LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

MR. OLAYIWOLA AKANJI POPOOLA -VS- ACHIEVERS UNIVERSITY

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

DATED: 1ST JULY, 2019                                 SUIT NO: NICN/AK/25/2017

BETWEEN

  1. OLAYIWOLA AKANJI POPOOLA   CLAIMANT

AND

ACHIEVERS UNIVERSITY                                                              DEFENDANT

 

 

REPRESENTATION:

  1. B. ABIOLA APPEARS FOR THE CLAIMANT

FESTUS FATIMEHIN HOLDING THE BRIEF OF WUMI FABULUJE FOR THE DEFENDANT

JUDGMENT

The Claimant by a Complaint before this Court on the 6th September, 2017 claims against the Defendant as follows:

  1. A DECLARATION that the neglect and/or refusal by the Defendant to pay the claimant his salaries and entitlement as at when due constitute a breach of contract.

 

  1. A  DECLARATION that the refusal by the defendant to remit the claimant’s pension deductions and entitlements into the claimant’s pension account is criminal, illegal and unlawful.

 

  1. A DECLARATION that the claimant is entitled to the sum of N1,306,787.06 (One million, three hundred and six thousand, seven hundred and eighty seven naira, six kobo) being the total of the claimant’s outstanding salaries and pension deductions and entitlement.

 

  1. AN ORDER of this Honourable Court directing the defendant to pay to the claimant the sum of N543,889.24 (Five Hundred And Forty Three Thousand, Eight Hundred And Eighty Nine Naira, Twenty Four Kobo) being the outstanding monthly salaries owed the claimant.

 

  1.  Interest on the said sum of N543,889.24 (Five Hundred And Forty Three Thousand, Eight Hundred And Eighty Nine Naira, Twenty Four Kobo) at the rate of 21% per annum from October 2016 until judgment is delivered and thereafter at the rate of 10% until the judgment is satisfied.

 

  1. AN ORDER directing the defendant to pay to the claimant or remit to the claimant’s pension account the sum of N762,897.82 (Seven Hundred And Sixty Two Thousand, Eight Hundred And Ninety Seven Naira, Eighty Two Kobo) being the claimant’s total pension deductions and entitlement.

 

  1. Interest on the said sum of N762,897.82 (Seven Hundred And Sixty Two Thousand, Eight Hundred And Ninety Seven Naira, Eighty Two Kobo) at the rate of 21% per annum until judgment is delivered and thereafter at the rate 10% until the judgment is satisfied.

 

  1. The sum of N500,000.00 (Five hundred thousand naira) being the cost of this action.

The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendant filed a memorandum of appearance, statement of Defence and other accompanying processes on the 11th July, 2018.

The Claimant’s case is that he was offered employment as Lecturer II in the College of National and Applied Sciences on the 11th November, 2013, by the defendant which he accepted and resumed work immediately at the Medical Laboratory Department of the Defendant.

Claimant stated that he was on a salary of N135,970.06 (One Hundred And Thirty Five Thousand, Nine Hundred And Seventy Naira, Six Kobo) per month by the time he resigned his appointment with the defendant in January 2017, he relied on his October 2016 pay slip.

He averred further that the defendant was nonchalant towards his welfare by neglecting and/or refusing to pay his salaries and entitlements from October 2016 to January 2017.  The Claimant averred that this subjected him to an extreme economic hardship and deprivation as he was unable to cater for his family.

He also alleged that the defendant refused to remit both his personal and statutory pension contributions to his pension account of which sum added up to the arrears of his salaries makes up the sum of N1,306,787.06 (One Million Three Hundred and Six Thousand, Seven Hundred and Eighty Seven Naira Six Kobo) in total as captured in his claim. The claimant made several demand for his entitlements all to no avail, which prompted him to resign, he later wrote a letter of demand through his solicitor which was also ignored by the defendant.

WHEREOF he claims against the defendant as aforestated.

 

The Defendant in defence of this suit filed a Memorandum of Conditional Appearance On the 11th day of July, 2018, a Statement of Defence, Witness Statement on Oath, List of Witnesses as well as List of Documents to be relied upon at the trial.

The defendant admitted that the claimant was employed as Lecturer II in 2013, but denied that it is owing the claimant, salaries for October 2016 to January 2017. The defendant stated further the deductions made from the salaries of the claimant is known as Staff Contribution to University’s Savings Scheme and that the total money deducted from his salaries for the scheme is N293,649.46 as of date and itemized as follows:

  1. December 2013 at N8,062.62                                            –               8,062.62
  2. January – December 2014 at N6,616.52              –             79,398.24
  3. January – December 2015 at N10,309.43                        –           123,713.16
  4. January – March 2016 at N10,309.43                               –             30,928.29
  5. September – December 2016 at N10,309.43k                 –             41,237.72
  6. January 2017 at N10,309.43k                                            –             10,309.43

TOTAL                                               –      N293, 649.46

(Two Hundred and Ninety Three Thousand, Six Hundred and Forty Nine Naira, Forty Six Kobo)

Whereof the defendant urged the court to dismiss this suit for lacking in merit, gold digging and an abuse of court processes.

Counter-Claim

The defendant counter-claimed against the claimant on the ground that the claimant’s letter of appointment, contains a condition precedent to his withdrawal/resignation of his appointment from the defendant, i.e. a minimum of three (3) months written notice to terminate at the end of an academic session

or payment of one-year basic salary in lieu of notice to the defendant.  The counter claimant stated that the claimant in defiance of this condition resigned on 25th January, 2017 without notice and with immediate effect.

The defendant/counter-claimant therefore claims one (1) year basic salary of N907, 230.00k in lieu of notice from the claimant as captured in the counter claim as follows:

  1. An Order declaring that the resignation of the Defendant in the employment of the Counter-Claimant on 25th day of January, 2017 never followed the provision as stated in the letter of offer of appointment given to the Defendant by the Claimant.

 

  1. An Order for the payment of N907,230.00 by the Defendant to the Counter-Claimant being the one year basic salary in lieu of notice of his withdrawal of service from the employment of the Counter-Claimant.

 

  1. Cost of this action.

The claimant filed a Reply to the Statement of Defence and Defence to Counter-Claim wherein he joined issues with the Defendant on its defence and counter-claim.

The claimant reiterated that the Defendant never paid his salaries for October 2016 to January 2017, and that he was not aware of any staff contribution to any savings scheme the defendant was operating, he also denied all the averments in the Statement of Defence.

The claimant stated further that the refusal of the Defendant to pay the claimant’s salary as at when due was a breach of the terms of employment.

He urged the court to dismiss the counter-claim for lacking in merit and with substantial cost.

The trial in this case commenced on 13th February, 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 O1 – O5 and he was duly cross-examined.

The defendant opened its defence on the 28th of January, 2019, and called one Oladokun Farinre as DW1, he testified and tendered several documents as exhibits that were admitted and marked as Exhibit AU1(i) & (ii) – AU6, he was thereafter cross-examined.  The Defence closed its case and the case was adjourned for the adoption of final written addresses.

The parties adopted their addresses on the 9th April, 2019, and the case was adjourned for Judgment.

In the defendants’ final written address dated and filed on 8th April, 2019, counsel for the Defendant formulated two (2) issues for determination to wit:

  1. Whether the Claimant has placed enough and sufficient facts before             this honourable court to entitle him to his claim before this court.

 

  1. Whether the Defendant/Counter-Claimant has placed enough and     sufficient facts before this court to entitle it to its claim.

 

On issue one, the Defendant submitted that the Claimant did not place enough facts and materials before the court to entitle him to judgment in this suit.

 

Wunmi Fabuluje Esq of counsel to the defendant submitted that the non-payment of the Claimant’s salaries was not deliberate or an attempt to punish him.  DW1 testified under cross examination that the Defendant was in financial distress and was unable to pay salaries of its staff for the months of April to August, 2016. This he stated affected all the staff of the Defendant. DW1 testified further under cross examination that the Defendant will pay the arrears of April to August, 2016 as soon as the funds are available. Counsel submitted that the Claimant salaries for September, 2016 to January, 2017 were duly paid into his account. DW1 tendered the staff salary schedules i.e. Exhibit AU1- AU6 and stated that the claimant is not owing the claimant salaries for the months he is claiming but posited that the claimant may likely be amongst the staff the defendant is owing arrears of Salary for  April to August, 2016.

 

Learned Counsel for the defendant argued that non-payment of the Claimant’s salaries cannot amount to breach of contract because as at January 2017 when the Claimant tendered his resignation letter, he still received his salary.

 

On issue of Pension deductions, the Defendant’s counsel submitted that the defendant is yet to take any decision on the issue of contributory pension as an institution, hence the deductions being made by the school was for the University saving scheme which he professed is not illegal and the claimant is entitled to claim same. On the claim for interest, counsel argued that no evidence was led to justify this relief, as this must be specifically pleaded and proved with credible evidence.  He relied on ILOKSON & CO (NIG) LTD V UNION BANK OF NIGERIA PLC (2009) 1NWLR (PT.1122) PAGE 276 AT 314 PARAS B-C, and urged the court to discountenance the claim for interest and the argument of the claimant’s counsel that failure to remit pension

 

contributions of the claimant is unlawful, illegal and criminal.  The defendant’s counsel also urged the court to discountenance the claim for cost.

 

On issue two, defence counsel posited that the Defendant/Counter-Claimant has placed sufficient facts before this court to entitle it to the counter-claim before this court.  He submitted that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. He cited the case of BANK OF THE NORTH VS ALIYU (1997) 7NWLR (PT.612) PG 622, and submitted that it is clearly spelt out in the claimant’s letter of appointment that before he can withdraw/resign his appointment, he must give the defendant a minimum of three (3) months’ notice in writing which is to terminate at the end of an academic session or pay to the defendant one year basic salary in lieu of notice and parties are bound to respect the sanctity of the contract, he relied on the following cases; ARTRA INDUSTRIES (1998) 4NWLR (PT.546) PAGE 357 SC AT PAGE 376 PARA E per Onu JSC and JERIC (NIG) LTD V-UNION BANK NIGERIA PLC (200) 15 NWLR (PT.691) PAGE 447 SC AT PAG E 462-463 PARAS G-A.

 

Learned counsel argued that the Claimant’s resignation from the defendant was with immediate effect and without notice and in flagrant disobedience of the contract of employment between the parties, he therefore argued that the defendant is entitled to the Counter-Claim i.e. one year basic salary in lieu of notice to the university, he added that the evidence of the defendant on this is unchallenged and once evidence in any proceeding is not challenged the court is at liberty to act on such.  Learned counsel relied on the cases of ODULAJA VS HADDAD (1973) 11 SC 35; MOBIL PRODUCING NIG UNLIMITED VS MONOKPO (N0.2) (2001) FWLR (PT.78) 1210 and UBN LTD VS OGBOH (1995) 2 NWLR (PT 380) P.647@654 & 669 and urged the court to hold that the counter-claim is proven.

 

In conclusion, the defendant’s counsel urged the court to dismiss the Claimant’s case and grant the counter-claim.

 

The claimant’s counsel final written address dated 8th April, 2019 was filed on the 9th of April, 2019, and adopted at the hearing, wherein a lone issue was formulated for determination to wit:

  1. Whether or not the Claimant has proved his case to entitle him to the reliefs sought.

Moshood Abiola, Esq. of Counsel for the Claimant submitted that the Claimant    has discharged the burden of proof placed on him to entitle him to the reliefs sought in his complaint and statement of facts.  It is trite that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.  He cited Section 131(1) EVIDENCE ACT 2011.

Learned counsel submitted that the evidence of the Claimant that he is being owed arrears of salaries was admitted by DW1, who under cross examination stated that the defendant was owing its staff 5 months from April 2016 to August 2016 as against the 4 months the Claimant is claiming. Learned counsel however expressed his surprise at the evidence of DW1 that Claimant had been paid for the months he is claiming while the defendant is still in arrears of the backlog for April –August 2016.  He submitted that the Defendant cannot skip payment for April to August 2016 and claim to have paid October 2016 to January 2017.  He urged the court to hold that the Defendant is owing the Claimant arrears of salaries.  On the allegation of the refusal to remit his pension contributions, counsel relied on the claimant’s pay slip Exhibit O2 in proof of the deductions made from his salary. He cited Section 2 (1) & (2) of the Pension Reform Act 2014 and stated that the Defendant cannot avoid its obligation under the Act. He further cited Section 4(1) of the Act which  provides that a minimum contribution of 8 per cent for an employee and 10 per cent for the employer.  Counsel asserted that the Defendant deducted the Claimant’s 8 per cent contribution from his salaries but failed to remit same to the pension account of the Claimant along with the Defendant’s own 10 per cent contribution. He urged the court therefore to order the Defendant to remit the accumulated sum or pay same to the Claimant.

 

The Claimant’s counsel submitted that the claimant is entitled to cost of this action, and this he supported by citing both oral and documentary evidence adduced at the trial in favour of his claim for cost of N500,000.00k (Five Hundred Thousand Naira). The Claimant in his evidence in chief tendered the receipt of solicitor’s fee and counsel submitted  that the evidence of the Claimant uncontroverted with the result that the burden of proof on him is discharged on a minimal proof.  He cited SPDC v. EDAMKWE & ORS (2009) 6-7 SC 74 @ 100.

 

On the Counter Claim of the Defendant, counsel for the Claimant urged the Court to dismiss it in its entirety as it is without basis in law. According to him, the Defendant has curiously claimed that the Claimant ought to have given the Defendant three months’ notice in writing or payment of one-year basic salary in lieu of notice even when the Defendant  failed to pay the Claimant’s salaries as at when due and neglected to remit his pension contributions. He cited the claimants’ Letter Appointment wherein it was clearly stated in the first paragraph that the appointment will attract a salary of N1,107,777.00k (One Million One Hundred And Seven Thousand Seven Hundred And Seventy Seven Naira) per annum meaning the Defendant will be paying the Claimant his

 

salary. He posited that the Defendant having failed to perform this fundamental term of the contract of employment is in breach of the terms of employment and  should be held liable, stating that there is no law that provides that an employee should continue to work when his salaries have not been paid. He urged the court to hold that it is the defendant that is in breach of the terms of employment, by its refusal to pay the claimant’s salary.

 

In conclusion, Counsel urged this Court to grant the claims in the complaint and dismiss the counter-claim.

I have read all the processes filed in this suit, and listened to the witnesses called by both parties, I have also read the submissions of both counsel in their final written address and I have thereafter formulated the following issues for determination thereof, and they are as follows;

  1. Whether or not the claimant has led cogent evidence in proof of the reliefs sought.

 

  1. Whether or not the defendant is entitled to its counterclaim.

It is an established principle of law that for an employee to be successful in a claim for breach of contract of employment, the following conditions must be satisfied:

  1. He must be in the employment of the employer.
  2. He must place the terms and conditions of the Employment before

the court.

 

  1. The breach of the term of his employment.

This is because the conditions of service or the terms of contract of service is the bedrock of the case and the claim of an employee rests on same See Federal Mortgage Finance Ltd V. Hope Offiong Ekpo 2004 NWLR Pt 856 @100. Per Ekpe J.C.A, where he held;

 “It is the law that, he who asserts, must prove the positive of his assertion, if he is to succeed. When an employee or a former employee as in this case, complain that his employer or former employer as the case may be, is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the onus:- (a) To place before the court the staff conditions of service or the terms of the contract of employment, and (b) To prove in what

 

manner the said staff conditions of service or the terms of contract of service were breached by the employer.”

It is not in contention in this suit that the claimant was an employee of the defendant as both parties gave evidence that he was employed by the defendant on the 11th of November, 2013, as Lecturer11, the terms of the contract of employment was also tendered by the claimant and are as contained in the claimant’s letter of offer of Appointment i.e. Exhibit O1. In proof of his case, CW1 testified for himself and led evidence that the defendant was fond of owing its workers salary for months and it was due to the hardship experienced as a result of the action of the defendant that he resigned his appointment on the 25th of January, 2017.  He further stated that the defendant is owing arrears of his salaries for four months i.e. October 2016 – January 2017, and he therefore claimed same in addition to the pension deductions made up of non- remission of his personal and statutory pension contributions made up as follows;

  1.             N762,897.82k (Seven Hundred And Sixty-Two Thousand, Eight Hundred

And Ninety-Seven Naira Eighty Two Kobo) for the claimant’s pension.

 

  1.             N543,889.24k (Five Hundred And Forty Three Thousand Eight Hundred And Eighty Nine Naira Twenty Four Kobo) for the claimant’s four (4) months arrears of unpaid salaries and entitlements.

 

In total, the claimant is claiming the sum of N1,306,787.06 (One Million Three Hundred And Six Thousand, Seven Hundred And Eighty Seven Naira Six Kobo) as itemized above. In proof thereof the claimant tendered Exhibits O2 AND O4, apart from his testimony. The defendant on its own part testified through DW1 that it is not owing the claimant for the months claimed by him, DW1 stated further under cross-examination as follows:

 

“I know for a fact that if the claimant was in our employment between April – August 2016, it is likely we are owing him as we have not paid any of our staff for those five months.”

 

The failure to offset arrears of salary according to DW1 was caused by the financial distress being experienced by the university.

 

It is evident from the facts in this case that the claimant was employed by the defendant from November 2013 – January 2017 and as such is entitled to arrears of salaries based on testimony of DW1, as it is clear that the defendant is owing the claimant arrears of salaries since he was a staff of the defendant during period cited by DW1, the defendant however prevaricated on the months

claimed by the claimant. While the evidence of the claimant that the defendant is owing him arrears of his salary and is fond of paying its workers in arrears was not disproved in anyway by the defendant, the defendant’s contention on the exact months which are outstanding in arrears is premised on the testimony of DW1 that the management of the defendant decided to defer payments of April-August 2016, while salaries for September 2016-January 2017 were paid, but I dare to say that this decision of the management of the defendant was only known to the defendant, It is a renowned fact that a labourer is entitled to its wages, the defendant owed it a duty to communicate the decision of management to its workers as it affected their legitimate rights and to pay its workers their salaries as at when due, having failed to do this the defendant has breached the terms of employment and they cannot hide under this spurious defence to renege on their legal responsibility to pay the claimant’s salary. I therefore find that the claimant has established his claim for four (4) months arrears of salary in this suit and cannot be cheated out of his right to same by  a mere denial by the defendant of the exact months it is owing the claimant. The preponderance of the evidence in this case therefore inexorably points to the fact that the defendant is in breach of the contract of employment between the parties in this suit and the claimant is entitled to his claim for four (4) month salary arrears from the defendant. I so hold.

 

The salary of the claimant per month is N135, 970. 06k vide Exhibit O2; and his total arrears is as follows;

 

N135, 970. 06k x 4 (months) = N543, 889. 24k

 

The claimant is therefore entitled to the sum of N543,889.24k (Five Hundred And Forty Three Thousand Eight Hundred And Eighty Nine Naira Twenty Four Kobo) as the total sum of his four (4) months arrears of unpaid salaries and entitlements from the defendant. I so hold.

 

The 2nd leg of the claim is for the remittance or payment to the claimant of his personal and statutory pension contributions as provided for under the Pension Reform Act. The claimant is claiming a sum of N762, 897. 82k (Seven Hundred and Sixty-Two Thousand, Eight Hundred and Ninety-Seven Naira Eighty Two Kobo) from “his own calculation” made up of his monthly deduction and the statutory required contribution from the defendant. The claimant, however did not place anything before this court to proof that  the defendant is operating the contributory pension scheme or of his enrolment with any pension administrator while he was with the defendant, the only evidence adduced on this leg of the claim is his pay-slip and his counsel’s letter of demand i.e. Exhibit O2 and 04. The defendant on his own part testified through DW1 that the defendant was not operating any pension scheme as of that date and what they were operating

was a University saving scheme and the contributions so far made by the claimant into the scheme was N293,649.46K. It is needless to say that this claim is in the realm of special damages that requires concise and cogent evidence before it can be granted see Aluminium Manufacturing Company of Nigeria Ltd. V. Volkswagen of Nigeria Limited [2010]  LPELR-3759 (CA) there is no concise evidence in proof of this leg and in the absence of any proof as to the existence of any enrolment with a pension administrator, the claimant cannot build something on nothing, there is no evidence that the claimant is enrolled in a pension scheme by the defendant, this part of the claim for remittance of pension contributions is therefore untenable and consequently fails. The claimant also prayed this court to declare that the refusal of the defendant to remit the claimant’s pension deductions and entitlements into the claimants pension account is criminal, illegal and unlawful. He cited section 2 (1) & (2) and Section 4 of the Pension Reforms Act which provides for compulsory participation in the contributory pension scheme by employers in both the public and private sectors and the percentage of contributions by both the employer and employee, it is worthy of note that any contravention of the provisions of the Act (the above section inclusive) is illegal and punishable by virtue of Section 99 of the Pension Reforms Act 2014, which provides as follows:

(1) A person who contravenes any of the provisions of this Act commits an offence and where no penalty is prescribed, shall be liable on conviction to a fine of not less than N250,000.00 or to a term of not less than one year imprisonment or to both fine and imprisonment.

It is evident from the above cited section that the defendant is in clear contravention of the Pension Reform Act by their refusal to enrol their staff in the scheme an act which is illegal and unlawful. This will not however take away the fact that the defendant was not operating any contributory pension scheme as stated earlier, one cannot build something on nothing. An order to remit the pension contributions cannot therefore be made in vaccuo.

The claimant led evidence that deductions were made from his salary for pension while with the defendant citing Exhibit O2. The defendant admitted that the total deductions from the claimant’s salary is N293,649.46K (Two Hundred and Ninety Three Thousand Six Hundred And Forty Nine Naira Forty Six Kobo) but the deductions were for the university saving scheme and the claimant is entitled to same. This claim by the defendant is uncontroverted in anyway, it is the position of the law that uncontroverted evidence can be acted upon by the court see LATEEF V. FRN (2010) 37 WRN pg 86; It is also in evidence that the deductions for pension from the claimant’s salary as at 2016 is N10,309.43k (Ten Thousand Three Hundred And Nine Naira Forty Three Kobo) per month, therefore the pension deductions of the claimant in addition to  the four (4) months arrears to be paid to the claimant as a result of this judgment sums  up as follows:

Pension deduction = N293,649.46k

Arrears of Pension Deductions: N10,309.43k x 4 (months) = N41,237.72k

Total Pension deduction N293,649.46k + N41, 237.71k = N334,887.18k

I find based on the above that the claimant is entitled to a total pension deductions of N334,887.18k.  I so hold.

The claimant is also claiming pre-judgment and post-judgment interest of 21% per annum until judgment is delivered and thereafter at the rate 10% until the judgment is satisfied if his claim succeeds. It is pertinent to note that pre-judgment interest must not only be pleaded but must be strictly proved, while post judgment interest is discretionary A claim for pre-judgment interest is one in which the Claimant must specifically claim and prove. See Berliet (Nig) Lt. V. Kachalla [1995] 9 NWLR (Pt.420) 478. it is also trite that for a pre-judgment interest to succeed, it must arise from the mutual agreement (contract) between the parties to the litigation or dispute that led to the litigation by the custom governing the transaction that brought the litigation, or by statute, or under a principle of equity such as breach of a fiduciary relationship before it can be claimed, proved and awarded by a court. See also Order 47 Rule 7 of the NICN Rules, 2017.See Farasco Nig. Ltd & Anor v. PZ Ind. [2010] LPELR-4142 (CA); Consequently, I find that the claim for pre- judgment interest fails. I so hold.

COUNTER CLAIM

The defendant counter claimed against the claimant as follows:

  1. a)An Order declaring that the resignation of the Defendant in the employment of the Counter-Claimant on 25th day of January, 2017 never followed the provision as stated in the letter of offer of appointment given to the Defendant by the Claimant.

 

  1. b)An Order for the payment of N907,230.00 by the Defendant to the Counter-Claimant being the one year basic salary in lieu of notice of his withdrawal of service from the employment of the Counter-Claimant.

 

  1. c)Cost of this action.

In proof of its claim the defendant called DW1 to testify and relied on the letter of offer of Appointment of the claimant i.e. Exhibit O1 as well as Exhibit O3 (the claimant’s letter of resignation) the defendant relied in particular on the following clause in Exhibit O1:

“As an academic staff, you may not withdraw your services except by giving Management a minimum of three (3) months’ notice in writing 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 3 (three) months’ notice in writing or three months basic salary in lieu of notice”

Learned counsel for the defendant/counterclaimant submitted in his address that the defendant has placed sufficient facts before the court to entitle it to the reliefs sought in the counter-claim. He posited that the terms of the contract of employment between the parties are embodied in Exhibit O1 and sacrosanct, he argued that the claimant resigned his appointment on the 25thof January, 2017, vide Exhibit O3 and with immediate effect and thus breached the term of the contract between the parties by not giving the defendant the requisite three months’ notice to terminate at the end of an academic session as prescribed for an academic staff of the defendant. The defendant therefore claims a year basic salary in lieu of notice from the claimant.

Learned counsel for the claimant however in his defence to the counter-claim argued that the defendant breached the terms of the contract between the parties by not paying the claimant’s salary as at when due which subjected him and members of his family to an untold hardship, and therefore it would be unreasonable to have expected him to continue with the employment in the circumstance.

It is the position of the law that a party will not be allowed to benefit from his own wrong, this is founded in the latin maxim “Ex Turpi Causa Non Oritur Actio” (meaning “no cause of action can arise from a dis-honourable cause. See the case of The Administrator & Exec. Of the Estate of Abacha v. Eke-Spiff & Ors. [2009] 7 NWLR 97 SC.

The defendant/counter-claimant in this suit is seeking to benefit from its own breach, and this is not only untenable but unconscionable. The terms of a contract of employment is not meant to subjugate a servant to a condition of servitude. See AFRAB CHEM LTD V. OWODUEYI [2014] LPELR-23613 (CA) where WAMBAI, J.C.A. (Pp.28-29 paras.A-A held as follows:

“…… While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.”

 

It is unreasonable to expect the claimant to continue in his employment and to wait for three months’ notice to expire to terminate at the end of an academic session or part with one year basic salary in lieu of notice to terminate his appointment with the defendant, when the defendant has failed to fulfil its own part of the contract i.e. paying the claimant his salary as at when due.

Consequently, I find that the counter-claim of the defendant is vexatious, indecorous and lacking in merit whatsoever, and is therefore accordingly dismissed. I so hold.

 

In all I hereby declare and order as follows:

  1. The defendant’s refusal to pay the claimant his salaries and entitlement is in breach of the contract of employment between the parties.

 

  1. The defendant shall pay to the claimant a sum of N543,889.24k (Five Hundred And Forty Three Thousand Eight Hundred And Eighty Nine Naira Twenty Four Kobo) the total sum of his four (4) months arrears of unpaid salaries.

 

  1. The defendant shall pay to the claimant a sum of N334,887.18k (Three Hundred and Thirty Four Thousand, Eight Hundred and Eighty Seven Naira, Eighteen Kobo) deducted as pension by the defendant and arrears of same.

 

  1. The claim for Pre-judgment interest fails.

 

  1. All monetary sums awarded in this judgment are to be paid within 30 days failure of which it will attract 10% interest per annum.

 

A cost of N200,000.00k (Two Hundred Thousand Naira) is hereby awarded as cost against the defendant and in favour of the claimant.

 

COUNTER- CLAIM

 

The counter claim of the Defendant fails.

No order as to cost.

Judgment is accordingly entered.

 

 

 

Hon. Justice A.A. Adewemimo

Judge

admin

Website:

Related Story