IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO
DATED: 18TH OCTOBER, 2019
SUIT NO.: NICN/AK/01//2018
BETWEE N
- IYANIWURA OLATUNDE
CLAIMANT
AND
(1) ACHIEVERS UNIVERSITY, OWO, ONDO STATE
(2) THE VICE-CHANCELLOR, ACHIEVERS UNIVERSITY OWO.
(3) THE REGISTRAR, ACHIEVERS UNIVERSITY, OWO
DEFENDANTS
REPRESENTATION:
AUSTIN FAJUGBAGBE FOR THE CLAIMANT.
FESTUS FATIMEHIN FOR THE DEFENDANT.
JUDGMENT
The Claimant by a Complaint before this Court on the 15th January, 2018 claims against the Defendants as follows:
- A Declaration that the purported termination of the Contract of Employment of the Claimant from the services of the Defendants is unlawful, unconstitutional, invalid, null and void and of no effect whatsoever.
- A Declaration that the purported termination of the Contract of Employment constitutes a flagrant breach of Contract of Employment between the Claimant and the Defendants.
iii. An Order directing the payment of the Claimant Salary & Entitlements from the date of the purported termination until Judgment and thereafter.
- An Order directing the Defendants to pay to Claimant forthwith the sum of N1,728,908.21 (One Million, Seven Hundred and Twenty Eight thousand, Nine Hundred and Eight Naira, Twenty One Kobo) being the outstanding salary arrears which remain unpaid despite repeated demands for its payment.
- An Order directing payment of 10% interest per annum on the judgment sum until same is fully liquidated.
- Cost of this action as may be assessed by this Honourable Court.
vii. Any other relief this Honourable Court may deem to make in the circumstances of this case.
The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, written statement on oath of the claimant, list of witness and documents to be relied upon.
The claimant’s case is that he was employed by the 1st defendant as an Assistant Lecturer (Contract) in the College of Natural and Applied Sciences, Department of Computer and Information System vide a letter of Offer of Appointment dated 16th January, 2012. He averred that having accepted the offer of appointment, the terms of Contract of Employment are embodied in the offer of employment and reveals that management shall not terminate his appointment except by giving him three (3) months’ notice in writing or payment of three (3) months’ salary in lieu of notice.
Claimant further averred that in the course of his work as a lecturer, he was further engaged in teaching and project supervision for Bridge students for 2014/2015, 2015/2016 and 2016/2017 Academic Programmes but his remuneration for his work with the Bridge students in the sum of N383,000.00 (Three Hundred And Eighty Three Thousand Naira) was not paid despite his letter of demand dated 30th October, 2014. The Claimant stated that he was equally engaged by the defendants as Course Manual Writer by a letter dated 25th February, 2014 and his emolument of N40,000.00 (Forty Thousand Naira Only) was also not paid to him despite repeated demands. Added to this is a sum of N274, 662.21 (Two Hundred And Seventy Four Thousand, Six Hundred and Sixty Two Naira, Twenty One Kobo) deducted from his salary by the defendants as pension which ought to have been remitted to his pension Administrator, his 5 months’ salary arrears for the months of April – August 2016, at a sum of N690,500.00 (Six Hundred and Ninety Thousand, Five Hundred Naira).
Claimant averred that by a letter dated 29th September, 2017 from the office of the 3rd defendant titled “REORGANISATION”, he was informed that his services was no longer required effective from 30th September, 2017, the letter reveals that the Bursar is directed to pay him a month salary in lieu of notice, and payment of the arrears of his salaries shall be made in “….due course”.
The claimant averred that he made several demands for his entitlements of N1,728,908.21 (One Million, Seven Hundred and Twenty Eight Thousand, Nine Hundred and Eight Naira, Twenty One Kobo) through his solicitor, Austin Fajugbagbe Esq. to the defendants to no avail, as a result of which his health deteriorated and he was compelled to institute this action.
The claimant asserted that his dismissal was in flagrant breach of his contract of employment with the defendants and contrary to the rules of natural justice.
WHEREOF he claims against the defendants as aforestated.
On the 18th of May, 2018, the defendants filed a Memorandum of conditional appearance, statement of defence, witness statement on oath, list of witness as well as documents to be relied upon at the trial.
In their statement of defence, the defendants denied each and every allegation of facts contained in the claimant’s statement of facts, save and except as specifically admitted.
In reaction to paragraph 9 of the statement of facts, the defendants denied owing the claimant the sum of N383, 000.00 as remuneration for project supervision of Bridge Students. They also stated that the University never deducted any amount from the claimant salary to any pension fund administrator but that the sum deducted was paid into staff contribution to university saving scheme. The Defendants admitted that they owe the claimant 5 months salaries (from April to August 2016) of N690, 502.80, less medical expenses of N2, 400.00 balance of which is N688, 102.80.00 (Six Hundred and Eighty Eight Thousand, One Hundred and Two Naira, Eighty Kobo).
The defendants denied the averment in paragraph 25 of the statement of facts and maintained that they do not owe the claimant a sum of N1, 728,908.21k
The defendants pleaded that the Claimant was employed as a contract staff in January 2012 and due to paucity of fund and other problems affecting the university, the senate of the school decided to embark on a reorganization exercise of the school. In the course of the re-organisation some staff were relieved of their appointment including the claimant. The Defendants stated further that the 5 months’ salary owed to the claimant was not deliberate or meant to punish him, rather the 1st defendant is generally indebted to its present and former employees.
The Defendants averred that they resolved to pay the debts of the University from October 2018, when the university would have resumed for a new session. The defendants stated that the University is not owing the claimant any other sum apart from the N1,235,768.01 (One Million Two Hundred And Thirty Five Thousand Seven Hundred And Sixty Eight Naira One Kobo) listed in paragraph 17 of the statement of defence . The defendants concluded that the claimant ceased to be a staff of the University vide the letter of reorganization issued to him and he is not entitled to any salaries from the university thereafter.
In conclusion, the defendants urged the Court to dismiss this suit for lacking in merit, gold digging and an abuse of Court processes.
The claimant filed a Reply to the defendants’ statement of defence on 3rd October, 2018, wherein he denied paragraphs 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20 and 21 of the statement of defence.
The claimant maintained that the defendants did not follow the terms and conditions of his employment in the determination of his appointment. He also affirmed that the defendants are owing him N1,728,908.21 as his outstanding entitlements and not the N1, 235,768.01 admitted by the defendants. He maintained that he is still a staff of the defendants until his appointment is properly terminated. He reiterated that the defence in this suit is unmeritorious and should be discountenanced.
The trial in this case commenced on 26th April, 2018 with the claimant testifying for himself as CW1. He adopted his sworn statement on oath and tendered several documents which were admitted in evidence and marked Exhibits IO1 – IO8. He was duly cross examined on the 29th November, 2018 by the defence counsel. The defendants on the other hand opened their defence on the 27th of February, 2019. They called one Oladokun Farinre – The Bursar – as DW1. He gave evidence and was cross examined.
The defence closed its case and the case was adjourned for adoption of final written address. The parties in this suit adopted their addresses on the 18th July, 2019, and the case was thereafter adjourned for Judgment.
In the defendants’ final written address dated 3rd May, 2019, Wumi Fabuluje Esq. of counsel for the defendants formulated two (2) issues for determination to wit:
- Whether an action can be maintained against a non-juristic person.
- Whether the claimant has proved his case to entitle him to relief as claimed from the court.
On issue one, the counsel submitted that an action cannot be maintained against a non-juristic person in law; as only a natural or artificial person can sue or be sued. He cited the case of Gani Fawehinmi Vs NBA (1989) 2NWLR pt.105 @494, and submitted that Achievers University, Owo is not a juristic person, as the University was not registered with the Corporate Affairs Commission, and is not a company, he added that Achievers University was licensed by National University Commission and can only be sued through its parent body that was duly registered with Corporate Affairs Commission Abuja. Counsel further submitted that the 2nd and 3rd Defendants are staff of the 1st defendant and were so employed by the 1st Defendant just like the Claimant he therefore argued that the 2nd and 3rd Defendants are not liable in this and were wrongly joined in this suit. Counsel reiterated that the law is settled that a non-juristic person generally cannot sue or be sued. He cited the case of Agbonmagbe Bank Ltd Vs General Manager G.B. Olivant Ltd &ors (1961) 1ALL NLR 116; (1961) 2SCNLR 317, and urged the court to hold that the Defendants are non-juristic persons in law and as such, an action cannot be maintained against them.
On issue two, counsel submitted that although the defendants admitted owing the Claimant his entitlements and part of the claim in this suit, this admission of part of the claim will not clothe the defendants with juristic personalities where they have none, as an agreement of parties will not confer jurisdiction on the court, he cited Okolo vs Union Bank of Nigeria Ltd [2004] 3NWLR (pt.859) 87 @108 in support of his argument.
Learned Counsel to the defendants argued that the Claimant has not proved his case to entitle him to the reliefs claimed before this court and the specific sum of N1,728,908.21k. He added that the amount itemised in the Claim does not tally with the total sum arrived at in the reliefs, i.e. there was a discrepancy between the amount itemised and the total figure arrived at by the claimant in his paragraphs 9, 11, 13 and 15. He argued further that nowhere in the claimant’s pleading is this discrepancy explained. He added that the Defendant admitted owing the Claimant a sum of N1,235,768.01k (One Million, Two Hundred And Thirty Five Thousand Seven Hundred And Sixty Eight Naira One Kobo) as contained in paragraph 18 of the statement of defence, and the breakdown was contained in paragraph 17 of the statement of defence. Pursuant to this, he stated that the Claimant brought a motion for judgment in respect of the admitted sum which was granted by this court. Learned counsel for the defendants therefore posited that the Claimant never proved the balance of his claim of N493, 104.20k (Four Hundred and Ninety Three Naira One Hundred and Four Naira Twenty Kobo), after deducting the admitted sum by the Defendants from the total sum claimed by the claimant in this suit.
The defence counsel pointed out that the Claimant admitted under Cross Examination that he had left the employment of the Defendant with effect from 30th September, 2017. Claimant also reiterated that he is not asking for reinstatement but the payment of his salaries from the date of termination to the date of judgment, the defence counsel however submitted that the claimant did not place any facts before this court to justify this entitlement and urged this court to refuse this relief.
On the fifth and sixth reliefs, the counsel contended that the claimant is asking for 10% interest per annum on the judgment sum and cost of this action, he submitted that these are special damages that needs to be proved specially. He queried the claimant’s claim for interest and asked whether the interest claimed is for the amount admitted by the 1st Defendant for which judgment was entered or the balance remaining which was never proved. He submitted further that the claim for interest and cost are special claims that needs to be specifically proved and cited the case of Ilokson & Co (Nig) Ltd V Union Bank of Nigeria Plc (2009) 1NWLR (Pt.1122) page 276 at 314 Paras B-C, the claimant having failed to adduce any evidence in proof of these reliefs , same should be discountenanced by the Court. In conclusion, counsel submitted that once issue one as canvassed by him is resolved in the defendants favour, all other issues will go with the case, he urged the court to uphold his arguments as contained on issues one and two and dismiss the case of the claimant.
Austin Fajugbagbe Esq of counsel for the claimant, adopted his final written address dated 16th July, 2019 and filed 17th July, 2019. In the address, the claimant formulated two issues for determination to wit:
(i) Whether the termination of the Appointment of the Claimant is a breach of contract of Employment between the Claimant and the Defendants.
(ii) Whether the Claimant has proved his case before this Honourable Court to entitle him to his claims.
On issues one and two, counsel submitted that in proving the Claimant’s assertion of breach of his Contract of Employment with the Defendants, recourse will be made to the nature of the Claimant’s employment. He cited the case of CBN & Anor v. Igwilo [2007] 11 SCM Pg. 69, and referred to Exhibit IO1 which is the offer of appointment letter issued to the claimant. He also submitted that the nature of the Claimant’s employment with the Defendants is that of master and servant which is terminable on notice. He posited that the principle of law on master/servant relationship is that an employer can terminate the service of an employee at any time, after the appropriate length of notice stipulated in the contract of employment is complied with otherwise, such length of notice deemed by the court to be reasonable in the circumstance of each case, in the absence of any express provision for length of notice in the contract of service, he thereafter cited Idufueko v. Pfizer Products Ltd & Anor [Supra].
The Claimant’s counsel referred the Court to the Claimant’s Exhibit IO1 which provides that the claimant’s appointment is terminable by three months notice and reiterated that having established that the Claimant’s employment is one of master/servant, the Court has to confirm if this condition was adhered to. The claimant’s counsel referred to paragraph one of Exhibit IO4 tendered by the claimant, which disclosed that the length of notice given to the Claimant was 24hours and paragraph 4 of same also reveals that the Claimant will be paid a month salary in lieu of notice, while the payment of the arrears of his salaries shall be made in due course. Learned Counsel argued therefrom that the action of the Defendants in not adhering to the terms and conditions of employment amounted to a flagrant breach of Exhibit 1O1.
Learned counsel pointed out that the Defendants by their paragraphs 17 and 18 of their Statement of Defence filed on 18th May, 2018 already admitted the sum of N1,235,768.01 (One Million, Two Hundred and Thirty–Five Thousand, Seven Hundred and Sixty-Eight Naira, One Kobo) as their indebtedness to the Claimant and their averment that the university is not owing the claimant any other sum apart from admitted sum, of which a decision was made to pay the claimant as from October, 2018. He stated that It is settled law that admitted fact needs no further proof and following the application brought by the Claimant in this suit, which was filed on 3rd October, 2018, this Court entered Judgment on the 5th day of November, 2018, and ordered the Defendants to pay the claimant the sum of N1,235,768.01 k (One Million and Two Hundred and Thirty-Five Thousand, Seven Hundred and Sixty-Eight Naira, One Kobo) as admitted in paragraphs 17 and 18 of the Statement of Defence. He submitted that an Order or Judgment of a Court of law is valid and subsisting until same is set aside. He noted that till date the Defendants are yet to comply with the said judgment or take any step towards the payment of the judgment sum despite repeated demands by the claimant. This action of the Defendants, he noted is contemptuous, and he urged the court to make an order mandating the Defendants to pay the Judgment sum within 7 days in this judgment.
Counsel submitted that from the pleadings and evidence adduced on same before this court, the Claimant has proved his case to entitle him to a grant of his reliefs.
In response to issue one formulated by the Defendants, i.e. on whether or not the 1st Defendant is a juristic person, the Claimant’s counsel submitted that it is trite that he who asserts must prove. He referred the Court to Section 131 of Evidence Act, 2011 and concluded that the onus is on the Defendants to disclose to this Court the “parent body” under which they are operating, and this duty can only be discharged by pleading the name in their Statement of Defence and frontloading credible documents in that regard. He stated that the document must itself be admitted to disprove the fact that the Defendants are actually not juristic persons, and argued that the Defendants cannot merely state that they are not juristic persons, they must plead and frontload the documents in proof thereof before the Court.
Finally, the counsel urged the Court to hold that the Claimant has proved his case and consequently, he is entitled to his claims.
I have thoroughly read all the processes filed by counsel for both parties in this suit, studied the testimony of the witnesses called and Exhibits tendered and I have come up with the following issues, which will best determine this suit to wit:
- Whether or not this Court has jurisdiction to entertain this suit;
- Whether or not the claimant is entitled to his claims.
On issue one, it is trite that jurisdiction is a fundamental issue as it touches on the competence of the court to adjudicate on a matter. In CBN v. Auto Import Export& Anor [2012] LPELR-7858 (CA), the Court of Appeal per Saulawa, J.C.A held thus:
“It is equally a well settled principle, that where a court lacks jurisdiction to try a matter or case, it fundamentally lacks the vires to hear, and adjudicate upon any issue therein. Thus, due to the complex and fundamental nature thereof, the issue of jurisdiction can be raised at any stage and point in time of the proceedings, at the trial court, the Court of Appeal, or even the apex court itself.” see also the cases of Ogumka v. CAC [2010] LPELR-4891 (CA); NEPA V. Auwal [2010] LPELR-4577 (CA).
Learned counsel to the defendants in his address contended that Achievers University, Owo is not a juristic person in law, as the University is not a company duly registered with the Corporate Affairs Commission, and that Achievers University was merely licensed by National University Commission and as such it is not a juristic person in law, defence counsel added that Achievers University can only be sued through its parent body that was duly registered with Corporate Affairs Commission Abuja. He maintained that the 2nd and 3rd Defendants are employees of the 1st Defendant and are therefore not juristic person, thus they were mis-joined in this suit. Counsel to the claimant on the other hand contended that the onus is on the Defendants to show this Court the identity of the “parent body” under which the 1st defendant is registered, and this duty can only be discharged by pleading the registered name and frontloading credible documents in proof thereof to disprove the assertion that the Defendants are juristic persons.
It is a well settled legal principle that a party who has a right to commence or defend an action in Court must be a person known to law, be it a natural person or a creation of statute. See Carlen (Nig.) Ltd v. Unijos [1994] 1 NWLR Pt.323 pg. 631.
The defendants made heavy weather about the 1st defendant not being registered with the Corporate Affairs Commission and having a parent company but did not deem it fit to place before this court the name of the parent company or the name with which they should legally be addressed to entitle them to a juristic status. The law is clear and settled that he who asserts must prove. See Section 131 of the Evidence Act 2011, Peter Ojoh v. Owiala Kamalu &Ors [2005] LPELR-2389 SC and this court is precluded from going on a voyage of discovery to fish out evidence for parties. See the case of Habib Nig. Bank Ltd v. Giffs Unique Nig. Ltd [2005] All FWLR (Pt.241) 234 at 253 (CA). It is a long standing rule of judicial adjudication that no cause or matter shall be allowed to be defeated by reason of mis-joinder or non-joinder of parties as such mis-joinder or non-joinder is not fatal to the proceedings. A court of law is enjoined in such cause or matter, to deal with the matter in controversy in so far as it regards the right and interest of the parties actually before it. See CBN v. Joseph Azoro [2018] LPELR-44389 (CA); Bello v. INEC [2010] 8 NWLR (Pt 1196) 342.
Moreover, it is obvious that the 1st defendant is recognized and registered by a statutory body i.e The National University Commission and the 2nd & 3rd Defendants are necessary parties whose presence is necessary for the just determination of this suit, in Dr Thompson Ndubuisi Obarezi V. Chief Osita Ilozor & Anor 2010 LPELR 4667 Ca, it was held per Ngwuta J.C.A as he then was, as follows:
“A necessary party to an action is one in whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter, same one whose presence is necessary as a party”.
Also in R.T.N.A & ORSV.M.H.W.U.N 2008 NSCQR Pt1 321Mukhtar J.S.C held:
“All those who claim some share or interest in the subject matter of the suit, or who may be affected by the result, as well as those who the court will join even suo motu, are necessary parties, for their presence before the court may be necessary in order to enable the court, effectively and completely, to adjudicate upon and settle all the questions involved or in controversy”.
It can therefore be deduced from the above cited authorities that the 1st, 2nd & 3rd Defendants have a vital role to play in this suit as the 2nd defendant is charged with the general administration of the 1st Defendant while the 3rd Defendant issued the offer of employment letter to the claimant on behalf of the university.
I find therefore that this court has the requisite jurisdiction to adjudicate in this suit for the aforesaid reasons. I so hold.
On issue two, as to whether the claimant is entitled to the reliefs sought, I will examine the claims of the claimant one after the other. Claim one is for a Declaration that the purported termination of the Contract of Employment of the Claimant from the services of the Defendants is unlawful, unconstitutional, invalid, null and void and of no effect whatsoever.
The question of whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. The duty to construe is within the exclusive preserve of the Courts. Where the contract of employment is determinable by the agreement of the parties simpliciter, it cannot be equated with employment with statutory flavour. See the case Fakuade v. OAUTHC [1993] 5 NWLR (Pt. 291) 47.
It is obvious from the facts and claims before this Court that the employment of the claimant is not one with statutory flavour but purely a master/servant relationship. In CBN. v. Igwillo [2007] 14 NWLR (Pt. 1054) 393; the Court explained the 3 categories/types of employment, as those regarded as purely master and servant; those where a servant holds office at the pleasure of the employer and those where the employment is regulated or governed by statute. In Layade V. Panalpina World Transport (Nig) Ltd [1996] 6 NWLR (Pt.456) 544. The Apex Court held thus-
”Apart from those employments governed by statutory provision e.g. employment in civil service of statutory bodies where termination must follow the provisions of the relevant statutes. (Olaniyan v. University Of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University Of Lagos (1986) 4 NWLR (Pt. 34) 162 193/194, the master in other cases can terminate for good or bad reasons subject to remedies of compensation where applicable for wrongful dismissal” PER BELGORE, J.S.C. (P. 16, Paras. E-G).
It is therefore obvious from the above cited authority that it is only an employment governed by statute that can be accorded certain rights and remedies. It is trite that in a master servant relationship, an employee can only sue for wrongful termination and not unlawful termination because it is not protected by statute. Also the defendants reserve the right to terminate the employment of the claimant for good, bad or no reason at all so long as they comply with the contract of employment.
In the instance case, Exhibit IO1 particularly paragraph 3 provides thus:
“….As an academic staff, you may not withdraw your service except by giving Management a minimum of three (3) months’ notice in writing, the notice which shall terminate with the end of an academic session, or payment of one year basic salary in lieu of notice to the University. Management shall not terminate your appointment except by giving you three (3) months’ notice in writing or payment of three (3) months’ salary in lieu of notice.”
A scrutiny of Exhibit IO4, particularly at paragraph 4 reveals thus:
“The Bursar is directed to pay you a month salary in lieu of notice, and the payment of the arrears of your salaries shall be made in due course.”
The law is trite that parties are bound by the terms of agreement freely entered into by them. See Olude v. Adeeso [2015] LPELR-25587 (CA),Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA). Okonkwo v. CCB (Nig) Plc [2003] 8 NWLR (Pt.822) page 382. The only function of the Court is to interpret the agreement in enforceable terms without more, See the case Arta Industries Limted v. N.B.C [1997] 1 NWLR (Pt. 483) Pg 593, para F.
It is clear from the facts and the evidence available before this Court that the defendants did not follow the terms of agreement between the parties before terminating the employment of the claimant, i.e. their failure to issue the three month notice or payment in lieu of notice, as prescribed in Paragraph 3 of Exhibit IO1, no doubt constituted a breach of the terms prescribed in the contract of employment between parties. It is premised on this that I find that the termination of claimant’s employment by the defendants in this suit is wrongful but not unlawful. I so hold.
Claim 2 is for a Declaration that the purported termination of the Contract of Employment of the claimant constitutes a flagrant breach of Contract of Employment between the parties. I have already held earlier in this Judgment that the defendant breached the contract of employment and wrongfully terminated the appointment of the claimant. Thus, it follows that this relief succeeds. I so hold.
Claim 3 is for an Order directing the payment of the Claimant Salary & Entitlements from the date of the purported termination until Judgment and thereafter. It is settled law that in a matter of wrongful termination of appointment, the claimant is only entitled to damages and nothing more. See IFETA V. S.P.D.C (NIG) LTD [2006] 8 NWLR (PT.983) 585, the Supreme court held that:
“The position of the law therefore is that where there has been a purported termination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made”.
Therefore, this Court is precluded from ordering a reinstatement of an employee in a master/servant relationship as in the instant case and thus, the claim for salaries from the date of termination until the date of judgment is bound to fail as it is trite that a worker is only entitled to salaries for work done and reinstatement can only be ordered in a statutory employment. See Olatubosun v. NISER [1999] LPELR-257 SC.
I have also held earlier in this judgment that the defendants wrongfully terminated the employment of the claimant on the ground that he was given a month’s salary in lieu of notice as opposed to the three months salary in lieu of notice specified in the contract of employment. The implication of the above is that the claimant is entitled to the remaining balance of two month’s salary in lieu of notice. The salary of the claimant is stated in Exhibit IO8 while the monthly gross salary of the Claimant is N106, 523.12 (One Hundred and Six Thousand, Five Hundred and Twenty-Three Naira, Twelve kobo) his net salary is N89,182.14k I find that the claimant is entitled to two months net salary in lieu of notice calculated as follows: N89,182.14k p.m X 2 months = N178,364.28k.
The defendants are therefore to pay to the claimant the sum of N178,364.28k (One Hundred and Seventy Eight Thousand, Three Hundred and Sixty-Four Naira, Twenty-Eight Kobo) as the remaining two months salary in lieu of notice for the wrongful termination of his employment. I so hold.
Claim 4 is for an Order directing the Defendants to pay to Claimant forthwith the sum of N1,728,908.21k (One Million, Seven Hundred and Twenty Eight Thousand, Nine Hundred and Eight Naira, Twenty One Kobo) being the outstanding salary arrears which remain unpaid despite repeated demands for its payment.
On the 5th of November, 2018 this court upon the application of the claimant, entered judgment against the defendants to pay the sum of ₦1,235,768.01k (One Million, Two hundred and Thirty Five Thousand, Seven Hundred and Sixty Eight Naira, One Kobo) to the claimant, as admitted in paragraphs 17 and 18 of their statement of defence.
As to the remaining balance of the claim of the claimant, this was disputed by the defendants and they argued that the Claimant never proved the difference between his claim and the admitted sum, which is a difference of N493,104.20k (Four Hundred and Ninety Three Naira One Hundred and Four Naira Twenty Kobo), they therefore argued that the claimant should not be entitled to the total sum claimed. The claimant on the other hand contended that judgment has already been entered against the defendants based on their admission of owing him ₦1,235,768.01k (One Million, two hundred and thirty five thousand, seven hundred and sixty eight naira, one kobo), but the Defendants till date have not complied with the Judgment of this Court delivered 5th November, 2018. Counsel to the claimant however did not address the difference and discrepancy pointed out in the claim as contended by the defendants.
The law is trite that pleadings in respect of which no evidence is led are deemed abandoned. See the case of Orlu v. Onyeka [2018] 3 NWLR Pt 1607. 467@ 489 para C-G. The claimant failed to lead evidence in proof of the remaining balance sum in this instance, and since the claim falls within the realm of special damages, which must be concisely and specifically proven, the claim stands unproven. It is upon this reasoning that I find that the claim for the balance sum fails. I so hold
It is worthy of note that the defendants admitted owing the claimant the sum of ₦1,235,768.01 k (One Million, two hundred and thirty five thousand, seven hundred and sixty eight naira, one kobo) in paragraph 17 of their statement of defence as noted earlier, this comprises of the following:
(1) Unpaid salaries – April to August 2016 @ N138,100.56 (net) per month 690,502.80
Less Medical Expenses (2,400.00) 688,102.80
(2) STAFF CONTRIBUTION TO UNIVERSITY’S SAVING SCHEME
(a) April 2013 to December 2014 at N7,431.85 per month
156,068.85
(b) January 2015 to December 2015 @ N9,883.03 per month
118,596.36
274,665.21
(3) PART-TIME WAGES (BRIDGE PROGRAMME)
(a) 1st Semester (2015/2016) less 5% Withholding Tax
76,000.00
(b) 2nd Semester (2015/2016) less 5% Withholding Tax
76,000.00
(c) 1st Semester (2016/2017) less 5% Withholding Tax
76,000.00
228,000.00
(4) PROJECT SUPERVISION HONORARIUM
(a) 2015/2016 (7 students at N3,000.00 per student)
21,000.00
(b) 2016/2017 (8 students at N3,000 per student)
24,000.00
45,000.00
The judgment of this court was entered on the 5th of November, 2018 based on the admitted sum of ₦1,235,768.01k (One Million, Two Hundred and Thirty-Five thousand, Seven Hundred and Sixty Eight Naira, one kobo) upon the application of the claimant/Applicant without any objection from the defendants. The judgment still subsists in this suit against the defendants, as a decision of court remains valid until it is set aside. I therefore find no reason to tamper with the subsisting Judgment of this Court.
Claim 5 is for 10% (ten per cent) interest per annum on the judgment debt/sum until same is finally liquidated, I hold that this claim succeeds as it is meritorious and same can be awarded at the discretion of the court see Order 47 Rule 7 of the National Industrial Court (Civil Procedure) Rules, 2017.
It is premised on the above stated that I find and hold that the Claimant’s claims succeed in part and for the avoidance of doubt I declare and order as follows:
- That the termination of the Claimant’s employment by the defendants is wrongful.
- That the termination of the Contract of Employment constitutes a flagrant breach of Contract of Employment between the Claimant and the Defendants.
- The claimant is entitled to the sum of N178,364.28k(One Hundred and Seventy-Eight Thousand, Three Hundred and Sixty-Four Naira, Twenty –Eight Kobo) as the remaining two months salary in lieu of notice to be paid by defendants.
- All sums awarded in this suit are to be paid within 21 days from the date of this judgment, failing which a++++ 10% (ten per cent) interest per annum is to be paid on the judgment debt/sum until same is finally liquidated.
A cost of N100,000.00k is awarded as cost against the defendants
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
