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: December 7, 2017
NICN/IB/116/2014
Between:
Mr. Alabi Olumide Ademola
———— Claimant
And
- Fareast Mercantile Company Limited
- Mr. James Ibitayo
————- Defendants
Representation:
Ben. T. Ogunjobi for the Claimant.
Ayo Olanrewaju Esq. for the Defendants, but absent at the trial.
JUDGMENT
The claimant filed this Complaint on October 21, 2014 seeking for the following reliefs against the defendants:
- The sum of N1,426,920.00 (One Million, Four Hundred and Twenty Six Thousand, Nine Hundred and Twenty Naira) being his terminal benefits from the 1st and 2nd Defendants for the wrongful termination of his appointment and refusal to pay him his sales incentives.
- The sum of N5,000,000.00 (Five Million Naira) from the 1st, 2nd and 3rd Defendants for causing the Police to harass, intimidate and detain him for three (3) days thus constituting an infringement on his Fundamental Human Rights as enshrined in the 1999 Constitution.
- The sum of N2,000,000.00 (Two Million Naira) as general damages for wrongful termination of the Claimant’s appointment without giving him the mandatory one month notice of intention to terminate the Claimant’s appointment thus, causing him hardship and psychological trauma.
- Cost of this action.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed other processes for their defence of this case in accordance with the Rules of this Court. However, the defendants and their counsel were absent during the hearing of this case despite the fact that they were aware of the day of hearing. They did not also defend this case regardless of the ample opportunity that the Court gave them for that purpose.
The case of the claimant is that he was an employee of the 1st defendant and was employed as an Area Sale Manager for its Ibadan of office. He went on that by the terms of his employment; he was entitled to incentives based on percentage of the sale of the 1st defendant’s products. The claimant was also scheduled to search for prospective customers, educate dealers/key distributors in the merchandise of the 1st defendant’s product and to also train sales representatives on sales skills. The claimant was given an official vehicle to aid his work by the 1st defendant but that the 1st defendant disobeyed its vehicle policy by not maintaining that vehicle for him. The claimant averred further that 1st defendant acting through the 2nd defendant; unlawfully terminated his employment contrary to the terms of his employment.
Even though the defendants filed their statement of defence and all their defence processes, they did not turn up to give evidence on their pleadings. Therefore, the defendants are deemed to have abandoned their pleadings in this case.
During hearing of the case, the claimant testified as CW1 while the defendants were absent and unrepresented; neither did they give evidence on their pleadings despite the service of several hearing notices on them. The defendants were eventually foreclosed to cross-examine C.W.1 and to defend this case. In line with the Rules of this Court, counsel to the parties were directed to file their final written addresses by the Court and only the claimant’s counsel complied with the direction.
CLAIMANT’S ARGUMENTS
In his final written address, counsel to the claimant formulated an issue for determination of the Court this way:
Whether by the fact of this case, the claimant is entitled to the reliefs sought.
Arguing this issue, counsel submitted that the claimant is entitled to judgment in respect of this matter since there is no defence to the claim before the Court. He went on that even though the defendants filed their statement of defence; they were absent in Court on several occasions during the hearing of this matter despite repeated and consistent service of hearing notices on them and that they also failed to lead evidence on their pleadings. To counsel, the defendants are deemed to have abandoned their pleaded defence before the Court. He continued that pleadings are not evidence and that such pleadings cannot be relied upon by the court since the defendants have failed and refused to lead evidence to such averments in Court, citing Orodoegbulam v. Orodoegbulam [2014] 1 NWLR (Pt.1387) P.93 paras. G-H; Yusuf v. Oyetunde [1998] 12 NWLR (Pt. 579) 483 and Consolidated Res Ltd. v. Abofar Ventures Nigeria Ltd.[2007] 6 NWLR (Pt. 1030) pg. 221 at 231 paras A-B.
In addition, counsel submitted that since the defendants deliberately neglected and abandoned their statement of defence before the Court by refusing to lead evidence to their averments in opposition to the claimant’s claims, the Court is permitted under the law to act on the adopted written statements on oath of the claimant’s witness and on the exhibits tendered before this Court as they remain unchallenged and uncontroverted; referring to Owners’ M/V Gongola Hope v. S.C. Nigeria Ltd. [2007] 15 NWLR (Pt. 1056) pg. 189. He continued that failure of the defendants to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness and where the evidence adduced at the trial by the plaintiff remains unchallenged, the trial Court has no alternative but to enter judgment in favour of the Plaintiff, citing Odulaja v. Haddad [1973] 11 S.C. 357; Durosaro v. Ayorinde [2005] 8 NWLR (Pt. 927) 407; Newbreed Organisation Ltd. v. Erhomosele [2006] 5 NWLR (Pt. 974) 499 and Gaji v. Paye [2003] 8 NWLR (Pt. 823) page 603 at 605. Counsel also referred the Court to section 36 of the 1999 Constitution and to the case of Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) pg. 423 at 618 paras C-F. Counsel went on that a party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to allege the Court of denying him of fair hearing. To counsel, the onus of proof on the claimant to establish facts pleaded will be discharged on a minimum of proof where the defendant failed or refused to give evidence. Counsel finally urged the Court to hold that the claimant has proved his case and satisfied the legal standard of proof required of him and the Court can grant the claimant’s claim on a minimum proof.
COURT’S DECISION
I have carefully read through the facts of this case and the argument of the claimant’s counsel; from these I am of the considered view that the only issue for determination here is:
Whether or not the claimant is entitled to the reliefs sought.
Before going into the merit of this case, it is worthy of note that after the defendants and their counsel filed their statement of defence, they stopped coming to Court particularly for the hearing and defence of this case despite the service of several hearing notices on them with proofs before the Court. In the circumstance, the claimant’s counsel submitted that the claimant is entitled to judgment on this matter because the defendants are deemed to have abandoned their defence and conceded to/admitted the claimant’s case.
Order 38 Rules 2 (2) National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is apt on the above scenario and it provides that:
Where a cause is called for hearing and the claimant appears in Court but the defendant or respondent and/or counsel who has entered defence was not in Court and no good cause has been shown for the absence, the Claimant may prove the claim in so far as the burden of proof lies upon the Claimant.
Also, it is a trite that the case of a claimant stands or falls upon his own evidence and not upon the weakness of the defence; because he who asserts must prove, 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 West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 199 paragraphs C-E. See also section 131 of the Evidence Act. Therefore, notwithstanding the fact that the defendants and their counsel were absent during the trial of this case, the claimant still needs to prove to the satisfaction of this Court that he is entitled to the reliefs he is seeking for before the Court; going by the provision of the Rules of this Court and on the decisions in the decided authorities referred to above and I so hold.
WAS THE TERMINATION OF THE CLAIMANT’S EMPLOYMENT WRONGFUL?
The law is that where an employee complains that his employment was wrongly terminated, he has the onus to place before the Court, the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by his employer. See West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-190 paragraphs D-A. In paragraph 14 of the statement of Fact, the claimant avers that the defendants terminated his appointment on June 19, 2014 without giving him a month notice or payment in lieu of same in compliance with terms of employment. The claimant also led evidence through his Letter of Appointment, Document C1; paragraph 6 thereof, which is subtitled “confirmation of appointment” that the termination of the contract of employment by either of the parties requires one month’s notice or payment in lieu thereof. See page 19 of the Court’s record. By Letter of termination of the claimant’s appointment, Document C2 dated 2nd of June 2014; the termination was with effect from June 19, 2014 and has a notice of 17days period; which is devoid of the required one month’s notice. Consequently, I find and hold that the termination of the claimant’s appointment via Document C2 is wrongful.
IS THE CLAIMANT ENTITLED TO HIS MONETORY CLAIMS?
As endorsed on the complaint, the claimant is claiming:
- The sum of N1,426,920.00 (One Million, Four Hundred and Twenty Six Thousand, Nine Hundred and Twenty Naira) as his terminal benefits and his sales incentives.
- The sum of N5,000,000.00 (Five Million Naira) for causing the Police to harass, intimidate and detain him for three (3) days; thus, constituting an infringement on his Fundamental Human Rights as enshrined in the 1999 Constitution.
- The sum of N2,000,000.00 (Two Million Naira) as general damages for wrongful termination without giving him the mandatory one month’s notice thus, causing him hardship and psychological trauma.
- Cost of this action.
The claimant did not show the Court how he arrived at the sum of N1,426,920.00 as his terminal benefits with his sales incentive and he has an obligation to do this. Since the claimant has failed to prove this claim, I hold that the claimant is not entitled to his claim for the sum of N1,426,920.00 against the defendants.
In respect of the claimant’s claim for the sum of N5,000,000.00 against the defendants for causing the Police to harass, intimidate and detain him for three (3) days; thereby, constituting an infringement on his Fundamental Human Rights as enshrined in the 1999 Constitution; this claim was not proved to the satisfaction of the Court as well because there is no tangible evidence before the Court to hinge this claim or the calculation of this claimed sum on. It is trite that he who asserts the existence of a fact must prove same; see the cases of Oyebode v. Gabriel (supra); Alade v. Alic Nig. Ltd. (supra) and Agboola v. UBA (supra). See also section 131 of the Evidence Act. No evidence has been led to prove the averment in pleadings on this claim. In the circumstance, I hold that the claimant failed to prove to the satisfaction of the Court that he is entitled to the sum of N5,000,000.00 against the defendants under this head.
On the claimant’s claim for the sum of N2,000,000.00 as general damages for wrongful termination of his employment, the case of IFETA v. S.P.D.C Nig. Ltd [2006] LPELR-1436(SC): [2006] 8 NWLR (Pt.983) 585 is apt. In that case, the Supreme Court Per Onnoghen JSC (as he then was) at P.40, Paragraphs. A-C held on the proper measure of damages where the Court finds that the termination of an appointment is wrongful that:
It is settled law that in an action for termination of appointment where the Court finds that the termination is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end together with other benefits by way of overtime, rent subsidy etc. in accordance with the terms of the contract of employment.
See also the case of Geidam v. NEPA [2015] 60 NWLR (Pt. 210) 329 at 361 -362 on this same principle of law.
In the claimant’s letter of employment, Document C1 under paragraph 3, which is subtitled “salary and condition” the monthly salary of the claimant while in the defendants’ employment was N130,000.00. Paragraph 6 of the same document subtitled “confirmation of appointment” states that termination of this contract of employment by either of the parties requires one month’s notice or payment in lieu of. From the finding and holding of this Court in the instant case above, the defendant gave the claimant only 17days notice of the termination of his employment instead of one month’s notice, which I have also held to be wrongful. Therefore, I find and hold that, in line with the content of paragraph 6 of the terms and conditions of the claimant’s letter of employment (Document C.1); the claimant is entitled to the sum of N130,000.00 as his payment of one month’s salary in lieu of notice of the termination his employment.
On the whole, I hold and order as follows in this judgment:
- The termination of the claimant’s appointment by the defendants is wrongful.
- The defendants are to pay the sum of N130,000.00 to the claimant as his salary in lieu of notice for wrongfully terminating his contract of employment.
- The defendants are to also pay N60,000.00 cost to the claimant.
- The judgment sum is to be paid to the claimant within 30days from today.
Judgment is entered accordingly.
Hon. Justice F. I. Kola-Olalere
Presiding Judge
