Mr. Echendu Charles Okechukwu -VS- Global Scansystems Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 19th March 2019 SUIT NO. NICN/LA/34/2016

BETWEEN

ECHENDU CHARLES OKECHUKWU CLAIMANT

AND

GLOBAL SCANSYSTEMS LIMITED DEFENDANT

REPRESENTATION:

Mrs. Mmesoma Joy Unaeze for the Claimant

No legal representation for the Defendant.

JUDGMENT

The Claimant in his complaint and statement of claim dated and filed on 26th January 2016 claimed against the Defendant as follows:

An order to the Defendant to pay to the Claimant the sum of N11, 703,951.80 [eleven million, seven hundred and three thousand, nine hundred and fifty-one naira, eighty kobo] only being accumulated wages/salaries, allowances, leave grants and severance benefits from the 30th day of May 2006 to the 29th day of September 2015, being special damages.

Alternatively

An order to the Defendant to pay to the Claimant the sum of N2, 884, 154.73 [two million, eight hundred and eighty-four thousand, one hundred and fifty-four naira seventy-three kobo] only being the sum agreed by the Defendant to be due to the Claimant pursuant to the letter of ceasation [sic] of contract/employment dated the 29th day of September 2015, issued to the Claimant by the Defendant as special damages.

Particulars of special damages

S/N	ITEMS	AMOUNT
1.	4 months outstanding salaries [i.e. May – August 2015	653, 694.01
2.	Outstanding leave allowances [2013 – 2015]	294, 328.13
3.	Outstanding deductions from October 2012 – August, 2015	486, 955.37
4.	End of contract benefit [under the Destination Inspection]	1, 449,177.23
	TOTAL	2, 884,154.73

The sum of N5, 000,000 [five million naira] being general damages for breach of contract of employment, detention of the sum as stated in relief ‘B’ above and the cost of this suit.

The Claimant filed with his complaint and statement of facts a list of witnesses, statement on oath, verifying affidavit, list of documents and copies of the documents. The originating processes were served on the Defendant by pasting on 28th September 2016 and through its Solicitors, Fortress Solicitors, on 24th March 2017. The Defendant did not file any statement of defence and did not take part in the trial in spite of service of hearing notices on it. Trial commenced on 26th November 2018. The Claimant adopted his statement on oath dated 26th January 2016 as his evidence in the suit and tendered 8 exhibits, exhibits 1 to 8. Exhibit 1 is offer of appointment as Data Entry Officer dated 29th January 2006, exhibit 2 is confirmation of appointment, exhibit 3 is renewal of employment, exhibit 4 is his pay slips for November and December 2014, January and February 2015. Exhibit 5 is letter of cessation of contract dated 29th September 2015. Exhibit 6 is request for meeting by the Claimant and other staff of the Defendant. Exhibit 7 is a computer print-out of the Claimant’s Diamond Bank Plc statement of account and exhibit 8 is copy of a letter from Emeka Ozoani & Co. dated 9th November 2015 to the Defendant. The case was thereafter adjourned to 13th December 2018 for cross-examination and defence. On 13th December 2018, the Defendant was absent and unrepresented by Counsel. Due to its absence and failure to file a defence, the Defendant was foreclosed from cross-examining the Claimant and presenting its defence. The case was thereafter adjourned for adoption of final written addresses. On 5th February 2019, learned Counsel for the Claimant, Mrs. Unaeze, adopted the Claimant’s final written address dated and filed on 18th January 2019 as her arguments in support of the claim. The matter was consequently set down for judgment.

COURT’S DECISION

I have carefully considered the processes filed in this suit. The Claimant was employed by the Defendant as Data Entry Officer effective from 31st January 2006 and confirmed on 1st August 2006. His employment was renewed on 1st June 2013 for a period of six months on an annual salary N2, 600,794.74. The contract continued after expiration of six months until it was terminated by the Defendant on 29th September 2015, exhibit 5. After termination of his contract, the Defendant refused to pay the Claimant’s terminal benefits hence this action. The Claimant raised one issue for determination in his final written address to wit, whether on a balance of probability the Claimant has proved his case to be entitled to the reliefs claimed? It was submitted that “on the face of the statement of claim, other accompanying processes and the evidence” before the Court the Claimant has proved his case and entitled to the reliefs claimed against the Defendant. Learned Counsel submitted that to succeed in an action for breach of contract of employment, the Claimant must establish not only the breach but also the existence of an enforceable contract and referred to Best [Nig] Ltd. v Blackwood Hodge Nig. Ltd. & Anor. [2011] LPELR – 776[SC]. She contended that the contract between the Claimant and the Defendant is an enforceable contract as all principles governing the making of a valid contract were met; and the remedy for breach of the contract is damages and relied on Olarewaju v. Afribank Nig. Plc [2001] LPELR – 2573[SC] at page 29. She argued further that where a party alleges wrongful termination of employment, the onus is on him to prove not only the existence of a contract of employment but the terms breached by the employer and referred to Organ & Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2013] LPELR – 20942[SC]. It was submitted that the Claimant has proved existence of an enforceable contract of employment, the terms breached by the Defendant and his accumulated salaries, allowances, leave grants, severance benefits and therefore entitled to damages and referred to Olarewaju v. Afribank Nig. Plc [supra]. Learned Counsel explained that the Defendant was not represented at the trial in spite of service of several hearing notices on it and did not file any defence. She argued that in consequence of this the evidence adduced by the Claimant is unchallenged, uncontradicted and uncontroverted and in such circumstance only a minimum proof is required and relied on Majekodunmi & Ors. v. Ogunseye [2017] LPELR–42547[CA] at pages 53 – 56 and Benic Emodi & Ors. v. Mrs. Patricia C. Emodi & Ors. [2013] LPELR-2122[CA]. It was submitted that as the evidence stands, the Claimant has adduced sufficient facts and documents to prove that there was a valid, existing and enforceable written contract of employment between the Claimant and the Defendant which had been breached by the Defendant. Learned Counsel further submitted that the Claimant has discharged the onus of proof of the contract of employment and its breach albeit the standard of proof cast on the Claimant is a minimal one and urged the Court to answer the question in the affirmative and hold that the Claimant is entitled to the claims stated in his statement of claim.

I adopt the issue for determination formulated by the Claimant with a slight modification, that is, whether the Claimant has proved his case on a balance of probabilities to entitle him to judgment? It is settled law that the burden of proof is on the Claimant who alleges wrongful termination of his employment and he discharges this burden by setting out the terms and conditions of his contract of service and the manner in which it was breached. See sections 131[1] of the Evidence Act 2011 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21 and Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 – 761. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of his claims, see Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. While it is true that the failure of the Defendant to file a defence and cross-examine the Claimant’s witness makes the Claimant’s evidence unchallenged and uncontradicted and liable to be accepted and acted upon by the Court; yet that does not automatically entitle the Claimant to judgment. The evidence presented by the Claimant must on its own support the reliefs sought. Where the Claimant fails to prove his case on a preponderance of evidence, the case must fail notwithstanding the absence of defence. See Mrs. Mulikatu Erinfolami v. Pius Oso [2011] LPELR-15357[CA] at page 18. It is clear from the evidence that this is a case of master and servant. The documents regulating the contract of service are exhibits 1, 2 and 3, offer of appointment, confirmation of appointment and renewal of employment respectively and these are the documents that define the terms of the contract of service. See Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25. The thrust of the Claimant’s complaint is that in terminating his employment the Defendant did not give him the agreed one month’s notice or one month’s salary in lieu of notice. It is also his case that there was a discrepancy between the agreed salary and the salary paid after renewal of his contract; and that since termination of his employment, the Defendant has refused to credit his salary account as usual and the refusal has caused him great hardship and financial embarrassment.

I find as a fact that the Claimant’s previous employment was not formally terminated before a fresh contract was offered to and accepted by the Claimant, exhibit 3. While it is trite law that an employer can terminate the contract with its employee at any time for any reason or for no reason at all, if the termination is not in accordance with the terms of the contract, the termination will be wrongful and the employer is liable to pay damages, which is the agreed period of notice, see New Nigeria Newspapers Limited v. Mr. Felix Atoyebi [2013] LPELR-21489[CA] at pages 79-80. However, the circumstances of this case are different. There appears to be a mutuality of purpose. While the old contract was subsisting, the Defendant offered the Claimant a fresh contract for a fixed term of six months on an enhanced salary package, which offer was accepted without question. By this act, the old contract automatically came to an end by conduct of the parties. Having accepted the renewal of employment without complaint, the Claimant cannot now be heard to complain of breach of contract. See Chitty on Contracts, 29th edition, volume 1, paragraphs 22-034 and 22-046. From June 2013 parties carried on under the new contract without reference to the old contract except for the promise to pay accrued terminal benefits under the old contract. Therefore, the issue of breach of the contract of employment raised in paragraph 5 of the Claimant’s statement on oath does not arise. The Claimant, in my view, has waived his right to insist on one month notice or one month’s salary in lieu of notice, see Duncan Maritime Ventures Nigeria Limited v. Nigeria Ports Authority [2019] 1 NWLR [pt. 1652] 163 at 183, 186. Also, it should be noted that the new contract was for a fixed term of six months, see paragraph one and item 1 of paragraph two of exhibit 3. Ordinarily, where a contract of employment is for a fixed term it is not terminable before expiration of that term. However, parties can agree on length of notice to be given for termination before expiration of the term, see Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & 2Ors. [2008] LPELR-3052[SC] at page 26. This was done in this case. Item no. 4, paragraph 2 of exhibit 3 provides that “During the period of this employment, either party will be at liberty to terminate the employment contract after giving a one month notice or one month salary will be paid in lieu of notice.” This provision, it should be noted, is only applicable where the contract is determined before expiration of the fixed term of six months, which is not the case here. There is nothing before me to show that the Claimant’s employment was terminated before the expiration of the six months term. Accordingly, the claim for wrongful termination of his employment has not been made out. Parties are bound by the terms of their contract. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] 30. This is so notwithstanding that the contract continued after expiration of six months. There is no evidence before me that the terms of the renewed contract were renegotiated.

This leads me to a consideration of the Claimant’s claims. The first relief is for an order to the Defendant to pay to the Claimant the sum of N11, 703,951.80 [eleven million, seven hundred and three thousand, nine hundred and fifty-one naira, eighty kobo] only being accumulated wages/salaries, allowances, leave grants and severance benefits from the 30th day of May 2006 to the 29th day of September 2015, being special damages. There is nothing in the Claimant’s statement on oath or exhibits in proof of this claim. The basis of computation was not set out in the pleading and the Claimant’s statement on oath. What the accumulated wages, salaries, allowances, leave grants and severance benefits are or his monthly salary were not set out in his pleading and statement on oath. Although the Claimant tendered his November and December 2014, January and February 2015 pay slips, exhibit 4, there is nothing in his pleading or statement on oath setting out what his monthly salary should be and what he eventually received. Exhibit 4 set out the gross pay as N175, 195.31 and the net pay after statutory and other deductions was N163, 423.50 for December 2014 to February 2015 and N143, 423.50 for November 2014. The Claimant did not state whether this amount is less than what he should have received and it is not for the Court to speculate what the discrepancy in paragraph 10 of the statement on oath is, see Godwin Okon Ita & Anor. v. The State [2013] LPELR-21392[CA] 28 and Adankwor Etumionu v. Attorney General of Delta State [1994] LPELR-14361[CA] 19. It is settled law that the fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link the document with his case. See Prof. Bukar Bababe v. Federal Republic of Nigeria [2018] 7-10 SC 1 at 122. The Claimant tendered exhibits 6 and 8. Exhibit 6 is merely a request for a meeting and not a demand for payment of any sum. In addition, exhibit 8 does not refer to the Claimant by name and no amount of money was claimed. It is immaterial that reference is made to “employees of Global Scansystems Ltd” in exhibit 8. He is to all intents and purposes a stranger to this document and no benefit inures to him from it. This claim being one for special damages must be specifically pleaded and strictly proved. See U. T. C. Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 34. There is no such proof. The claim therefore fails and it is dismissed.

I will now proceed to consider the alternative claim, which is for the sum of N2, 884, 154.73 [two million, eight hundred and eighty-four thousand, one hundred and fifty-four naira seventy-three kobo] only being the sum agreed by the Defendant to be due to the Claimant pursuant to the letter of cessation of contract dated the 29th day of September 2015, issued to the Claimant by the Defendant as special damages. Again, there is nothing in the Claimant’s pleading and statement on oath in proof of this claim. The evidence in paragraphs 12 and 13 of his statement on oath relates to exhibit 5 which did not admit any amount. It is trite law that a document is tendered to support facts relied on by the pleader, see Brawal Shipping [Nigeria] Limited v. F. I. Onwadike Co. Limited & Anor. [2000] LPELR-802[SC] at page 20 and Mr. Osamata Macaulay Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] at page 41. Exhibit 5 was tendered to prove paragraphs 12 and 13 of the statement on oath and not this claim. The document constituting the admission was not pleaded or tendered in evidence. In the circumstance, it is my respectful view and I so hold that there is no evidence in proof of this claim. This claim therefore fails and it is hereby dismissed.

The next relief is for the sum of N5, 000,000 [five million naira] being general damages for breach of contract of employment, detention of the sum as stated in relief ‘B’ above and the cost of this suit. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. General damages are losses which flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at page 54. I have found earlier in this judgment that there is no proof of breach of the contract of employment by the Defendant. The sum of N2, 884, 154.73 has not been proved to be due and owing by the Defendant to the Claimant. In the circumstance, there is no justification to award general damages against the Defendant. The claim for N5, 000,000 general damages therefore fails and it is dismissed. On cost of the action, cost follows event. However, the Claimant failed to prove his case in its entirety and is therefore not entitled to cost.

Before I conclude, I would like to comment on paragraph 12 of the Claimant’s statement on oath relating to the letter of cessation of contract which is dated 29th September 2015 but made effective on 31st August 2015. It is the law that a letter takes effect from the date of delivery and not otherwise, see Mr. Victor Eka v. Mr. Caleb Adetunji Bodunrin Kuju [2013] LPELR-22124[CA] at page 16, Kayode Bamisile v. National Judicial Council & 3Ors. [2012] LPELR-8381[CA] at page 38 and The West African Examinations Council v. Felix Iwame Oshionebo [2006] LPELR-7739[CA] at page 17. Consequently, a notice of termination of employment takes effect from the date of service of the letter on the employee. The attempt by the Defendant to back date the effective date of the letter of cessation of the Claimant’s employment to 31st August 2015 is wrongful and of no effect. The Claimant having worked till 29th September 2015 when he received the letter of cessation of contract is entitled to his salary for August and September 2015, which he has not claimed in this suit.