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HUSSAIN MUSA SHEHU -VS- SONGHAI AVIATION LTD

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 30TH JANUARY, 2018                                         

SUIT NO. NICN/ABJ/70/2016

 

BETWEEN:

HUSSAIN MUSA SHEHU  ………………………………………………            CLAIMANT

 

AND:

SONGHAI AVIATION LTD          ………………………………………            DEFENDANT

 

REPRESENTATION

  1. I. ONYEKWERE with I. DANDIJA, I. B. JALIKE, K. EBOHON for the claimant
  2. AKINLOSOTU for the defendant

 

 

JUDGEMENT

 

  1. The Claimant commenced this action via Complaint filed on 8th June, 2016 along with the Statement of Facts, List of Witnesses, Witness Statement on Oath, claiming as follows:

  1. The sum of N8, 000,000 (Eight Million Naira) only being the Claimant’s unpaid salary arrears for 10 (ten) months (from January, 2015 to October, 2015) at the rate of N800, 000 (Eight Hundred Thousand Naira) per month.

  1. The sum of N800, 000 (Eight Hundred Thousand Naira) only being the Claimant’s two years leave allowance at the rate of N400, 000 (Four Hundred Thousand Naira) only per annual leave.

  1. The sum of N1, 000,000 (One Million Naira) as cost of this suit.

  1. Post Judgment interest at the rate of 10% per month on the Judgment sum.

 

  1. Claimant’s Case

The Claimant was employed as a Pilot by the Defendant by an offer of employment dated 13th May, 2013 for a remuneration of N9,600,000.00 (Nine Million, Six Hundred Thousand Naira) per annum i.e. N800,000.00 (Eight Hundred Thousand Naira) per month.The Claimant averred that he was entitled to 4 (four) weeks annual leave after every twelve calendar months with one (1) month basic salary and that the Defendant failed to pay him his total annual leave allowance of N800, 000.00 (N400, 000 basic salary per year) for the two years of May, 2013 to May, 2014 and May, 2014 to May, 2015 respectively. And that the Defendant also failed to pay the Claimant’s salary/entitlements for the 10 (ten) months from January 2015 to October 2015.

  1. The Claimant terminated his employment with the Defendant by serving the Defendant with one month notice of resignation dated 2nd October 2015 through registered courier. He stated that his lawyers, J-K Gadzama LLP wrote a letter of demand dated 1st December, 2015 to the Defendant requesting payment of the Claimant’s outstanding entitlements, but that the said letter was ignored by the Defendant.

  1. The Claimant filed an Application for Summary Judgement on 26th February, 2016 together with a written address in support of application for summary judgment in reaction to which the Defendant filed a 6 paragraph Counter affidavit in response to summary application on the 24th June 2016 also accompanied with written address in support of counter affidavit. This court in a considered ruling delivered on the 16th March 2017 dismissed the application for summary judgement and ordered that the matter be tried on the merit.

 

  1. The defendants had filed their STATEMENT OF DEFENCE on 24th June, 2016 and dated same day.

Wherein the Defendant denied any responsibility with regard to any plight of the claimant maintaining that it is not responsible for the hardship of the Claimant, and that they are not indebted to the claimant as he had done no work to entitle him to his claims.

  1. The Defendant maintain that several attempts were made to know the claimant’s where about by the defendant but all to no avail and that as a result of his absconding from work, the defendant had to employ another first officer to take up his position. Also maintaining that the Claimant absconded from work and was therefore was not entitled to the reliefs claimed in the Complaint urgiing the Honourable Court to dismiss this action with substantial cost.

  1. The claimant in the CLAIMANT’S REPLY TO STATEMENT OF DEFENCE filed on 15th June, 2017.Contended that he was in the employment of the Defendant from May, 2013 to October, 2015 when he tendered his resignation letter and  that he never absconded from work but rather, he kept reaching out to the Defendant through emails, telephone calls and text messages which were all ignored by the Defendant, to ascertain the position of things when he did not hear from them between January and October 2015 that he was still in their employment. And that having remained in the employment of the Defendant between January and October 2015, he is entitled to payment of his remuneration as his employment with the Defendant was on a monthly salary basis and not on commission basis.

  1. At the trial the claimant testified as CW, adopted his written statement on oath of June 2016 and his further written statement on oath of 14th June 2017 which were marked C1 and C6 respectively and proceeded to tender ten (10) other exhibits

LIST OF CLAIMANTS EXHIBITS

  1. Witness Statement on oath June 2016                                                –           Exhibit C1
  2. Letter of Appointment dated 13/4/2013                                            –           Exhibit C2
  3. Special Resolution of the Defendants                                                            –           Exhibit C3
  4. Claimant’s Letter of Resignation of 26/10/2016                                            Exhibit C4
  5. Claimant’s Solicitors Letter of demand of 1/8/2016                          –           Exhibit C5
  6. Further Statement on Oath 14/6/2017                                                –           Exhibit C6
  7. Claimants email of 14th September                                                     –           Exhibit C7
  8. Certification of the emails in (7) above                                              –           Exhibit C8
  9. Claimants email of 2nd October 2017                                                  –           Exhibit C9
  10. Certification of the emails in (9) above                                              –           Exhibit C10

CW was duly cross examined and the claimant’s case was closed.

  1. The defendant called one witness, one Kabir, Dau Fulani, who adopted his written statement on oath of 24th June 2016 which was marked D1, he was duly cross examined and the defendants thereafter closed their case.
  2. At the close of trial parties where directed to file their final written addresses in line with Order 37 rule 20 (3), (4) and (5).

 

  1. The DEFENDANTS FINAL WRITTEN ADDRESS was filed on 31st October, 2017.wherein they raise the one ISSUE;-

 

  1. Whether the claimant had made a case for a work done to justify remuneration?

 

  1. The Defence Counsel P. Akinlosotu Esq. submitted that Section 133(1) of the Evidence Act 2011 2011 is clear and that the Supreme Court in DURU V. NWOSU (1989) 4 NWLR) (Pt. 113)24 at 41 held this provision of the Law as the prima facie evidence on the Claimant to introduce evidence which shifts the burden to the Defendant and so on successively until all the issues in the pleadings have been dealt with; and that the Claimant in this suit has failed to prove he has caused out any work for the defendant to justify his claim for remuneration. He submitted that where an employee absconds from his place of employment and neglects or refuse to obey the lawful order of his employee such action attracts summary dismissal. UBN PLC V. SCARES (2012) 11 NWLR PT 1312 AT PG. 557 where the court held that

  1.       wilful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of misconduct which at common law, attracts the penalty of summary dismissal, because such willful disobedience is a reflection of a total disregard of an essential condition of a contract of service, namely that the servant must obey a proper, reasonable and lawful order of the master, in default of which their contractual relationship cannot be expected to continue.

 

  1. To the defendant that the actions of the Claimant when in the employ of the defendant were a gross misconduct. That on the effect of gross misconduct it was held in UBN PLC V. SCARES (SUPRA) that:
  2.       “The conduct of an employee which constitutes gross misconduct, without much ado, attracts summary dismissal”.

  1. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 8th November, 2017. Wherein he formulated he following issues; –

  1. Whether the Defendant has sufficiently proved on the balance of probabilities that the Claimant absconded from work.

  1. Whether the Defendant is not estopped from positing that the Claimant’s employment was not confirmed.

  1. Whether the Claimant is entitled to the reliefs sought.

  1. ON ISSUE 1

Whether the Defendant has sufficiently proved on the balance of probabilities that the Claimant absconded from work.

 

  1. Learned Counsel submitted that the Defendant has failed woefully to prove her assertion that the Claimant absconded from work as the record of this Honourable Court will clearly show that the Defendant has not led any evidence at all to prove or in any way support their assertion. And that the Defendant has not discharged the burden and standard of proving this assertion as required by law. Gwani V. Ebule (1990) 5 NWLR (Pt. 149) 201 at 215 E-F.

 

  1. It is counsel’s contention that cases are proven on credible, cogent and believable evidence and that even unchallenged evidence will still be subjected to the test of credibility and rationality. Maidara V. Halilu (2000) 13 NWLR (Pt. 684) 257 at 268 para G. He contended that the Defendant’s bare assertion that the Claimant absconded from work ought to be treated as mere ipse dixit (an unsupported dogmatic assertion) and should not be regarded as reliable. This is because it is a bare assertion resting on the authority of DW1. Okunade V. Olawale (2014) 10 NWLR (Pt. 1415) 273 C.

 

  1. That this is more so in view of the admission of DW1 under cross- examination on 10th October, 2017 that the Defendant keeps a record of the phone numbers, addresses, email addresses and other contact details of her employees. He invited the Court to consider paragraph 12 (b) of the Defendant’s Statement of Defence where she stated that several attempts were made to know the Claimant’s whereabouts but all to no avail, arguing that the question naturally will be as to what manner of attempts the Defendant made to reach the Claimant despite being in possession of all his contact details as can be clearly seen from the cross- examination of DW1. Fatunbi V. Olanloye (2004) 12 NWLR (Pt. 887) 229 at 247 par C, per Hon. Justice Pats-Acholonu, JSC.
  2.       “It is the law that where evidence is so exaggerated that it enters the realm of flamboyancy or reckless petulance and appears as an affront to common sense, reason and intelligence, no credibility ought to be accorded it.”

 

  1. Claimant’s Counsel submitted that the refusal of the Defendant to tender the letter of employment of the new staff (which was actually frontloaded) clearly means that the said piece of evidence would have been unfavourable to the Defendant who withheld it. He urged this Honourable Court to so hold. Section 167 (d) of the Evidence Act 2011; PML. Sec. Co. Ltd V. FRN (2015) 4 NWLR (Pt. 1450) 551 at 569D—F.

 

  1. Further urging the Court to discountenance the testimony of the Defendant’s sole witness as hearsay and unreliable. This is because the Defendant’s witness who confirmed and admitted under cross-examination that he is based in Abuja while the Claimant operated from Lagos, could not have had personal knowledge of the facts deposed to in his Witness Statement on Oath. Ogbuagu, JSC in Ogbu V. State (2007) AFWLR (Pt. 361).

 

 

  1. ON ISSUE 2

Whether the Defendant is not estopped from positing that the Claimant’s employment was not confirmed.

 

  1. The claimant pointed out that the Defendant has now picked few lines from the Claimant’s cross-examination to make this point an issue in her written address and that this is certainly not permissible, as a Defendant must confine himself to his statement of defence. Gwani V. Ebule (Supra) at 215 C-D. Also submitting that clearly, the Claimant worked for the Defendant for far beyond the six months probationary period stipulated in Exhibit C2 and that ‘can the Defendant now turn around to assert that the Claimant’s employment was never confirmed?’ Responding in the negative, the claimant maintains that this is because the Defendant has been caught up by the doctrine of estoppel by conduct and cannot turn around to say that the Defendant perpetually remained on probation after being in her employment beyond the probationary period. Reliance Telecommunications Ltd. V. Adeqboyega (2017) 8 NWLR (Pt. 1567) 167 at 328 A — H, 329 A-E.
  2. ON ISSUE 3

Whether the Claimant is entitled to the reliefs sought.

 

  1. Learned Claimant Counsel submitted that for all intents and purposes, the Claimant was in the employment of the Defendant up till October, 2015 when he tendered his resignation letter and as such, the Claimant is entitled to his salary and emoluments. N.B.C PLC V. Edward (2015) 2 NWLR (Part 1443) 201 at 235 Para. F-G. Arguing that that it is also not in controversy that the offer of employment dated 13th May, 2013 admitted in evidence as Exhibit C2 is the document which governed the employment relationship between the Parties and as such, it is their agreement which spells out the terms of contract. And that two terms of the contract which were breached by the Defendant were payment of salary and leave allowance. Furthermore, that this Honourable Court has the vires to give effect to the contract between the parties by granting the reliefs sought by the Claimant.

  1. On the bindingness of terms of contract on parties, counsel referred the Court to the Supreme Court decision in Isheno V. Julius Berger (Nig) Plc. (2008) LPELR-SC.256/2002(P.35, Para C); (2008) 6 NWIR (Pt. 1084) 582, per ONNOGHEN, JSC. It is counsel’s contention that the Labour Act CAP L98 LFN 1990 relied upon by the Defendant in defining wages is not helpful to their case because it is inapplicable in the circumstance. And assuming but not conceding that the Labour Act applies to the instant case, the claimant contends that Section 17 (1) of the Act avails the Claimant as the duty of providing work for an employee squarely rests on the Employer.

  1. On the issue of refusal to obey lawful orders, summary dismissal and gross misconduct imported by the Defendant in paragraphs 2.8 and 2.9 of their written address, counsel argued that it was never part of their case at trial; as it is now indubitable law that parties are bound by their pleadings. Furthermore, that the case of UBN PLC V. Soares (2012) 11 NWLR (part 1312) at 557 cited by the Defendant in paragraph 2.8 of their written address is inapplicable because a case is only an authority for what it decides.

  1. On bindingness of pleadings, counsel cited the case of Aminu V. Hassan (2014) 5 NWLR (Pt. 1400) 287 at 321 Paras F- G. He urged this Honourable Court to discountenance all issues of facts raised in the Defendant’                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         written address which were not pleaded or in any way substantiated, that this is because the law is now settled that address of Counsel cannot be a substitute for evidence. Mohammed V. State (2015) 13 NWLR (pt. 1476) 279 at 291 Para C, per Hon. Justice Aka’ahs, JSC; S. S. GMBH V. T.D. Ind. Ltd. (2010) 11 NWLR (Part 1206) 589 at 612 paras. D-E.

 

  1. Inviting the Court’s attention to the Claimant’s Reply and Further Witness Statement on Oath before this Honourable Court, Claimant counsel noted that the Defendant did not in any way effectively join issues or controvert the averments therein, submitting that this is fatal to their case as the implication is that all matters pleaded therein have been admitted by them and do not need further proof. Esoho V. Asuquo (2007) AFWLR (Pt. 359) 1355 at 1375 Paras F-G.

 

  1. Inviting the Court’s attention to the Claimant’s Exhibit C5 which is a letter of demand dated 1st December, 2015 from the Claimant’s Solicitor to the Defendant prior to the institution of this suit, counsel urged the Court to hold that attention to the Claimant’s Exhibit C5 which is a letter of demand dated 1st December, 2015 from the Claimant’s Solicitor to the Defendant prior to the institution of this suit. BoernerV. United States, 117 F. (2d) 387 (C.C.A 2d, 1941). Counsel argued that the position stated above on effect of silence to official correspondence has also been given judicial imprimatur by Nigerian Courts in a plethora of cases, notably the case of Gwani V. Ebule (Supra) 217 G-H where it was held that silence in circumstances in which a reply is obviously expected raises an irrebuttable presumption of admission by conduct or representation.

  1. On the             14th November 2017 parties adopted their respective written addresses and adumbrated their positions accordingly and the matter was adjourned for this judgement.

  1. Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs he sought.

  1. For avoidance of doubt the claimants reliefs are as follows.

  1. The sum of N8, 000,000 (Eight Million Naira) only being the Claimant’s unpaid salary arrears for 10 (ten) months (from January, 2015 to October, 2015) at the rate of N800, 000 (Eight Hundred Thousand Naira) per month.

  1. The sum of N800, 000 (Eight Hundred Thousand Naira) only being the Claimant’s two years leave allowance at the rate of N400, 000 (Four Hundred Thousand Naira) only per annual leave.

  1. The sum of N1, 000,000 (One Million Naira) as cost of this suit.

  1. Post Judgment interest at the rate of 10% per month on the Judgment sum.

  1. The claimant in support of his case tendered C2 his letter of appointment indicating the terms and conditions of his appointment reproduced below;

THG HELICOPTER SUPPORT SERVICES LTD

13th May, 2013

Dear Hussain Musa Shehu

OFFER OF EMPLOYMENT

We wish to convey to you the management’s decision to offer you employment as  First Officer on the Boeing 727 Aircraft with effect from 2nd May, 2013 subject to the following terms and conditions

  1. Your remuneration will be N9, 600,000.00 (Nine Million, Six-Hundred thousand Naira) only per annum.

      The breakdown is as follows

      BASIC SALARY          N4,800,000.00

      UNTILITY                   N960,000.00

      RENT                          N1,920,000.00

      TRANSPORT              N960,000.00

      MEDICAL                   N960,000.00

                                          N9,600,000.00

      Payable in arrears monthly from the first month of this offer and your acceptance.

  1. That you are under no obligation to another employer
  2. That you successfully pass your training and medical examinations and that a reference taken up by us is satisfactory.
  3. The variation in salary which later nay at any time be made shall not constitute a new agreement but that the terms and condition of your employment as set out here, except as to such variation shall continue in force.
  4. That you will be on six months’ probation after which your employment will be confirmed subject to a satisfactory conduct/performance.
  5. That you will be eligible to four (4) weeks annual leave after every twelve calendar months with one (1) month basic salary.

7    Either party can terminate the contract by giving on (1) month notice in writing or one (1) month basic salary in lieu.  In the event you wish to terminate this appointment after your recurrent training, yourself or your next employer shall pay all expenses incurred in cause of your last recurrent training.

7b  Also note, the company has paid to your last employer, all the expenses incurred in the cause of your last recurrent training.

8    On joining the company, you will be required to sign the service agreement of the company when this is ready.  In the course of your employment, you must devote your full time and attention to the services of the company.

May I seize this opportunity to welcome you to our company.  We hope you will enjoy working with the company as hard work and loyalty will enjoy rich rewards.

We wish you every success.

Thank you.

Yours faithfully

For: THG HELICOPTER SUPPORT SERVICES LTD.

SIGNED

MUKHTAR RUMAH

MANAGING DIRECTOR

 

ACCEPTANCE

Date ………………………

Name …………………….

Signature ………………..

 

  1. And he also tendered Exhibit C4 his letter of resignation giving one month’s notice. Also reproduced below ;-

                                                                                                                  HUSSAIN M. SHEHU

                                                                                                                  THG SUPPORT SERVICES

                                                                                                                  SONGHAI AVAIATION

                                                                                                                  M/M AIRPORT

                                                                                                                  GENERAL AVAITION TERMINAL

                                                                                                                  IKEJA LAGOS.                                                      

2/10/1015

 

MUKHTAR RUMAH

MANAGING DIRECTOR

THG SUPPORT SERVICES

SONGHAI AVIATION

BIRNIN KEBBI CRESECENT

ABUJA

 

Dear Sir

 

NOTICE OF RESIGNATION

 

I wish to give one month (30 days) notice of my imminent resignation of employment with THG

 /SONGHAI AVIATION with effect from the above dat.

 

I have waited for more than a year for any communication from the company to no avail as such I had

to take this important decision to resign.

 

Thank you for the opportunity of working for you and wishing you the best for the future and I trust

that you will fulfil your obligations to me (as per my contract with THG / SONGHAI AVAITION) in settling any salaries or allowances due to me.

 

Thank you again.

 

Sincerely,

 

SIGNED

HUSSAIN MUSA SHEHU

FIRST OFFICER

THG / SONGHAI AVAITION

 

  1. The claimant’s case is that he had worked with the defendants from May, 2013 till October, 2015 when he gave notice of his resignation relying on the above mentioned Exhibits C2 and C4 claimant further therefrom that he was as such was entitled to be paid for the period.
  2. The defendants on their part admit the claimant was their employee but maintain that the claimant had absconded from work and was not entitled to any pay from January 2015 to October 2016.
  3. The claimant had testified that he worked from the Lagos office of the defendant and that he did not have a particular office but was basically summoned to work by call to fly chartered flights whenever the need arose. The claimant also restated this under cross examination;

  1. Beginning of excerpt.

AKINLOSOTU: Look at C7 again, Are you aware of where Songhai (the defendants) have their office

CW: They have an office in Abuja and a small cubicle in Lagos Airport for maintenance,

AKINLOSOTU: Where do you stay,

CW:  In Ikeja, Lagos

AKINLOSOTU: where did you work

CW:  I worked in the aircraft, my office was in  the aircraft. The crew had no office, they had no office

AKINLOSOTU: So if you were not on the aircraft you were not working

CW:  I was working, If I am not on the aircraft I am working

AKINLOSOTU: Can you read Exhibit C7

(Read out in open Court)

AKINLOSOTU: Would I be correct to state that for that period you were not working (referring to the period prior to the notice of retirement)

CW:           I was working, I go to my office, the aircraft when / if they call me I can come, and they did not call me.

AKINLOSOTU: You did not go to the aircraft on any of the days

CW: Yes

AKINLOSOTU: You did not go to the aircraft for all the period

CW:  Yes, I did not go to the Abuja office because I was not asked to come.

End of excerpt.

  1. From the forgoing, I find that the claimant’s work was one where the defendant would call the claimant when he required his service, I also find that as this evidence was not controverted, I am inclined to believe the claimant as to his working arrangement and the lack of working office environment.

  1. Also worthy of note is the 2nd stipulation in the Exhibit C2 Letter of Employment “That you are under no obligation to another employer” and the last part of stipulation 8 “….you must devote your full time and attention to the service of the company.” All go to indicate that the claimant’s services were fully engaged for the defendants.

  1. The position of the law as is stated by Learned Author Chigozie Nwagbara at page 47 of her book Determination of Contract of Employment and Remedies for Wrongful Dismissal that “the employer is under some degree of obligation to provide work when such provision of work is necessary to enable the employer to earn remuneration. But in the normal case of employment, the employer is under no obligation to provide the employee with work to do so. It is sufficient for the employer to pay the agreed salary or wages regularly.” See the unreported case of SUIT NO: NICN/IB/72/2013 MR. SILAS ADEGBOYE FAGBILE Vs. NIGERIAN WIRE AND CABLE PLC delivered 30th September 2014. What that means is that an employer has the enshrined duty to provide work for the employee and where the employer does not provide work he is still liable to the employee as if the employee had worked. See the unreported case of SUIT NO: NICN/IB/51/2013 MR. OYERINDE KOLAWOLE OLUSOLA Vs. GOVERNOR OF OYO STATE & 3 ORS delivered on the 7th July 2014.

  1. Now the defendants have contended that the claimant had absconded and they had made several attempt to contact him to no avail. Abscondment has been defined as “going away secretly…See the Oxford Concise Law Dictionary Eighth Edition Sweet and Maxwell 1993.

  1. And more aptly defined by the Labourman South Africa on their websitewww.labourman.co.za 29th January, 2017 6.40 GMT, as a situation when the employee is absent from work for a time that warrants the inference that the employee does not intend to return to work. For example, the employee is absent form work without permission for a number of days without informing the employer of his absence and/or the employer is unable to make contact with the employee.

  1. Apart from brandishing the word absconded in their statement and address and in D1, the defendants have not put any evidence before the court to show that the claimant had absconded from work, not even evidence of ‘the various attempts made to reach’ the claimant were produced in court to enable the court make a finding. The defendants having averred that the claimant absconded since January 2015, are required to prove this fact to the court. The claimant maintains that by the nature and structure of his employment with the defendant, the defendant would call him whenever they had need of his services to pilot charter flights, so in order to establish that the claimant had absconded the defendants at the very least are required to satisfy the court that they had made calls for the claimant to come and pilot the chartered flights and the claimant could not be reached, this they had not done. There is no evidence of the claimant having absconded. I find.

  1. The claimant’s salary in C2 was stated as N800,000.00 monthly, and he was entitled to N400,000 as leave allowance each year. The claimants grouse is that he was not paid since October, 2014 and he was owed leave allowance for two years. The defendant counter that he absconded since January, 2015, notwithstanding the court’s finding that the Abscondment had not been proved, the defendants position raises the question why was the claimant not paid his November and December, 2014 salaries. The court was not told.

  1. I find that the claimant has proved entitlement to his outstanding salary and two year leave allowance.

  1. The defendants made heavy weather with regard to the issue of confirmation but the position of the law has been long established that by TOTAL (NIG.) PLC V. ONUOHA [2001] 11 NWLR (PT. 725) 634, probation is the testing of a person’s abilities or behavior to find out if he or she is suitable. It is the suspension of a final appointment to an office until a person temporarily appointed has by his conduct proved himself to be fit to fill it. The authorities go on to provide circumstances in which confirmation can be deemed at the end of the period of probation even when there is no formal confirmation. In IHEZUKWU V. UNIVERSITY OF JOS [1990] 4 NWLR (PT. 146) 598 SC, the Supreme Court held that the essence of probationary appointment is to give the employer the right to confirm the employee’s appointment after a specified period. And by OBAFEMI AWOLOWO UNIVERSITY V. ONABANJO [1991] 5 NWLR (PT. 193) 549 CA, the Court of Appeal held that a servant is deemed to have been re-appointed and confirmed by implication, if after his probationary period, although not specifically confirmed in writing, is encouraged to continue working by his master and duly paid for his continued services by the master. See also UNIVERSITY OF JOS V. DR M. C. IKEGWUOHA [2013] 9 NWLR (PT. 1360) 478 SC; [2013] NSCQR VOL. 53.3 PAGE 330 SC.

  1. In the instant case, Exhibit C2 provides for a 6 months probationary period, the claimant commenced working with the defendants in May 2013, and there is nothing before the court to suggest that by October 2013 the claimant was informed that his services, conduct or performance were not satisfactory. And on the above authorities and relying on IWUJI V FEDERAL COMMISSIONER FOR ETABLISHEMENT LPELR 1568 SC. Where the Apex Court held that “Where an employee on probation has spent the require probationary period without termination or confirmation, the issue of confirmation of the employee is implied” and the employer is estopped from treating the employee as if he were still on probation for purposes of termination see case of THE COUNCIL OF FEDERAL POLYTECHNIC, EDE & ORS. v. OLOWOOKERE  (2012) LPELR-7935(CA). I find that the defendants have by their conduct impliedly confirmed the claimant.

  1. As for the question as to the issues raised by the defendants in their final address, the law is well established to the degree of being trite that the address of counsel does not constitute evidence irrespective of the elegance or the argument, See OKWEJIMINOR V. GBAKEJI (2008) 5 NWLR (PT. 1079) 172 AT P. 223, PARA. B

 

  1. Furthermore, in OWENIWE & ANOR. v. UNION DICON SALT PLC (2014) 48 NLLR (PT. 159) 649 NIC @ 656 this court held that “…a party cannot vide his written address raise a fresh issue that was not pleaded or alluded to at trial. Counsel’s address must be founded on evidence and the law, and not on whimsical views of the Counsel, as it would amount to empty blow of hot air or grammar, no matter how eloquent, if otherwise”. See also ORERE v. ORERE (2017) LPELR-42160(CA).

 

  1. I find that all questions as to “refusal to obey lawful orders, summary dismissal and gross misconduct”, having not gone through the rigors of judicial process (adversarial adjudication] and being raised for the first time in the defendants Counsel’s final written address, cannot be entertained at this stage, these issues go to no issue I find, and are hereby disregarded for the purposes of this judgement.

  1. The claimant in relief 4 is asking N1m cost without showing the court how he arrived at this sum. In this court by virtue if Order 55 rule 4, “where Costs are ordered to be paid, the amount of such cost shall if practicable be summarily determined by the court at the time of delivering judgment or making the order”. This relief cannot be granted as sought;

  1. All in the all, I find that the claimant’s case has merit and succeeds, but only thus far.

  1. This is the court’s judgement
  2. The defendants shall pay to the claimant the sum of N8, 000,000 (Eight Million Naira) only being the Claimant’s unpaid salary arrears for 10 (ten) months (from January, 2015 to October, 2015) at the rate of N800, 000 (Eight Hundred Thousand Naira) per month.

  1. The defendants shall pay to the claimant the sum of sum of N800, 000 (Eight Hundred Thousand Naira) only being the Claimant’s two years leave allowance at the rate of N400, 000 (Four Hundred Thousand Naira) only per annual leave.

  1.   Cost of this suit is put at N100, 000.00 only.

  1. All sums to be paid within 30 days thereafter interest at the rate of 10% per month shall attach.

  1. This is the court’s judgment and it is hereby entered accordingly.

 

…………..………………………………..

HON. JUSTICE E. N. AGBAKOBA

JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. RESEARCHED AUTHORITIES
  2. OWENIWE & ANOR. v. UNION DICON SALT PLC (2014) 48 NLLR (PT. 159) 649 NIC @ 656
  3. On Whether Counsel can raise fresh issue that was not pleaded in his written address

 

  1. GREENTEK LTD V ACCESS BANK PLC (2015 Legalpedia CA PP3K) (suit number: CA/L/124/2014)
  2. SUMMARY JUDGMENT PROCEDURE – ESSENCE OF A SUMMARY JUDGMENT PROCEDURE
  3. “In the case of Thor Limited V First City Merchant Bank Limited (2006) 1 WRN, PG. 1 @ PG 18; (2005) 14 NWLR (Pt. 946) 696 @ 710-711 H-A cited by counsel for the Respondent the Supreme Court held: “The summary judgment procedure which is similar to the undefended list procedure is designed to enable a party obtain judgment especially in cases of liquidated demand without the need for a full trial, where the other party cannot satisfy the court that it should be allowed to defend the action. The object of the order is to enable a plaintiff obtain quick judgment when there is no defence to the action. [Nishizawa Ltd v Jethwani (1984) 12 SC 234; Macaulay v Nal Merchant Bank (1990) 4 NWLR (Pt. 144)283; Pan Atlantic Shipping and Transport Agencies Ltd v Rein Mass G.M.B.H. (1997) 3 NWLR (Pt. 493) 248 referred to.]” PER C. E. IYIZOBA J.C.A
  4. SUMMARY JUDGMENT PROCEDURE – DUTY OF A JUDGE IN DETERMINING WHETHER OR NOT A DEFENDANT HAS A GOOD DEFENCE
  5. “In determining whether or not the defendant has a good defence, the judge is enjoined to consider the pleadings which invariably are embodied in the affidavit evidence and all the exhibits filed by the parties”. PER C. E. IYIZOBA J.C.A

 

  1. NASCO TOWN PLC & ANOR v. MR. FESTUS UDE NWABUEZE (2014 Legalpedia CA O8YH) (suit number: CA/L/949/12)
  2. SUMMARY JUDGMENT-NATURE OF
  3. “A summary Judgment is one that is given in favour of a Plaintiff without a plenary trial of the action. Although not preceded by a trial, a summary Judgment is one on the merits”. PER AUGIE, JCA
  4. SUMMARY JUDGMENT-WHETHER CAN BE SET ASIDE BY THE COURT THAT GRANTED IT
  5. “A summary Judgment, therefore, unlike a default Judgment, cannot be set aside by the Court that granted it or any Court. It is only on appeal that this can be done”. PER AUGIE, JCA.

 

 

  1. DR. OLADIPO MAJA V. MR. COSTA SAMOURIS (2002 Legalpedia SC 7TGC) (suit number: SC. 72/1997) [2002] 3 S.C. 37
  2. WHETHER SUMMARY JUDGMENT CAN BE GIVEN IN RESPECT OF DECLARATORY RELIEF WITHOUT HEARING EVIDENCE
  3. A declaratory claim is not only a discretionary relief, the court has a discretion whether or not to grant a motion for judgment in default of defence in respect of such a claim, the fact that the plaintiff is entitled to such judgment on the face of his Statement of Claim notwithstanding. It therefore seems to me that the court may in the overall interest of justice properly insist on oral evidence in the case of applications for judgments in default of defence in a declaratory action- Iguh J.S.C.

 

 

  1. MR. EMMANUEL MADUIKE v. TETELIS NIGERIA LIMITED (2015 Legalpedia CA TNKE) (suit number: CA/L/339/10)
  2. NATURE OF A SUMMARY JUDGMENT – A SUMMARY JUDGMENT IS ONE GIVEN IN FAVOUR OF THE PLAINTIFF WHERE THE CASE IS VIRTUALLY UNCONTESTED.
  3. “A summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. By nature, it is one given in favour of a plaintiff without a plenary trial of the action. Evidently, there is a bypass of the regular procedure of the trial court relating the trial of a matter.” PER A. OBASEKI-ADEJUMO, J.C.A.
  4. SUMMARY JUDGMENT – DUTY OF THE COURT IN A SUMMARY JUDGMENT PROCEDURE
  5. “The procedure ensures the preclusion of frivolous defences for purpose of mere delay. Primarily, the court takes into consideration the pleadings, the motions and where necessary, additional evidence adduced by parties to determine whether or not there is a genuine issue of material fact, rather than one of law. See Project Ninetheen Limited & Anor v Aziz/Stacons And Associates (2014) LPELR 23736; Akpan V Akwa Ibom Property Investment Company Ltd (2013) LPELR – 20753; UBA v Alhaji Babangida Jargaba [2007] 11 NWLR (PT.1045) 247; Beloxxi Industries Ltd & Anor v Hwa Tai Industries Berhaard Ltd (2011) LPELR – 3867; Okambah Ltd V Alhaji Ganiyu A. Sule [1990] 11 – 12 SC 47; Thor Ltd v FCMB Ltd [2005] 14 NWLR (Pt.946) 696”. PER A. OBASEKI-ADEJUMO, J.C.A.
  6. DEFAULT JUDGMENT – DEFINITION OF DEFAULT JUDGMENT
  7. “I shall adopt the definition of ‘default judgment” as espoused in U.T.C (Nig.) Ltd V Pamotei (1989) 2 NWLR (PT.103) 244 at 282 – 283, wherein the Supreme Court, PER KARIBI-WHYTE JSC said: “The word default qualifies the noun ‘judgment’ as used in this appeal seems to me to mean a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies. In ordinary parlance, it means not doing what is reasonable in the circumstances” See also Bello v INEC [2010] 8 NWLR (PT 1196) 342 SC; Emezue & Ors v Gov. of Delta State (2014) LPELR – 23201 (CA).” PER A. OBASEKI-ADEJUMO, J.C.A.
  8. SUMMARY JUDGMENT AND DEFAULT JUDGMENT – DISTINCTION BETWEEN SUMMARY JUDGMENT AND DEFAULT JUDGMENT
  9. “Distinguishing between a summary judgment and a default judgment, this court, PER AUGIE JCA in Nasco Town Plc. & Anor v Nwabueze (2014) LPELR – 22526 at 19 – 20 said: “Firstly, a summary Judgment is not the same as a default judgment, which is a judgment rendered in consequence of the non-appearance of the Defendant. A Default judgment is entered upon the failure of a party to appear or plead at the appointed time – See Akinriboya v Akinsole [1998] 3 NWLR (PT.540) 101. Such judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court on application by the Defendant – See Adeloye v Olona Motors (Nig.) Ltd [2002] 8 NWLR (PT.769) 445 and Malgwi v Gadazama [2000] 11 NWLR (PT.678) 258.” PER A. OBASEKI-ADEJUMO, J.C.A.
  10. SUMMARY JUDGMENT – MEANING OF SUMMARY JUDGMENT
  11. “A summary judgment is a judgment on the merits based on legal rights from mere matters of procedure. It is not a judgment based on some procedural error as in failure to enter appearance by a party or file necessary pleadings.” PER A. OBASEKI-ADEJUMO, J.C.A.
  12. DEFAULT JUDGMENT – CONDITIONS FOR SETTING ASIDE A DEFAULT JUDGMENT– ORDER 20 (12) HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES.
  13. “By the tenor of the rules, the trial court will only be competent to set aside a judgment given in default and in this case, such judgment can only be set aside under Order 20 (12) of the rules – on ground of fraud, non-service or lack of jurisdiction.” PER A. OBASEKI-ADEJUMO, J.C.A.

 

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