IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
DATE: 28th February 2019
SUIT NO. NICN/LA/613/2015
BETWEEN
MRS. ACHINIVU CHINYERE
CLAIMANT
AND
GLOBAL SCANSYSTEMS LIMITED
DEFENDANT
REPRESENTATION:
Mrs. Mmesoma Joy Unaeze for the Claimant
No legal representation for the Defendant.
JUDGMENT
- The Claimant by a Complaint and statement of claim dated and filed on 7th December 2015 claimed against the Defendant as follows:
- An order to the Defendant to pay to the Claimant the sum of N12, 048,991.62 [twelve million, forty-eight thousand, nine hundred and ninety – one naira, sixty-two kobo] only being accumulated wages, salaries, allowances, leave grants and severance benefits from the 15th day of September 2006 to the 29th day of September 2015, being special damages.
Alternatively
- The sum of N2, 077,625.88 [two million, seventy-seven thousand, six hundred and twenty-five naira eighty-eight kobo] only being the sum agreed by the Defendant to be due to the Claimant pursuant to the letter of ceasation [sic] of contract/employment dated the 29th day of September 2015, issued to the Claimant by the Defendant as special damages.
Particulars of special damages
| S/N | ITEMS | AMOUNT |
| 1. | Outstanding deductions from October 2012 – August 2013 | 374, 151.48 |
| 2. | End of contract benefit [under the destination inspection] | 1, 703, 474.40 |
| TOTAL | 2, 077,625.88 |
- The sum of N20, 000,000 [twenty million naira] being general damages for breach of contract of employment, detention of the sum as stated in relief ‘B’ above and the cost of this suit.
The Claimant filed with the Complaint a statement of claim, list of witness, statement on oath, verifying affidavit, list of documents and copies of the documents. The originating processes were served on the Defendant on 17th December 2015 and subsequently on Fortress Solicitors, Legal Practitioners acting for the Defendant on 24th March 2017. The Defendant did not file any defence processes and did not take part in the trial in spite of service of hearing notices on the Defendant and its Counsel. Trial commenced on 26th November 2018 and was concluded on 13th December 2018. The Claimant adopted her statement on oath dated 7th December 2015 as her evidence in the suit and tendered 7 exhibits, exhibits 1 to 7. Exhibit 1 is the letter of employment dated 15th September 2006, exhibit 2 is renewal of employment, exhibit 3 is her pay slips for November to December 2013. Exhibit 4 is copy of letter from “All Staff” to “MD/CEO and all Management Staff” requesting for a meeting. Exhibit 5 is letter of cessation of contract dated 29th September 2015. Exhibit 6 is a computer print-out of the Claimant’s Diamond Bank Plc statement of account and exhibit 7 is a copy of Emeka Ozoani & Co. letter dated 9th November 2015 to the Defendant. Due to the absence of the Defendant and non-filing of its defence processes, the Defendant was foreclosed from cross-examining the Claimant and presenting its defence. The case was thereafter adjourned for adoption of final written addresses. On 5th February 2019, learned Counsel for the Claimant, Mrs. Unaeze, adopted the Claimant’s final written address dated and filed on 18th January 2019 as her arguments in support of the claim. The matter was consequently set down for judgment.
COURT’S DECISION
- I have read the processes filed in this suit together with the exhibits and considered the submission of learned Counsel for the Claimant. The facts of this case are simple. The Claimant was employed by the Defendant as Supervisor, Classification/Evaluation effective 11th September 2006. She was confirmed on 11th June 2007. Her contract of employment was renewed on 1st June 2013 for a period of six months. The contract continued after expiration of six months until it was terminated by the Defendant by letter dated 29th September 2015, exhibit 5. Exhibit 5 also contains the Claimant’s terminal benefits in the sum of N2, 077, 625.88. The Claimant raised one issue for determination to wit, whether on a balance of probability the Claimant has proved his [sic] case to be entitled to the reliefs claimed? It was submitted that “on the face of the statement of claim, other accompanying processes and the evidence” before the Court the Claimant has proved her case and entitled to the reliefs claimed against the Defendant. Learned Counsel argued that to succeed in an action for breach of contract of employment, the Claimant must establish not only the breach but also the existence of an enforceable contract and referred to Best [Nig] Ltd. v Blackwood Hodge Nig. Ltd. & Anor. [2011] LPELR – 776[SC]. She contended that the contract between the Claimant and the Defendant is an enforceable contract as all principles governing the making of a valid contract were met; and the remedy for breach of the contract is damages and cited Olarewaju v. Afribank Nig. Plc [2001] LPELR – 2573[SC] at page 29. She argued further that where a party alleges wrongful termination of employment, the onus is on her to prove not only the existence of a contract of employment but the terms breached by the employer and referred to Organ & Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2013] LPELR – 20942[SC]. It was submitted that the Claimant has proved existence of an enforceable contract of employment, the terms breached and her accumulated wages, salaries, allowances, leave grants and severance benefits and therefore entitled to damages and referred to Olarewaju v. Afribank Nig. Plc [supra]. Learned Counsel contended that due to the failure of the Defendant to file its defence and participate in the trial, the evidence adduced by the Claimant is unchallenged, uncontradicted and uncontroverted; and the Claimant has discharged the minimal burden of proof cast on her and relied on Majekodunmi & Ors. v. Ogunseye [2017] LPELR–42547[CA] at pages 53 – 56 and Khaled Barakat Chami v. UBA Plc [2010] SC 23 at 39- 40.
- I adopt the issue for determination formulated by the Claimant with a slight modification, that is, whether the Claimant has proved her case on a balance of probabilities to entitle her to judgment? It is settled law that the burden of proof is on the Claimant who alleges wrongful termination of her employment and she discharges this burden by setting out the terms and conditions of her contract of service and the manner in which it was breached. See sections 131[1] and 133[1] of the Evidence Act 2011 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21, Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31 and Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 – 761. Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible notwithstanding the absence of a defence, see Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. From the totality of evidence presented by the Claimant it is clear that this is an ordinary master and servant relationship. The documents regulating the contract of service are exhibits 1 and 2, the letter of employment and the letter of renewal of employment. In Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25, it was held that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of the parties thereto. The thrust of the Claimant’s complaint is that in terminating her employment the Defendant did not give her the agreed one month’s notice or one month’s salary in lieu of notice. It is also her complaint that since termination of her employment, the Defendant has refused to credit her account with her earned wages and this has caused her great hardship and financial embarrassment. I find as a fact that the Claimant’s previous employment was not formally terminated before a fresh contract was offered to and accepted by the Claimant, exhibit 2. While it is trite law that an employer can terminate the contract with its employee at any time for any reason or for no reason at all, if the termination is not in accordance with the terms of the contract, the termination will be wrongful and the employer is liable to pay damages, which is the agreed period of notice. See Raphael Ogumka v. Corporate Affairs Commission [2010] LPELR-4891[CA] at pages 21-22 and New Nigeria Newspapers Limited v. Mr. Felix Atoyebi [2013] LPELR-21489[CA] at pages 79-80. However, the instant case presents a different scenario. While the old contract was subsisting, the Defendant offered the Claimant a fresh contract for a fixed term of six months on enhanced salary package, which offer was accepted without question. By this act, the old contract was rescinded and automatically came to an end. Having accepted the “renewal contract” without complaint, the Claimant cannot now be heard to complain of breach of contract. See Chitty on Contracts, volume 1, paragraphs 22-034 and 22-046. After acceptance of the “renewal contract”, parties carried on under the new contract without reference to the old contract except for the promise to pay accrued terminal benefits under the old contract. Therefore, the issue of breach of the contract of employment raised in paragraph 5 of the Claimant’s statement on oath does not arise. The Claimant, in my view, has waived her right to insist on one month notice or one month’s salary in lieu of notice. In other words, the Claimant is estopped from claiming breach of the terms of the old contract. Also, it should be noted that the renewal contract was for a fixed term of six months, see paragraph one and item 1 of paragraph two of exhibit 2. Ordinarily, where a contract of employment is for a fixed term it is not terminable before expiration of that term. See Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & 2Ors. [2008] LPELR-3052[SC] at page 26. However, parties can agree on length of notice to be given for termination before expiration of the term. See Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & 2Ors. [supra]. This was done in this case. Item no. 4, paragraph 2 of exhibit 2 provides that “During the period of this employment, either party will be at liberty to terminate the employment contract after giving a one month notice or one month salary will be paid in lieu of notice.” This provision, it should be noted, is only applicable where the contract is determined before expiration of the fixed term of six months. There is nothing before me to show that the Claimant’s employment was terminated before the expiration of the six months term. Accordingly, the claim for wrongful termination of employment has not been made out. Parties are bound by the terms of their contract. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] 30. This is so notwithstanding that the contract continued after expiration of six months. There is no evidence before me that the terms were renegotiated.
- This leads me to a consideration of the Claimant’s claims. The first relief is for an order to the Defendant to pay to the Claimant the sum of N12, 048,991.62 [twelve million, forty-eight thousand, nine hundred and ninety – one naira, sixty-two kobo] only being accumulated wages, salaries, allowances, leave grants and severance benefits from the 15th day of September 2006 to the 29th day of September 2015, being special damages. There is nothing in the Claimant’s statement on oath or exhibits in proof of this claim. The basis of computation was not set out in the pleading and the Claimant’s evidence. What the accumulated wages, salaries, allowances, leave grants and severance benefits are or her monthly salary were not set out in her pleading and statement on oath. Although the Claimant tendered her November and December 2013 pay slips, exhibit 3, there is nothing in her statement on oath linking the pay slips to her case or in any way explaining that the net pay stated therein was her monthly salary at the time of termination of her employment. It is settled law that the fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on her to link her document with her case. See Prof. Bukar Bababe v. Federal Republic of Nigeria [2018] 7-10 SC 1 at 122. The Claimant tendered exhibits 4 and 7 but her name does not appear in either of the exhibits and the amount claimed against the Defendant was not stated in the exhibits. It is immaterial that reference is made to “all staff” in exhibit 4 and “employees of Global Scansystems Ltd” in exhibit 7. She is to all intents and purposes a stranger to these documents and no benefit inures to her from it. This claim being a claim for special damages must be specifically pleaded and strictly proved. See U. T. C. Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 34. There is no such proof. The claim therefore fails and it is dismissed.
- I will now proceed to consider the alternative claim, which is for the sum of N2, 077,625.88 [two million, seventy-seven thousand, six hundred and twenty-five naira eighty-eight kobo] only being the sum agreed by the Defendant to be due to the Claimant pursuant to the letter of cessation of contract dated the 29th day of September 2015, issued to the Claimant by the Defendant as special damages. Again, there is nothing in the Claimant’s pleading and statement on oath in proof of this claim. Reference appears to have been made in paragraphs 13 and 14 of her statement on oath to exhibit 5. However, the content of exhibit 5 is materially different from the evidence in paragraph 13. For clarity it is reproduced here.
“13. That the letter referred to in paragraph 10 above was never responded to by the Defendant. However, on the 29th day of September, 2015, the Claimant was issued with a letter by the Defendant titled; “CEASEATION OF CONTRACT/ APPOINTMENT’, wherein the Defendant by the said letter of ceasation of contract back-dated same to the 31st day of August, 2015, despite the fact that the Claimant had worked for the month of August and September 2015.”
It is trite law that a document is tendered to support facts relied on by the pleader, see Brawal Shipping [Nigeria] Limited v. F. I. Onwadike Co. Limited & Anor. [2000] LPELR-802[SC] at page 20 and Mr. Osamata Macaulay Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] at page 41. Also, it is the law that where the contents of a document are material to a case to set out the relevant parts of that document in the pleading. See Muyideen Abdul-Raheem Tejumade & Anor. v. Ogunyemi Michael Olanrewaju & 3Ors. [2015] LPELR-25985[CA] at pages 53-54. There is no connection between exhibit 5 and the facts averred in paragraph 13. Exhibit 5 is at variance with the facts averred in that paragraph and it is settled law that evidence which is at variance with an averment in a pleading goes to no issue and must be disregarded by the Court, see Chief J. A. Ademeso v. Mrs. Maria Okoro & 2Ors. [2005] LPELR-121[SC] at page 12. If exhibit 5 was tendered to prove the amount admitted by the Defendant as due and owing to the Claimant, there are no facts in the statement of facts or statement on oath which serve as a foundation for it or which this exhibit is intended to prove. The content of exhibit 5 is material to the Claimant’s case and ought to have been set out in the pleading and statement on oath as constituting admission by the Defendant. See Muyideen Abdul-Raheem Tejumade & Anor. v. Ogunyemi Michael Olanrewaju & 3Ors. [supra]. This was not done. Exhibit 5 was mentioned for the first time in paragraphs 14[b] and 17[b] of the statement of facts and statement on oath respectively. It was set out as the Claimant’s claim but there was no pleading or evidence in support of the claim. Something must give rise to a conclusion or relief in a case. There is none here. The Claimant jumped to her claims in paragraphs 14 and 17 of the statement of facts and statement on oath respectively without laying necessary foundation for the claim for N2, 077,625.88. I admit that she set out the particulars of special damages but she did that at the claim’s section. It was not set out in the body of her pleading and evidence. As a matter of law, every pleading must contain a statement of all material facts which a party bases her claim. Pleading is a delicate art, which requires considerable tact, assiduity, effort and circumspection. Counsel should be more careful in settling pleadings and not plead with an air of careless abandon, or so to say, take anything for granted. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] LPELR-2574[SC] at page 31 and Alfa System Company Ltd. & 2Ors. v. Keji Orisajimi & 11Ors. [2016] LPELR-40295[CA] at pages 35-36. In the circumstance, the Claimant has not proved her claim for judgment for the sum of N2, 077,625.88. I have laboured to see that the Claimant is not unwittingly denied of a remedy. However, my efforts met a brickwall as I would be going against the kernel of adjudication that a Judge cannot make a case for a party who has failed to make a case for herself or mend defects in pleading. In the words of Augie, J.C.A. [as he then was] in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084[CA] at page 30, Courts are not a carpenter’s workshop where Judges mend defects in pleadings. Although the Claimant has a good case against the Defendant, by a defect in her pleadings she cannot be awarded judgment as claimed. At the same time, it will run against the principles of justice to dismiss the claim because where there is a wrong there must be a remedy. See Michael Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] 43. The proper order to make in the circumstance is one of non-suit. See Obed Okpala & Anor. v. Richard Ibeme & 9Ors. [1989] LPELR-2512[SC] at page 29, Arc. Akin Olusola & 3Ors. v. Trusthouse Properties Ltd. & Anor. [2010] LPELR-4769[CA] at page 36 and Chinelo Okoye v. Grunz Link Ltd. [2013] LPELR-20375[CA] at pages 19-20. I have listened to the further arguments of learned Counsel for the Claimant on the need to enter judgment in favour of the Claimant instead of a non-suit and read the additional authorities supplied particularly the decisions in Mr. Obagbamigbe Temitope v. Global Scansystems Limited, Suit no. NICN/LA/310/2016 and Mr. Hassan Olatunji Adeogun v. Global Scansystems Limited, Suit no. NICN/LA/572/2015 delivered by Hon. Justice J. D. Peters. Also, I have looked at the case of Henry B. Phillips v. Joseph O. Ogundipe [1967] LPELR-25316[SC] at pages 4-5 cited by learned Counsel. The facts of that case are materially different from the facts of the instant suit and so that authority does not support the Claimant’s case. It is the law that a case is authority for what it actually decided. See Prof. Bukar Bababe v. Federal Republic of Nigeria [supra] at 29. What stands out clearly from the other cases decided by my learned brother is that the Claimant must prove her case to be entitled to judgment. The Court is not a Charity that gives judgment to every Claimant with or without proof. With all due respects to learned Counsel, this proof is lacking in the instant case. Consequently, I make an order of non-suit against the Claimant in respect of her claim for the sum of N2, 077,625.88 pursuant to Order 46 rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017.
- The next claim is for the sum of N20, 000,000 [twenty million naira] being general damages for breach of contract of employment, detention of the sum as stated in relief ‘B’ above and the cost of this suit. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. General damages are losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31 and Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at page 54. I have found earlier in this judgment that there is no proof of breach of the contract of employment by the Defendant. In the circumstance, there is no justification to award general damages against the Defendant. The claim for N20, 000,000 general damages therefore fails and it is dismissed.
- On cost of the action, cost follows event. Pursuant to Order 55 rules 1 and 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and taking into consideration the age of the case, the processes filed by the Claimant including the letters to the Defendant and fees paid, cost of N100, 000 [one hundred thousand naira] is awarded in favour of the Claimant against the Defendant payable within 7 days from the date of this judgment.
- Before I conclude, I would like to comment on paragraph 13 of the Claimant’s statement on oath relating to the letter of cessation of contract which is dated 29th September 2015 but made effective on 31st August 2015. It is the law that a letter takes effect from the date of delivery and not otherwise, see Mr. Victor Eka v. Mr. Caleb Adetunji Bodunrin Kuju [2013] LPELR-22124[CA] at page 16, Kayode Bamisile v. National Judicial Council & 3Ors. [2012] LPELR-8381[CA] at page 38 and The West African Examinations Council v. Felix Iwame Oshionebo [2006] LPELR-7739[CA] at page 17. Consequently, a notice of termination of employment takes effect from the date of service of the letter on the employee. The attempt by the Defendant to back date the effective date of the letter of cessation of the Claimant’s employment to 31st August 2015 is wrongful and of no effect. The Claimant having worked till 29th September 2015 when she received the letter of cessation of contract is entitled to her salary for August and September 2015, which she did not claimed in this suit.
- On the whole, reliefs one and three fail and are hereby dismissed. Having found that the Claimant has a good case against the Defendant but, by a defect in her pleadings she cannot be awarded judgment as claimed, and it will run against the principles of justice to dismiss the claim; I make an order of non-suit against the Claimant in respect of her claim for the sum of N2, 077,625.88. Judgement is entered accordingly.
………………………………………….
IKECHI GERALD NWENEKA
JUDGE
28/2/19
