Mrs. Babatope Victoria Kemi -VS- Global Scansystems Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 9th April 2019 SUIT NO. NICN/LA/21/2016

BETWEEN

MRS. BABATOPE VICTORIA KEMI … CLAIMANT

AND

GLOBAL SCANSYSTEMS LIMITED … DEFENDANT

REPRESENTATION:

Mrs. Mmesoma Joy Unaeze for the Claimant

I. Are for the Defendant.

JUDGMENT

By her complaint and statement of claim dated and filed on 18th January 2016, the Claimantclaimed against the Defendant for:

An order to the Defendant to pay to the Claimant the sum of N6, 362,766.10 [six million, three hundred and sixty-two thousand, seven hundred and sixty-six naira, ten kobo] only being accumulated wages/salaries, allowances, leave grants and severance benefits from the 7th day of June 2007 to the 29th day of September 2015, being special damages.

Alternatively, the sum of N1, 946, 589.39 [one million, nine hundred and forty-six thousand, five hundred and eighty-nine nairathirty-nine 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 – December 2013	374, 151.48
2.	End of contract benefit [under the destination inspection]	1, 572, 437.91
	TOTAL	1, 946, 589.39

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

The Claimant filed with hercomplaint list of witnesses, statement on oath, verifying affidavit, list of documents and copies of the documents. The processes were served on the Defendant through its Solicitors, Fortress Solicitors, 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. Trial commenced on 26th November 2018. The Claimant adopted her statement on oath dated 18th January 2016 as her evidence in the suit and tendered 8 exhibits, exhibits 1 to 8. Exhibit 1 is offer of employment as marketing officer dated 7th June 2007, exhibit 2 is confirmation of appointment, exhibit 3 is salary review, exhibit 4 is renewal of employment, exhibit 5 is her pay slip for June 2013. Exhibit 6 is letter of cessation of contract dated 29th September 2015. Exhibit 7 is a computer print-out of the Claimant’s Diamond Bank Plc statement of account and exhibit 8 is a copy of Emeka Ozoani& Co. letter dated 9th November 2015 to the Defendant. The case was thereafter adjourned to 13th December 2018 for cross-examination and defence. On 13th December 2018, the Defendant was absent and unrepresented by Counsel. Due toits absence and failure to filea defence, the Defendant was foreclosed from cross-examining the Claimant and presenting its defence. The case was thereafter adjourned for adoption of final written addresses. On 5th February 2019, learned Counsel for the Claimant, Mrs. Unaeze, adopted the Claimant’s final written address dated and filed on 18th January 2019 as her arguments in support of the claim. The matter was consequently set down for judgment.

COURT’S DECISION

I have carefully read the processes filed in this suit together with the exhibits and considered the submissions of learned Counsel for the Claimant. A summary of the facts as gleaned from the statement on oath and supporting exhibits is that the Claimant was employed by the Defendant as Marketing Officer effective from 11th June 2007. Her employment was confirmed on 7th August 2008 and renewed on 1st June 2013 for a period of six months on an annual salary N3, 283,189.64. The contract continued after expiration of six months until it was terminated by the Defendant on 29th September 2015. By exhibit 6 dated 29th September 2015, the Defendant set out the Claimant’s terminal benefits asN1, 946, 589.39 which was not paid to the Claimant hence this action. The Claimant raised one issue for determination in her final written address, 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 contract is damages and relied onOlarewaju 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 by the Defendant and her accumulated salaries, allowances, leave grants, severance benefits and therefore entitled to damages and referred to Olarewaju v. Afribank Nig. Plc [supra]. Learned Counsel explained that the Defendant was not represented at the trial in spite of service of several hearing notices on it and did not file any defence.She argued that the consequence in law is that the evidence adduced by the Claimant is unchallenged, uncontradicted and uncontroverted.Relying on Majekodunmi&Ors. v. Ogunseye [2017] LPELR–42547[CA] at pages 53 – 56, she submitted that in the circumstance only a minimum proof is required and the Claimant has discharged the burden of proof placed on her.
Undoubtedly, this is an undefended suit. I will 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? The law is trite 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 136[1] of the Evidence Act 2011 and United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21 and Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 – 761. While it is true that the failure of the Defendant to file a defence and cross-examine the Claimant’s witness makes the Claimant’s evidence unchallenged and uncontradicted and liable to be accepted and acted upon by the Court; yet that does not automatically entitle the Claimant to judgment. The evidence presented by the Claimant must on its own ground the relief sought. Where the Claimant fails to prove her case on a preponderance of evidence, her case would fail notwithstanding the absence of defence. See Mrs. MulikatuErinfolami v. Pius Oso [2011] LPELR-15357[CA] at page 18. This is a case of master and servant and the documents regulating the contract of service are exhibits 1, 2, 3 and 4;the offer of appointment, confirmation of appointment, salary review and renewal of employment respectively and these are the documents that define the terms of the contract of service. SeeFrank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25. 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 case that there was a discrepancy between the agreed salary and what she eventually received after renewal of her contract; and that since termination of her employment, the Defendant has refused to credit her account with her earned wages which caused her great hardship and financial embarrassment.

After a painstaking review of the evidence, 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 4. While it is settled law that an employer can terminate the contract with its employee at any time for any reason or for no reason at all, it is equally the law that if the termination is not in accordance with the terms of the contract; the termination will be wrongful and the employer will be liable to pay damages, which is the agreed period of notice,see New Nigeria Newspapers Limited v. Mr. Felix Atoyebi [2013] LPELR-21489[CA] at pages 79-80. However, the circumstances of this case are different. There appears to be a mutuality of purpose. While the old contract was subsisting, the Defendant offered the Claimant a fresh contract for a fixed term of six months on an enhanced salary package, which offer was accepted without question. By this act, the old contract automatically came to an end by agreement of both parties.Having accepted the renewal of her employmentfor a fixed term without complaint,the Claimant cannot now complain of breach of the contract of employment. See Chitty on Contracts, 29th edition, volume 1, paragraphs 22-034 and 22-046.From June 2013 parties carried on under the new contract without reference to the old contract except for the promise to pay accrued terminal benefits under the old contract. Therefore, the issue of breach of the contract of employment raised in paragraph 5 of the Claimant’s statement on oath does not arise. The Claimant, in my view, has waived her right to insist on one month notice of termination of her appointment 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, see Duncan Maritime Ventures Nigeria Limited v. Nigeria Ports Authority [2019] 1 NWLR [pt. 1652] 163 at 183, 186. Also, it should be noted that the new contract was for a fixed term of six months, see paragraph 2[1] of exhibit 4; which states:

“The duration of this employment shall be six [6] months.”

Ordinarily, where a contract of employment is for a fixed term it is not terminable before expiration of that term. However, parties can agree on length of notice to be given for termination before expiration of the term, see Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. & 2Ors. [2008] LPELR-3052[SC] at page 26. This was done in this case. Paragraph 2[4] of exhibit 4 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. The operative phrase is “during the period of this employment…” The word ‘during’ was defined in the Longman Dictionary of Contemporary English, new edition for Advanced Learners as “from the beginning to the end of a period of time” and “at some point in a period of time”. That is to say, the notice must be given during the currency of the renewed contract, which isthe period of six months from 1st June 2013.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 her employment has not been made out. Parties are bound by the terms of their contract. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] 30. This is so notwithstanding that the contract continued after expiration of six months. There is no evidence before me that the terms of the new contract were renegotiated.

This leads me to a consideration of the Claimant’s claims. The first relief is for an order to the Defendant to pay to the Claimant the sum of N6, 362,766.10 [six million, three hundred and sixty-two thousand, seven hundred and sixty-six nairaten kobo] only being accumulated wages/salaries, allowances, leave grants and severance benefits from the 7th day of June 2007 to the 29th day of September 2015, being special damages. There is no evidence in proof of this claim. The basis of computation of the sum of N6, 362,766.10was not set out in the pleading and the Claimant’s statement on oath. What the accumulated wages, allowances, leave grants and severance benefits are and her monthly salary for that period were not set out in her pleading and statement on oath. Although the Claimant tendered her June 2013 pay slip, exhibit 5, there is nothing in her statement on oath linking the pay slip to her case or in any way explaining that the net pay stated therein was her monthly salary from 7th June 2007 to 29th September 2015 when her employment was terminated. It is trite law that the burden of proof of a specific fact is on the person who asserts and who will lose if no credible evidence is adduced, see section 136[1] of the Evidence Act, 2011 and U.B.N. Plc v. Ravih Abdul & Co. Ltd. [2019] 3 NWLR [pt.1659] 203 at 224.The law is also settled that the fact that a document was tendered in the course of proceedings does not relieve the party tendering it from satisfying the legal duty placed on her to link the document with her case. See Prof. BukarBababe v. Federal Republic of Nigeria [2018] 7-10 SC 1 at 122.The Claimant tendered exhibits 3 and 8. Exhibit 3 is salary review, it was not pleaded and there is no evidence linking it with the Claimant’s case. Also, exhibit 8does not refer to the Claimant by name and no amount of money was claimed therein on behalf of the Claimant. It is immaterial that reference was made in exhibit 8 to “employees of Global Scansystems Ltd”. Paragraph one of exhibit 8 made reference to ‘Schedule A’ which was not attached. She is to all intents and purposes a stranger to this document 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. The facts giving rise to this claim were notpleaded and there is nothing in statement on oath in proof thereof. This claim therefore fails and it is dismissed.

I will now proceed to consider the alternative claim, which is for the sum of N1, 946, 589.39 [one million, nine hundred and forty-six thousand, five hundred and eighty-nine naira thirty-nine 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. He who asserts must prove, see U. B. N. Plc v. Ravih Abdul & Co. Ltd. [supra]. Reference appears to have been made in paragraphs 11 and 12 of the statement of claim and paragraphs 12 and 13 of her statement on oath to exhibit 6. However, the content of exhibit 6 is materially different from the evidence in paragraph 12. For clarity it is reproduced here.

“12. That the letter referred to in paragraph 11 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[s] 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 relevant parts of that documentmust be set out 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 6 and the facts averred in paragraph 12. Exhibit 6 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 6 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 6 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 6 was mentioned for the first time in paragraphs 15[b] and 16[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 15 and 16 of the statement of facts and statement on oath respectively without laying necessary foundation for the claim for N1, 946, 589.39. 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. There is a difference between the pleading and the reliefs claimed, see Matthew Iyeke& 25Ors. v. Petroleum Training Institute & Anor. [2019] 2 NWLR [pt.1656] 217 at 240.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, effort and circumspection. Counsel settling a pleading should be painstaking and ensure that pleaded facts support the case the party is making and not 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. KejiOrisajimi& 11Ors. [2016] LPELR-40295[CA] at pages 35-36. From the totality of the evidence, the Claimant has not discharged the onus of proving her entitlement to the sum of N1, 946, 589.39. Sad as this may be, it is not the business of the Court to make a case for a party who has failed to do so or to mend defects in pleading.In the words of Augie, J.C.A. [as he then was] in Chief James Onyewuke v. ModuSule [2011] LPELR-9084[CA] at page 30, Courts are not a carpenter’s workshop where Judges mend defects in pleadings. The Court is not a charitable institution that gives judgment to every Claimant with or without proof. Its duty, in civil cases, is to render to everyone according to his proven claim, see Matthew Iyeke& 25Ors. v. Petroleum Training Institute & Anor. [supra] at 240. This claim therefore fails and it is dismissed.

The next claim is for the sum of N5, 000,000 [five million naira] being general damages for breach of contract of employment, detention of the sum as stated in relief ‘B’ above and the cost of this suit. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. General damages are losses 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 N5, 000,000 general damages therefore fails and it is dismissed. On cost of the action, cost follows event. However, the Claimant failed to prove her case in its entirety and she is therefore not entitled to cost.

Before I conclude, I would like to comment on paragraph 12 of the Claimant’s statement on oath relating to the back-dating of cessation of her contract of employment to 31st August 2015. It is settled law that a letter takes effect from the date of delivery and not otherwise, see Mr. Victor Eka v. Mr. Caleb AdetunjiBodunrinKuju [2013] LPELR-22124[CA] at page 16 and Kayode Bamisile v. National Judicial Council & 3Ors. [2012] LPELR-8381[CA] at page 38.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 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 her contract of employment is entitled to salary for the months of August and September 2015. Sadly, she did not make any claim for payment of her salary for August and September 2015.