IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO
DATED: 28TH MARCH, 2019
SUIT NO: NICN/AK/42/2017
BETWEEN
MR BODUNDE KEHINDE
CLAIMANT
AND
JOJEIN HOTELS & RESORT
DEFENDANT
REPRESENTATION:
VICTOR OLATOYEGUN FOR THE CLAIMANT
OLUWAYEMISI OLUROTIMI APPEARS FOR THE DEFENDANT
JUDGMENT
The Claimant by a Complaint before this Court on the 28th December, 2017 claims against the Defendants as follows:
(i) A Declaration that the termination of claimant’s employment without just cause amounts to a breach of contract.
(ii) Sum of three hundred and ninety six thousand, eight hundred Naira (N396, 800.00) being arrears of salaries for five months owed to the Claimant.
(iii) Sum of one million, four hundred and forty thousand Naira (N1, 440,000.00) loss of earning for two years, pending re-employment.
(iv) Sum of two million Naira (N2.0m) general damages.
(v) Cost of this suit estimated at five hundred thousand (N500,000.00) and 20% interest on the judgment sum, from the date of judgment until the final satisfaction of the judgment debt.
The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon.
The Claimant’s case is that he was employed by the defendant in 2015 as an Electrical Maintenance Officer and the employment was regularized by a letter of Appointment (JHR/ADMIN/30/2016) dated 10th January, 2016. He averred that his letter of appointment was withdrawn from him by the Defendant and he only retained a photocopy of the letter. He further averred that at the time he was offered the employment with the defendant, he had a lucrative offer from another company i.e Chris Engineering Services with a monthly salary of N60,000.00k attached to it. He averred that on 25th of September, 2017 the defendant terminated his employment without due process while he was been owed arrears of salaries and allowances for five months (i.e. April to September 2017). He also alleged that the defendant unilaterally cut his salary from N60,000.00k to N25,000.00k per month, hence the instant suit.
The defendant filed its statement of defence on the 24thof January, 2018, and averred that the allegation of facts contained in the statement of facts are false, it admitted that the claimant was until 25th September, 2017 a casual worker with the Defendant, and was placed on a monthly salary of N25,000.00 (Twenty five thousand Naira) only. The defendant denied owing the claimant any salary and contrary to his claim, the defendant averred that the claimant on the 24th of September, 2017, applied for a salary advance which was granted. The defendant averred further that sometimes in September, 2017 the claimant was suspected of fraudulently selling and mismanaging the defendant’s property and consequently issued with a query and failed to respond to same. The claimant subsequently stopped going to work causing the defendant to terminate his employment.
Finally, the defendant urged the court to dismiss the claimant’s case in its entirety.
Trial commenced in this suit on the 4th of October, 2018 with the claimant testifying for himself as CW1. He adopted his witness statement on oath and tendered several exhibits which were admitted and marked as Exhibits K1-K4 and was cross examined. The claimant thereafter closed his case.
The defendant opened its defence on the 31st of October, 2018 and called Ifejube Michael, the former General Manager of the Defendant as DW1 and Ademolu Olumide, a staff of the Defendant as DW2. They both adopted their witness Statements on Oath and tendered Exhibits J1 and J2 (1) – (134). They were also duly cross-examined and the defence closed its case. The counsel for parties adopted their final written addresses on the 16th of January, 2019 and the case was thereafter adjourned for judgment.
The defendant addressed the court on the admissibility of Exhibit K1 and urged the court to discountenance it as it is an unsigned and inadmissible in law.
In its final written address, the defendant formulated a lone issue for determination to wit:
“Whether the Claimant has proved his case to entitle him to the reliefs being sought before this Honourable Court”
The defendant submitted that the claimant failed to prove his case on the legally recognized standard of proof by the preponderance of credible evidence and as it is trite that the claimant must succeed on the strength of his case he cannot rely on the weakness or lack of defence of the defendant. He cited ANEKWE & ANOR V. NWEKE (2014) 10 SCM 83 @ 100 paras G – H. Learned counsel submitted that the claimant retains the burden of proving the existence of what he asserts, and cited the following cases IBEKWE V. I.S.E.M.B (2009) 5 NWLR 234 @ 252 and MBANEFO V. AGBU & ANOR. (2014) 1 SCM 68 @ 93 PARA I. He also argued that in the instant case the available evidence cannot sustain the claim, he therefore urged the court to dismiss the case.
The defendant’s counsel pointed out the employment relationship between both parties in the suit is purely that of a master and servant devoid of statutory flavour. He reiterated that the defendant has the right to hire and fire any of its employees at will in this sort of employment relationship.
On the claim for salary arrears Defence counsel submitted that the claim for the sum of three hundred and ninety six thousand, eight hundred naira (N396,800.00) is bound to fail as the claimant did not place any evidence before the court in proof that his monthly salary was N60,000.00 (Sixty Thousand Naira) but rather the claimant admitted under cross examination that his monthly salary was N20,000.00 (Twenty Thousand Naira) monthly and this was later increased to N25,000.00 (Twenty Five Thousand Naira) monthly and that was his last paid salary at the time his employment was terminated. He therefore submitted that it is trite that facts admitted need no further proof and cited SUTTANU & ORS VS. ANIMASHAUN & ORS (2000) 14 NWLR (PT. 688) 650 AT PG. 663.
Learned counsel submitted that the claimant failed to provide oral or documentary evidence in support of his claim for arrears and posited that what is in evidence is that the Claimant applied for a salary advance on the 24th day of September, 2017 that was granted by the Defendant and this covered the Claimant’s salary for the month of September, 2017, on this he cited Exhibit J2. On the offer of employment from Chris Engineering Services as proffered by the claimant, counsel argued that the defendant, not being a party to what transpired between the Claimant and Chris Engineering Services cannot be bound by any term and condition attached thereto. He cited the case of BASINCO MOTORS LTD V. WOERMANN-LINE &ANOR. (2009) 13 NWLR (PT. 1157) 149 S. C. or (2009) LPELR-756 (SC)
Learned counsel also urged the court not to award general damages as it was unproven and prayed the Court to dismiss the suit in its entirety with cost.
Victor Olatoyegun of counsel for the claimant in his final written address filed on the 26th of November, 2018 formulated three issues for determination to wit:
- Whether there is a contract of employment between the Claimant and Defendant that gives rise to rights and responsibilities between them.
- Whether or not the Defendant is owing the Claimant unpaid salaries and benefits to entitle the Claimant to receive arrears and balance of salaries from the Defendant?
- Whether there is a breach of contract between the Claimant and Defendant to entitle the Claimant to damages?
On issue one, Counsel submitted that the claimant relied on his evidence and Exhibits K1, K2, K3 and K4. The Claimant argued that the objection of the Defence Counsel as to the admissibility of Exhibit K1 on the ground that it is a photocopy and the denial of DW1 and DW2 as to its authenticity is misconceived in law. He cited the case of Oguntayo v Adelaja (2010) 2WRN 1 S.C. and the claimant’s evidence in chief that the original of Exhibit K1 was collected from him by the manager of the Defendant, hence, the burden of proof had shifted to the Defendant to disprove the assertion . He cited Ogunsakin v Ajidara (2010) 10WRN 98 C.A and argued that it is trite that admissibility of document is hinged on the triple criteria of pleadings, relevance and admissibility in law, stating that Exhibit K1 was pleaded and urged the court to uphold the admissibility of Exhibit K1. He also cited the cases of Magaji V. The Nigerian Army (2008) 13WRN 1 S.C ratio 5 and Salami v.Ajadi (2008) 25 WRN 144 C.A.
On whether there is a contract of employment between the Claimant and Defendant, counsel argued that the claimant averred that although he started working for the Defendant on probationary basis in 2015, Exhibit K1 regularized his employment to take effect from 1st January 2016. The Claimant gave evidence that he was employed by the Defendant as an Electrical maintenance officer and the Defendant admitted this fact in his defence this fact was also reinforced by evidence of both DW1 and DW2 where the witnesses referred to the Claimant as a “Generator Operator in the Defendant Company.” He submitted that facts admitted need no further proof and cited S.123 Evidence Act, LFN 2011; Balogun v. Yusuf (2010) 16 WRN 158 C.A; Adebayo v. Adusei (2004) 4NWLR pt. 862 p.44 @ 71 paragraph A-D).
Counsel urged the court to resolve this issue in favor of the Claimant and hold that a contract of employment existed between the Claimant and the Defendant.
On issue two, learned counsel to the claimant submitted that the Claimant gave evidence that his monthly salary was N60,000.00 at the point of entry into employment of the Defendant, but this amount was unilaterally cut to N25,000.00, the two parties contended on the amount payable to the Claimant per month and whether or not the Defendant is owing the Claimant arrears of unpaid salaries. The claimant submitted that the defendant is owing him five months arrears of the abridged N25,000.00 per month (i.e. from April 2017 to September, 2017) totaling N125,000.00, and unpaid balance of N35,000.00/month since 1st January 2016 (i.e. 19 months arrears from January 2016 to September 2017) totaling N665,000.00, if the amount of N60,000.00 earlier agreed upon is considered.
Learned Counsel argued that the Defendant was unable to substantiate the claim that it had paid the Claimant for the 5 months in contention (i.e. April 2017 to September 2017) by the non-production of salary voucher/schedule as asserted by the defendant.
The Claimant’s counsel submitted that the defendant’s assertion that the claimant sought and obtained a salary advance against his salary for the month of September 2017 is at variance with Exhibit J2 as well as the testimonies of DW1 and DW2, as there is nowhere in the exhibit where the claimant’s name was reflected. Learned counsel also pointed out that DW2 testified that Exhibit J2 is not the monthly salary voucher or schedule. He therefore submitted that Exhibit J2 is far from proving that the Claimant received the salary for the month of September 2017 or the 5 months arrears which he is claiming, he therefore urged the court to hold that the Defendant is owing the Claimant unpaid salaries and benefits as claimed.
On issue three, counsel submitted that by implication and Exhibit K1, the Claimant has proved that a contract of employment existed between him and the Defendant. He therefore argued that If issue 1 is resolved in favour of the claimant then the unilateral termination of the Claimant by the Defendant is wrongful and prima facie a breach of the contract.
On damages, claimant’s counsel pointed out that the claimant by Exhibit K2 forfeited a lucrative employment by opting to accept the Defendant’s offer of employment and that he retained the services of a Lawyer for a fee of N150,000.00k and these are injuries which by the general principle as to the measure of damages requires relief. He cited Livingstone v. Rawyards Coal Co. (1880) 5 APP. Cas. 25 at p. 39; Parke in Robuison v. Harman (1848) 1 EX. 850 at P. 855; British Westinghouse Co. v. Underground RIy (1912) A.C 673 at p. 689; Okongwu v, NNPC (1989) NWLR (Pt. 115)296, he posited that the claimant is entitled to damages in this suit and cited UBA Plc v. BT Ind. Ltd. (2004) 18 NWLR (PT.904) 180 @ 237 para E-F and C-D, and urged the court to resolve the issue 3 in favor of the Claimant.
Finally, counsel claimed that having proved his case on the preponderance of evidence before the court the Claimant is entitled to the reliefs in this suit.
I have carefully gone through the processes filed before this court by both parties in this suit and the written arguments of counsel in support of their respective cases, it is my view that the following issue best captures what is to be determined in this case;
Whether or not the claimant has proved his case so as to entitle him to his claim for special and or general damages in this suit.
It is apt at this point to treat the objection raised by learned Defence counsel on the admissibility of Exhibit K1, the objection is predicated on the fact that it is a photocopy and unsigned, in addition, the defendant’s counsel claimed that DW1 and DW2 refuted the authenticity of this Exhibit.
The claimant in prove of his case had tendered a letter titled provisional appointment as Exhibit K1. A careful perusal of the document before the court reveals that the exhibit cannot qualify as a valid letter of appointment as it is an incomplete, disjointed and unsigned document.
In FCDA Staff Multipurpose (COOP) Society & Ors v. Samchi & Anor [2018] LPELR-44380(CA) the Court of Appeal per Mohammed Mustapha, J.C.A said
“where a document which ought to be signed is not signed, for whatever reason, then the very essence of the document is now questionable, because its authenticity is in serious doubt; it is like a man without a face, only worse, and for that reason, the ambiguity created as a result be construed against the maker or whoever sought to present it; see Garuba v. Kwara Investment Co. Ltd. [2005] (PT.917) 469, Aiki v. Idowu [2006] 9NWLR (Pt.984) 47 and Zemi v. Geidam [2004] All FWLR (pt.237) 457.”
This position was further reiterated in the Supreme Court case of Abubakar v. Yar’Adua [2009] All FWLR (Pt.457)1
Relying on the above, I find that Exhibit K1 is a worthless paper as it is an unsigned letter of appointment that is unproven, it is therefore inadmissible in law and hereby discountenanced. I so hold.
On the substantive case before this court, It is the law that where an employee contends that the cessation of his employment is wrongful, it is incumbent on him to place before the court his contract of employment and in what manner the terms of employment were breached, and that will be the basis upon which the court will find. The court is precluded from looking outside the ambit of the terms of the contract of employment between an employer and employee. See Bukar Modu Aji V. Chad basin Authority (2015) LPELR 24562; Samuel Isheno V. Julius Berger Nig. Plc (2014) 43 NLLR (Pt 136) p. 320@ 346; Obelema N. Briggs V. Ibinabo Harry &2Ors (2016) 9 NWLR (Pt. 1516) p.45. In the instant suit the claimant’s case is that, he was employed by the Defendant through a letter of employment in 2015 as an Electrical Maintenance Officer and the employment was regularized by a letter of Appointment dated 10th January, 2016 Exhibit K1 (which has been discountenanced by this court) he was issued with a query on the 13/09/2017 and on the 25th day of September, 2017 the defendant abruptly and unilaterally terminated his employment and refused to pay his entitlements hence he instituted this suit. It is worthy of note that no other document was tendered that reveals the condition of employment of the claimant, however it is obvious that the employment relationship between the parties is that of master and servant.
In Chukwuma v. Shell Development (1993) 4 WLR (PT.289) Amaizu, JCA on master/servant employment held as follows:
‘In an ordinary relationship like in this one and following the common law principle, a termination of a contract of service, even if unlawful brings to an end the relationship of master and servant’
In F.M.C Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt.1285) 411 CA, the court of Appeal held;
“In a claim for wrongful termination of appointment, the onus is always on the employee:
(a) To place before the court the terms of contract of employment; and
(b) To prove in what manner the terms were breached by the employer.
The contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fail upon the terms thereof.”
Having held that there is no valid contract of employment placed before this court to enable the court determine the rights of the parties in this suit, the claimant has failed to prove his case by preponderance of evidence, as provided for in Section 131 of the Evidence Act, 2011. The claim for breach of contract therefore fails. I so hold.
On leg two of the claim, the claimant is claiming a sum of N396, 800.00 (three hundred and ninety six thousand, eight hundred Naira) representing unpaid salary arrears for five months from the Defendant, in proof of this, CW1 gave evidence that by his contract of employment, his salary was stated as N60,000.00 per month at the point of entry into the Defendant’s employment, but this amount was unilaterally slashed to N20,000.00 and N25,000.00 monthly at various times, the Defendant on the other hand gave evidence that CW1 was a casual worker and he was on a salary of N25,000.00 per month, this fact was revealed in the evidence of DW1 and DW2.
It is trite that he who assert must prove. See Col. Nicholas Ayanru (Rtd) & Anor .V Mandilas Limited (2007) 61 SC.2002
The claimant who testified as CW1 during the trial stated as follows;
- That he was given Exhibit K1 as his contract of employment
- That his last salary was N25,000.00K per month.
- That he was paid half of his salary for April, 2017
- That the Defendant is owing him arrears of salary for 5months (April – September 2017)
- That his appointment was terminated by the Defendant’s manager on 25/09/2017.
DW1 and DW2 testified on behalf of the Defendant during the trial, the evidence of DW1 is captured as follows;
- That the Defendant pays its staff promptly.
- That the Defendant is with the record of payment of staff.
- That the Defendant pays its staff salary in cash and through vouchers.
- That each of the staff will sign upon payment of salary.
DW2 testified and admitted as follows;
- That we pay the staff on a monthly basis with the salary schedule.
- That CW1’s salary was N25, 000,00, per month.
- That CW1 was paid a salary advance for September, 2017.
- That the Defendant pay staff salary by cash, and the staff are required to sign a schedule upon been paid the salary.
- That Exhibit J2 is not the monthly schedule but the daily income and expenditure.
- That the monthly schedule is not here with him.
I have carefully gone through the records of the Court, the claimant testified that the Defendant is owing him his salaries for April-September, 2017, he stated further that he was paid half salary for the month of April, 2017, it can therefore be deduced that half of April to half of September is what was computed as 5 (five) months. It is in evidence that CW1 on the 13th of September, 2017 was issued with a query and his appointment was terminated on the 25/09/2017. The argument of CW1 that the arrears for these 5 months should be calculated on the basis of N60,000.00K per month is unmeritorious because of lack of evidence in proof of this assertion and I find no basis to uphold same. This is so particularly in view of the admission of both parties that the last paid salary of the claimant was N25,000.00k, and in the absence of superior evidence i.e documentary evidence in prove of this assertion, I hold therefore that his salary with the Defendant was N25,000.00 per month.
The Defendant also admitted that the Defendant usually paid its staff in cash and the staff are required to sign a monthly schedule upon receiving the salaries. The Defendant also proffered that the claimant collected a salary advance against his September 2017 salary, and tendered Exhibit J2 in proof of this assertion, this Exhibit however did not disclose the name and signature of the claimant, and the only semblance of the name of the claimant in Exhibit J2 is a reference to one “Baba Kehinde” and even then there was no signature against the name, it is on record that the name of the claimant in this case is “Bodunde Kehinde, and no other evidence was adduced by the defendant in proof that he is the one bearing “Baba Kehinde”. I therefore find that this Exhibit is insufficient and lacks any probative value to proof that the claimant collected a salary advance from the defendant, I so hold.
It is also on record that the payment schedule alluded to by the Defendant during the course of trial by the defendant’s witness was not placed before the court by the Defendant, this would have constituted indisputable evidence that the claimant indeed collected his salaries for the months alleged and signed for same. The Defendant in its own wisdom however did not deem it fit to tender the schedule in court, even though the Defendant had placed the burden of proving that the claimant did collect salaries for the months claimed on itself by asserting through its witness that salaries of its staff are paid in cash and vide a monthly schedule (which is in custody of the Defendant) and to be signed by staff upon receiving payment. The Defendant having failed to produce the schedule did not rebut the evidence of CW1 on non- payment of his arrears. The consequence of which the court is at liberty to believe the evidence of the claimant on the issue of the arrears of salaries owed by the Defendant, See S132 of the Evidence Act, 2011 and the case of Owena Mass Transportation Co. Ltd v. Okonogbo [2018] LPELR-45221 (CA).
As a result of the above, I find that the claimant has adduced sufficient evidence to entitle him to the arrears of his salaries for the months of April-September, 2017 (5 months), This leg of claim ii for 5 months’ salary arrears consequently succeeds. The arrears is therefore to be computed at the rate of N25,000.00K per month as follows:
N25,0000.00K p.m x 5(April-September) months =N125,000.00K
TOTAL= N125,000.00K
The claimant is therefore entitled to the total sum of N125,000.00k (one hundred and twenty five thousand naira only) as arrears of his unpaid salaries for the months of April- September, 2017. I so hold.
On the claim for the sum of N1,440,000.00 (one million, four hundred and forty thousand Naira) loss of earning for two years, pending re-employment and N2,000,000.00 (Two Million Naira) General Damages, the defendant disputed the claimant’s contention that he gave up a lucrative job with another company which offered him N60,000.00k per month vide Exhibit K2 in favour of the contract of employment offered by the defendant, and submitted that the defendant not being a party to the alleged contract between the claimant and the said company cannot be bound by the terms and condition attached thereto. The claimant on the other hand contended that if this court finds that there is a contract of employment between the parties which created rights and responsibilities between the parties, it will necessarily follow that the unilateral termination of the of the claimant’s employment on the 25th September, 2017 is wrongful and prima facie a breach of contract, he cited Exhibits K2 and K3 (solicitor’s fee receipt) as evidence of the injuries he suffered, and urged the court to grant the relief for general damages. The Defendant on the other hand argued that the claimant in this case did not adduce any evidence of the injury he suffered and the defendant cannot be responsible for the claimant’s solicitor’s fee.
It is trite that an employee is not entitled to salaries for work not done. See Mr.Omadachi Ofache v. Notre Chemical Industries Ltd (2019) 1NLCLR pg 142, and a claim for general damages is normally granted as the legal consequence of an act complained of or a breach of contract. See Ezeudeka v. ANMMCO &Ors 2016 N.L.L.R Part 225,Pg 123 NIC @142. I have earlier resolved that the termination of the claimant is not wrongful, in that the Defendant is at liberty to dispense with the services of an employee in a Master/Servant employment at any time with or without reason, more so there is no contract of employment before the court in furtherance of the proof of the term allegedly breached by the defendant In a nutshell there is no contract of employment which disclosed or support any breach of duty on the part of the Defendant in this case that will warrant the grant of this relief, It is based on this premise that I find that the above claim fails as unproven. I so hold.
On the whole, the claimant suit succeeds in part and for the avoidance of doubt I declare and order as follows:
- That the termination of claimants’ employment by the defendant is not wrongful.
- That the Claimant is entitled to the sum of N125,000.00K ( One Hundred and Twenty-five thousand Naira) being arrears of salaries for five months owed to the claimant by the defendant.
- Relief iii fails.
- I make no award as to general damages.
- The monetary sum awarded in this judgment shall be paid by the Defendant within 30 days failure of which the claimant shall be entitled to 20% per month on the judgment sum until the Judgment sum is finally liquidated.
A sum of N25,000.00K is hereby awarded as cost against the Defendant.
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge.
