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National Industrial Court

OBINNA EMECHETA VS CHI PHARMACEUTICALS CO. NIG. LTD.

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   IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 24th October 2018         

                  

SUIT NO. NICN/EN/96/2015

 

BETWEEN

 

OBINNA EMECHETA    

                                                        

CLAIMANT

 

AND

 

CHI PHARMACEUTICALS CO. NIG. LTD.

                            

DEFENDANT

                            

REPRESENTATION:

 

Nnaemeka Eze Esq. with Chukwuka Ndubuisi Agama Esq. for the Claimant

Mejulu Henry Esq. with Chinyere Ada Okoro Esq., Obianuju Agu Esq. and Chinyere Ewenwa Esq., for the Defendants.

JUDGMENT

 

  1. This suit was commenced by a Complaint dated 28th September 2015 and by an amended statement of claim dated 19th March 2018, the Claimant claimed against the Defendant for:

  1. The sum of N5, 046,197.24 being unpaid salaries between April 2015 to January 2018.

  1. N109, 699.94 per month from February 2018 till the Claimant is formally disengaged.

  1. General Damages: N100, 000,000

  1. The Claimant filed with the General Form of Complaint a complaint, list of witnesses, his statement on oath, list of documents and copy of his pay slip for February 2015. Upon receipt of the originating processes the Defendant, through its Solicitors, entered an appearance and filed its defence processes and counterclaim on 6th June 2016. The defence processes were regularized on 14th June 2016. By leave of Court granted on 19th October 2017, the Defendant substituted its earlier witness, Miss Oluwatobiloba Akinjogbin, with Mr. Adewale Ariyo and filed the statement on oath of Mr. Adewale Ariyo and additional list of documents. By leave of Court granted on 13th March 2018, the Claimant filed his amended statement of claim, re-sworn statement on oath, list of documents and copies of documents.  The Defendant filed an amended statement of defence and counterclaim, further statement on oath of Mr. Adewale Ariyo, certificate pursuant to section 84[4] of the Evidence Act and copies of documents on 18th May 2018. The Claimant filed a reply to the amended statement of defence and defence to counterclaim, additional list of witnesses, his statement on oath, list of documents and copy of letter of appointment on 28th May 2018. Trial commenced on 21st May 2018 and was concluded on 28th May 2018. The Claimant adopted his statement on oath dated 19th April 2018 and additional statement on oath dated 28th May 2018 as his evidence in the suit and tendered 2 exhibits, exhibit A is his February 2015 pay slip and exhibit B is a copy of his letter of appointment and was cross-examined. The Defendant tendered exhibit C through the Claimant. The Defendant’s witness, Mr. Adewale Ariyo, also adopted his statement on oath dated 18th May 2018 as his evidence in defence of the suit and in proof of the counterclaim and tendered 2 exhibits: exhibits D and E. Exhibit D is copy of email dated 7/9/2015 and exhibit E is Claimant’s account summary. He was cross-examined. The case was thereafter adjourned for adoption of final written addresses. On 17th October 2018, learned Counsel for the Defendant, Miss Ewenwa, adopted the Defendant’s final written address dated 3rd September 2018 as her arguments in support of the defence and counterclaim. Learned Counsel to the Claimant, Mr. Eze, did not file a written address but relied on the Claimant’s evidence. The matter was consequently set down for judgment.

COURT’S DECISION

  1. I have considered the processes filed in this suit and submissions of learned Counsel for the Defendant. The Claimant was employed on 12th January 2009 as Medical Sales representative of the Defendant for Onitsha territory covering Anambra, Enugu, Ebonyi and Benue States. He was on a gross salary of N900, 000 per annum which by February 2015 had risen to N109, 699.94 net per month. By the Claimant’s account, his relationship with the Defendant began to deteriorate in May 2013 when he received a consignment of drugs with three months expiry date. His protestation was rebuffed and consequently he returned 200 packs of the drugs described as Humulin 70/30 10MLS and destroyed 200 packs but the Defendant debited his account with the 400 packs which was worth N880, 000. He claimed that the Defendant refused to pay his salary from April 2014 to January 2018 and accrued a salary arrears of N5, 046, 197.24. He denied exhibit C, his alleged undertaking and liability to the Defendant for the sum of N12, 499,690. The Defendant agrees that the Claimant was its Medical Sales representative for Onitsha territory but averred that the Claimant was paid his monthly salary up till February 2015. Thereafter, the Claimant cut off communication with his line Manager and abandoned his work. The Defendant denied that the drugs it delivered to the Claimant had three months expiry date. It stated that the Claimant acknowledged indebtedness for the sum of N7, 697, 428.10, exhibit C. It is the Defendant’s case that the Claimant did not attend the Cycle meeting of September 2015 which fact was denied by the Claimant. The Defendant counterclaimed against the Claimant for the sum of N12, 499,690 being value of drugs supplied to the Claimant which have not been paid for.

  1. The Defendant raised three issues for determination, namely: whether the Claimant’s employment subsists and has not been terminated? Issue two is whether the Claimant is entitled to the reliefs claimed? Issue three, whether the Claimant is liable to account for and pay the sum of N12, 499,690 to the Defendant? Learned Counsel answered issue one in the negative and explained that by the admission of the Claimant he has not been paid salaries from April 2015. He argued that the Claimant ceased to perform his employment functions and stopped communicating with his line Manager in March 2015 leading the Defendant to consider the employment terminated and referred to paragraph 3 of exhibit B. Learned Counsel also referred to the Claimant’s reply to a question under cross examination that: “I never requested for any order by January 2015” to show that the Claimant did not work for the Defendant from 2015. It was submitted that the abandonment of employment by the Claimant takes effect as a termination which can be implied from his conduct and referred to Shell Petroleum Company of Nigeria Ltd. v. Mr. Joseph Ifeta [2006] 5 NLLR [pt.11] 124 at 147. It was further argued that by stopping payment of Claimant’s salary from March 2015, the Defendant accepted Claimant’s non-performance and absence as termination by him. On issue two, he submitted that it is not open to a party to treat a contract that has been terminated as subsisting and referred to Texaco Nigeria Plc v. Alfred Adegbile Kehinde [2000] LPELR-10000[CA]. It was also submitted that the Claimant’s employment having ceased from February 2015, seeking salaries for work not done is gold-digging and referred to Federal Capital Development Authority & Ors. v. Dr. Charles Nzelu & Anor. [2014] 5 NWLR [pt.1401] 565 at 586 and Mr. C.C. Nwafor v. Anambra State Education Commission & Ors. [2017] LPELR-42026[CA]. Learned Counsel submitted that it is a basic principle of law that once parties join issues on averments in pleadings, the party making the averment has the burden of proving the averment and where no evidence is led in support the averments go to no issue and relied on Francis Arinze v. First Bank of Nigeria Limited [1999] LPELR-5648[CA]. Finally, learned Counsel submitted that having failed to lead evidence in support of his pleadings he is not entitled to the reliefs sought. On issue three, he argued that the Claimant alleged forgery of exhibits C and E against the Defendant without proof in line with section 135[1] and [2] of the Evidence Act 2011. It was also contended that having failed to discharge the burden of proving the allegation of forgery and for the additional reasons stated in the address, exhibits C and E are sufficient credible documentary proof to which substantial weight should be given and urged the Court to resolve issue three in favour of the Defendant. The Claimant did not file a written address.

  1. The issues for determination raised by the Defendant can, in my respectful view, be subsumed into two issues, to wit: 1. Whether the Claimant has proved his case on a balance of probabilities to entitle him to the reliefs sought or any of them? 2. Whether the Defendant has proved its counterclaim to entitle it to judgment? It is settled law that whoever desires the 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. See section 131[1] of the Evidence Act 2011 and the cases of Nigerian Westminister Dredging and Marine Limited v. Chief Tunde Smoot & Anor. [2011] LPELR-4619[CA] at page 36 and Mr. J. E. Irekpita v. Federal Mortgage Finance Ltd. [2010] LPELR-8639[CA] at page 15. To succeed, therefore, the parties must put forward cogent and credible evidence in support of their respective claims. On issue one, parties are agreed that the Claimant was the Medical Sales representative of the Defendant for Onitsha territory covering Anambra, Enugu, Ebonyi and Benue States. The Claimant’s evidence in paragraphs 19 to 23 of his statement on oath dated 19th April 2018, is that his salary from March 2014 to January 2018 was not paid; and that he is still an employee of the Defendant since his employment has not been terminated. This evidence was repeated in paragraphs 13 and 15 of his statement on oath dated 28th May 2018 and this is the thrust of the Claimant’s case. Strangely, this evidence is at variance with his principal claim, relief one, where he claimed the sum of N5, 046,197.24 being unpaid salaries between April 2015 to January 2018. There was no explanation for this discrepancy between the claim and the evidence. The irresistible conclusion is that the Claimant is lying. His evidence is also at variance with his exhibit A, which is his pay slip for February 2015. Although, he claimed in paragraph 15 of his statement on oath dated 28th May 2018 that “The defendant only forwards my pay slip without paying me any money”, he did not tender his statement of account to show if the salary was credited or not. In addition, his evidence of non-payment of salary was contradicted by the Defendant in paragraph 11 of the amended statement of defence and paragraph 12 of its witness’ statement on oath. The evidential burden to prove this fact therefore is on the Claimant. It is for the Claimant to prove that he received the pay slip without the money. It is not for the Defendant to prove that the salary was actually credited to his account. See section 136[1] of the Evidence Act 2011. In Godwin Agbone v. Nulec Industries Limited, Suit no. NICN/LA/427/2012, this Court, per Hon. Mr. Justice B. B. Kanyip, held that salaries are usually evidenced by pay-slips. In the absence of any evidence to the contrary, I accept exhibit A as evidence that the Claimant’s salary was paid till February 2015. This conclusion is reinforced by his relief one, which puts the period of non-payment of salary from April 2015 to January 2018. The effect of the contradiction between the Claimant’s evidence and his relief one is that the evidence is unreliable and must be discountenanced. See Julius Akingbade Afesojaiye v. Racheal Afesojaiye & Anor. [2015] LPELR-24368[CA] at pages 41-42. As it is not the business of the Court to speculate on evidence, it goes without saying that the Claimant has not proved his claim one and the proper thing to do in the circumstance is to dismiss the claim. See Alhaji Ibrahim Mohammed v. Klargester Nigeria Limited [2002] LPELR-1897[SC] at page 17.

  1. The next issue is whether the Claimant is still an employee of the Defendant and consequently entitled to payment of salaries from April 2015 to date? By the Claimant’s admission in paragraph 13 of his statement on oath dated 28th May 2018, he did not place any order by January 2015 and had been redundant since 2014. This means that he has not sold any of the Defendant’s products since 2014. He filed this suit on 28th September 2015 and there is no evidence before me that he worked for the Defendant from September 2015 to today. The Defendant in paragraph 13 of its witness’ statement on oath explained that it “could not continue to pay the Claimant his salaries from March 2015, as the Claimant had stopped all forms of communication with his line Manager who in turn was unable to clear the Claimant which is the usual practice of the Defendant.” In response to this piece of evidence, the Claimant in paragraph 16 of his statement on oath dated 28th May 2018 claimed that “the defendant stopped my salary for no just cause. I dutifully attended to my job but the defendant devilishly decided to make me redundant. I was in continuous contact with my line manager at the time.” This statement is contradictory. He could not have dutifully attended to his job and still be redundant. In fact, this evidence contradicts his earlier statement in paragraph 13 that “I never requested for any order by January 2015.” Under cross examination, he said: “part of my functions was to harness distributors for the company, promote the company’s brands in all Teaching Hospitals in these 4 States including private hospitals and pharmacies.” If this is his principal assignment and from January 2015 he did not place orders for products, how did he dutifully attend to his job? Clearly, the Claimant is not telling the truth. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki Tobi, J.S.C. [of blessed memory] had this to say:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

 

The Claimant’s statements on oath clearly tell a lie. The Claimant is an inconsistent witness, he is probating and reprobating at the same time. I agree with the submission of learned Counsel for the Defendant that there is sufficient evidence of abandonment of his duties. The Longman Dictionary of Contemporary English, new edition for Advanced Learners defined abandon to mean to stop doing something because there are too many problems and it is impossible to continue. Oxford Advanced Learner’s Dictionary, 6th edition defined abandonment as the act of leaving a thing with no intention of returning to it. Paragraph 3 of exhibit B provides:

“Your hour/days of attendance shall be regulated to suit the duties entrusted to you from time to time. However you shall not at any time absent yourself from work without the consent of the company.”

The Claimant’s refusal to place fresh orders and lack of evidence that he attended to his duties or obtained permission from the Defendant to be absent clearly show a disinclination to return to his work. The Defendant’s refusal to pay salaries to the Claimant from March 2015 because he was not working constitutes, in my respectful view, acceptance by the Defendant that the Claimant was no longer its staff. In Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited [2006] LPELR-1436[SC] at pages 35-36, Oguntade, J.S.C., observed:

“Whether Plaintiff’s termination was by oral notice or in writing or the gates of the Defendant’s office were just shut against the Appellant, it ceased to be material on the state of pleadings. The defendant as employer manifested its intention not to keep the plaintiff in its employment from 17-05-91 and the plaintiff recognized and accepted that fact.”

In other words, termination of employment can be inferred from the conduct of the parties, as in this case, where the Claimant refused to place orders and cut off communication with his line Manager and the Defendant stopped his salary. I therefore find and hold that, in these circumstances, the employer and employee relationship has ceased by the conduct of the parties. This being so, the Court will not direct payment of salary to an employee for days he has not worked. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 55 – 56. Even the Bible enjoins that he who does not work should not eat. The Claimant refused to discharge his duties and he is not entitled to salary. In Federal Capital Development Authority & 2Ors. v. Dr. Charles Nzelu & Anor. [2014] 5 NWLR [pt.1401] 565 at 586 [cited by learned Counsel for the Defendant], Yahaya, J.C.A., held:

“No staff of any organization can be entitled to the payment of salaries etc., if he stays at home and refuses to go to work and perform his duties. It is the resumption of duty that is conditional. It is what will entitle them to the financial benefits and promotion.”

This Court, in the case of Rev. Bright Orie Ogwe v. Rev. Daniel E. Etim & 11Ors., Suit no. NICN/ABK/01/2015, a judgment delivered on 26th September 2018, held that:

“However, it is the law that the Court will not direct payment to an employee for days he has not worked. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 55 – 56. Even the Bible enjoins that he who does not work should not eat. The Claimant refused to resume at his new location and there is no evidence that he has worked for the 5th Defendant since January 2015. Consequently, he is not entitled to any salary for the period he has not worked.”

I adopt this reasoning for this case and hold that the Claimant, having not worked for the Defendant since March 2015, is not entitled to any salary for the period of his absence from duty.

  1. This leads me to a consideration of the Claimant’s claims. The first relief is the sum of N5, 046,197.24 being unpaid salaries between April 2015 to January 2018. As I have found above, there is no evidence in proof of this claim. The evidence adduced by the Claimant is at variance with his claim. While in paragraphs 19 to 23 of his statement on oath dated 19th April 2018, he testified that the Defendant did not pay his salary from March 2014 to January 2018; exhibit A showed that he received his salary for February 2015 and his relief one claims for unpaid salaries from April 2015. Also, having found that there is no evidence that he worked for the Defendant after February 2015 and thus not entitled to salary for that period relief one has, consequently, not been proved. Same therefore fails and it is dismissed.

  1. Relief two is for the sum of N109, 699.94 per month from February 2018 till the Claimant is formally disengaged. This claim is based on the Claimant’s assumption that he is still a staff of the Defendant. Generally, where a contract of employment is in writing, as in this case, parties are bound by the express terms and conditions of the contract. A contract of service is determinable by the employer only upon giving the notice stipulated in the contract or payment of salary in lieu of the notice. There is a corresponding right for the employee to determine his services by giving notice as stipulated in the contract of service or payment of salary in lieu of notice. See P. O. U. Iyase v. University of Benin Teaching Hospital Management Board [1999] LPELR-6026[CA] at page 27. By exhibit B, either party is required to give 30 days’ notice to terminate the contract or pay salary in lieu of notice. In this case, neither party gave notice or paid salary in lieu of notice. From the evidence, the Claimant abandoned his duties and cut off communication with the Defendant; which in turn withheld his salaries since his line Manager could not clear him for payment of salary. In this circumstance, there is a constructive termination of the contract of employment by the Claimant. I observed earlier that termination of employment can be inferred from the conduct of the parties, as in this case, where the Claimant refused to place orders and cut off communication with his line Manager and the Defendant in turn stopped his salary. See Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited [supra] at pages 35-36. The contract of employment having come to an end by the conduct of the parties, this Court cannot direct payment of salary to the Claimant for the days he did not work. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [supra] at 55 – 56. Accordingly, this claim fails and it is dismissed.

  1. The third relief is N100, 000,000 general damages. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. They are awarded for breach of contract or breach of duty owed to the Claimant. See Udofel Limited & Anor. v. Skye Bank Plc [2014] LPELR-22742[CA] at pages 41-42. Once a breach of contract is established, damages follow. General damages are presumed to be the direct and probable consequence of the act complained of. They are awarded to assuage a loss which flows naturally from the Defendant’s act in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627[CA] at pages 38-39, Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31 and Syndicated Investment Holdings Limited v. NITEL Trustees Limited & Anor. [2014] LPELR-22952[CA] at page 34. The Claimant has not established any breach of his contract of employment by the Defendant. Rather, it is the Claimant who, in my considered opinion, is in breach of the terms of his employment. The Court is not a Father Christmas that dishes out gifts to every supplicant. Consequently, the Claimant is not entitled to any damages. This relief fails and it is dismissed.

  1. In proof of the counterclaim, the Defendant tendered exhibits C and E. Exhibit C is the Claimant’s written undertaking while exhibit E is a computer-generated account. The Claimant denied liability to the Defendant. See paragraphs 5 to 14 of his statement on oath dated 28th May 2018. Specifically, in paragraphs 10 and 11 of his said statement on oath, the Claimant denied exhibit C and asserted that “the hand writing on the falsely concocted letter does not belong to me and has no semblance whatsoever with my handwriting.” Although, I am not a handwriting expert, pursuant to section 101[1] of the Evidence Act 2011, I have compared the signature of the Claimant on exhibit C with his signature on his originating process, particularly his statement on oath dated 28th September 2015; and I am of the firm view that the signature on exhibit C is the same signature on the Claimant’s statement on oath. In addition, in paragraphs 16 and 17 of his statement on oath dated 19th April 2018, the Claimant admitted that he “reached an amicable settlement” with the Defendant, but was “forced to agree to gradually pay for the drugs which were maliciously imposed on me by the defendant”. In paragraph 19, he confirmed that his March 2014 salary was withheld. Exhibit C does not appear to me to be a document produced by someone under duress. At any rate, this point was not urged on the Court by the Claimant and there is no evidence of duress. The total liability was written in the Claimant’s hand writing as N7, 697, 428.10. This figure corresponds with the attachment to exhibit C which was countersigned by the Claimant. In exhibit C, the Claimant undertook to pay the sum of N4, 000, 000 “before or on 30th June 2014 to bring the debt to the bearest minimum.”

  1. It is settled law that, in the absence of fraud, duress or a plea of non est factum, the signature of a person of full age on a document is evidence that he either authored it or that the contents were brought to his attention. The signature of the Claimant on exhibit C implies full agreement with everything in it. SeeInterdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] LPELR-41907 [SC] at page 23, Yadis Nigeria Limited v. Great Nigeria Insurance Company Limited [2000] LPELR-10365[CA] at pages 20-21. The onus is on the Claimant to show how the debt was repaid. See section 136[1] of the Evidence Act, 2011 and the case of Mrs. Abishag Dan Habu v. Alhaji Kawuji Isa [2012] LPELR-15189[CA] at page 37. It is equally trite law that the evidence in support of a plea of non est factum must be clear and positive to avail the Claimant. See Sylvester D. E. Egbase v. Augustine O. Oriareghan [1985] LPELR-1030 [SC] at page 39. There is no such evidence adduced by the Claimant in this case. Consequently, I find and hold that the Claimant made exhibit C and he is bound by its contents. For this reason, the Claimant’s evidence in paragraphs 4, 10 and 11 of his statement on oath dated 28th May 2018 is an outright falsehood. The evidence of the Defendant’s witness on this issue in paragraph 10 of his further statement on oath dated 18th May 2018 is more plausible and I accept it as correct. See Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [supra] where Niki Tobi, J.S.C. [of blessed memory] held:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

I dare to say that the Claimant’s statement on oath is one of such affidavit evidence; and it is sad when a witness who has sworn to tell the truth the whole truth and nothing but the truth tells a barefaced lie.

  1. The same cannot be said of exhibit E. It was neither signed by the Claimant nor is there any evidence before me that a copy of it was forwarded to the Claimant or a demand made on the Claimant at any time for its repayment. In addition, there is no evidence of orders, invoices or waybills used to ship the products to the Claimant and his acknowledgement of receipt of the goods. Under the best evidence rule, the best evidence is that particular means of proof which is indicated by the nature of the fact under investigation as the most satisfactory; it is the best evidence the nature of the case admits. SeePurification Technique Nig. Ltd. & 3Ors. v. Rufai Jubril & 4Ors. [2012] LPELR-9727[SC] at page 36. This is a trade debt and the schedule unacknowledged by the Claimant is not sufficient proof of his indebtedness for the purpose of making him liable. This debt was forcefully denied by the Claimant in his reply to the amended statement of defence and defence to counterclaim. The burden of proof is therefore on the Defendant, which burden it did not discharge. It is trite law that where any averment has been denied it must be proved. See Mr. Olorunsola Olademo v. Lagos Building Investment Co. [2010] LPELR-4735[CA] at page 13. I find and hold that the sum of N12, 499, 690 has not been proved. However, there is evidence that the Claimant owes the sum of N7, 697, 428.10. This relief succeeds in part.

  1. Relief two is for a declaration that the refusal of the Defendant to the counterclaim to carry out his official function since March 2015 amounts to abandonment of employment. There is evidence that the Claimant did not place orders from January 2015 and cut off communication with his line Manager resulting in his non-clearance for salary. A clear case of abandonment has been made out. This relief succeeds and it is granted.

  1. Relief three seeks a declaration of this Honourable Court that the employment of the Defendant to the counterclaim has been terminated since March 2015 by reason of his abandonment of employment. I observed earlier that generally, where a contract of employment is in writing, as in this case, parties are bound by the express terms and conditions of the contract. A contract of service is determinable by the employer upon giving the notice stipulated in the contract or payment of salary in lieu of the notice. There is a corresponding right for the employee to determine his services by giving notice as stipulated in the contract of service or payment of salary in lieu of notice. SeeP. O. U. Iyase v. University of Benin Teaching Hospital Management Board [1999] LPELR-6026[CA] at page 27. By exhibit B, either party is required to give 30 days’ notice to terminate the contract or pay salary in lieu of notice. In this case, neither party gave notice nor paid salary in lieu of notice. From the evidence, the Claimant abandoned his duties and cut off communication with the Defendant; which in turn withheld his salaries since his line Manager could not clear him for payment of salary. In this circumstance, there is a constructive termination of the contract of employment by the Claimant. See Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited [supra] at pages 35-36. In the circumstance, I find this relief proved and it is granted.

  1. In the final analysis, the main suit fails in its entirety and it is hereby dismissed. The counterclaim succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Defendant against the Claimant as follows:

  1. Judgment is entered in favour of the Defendant against the Claimant for the sum of N7, 697, 428.10 being the sum admitted in exhibit C as owing and due to the Defendant.

  1. It is hereby declared that the refusal of the Claimant to carry out his official function since March 2015 amounts to abandonment of employment.

  1. It is further declared that the employment of the Claimant has been terminated since March 2015 by reason of his abandonment of employment.

  1. Cost of N50, 000 is awarded in favour of the Defendant against the Claimant.

  1. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

24/10/18

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