the defendant in its statement of defence and in the written statement on oath of the defendant’s witness.

  1. Furthermore, the claimant claims that he expended his personal money on security expenses, but he did not exhibit before the Court receipts of such expenses. The claimant again claims that the defendant owed him arrears of his salaries but he did not mention those months that he was not paid salary and how much was his salary monthly. It is trite that averments in pleading are not evidence; they are the body and soul of a case in skeleton form and are built and solidified by evidence in support thereof. Averments in pleadings must be proved by evidence to the satisfaction of the Court, except where they are admitted by the otherparty; see the case ofMonkom v. Odili[2010] 2 NWLR (Pt. 1179) 419 at 445 para A-B. Therefore, in the absence of any concrete evidence to show the months or years that the claimant’s salaries were not paid including his monthly salary and also because there is no prove that the two Vice –Chancellorsof the defendant agreed to pay arrears of security imprest to the claimant, I find and hold that the Claimant has not discharged his burden of proof that he is entitled to claim arrears of salary and arrears of imprest from the defendant. This claim is accordingly refused and dismissed.

  1. On the Claimant’s claim for 3 years’ leave allowance and the monetization of his driver and car maintenance allowance

The 2nd relief of the claimant as endorsed is for “Such amount of monies as may be found due from the defendant to the claimant representing 3 years leave allowance and driver and car maintenance allowance.” Let me reiterate that it remains the law that in a contract of employment case like the one at hand, parties are bound by the terms and conditions agreed upon by them and that it is from these terms and conditions that the Court will determine the parties’ respective right, duties, obligations and liabilities because the bedrock to any claim in the contract is the said terms and conditions.

In paragraph 19 of the Statement of Facts, the claimant avers that ‘the Claimant shall at the trial discover the books of the defendant to ascertain how much is due to him representing 3 years leave grant converted to money and driver and car maintenance allowance which the claimant has asked for by his letter of 13th January 2011. The Claimant had to use his personal Car for Security runs for 2 years. The letter with reference number: TASUED/SECU/PER(W)/VOL.IV/31 of 13th January 2011 is hereby pleaded.’The letter in question was written by the claimant and it is titled “Monetization of Official Car, Maintenance and Driver Chief Security Officer Group Captain O.V.O Olasope (Rtd)”. It is marked as Document C.2 in this case,see page 15 of the record. The letter states:

  1. I hereby please apply for your due consideration and approval to monetize the above subject matter on my behalf, because of the exigencies of the appointment and schedule of duties.
  2. The duties necessitates observation, surveillance and traveling with attendance risk and stress on my private car and persons even when dropping Guards on occasions at any time of the day and night.

iii.                   Grateful treat with kind regard, please oblige.

  1. Aside from Document C.2, there is no other evidence to back this claim. As reproduced above, the claimant merely applied for the monetization of his official car maintenance and driver through this letter. There is no evidence that the claimant’s request in Document C.2 was granted by the defendant. Therefore, I find that Document C.2 is not part of the terms and conditions of the contract of employment between the parties in this case; and so, the claimant cannot enforce the content of Document C.2 against the defendant and I so hold. In addition, since the claimant has failed to prove to the satisfaction of the Court that he is entitled to this claim as required by the provisions of section 137(1) of the Evidence Act; I hold that there is no evidence or basis for the Claimant’s claim for 3 years’ leave allowance and driver and car maintenance allowance before the court. This claim is accordingly refused and dismissed.

  1. On the whole, I hold and order as follows:
  2. I hold that this suit is not premature and that the claimant substantially complied with the provision of sections 55 and 56 of the defendant’s Law; and so, this Court has jurisdiction to adjudicate on the matter.
  3. The claimant has failed to prove how the sum of N4.820,000:00 accrued to him from the defendant as unpaid salaries and security imprest. The claimant is; therefore, not entitled to this claim.

iii.               The claimant is again not entitled to any money from the defendant as his 3 years leave allowance and driver and car maintenance allowance because the claim is not backed up by the terms and conditions of his employment with the defendant. Hence, the claim is refused and dismissed.

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

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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