WD
IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE IBADAN JUDICIAL DIVISION
HOLDEN
AT IBADAN
BEFORE
HIS LORDSHIP HON. JUSTICE J.D. PETERS
DATE: 30TH OCTOBER 2024
SUITNO: NICN/IB/61/2022
BETWEEN
Mr. Gabriel Bello Claimant
AND
Macmillan Nigeria Publishers Limited Defendant
REPRESENTATION
Omodunni Adejuyitan with O. J. Oghiator
for the Claimant
Defendant not represented
JUDGMENT
1. Introduction
& Claims
1. The Claimant, Mr. Gabriel Bello, by his
General Form of Complaint dated and
filed 21/12/22 accompanied by a Statement of Facts and other relevant originating
processes of same date sought the following reliefs against the Defendant –
1. A
Declaration that there existed a contract of employment between the Claimant
and the Defendant by virtue of letter referenced MNPAdmin/GB/90, dated 30th day of July, 1990 and by
virtue of document titled Macmillan
Nigeria Publishers Limited Conditions of Service.
2. A
Declaration that the Defendant cannot unilaterally deviate or vary the content
of its Handbook known as Conditions of
Service under whatever guise and that all the terms and conditions of the
contract stated in the Defendant’s service remain the existing and binding
terms of contract between the Claimant and the Defendant as at time the
Claimant voluntarily retired from the employment of the Defendant.
3. An
Order of this Honourable Court directing and or compelling the Defendant to pay
the Claimant all his accrued entitlements, pension, monthly thrift/co-operative
savings, unpaid leave bonuses, payment to retirement scheme and gratuity based
on his monthly/annual emoluments in the sum of =N=2,954,587.23k (Two Million,
Nine Hundred and Fifty Four Thousand, Five Hundred and Eighty Seven Naira,
Twenty Three Kobo).
4. An
Order awarding cost of =N=1,000,000.00 (One Million Naira) against the
Defendant but in favour of the Claimant being general damages against the
Defendant for withholding and unjustly denying the Claimant his entitlements
since he voluntarily retired.
5. And
for such order or further order(s) as the Court may deem fit or proper to make
in the circumstance of this suit in favour of the Claimant.
2. Case of the
Claimant
2. The
case of the Claimant, in brief, as revealed by the pleadings filed and evidence
led is that he was employed by the Defendant as a Driver by a letter of
appointment; that he served diligently and apart from the fact that his
employment was confirmed, both his salary and allowances were reviewed upward
and that he was owed entitlements including pension, monthly
thrift/co-operative savings, unpaid leave bonuses, payments to retirement
scheme and gratuity in the sum of =N=2,954,587.23 (Two Million, Nine Hundred
and Fifty Four Thousand, Five Hundred and Eighty Seven Naira and Twenty Three
Kobo) before he voluntarily retired from the Defendant on 1/6/15 after serving
for a period of Twenty Five years (25 years). The claims of the Claimant in
this suit is for his entitlements which include one month salary in lieu of notice
of termination, salary arrears, pension, monthly thrift/co-operative savings,
unpaid leave bonuses and payments to retirement scheme and gratuity in the
total sum of =N=2,954,587.23.
3. The
Claimant opened his case on 6/6/23 when he testified in chief as CW1, adopted his witness deposition of 21/12/23
as his evidence in chief and tendered 8 documents as exhibits. The documents
were admitted in evidence and marked as Exh.
GB1 – Exh. GB8. The case was subsequently adjourned for cross examination.
Although served requisites notices, the Defendant did not appear in Court to
cross examine CW1 and neither did it
indeed appear to defend this suit notwithstanding that opportunities to do so
were afforded it.
3. Final Written Addresses
4. At
the conclusion of trial and pursuant to the direction of the Court that parties
should file their final written addresses, the Claimant filed a 9-page final
written address. It was dated and filed on 6/9/24. In it learned Counsel set
down a lone issue for determination as follows –
Whether
having regards to the exhibits tendered and evidence led before this Honourable
Court, the Claimant has proved his case as required by law.
5. Arguing
this lone issue, learned Counsel submitted that the standard of proof in civil
cases is on the preponderance of credible and sufficient evidence citing Section 134, Evidence Act, Lawal & Ors
v. Kazeem & Ors (2018) LPELR-425548(CA) & Odebola v. Registered
Trustees Redeemed Christian Church of God (2017) LPELR-42548(CA). Counsel
submitted that the Claimant has sufficiently proved his case before the Court;
that it is a settled principle of law that any facts not controverted, denied
or challenged is deemed admitted more so when the Defendant had ample time to
challenge the evidence of the Claimant but fails to do so citing Owners of M/V Gongola Hope v. Smurfit Cases
Limited (2007)All FWLR (Pt. 388) 105 (SC). Counsel submitted that with Exh. AY1 & Exh. AY5, there existed a
binding contract of employment between the Claimant and the Defendant which the
Defendant cannot unilaterally vary citing UNION
Bank of Nigeria Plc v. Emmanuel Aderewaju Soares (2012)11 NWLR (Pt. 1312) 571.
6. Learned
Counsel submitted further in paragraph 5.16 vi that “… it is evident from the
documents: Computation of Gratuity (exhibit AY6, Letters dated 27th
January, 2021 and 4th February, 2021 (exhibits GB7-GB8) that the
claimant voluntarily retired and gave notice via his letter pursuant to the
terms and conditions of service that either party may terminate the employment
contract as long as the other party is given notice”.
7. Counsel
added that by the documents mentioned, the Claimant was not paid from 1st
April, 2010 to 1st June, 2015 when the Claimant voluntarily retired
and hence Defendant is in breach of Part II, clause 8 & 18 of MACMILLAN
NIGERIAN PUBLISHERS LIMITED CONDITIONS
OF SERVICE by refusing to pay all of Claimant’s accrued entitlements, pension,
monthly thrift/cooperative savings, unpaid leave bonuses, payments to
retirement scheme and gratuity on his monthly/annual entitlements in the sum of
=N=2,954,587.23.
8. Learned
Counsel urged the Court to determine same based on the evidence led by the
Claimant and enter Judgment in favour in his favor as he has discharged the
burden placed on him to prove his case.
9. Again,
although the Defendant was afforded opportunity to file a final written
address, it elected to not file any.
4. Decision
10. The
case of the Claimant and the reliefs sought are straightforward. Claimant was
an employee of the Defendant whose employment was terminated after serving for
a period of about 25 years. His case was that he was owed some unpaid
entitlements by the Defendant following his voluntary retirement from the
Defendant.
11. I
have read and clearly understood all the processes filed by the Claimant. I
heard the oral testimony of the sole witness for the Claimant at trial, watched
his demeanor and carefully evaluated all the exhibits tendered and admitted at
trial. In addition, I heard the submissions of the learned Counsel to the
Claimant at the point of adopting his final written address. Having done all
this, I set down a lone issue for the just determination of this case thus –
Whether
the Claimant has discharged the burden of proof on him to be entitled to a
grant of all or some of the reliefs sought in this Court.
12. I
need to reiterate the fact that the Defendant did not enter an appearance to
this suit and neither did it file any defence. Throughout the whole trial, the
Defendant was not represented in Court either by a Counsel or a staff member.
Notwithstanding the absence of defence or the absence of the Defendant at trial
the burden of evidential poof is by no means removed from the Claimant. The law
is trite that he who asserts must prove same in order to be entitled to
positive disposition by the Court. Sections
131 & 132, Evidence Act are in support of this position of the law.
This is to further cement the accepted state of the law that the absence of
defence does not translate to an automatic Judgment in favour of the Claimant.
The Claimant must adduce evidence in proof of his claims before the Court.
13. The
sole issue set down for determination is whether the Claimant has discharged
the burden of proof in this case to be entitled to a grant of all or some of
the reliefs sought. It is a trite state of the law that he who asserts must
prove the assertion. The proof required may be by oral or documentary evidence
or by both. Credence is however often placed on documentary evidence over and
above oral evidence.
14. The
Claimant sought 5 main reliefs in this case in this Court. The first is for a Declaration
that there existed a contract of employment between the Claimant and the
Defendant by virtue of letter referenced MNP/Admin/GB/90,
dated 30th day of July, 1990 and by virtue of document titled Macmillan Nigeria Publishers Limited
Conditions of Service. It is a trite law that a letter or contract of
employment is the foundation for employment relationship between parties.
Simply put, a letter of employment signifies the intention of an employer to
establish an employment relationship with the other often referred to as an
employee. Once an offer of employment is made via a letter of employment or a
contract and same is accepted, a valid employment relationship is thereby
consummated. Exh. GB1 dated 30/7/1990 is a letter of employment titled Appointment as a Driver. It was
addressed by the Defendant to the Claimant. That exhibit contained terms and
conditions of engagement between the Claimant and the Defendant details of
which are contained in Exh. GB2.
Claimant’s employment as reflected by Exh.
GB1 was reinforced by Exh. GB5 which
was a confirmation of the employment of the Claimant. A combined reading of
both Exh. GB1 & Exh. GB2 makes
the granting of the first relief sought imperative. It is thus accordingly
granted. I declare that that there existed a contract of employment between the
Claimant and the Defendant by virtue of letter of appointment
15. The
second relief sought is for a declaration that the Defendant cannot
unilaterally deviate or vary the content of its Handbook known as Conditions of
Service under whatever guise and that all the terms and conditions of service
remains the existing and binding terms of contract between the Claimant and the
Defendant as at time the Claimant voluntarily retired from the employment of
the Defendant. Exh. GB1 is the
document of the Defendant known as Conditions
of Service. The conditions in same were put together solely by the
Defendant. The Claimant was not a part of arrangement leading to the contents
of the exhibit. Claimant was meant to only comply with the conditions of
service as contained in the exhibit. But compliance with these conditions is
not for only the Claimant. The Defendant is also bound by same. Since these
conditions form the basis of the employment contractual relationship between
the Claimant and the Defendant not only must both sides comply with same,
neither of the parties can singlehandedly vary the contents without a
concurrent agreement of the other party. I grant this relief as sought.
Accordingly, I declare that the Defendant cannot unilaterally deviate or vary
the content of its Handbook known as Conditions of Service under whatever guise
and that all the terms and conditions of service remain the existing and
binding terms of contract between the Claimant and the Defendant as at time the
Claimant voluntarily retired from the employment of the Defendant.
15. The
third relief is for an Order of this Honourable Court directing and or
compelling the Defendant to pay the Claimant all his accrued entitlements,
pension, monthly thrift/co-operative savings, unpaid leave bonuses, payment to
retirement scheme and gratuity based on his monthly/annual emoluments in the
sum of =N=2,954,587.23k (Two Million, Nine Hundred and Fifty Four Thousand,
Five Hundred and Eighty Seven Naira, Twenty Three Kobo).
16. The
first relief under this head of claim is Pension in the sum of Two Hundred and
Eighty Thousand One Hundred and Sixteen Naira only (=N=280,116.00). There is no
evidence led by the Claimant respecting this relief. There is no evidence of
any deductions by the Defendant for pension from the salary of the Claimant.
There is also no evidence of statement of account of the Claimant from his
Pension Fund Administrator before the Court. Besides, how did the Claimant
arrive at the figure claim as his pension? There is no answer provided to these
enquiries. This claim is not proved. It is accordingly refused. The second
claim under this head of claim is Employer’s
contribution in the sum of =N=372,930.00. This claim also suffers the same
fate as the pension. What is the figure of the employer’s contribution? Between
when and when was the contribution not made? There is even no evidence that the
Claimant has a Pension Fund Administrator as required by Law. This head of
claim is not proved. I refuse and dismiss same.
17. Claimant
also makes a claim for gratuity in the sum of =N=2,049,510.00. In support of
this relief, Claimant testified in chief to the effect that he worked with the
Defendant for a period of 25 years. He was employed by Exh. GB1 on 30/7/90 and he retired voluntarily on June 2015 by Exh. GB3. By paragraph 27 of Exh. GB2, having served for 25 years,
Claimant is entitled to 30 months’ total emoluments as gratuity. In paragraph
16 of his witness deposition, Claimant stated that the Defendant increased his
basic salary and other allowances to a total of =N=33,242.00 per month.
Throughout the hearing of this case there was no challenge to the evidence led
by the Claimant. Therefore gratuity entitlement of the Claimant is the
equivalent of his total emoluments for 30 months in the sum of Nine Hundred and
Ninety Seven Thousand, Two Hundred and Sixty Naira only (=N=997,260.00). Accordingly,
the Defendant is here ordered to pay to the Claimant the sum of =N=997,260.00
being Claimant’s gratuity entitlement from the Defendant.
18. Claimant’s
claim for Co-operative savings in the sum of =N=252,031.23 is not supported by
evidence. How much did the Claimant save into the Cooperative? How did he save
the sum? Was the cooperative savings deducted from his monthly salary or he
made payments into same on a monthly basis? Is there any Card for entries of
payments made? Claimant did not offer answer to any of these valid enquiries. There
is even no evidence of a Pay slip which would have reflected deductions for
Co-operative savings from Claimant’s salary. I refuse this head of claim for
lack of proof and accordingly dismiss same.
19. It
is said that cost follows event. Accordingly, the Defendant is ordered to pay
to the Claimant the sum of Two Hundred Thousand Naira as the cost of this
action.
5. Conclusion
20. Finally,
for the avoidance of doubt and for all the reasons as contained in this
Judgment, the case of the Claimant succeeds in part as follows-
1. I
declare that there existed a contract of employment between the Claimant and
the Defendant by virtue of letter referenced MNPAdmin/GB/90, dated 30th day of July, 1990 and by
virtue of document titled Macmillan
Nigeria Publishers Limited Conditions of Service.
2. I
declare that the Defendant cannot unilaterally deviate or vary the content of
its Handbook known as Conditions of Service under any whatever guise and that
all the terms and conditions of service remain the existing and binding terms
of contract between the Claimant and the Defendant as at time the Claimant
voluntarily retired from the employment of the Defendant.
3. The
Defendant is here ordered to pay to the Claimant the sum of =N=997,260.00 being
Claimant’s gratuity entitlement from the Defendant.
5. The
Defendant is ordered to pay to the Claimant the sum of Two Hundred Thousand
Naira (=N=200,000.00) as the cost of this action.
21. All
the terms of this Judgment shall be complied with not later 30 days from today.
22. Judgment
is entered accordingly.
___________________
Hon.
Justice J. D. Peters
Presiding