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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE, A.N UBAKA

 

DATED 15TH DECEMBER, 2023                   SUIT NO: NICN/LA/125/2018

 

BETWEEN                                                             

 PASTOR FEMI JIMOH                                                               CLAIMANT                             

 AND            

REGISTERED TRUSTEES OF MOUNTAIN

OF FIRE & MIRACLE MINISTRY                                          DEFENDANT

 

REPRESENTATION

Prince Ademola Adewale for the Claimant

Oluwatosin Adisa with Omolade Wickliffe for the defendant

JUDGMENT

By a complaint filed by the claimant on the 27th of February, 2018 against the Defendant seeking the following reliefs:

 

i.                    A declaration that the claimant remains an employee of the defendant until his appointment is properly terminated.

 

ii.                  The sum of N510, 574, 000. 00 (Five Hundred and Ten Million, Five Hundred and Seventy-Four Thousand) only being the amount calculated as salary arrears, transport allowance, housing allowance, leave allowance, promotion benefits from 1st January, 2008 to 31st December, 2016 and the cost of the suit including solicitor bill of cost and exemplary damages.

 

PARTICULARS OF CLAIM

 

a.      Salary for nine years…………………. N3, 480, 000

b.     Transport allowance for nine years……. N2, 984, 000

c.      Housing allowance for nine years………N2, 110, 000

d.     Leave allowance for nine years

e.      Promotion benefits for nine years

f.       Exemplary damages……………………. N500, 000, 000

g.      Cost of the suit including solicitors fee…. N 2, 000, 000

 

iii.               Interest at the rate of 7.5% per annum on the entire judgment debt from the date of judgment until liquidation of the entire debt.

 

iv.               An order directing the defendant to pay the claimant the salary from the date or cost calculation until when the employment of the claimant is determined.

 

Accompanying the complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated and filed on 27th February, 2018.

                                                                    

In reaction, the defendant entered formal appearance and then filed a statement of defence, witness written statement on oath and list of documents to be relied upon at trial dated and filed 28th May, 2018.

 

The summary of the facts pleaded by the claimant is that he was engaged by the Defendant as an usher effective from November, 1999, and that as a dutiful employee, he discharged his responsibility to the Defendant with all sense of care and in good faith; that sometimes on January 25th 2008 he was arrested and prosecuted with 2 others on the strength of a complaint lodged by the Defendant's Chief  security officer for robbery and conspiracy to rob the Defendant and the Police Officers took him and one Caleb Oloruntele to Dr. D.K. Olukoya the General Overseer of the Defendant to satisfy the Defendant’s bidding that the Police are doing the job they sent them and that at the conclusion of the case which went on for about 8 years, the petition and allegation of robbery were found to be frivolous and he and his two other co-accused were discharged and acquitted.

 

That it was the Defendant that set the Law in motion against him and Bro. Caleb Oloruntele and the Defendant was actually involved in the prosecution and without reasonable course made false report against him to the police and cause the Police to prosecute him; that his prosecution by the defendant was malicious because the defendant and the police were shopping for witnesses to give evidence against him; that before his travails in the hands of the Defendant, his employment with the Defendant subsist and was never terminated and that immediately after the trial was concluded, he secured the service of a legal practitioner to help him get his entitlement from the Defendant; that his legal counsel, Prince Ademola Adewale of De-Vine Chambers acted immediately and wrote a letter to the Defendant and that in a letter dated 6th September, 2016 the Defendant, through Bayo Osipitan, its counsel, replied and requested that it be furnished with his letter of employment and in a letter dated 13th September, 2016 his Counsel replied the Defendant by attaching his Certified True Copy of his personal file which contains records of his employment.

That after his counsel's last letter to the Defendant's counsel, the Defendant has failed, refused and neglected to accede to the legitimate demand he made concerning his entitlement and that as at the time of filing this suit, he is yet to receive any temporary relief from the inhuman treatment and sufferings inflicted on him by the Defendant. The Defendant has refused to pay him his entitlement and is not willing to cooperate with his counsel to lighten his burden; that his incarceration and wrongful prosecution for 8 years has negatively affected his health and that he is presently handicapped in discharging his responsibility to his family and ; that if he was not treated the way he was treated he would have been promoted to a Regional Pastor by now as his mates and juniors are now Regional Pastors in the Employment of the Defendant. That the following Pastors are his mates and juniors as at the time he was maltreated and detained by the Defendant:

 

a.      Pastor Arinze his junior and also their driver in M.F.M in Warri but now Zonal Pastor at refinery Road Warri.

b.     Pastor Patrick Alinco, he served pastor Oluwafemi in Warri in 2002 but now Zonal Pastor Adele in Warri.

c.      Pastor Joseph Israel, he was their interpreter in M.F.M but now regional pastor in Benin Edo State.

d.     Pastor Rotimi Olugbile, both of them were in charge of campus fellowship and his senior, he was posted to Enugu region and now Abuja as regional overseer.

e.      Pastor John Mark served him in 2002, he became Pastor in Warri, he was transferred to Oruworu and was promoted to regional overseer in 2014 and then he later resigned.

f.       Pastor Stephen Onajeje he became regional overseer. Now in Calabar both of them worked at M.F.M. HQ Effurun Warri before he was transferred to Ugheli.   

 

That he lost his father and was not allowed to participate in burying his father; his wife deserted him leaving his children in the care of his aged mother; that his children have been out of school because he could no longer pay their school fees as the bread winner of the family. It is for reasons of the neglect, failure and or refusal of the Defendant to pay his entitlement and accrued allowances that led him to approach the Court for redress. That by reason of being forced by the Defendant to engage the services of his counsel and to file this suit to claim his entitlement, he was compelled to commit himself to needless and avoidable cost of legal services in the sum of N2,000,000.00 (Two Million Naira Only) which comprised of drafting & preparation of court process, filing fees & other anticipated out of pocket expenses and, professional fee for conducting the case as charged and contained in the Bill of Professional Fee given to me by his Solicitors and that in the interest of justice he is entitled to the sum of N500,000,000 as exemplary damages for the distress, pains, suffering and psychological trauma he went through in the hands of the Defendant's agents for their callous and wicked act against him.

 

Under cross examination by the defendant’s counsel, CW stated that he was promoted from usher to full time pastor as at the time he was arrested in 25th January, 2008; that he is seeking N500, 000, 000 as exemplary damages; that he was in jail for 8 years following his arrest and was neither sacked nor given a letter of termination of employment; that the medical report on his state of health is not before the honourable court; before a person can be promoted or planting of new branch, he has to be tested; that he could not have written any test from the prison as the case was still pending at the state high court; that he has so many brothers in the church and that he is still a member of the church.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

 

The defendant opened its defence by calling its sole witness, Davidson Adejunwo, the head of Legal services of the defendant wherein he adopted his witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that he knows as a fact that the Claimant was a Pastor in the service of the Defendant, was not a dutiful employee as he was regularly absent from work; that the Defendant had cause to write the Claimant vide a letter dated 11th February, 2008 due to his continued absence from work which eventually led to the Defendant relieving the Claimant of his duties to the Defendant vide a letter dated 27th May, 2008; that the Defendant never wrote any petition/complaint against the Claimant to the police or any other law enforcement agency and that the arrest of the Claimant by the officers of the Nigerian Police Force and the eventual prosecution of the Claimant was devoid of the intervention/litigation of the Defendant.

 

That the Defendant is a private organization and does not have the power to prosecute the Claimant in a criminal trial and that the defendant was not the Complainant in the charge filed against the Claimant and his co-accused but was arrested and prosecuted by the Nigerian Police Force and the Attorney-General of Lagos State respectively; that it is not the duty of the Defendant to provide witnesses in the prosecution of a criminal charge and never set the Law in motion against the Claimant. That the Claimant is no longer a Pastor in the employment of the Defendant as his employment had been terminated vide a letter dated 27th May, 2008; that the Claimant absconded from his duty post for a period exceeding 7 days in breach of his conditions of service with the Defendant and he is therefore not entitled to any benefits or entitlement whatsoever; that the Claimant failed to seek leave for absence from duty either by himself, his Counselor any other person whatsoever and that till date Claimant has not carried out any duty for/or on behalf of the Defendant.

 

That the prosecution has since appealed against the Judgment of the High Court of Lagos dated 1st July 2006 which discharged and acquitted the Claimant and that the Claimant’s counsel never provided the Claimant's employment letter as reported; that the Defendant did not inflict any suffering or inhuman treatment on the Claimant as promotion in the employment of the Defendant is based on merit and that the Defendant is not in a position to know the current health or financial situation of the Claimant nor is it the Defendant's duty to assist the Claimant in performing his obligations to his family; that the Defendant played no role in the Claimant engaging the services of a legal practitioner and as such cannot be made responsible for the cost associated therewith. That the Claimant is an opportunist looking to blackmail and exploit the charitable nature of the Defendant and that the instant suit is gold-digging, frivolous and vexatious and same ought to be dismissed with substantial cost awarded in favour of the Defendant.

 

Under cross examination by the claimant’s counsel, DW stated that he was employed by the defendant on 1st May, 2016 as Chief Legal Officer; that he got to know that the claimant was prosecuted in the Lagos State High Court when the court’s processes was served on the defendant

 

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The claimant’s final written address is dated and filed 20th October, 2023 while the defendant’s final written address is dated 23rd October, 2023 but filed 25th October, 2023. The claimant’s Reply on point of law is dated and filed 2nd November, 2023.

 

Learned counsel on behalf of the claimant formulated two (2) issues for the court’s determination viz:

 

1.     Whether the Claimant's employment with the defendant has been rightfully terminated by the purported notice of suspension and dismissal letter dated 11th February, 2008 and 2008 respectively as provided by the Labor Act 2004 and Mountain of Fire and Miracles Ministries Condition of Service.

 

2.     Whether from the pleadings and evidence, the Claimant has proved his case to be entitled to the reliefs sought.

 

The claimant’s counsel elected to argue the two (2) above mentioned issues together by submitting that in event of termination, there must be strict adherence to the statute creating the employment and the condition of service as this cannot be waived. The Defendant decided to waive this on its own accord clearly disregarding the statutory provisions and condition of service guiding such procedure being conscious of the Claimant's mode of employment. That from the provisions of the enabling law and Condition of Service governing the employment of the claimant with the Defendant, it is very clear that before an employee of the status of the claimant could be justly dismissed, the procedure must be initiated from his Branch by a way of query in writing, clearly stating the misconduct and directing/requesting him to explain himself within 24 hours from the time of receipt of the query. This is as contained in page 97 Paragraph 8.3(1) of the Mount of Fire and Miracles Ministries Condition of Service Staff Disciplinary Committee.

 

That it is the evidence of the claimant that the defendant did not communicate in writing to him the termination of the claimant's employment. This the defendant admitted by not rebutting that claimant is in receipt of the purported Exhibits FJ 8 &9 or acknowledged same. Hence, the law is trite that admitted facts need no further proof; that it is obvious that the purported Exhibits F J 8 and 9 were mere ruse and fraud only for the Defendant to cover up its tracks of falsehood. That service of notice to terminate is as important and germane as the writing of notice itself without which the purported dismissal or termination is in nullity. He cited the case of Osisanya vs Afribank Nig Plc (2007) LPELR-2809 (SC).

 

Continuing, counsel submitted that a person that makes a statement on oath of facts within his knowledge cannot come back to contradict those facts; that at the time of testifying in court by Pastor John Akinsulere in the said criminal suit, the purported letters were not in existence, because if they were Pastor John Akinsulere, the defendant's officer would have made it known to the court and also include in the employment record of the claimant. That it is apparent that the calculation of three (3) months from January 2008 ends by March 2008. So, three (3) months could not have been completed between January and February 2008 to have warranted the purported letter and if truly the purported letters exist as at the date alleged, it must have been written 17 days after the arrest of the Claimant on the 25/01/2008 pointing and establishing the fact that Defendant is fully involved in the prosecution of the claimant's trial.

 

That it is pertinent to note that the absence of the claimant from work was purely non est factum as he was arrested, detained and thereafter remand all in the instance of the defendant who is aware of this fact. Hence, it will rather be cruel for a party to claim oblivion to a fact well known to it and deny such fact in its entirety. He cited the case of John Oforishe v. Nigeria Gas Company Ltd (2018) 2 NWLR (PART 1602) and urged the honourable court to award the Claimant damages for the emotional torture and other injuries suffered as a result of the frame up charge proffered against him by the defendant and for withholding the salary and other benefits for this long.

Learned counsel on behalf of the defendant framed a sole issue for the court’s determination viz:

 

Whether the claimant has made out a case for the grant of the reliefs sought against the defendant.

 

It is the defendant’s counsel submission on the sole issue that the evidence tendered at trial by the Claimant and evidence obtained from the Claimant under cross-examination clearly negates the various allegations of the Claimant in this suit; that evidence adduced at trial before the honourable court shows that it was the Claimant who abandoned the employment of the Defendant without giving formal Notice of absence to the Defendant; that exhibits FJ1 (claimant’s personal file and records of employment) and FJ2 (Judgment of High Court of Lagos State) were dumped on the honourable Court as the Claimant failed to connect/tie his case to any relevant part / portion of the Record/document. It is trite that the honourable court frown on dumping of documents at trial and the honourable Court will not be turned into an investigator of the Claimant's case. He cited the case of Abia v INEC & Ors (2019) LPELR-48951 and urged the honourable court to disregard Exhibits FJ1 and FJ 2 which have not been connected/tied to the Claimant's case.

 

On the claimant’s claim for leave allowance and benefits; counsel submitted that notwithstanding the Claimant's pleading, he failed to lead evidence at trial as to establish his entitlement to these benefits; that when the Claimant was asked under cross- examination that how much was his salary? He responded by saying he could not remember. The Claimant has left these questions hanging as there are no facts to support his pleadings; that the law is settled that pleading not supported by evidence is deemed abandoned.  He cited the case of Ulegede v. The Mil. Adm. Benue State (2001) 2 NWLR (PT. 696) 73, 86 E-G and urged the honourable court to dismiss the claimant’s claim on account of claimant’s failure to prove his entitlement to same.

 

On the claimant’s breach of contract of employment/abscondment of duty; counsel submitted that by virtue of clause 3.10 at page 21-22 of exhibit FJ 7, the effect of an abscondment is summary dismissal which does not require the process of a prior suspension before dismissal. That the Defendant specifically pleaded the letter of termination in paragraph 21 of its Statement of Defence and the claimant did not file a Reply to the Statement of Defence effectively failed to-join issues with Defendant in his pleadings on the letter of dismissal by accepting same cannot suddenly turn round at the close of trial to raise alleged non-communication/non-service of the letter of termination. That the Claimant who had a duty to show up for work and also receive official correspondence at work cannot benefit from his own wrong of failure to show up at his place of employment when he has not shown that he formally communicated/requested -leave to be absent as stipulated in the Conditions of Service. He cited the case of C.D.C. (NIG.) Ltd. v. SCOA (NIG.) LTD. (2007) 6 NWLR (PT. 1030) 300 and urged the honourable court to so hold.  

 

That assuming without conceding that the Claimant's employment was not terminated by Exhibit J8, the employment contract stood repudiated by the Claimant's breach of a fundamental term of the contract on the following grounds. (1) Non resumption for duty for a period exceeding seven days. (2) Failure to notify Defendant of absence or formally apply for leave of absence as stipulated in the Conditions of Service. Either of this conduct is an act of material breach and the law is settled that a contract can be repudiated by the conduct of either party to the contract. He cited the case of Strong Solutions Ltd v. Sidi Yusuf Ahlan Electronics Co. Ltd (2021) LPELR-55791 (CA).

 

On the claimant’s letter of instruction to his solicitor dated 19th August, 2016 (exhibit FJ3); counsel submitted that it is evident from the letter of instruction that the Claimant did not show any intention to address his absence from duty or continue employment with the Defendant. The primary interest of the Claimant was that his lawyer should make a demand/claim for monetary benefits; that the claim of continuing employment is a mere afterthought and an attempt by Claimant to reap where he has not sown. It is therefore inequitable of Claimant to seek declaratory order against the Defendant.

 

On the claimant’s allegation of defendant’s malicious and false report to the police; counsel submitted that the Police is a law enforcement agency whose operations is governed by law; that the Claimant did not tender any Police report to prove his claim before the Honourable Court that will show that (1) it was the Defendant who reported him to the Police and (2) that the alleged report was false and malicious; that the Claimant had the duty to place before the honourable court relevant copies of the Police Investigation Report showing that it was the Defendant who made the criminal report against him; that the law is now settled that oral evidence is not admissible to prove facts/content of documentary evidence (exhibit FJ2). He cited the case of B. Stabillni Co. Ltd. v. Obasi (1997) 9 NWLR (PT. 520) 293.

 

On the claim for solicitors’ fees and damages; counsel submitted that where the honourable holds as in this case that the Claimant has failed to prove his principal reliefs, the ancillary reliefs must necessarily fail; that it is against public policy for Counsel to claim solicitor's fees from the other party in litigation. He cited the case of UBA Plc v Vertex Agro Ltd (2019) LPELR-48742 (CA).

 

On the Reply on point of law; the claimant’s counsel submitted that the burden of proof is not static and the Claimant having discharged the onus of proof placed on him in the first instance, the burden is meant to shift on the Defendant; that the claimant's case is clearly set out in his pleadings alongside his statement on oath admitted in evidence, the claimant was also able to connect the tendered exhibits which were all admitted in evidence in this suit particularly exhibits FJ1 and FJ2 with his pleadings as copiously contained in Final Written Address of the Claimant; that what does the defendant want the Claimant to do in discharging the burden of proof placed on him and that rather for the defendant to establish its case having shifted the burden on it, it decided to embark on the voyage of attacking the case of the Claimant all to misrepresent law and facts and mislead the honourable court. He cited the case of Eseigbe v. Agholor & Anor (1993) LPELR-1164(SC).

 

That the Claimant sees no reason to file a reply to the defendant's statement of defence; that it is trite law that a reply will be unnecessary where no counter-claim is filed by a defendant to a suit, as in the present case. Further pleadings by way of a reply to a statement of defence is generally unnecessary if the sole purpose is to deny the averment contained in the defendant's statement of defence.

 

That the repudiation of the contract of employment being sought will be no moment and no effect as one party standing alone cannot terminate the contract; that it takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other side. He cited the case of Adeniyi v. Governing Council of Yabatech (1993) LPELR-128(SC).

 

Having carefully considered the processes filed, the evidence adduced, the written submissions and authorities cited by the parties, the crux of this case are

 

1.     Whether the claimant’s employment was terminated 

2.     Whether the claimant is entitled to his reliefs

 

In proof of his case the claimant tendered the following documents, mountain of fire and miracles ministry employee Personal file (exhibit FJI), CTC of judgement of high Court of Lagos state (exhibit FJ2) instruction to de – Vine chambers (exhibit FJ3) response from the defendant (FJ4) letter to the defendant (exhibit CO4) and the employee handbook (FJ7) and other employment records – relocation to Lagos, redeployment, posting. The defendant tendered suspension of salary (FJ8), Services no longer required (FJ9). There is no controversy that the claimant stopped working for the defendant since 25th of January 2008 when he was arrested and prosecuted for robbery and conspiracy to rob the defendant. The defendant’s submissions is that the claimant was prosecuted by the people of Lagos state /Attorney General of Lagos state, in addition the defendant stated that it is not the cause of his arrest and is deemed to have abandoned his job without applying for leave or intimating his employer if any. In exhibit FJ2, the defendants in the High court of Lagos state are Femi Jimoh, Henry Aiyewero and Caleb Oloruntele, the 1st defendant being the claimant in the case before the Honorable court are accused of conspiring to rob the mountain of fire and miracles ministries which is referred to as either MFM or church in this judgment. The earlier argument of the defendant that it is not aware of the claimant’s plight which necessitated his inability to continue with his employment with the defendant is reiterated in paragraph 13 of the statement of defense that the arrest of the claimant by the officers of the Nigerian Police force and the eventual prosecution of the claimant was devoid of the intervention/ involvement of the defendant.  The claimant’s case is that he was incarcerated upon a complaint by the defendant since 2008 and has not been given any letter repudiating the contract of employment between the parties which the defendant vehemently denies. The claimant’s assertion is that his employment with the defendant is still subsisting.  The claimant tendered (exhibit FJ1) which is mountain of fire and miracles ministries employee personal file, it contains the date of employment as November 1999, its personal data. summary of career in Mountain and fire ministry, Salary profile (assistant Pastors) which put his present salary as N12,000, family details and a declaration. The defendant then raised the issue of letter of employment as it has maintained that the claimant is not an employee but a volunteer.  The claimant would in the final address state that exhibit FJ2 was tendered by one pastor Akinseluru who was initially a witness but later withdrawn in order to conceal fact, the defendant did not deny same as its document.

 

The defendant’s main submission is that the employment of the defendant has been determined by Exhibit FJ9 which is for services no longer required. Before this letter the defendant equally wrote exhibit FJ8 and same is reproduced below:

 

11th February 2008

Pastor Oluwafemi Jimoh

MFM Ministries

Satellite Town zone

Lagos

 

Dear sir,

 

SUSPENSION OF SALARY

 As a result of abandoning your work by being absent from your place of duty for upwards three months, now, your salary is hereby suspended till further notice.

 

 Thanks

 Yous faithfully

 

Pastor Gbesan adebambo

 

The defendant in paragraph 4 of the statement of defense averred that it had cause to write the claimant vide a letter dated 11th February 2008 due to his continued absence from work.  The defendant referred to the defendant’s conditions of service tendered as FJ7 and that if a staff is absent from duty without permission for a period exceeding 7 days is deemed to have absconded from work.  The definition of absconding in the staff handbook is that a staff that absents himself from duty without permission of his or her head of department for any period of days that exceeds 7 days shall be deemed to have absconded and shall be summarily dismissed and shall not be entitled to final entitlements / benefits as prescribed in the conditions of service at the termination of employment of any staff. The response of the claimant in the reply on point of law is that the defendant acknowledged that the claimant was arrested and remanded for a period of 8 years. The claimant was arrested by the police charged at the high court of Lagos State.  Where in the world of work is a person in prison awaiting trial for criminal charge obtain permission that you will be away from work as the defendant is aware of his travail. The defendant has consistently used the word abscondment and it is for the reason that his salary was suspended. One thing that has run through the whole process of incarceration is that it was pastor Akinselure who produced the claimant’s file when he gave evidence in court. This is what the claimant stated in the witness deposition in paragraph 5

 

 I aver that sometimes on January 25th 2008 I was arrested and prosecuted with 2 others on the strength of a complaint lodge by the Defendant’s chief for robbery and conspiracy to rob the defendant’

 

 I recall the defendant’s pleading that the claimant was absent from work without permission, leave or excuse whatsoever.  In paragraph 23 of the deposition of 14th March 2022. Stated

 

I know that claimant’s employment became terminated on account of his absence from duty since 25th January 2008.

 

If this is the evidence of DW, why issue a letter with fore knowledge that the claimant is under arrest. Under cross examination CW testified that he was arrested on 25th January 2008. On the question on whether exhibit FJ 8& 9 were delivered personally to the claimant and the response is that ‘’ we do not deliver letters to employees at home. This itself shows that the claimant was not served with the letter of suspension of salary.  To my calm mind, it was a simple letter written to serve the purpose of stoppage of salary. A close look at Dw’s assertion that the claimant was arrested before the letter was written shows the claimant is not aware of such and is therefore entitled to his salary for the period of incarceration till judgment is delivered.  

 

The defendant equally tendered another letter dated 27th May 2008 for services no longer required and this is a result of reorganization going on. The first question that comes to mind is when was this letter served on the claimant. It is not enough to write a letter of dismissal and tender same as evidence before the court. DW has under cross examination testified that letters are not served personally in homes of staff. It follows that since the claimant was still under arrest, he was never served with such latter as he was equally not in the work place.  Mountain of fire and miracles ministries conditions of service provides for termination in clause 8.2 under termination on page 99

 

After two years of service, the employment of a staff may be terminated by either party giving three months’ notice in writing or by paying three months’ salary in lieu of notice in the case of a minister and / or paying one month’s salary in lieu of notice in the case of a non-ministerial staff. Where the employee has not served for two years, one month notice in writing or payment of one month salary in lieu shall be given by either party.

It is the law that once the employer complied with the terms of the contract, there would be no breach of contract of employment. See Nitel Plc V Ocholi (supra), Katto v CBN (1999) 6 NWLR (pt 607) 390; Sea Trucks (Nig) Ltd v Pyne (1999)6 NWLR (pt 607) 414. In the instant case, the claimant’s appointment was not terminated, so the defendant cannot assume that because of the long absence of the claimant from the office the reason which is known to them is termination. A close look at the letter of suspension of salary shows the letter was written on the 11th of February 2008 just after his arrest on the 25th of January 2008. The defendant’s representative pastor Adesulure was involved in the trial as a witness and tendered the employee Personal file. Even the letter of suspension of salary was written claiming that the claimant was absent for three months

 

SUSPENSION OF SALARY.

 

As a result of abandoning your work by being absent from your place of duty for upward of three months, now, your salary is hereby suspended till further notice’

Pastor Gbesan Adebambo

 

January 28th to February 11 is not three months, this in itself shows the defendant was bent on terminating his employment without just cause.

 

Another argument put up by the defendant is that the claimant absconded from office and that this is a breach of contract of employment. The submission is that since the claimant has claimed to be an employee, he did not notify the defendant. The assertion of the defendant that the claimant absconded from duty is not tenable as absconding from work is a situation in which an employee fails to report to work for several days without informing managers and others in the organization. Here, we must not loose focus of the fact that he was arrested by the police on the charge of robbery and conspiracy to rob the defendant. The case of conspiracy and alleged robbery and attempt to rob the defendant and no other persons is the reason the prosecution presented before the Lagos state High court. As the defendant was well aware of the reason for his long absence can they turn around to brand same as an abscondment? I find and hold that the claimant did not abscond from his place of work, he was arrested, did not jump bail, was incarcerated for about 8years until acquitted and discharged by the High court of Lagos state after which he wrote a letter to his employers for his outstanding salaries.

 

The defendant’s further argument in paragraph 5.4 of the final written address is that for failing to produce his employment letter, the claimant has no case against the defendant. The question is whether failure to tender a letter of appointment will be fatal to a case. The court in Obanye v UBN Plc (2015) -25891(CA) held that

 

though the general principle is that the letter of appointment is the bedrock upon which a plaintiff in an action for wrongful termination must build his case, the application must necessarily depend on pleadings, the evidence led and the issue that calls for determination in a particular case.

 

Both parties agree from reading of the pleadings of the parties that the document referred to as ‘’ Employee file ‘’emanated from the defendant as an employee. The Apex court in Okoebor v Police Council (2003) 12 NWLR (PT 834) 444 held that one major term of employment is payment of salary and other uncontroverted or contradicted fact.   In the instant case, the claimant pleaded in paragraph 14 of the statement of fact to the effect that his basic salary was paid into oceanic bank international plc which is now ECO Bank Plc. The decision of the Apex court is in consonance with the Labour Act Cap LI LFN 2004 which did not insist that an employment contract must be in writing and can be by conduct or orally. The evidence of the claimant is that his monthly salary is as stated in the employee’s personal file (exhibit FJ1) which is N12,000,

 

In civil cases, the burden of proof is on the party who asserts to prove to the satisfaction of the court the averments made in the pleadings as to the contention upon which he rests his case. In this case as long as the defendant failed to lead evidence on its averment that the claimant absconded the reason of which is common knowledge to them, these averments remain unproved. It is trite that averments in pleadings do not or cannot constitute evidence. See Saraki v Societe Generale Bank (1995) 1 NWLR 9 (PT 371) 225, Broadline Ent Ltd v Monetary Maritime Corporation (1995) 9 NWLR. Accordingly, an averment which has not been admitted must be proved or established by evidence.  All these documents which are the ‘’ Mountain of fire and miracles ministries Employee personnel file, Redeployment letter to MFM Ibadan as a deliverance minister, Redeployment from Gbagi zone to the Regional Headquarters, then to oke Ado, Abijoh branch, became a pastor in 2005, redeployment to MFM okun -Ajah, then to ojo show that there is an employment relationship, what else is required from the claimant to prove that he is an employee of the defendant?  Once a right is vested in one party in a contractual situation, it cannot be taken away by the other to the contract except with the consent of the beneficiary. I find and hold that the claimant is an employee of the defendant.

 

Relief 1 is for a declaration that the claimant remains an employee of the defendant until his appointment is properly terminated. The law is trite that parties have a right to bring an employment relationship to an end as the claimant’s appointment with the defendant is not governed by any statutory provision, and their relationship is simply common law relationship of master and servant. The right thing to bring such a relationship to an end has always enured to the parties to the relationship. Thus, where in a contract of employment a right to terminate the contract given to either party exists, the validity of the exercise of that right cannot be vitiated by the existence of motive or improper motive. The defendant has stated that the claimant absconded from duty for almost 9 years and did not carry out any duties or resume for duty with the defendant throughout the period of his incarceration. it further submits that the claimant’s prolonged absence from duty / abscondment is a breach of a fundamental term of the contract of employment and that the effect is summary dismissal. This has earlier been discussed in this judgment that he did not abscond, there is nowhere it is stated that the claimant was given a letter for services no longer needed. In paragraph 21 of the deposition DW stated ‘’ I know that contrary to paragraph 15 of the claimant’s statement of fact, the claimant who ceased to be a staff of the defendant is not eligible for any entitlement. The claimant's contention is that his employment subsists as the letter tendered by the defendant could not have been given to him as the defendant has not told the court the means for the distribution of such letter.  It is the law that documentary evidence is the best form of evidence. Meanwhile there is no documentary evidence that the defendant dismissed the claimant. This is an employment where the claimant produced employment file. See Longe V First bank of Nig Plc (2010) LPELR -1793 (SC) where the Apex court held that every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law.  It is clear from the contents that the letter was written to serve a purpose so that it would appear the claimant’s employment has already been terminated.

  

Section 11 of the Labour Act CAP L1 LFN 2004 provides as follows 

 

1.      Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

 

2.     The notice to be given for the purposes of subsection (1) of this section shall be –

 

(a) one day where the contract has continued for a period of three months or less

(b) one week where the contract has continued for a period of three months but less than two years

(c) two weeks where the contract has continued for a period of two years

 

3. Any notice for a period of one week or more shall be in writing

 

The Labour Act has specifically provided in paragraph 11 (3) that any notice that is more than one week shall be in writing. The above provision applies to the claimant who was not given any notice in writing to determine whether his employment has been terminated or not. His right to a letter terminating or dismissing or even suspending the employment as provided by the law is mandatory. By its own admission, the defendant has breached the provisions of the law. See Paragraph 15 of the witness deposition where he averred

 

The claimant was never in the employment of the defendant; The claimant was a volunteer with the defendant and there is no contract of employment that warrants any termination.

 

This shows there was no termination and confirmed by DW under cross examination to the question

 

Ques: The claimant’s employment was never terminated

Ans: He was never employed by the defendant.

 

It is trite that facts admitted need no further proof. See Section 123 of the Evidence Act 2011.  The claimant has been in the employment of the defendant since 2008. The defendant’s contention is that the claimant was involved in conspiracy to commit robbery and was charged, but was acquitted and discharged. The evidence of the claimant that he was arrested and acquitted and discharged after incarceration of 8 years is uncontroverted.  When all of this is added to the fact that the Labour Act stipulates notice of termination must be in writing and that it is not legal for the employer to hold on to a fact that has been determined by the court that the claimant is an employee of the defendant which the defendant has denied throughout in its pleading and Final written address without evidence. I therefore find and hold that having not been dismissed, the claimant's employment with the defendant subsists.

 

The contention of the claimant is that with no determination of the employment and same provided in the defendant’s handbook his employment is still subsisting with the defendant and remains an employee of the defendant. The defendant's case is that the claimant absconded from work and after the 8 years of incarceration he was only interested in his salary not to continue with his work and that the employment is not subsisting. The claimant then prayed that since there was no letter dismissing him, he remains a staff of the defendant and that his outstanding salaries should be paid to him from June 2014 till date. Here, there are two separate issues raised by the claimant and the defendant. First, this cannot be seen as termination or dismissal as the defendants did not communicate this to the claimant. See Ifeta v Shell Petroleum Development Company of (Nig) Ltd (2006) 32 WRN 1 held on whether a notice for termination must necessarily be in writing

 

It does not matter whether the appellant was given notice in writing or oral (notice is notice) what is important is whether the respondent had demonstrated clearly by action that the services of the appellant are no longer required by the respondent.

 

In my calm position the stoppage of his salaries, and other entitlements for 8 years is enough evidence of intention to terminate the appointment. Generally, termination cannot be effective until it is properly communicated. What this implies is that the claimant remained an employee of the defendant with all entitlements including payment of backlog of salaries.

 

My finding here is that there was no determination of the contract of employment since   30th May 2008 to date i.e. for over eight years'' evinces an intention on the part of the defendant to repudiate the contract of employment of the claimant ... subject to the right of the claimant to his entitlements.  Having been acquitted and discharged it goes to the innocence of the claimant. Where there is an order acquitting a defendant as in the present case, this means the defendant in the criminal case is innocent of charges levied against him.  The proper order for finding of innocence is acquitted and discharged and was granted to the claimant in the Lagos High court.  This means that the claimant is entitled to be paid the backlog of his salary together with all other entitlements that go with repudiation of the employment. The claimant in relief 1 seeks for a declaration that the claimant’s employment with the defendant is still subsisting. While relief a succeeds, this must be read that the defendant has evinced intention to terminate the contract of employment between the parties.  Moreover, the relationship has broken down based on the surrounding circumstances where the claimant left and was incarnated for 8yeras on the arrest of the claimant by sabo police station yaba on the report by the defendant which means that the employee/ employer relationship has broken down irredeemably. The court cannot, based on this declare the employment as subsisting. Once dismissal is not according to the terms of employment, it is illegal and not in accordance with the written agreement it has no effect. There was no dismissal.

 

Relief B is for the sum of N510,574, 000 being the amount calculated as salary arrears, transport allowance, housing allowance, leave allowance, promotion benefits from 1st January 2008 to 31st December 2016.  The claimant cannot be claiming for the sum of Five hundred and four million for the fun of it as such must be proved and particularized. let me start with the salary for nine years which he has put as N3,480,000 the defendant worked and had severally been redeployed from one station to the other at the behest of the defendant and is therefore entitled to his salary.

 

On the other claims for transport, housing and leave allowance there is nothing to show entitlement to same. Mere pleadings without evidence goes to no issue.

 

On the exemplary damages of N500, 000, 000 the claimant’s contention is that the court is to award the claimant damages for the emotional torture and other injuries suffered as a result of the frame up by the defendant by withholding salaries and other benefits for this long referring to Ighreriniovo v S, C.C Nigeria Ltd & Ors (supra) and that there is the fact that there were claims to that effect as contained in the pleading of the claimant. The defendant did not respond to same, exemplary damages. For a party to be entitled to exemplary damages, it is his duty to prove that the action of the respondent is outrageously reprehensible. In Kabo Air Ismail Mohammed 2014 LPELR 23614 (CA) Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in future. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment as for instance where it discloses malice, fraud., cruelty, insolence or flagrant disregard of law – University of Calabar v Orji (2012) 3 NWLR (pt 1288) 418 and Zenith Bank Plc v Ekereuwen (2012) 4 NWLR (pt 1290) 207.

 

In all and for the avoidance of doubt, the claimant’s case succeeds only in part and only in terms of reliefs 1 & 3. In consequence the claimant is entitled to only of the following declarations and orders:

 

1.     The claimant remained an employee of the defendant throughout the period of arrest until date of judgement.

 

2.     The defendant shall accordingly calculate and pay to the claimant, salaries from the day of arrest till the day judgment was delivered within 30 days of the delivery of this judgment failing which it will attract interest of 15 % per annum until fully paid.

 

3.     The defendant shall further pay to the claimant within 30 days one month salary in lieu of notice.

 

4.      Cost of this action is put at N 500,000 only payable by the defendant to the claimant.

 

5.     All sums are to be paid within 30 days of this judgment failing which it will attract interest of 10 % per annum until fully paid.

 

Judgment is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE