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/62/2022
BETWEEN
Mr. Okeniyi Samson Oluseye 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. Okeniyi Samson
Oluseye, 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 MNP/PERSCFO/ojo/2014, dated 15th April, 2014and 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
remains the existing and binding terms of contract between the Claimant and the
Defendant as at time the Claimant was disengaged 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 including one month salary in lieu,
salary arrears, pension, monthly thrift/co-operative savings, unpaid leave
bonuses, payments to retirement scheme and gratuity based on his monthly/annual
emoluments in the sum of =N=443,561.83 (Four Hundred and Forty Three Thousand,
Five Hundred and Sixty One Naira and Eighty 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 was disengaged from the employment of the Defendant.
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. The
originating processes were duly served on the Defendant. However the Defendant
did not file any defence process in reaction.
2. Case of the
Claimant
3. 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 Security Guard 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 salary arrears of 18 and a half months, leave bonuses and
other allowances before he was disengaged by the Defendant by a letter dated 26th
day of November 2018 after serving the Defendant for a period of four years and
six months The claims of the Claimant in this suit is for his entitlements
which include one month salary in lieu of notice of termination of employment,
salary arrears, pension, monthly thrift/co-operative savings, unpaid leave
bonuses in the total sum of =N=443,561.83.
4. The
Claimant opened his case on 5/7/23 when he testified in chief as CW1, adopted his witness deposition of 21/12/22
as his evidence in chief and tendered 7 documents as exhibits. The documents
were admitted in evidence and marked as Exh.
SO1 – Exh. SO7. 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
5. 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.
6. 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.
7. Learned
Counsel submitted that the Defendant breached the terms and conditions in the
Handbook and prayed the Court to hold as such. Counsel added that the Defendant
having failed to challenge the evidence led by the Claimant the Court should
award the sum of One Million Naira as cost in favour of the Claimant and
against the Defendant.
8. Learned
Counsel urged the Court to enter Judgment in favour of the Claimant in this
case and determine same based on the evidence led by the Claimant 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 on 26/11/18 after
serving for a period of Four years and Six months. His case was that he was not
given a month notice in lieu of termination of employment; that he was owed
arrears of salaries for about 18 and a half months, pensions deduction not
remitted as well as monthly thrift savings.
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 of the 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 continues to bear the burden of proving his case safe
where there is an admission.
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 of appointment referenced MNP/PERSCFO/ojo/2014 dated 15th day of April 2014 and
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. SO1 dated
10/12/07 is a letter of employment titled Appointment
as Security Guard. 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. SO5. Claimant’s employment as reflected by Exh. SO1 was reinforced by Exh. SO2 which was a confirmation of the
employment of the Claimant. A combined reading of both Exh. SO1 & Exh. SO5 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 referenced MNP/PERSCFO/ojo/2014
dated 15th April, 2014 and document titled Macmillan Nigeria Publishers Limited Conditions of Service.
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 appointment of the Claimant was terminated. Exh. SO5 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 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 appointment of the Claimant was
terminated.
16. 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
including one month salary in lieu, salary arrears, pension, monthly
thrift/co-operative savings, unpaid leave bonuses payments to retirement scheme
and gratuity based on his monthly/annual emoluments in the sum of =N=443,561.83
(Four Hundred and Forty Three Thousand, Five Hundred and Sixty One Naira and
Eighty Three Kobo).
17. The
first relief under this head of claim is a one month salary in lieu of notice
of termination of appointment. The appointment of the Claimant was brought to
an end by Exh. SO3. It was dated
26/11/18. By its 2nd paragraph, Claimant was “ … disengaged from the
services of the company with immediate effect”. However by Exh. SO1 the Claimant as a confirmed employee of the Defendant is
entitled to a month notice or a month salary in lieu of notice of termination
of appointment. Accordingly, I find and hold that the Claimant was neither
given a month notice nor paid a month salary in lieu of notice. The Defendant
is here ordered to pay to the Claimant the sum of Sixteen Thousand Two Hundred
and Six Naira (=N=16,206.00) only being one month salary in lieu of notice of
termination of employment.
18. The
2nd relief under this head of claim is for the sum of =N=299,811.00
being salary arrears for 18 and a half months. It is an accepted rule of
procedure that parties are bound by their pleadings and that averments in
pleadings not supported by evidence goes to no issue. I carefully perused both
the 23 paragraph statement of facts and the 26 paragraph witness statement on
oath of the Claimant which was adopted in chief by the Claimant on 21/12/22.
Except in paragraph 17 of the former and paragraph 18 of the latter no
reference was made by the Claimant to issue of salary arrears. For instance
between when and when was the Claimant not paid salaries by the Defendant for
18 and a half months as alleged? The claim for arrears of salary is akin to a
claim in special damages which is expected to be pleaded and strictly proved.
These conditions are not met here. Claimant has not successfully proved his
entitlement to any arrears of salary. This head of claim is accordingly refused
and dismissed.
19. In
much the same vein, the claim for Co-operative savings in the sum of =N=80,000.00is
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 payment made? Claimant did not offer answer to any of these valid
enquiries. I refuse this head of claim for lack of proof and accordingly
dismiss same. Claimant also sought payment of his pension in the sum of =N=22,485.83.
I have no evidence before me respecting deductions made for pension and neither
is there evidence of Claimant’s Pension Funds Administrator or Claimant’s
Pension Fund Account before the Court. The basis for this claim is vague, weak
and lacks foundation. I refuse to grant same. I accordingly dismiss it.
20. Claimant
also claims entitlement to leave bonus for three years in the sum of =N=25,059.00.
This head of claim came up for the first and only time in paragraph 17 of the
statement of facts. Same was also reproduced in paragraph 18 of Claimant’s
witness deposition of 21/12/22 adopted as evidence in chief. Throughout his
evidence in chief Claimant did not lead any evidence as to how he arrived at
the sum claimed as leave bonus. For instance, what is his leave bonus per year?
It is important that learned Counsel would learn to tie claims of their clients
to evidence led rather than leave the Court confronted with bundle of evidence
to struggle through the bundle of evidence led and link same to the claims
sought. This claim is not proved. I refuse granting it. I dismiss it without
hesitation.
5. Conclusion
21. 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 that there existed a contract of employment between the Claimant
and the Defendant by virtue of letter of appointment referenced MNP/PERSCFO/ojo/2014 dated 15th
day of April 2014 and 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 appointment
of the Claimant was terminated.
3. The
Defendant is here ordered to pay to the Claimant the sum of Sixteen Thousand
Two Hundred and Six Naira (=N=16,206.00) only being one month salary in lieu of
notice of termination of employment.
22. All
the terms of this Judgment shall be complied with not later 30 days from today.
23. Judgment
is entered accordingly.
___________________
Hon. Justice J. D. Peters
Presiding