IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 10th day of July, 2019
SUIT NO: NICN/PHC/13/2014
BETWEEN
- VINCENT G. IGENOZAH CLAIMANT
AND
HYDRODAM NIGERIA LTD DEFENDANT
Representations:
H.I. Ahmed with Modesta Maliki for the Claimant .
- Adegbite for the Defendants.
Judgment
This suit was commenced by way of a general form of Complaint filed on the 30th of January, 2014 along with a verifying affidavit, a statement of fact, witness statement on oath, list of witnesses, list of documents and copies of the listed documents to be relied upon at trial.
The suit was formerly before Hon. Justice F.I. Kola-Olalere before it was assigned to Hon. Justice Agbadu-Fishim and later reassigned to this court sometime in November, 2018.
Arising from the complaint and statement of fact, the Claimant is claiming against the Defendant the following:
- The sum of =N= 2,144,937.50 being the outstanding terminal benefits due from the Defendant to the Claimant.
- Ten Percent (10%) interest per month on the said sums of =N=2,144,937.50 from the date of judgment until judgment sum is fully liquidated.
- THE SUM of =N=5,000,000.00 (Five Million Naira) General damages for the wrongful conduct of the defendant
- 20% interest on the said sum of =N=5,000,000.00 from 1stOctober, 2013 until fully paid.
Reacting to the claims, the Defendant on the 19th of February, 2014 filed a statement of defence accompanied by a list of witnesses, list of document, witness statement on oath and copy of document to be relied upon.
Upon receiving the statement of defence, the Claimant on the 6th of May, 2014 filed a reply to the said statement of defence.
In opening his case, the Claimant himself, Vincent Igenozah, was the sole witness as CW1 and he adopted his witness statement on oath marked as C1. Through him, five documents were tendered and admitted in evidence as Exhibit C2 – C6.
Arising from the statement of fact and witness statement on oath of the Claimant, the case of the Claimant is that he was employed by the Defendant on 24th April, 2009 on probation and had his appointment confirmed 16th June, 2012. His appointment was however terminated on 30th of September, 2013 on ground of redundancy. Claimant posited that Whilst he respect the right of the Defendant to determine the relationship, the Defendant undermined his rights to be paid complete benefits and entitlement under the law and the terms of contract between the parties and therefore in breach of the employment contract. He added that the Defendant did not pay him a dime of his Christmas Bonus and annual leave allowance which is 10% each annual basic salary as contained in his provisional letter of employment dated 24th April, 2009 throughout the duration of his employment with the Defendant. He also averred that the Defendant failed to pay him redundancy benefits upon terminating his employment.
He posited further that based on the law and his provisional letter of employment dated 24th April, 2009 as Chief Officer, he ought to have been paid a total sum of N2, 264,000.00 (Two Million Two Hundred & Sixty Four Thousand Naira Only) at the point of exit representing payment in lieu of notice, allowances, entitlements and redundancy benefits, but that the Defendant paid to him the sum of N119,062.50 (One Hundred & Nineteen Thousand, Sixty-Two Naira, Fifty Kobo), leaving an outstanding balance of the sum of N 2,144,937.50 (Two Million, One Hundred & Forty Four Thousand, Nine Hundred & Thirty Seven Naira, Fifty Kobo) unpaid. He added that he demanded for the payment to be made but the Defendant refused or neglected same, hence this suit.
In the course of cross examination of CW1 he posited that throughout the course of his employment he was never queried. He also confirmed that the Defendant never owed him salary and he was paid at the point of termination but can’t remember the amount. He also posited that there were people employed before him whose employment were terminated and that all the documents he submitted were genuine.
Upon the discharge of CW1, the claimant closed his case while the Defendant opened theirs. In doing so, the Defendant called two witnesses in persons of Benson Oguntosin as DW1 and Kayode Anjorin as DW2. The witness statement on oath of both witnesses were adopted and respectively marked as D1 and D2. Through DW2, one document was tendered in evidence and admitted under protest as D3.
Arising from the statement of defence and witness statements on oath, the case of the Defendants is that the Claimant is a former employee of the Defendant who was incompetent and could not justify his qualification and the performance of the Claimant led to discreet enquiries in 2012 about his qualification. They posited that they did not take any step as regards the revelation found until the Claimant’s employment was terminated. With regards to the sum claimed to be owed, the Defendant posited that the Defendant paid the Claimant all his entitlement as contained in his letter of employment during the period of his employment. They posited that the Claimant was paid one month salary in lieu of notice therefore the Claimant is not entitled to the sums claimed in paragraph 10 of his statement of facts or to any sum at all. The Defendant posited that this suit is baseless and frivolous.
Upon cross examination of DW1, he testified that he is a competent chartered accountant who joined the Defendant in 2003. He confirmed that it is his duty to pay the Defendant’s contractors, employees and suppliers and to keep record of the transactions. He posited that there is no record of the Defendant that he did not keep and the records are available on request. He posited that he knows the Claimant as a chief officer whose duty is to maintain peace order and hygiene on the vessel. He added that he thinks a marine certificate or qualification qualifies one as a chief officer.
DW2 on his part testified that he left the employment of the Defendant in 2016. He stated that he knows of the matter from the beginning. He said he cannot remember the abbreviations on Exhibit D3 but that certificates are usually awarded to all mariners and the certificate is part of the qualification as chief officer. He admitted that the Defendant wrote the maritime academy in the course of investigation and the letter was dated the 6th of February, 2014 when the matter was already in court. He posited that he does not know that the Claimant qualified as a chief officer in 2006. He added that as the job went on, they started to notice the Claimant’s incompetence. He confirmed that the Claimant worked for 4 years and 5 months on a salary of N3million per annum i.e. N250,000 per month.
Upon discharge of DW2, The Defendant closed their case and matter was adjourned for adoption of final addresses.
The Claimant filed his final written address on the 24th of May, 2019 and adopted same on the 17th of June 2019.
Arising from the said final address, counsel to the Claimant, H.I. Ahmed Esq. formulated three issues for determination to wit:
- Whether or not there is evidence before this Honorable Court to show that the Defendant paid the Claimant full salary in lieu of notice, Christmas Bonus and Annual Leave Allowance which is “10% each annual basic salary” as contained in Exhibit C2?
- Whether or not the Claimant is entitled to redundancy benefit as per Exhibit C4, if Yes, whether the Defendant is not duty bound to pay?
- Whether Exhibit D3 is admissible in evidence?
In arguing issue one, counsel contended that the Claimant’s claim as enumerated at paragraph 10 and 14 of the Statement of Facts and paragraphs 13 of the Witness Statement filed alongside the Complaint in this suit on the 30th January, 2014 are for salary in lieu of notice, cumulative unpaid Christmas Bonuses , Annual Leave Allowances and Redundancy Benefit.
Counsel further posited that Exhibit C2 constitutes part of the conditions of service of the Claimant and therefore the contract of employment between the parties. He added that it is the law that a legal right or claim can be formulated upon the condition pursuant to the letter of employment and that Exhibit C2 constitutes a valid and enforceable contract between the Claimant and the Defendant in this Suit. He cited the case of E. Sapara v. University College Hospital Mgt Board (1988) 7 S.C (Pt. ii) Pg 82 @ 95; paras. 15 -25.
Counsel referred to the content of Exhibit C2 and posited that it is the evidence of CW1 that his employment was terminated without notice but the Defendant paid him the sum of One Hundred and Nineteen Thousand, Sixty Two Naira, Fifty Kobo (119,62.50) referred to as “one month payoff check” (sic).
Counsel contended that there is no provision in the contract of employment dated 24th April, 2009, that is, Exhibit C2 stating the length of notice to be issued by either party in the event of termination and where there is no express mention of a length of notice, then reasonable notice has to be given and reasonable notice depends on the facts of each case.
Counsel posited that the court can imply reasonable notice and cited the case of Akumechiel v. BCC Ltd (1997) 1 NWLR {Pt. 484} pa. 659 @ 703 paras C; ratio 3.
Counsel posited that the Claimant being a senior staff who had spent 4 and half years as Chief officer and earns N3million as annual salary deserves more than One Hundred and Nineteen Thousand, Sixty Two Naira, Fifty Kobo (N119,062.50) as salary in lieu of notice in view of the fact that his salary is N250,000 per month.
With regards to Christmas bonus and leave allowance, Counsel repeated the computation of the sum owed based on exhibit C2 and posited that the Claimant led unchallenged evidence that he was not paid these sums during the period of his employment or after termination of his employment. He added that the Claimant having led evidence to show that he was not paid, the burden of proof shifted to the Defendant to show that the Claimant was paid these benefits as provided for by Section 133(1) & (2) of the Evidence Act, 2011.
Counsel posited that while the burden is on the Claimant to prove he was employed by the Defendant and that he worked for the relevant period, the burden is on the employer to prove not only that he paid the employee his salary for work done but also the amount of salary paid. counsel cited the case of Honika Sawmill Nig. Ltd v. Hoff (1992) 4 NWLR (Pt 238} Pg 673 at 679 paras C-D.
With regards to issue two, counsel posited that in view of the wording and tone of Exhibit C4, even though the Defendant did not expressly use the word “Redundancy” the only reasonable inference to be drawn from it is to the effect that there is excess man- power, the Claimant is being put on involuntary and permanent loss of employment, that is, redundancy. Counsel added that Section 20 (3) of the Labour Act, CAP. L1, Laws of the Federation of Nigeria, 2004 define the word “Redundancy” to mean “an involuntary and permanent loss of employment caused by an excess of manpower”.
Counsel posited that the Labour Act did not specify an amount to be paid as redundancy benefit but required the employer to negotiate with the employee an attempt which the Defendant rebuffed. In view of absence of negotiation the Claimant is asking for the sum of One Million and Seven thousand Naira (N1,007,000.OO) being and representing 20% of Annual Basic Salary per year for the period of 4years and 5 months as his redundancy allowance since the Defendant failed to negotiate.
With regards to relief 3 and 4, counsel sought the leave of court to withdraw same and for both reliefs to be struck out.
With regards to issue 3, counsel contended that Exhibit D3 which is a letter dated 11th February, 2014 is objected to on the grounds that:
- The document sought to be tendered is not relevant to this proceedings
- Exhibit D3 was made during the pendency of this proceeding
- DW2 who seeks to tender the said document is not the maker of Exhibit D3
With regards to ground a, counsel posited that the Claimant is not in Court to challenge the termination of his employment by the Defendant but commenced this suit to recover his unpaid entitlement from the Defendant. Exhibit D3 is therefore not relevant to this proceeding.
With regards to ground b, counsel posited that this suit was instituted on the 30th January 2014 while the exhibit was made on the 11th of February, 2014 as the Defendant filed its defence on the 19th of February, 2014.counsel cited section 43 (1) and (2) of the Evidence Act and posited that exhibit D3 comes under the what the section categorize as “matter of general interest” and submitted that same is inadmissible.
With regards to ground c, counsel posited that DW2 was not the maker of Exhibit D3 as it is one D.I. Essien who signed the document and the Defendant did not proffer any reason why the maker was not called as a witness. Counsel cited section 83 of the Evidence Act 2011. He added that DW2 is an interested party in this suit as he wrote a letter on the 6th of February 2014 which elicited the reply dated 11th February, 2014 (Exhibit D3).
Counsel urged the court to mark the said exhibit as rejected.
Counsel concluded that in civil proceedings such as the case at hand, cases are proved by the preponderance of evidence and/or balance of probabilities. He cited the case of Aiyetoro Community Trading Company & or v. Nigeria Agricultural and Co-operative Bank Ltd (2003) 12 NWLR (PT. 834) PA 346 @ 370 paras D and Sections 134 & 135 Evidence Act, 2011 .
Counsel consequently urged the court to grant the claims of the Claimant in relief 1 and 2.
Reacting to the Claimant’s final address, the Defendant filed their final address on the 27th of May, 2019 wherein counsel to the Defendant, Femi Adegbite, Esq. formulated two issues for determination to wit:
- Whether from all the evidence adduced in this case, the Claimant is entitled to the reliefs sought?
- Whether Exhibit D3 can be admitted in evidence and relied upon based on the provisions of section 83(3) of the Evidence Act 2011?
In arguing issue one, counsel posited that it is settled law that the employment of common law workers i.e. those that their employments do not have statutory flavor can be terminated by either the worker or the employer upon notice or upon payment of salaries in lieu of notice. He added that the length of notice varies from case to case and the courts have made it clear that salary in lieu of notice must be paid contemporaneously with the time the appointment is terminated, otherwise the termination will be held to be wrongful. Counsel cited the cases of Onah v NLC (Unreported NIC/CA/47/2011 and ACB Ltd v Ufondu (1997) 10 NWLR Pt. 230 169 at 177. Counsel also cited section 11 (1) of the Evidence Act 2011.
Counsel posited that in the instance case, from the totality of the facts gleaned from the originating processes and the pleadings upon which the claim is based, particularly the statement of claim, the claimant has admitted that he was paid one month salary in lieu of notice, the claimant’s case therefore falls that on its face.
Counsel further argued that it is trite that pleading is not evidence and as such a pleading that is not supported by evidence is in law deemed abandoned and same is liable to be struck out. He added that failure of the Claimant to adduce evidence in proof of failure of the Defendants to pay his Christmas bonus and allowances is fatal to his case. Counsel cited the case of Susainah (Trawling) Vessel v Abogun (2007) NWLR Pt. 1016, 456 at 487.
Counsel also submitted that by virtue of section 133(1) and (2) of the Evidence Act, 2011, in Civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom judgment of the Court would be given if no-evidence were produced on either side. In other words, whoever desires a court of law to give him Judgment as to any legal right dependent on the existence of facts he asserts has the burden or onus of proving that these facts exist.
Counsel concluded on the issue by positing that in the instant case, the assertion of the Claimant that he was not paid his allowances and bonuses appear rather speculative, unsubstantiated as there is no concrete proof of same because throughout the gamut of the evidence of the Claimant as borne out by his witness statement on oath, he did not show any proof of this non-payment.
With regards to issue two, counsel submitted that section 83 (3) of the Evidence Act 2011 as amended, relied upon by Learned Counsel as basis for the objection is totally misconceived, because the operative word of the said section is “interested party’. He added that the section was enacted to render inadmissible any document prepared by an interested person in order to defeat through its clear wordings the course of Justice.
Counsel posited that the Maritime Academy in Oron, could not be said to be an interested party as they did not know about the pendency of the suit and did not anticipate a dispute and neither will they benefit from the outcome of the case. Counsel cited the cases of NSITFMB V KLIFCO NIG LTD. (2010) ALL FWLR (Pt. 534) 73 S.C. and GWAR V ADOLE (2003) 3 NWLR (Pt. 808) 516 C.A.
Counsel concluded that the Claimant has failed to prove his case on a preponderance of evidence and therefore not entitled to the award of the reliefs sought in this suit. He urged the court to dismiss the case and award substantial cost.
By way of reply on point of law filed by the Claimant on the 3rd of June, 2019, counsel to the Claimant responded with regards to section 11(1) cited by Counsel to the Defendant to the effect that section 11(1) and (9) cannot be invoked by the Defendant as Exhibit C2 failed to comply with section 7(1) (e) of the Act which requires the inclusion of appropriate period of notice to be given by the party wishing to terminate. Counsel reiterated that in the instant case, it is common law principle that will apply.
In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:
Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.
Before resolving the sole issue, it is expedient to address first the status of exhibit D3 which was tendered in evidence by the Defendant and objected to by the Claimant on ground that same is not relevant; that it was made in the course of proceedings and that same was not tendered by the maker. Counsel to the Claimant responded to the effect that by virtue of section 83 (3) the document must have been made by a person who had interest in the matter.
Before I consider the admissibility of the said exhibit, I find it apposite to first determine whether the said exhibit is relevant to the instant suit in view of the fact that relevancy comes before admissibility. A document will be relevant if it contains facts that are relevant to the fact in issue. Section 4 of the Evidence Act 2011 states that:
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
In view of the foregoing, I have taken a look at the statement of defence wherein the Defendant averred that certain investigation was conducted on the qualification of the Claimant upon which a written confirmation was obtained from Maritime Academy of Nigeria. It was in the light of this fact that the Defendant tendered the said exhibit. Perhaps, the qualification of the Claimant was not directly in issue, but same is connected to the facts leading to the termination of the Claimant’s employment by the Defendant. therefore, the said exhibit is relevant.
Having said that, I proceed to determine the admissibility which is challenged on the ground that the document was made during the pendency of this suit. The resolution of the objection is predicated on the provision of section 83(3) of the Evidence Act 2011 which provides that:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
The wordings of the provision are clear and unambiguous to the effect that for the document or statement to be inadmissible, it must have been made by a person interested in the pending proceeding. The provision of the Evidence Act have been given credence in the case of DISU OLOMO v. SUNDAY APE (2013) LPELR-22327(CA) where the court held that:
“there is no doubt that Section 83 (3) of the Evidence Act is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. Achike, JSC had in OGIDI & ORS v. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of ABDULLAHI v. HASHIDU & ORS (1999) 4 NWLR (Pt. 638) at 645 – 647; Pats Acholonu, JCA (of blessed memory) noted that by the provisions of Section 91(3) (now 83(3)) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would be tantamount to stealing a match against an opponent.” Per AKINBAMI, J.C.A. (Pp. 19-20, paras. B-A) .
The court went further to posit that:
“…The general principle is that the document made by a party to a litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. The disqualifying interest is a personal not merely interest in an official capacity… where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded.” Per AKINBAMI, J.C.A. (Pp. 21-22, paras. F-B)
Two things must be brought to the fore in view of the provision and the foregoing authorities. First is that the pendency of proceeding is especially when pleadings have been concluded so as not to steal a match and secondly, the interest is reckoned as personal interest and not merely official.
In view of the foregoing, I have taken a look at the said exhibit D3 and find that same is rightly dated the 11th of February, 2014 with a letterhead of Maritime Academy of Nigeria and addressed to the Defendant Hydrodam Nigeria Limited. The caption of the document is “Re: Verification of Certificates – Vicent Igenozah and Ahmed Igenozah”. In addition, I find that this suit was instituted on the 30th of January, 2014. Making it a document prepared after the institution of this suit but not before pleadings were closed since the document was pleaded in the statement of defence and frontloaded along with the statement of defence filed on the 19th of February, 2014.
In addition to that, the maker of the document which is Maritime Academy of Nigeria made the said document in an official capacity and cannot be said to be a party interested in the suit, hence the document was not made to steal a match. The said document cannot therefore be excluded on the basis of section 83(3).
On the ground that the document was not tendered by the maker, this court has discretion to admit a document tendered in evidence by a person who is not the maker if it is considered that undue delay or expense would otherwise be occasioned. See section 83(2) (a).
Consequent upon the fact that the said Exhibit is to a certain degree relevant and admissible as it is not caught up by the provision of section 83 (3) of the Evidence act, I have no hesitation in admitting the said exhibit and same is accordingly admitted in evidence.
I then turn to the sole issue for determination, the resolution of which has direct consequence on the claims of the Claimant.
In resolving the sole issue, I must foremost reiterate that the Claimant through his counsel abandoned relief (3) and (4). Leaving only the claims of reliefs (1) and (2) to be in contention. Counsel posited via Claimant’s final address that:
“On Reliefs 3 and 4 of the Writ of Summons and paragraphs 14 Statement of Facts we seek the leave of this Honorable Court to withdraw same and to be struck out. This is against the background that the Claimant is not contesting the right of the Defendant to terminate his employment. Secondly, remedy for wrongful termination includes payment of legitimate entitlements at the time the employment was brought to an end and amount due in lieu of notice. See:NITEL Plc v. Ocholi (2001) FWLR (Pt 74) pg 254 @ 286 paras C-D ratio 13; Gateway Bank of Nigeria, PLc v. Abosede (2001) FWLR (Pt. 79) 1316 @ 1337 para G-H ratio 5.
In view of the foregoing, the determination of the claims before the court shall exclude reliefs (3) and (4) which are hereby struck out.
In addition to that, I must state that the Claimant is not by this suit challenging the termination of his employment as the Claimant stated via paragraph 9 of the statement of fact that the right of the Defendant to terminate his appointment is acknowledged. The area of contention between the Claimant and the Defendant for the sake of clarity is in respect to the sum paid to the Claimant as terminal benefit.
The contention is to the effect that first, he was not paid the sum of N250,000 as his salary in lieu of notice of termination. Secondly, he contends that he was not during his employment paid his annual leave allowance at 10% of his annual basic salary multiplied by 4 years and 5 months. Thirdly, Claimant contends that he was not paid Christmas bonus throughout his employment put at 10% of his annual basic salary multiplied by 4 years and 5 months. Lastly, the Claimant considers the termination of his employment to be predicated on redundancy and that makes him entitled to redundancy allowance at 20% of his Annual Basic Salary multiplied by 4 years and 5 months.
Upon computation, the Claimant came to the believe that he is entitled to the sum of N2,264,000.
The Claimant then posited that he was paid the sum of N119,062.50 leaving the outstanding to be paid to him as N2,144,937.50.
On the part of the Defendant, he stated that the Claimant is not owed any sum as he had been paid his salary in lieu of notice upon the termination of his employment and paid his entitlements in full during his employment.
There is no gainsaying that the resolution of the forgoing contention rests on the evidence before the court as the general rule that is applied when an allegation is made and the allegation is denied, it behooves of the party making the allegation to prove it. This is captured in the notion that he who asserts must prove. The notion is founded first in the provisions of the Evidence Act which by section 131 provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
In addition, section 133 of the same Evidence Act provides the order of proof in civil cases as it provides that:
- In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
- If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be give if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
The implication of the foregoing provision is that the Claimant in the instant case who wants the court to enter judgment in respect of the sum he alleges the Defendant to be indebted to him has the burden of first proving that the Defendant is indebted to him in the said sum. If the Claimant does not present any evidence at all, judgment would be against him. But if he presents evidence and the evidence is satisfactory in establishing the facts he alleges, then the burden shifts unto the Defendant to disprove failure of which would entitle the Claimant to judgment.
In acknowledging this principle of law, the court in the case of UNION BANK v. SALAUDEEN (2017) LPELR-43415(CA) posited that:
“Now, in law, the burden of prove in any cause or proceeding rests on the party who desires the Court to give judgment in his favour. That is the ultimate burden of proof, otherwise known as the legal burden of proof. This burden is always on the Plaintiff or Claimant in a civil case, because he is the person who would fail, if at the end of the entire trial, no evidence is called or the evidence adduced by him is insufficient or has been discredited, he will lose. Thus, in the case of Edeani Nwavu & Ors v. Chief Patrick Okoye & Ors (2008) 18 NWLR (pt.1118) 29; I. J. Muhammad, JSC said: “The legal burden is the proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party’s case. If at the end of trial he has failed to establish these to the appropriate standard, he will lose.” This legal or ultimate burden should be distinguished, especially in a civil action, from the evidential burden. The evidential burden is generally determined by the pleadings, and may shift or oscillate from one party to another as the trial progresses. See Sections 131, 132 and 133 of the Evidence Act, 2011. See also Hamza v. Kure (2010) 10 NWLR (pt.1203) 630 and Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282. That being so, a Plaintiff is required to plead and adduce credible evidence which satisfies the Court that he is entitled to that which he claims. In civil cases, that burden is discharged on balance of probabilities or preponderance of evidence. See Chabasaya v. Anwasi (2010) 10 NWLR (pt.1201) 163; Agbakoba v. I.N.E.C. (2008) 18 NWLR (pt.1119) 489 and Egharevba v. Osagie (2009) 18 NWLR (pt.1173) 299.” Per Haruna Simon Tsammani, J.C.A (Pp. 15-16, paras. B-D).
In attempt to comply with the principle of law perhaps, the claimant tendered exhibits C2 which is the provisional letter of employment dated 24th April 2009 where in his salary was stated as follows:
Sequel to your performance during recent interview with us, we are pleased to offer you employment as Chief Officer with effect from 1st May, 2009.
COMPENSATION
Your Pay packet shall be as stated below:
Basic salary 1,140,000
Housing 840,000
Transport 540,000
Utility 480,000
Total 3,000,000 p.a.
However, Christmas bonus, annual leave allowance shall be 10% each annual basic salary.
Your mode of service will be 2 (two) months on board and 1 (one) month off period. Full salary will be paid for the period on board and half salary for off period.
Other Conditions
Note that you will be on a (6) six Month probation period from the day of resumption. Your attitude to work and others during the (6) Months will determine your continual stay in the company or otherwise. During the probation period, termination by either party will be in writing and shall be (2) two weeks in lieu of notice. After the 6 month probation period; if satisfactory, your appointment will be confirmed.
On resumption of duty, you are expected to report to the Admin officer for further briefing.
Acceptability of this letter and condition therein within the next 7 (seven) days of receiving this letter must be sent to us.
Welcome on board to Hydrodam Nig Ltd.
Yours faithfully,
For Hydrodam Nig Ltd.
Signed.
In addition to the forgoing, the Claimant also tendered Exhibit C3 which is the letter of confirmation of the appointment of the Claimant dated the 16th of June 2012.
The essence of the two documents are perhaps to prove that the Claimant was a confirmed employee of the Defendant and also to state the terms that was agreed to between the Claimant and the Defendant.
Other evidence before the court are exhibits C4, being the letter of termination of appointment dated the 30th of September, 2013; Exhibit C5 being the letter of demand written by lawyer to the Claimant, dated the 11th of December, 2013 and addressed to the Defendant while Exhibit C6 is a response letter written to the lawyer to the Claimant by the lawyers to the Defendant denying any indebtedness.
In view of the evidence placed by the Claimant before the court, the question that naturally arises is whether such evidence is satisfactory in respect of each sum claimed and computed, for the court to award the claims. This is in view of the fact that the Defendant has not placed any particular evidence in relation to the claims. Exhibit D3 that was tendered by the Defendant has no bearing whatsoever to the monetary claims made by the Claimant.
That said, I must proceed by stating that the Claims made by the Claimant in relation to the specified sums computed for leave allowance, Christmas bonus and redundancy allowance are in the realm of special damages. And the courts have made abundant exposition in that regard by positing that special damages should be specifically pleaded and strictly proved. The court in UDOFIA v. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS. (2011) LPELR-4055(CA) held that:
“… it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly.” Per OREDOLA, J.C.A. (P.9, Para.F)
The court in ISC Services Ltd. v G.C Ltd. (2006) 6 NWLR (Pt.977) pg.481 made farther exposition on what it means to strictly prove special damages when it held that:
“In U.B.A. Plc. v. Ogunsanya (supra) at page 128 this court defined what ‘strict proof of special damages’ is in the following words: “What amounts to strict proof would depend on the facts of each case and the character of the acts which produce the damage as well as the circumstances under which the acts were done. But generally the strict proof required in special damages means no more than that the evidence led must clearly show the same particularity as is necessary to support the pleadings. The evidence led must clearly consist of the particular loss. The term therefore does not mean an unusual proof, but simply implies that the plaintiff who had the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which make such calculation possible?” Per GALINJE, J.C.A. (P.45, Paras.C-G).
Putting the foregoing authorities into perspective, I find that the Claimant particularized the sum of N2, 144,937.50 into four sub-claims which I proceed to determine one after the other.
The first is the sum of N250,000. 00 being the claim for salary in lieu of notice. The claimant predicated this claim on the fact that his annual salary arising from his letter of employment is 3,000,000.00 and a month salary is therefore N250,000. In this wise, there is no dispute as to the fact that the Defendant intended to pay the Claimant salary in lieu of notice going by Exhibit C4 (letter of Termination of appointment) wherein the Defendant stated that:
“Note that after You have submitted all in your care, you are to pick up your one month pay off check (sic) with the financial Accountant.”
In this regard, the Defendant posited that the Claimant had been paid his one month salary in lieu of notice but did not state how much was paid to the Claimant and neither did the Claimant, who posited that he was paid certain sum, tender the cheque or any other means by which he was paid whatever sum was paid to him in order to establish the difference of what ought to have been paid to him.
What is even worse as far as evidence is concerned is that the Defendant’s witness (DW1) who was cross examined by counsel to the Claimant was an accountant who keeps records of transactions of the Defendant. Yet, counsel to the Claimant could not confirm through him that the sum paid to the Claimant was less than N250,000.00.
The implication of the foregoing, in view of the denial by the Defendant that Claimant is owed salary in lieu of notice, is that the assertion that the Claimant was paid N119,062.50 remains an assertion without an iota of proof and that makes it impossible for the court to award a claim on mere assertion. Only when what was paid is established will the court be able to uphold that the Claimant was indeed shortchanged. This is notwithstanding the fact that the letter of employment has no specific provision for the length of notice required. Exhibit C4 shows clearly that the length of notice intended by the Defendant is one month since the letter of termination specifically states that the payment is for one month in lieu of notice.
While the length of notice is clear, what is uncertain is the amount paid for that month.
In view of the total dearth of proof, the Claim for the sum of N250,000 as salary in lieu of notice fails and is accordingly dismissed.
The second particularized sum is the sum of N503,500 for annual leave allowance computed at 10% of the Claimant’s basic salary multiplied by 4 years and 5 months. Same goes for the third particularized sum of N503,500 which is for Christmas bonus and I find it apposite to consider both particularized claims together.
The claim for both sum are predicated on the letter of Appointment which states that”
However, Christmas bonus, annual leave allowance shall be 10% each annual basic salary.
The first notion about the said claims are that they are perhaps to be paid per annum hence, it raises a question as to why the computation includes 5 months? That being said, the Defendant denied owing any of such monies to the Claimant as he has been paid all his entitlement as contained in his letter of employment during the period of his employment.
While I reckon that the Claimant posited that he was not paid at all any of the allowances or bonuses, he admitted during cross examination that he was not owed salaries at the time of termination of his employment. This suggests that the Claimant was paid his salaries in one form or the other by the Defendant. The Claimant could at least present the means by which he receives the payment such as bank statement to establish the fact that he never received allowances or bonuses from the Defendant. In the absence of such scintilla of evidence, it is most difficult and impracticable for the court to grant the claim of the specified sum.
In view of the lack of proof therefore, the second and third particularized claim fails and they are accordingly refused.
With regards to the fourth particularized claim which is for redundancy allowance put at N1,007.000.00 computed at 20% of basic salary multiplied by 4 years and 5 months. The Claimant predicated this claim on the fact that the letter of termination of appointment (Exhibit C4) states that:
“After a careful and critical analysis of the Company’s operation vis-à-vis present optimal growth, the management has decided to cut down their overhead to meet up with their investment returns.
As a result of the above, I have been directed to inform you that your service is no more required with effect from 1st October, 2013”
The Claimant considers the foregoing paragraphs to mean that he was rendered redundant and should have been paid redundancy allowance. Counsel to the Claimant wants the court to find that the Claimant was put on involuntary but permanent loss of employment within the context of section 20(3) of the Labour Act and follow same up by holding that the Claimant is entitled to redundancy benefit which is computed at N1,007,000.00 since the Defendant failed to negotiate any sum in line with the Labour Act. While the Defendant denied any such claim, counsel to the Defendant did not proffer any argument in this regard.
Consequently, in determining the Claim, I reckon the provision of section 20 of the Labour Act which makes provision on redundancy and in the context of the definition proffered in subsection (3) which states that “redundancy” means an involuntary and permanent loss of employment caused by an excess of manpower, it is not difficult to ascertain that the Defendant indeed terminated the employment of the Claimant on the ground that it intended to reduce excess man power which is one of the variables of overhead cost.
However, the Defendant added that the service of the Claimant is no more required and the Defendant has capacity to say so in view of the notion that you cannot force a willing servant on an unwilling master.
What is left to be determined is whether the Claimant is entitled to redundancy allowance as Claimed.
In that regard, it is trite law that he who hires also has the capacity to fire as no court can impose an employee on an employer. The employer reserves the right to terminate the employment of an employee at any time for any reason or for no reason at all. So long as the termination is in accordance with the terms of their contract express or implied. See Ihezukwu v UniJos (1990) NWLR (Pt.146), Ativie v Kablemetal (Nig) Ltd (2008) 10 NWLR (Pt.1095) 399.
In addition, it must be said that the employer has unfettered right to terminate the employee’s employment. The motive for the termination does not render the exercise ineffective. What is essential is that the firing must be done in accordance with the terms and conditions of the employment. See Organ & Ors v NLNG (2013) 16 NWLR(Pt.1381).
It is also the position of the law that the employer is not under obligation to prove the reason where one is given at all. The court in Ihezukwu v. University of Jos (1990) NWLR (Pt.146) 598 posited that:
“Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.” PER WALI J.S.C. (P.21, paras.D-E).
Where the contract of employment can be terminated by either party upon giving of notice or payment of the equivalent of salary for the period of notice, the quantum of damages is the amount the employee would have earned over the period of notice. In the instant case, the Claimant is not challenging the termination of his employment but contends that he is not paid a satisfactory sum.
In this regard, the Claimant failed to present credible and convincing evidence as to how much was paid in lieu of notice via a cheque presented to him to enable the court determine whether he was short paid.
On the totality of the pleadings and evidence adduced, the Claimants did not establish a case of redundancy which is a unique way of disengaging an employee and how the computed sum can be granted as redundancy allowance as the employment letter made no provision for redundancy allowance.
In view of the absence of the provision, I must state that the terms of a contract is binding between parties thereto and is sacrosanct. It cannot be altered or rewritten by the parties, except under their agreement. In the same token, even the court cannot so alter such contract…A court is not to go outside the terms and rewrite the contract for the parties, by making awards not established by evidence from the agreed terms. See RENE ANTOUN & ANOR V. BENSON OGHENE (2012) LPELR-8502(CA) Per DANJUMA, J.C.A (P. 21, paras. A-F)
It is also settled law that parties to an agreement or contract are bound by the terms and conditions of the contract they signed. The Claimant cannot bring in terms outside the contract (employment letter). In the instant case, it is clear that the Defendant has a right to bring the relationship to an end in either of the four modes permissible by law: termination, retirement, redundancy and summary dismissal. The Defendant chose the path of termination by serving the Claimant with Exhibit C4. The Claimant has failed to prove with the aid of cogent and compelling evidence how he is entitled to benefits not covered by the terms of his employment.
Consequently, the Claim for redundancy allowance must fail and same is hereby refused.
That said, relief two which is for Ten Percent (10%) interest per month on the sum of =N=2,144,937.50 from the date of judgment until judgment sum is fully liquidated, is dependent on the success of relief (1) in respect to the particularized claims which have been separately addressed. Needless to state that upon failure of the said relief one, relief two is also bound to fail and same is accordingly refused.
It goes without saying therefore that the sole issue for determination is resolved against the Claimant to the effect that the Claimant is not entitled to the reliefs sought due to lack of evidence before this court.
In the final analysis, the case of the Claimant lacks merit and same is accordingly dismissed in its entirety.
Judgment is accordingly entered.
Each party should bear their own cost as I make no order in respect of same.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE
