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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

 

4TH DAY OF MAY, 2026                                                            

SUIT NO: NICN/CA/21/2024

BETWEEN: 

MR GEORGE FELIX EGWU …………………………………………………………….………... claimant

AND

  1. Senior Staff Association of Nigerian Universities (SSANU)
  2. Senior Staff association of Nigerian Universities (SSANU)                   defendants

University of UNICAL BRANCH

   JUDGMENT.

  1. The Claimant took out a general form of complaint dated 04/04/2024 and filed on the same date accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be tendered in evidence. In the statement of facts, the claimant claims against the Defendants jointly and severally as follows:-
    1. A DECLARATION that the purported dismissal of the claimant’s employment from service by the 2nd Defendant via a Letter with Ref No. SSANU-UCB/SEC/2022/429 and dated 5th December, 2022, but served on the Claimant on 17th day of November, 2022 is unlawful, wrongful, malicious and a nullity.
    2. A DECLARATION that the Claimant’s appointment having not been lawfully terminated is continuous, unbroken and subsisting.
    3. A DECLARATION that it is unlawful for the Defendants to hold onto the Claimant’s salary for twenty-seven (27) months, without cause and with no intention to pay him.
    4. AN ORDER directing the Defendants, their servants, agents and privies to forthwith pay the Claimant the sum of Four Hundred thousand (N400,000.00) being his outstanding salaries for twenty (20) months from Apr1, 2017-November 2018,
    5. AN ORDER directing the Defendants, their servants, agents and privies to forthwith pay the Claimant the sum of Three Hundred and Twenty-Two Thousand (N322,000.00) only being his outstanding salaries for seven (7) months from April 2022-August 2022, November and December 2022.
    6. AN ORDER directing the Defendants, their servants, agents and privies to forthwith pay the Claimant the sum of One Hundred and(sic) Thousand (N100,000.00) only, being his outstanding unpaid part-salaries for Five (5) months for the Months of January, February, March, September, October of 2022.
    7. AN ORDER directing the Defendants, their servants, agents and privies to forthwith pay the Claimant the sum of Two Hundred and Forty Thousand (N240:000.00) only, being the part of his salaries withheld for Twelve (12) months from January, 2022-December 2022.
    8. AN ORDER directing the Defendants to pay the Claimant the sum of Ten Million Naira (N10,000.000.00) only, being damages for his withheld salaries and the unlawful and wrongful dismissal of his employment.
    9. AN ORDER directing the Defendants to pay the Claimant the sum of exemplary damages of Ten Million Naira (N10,000.000.00) only.
  2. Upon being served with the  originating process commencing this suit the defendant on 22/7/2024 filed joint statement of defence. The joint statement of defence, was with the leave of court deemed properly filed and served. The claimant on 30/10/2024 filed a reply to the joint statement of defence.
  3. On 25/11/2024, the claimant testified in proof of his case as CW1. CW1 adopted his two witness statements on oath filed on 4/4/2024 and on 30/10/2024 as his evidence in this case. Documents were tendered in evidence and admitted in evidence and marked as exhibits CWA – CWL. On 18/2/2025, CW1 was cross examined by counsel for the defendant, thereafter in the absence of re-examination he was discharged.
  4. Under cross examination CW1 testified to the effect that between April, 2017 – November, 2018, he was not paid salaries, that was the period Comrade Joseph Eteng was suspended as chairman of the 2nd defendant. He does not know whether other staff have been paid their salaries. When he was shown exhibit CWB, he said in that exhibit he stated others have been paid. Also, in exhibit D3, he was not at the meeting and does not have access to the record of the defendants. His salary was stopped in April, 2017. The chairman then was Chief Joseph Eteng who was suspended. He does not know who authorized stoppage of his salary. He does not know there was re-absorption and does not know who authorized it. He started work with N18,000.00 as salary, it was increased to N20,000.00  and from N20,000.00 to N26,000.00 by the 2nd defendant. And from N26,000.00 to N46,000.00. The approval was endorsed to all of us. He does not know some of the check off dues between May, - August, 2022, were not remitted due to industrial action. But they still go to work. As at April, 2017, he was still rendering service to Chairman Comrade Joseph Eteng,  and union, yes, that was the period  he was on suspension. He signed his statement in court.
  5. The defendant opened its case on 21/10/2025, through one Emmanuel Pious who testified in defence of the defendants as DW1. DW1 after identifying his witness statement on oath, adopted it as his evidence in this case. On 29/10/2025, DW1 continued with his evidence and tendered documents which were admitted in evidence and marked as exhibits D1 – D4. At the end of his evidence in chief DW1 was cross examined by counsel for the claimant, thereafter he was discharged.
  6. Under cross examination DW1 testified to the effect that as at 2014 when claimant was employed, he was a member of the union, but he was not an EXCO member as at 2017. He was not a member of EXCO during the chain of events leading to the institution of this suit he was not a member of EXCO. The claimant was a staff of the 2nd defendant and not  a member of the 2nd defendant. As a staff politics does not concerns  him. When in service of the 2nd defendant, staff do not stop going to work, as strike does not affect union activities. There is no employee handbook that regulates union activities. There is time book where staff signed when they come to work. He does not have the timebook. It is the treasurer that disabuses funds. The disbursement is done on the directive of the chairman or congress. The chairman and all other exco members functioned until last day of their tenure. The 2nd defendant has byelaw and is before the court.   Exhibits B and C, were shown to witness and he said he cannot confirm until he sees record in the office. The record of the claimant’s indebtedness  is with the treasurer.

THE CASE OF THE CLAIMANT.

  1. The Claimant was employed by the 2nd Defendant on the 17th day of November, 2014 as a Computer Operator. At the commencement of his employment, the claimant’s monthly salary was the sum of Eighteen Thousand Naira (?18,000) only per month. In January, 2017, his salary was increased to the sum of Twenty Thousand Naira (?20,000.00) only per month. The Claimant’s salary was stopped for twenty (20) months, from April, 2017 to November, 2018. According to claimant despite non-payment of his salary he continued to work dutifully for the 2nd Defendant. Notwithstanding his services, he was again owed part of his salary for January, February, March, September and October, 2022.
  2. According to the claimant sometime in November, 2022, in an attempt to sweep his outstanding salaries under the carpet, he was issued an offer of temporary appointment dated the 1st of December, 2022 as a Computer Operator by the 2nd Defendant. However, the claimant in his response to the offer letter, insisted that he will only accept the offer if his employment runs from when he was actually employed, that is, 17th day of November, 2014 and he is paid his salary arrears. The 2nd Defendant terminated the Claimant’s employment with their letter dated the 1st day of December, 2022 without paying the salary arrears.

THE CASE OF THE DEFENDANTS

  1. On 17/11/2014, the 2nd Defendant employed the Claimant as Computer Operator in her Secretariat. However, along the line, the 2nd Defendant’s erstwhile Chairman, Comrade Joseph Eteng was suspended by the National Administrative Council (NAC) of the 1st Defendant, which suspension subsisted from April, 2017 to November, 2018 and during which period, Comrade Richard Ita acted as the Chairman of the 2nd Defendant. That throughout the period of the said suspension, the Claimant, being fanatically loyal to Comrade Joseph Eteng, willfully and deliberately refused to attend work and by reason thereof, the 2nd Defendant treated the Claimant as having abandoned his employment and accordingly ceased payment of his monthly salaries from that April, 2017 to November, 2018.
  2. However, on 10/12/2018, the 1st Defendant subsequently reinstated Comrade Joseph Eteng as the Chairman of the 2nd Defendant. Following his reinstatement, at the first Executive Meeting of the 2nd Defendant held on 28/12/2018, Comrade Joseph Eteng appealed to the 2nd Defendant to reabsorb the Claimant into its employment and to resume payment of his monthly salary with effect from December 2018. The said appeal was granted, and pursuant thereto, the Claimant was recalled to his employment, and his entitlement to salary, accordingly recommenced from December 2018 only.
  3. The chairman of the 2nd defendant Comrade Joseph Eteng, about a fortnight to the expiration of his tenure as Chairman of the 2nd Defendant, unilaterally approved certain payments representing the Claimant’s salary arrears for the period he abandoned his work as well as an upward review of the Claimant’s salary being approvals without the consultation, concurrence, or approval of the Branch Executive Committee/Congress of the 2nd Defendant, which is the competent authority vested with such powers under the binding Constitution and Order of Procedure, (Exhibit DWA)(sic). According to the defendants by reason of the absence of due authorization, the said purported salary increment did not bind the 2nd Defendant, and consequently, the Claimant was never paid any salary based on the said unilateral and unapproved pay increase, which was considered as obvious reward to claimant for his loyalty and steadfastness to his person during the period of his suspension.
  4. The defendants also stated that following the employment review exercise carried out by the 2nd Defendant, fresh appointment letters were issued to the Claimant and other staffs of the 2nd  defendant, but the claimant issued a conditional acceptance letter wherein he demanded payment of alleged arrears of salaries for the period of April, 2017 to November, 2018. The 2nd Defendant who is not owing the Claimant salaries for those months, promptly declined the Claimant’s acceptance letter and consequently terminated his employment.

THE SUBMISSION OF THE DEFENDANTS:

  1. The counsel for the defendants formulated a single issue for determination to wit:

Whether having regard to the totality of the pleadings and evidence of both parties, the Claimant’s case is not frivolous, and lacking in merit and liable to be dismissed on account thereof by this Honourable Court?

  1. In arguing the sole issue counsel submitted that on several scores, a due consideration of the pleadings and proper evaluation of the evidence of the parties, will reveal that this action is frivolous and lacking in merit and accordingly should be dismissed by the Court. Counsel argued that it has often been declared by our courts that every action before a law court is based and anchored on its peculiar facts and the reliefs sought relate to and derive from the raw facts of it. To support his contention counsel relied on the cases of Rebold Industries Ltd vs. Mrs Magreola & Ors (2015) 245 LRCN 105 at 121JJ; A.P.C. vs Sheriff (2024) 2 NWLR (Pt 1921) 49 at 153, paras. F-G and Onyi vs State (2009) All FWLR (Pt 450) 625 at 640.
  2. On the Claimant’s allegation that the 2nd Defendant is owing him salary arrears for a period of 20 (Twenty) months, from the months of April, 2017 to November, 2018 amounting to the sum of N400,000.00 (Four Hundred Thousand Naira) only notwithstanding that he dutifully discharged his duty and service to the 2nd Defendant.
  3. Counsel contended that considering the peculiar facts of this case, this allegation is unfounded and unsubstantiated. As the Defendants pleaded and gave evidence establishing that the National Administrative Council (NAC) of the 1st Defendant, between April, 2017 to November, 2018 suspended Comrade Joseph Eteng, the erstwhile Chairman of the 2nd Defendant, and during which period Comrade Richard Ita acted in his capacity. It is the case of the defence that throughout the said duration of the suspension of Comrade Joseph Eteng, the Claimant who was fanatically loyal to him, willfully and deliberately refused to attend work and by reason thereof, the 2nd Defendant ceased payment of the Claimant’s monthly salaries from that period of April, 2017 to November, 2018 and treated him as having abandoned his employment.
  4. Counsel submitted that the Defendants further pleaded and adduced evidence showing that as Comrade Joseph Eteng’s resumed his office as Chairman of the 2nd Defendant, a Branch Executive Committee (BEC) meeting of the 2nd Defendant was convened and held on 28/12/2018. That upon the basis of an appeal made by Comrade Joseph Eteng in that BEC meeting, the 2nd Defendant unanimously agreed to reabsorb the Claimant into his employment as a Secretariat staff and also to resume the payment of his monthly salary effective from December, 2018. It was following the above development that the Claimant, in December, 2018 resumed work as 2nd Defendant’s Computer Operator. See exhibit D3. Excerpts of the Exhibit D3, relevant to the said issue reads thus:

“Re-Absorption of Mr George, Exco resolved that he should tender an apology letter based on the appeal by the Chairman. On his remuneration, it was unanimously agreed that it should take effect from December, 2018. The Chairman, Comr. Joseph Eteng appreciated the Exco on the maturity exhibited in handling the issue.’’

  1. It is significant that, under cross-examination on the issue of who the Claimant particularly worked for during the period of the suspension of Comrade Joseph Eteng, the Claimant (CW1) revealed in his answer that, at the material time, he exclusively worked for and rendered services to Comrade Joseph Eteng. Excerpts of his testimony elicited on the above issue is as follows:

“Between April, 2017 to November, 2018, I have not been paid salaries. That was the period Comrade Joseph Eteng was suspended as chairman of the 2nd Defendant…. As at April, 2017, I was still rendering services to Comrade Joseph Eteng. Yes, that was the period he was on suspension.”

  1. Counsel submitted that the Claimant’s admission of serving a suspended official of the 2nd Defendant during the pendency of that official’s suspension cannot, in law or in fact, be construed as rendering services to the 2nd Defendant or as performing any duty in his capacity as an employee of the 2nd Defendant. In fact, this admission of the Claimant (the CW1) that he worked for a suspended official of the 2nd Defendant clearly underscores the absence of any subsisting employment relationship between him and the 2nd  Defendant during the said period. Counsel argued that, in law, the effect of the suspension of Comrade Joseph Eteng as Chairman of the 2nd Defendant meant a temporary stoppage or deprivation of his powers, right and privileges attached to the office and position of Chairman of the 2nd Defendant. On the meaning and effect of ‘suspension’ counsel relied on the cases of A.G. Cross River State vs F.R.N. (2019) 10 NWLR (Pt 1681) 401 at 484, paras. 4; Nweke vs Unizik, Awka (2017) 18 NWLR (Pt 1598) 458 at 476, paras. B-E and Okoronkwo vs INEC (2025) 8 NWLR (Pt 1991) 131 at 151.
  2. As earlier stated, the Defendants pleaded that due to the prolonged absence of the Claimant from work, he was treated to have abandoned his employment and the payment of his salary was ceased on account thereof and that this breakup in his employment spanned until the 28/12/2018, when the 2nd Defendant in acceding to the appeal of Comrade Joseph Eteng decided to reinstate him into his employment. On the decision to reinstate the Claimant into his employment, the Defendants at paragraph 4 (7) and (8) of the Joint Statement of Defence averred thus:

The first Executive Meeting of the 2nd defendant which Comrade Joseph Eteng conveyed after his reinstatement was an emergency meeting held on 28/12/2018. In the course of the said meeting, Comrade Joseph Eteng passionately appealed that the Claimant should be reabsorbed into his employment. The said appeal was considered and granted and it was unanimously resolved and agreed in that meeting presided over by Comrade Joseph Eteng that the Claimant’s monthly salary be effected beginning from December, 2018.

  1. Based on the foregoing development, the Claimant in December, 2018 resumed work as Computer Operator and save for the months of May, June, July, August, November and December, 2022 was dutifully paid all his monthly salaries until his appointment was eventually terminated.
  2. Counsel submitted that throughout the Claimant’s Reply to Joint Statement of Defence filed on 30/10/2024, he did not traverse or controvert the specific averments contained in paragraph 4 (7) and (8) of the Joint Statement of Defence and the necessary implication of this failure is that the Claimant is deemed to have admitted the truth of the said averments as pleaded by the Defendants. Because, in law, where a party fails to traverse a material fact in the pleadings of his adversary, he is deemed to have admitted the truth of that averment, and such admitted averment is taken as established without the necessity of further proof. On the effect of non-denial of specific allegation in pleadings, counsel relied on the cases of Walter vs. Skyll (Nig) Ltd. (2000) FWLR (Pt 13) 2244 at 2267, paras. A-B and Bongo vs Governor, Adamawa State (2013) 2 NWLR (Pt 1339) 403 at 440-441, paras. F-D.
  3. According to counsel the foregoing state of affairs clearly demonstrates that the Claimant did not work for the 2nd Defendant during the subsistence of the 20 months’ suspension of Comrade Joseph Eteng. This position flows directly from the Defendants’ pleadings, it is further reinforced by the Claimant’s implied admission arising from his failure to traverse those pleadings, and is conclusively confirmed by his express admission under cross-examination that, during the period of suspension, he worked for and rendered services to the suspended official of the 2nd Defendant.
  4. Counsel submitted that the Claimant, having not worked for the 2nd Defendant during the 20 months suspension of Comrade Joseph Eteng, is, as a matter of law, not entitled to claim salaries for a period in which he did not serve the 2nd Defendant. Counsel contended that the law is on a firm pedestal that a servant would only be paid for the period he served his master and so, an employee cannot make a claim for salaries not earned by him. In support of his submission counsel relied on the cases of Skye Bank Plc vs Adegun (2024) 15 NWLR (Pt 1960) 1 at 46-47, paras. H-A; Olatunbosun vs NISER Council (1988) 3 NWLR (Pt 80) 25; (1988) 1 NSCC Vol. 19 Part 1 at P. 1027, 1047; Atulomah vs. Nigerian College of Aviation Technology (2015) LPELR-25733 (CA) 37-38, paras. F-A. On whether an employee can claim salary/allowance for a period he did not work, the erudite OLABODE ABIMBOLA ADEGBEHINGBE, JCA in the case of Philip vs ADSU, Mubi & Ors (2025) LPELR-81492 (CA) 28, paras. A-C had this to say:

“The Appellant admitted not having worked for the period he is claiming payment in respect of. Proof of entitlement to a sum by an employee is often by reference to an instrument which grants same. The law is on a firm pedestal that a servant would only be paid for the period he served his master. Thus, an employee cannot make claims for salaries not earned.” 

  1. It is in the light of the foregoing background that, counsel urged the court to refuse and reject the Claimant’s claim for arrears of salary for April 2017 to November, 2018 as the claim was not earned by him.
  2. On the Claimant’s copious allegations that the erstwhile Chairman of the 2nd Defendant, Comrade Joseph Eteng, at some point approved a salary increase in his favour, upon which he consequently predicated and computed his monetary claims against the Defendants. In response to and in denial of these allegations, the Defendants not only pleaded the existence of a dubious interpersonal relationship between the Claimant and Comrade Joseph Eteng, which will have culminated in the questionable approval being touted by the Claimant, but more fundamentally pleaded that the said approval is invalid, ultra vires, and not binding on the Defendants, same having been made in clear non-compliance with the mandatory provisions of the Constitution and Order of Procedure of the 1st Defendant.
  3. Counsel continued his submission that beyond the questionable relationship between the Claimant and Comrade Joseph Eteng, the Defendants further pleaded that the purported approval is invalid, ineffectual, and of no binding force, having been made without the mandatory concurrence of the 2nd Defendant’s Branch Executive Committee and Congress, as expressly required by Exhibit DWA(sic), the 1st Defendant’s Constitution and Order of Procedure.
  4. It is submission of counsel that it is beyond dispute that exhibit DWA(sic), in the eyes of the law, constitutes a contractual agreement binding on the Defendants and their members alike. Consequently, the provisions thereof are mandatory and must be strictly complied with. As any act or decision taken by Comrade Joseph Eteng, or by any other member of the Defendants, in violation of or in non-compliance with the provisions of exhibit DWA(sic) is ultra vires, invalid, null and void, and incapable of conferring any enforceable right on the Claimant. On this principle of law, see the cases of Registered Trustees of Auto Spare Parts & Machineries Dealers Association & Anor. vs John (2020) LPELR-4954 (CA); Ogboro vs Registered Trustees of Lagos Polo Club & Anor (2016) LPELR-40061 (CA) 25 Paras. B-D and the case of Anaelo & Ors Maduagwuna & Anor (2018) LPELR-44884 (CA) Pp. 18-20, paras. B-B.
  5. Counsel submitted that a careful examination of the uncontroverted pleadings in paragraph 4 (7) of the Joint Statement of Defence clearly demonstrates the binding nature of exhibit DWA(sic) in relation to the disbursement of the Defendants’ funds. A close consideration of the said paragraph 4 (7) alongside exhibit DWC(sic) unmistakably shows that, in substantial compliance with exhibit DWA(sic), the payment of the Claimant’s salary required the joint concurrence of the Chairman of the 1st Defendant (then Comrade Joseph Eteng) and the 2nd Defendant’s Branch Executive Committee (BEC) sitting in Congress, at the Branch Emergency Meeting held on 28/12/2018. It is noteworthy that even as the sitting Chairman of the 2nd Defendant, Comrade Joseph Eteng lacked the authority to unilaterally restore the Claimant’s employment and/or approve the payment of his salary. Rather, in strict obedience to the Constitution exhibit DWA(sic), the restoration of the Claimant’s employment and the approval of his salary were subject to the concurrent decision and approval of the requisite organs of the 2nd Defendant.
  6. Counsel submitted that the above scenario is in contradistinction with the subsequent situation where Comrade Joseph Eteng, the then Chairman of the 1st Defendant, unilaterally approved a pay-rise for his beloved Claimant. In the circumstances, counsel submitted that the alleged approval of a salary increases, which the Claimant attributes solely to Comrade Joseph Eteng, is not only tainted by this undisguised loyalty but is also devoid of institutional authorization as stipulated under the operational Constitution of the Defendants. The Court is therefore urged to reject the purported approval as a product of personal allegiance rather than a lawful act binding on the Defendants.
  7. Counsel contended that the purported approval of an increase in the Claimant’s salary and/or disbursement of funds, unilaterally done by Comrade Joseph Eteng without the mandatory concurrence of the 2nd Defendant’s Branch Executive Committee and Congress, is null and void and of no binding effect on the Defendants. Counsel urged the court to dismiss the Claimant’s claims insofar as they are founded on the said unilateral salary increment. Counsel further prays that the solitary issue be resolved in favour of the Defendants.
  8. In concluding his submission, counsel submitted that in the light of the applicable laws, the judicial authorities cited and the arguments canvassed herein, counsel humbly urged for this action to be dismissed.

   THE SUBMISSION OF THE CLAIMANT:

  1. Enome J. Amatey, Esq; counsel for the claimant adopted the final written address of the claimant as his argument. In the final written address, a single issue was formulated for resolution to wit:-

Whether considering the peculiar facts and circumstances of this case, the Claimant has established his case before this Honourable Court and is entitled to the reliefs sought?

  1. In arguing the sole issue for determination, counsel submitted that, the Claimant initiated this action to challenge the 2nd Defendant’s unlawful withholding of his full salaries for twenty-seven (27) months, failure to honour approved salary increments leading to non-payment of part of his entitled salaries for Seventeen (17) months, and wrongful termination of his employment as a Computer Operator due to his insistence on the payment of his salary arrears.
  2. Counsel submitted that in proof of his case, the Claimant tendered a total of twelve (12) exhibits, marked as Exhibits CWA - CWL.  The Claimant testified as the sole witness in this action and gave evidence as CW1. In his evidence in chief, deposed to on 4/04/2024, CW1 stated that he was employed on the 17th day of November, 2014 by the 2nd Defendant as a Computer Operator and was placed on a monthly salary of Eighteen Thousand Naira (?18,000.00) only, (see paragraphs 3 and 5 of the Written Statement on Oath of CW1). This piece of evidence flows from the Claimants averments in paragraph 3 and 5 of the Statement of Facts, which was admitted by the 1st and 2nd Defendants in Paragraph 2 of their Joint Statement of Defence of 10/07/2024. The law is trite that facts admitted need no further proof. In support of this submission reliance was placed on the case of Market Research Consultancy Ltd v. Amuabunosi & Anor. (2019) LPELR-47841 (CA) (Pp.18-19 para. F); Benson v. The State (2018) LPELR-48458 (CA); Section 123 Evidence Act 2011.
  3. According to counsel having established the fact that there is an employment relationship between the Claimant and Defendants, the question that follows therefore is; “was it lawful for the Defendants to stop the Salaries of the Claimant without cause and without following due process of law?”
  4. In answering the question, counsel refers to paragraphs 3 and 6 of the written statement on oath of CW1 and  averments in paragraphs 6 and 7 of the statement of facts, the Claimant had clearly stated that he had discharged his duties diligently and dutifully, showing dedication to assigned duties from the date of the employment. However, despite being dutiful and diligent in the discharge of his obligation, the 2nd Defendant in April of 2017, unlawfully stopped the Claimants salary without notice and withheld the Claimant’s salary from April 2017 to November 2018.
  5. Counsel submitted that, the 2nd Defendant, by suspending the salary of the Claimant without notice or by failing to follow the due process of law in disciplinary actions against employees, breached the Claimant’s fundamental right to fair hearing protected under section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel argued that the law is trite that where disciplinary actions are sought to be taken against an employee, such actions must be carried out in accordance with due process of law; that is, such employee must be granted a fair hearing. In support of this contention counsel relied on the cases of Eigbe v. N.U.T (2008) 5 NWLR (Pt.1081) 604 P.628, para. C-D, 632 para. G-H, Olatunbosun v. NISER Council (1988) 3 NWLR (Pt.80) 25 Pp. 47- para H, 48 para H.
  6. It is submission of counsel that before an employer can rely on any misconduct as a ground for disciplinary action, the employee must be formally queried, notified of the allegation, and afforded an opportunity to be heard. Failure to do so amounts to a denial of fair hearing and a breach of natural justice. On this submission counsel relied on the case of Imonikhe V. Unity Bank Plc (2011) LPELR 1503 (SC), (2011) 12 NWLR (Pt.126 2) 624 Pp. 648 para F per Rhodes-Vivour J.S.C. The provision of the Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the right to fair hearing in the determination of an individual’s civil rights and obligations. In the context of employment, this means that employee in all instances, must be given an opportunity to respond to any allegation made against them. The employer is obligated to conduct a fair and impartial investigation, allowing the employee to present their side of the story.
  7. Counsel submitted  that the Defendants neither served the Claimant with a query nor afforded him any opportunity to defend himself on the alleged misconduct of “continuous unapproved absence from duty”. see Paragraph 4(4) and (5) of the joint Statement of Defence). In fact, in exhibits CWF and CWH which are the Claimant’s response to the 2nd Defendant after they had requested for him to produce letter of query, reply to query, letter of suspension from duty, letter of recall, etc see exhibit CWE), the Claimant had repetitively stated that he was not served with any of those documents listed in their reply letter dated 7th June, 2022.  Also, the Defendants in their Joint Statement of Defence, made no mention of any preliminary warning or query being issued to the Claimant or that a panel was set up to conduct an investigation which the Claimant was in attendance and had pleaded his case, before they resolved to suspend his salaries. They did not also tender any evidence of any disciplinary procedure. All they did was allege that he was absent from work for a prolonged period, with no proof of that assertion.
  8. According to counsel, beyond giving the Claimant the opportunity to respond to the allegation of being absent from work for a prolonged period, the Defendants had a duty to provide proof of that assertion before this Honourable Court. It is our further contention that the Defendants had a duty to show by empirical evidence facts in support of their allegation and the easiest way to have done so was through the production of their staff time book. It is on record that during cross examination of DW1 by counsel to the Claimant, he admitted that they indeed had a staff time book, where daily attendance of staff was recorded. He further admitted that this staff time-book was not produced before the Court. Counsel submitted that the Defendants refused to produce the said staff time book because they knew for a fact that the contents of the said time book will be damaging to their false claim. Counsel urged the court to invoke the provision of Section 167 (d) of the Evidence Act, 2011 against the Defendants. See the case of Durbar Hotel PLc v. Kasaba United ltd (2024) 1 NWLR (Pt.1919) 311 Pp. 360, paras, F-H; Pp 369, para. A-B.  Their failure is fatal and we urge this Honourable Court to so hold.
  9. On the  Defendants allegation that the absence of the Claimant from work was an act of solidarity for his embattled mentor and deeming Claimant as having abandoned his work and then proceeded to suspend his salary on the basis of their assumption. Counsel submitted on the one hand, they stated that he abandoned his duty post, in another breathe, they alluded to the fact that his absence from work was in solidarity with his mentor, thereby purporting to be aware of where he was and the reason for his being there. In all these allusions, nowhere did the Defendants remotely suggest that the Claimant was out of work for any specific number of days before his salary was stopped. It therefore suggests that assuming but not conceding that the Claimant stopped going to work at any time, the Defendants stopped his salary without giving him any window or grace period to return to his duty post. If their position is anything to go by, it simply means that immediately they did not see him at his duty post for one day, they stopped his salary.
  10. In Mr. Ganiyu Rasak v Liquid Bulk Limited (unreported Suit No NICN/PHC/103/2020 delivered on the 9th day of February, 2022) this Honourable Court, sitting in Port Harcourt, Rivers State, Per Hon. Justice N.C.S Ogbuanya, J. held thus:

“A standard principle guiding application of the concept of “job abandonment at workplace is that the employer does not know the where about of the employee who left the duty post or fails to report for duty without contact with the employee to provide reason for such behaviour. A grace period is usually allowed to give the employee benefit of doubt, in case he/she may have been involved in uncontrollable situation. In other words, for an employer to invoke disciplinary measure associated with infraction of job abandonment, the employee must have been absent from duty without permission, and the employee did not get in contact with the employer, who only have to exhaust the grace period before exercising disciplinary measure for the unexplained absence (job abandonment)”.

  1. According to counsel, the Claimant has repeatedly stated that he never stopped going to work for that period of time even when his salaries were unpaid. He has been emphatic about this and that was never denied or refuted by the Defendants. Therefore, their claim of abandonment is untenable.
  2. It is submission of counsel that the law is trite that the negative is incapable of proof, the burden of proof is therefore on the party who asserts in the affirmative. It therefore behoved on the Defendants who asserted that the Claimant stopped reporting to duty, to lead evidence in proof of that fact. No burden in this regard is therefore on the Claimant who constantly maintained that he did not stop going to court(sic) in the period under contention.   In support of this contention counsel relied on sections 131 and 136(2) of the Evidence Act 2011, (as amended).
  3. Counsel also refers to the Supreme Court decision in the case of Amaechi v. Independent National Electoral Commission & Ors (2008) LPELR-446(SC), (2008) 5 NWLR (Pt. 1080) 227 per Onnoghen JSC and Ekweozor v. Reg Trustees, S.C.A.N. (2020) 11 NWLR (Pt.1734) 51 the Supreme Court per Peter-Odili, J.S.C. 
  4. Counsel also refers the court to the averment contained in paragraphs 3, 4, and 5 of the Claimants Reply to the Defendants Joint Statement of Defence and submitted that the suspension of claimant’s salaries was orchestrated by Comrade Emmanuel Otu, the then PRO and the current Chairman of the 2nd Defendant; Comrade Patrick Ndem, the then Secretary of the 2nd Defendant and Comrade Eyo Archibong, the then Assistant Secretary and current Assistant Secretary of the 2nd Defendant, who belonged to the faction against Comrade Joseph Eteng’s Chairmanship. The suspension of the Claimants salary happened after the aforementioned persons claimed that he had been sighted dispatching letters for Comrade Joseph Eteng, during their crisis which led to the suspension of the Chairman of the 2nd Defendant at that time. The Claimant led evidence in proof of the fact that by virtue of his job description, he was expected to work closely with the Chairman, type his correspondences and accordingly dispatch same. It was in the cause of carrying out one of such functions that he was accosted by the aforementioned persons and after that encounter, they caused his salaries to be stopped.
  5. It is also convenient that the Claimants salaries was suspended around the same time the erstwhile Chairman of the 2nd Defendant was suspended by the National Administrative Council (NAC) of the 1st Defendant and which suspension lasted to November 2018 (see Paragraphs 4(1), (2), (3), (4) and (5) of the Defendants Joint Statement of Defence).
  6. Counsel submitted that the trail of events that led to the suspension of the Claimants salaries clearly shows that the 2nd Defendant’s action was ill-intended. The Claimant had just been a casualty to the political tussle that went on within the association which he had no involvement in as he was merely a staff of the 2nd Defendant, who went on carrying out his duties, without minding who was Chairman or in the executive and had no favourites and was definitely not a mentee of Comrade Joseph Eteng (see paragraph 6 of the Claimants Reply to the Defendants Joint Statement of Defence).
  7. Counsel submitted that CW1 in his evidence further stated that the Chairman of the 2nd Defendant approved that he should be paid Three Hundred Thousand Naira (?300,000.00) only, out of his outstanding arrears of salary (See paragraphs 10 and 11 of the Written Statement on Oath of CW1). Counsel further refers to exhibit CWB tendered by the Claimant which, on the face of the said letter, it is evident that the letter was acknowledge by the Chairman and the sum of Three Hundred Thousand Naira (?300,000.00) approved to be paid to the Claimant out of the outstanding salary arrears.
  8. According to counsel the Defendants in their defence did not deny that the above sum was in fact approved to be paid to the Claimant. And as a principle of law in pleadings, that which is not denied, is deemed to have been admitted and as such need no further proof. On this submission reliance was placed on the case of D-G., N.I.A. v. Dauda (2024) 7 NWLR (Pt. 1936) 1. The response by the Defendants in their Joint Statement of Defence poses the question as to why the Chairman of the 2nd Defendant would later approve the payment of the sum of Three Hundred Thousand Naira Only (?300,000.00) out of the Four Hundred Thousand Naira owed to the Claimant as salary arrears if the suspension of salary had been rightfully grounded for the reasons which the Defendants claim?  It clearly shows that there was no reason whatsoever for the Salaries of the Claimant to be suspended. The 2nd Defendant therefore clearly acted maliciously.
  9. Counsel submitted that the Claimant having not received any query letter or notice of disciplinary action against him, had rightly continued to come to work and perform the duties for which he was employed even when he was not being paid any salary. Counsel contended that it is not for the Claimant to know what is on the minds of the 2nd Defendant and her officers. Their failure to take the proper steps to suspend a worker who they deemed to have abandoned his employment only shows that they were well aware of their unlawful actions and the probable implication to indemnify damages or losses caused to the Claimant. Their claim will therefore not exonerate them from their liability to pay the Claimant his entitled salaries for the period he worked. 
  10. In the light of the above argument, counsel urged the Court to hold that the suspension of the Claimant’s salary from April 2017 till November, 2018 was unlawful and the Claimant is therefore entitled to the sum of Four Hundred Thousand Naira (?400.000.00) only, being the total of his withheld salary for twenty (20) months.
  11. On salary increase it is the Claimant’s case that in February 2019, his salary was increased from Twenty Thousand Naira (?20,000.00) to Twenty-Six Thousand Naira (?26,000.00) only (see paragraph 12 of the Written Statement on oath of CW1).  The Defendants in Paragraph 6 of their Joint Statement of Defence did acknowledge this sum as the prevailing salary of the Claimant and made no denial as to the date of the said review of the Claimant’s salary. The law is trite that facts admitted need no further proof.
  12. The Claimant further contended that due to the high rate of inflation in the country, he had together with other staffs of the 2nd Defendant written a letter dated the 7th day of January, 2022, see exhibit CWC to the Chairman of the 2nd Defendant appealing for a salary increase. Their appeal was approved by the Chairman of the 2nd Defendant who endorsed on the letter on the 8th day of January, 2022 and directed the Financial Secretary/Treasurer to increase his salary by Twenty Thousand Naira (?20,000.00) only, thereby taking the Claimants salary from Twenty-Six Thousand Naira (?26,000.00) only to Forty-six Thousand Naira (?46,000.00) only. However, in spite of this increment, the Claimant was never paid his full salary in line with the new salary scheme. The Defendants did not deny the fact that the Chairman of the 2nd Defendant had approved the increment of the Claimant’s salary and directed the Financial Secretary/Treasurer to effect same. Rather, in an attempt to exonerate themselves from liability the Defendants contended in opposition that by the 1st Defendant’s extant Constitution and Order of Procedure, all disbursement of funds shall be approved by the Chairman/Branch Executive Committee/Congress and which disbursement is a part of the Treasurer’s functions. And as such the 2nd Defendant’s Chairman and/or officer or member of the Defendant cannot unilaterally make any valid approval relating to the disbursement of the Defendants funds to any person at all. It was further contention of the Defendants that the approval of the payment of the sum of Three Hundred Thousand Naira (?300,000.00) only to the Claimant and the pay raise of Twenty Thousand Naira (?20,000.00) only for the Claimant and the other staff of the 2nd Defendant was done about a fortnight before the expiration of his tenure as 2nd Defendants’ Chairman. According to them, these made both approvals invalid, not binding on the Defendants and cannot be enforced against them (paragraph 5, 6, 7, and 8 of the Defendants Joint Statement of Defence). The Defendants made heavy weather of this and maintained the same posture in paragraphs 4.13 to 4.20 of their final written address.
  13. In response to the submission of the Defendants’ Counsel, counsel for the claimant placed reliance on the provision of the extant Constitution and order of procedure of the 1st Defendant as cited by the Defendants in their Joint Statement of Defence. Counsel submitted that either the Chairman OR the Branch Executive Committee OR the Congress can approve the disbursement of funds. This position was also acknowledged by the Defendants’ witness (DW1) under cross examination by us.  It is therefore a surprise that the Defendants are claiming that the Chairman cannot unilaterally approve the disbursement of funds where the provision of the extant law cited by them clearly give such powers to the Chairman to make such approval unilaterally (see Article 15 (iii) (D) (6) of exhibit DW4(sic). It is either the Defendants have no clear understanding of the provisions of the law which they sought to rely on or are so blinded by their evil actions that they would want to bend the law to suit their own case.
  14. According to counsel the use of the forward slash symbol (/) in place of the word OR does not change the interpretation of that section. The forward slash or slash symbol is used as a substitute for the conjunction “or”, it signifies the availability of multiple options or choices. On the face of the Article, it is our humble submission that either of the aforementioned parties can approve the disbursement of the funds of the union. The authority of the Chairman to so act is backed by the extant constitution of the 1st Defendant and this power has been acknowledged by DW1 under cross examination by us to exist until the end of the tenure of the sitting Chairman. It is therefore irrelevant if the Chairman had approved the disbursement of the funds a day or a fortnight to the end of his tenure as Chairman of the 2nd Defendant Union as claimed by the Defendants in Paragraph 4(7) of their Joint Statement of Defence. It is also instructive to mention that the Defendants have not alluded to or tendered any evidence to show that the said approval by their chairman was reversed by his successor or any organ of the Defendants for that matter.
  15. The Court of Appeal in I.N.E.C v. PDP (1999) 11 NWLR (Pt.626) 174 Pp 195 para. D-E. per Muntaka Coomassie J.C.A. stated thus:

“It is well settled that in construing and interpreting the words of the Decree or any other statute grammatical and plain meaning be accorded to them provided the language used is clear and unambiguous. Consequently, it is no business of the court to bring in, chip in or even interpose any language or words which tend to alter or change the intent and meaning of the statutory provisions.”

  1. Counsel submitted that the provisions of Exhibit DW4(sic) are clear and unambiguous, and this Court should accord them their grammatical and plain meaning to the words used in the relevant Article. Counsel urged the court to hold that the Defendants cannot rely on their internal administrative confusion to defeat accrued salary rights. Where an employer authorizes salary increment and the employee continues in service, the employer is estopped from denying the increment. It is therefore our further submission that the principle of estoppel by conduct applies and should be invoked against the Defendants.
  2. Counsel submitted that the Defendants acknowledged its indebtedness to the Claimant for the months of May, June, July and August 2022 in Paragraph 9 of their Joint Statement of Defence but went on further to state that it had been constrained with funds at that time because the associations main source of income which is the dues paid by the staff members of the 1st Defendant was suspended by the Federal Government because of the strike.
  3. Counsel submitted that the 2nd Defendants is merely making excuses for their wrongful actions. Under cross-examination, DW1 admitted that the staff of the 2nd Defendants continue to work even when they are on strike, and that in fact, they are more active during the time of the strike and as such, the staff of the 2nd Defendant are still entitled to be paid for the work done. The law is trite that an employee whose employment has not been terminated is entitled to his salary and emoluments. In support of this contention reliance was placed on the case of N.B.C. Plc v. Edward (2015) 2 NWLR (Pt. 1443) 201 P 235 para. F-G.
  4. Counsel argued that denial of an employee’s salary is a denial of a fundamental contractual right of such employee. The law as regards the issue of payment of salaries is sacred.  A worker is entitled to wages that are earned and this right is automatically implied into a contract of employment. On this counsel relied on the case of Idowu Bello v. Pacific Diagnostics Limited (unreported suit No NICN/LA/170/2021, delivered on July 18, 2024) sitting in Lagos per Hon Justice M. N. ESOWE. It is therefore the duty of an employer to pay wages or salary in accordance with the terms of contract whether expressly stated or implied to the employee. See the case of Udegbunam v. Federal Capital Development Authority & 2 ORS (2003)10 NWLR (Pt. 829) 487 at 500-501. The refusal of the Defendants to pay the salary of the Claimant amounts not only to a breach of contract but also a grave unfair labour practice.
  5. It is submission of counsel that this Honourable Court by virtue of Section 7(6) of the National Industrial Court Act 2006 is enjoined to have due regard to good or international best practice in Labour or industrial relation. As part of International best practice, salaries must be paid timely. Article 15 of the African Charter on Human and Peoples Right (CAP A9 LFN 2004) provides for the Right of an employee to work under equitable conditions and fair remuneration. Similarly, Article 12 of the International Labour Organisation Convention CO95 Protection of Wages Convention 949 (No. 95) requires that wages be paid regularly and prohibits arbitrary withholding of employee’s salaries.
  6. Also, section 15 of the Labour Act provides that employees must pay wages at appropriate intervals not exceeding one month where the period for which the contract is expressed to subsist is more than one month. It follows therefore that; however the Union makes the money to pay its staff is the business of the union and not that of the staff. Since they know their main source of income is the dues paid by the staff members of the 1st Defendant, when the 1st Defendant went on strike, they too should have stopped working or should have reduced the working hours. By continuing with their work as usual and even imposing more work on the staff they had by implication put themselves out as being able to pay the staff for the work carried out. Their excuse in this instance holds no water.
  7. Counsel submitted that CW1 stated further that on the 27th day of November, 2022 the 2nd Defendant had issued to all staff of the union a letter of temporary offer of appointment dated 1st December, 2022 (see Exhibit CWI). The Claimant responded to the said letter on the 28th day of November, 2022 (see Exhibit CWJ), accepting the temporary appointment on the condition that his employment will date back to November, 2014 when he was actually employed and that he will be paid the arrears of salaries which the Defendant owed him. The Claimant maintained this position because an acceptance of the new appointment letter will mean a termination of the previous employment and a waiver of the arrears accompanying the previous employment. The Claimant had only been trying to protect his interest but the Defendant, being irked by the Claimant’s demand and trying to tactically avoid the payment of all the outstanding salaries owed to the Claimant issued and served on the Claimant a letter of termination of his appointment dated 5th day of December, 2022 (see Exhibit CWK).
  8. In Organ v. N.L.N.G (2013) 16 NWLR (Pt.1381) 506 the Supreme Court held thus:

‘’Again, it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such an employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee. See Garuba v. Kwara Investment Co. Ltd (2005)…”

  1. It is submission of counsel that the purported termination of the Claimant’s employment had nothing to do with his competence, capacity, or operational requirements of the Defendants’ association. It was born out of malice and mischief. That is most condemnable and does not accord with the law. In support of his submission counsel refers to Article 4 of International Labour Organisation (ILO) Convention, C158 Termination of Employment Convention, 982 (No. 158), which provides that:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”

  1. Assuming but not conceding that the purported termination was due to the Claimant’s conduct or performance, counsel submitted that he ought to have been afford the opportunity to defend himself, before an action is taken against him. This is in line with the provisions of Article 7 of International Labour Organisation (ILO) Convention (supra), which provides that:

“The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.”

  1. Counsel submitted that the reason for the termination of the Claimant’s employment as stated in the Letter of termination dated 5th December, 2022 was that the association was unable to meet the conditions of the Claimant as contained in his Letter of Acceptance of Employment. See exhibits CWJ and CWK.  The reason for termination cannot be considered as reasonable. It in no way relates to the capacity of the Claimant or his conduct or performance at work, neither is it in line with any of the regulation governing employment relation in the union which is before this Honourable Court.
  2. In this instance, the Claimant was not also given fair hearing. It would have reasonably been expected that if the Executives of the 2nd Defendant had deemed themselves unable to meet the conditions put before them by the Claimant, they would reach out to him to arrive at some sort of compromise. However, having set their minds on getting rid of the Claimant to avoid paying him his outstanding salaries, they decided to resort to purporting to terminate his employment entirely. The Defendants by purportedly terminating the employment of the Claimant for the sole reason contained in exhibit CWK which is inconsistent with the principles of fairness and equity acted in bad faith and have gravely wronged the Claimant and caused him to suffer greatly. Such act should not be condoned by this Honourable Court and the Claimant should also not be allowed to continue suffering unduly.
  3. Counsel submitted that the termination of employment as a reaction for lawful demands by an employee amount to unfair labour practice, contrary to international best practices. Counsel argued that by virtue of  the provision of Section 254C (1) (f) and (h) of the Constitution of the Federal Republic of Nigeria (3rd Alteration 2010, effective 4th  March 2011), this Honourable Court has the powers to invoke the provisions of International Labour Organisation and Termination of Employment Convention in determining Labour and employment matters notwithstanding their non-ratification into Nigerian Law. Counsel urged the court to hold that the termination of the employment of the Claimant was unlawful and that he is therefore entitled to his claims for damages for the harm occasioned by their unlawful termination.
  4. Counsel submitted that the Claimant’s case succeeds on the strength of the peculiar facts of this case, our legal argument and the evidence put forward by him and the Defendants have done nothing to dislodge the Claimant’s case.
  5. In reaction to the argument that the Defendants had deemed the Claimant as having abandoned his employment, that he had stopped coming to work at the time the Chairman Comrade Joseph Eteng was suspended, and his action was done in solidarity with the then suspended Chairman. Counsel contended that the submission was placed on nothing. There is no evidence before this Honourable Court to show that the Claimant stopped coming to work or that his absence as they claimed was done in solidarity with the then suspended Chairman. The law is trite that any facts pleaded to which no evidence is led in support are deemed abandoned. See the case of CBN V Dinnah (2021) 15 NWLR (SC) (Pt. 1798) 91 Pp.127 para. H.
  6. Counsel continued his submission that it is irrelevant whether or not the defendants deemed their action to be proper being that it was purportedly a response to the Claimant’s continuing absence from work as they claimed. The law is clear that before an employer may impose disciplinary measures against a defaulting employee, they must have informed the employee of the allegation against him and given him an opportunity to defend himself. See Olatunbosun v. Nigerian Institute of Social and Economic Research (Supra); Ridge v. Baldwin [1964] AC 40. Counsel also pointed out that the defendants both in their Joints Statement of Defense and their Final Written Address did not make mention of any proper steps taken before they purported to suspend the Claimant’s salaries. They also failed to plead or prove the issuance of any query, notice of allegation, invitation to disciplinary hearing, letter of suspension, or minutes authorising suspension of salary or tender any document which clearly shows, or from which it could be presumed that proper measures were taken before the purported suspension of salary. By virtue of Sections 135 - 137 of the Evidence Act, 2011, the burden rests on the Defendants to prove the facts asserted in justification of their action. See Calabar Central Cooperative Thrift & Credit Society Ltd & ors v. Ekpo (2008) 6 NWLR (Pt. 1083) 362 (SC) P. 395, paras. A-C. The Defendants’ failure to discharge this burden renders their argument legally unsustainable.
  7. Counsel in response to paragraph 4.08 - 4.12 of the Defendants’ final written address, submitted that the grievance of the Claimant before this Honorable Court is not whether he was suspended or not, but whether it was lawful for the Defendants to suspend his Salaries, without cause and without complying with the due process of law. The content of exhibit DWC(sic), tendered by the Defendants, does not by any means or in any form prove that the alleged suspension was done lawfully.
  8. Counsel urged the court to also take notice that the said exhibit DWC(sic) relied upon by the Defendants, does not disclose any directive to notify the Claimant of the alleged reabsorption or to make any publication to the effect. This Honorable Court has held in the case of Sunday v. BUA International Limited (Suit No: NICN/LA/53/2020) delivered on the 28th of March, 2025 by Hon. Justice S.H. Danjidda of the National Industrial Court, Lagos Division, holding at Uyo, that in the event of suspension, employers must take active steps to recall suspended employees after serving the period of suspension. There is no proof before this Honorable Court of the active steps taken by the Defendants to recall the Claimant, who they alleged was suspended. All these give credence to the fact that the Claimant was never suspended in the first place.
  9. With respect to paragraphs 4.13–4.14, and 4.18 – 4.19 of the Defendants’ Final Written Address, it was submitted that the relevant extant law expressly empowers either the Chairman or the Branch Executive Committee or Congress as the appropriate authority to approve salary increments. This position was confirmed by the Defendants’ own witness under cross-examination by us.
  10. In response to Paragraphs 4.15 – 4.17, it is our submission, that the Defendants deliberately lifted portions of Exhibit CWL, which is the One Month Pre action Notice to the Defendants out of context. A document must be read holistically to ascertain its true purport. See Artra Industries (Nig.) Ltd v. NBCI (1998) 4 NWLR (Pt. 546) 357 (SC).
  11. In paragraph iv of the said pre action notice, the Claimant stated thus:

“In April, 2017, the Association, SSANU-UCB was destabilized following a plot to unjustly remove the then Chairman of the Association, Chief Joseph Eteng in the midst of the power tussle which created fractions in the Branch, whereof the intending Claimant who was an Administrative Staff in the said Association Secretariat, was falsely accused to have taken side with the then Chairman, Chief Joseph Eteng”.

  1. The foregoing portion of the letter from the Claimant’s Solicitors was merely a conveyance of the fact that he was falsely accused of taking sides during an internal crisis within the Association, which accusation precipitated the unlawful suspension of his salary. It in no way establishes the Claimants alleged loyalty to the suspended Chairman Comrade Joseph Eteng. There is therefore no basis for the laughable conclusion reached by the Defendants.
  2. Counsel submitted that based on the peculiar facts of this case and legal arguments put forward in the written address as well as the evidence before this Honourable Court, the court to resolve this issue in the affirmative and in favour of the Claimant.
  3. In reaction to the final written address of the claimant, the defendants filed reply on points of law wherein they responded to argument canvassed by the claimant.
  4. On alleged breach of fair hearing, or that the Defendant did not take proper steps to suspend the claimant as a worker. Counsel submitted that throughout his pleadings, the Claimant did not plead any fact whatsoever complaining of or suggesting a breach of his right to fair hearing or complaining that his suspension was irregular or unlawful. It is therefore submitted that the allegation of breach of fair bearing or complaint of irregular suspension, having been raised for the first time at the address stage, are unfounded, by the state of the pleadings, and ought to be discountenanced by this Honourable Court. Counsel submitted that because, the question of fair hearing is a matter of fact ‘which must be established by evidence. On this submission reliance was placed on the dictum of OGUNBIYI, JSC in the case of Ardo vs INEC (2017) 13 N WLR (Pt 1538)450 at 497, paras A-B. and Ukachukwu vs P.D.P. (2014) 17 NWLR (Pt 1435) 134 at 191, paras. G-H.
  5. Counsel further submitted that since the Claimant did not in his pleadings or evidence raise issue of breach of his right to fair hearing or irregular or unlawful suspension by the Defendants, he cannot be allowed at this stage of final address to raise these issues, being setting up a case at variance with his earlier pleadings and evidence, See the Supreme Court cases of Oseni Aboyeji vs Amusa Momoh & Ors (1994)-LPELR-46 (SC) at 37, para. B; Oyeyemi & Ors vs Owoeye & Anor (supra) at P.30, paras. C-E and Calabar Central Co-Operative Thrift & Credit Society Ltd. Vs. Ekpo (2008) 1-:1 SC- 229; (2008) 6 NWLR (Pt.1083) 362. Speaking on the above principle of law, see the case of Ozomgbachi vs Amadi & Ors (2018) 17 NWLR (Pt.1641)171 at 128-199, paras. G-C , per Peter-odili, JSC.
  6. Following the foregoing, counsel submitted that since the parties and their counsel are bound by their pleadings, any submission of counsel which is at variance with the averments in the pleadings goes to no issue and should be disregarded and discountenanced by the Court. See the cases of Ugoji v Onukogu (2005) LPELR-3322(SC), Pp, 9-10, paras, G-E; Adeleke vs Iyanda (2001) 13 N WLR (Pt 729) 7 at 21 paras. F-G; Emegokwue vs. Okadigbo (1913) 4 SC 113; Salawu & Anor vs Yusuf & Anor (2007) LEELR-2988 (SC); and Odomosu vs African Continental Bank Ltd (1976) 11 S.C, 55.
  7. Counsel urged the court to discountenance the Claimant’s allegation of breach of the right to fair hearing, allegations of non-compliance with disciplinary procedures and steps and his complaint of irregular or unlawful suspension, being allegations, which were never pleaded and are therefore incompetent, having been raised for the first time at the stage of Final Address. After all, addresses do not take the place of pleadings and evidence. To support this contention reliance was placed on the cases of Okwejiminor vs Gbakeji & Anor (2008) LPELR-253I (SC) at p, 58, Paras. C-D; Oyeyemi vs Owoeye & Anor (2017) LPELR-41903 (SC) at P.30, paras. C-E.
  8. On the claimant’s contention that the non-production of the Defendants’ staff time book, wherein daily attendance of staff was allegedly recorded, amounts to absence of empirical evidence in proof of the allegation of the claimant’s prolonged absence from work and also constitutes a basis for invoking the presumption of withholding evidence under section 167 (d) of the evidence Act against the defendants. Counsel submitted that the said contention is wholly misconceived. While the Claimant, in his pleadings, denied the allegation of stoppage of ‘work, his evidence under cross-examination revealed the opposite. The Claimant testified during cross-examination that during the period of Comrade Joseph Eteng’s suspension, that is, between April 2017 and November 2018, he rather worked for and rendered services to the said suspended Comrade Joseph Eteng. This admission under cross-examination implicitly contradicts the Claimant’s pleadings, recants and falsifies his evidence in chief on the matter and clearly demonstrates that there was no subsisting employer-employee relationship between him and the 2nd Defendant during the said period. In law, an admission against interest elicited under cross-examination constitutes the best evidence against the party making it and in favour of the adverse party. On this settled principle of law, reliance was placed on the cases of Iniama vs.Akpabio (2008)11NWLR (Pt1116) 225 at344, paras, G-H; Ejimadu vs. Delta Freeze Ltd (2001) 13 N WLR (Pt 1050) 96 at 110, paras. E-F; and Kamalu vs. Umunna (1997) 5 NWLR (Pt 505) 321 at 337, para, G.
  9. According to counsel, given the foregoing circumstances where the Claimant has clearly and   implicitly admitted the allegation of stoppage of work, it is submitted that the non-production of the Defendants’ staff time book becomes a non-issue, and the presumption under Section 167 (d) of the Evidence Act is inapplicable in the instant case and should be discountenanced by this Honourable Court.
  10. On the issue that the suspension of his salaries was orchestrated by certain persons, namely: Comrade Emmanuel Otu – the then PRO and the current Chairman of the 2nd Defendant; Comrade Patrick Ndem – the then Secretary of the 2nd Defendant and Comrade Eyo Archibong – the then Assistant Secretary and current Assistant Secretary of the 2nd defendant who belonged to the faction against Comrade Joseph Eteng’s Chairmanship. No doubt, the Claimant pleaded the above allegation in paragraphs 3, 4 and 5 of his Reply to defendants’ Joint Statement of Defence  However, when the Claimant was cross-examined on the above issue, he flatly denied knowledge of who was responsible for the suspension of his salaries. A typical case of adducing two contradictory versions in respect of one account. While in one breathe, he mentioned names of the persons responsible for the stoppage of his salary, the Claimant in another breathe flatly denied knowledge of the persons responsible for the act.
  11. From the foregoing background counsel submitted that, where a witness gives two contradictory accounts on a material issue, both versions and entirety of his testimony on the issue must be rejected because it is not within the province of a court of law to pick and choose which of the conflicting versions to believe and follow. On the above principle of law, counsel relied on the cases of Anyanwu vs P,D.P. (?020) 3 NWLR (Pt  1710) 134 at 167, paras.. A-B; Orji vs P.D.P. (2009) 14 NWLR (Pt 1161) 310 at 394, paras. B – C; and Igbi vs. State (2000) FVVLR (Pt 3) 358 at 379 paras E; Kayili vs Yilbuk (2015) 7 NWLR (Pt 1451) 26 at 77.
  12. Counsel prays that the Claimant’s argument that Comrade Emmanuel Otu; Comrade Patrick Ndem and Comrade Eyo Archibong or anybody to be responsible or have caused the stoppage of his salary be rejected and discountenanced by this Honourable Court.
  13. The claimant further argued that the defendants did not deny that the sum of N300,000.00 contained in exhibit CWB, was approved to be paid to him but rather acknowledged the increase in the Claimant’s monthly salary from N20,000.00 to N26,000.00. counsel submitted, that this submission is grossly misleading and misconceived. As a collective examination of the averments in paragraphs 6, 7, 8 and  11 of the Joint Statement of Defence will reveal that the Defendants clearly pleaded facts which fundamentally disagree and negate the Claimant’s assertion on the issue of any approval of payment of money in his favour.  Of course, it is trite principle of the law that an issue is said to be denied and properly joined in pleadings where the Defendant in his pleadings put up a case that is different from that of the Claimant on a material point. On the above principle of law. See                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      the dictum of UWAIFO,  JSC in Eke vs Okwaranyia (2001) 12 NWLR (Pt 726) 181 at 203, paras, C-E; 205, paras, D-E.  We therefore submit that, having regard to paragraphs 6 to 8 and 11 of the Joint Statement of Defence, the Defendants cannot by any stretch be deemed to have admitted that the approval for the payment of N300,000.00 was ever made in favour of the Claimant.
  14. The Claimant also argued that the forward slash or slash (‘/’) symbol used in the area relating to disbursement of the Defendants’ funds contained in the Constitution and Order  of Procedure i.e. exhibit DWA(sic) stands for “or” and in that sense argued that financial disbursements could be authorized by either the Defendants Chairman or the Branch Executive Committee or the Congress. Counsel contended that this interpretation of the slash (‘/”) symbol by the Claimant is unduly narrow, restrictive, and inapplicable to the circumstances of the instant case.
  15. Counsel submitted that the forward slash (‘/’) symbol does not invariably denote a disjunctive meaning as employed by the Claimant. Rather, its meaning may denote both a conjunctive or disjunctive relationship depending on the context and the overall tenor of the provision in which it is used. Of course, it is trite law that documents are to be construed in the light of the circumstances in which they are drawn up. See the Supreme Court case of Ogbonna vs A.G, Imo State (1992) 1 NWLR (Pt 220) 641at 685: paras.E-G. Also see the cases of A.B.U. vs. VTLS Inc. (2021) 10 NWLR (Pt 1783) 33 at 47, paras. A-G; G.T.B, vs Ogboji (2019) 13 N WLR (Pt 1688) 67 at 84, paras. D-F.
  16. It is submission of counsel that in the instant case, a holistic reading of the relevant provisions of exhibit DWA(sic), in the context, clearly shows that the forward slash (‘/’) symbol was employed to denote a collective or cumulative authority to be exercise by the Defendants’ Chairman or the Branch Executive Committee or the Congress in financial matters of the Defendants and do not confer alternative or independent powers on the listed organs.   Counsel submitted to construe the slash (‘/’) symbol as conferring alternative and independent powers on the Chairman, the Branch Executive Committee, or the Congress, as postulated by the Claimant, would defeat the internal checks and balances envisaged by the Defendants’ Constitution, promote abuse of powers and render the financial control mechanism otiose and eventually lead to absurdity. On the principle of law mandating that documents like the Constitution of Associations or Trade Unions, must be interpreted holistically and not in isolation. On this submission reliance was placed on the cases of Oni vs Gov, Eldti State (2019) 5 NWLR (Pt 1664) I at 23, para. G; F,B.N vs Dariye (2011) 13 NWLR (Pt 1265) 521 at 547, paras. C-F.
  17. Counsel further argued that to further underscore the necessity of collective authority in the Defendants’ financial affairs, the Claimant did not deny the Defendants’ pleading that the Chairman, the Branch Executive Committee, and the Congress jointly approved the payment of the Claimant’s salary following his reinstatement into employment.  Counsel contended that this undisputed fact clearly demonstrates the consistent operational practice of collective approval envisaged under exhibit DWA(sic) and stands in clear contradistinction to the Claimant’s misleading contention that any of the organs could independently authorize financial disbursement. Counsel urged the court to reject the Claimant’s contrary contention on the issue.
  18. In concluding his submission counsel urged the court for all the reasons given above and the fuller reasons given in the Defendants’ Final Address dated Appellant’s Brief dated and filed on 12/01/2026, to dismiss this action.

    COURT’S DECISION:

  1. I have considered the processes filed by the parties, the evidence led at the trial as well as the written and oral submissions of counsel for the parties.
  2. There are a total nine reliefs being sought from the court by the claimant. three out of the nine reliefs are for declarations while the remaining are respecting claim on salary, salary increment, and general and exemplary damages.
  3. I shall consider the reliefs one after the other or in group where the reliefs are similar or interwoven.
  4. The parties have made copious submission on burden of proof. The law remains that the burden of proof is on the party who asserts a fact to prove the same because he who asserts must prove. See Are v. Adisa (1967) NMLR 359; Atane v. Amu (1974) 10 S.C. 237; Obimiami Brick & Stone (Nig.) Ltd. v. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 260; Ibrahim v. Ojomo (2004) 4 NWLR (Pt.862) 89; International Messengers (Nig.) Ltd. v. Pegafor Industries Ltd. (2000) 4 NWLR (Pt.652) 242; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307SC; Mbukurta v. Abbo  (1998) 6 NWLR (Pt. 554) 456; Jack v. Whyte (2000) 6 NWLR (Pt. 709) 266; Akpan v. U.B.N Plc. (2003) 6 NWLR (Pt. 816) 279; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Faloughi v. First Impression Cleaners Ltd. (2014) 7 NWLR (Pt.1406) 335; Osawaru v. Ezeiruka (1978) 6-7 SC 135; Odukwe v. Ogunbiyi(1998) 8 NWLR (Pt. 561) 339; Yari v. Ibrahim (2002) 5 NWLR (Pt. 761) 587; Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165.
  5. Therefore, in the case at hand, the burden of proof in the sense of establishing the case initially lies on the claimant, the proof or rebuttal of issues which arise in the course of proceedings on particular matters or issues generally may shift from the claimant to the defendant and vice versa so that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the other party and vice versa as the case progresses. This general rule is enshrined in the maxim ei qui affirmat non ei qui negat incumbit probatio. See also sections 131, 132 and 133 of the Evidence Act, as amended.
  6. In any event the burden of proof is not static, but is divided between the parties one way or another and the court decide when it has shifted. It oscillates like pendulum and once it shifts, the other party ought to lead credible evidence to tilt the scale, if he fails to do so he stands the risk of having judgment given against him. Whether the burden of proof has shifted will depend upon and must be related to the issues raised on the pleadings. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Faloughi v. First Impression Cleaners Ltd. (2014) 7 NWLR (Pt. 1406) 335.
  7. In considering the case at hand this court will be guided by the extant rules of evidence on burden of proof. In the instant case, the above evidential rules will guide the consideration of the case brought by the parties for resolution. 
  8. Before proceeding to determine whether or not, the claimant is entitled to grant of any of the reliefs sought, I shall at this juncture endeavour to thrash out certain preliminary issues raised in the written addresses of the parties.
  9. I shall begin by drawing the attention of counsel to the issue of international best labour practice to which claimant has extensively argued in his final written address. There is no disputing the fact that vide section 254C (2) of the Constitution of the Federal Republic of Nigeria, (as amended), this court has the requisite power to apply ratified international conventions. However, where the convention was un-ratified, it cannot be relied on, but the principles espoused can be utilized as international best labour practice by the court. Thus, the issue on convention 158 raised by the claimant will be considered as raising issue of international best labour practice. For the issue of international best labour practice to be properly raised and relied on, the claimant would have to plead and prove these principles as question of fact since it is not of automatic application as a convention. Section 7(6) of the National Industrial Court Act, 2006, requires international best labour practice to be proved as question of fact. This means in any claim relating to or connected with any matter, the provisions relating to international best labour practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant evidence Act.
  10. In the case at hand there is no pleading by the claimant on international best labour practice. There is also no proof in line with proof of custom in line with Evidence Act, the issue was first raised in the claimant’s final written address, therefore, the issue was not properly raised as address of counsel cannot be substitute for pleadings. What this goes to show is that all submissions on international best labour practice must be discountenanced, as the law does not allow it in the absence of pleading. For the court to consider international best labour practice, the party raising the issue must plead it in his claim before the court. Since there is no single paragraph in which issue of international best labour practice was raised by the claimant raising it in final written address will not be allowed, as allowing such will violate the law. I shall discountenance it.
  11. Another issue that calls for consideration at this early stage of the judgment is the issue fair hearing which was also not raised in the claim of the claimant. For an issue to be competently considered by the court, it must be covered by the pleading more particularly when it is an issue that requires facts. Issue of fair hearing is issue of facts in the absence of pleadings on it there are no facts on which the court shall base its consideration, since the issue cannot be decided in vacuum. This issue like that of international best labour practice was raised in the final written address of the claimant. 
  12. In UBN PLC v. AYODARE & SONS (NIG) LTD (2007) 13 NWLR (Pt. 1052) 567, the Supreme Court made it very clear that it is settled law that addresses of counsel, however brilliant, cannot take the place of evidence, particularly where there is no evidence, see also BURAIMOH v. BAMGBOSE (1989) NWLR (Pt. 109) 352. In ODUWOLE v. WEST (2010) 10 NWLR (Pt. 1295) 598, the Apex Court equally asserted that pleadings and forensic eloquence of a brilliant lawyer do not constitute evidence.
  13. Another issue worthy of mention can be gleaned from relief (i), is that the declaration being sought is that the court should declare claimant’s dismissal unlawful, wrongful, malicious and a nullity. While in his pleadings he was making reference to termination and not dismissal. It is to be noted that in the letter that ended the claimant’s employment the word used was termination and not dismissal. See exhibit CWK. This means counsel is interchangeably using the two distinct terms as meaning the same thing. 
  14. Let me say here that ‘dismissal’ and ‘termination’ do not mean the same thing under the Nigerian labour jurisprudence. They connote different thing. The term “termination of employment” denotes the complete or absolute severance of an employer - employee relationship. Contrariwise, the term “dismissal” denotes to release or discharge a person from employment. In both cases, termination and dismissal, the employment of an employee is brought to an abrupt end, although with varying consequences. Where a contract of employment is terminated, the employee is accorded the privilege of receiving the terminal benefits provided for under the terms of contract of the employment. Characteristically, the right to terminate a contract of employment is mutually inclusive, in that either party thereto may exercise it at will. Conversely, dismissal of an employee, very often than not, results in a loss of terminal benefits. It equally carries an unpleasant “opprobrium” to the unfortunate employee. See Imoloame v. W.A.E.C. (1992) 9 NWLR (Pt. 265) 303; Jombo v. P.E.F.M.B. (2005) 14 NWLR (Pt. 945) 443; F.B.N. Plc v. Mmeka (2015) 6 NWLR (Pt. 1456) 507.
  15. Let me also say that distinction between the two terms above, dismissal and termination is vital as the finding on termination and dismissal will have immense impact on the decision of the court and kind of order to be made. 
  16. I shall now come to the determination of claimant’s entitlement or otherwise to any of the reliefs sought. 
  17. In law for a claimant to succeed in getting declaratory reliefs granted, the claimant must rely on the strength of his case and not on weakness of the defence or admission. What this entails is that court will not grant declaration simply because the defendant has admitted or did not adduce any evidence. For court to grant declaration the court must be satisfied that the claimant is realty entitled to grant of the declaration sought. A claimant in a claim for declaratory reliefs, must prove his entitlement thereto, by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence, if any. Indeed a declaratory relief will not be granted on the basis of an admission by the adverse party. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361;  Bello v. Eweka (1981) 1 SC 63 (Reprint); Emenike v. P.D.P. (2012) 12 NWLR (Pt.1315) 556; Matonmi v. Dada (2013) 7 NWLR (Pt.1323) 319; Mohammed v. Wammako (2018) 7 NWLR (Pt. 1619) 573.
  18. I shall now consider reliefs (i) and (ii), together because they are in respect of determination of claimant’s employment by the 2nd defendant his employer. In relief (i), the claimant is   seeking declaration that the purported dismissal of the claimant’s employment from service by the 2nd Defendant via a Letter with Ref No. SSANU-UCB/SEC/2022/429 and dated 5th December, 2022, but served on the Claimant on 17th day of November, 2022 is unlawful, wrongful, malicious and a nullity. While for relief (ii), the claimant is praying for declaration that his appointment having not been lawfully terminated is continuous, unbroken and subsisting. 
  19. The crux of the facts on which reliefs (i) and (ii) are based are according to the claimant, the defendants irked by exhibit 10, the claimant’s conditional acceptance of new offer of appointment issued to him by the 2nd defendant, the 2nd defendant vide exhibit CWK terminated his appointment with effect from 5th January, 2023.  See also paragraphs 25, 26, 27 and 28 of the statement on oath. The claimant described termination of his appointment as a futile ploy to tactically avoid payments of all the outstanding salaries owed him, after giving a lot of productive years in service of the defendants. See paragraphs 18 and 19 of the reply to joint statement of defence.
  20. The defendants in their response stated that after undertaking employment review exercise the 2nd defendant decided to issue fresh letters of appointment to all her staff including the claimant. See exhibit CWI. The claimant in his acceptance letter of 28/11/2022 gave conditions for accepting the fresh appointment including demand for payment of what he termed outstanding salary debt of N400,000.00 for April, 2017 to November, 2018 and claim to be paid off and alluded that he could be dismissed by 2nd defendant, if it so wishes. The defendant upon considering and rejecting the claimant’s conditions for acceptance of the employment offer, the defendant proceeded to terminate the claimant’s appointment, as per exhibit CWK.
  21. It is also the law that an employment not governed by statute, but by common law or master servant relationship, the court does not have the power to declare dismissal/termination unlawful or a nullity as the claimant want the court to make in this case. Where in terminating appointment the employer fails to follow due process i.e. decided to violate the agreement of the parties where the contract of service is one governed by a written instrument the court can only declare such termination wrongful but not null and void. The law has also made it clear where court found contract of service to had been wrongfully terminated the only remedy available to employee is to claim damages but not a declaration that the contract of service is still subsisting. The rationale behind this principle of labour law is that court does not have power to impose a willing employee on unwilling employer and vice versa. The law is also settled that an employee cannot reject steps taken by his employer to dismiss or terminate his employment and regard his employment as still subsisting. See Katto v CBN (1999) 5 SCNJ 1; Idoniboye-Obu v NNPC (2003) 1 SCNJ 87.Adebayo Sunday Joseph & Ors v Kwara state Polytechnic & Ors (2013) LPELR-21398(CA).
  22. It appears the grouse of the claimant is on reason given for termination of his employment as contained in the letter of termination exhibit CWK. In law an employer can hire and fire, this means an employer in master servant relationship can terminate employment of his employee without giving reason. See Ajayi v Texaco Nigeria Limited (1987) 3 NWLR (Pt.62) 577. However, where reason is given for terminating employment, the employer is certainly under an obligation to prove that reason. See Afribank Plc v Osisanya (2000) 1 NWLR (Pt.642) 592.
  23. In any event the position of the law is that either party in a master/servant relationship may bring the relationship to an end subject to giving the requisite notice or making necessary payment in lieu of notice under the terms of the contract. Once either of these is done, an employee cannot complain of wrongfulness in the termination of his employment. See Akinfe v UBA Plc (2007) 10 NWLR (Pt.1041) 185; SPDC Limited V Olarenwaju (2008) LPELR-3046(SC);  Organ & Ors v Nigeria Liquified Natural Gas (2013) LPELR-20942(SC).
  24. In the case at hand exhibit CWA, the letter of appointment that governed the employment relationship between the claimant and the defendant, which is binding on them has provided for giving of notice or payment of salary in lieu of notice. From exhibit CWK, letter of termination, it was dated 5/12/2022, it was stated in the letter that the executive of the 2nd defendant at a meeting held on Friday, 2nd December, 2022 at the union secretariat the acceptance letter of claimant was considered and it was resolved that 2nd defendant will not be able to meet the conditions as stated in the letter of acceptance, consequently, the executive of the 2nd defendant approved immediate termination of claimant’s appointment with effect from 5th January, 2023.
  25. It is clear from the content of exhibit CWK, the claimant was given requisite one month notice as required by exhibit CWA, his letter of appointment. By this letter exhibit CWK, the 2nd defendant has satisfied the requirement of notice as claimant was given one month notice for termination. In the circumstances the said termination was lawful and in accord with the agreement of parties.
  26. In view of the above finding, the claimant has woefully failed to prove entitlement to reliefs (i) and (ii), of his claim.
  27. In Nigerian labor jurisprudence, the relationship between the parties is classified as a master-servant relationship, which is governed by the terms of the employment contract and the Labour Act. As established in the landmark case of Seven-Up Bottling Co. Plc v. Augustus (2012) LPELR-15645(CA), an employer possesses the right to terminate a servant's employment for any reason or no reason at all, provided the termination complies with the contractual terms, specifically regarding the issuance of notice or payment in lieu thereof. The Claimant's assertion that the termination was 'unlawful' due to the Defendants' motives (avoiding salary arrears) does not, in a pure master-servant context, render the termination void. Unlike employment with statutory flavor, the court cannot order reinstatement in a private master-servant contract; the remedy for wrongful termination is limited to damages, typically the salary for the notice period the employee was entitled to receive. To succeed, the Claimant must prove that the termination violated a specific provision of exhibit CWA. If the Defendants exercised their right to terminate but failed to provide the requisite notice or salary in lieu, the termination will be declared 'wrongful' rather than 'unlawful' in the sense of being null and void. In this case there was no finding that the termination violated any provisions of exhibit CWA, rather the finding is that there is compliance as vide exhibit CWK appropriate notice was given to the claimant for termination of his employment. See also MR. S. ANAJA v. UNITED BANK FOR AFRICA PLC (2025) LPELR-81179(SC); EMEGO VINCENT IKEMBA v. PYRAMMIDT COMPANY NIGERIA LIMITED (2021) LPELR-56145(CA).
  28. I now turn to reliefs iii, iv, v, vi and vii. These reliefs are interrelated and interwoven in the circumstance I shall take them together.
  29. The facts and evidence relevant to determination of these reliefs are as contained in the pleadings and witness statements on oath, of the parties as well as evidence extracted from witnesses under cross examination.
  30. It is in evidence that the claimant was on 17th day of November, 2014, engaged by the 2nd Defendant as a Computer Operator in its secretariat, initially at a monthly salary of Eighteen Thousand Naira (?18,000). See exhibit CWA. In January 2017, the Claimant's monthly salary was increased to Twenty Thousand Naira (?20,000). Between April 2017 and November 2018, the 2nd Defendant's Chairman, Comrade Joseph Eteng, was suspended from office by the 1st Defendant's National Administrative Council, during which time Comrade Richard Ita served as Acting Chairman of the 2nd defendant. During this twenty-month suspension period (April 2017 – November 2018), the Defendants ceased payment of the Claimant's salary. The Claimant asserts he continued to work dutifully, while the Defendants contended that he abandoned his post out of loyalty to the suspended Chairman.
  31. However, following the reinstatement of Comrade Joseph Eteng, the Claimant was reabsorbed/recalled to his duties in December 2018, and his monthly salary payments resumed from that date.
  32. The claimant stated that in late 2022, shortly before the expiration of his tenure, of the then-Chairman of the 2nd defendant, Joseph Eteng approved the payment of the 2017-2018 salary arrears and an upward review of the Claimant's salary.
  33. The Defendants on their part alleged that these 2022 approvals were made unilaterally by the Chairman without the constitutionally required authorization from the Branch Executive Committee or Congress. The Claimant also alleged that he was not paid his full salaries for the months of January, February, March, September, and October 2022.
  34. On 1st December, 2022, the 2nd defendant issued to the Claimant an offer of 'temporary appointment. Vide exhibit CWJ, the Claimant made a counter offer by giving conditions for acceptance. Consequently, the Defendants issued a letter terminating the Claimant's employment. See exhibit CWK.
  35. From the facts and evidence before the court, I am saddled with the responsibility of resolving whether or not claimant has established entitlement to unpaid salary arrears from April, 2017 to November, 2018 and salary increment.
  36. On claim for unpaid arrears of salary the Court of Appeal has provided guidelines to be followed in ascertaining such entitlement. See Honika Sawmill (Nig.) Ltd. v. Hoff (1992) 4 NWLR (Pt. 238) 673, where it stated thus:-

‘’As between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid to the employee was’’. Per Adio, JCA, (P.679, paras. C-D).

  1. It is clear from the above authority that the onus of proof is on the claimant to prove regarding the unpaid arrears of salary to establish before the court that he was employed on a stipulated salary and has worked for the employer for the period of claim, in this case April, 2017 to November, 2018. When he is able to discharge the burden on him, the defendant will then be required to show that he had paid the agreed salary for the period of claim and how much was the salary he had paid to the claimant.
  2. There is no dispute claimant was employee of the 2nd defendant from 2014 to December, 2022, when his employment was terminated. The only period in which there is dispute is the period covering April, 2017 to November, 2018. At the time of his employment claimant was placed on salary of N18,000.00 per month. However, the salary was increased with effect from February, 2017 to the sum of N20,000.00. 
  3. For the claimant he asserted that in April, 2017, the then chairman of the 2nd defendant comrade Joseph Eteng was suspended from office and Comrade Ita was appointed acting Chairman of 2nd defendant. From April, 2017 to November, 2018, the period the suspension of Comrade Joseph Eteng subsisted, the 2nd defendant ceased to pay the claimant his salary, despite dutifully carrying out his duties. For the defendants the claimant is not entitled to his claim because with the suspension of Comrade Joseph Eteng, claimant refused to carry out his duties considered as having abandoned his duties and his salary stopped.
  4. Now, it is clear the dispute on entitlement to arrears of salary is narrowed down to issue of whether for the period in question the claimant performed his duties to be entitled to unpaid arrears of salary.
  5. Apart from ipse dexit the claimant has not adduced any concrete credible evidence to support his claim that he dutifully performed his duties. The defendant insisted that claimant abandoned his duties thus why when Comrade Joseph Eteng’s suspension was lifted and resumed work at the first meeting of the 2nd defendant Comrade Joseph Eteng appealed to members to reabsorb the claimant back to his job which they agreed, claimant was reabsorb and payment of his monthly salary resumed from December, 2018. The claimant’s reabsorption was backed by exhibit D3. 
  6. I am of the view that exhibit D3, is evidence that claimant was absent from his duties for the period under consideration, thus why plea was made and EXCO approved his reabsorption back to work. If he had been going to work there would have been no need for him to be reabsorbed. It is also clear evidence that claimant had not rendered any service for the period in question. If it is true claimant had been dutifully been performing his duties there was no iota of evidence showing the kind of work or duty he had been performing or doing for the period in question, thus why may be the pleadings of the claimant were silent and did not state the work he had been performing for the period in question. 
  7. In view of the fact that claimant had not been able to prove he had worked for the 2nd defendant for the period in question he had not satisfied the conditions that would have shifted the burden of proof to the defendant to show they paid him for work done and how much was it that was paid.
  8. In view of the above finding, the submission of counsel for the claimant on time book and section 167 (d) of the Evidence Act, are of no moment, due to his failure to prove that he had worked for the defendants for the period of claim. also, the submission on section 167(d) of the evidence Act on withholding of evidence is greatly based on misconception.
  9. If claimant has proved work done the issue of proof of deemed abandonment of work would have been apposite and burden shifted to the defendants.
  10. From all I have been saying above, the claimant has woefully failed to establish that he worked or rendered service to the 2nd defendant for the period of claim as the claimant has not discharged the onus on him to establish with concrete evidence the work he had rendered to the 2nd defendant for the period in question. Having failed to establish  that he worked for the 2nd defendant for the period in question he has woefully failed in his claim for arrears of unpaid salary. Same is hereby refused and dismissed.
  11. It is to be noted that the claim by the claimant under cross examination that he worked for the suspended Chairman of 2nd defendant is not the same thing as working for the 2nd defendant. This is because claimant is an employee of the 2nd defendant and not employee of the suspended chairman. Therefore, the claimant is not entitled to claim of salary for the period April, 2017 to November, 2018, he worked for Comrade Joseph Eteng when he was on suspension. The employer of the claimant is 2nd defendant and not suspended Chairman of 2nd defendant.
  12. Consequently, the Claimant is not entitled to the Twenty Thousand Naira (?20,000) monthly salary for those twenty months. The request to order Defendants to pay claimant the total sum of Four Hundred Thousand Naira (?400,000) representing the arrears for the period he was serving suspended Chairman is hereby refused and dismissed.(iv) is dismissed
  13. I now turn to relief (v) which is for the sum of N322,000.00 outstanding salaries for 7 months. April, to august, 2022, November and December, 2022. The claimant stated that complete salary for the months of April, May, June, July, August, November and December, 2022 were further withheld. In other words, no part of the claimant’s salary of (Forty-Six Thousand Naira) N46,000.00 was paid for these months. According to the claimant, the defendants owe him the sum of N322,000.00 (Three Hundred and Twenty-Two Thousand Naira) for those months.
  14. The defendants have admitted not paying claimant salaries for the months of May, June, July, August, November and December of 2022. But stated that he was paid all his monthly salaries until his appointment was terminated. On the unpaid salaries for May, June, July, and August, 2022, the defendants stated that the reason why salaries were not paid was that they rely on check off dues from its members and for the period in question its members were on strike and there was no remittance of check off dues. 
  15. The defendants also stated that after the re-absorption of the claimant he took loan of N100,000.00 from 2nd defendant with agreed repayment schedule which authorized the 2nd defendant to monthly deduct N7,000.00 from claimant’s salary. The claimant’s repayment was done only for three months amounting to the sum of N21,000.00. when claimant’s employment was terminated in December, 2022 his salary for November and December, 2022 being N52,000.00 at N26,000.00 was converted to and applied in the repayment of part of the said facility. The claimant has so far repaid the sum of N73,000.00 with the sum of N27,000.00 only remaining outstanding till date.
  16. On unpaid salary claim for seven months unpaid salary for April, 2002 – August, 2022 and November, 2022 – December, 2022, the defendants admitted not paying the claimant his salaries for the month of May, 2022 to August, 2022 excluding April, 2022 and November 2022 and December 2022. As regards to May, 2022 to August, 2022, having been admitted no further proof is required. For the month of April, 2022, the defendants are silent on it and have not adduced any evidence to prove that April, 2022 had been paid the claimant in the circumstances and in the absence of lack of denial the defendants are taken to have admitted non-payment of April, 2022 as well. This finding means claimant is entitled to relief (v) as defendants have admitted the said claim.
  17. For November and December, 2022 salary, the defendants have admitted not paying but stated that the salaries for the two months were applied to offset loan facility of N100,000.00 taken from the 2nd defendant by the claimant. The claimant has admitted securing loan facility from defendant to pay for rent, but denied the amount alleged to had been advanced to him as the correct amount. According to the claimant the loan facility given to him was the sum of N60,000.00 and not N100,000.00 as alleged by the defendants. He also stated that by the loan agreement repayment will be through deductions of N6,000.00 from his salaries as at the time of termination deductions were made for three months from his salaries amounting to the sum of N18,000.00 remaining the sum of N42,000.00 as the outstanding unpaid balance and not N73,000.00.
  18. The defendant has not tendered the loan agreement executed by the parties for the court to verify the claim in the circumstances, I accept the amount the claimant admitted as advanced to him. Therefore, the claimant is entitled to his salaries for the months of November and December, 2022 minus the balance of N42,000.00 as outstanding balance of unpaid loan granted to him by the 2nd defendant. What this finding shows is that the claimant is entitled to payment of his unpaid seven months salaries for April, 2022 to August 2022 and November to December, 2022 which are a total of seven months minus N42,000.00 outstanding unpaid loan.
  19. The Claimant is entitled to the unpaid salaries for seven months of 2022, calculated at the upwardly reviewed rate approved by the Chairman. The Defendants' defense regarding the lack of Committee approval is an internal management issue that does not affect the rights of the employee who acted on the Chairman's approval. The Claimant is awarded the full sum of the unpaid salaries for those seven months. The withholding of these wages constitutes a breach of the contract of service and the statutory protections afforded to workers' remuneration.
  20. It is trite law that failure to pay an employee’s salary for work done constitutes a clear breach of the employment contract and an unfair labour practice. See OKOEBOR V. POLICE SERVICE COMMISSION (2003)12 NWLR (PT. 834)444, AMINA V. FIRST BANK OF NIGERIA PLC (2021) LPELR- 56432 (CA). The withholding an employee’s lawful entitlements is a fundamental breach going to the root of the employment relationship. I therefore hold that the Claimant is entitled to the payment of his outstanding salaries for seven months in 2022. As failure to pay an employee’s salary for work done constitutes a clear breach of the employment contract and an unfair labour practice. See OKOEBOR V. POLICE SERVICE COMMISSION (2003)12 NWLR (PT. 834)444, AMINA V. FIRST BANK OF NIGERIA PLC (2021) LPELR- 56432 (CA),  where it was held that and reaffirmed that withholding an employee’s lawful entitlements is a fundamental breach going to the root of the employment relationship. I therefore hold that the Claimant is entitled to the payment of his unpaid seven months’ salaries.
  21. The amount to be paid for the seven will be determined after resolution of issue of increment of salary. On reliefs (vi) and (vii) claim for salary increment.
  22. The claimant is claiming the sum of N100,000.00 being outstanding five months unpaid salaries and N240,000.00 being part of salaries withheld for 12 months from January, to December, 2022.
  23. According to claimant due to high rate of inflation he and other staff of the 2nd defendant wrote a letter dated 7th January, 2022, exhibit CWC, to the Chairman of the 2nd defendant appealing for salary increase. The Chairman of the 2nd defendant approved the application on 8th January, 2022 and directed Financial Secretary to increase the claimant’s salary by Twenty Thousand Naira. With the increase the claimant’s salary for each of these months, making it to becomes the sum of N46,000.00 despite. But, despite the approval for the increase as per exhibit CWC, for the months of January, 2022, February, March, September and October, 2022, the claimant was paid the sum of twenty-six thousand only instead of N46,000.00, the defendants held over the sum of Twenty Thousand Naira for each month making it the sum of N100,0000.00
  24. Respecting claim for increment of salary, the defendants averred that defendants Chairman and/or officer or member of the defendants cannot unilaterally make any valid approval relating to disbursement of the defendants’ funds to any person at all. It was stated that about a fortnight before the expiration of his tenure as 2nd defendant’s Chairman, Comrade Joseph Eteng treated a request for pay-rise contained in a letter of 7/1/2022, exhibit CWC, and wherein he unilaterally approved a pay-rise of N20,000.00 for the claimant and other staff of the 2nd defendant. It was stated that there was no requisite approval of the branch executive committee/congress of the 2nd defendant to either increase salary of the claimant and other staff of the 2nd defendant. It was stated unilateral approvals granted by Comrade Joseph Eteng for disbursement of 2nd defendant’s funds relating to pay-rise for claimant or payment of his outstanding salaries are invalid and not binding on the defendants and cannot be enforced against them.
  25. It is clear from the pleadings and evidence before the court, the defendants’ objection to issue of salary increment approved for the claimant by the Chairman of the 2nd defendant, is that the chairman lacked requisite vires to grant such approval. The defendant grouse was that the approval has to be consented to by the executive of the 2nd defendant as the Chairman cannot alone make approval of salary increment. The claimant is not entitled to it because the approval was invalid, ultra vires and not binding on the defendants for having been made in clear non-compliance with the mandatory provisions and order of procedure of the 1st defendant. Exhibit D4. The approval was made without concurrence of the 2nd defendant’s branch executive committee and congress as expressly required by constitution of the 1st defendant. According to counsel the approval was not only tainted by undisguised loyalty but is also devoid of institutional authorization as stipulated under the operational constitution of the defendants. Counsel urged the court to reject the approval.
  26. In reply counsel for the claimant stated that the chairman or branch executive committee  or congress as the appropriate authority to approve salary increments.
  27. I have thoroughly examined the entire content of exhibit D4, the constitution and Procedure of the 1st defendant which is binding on the chairman of the 2nd defendant, which counsel for the defendants relied on in arguing that the approval of salary increment given by Chairman of 2nd defendant Comrade Joseph Eteng was null and void and ultra vires. It is surprising that counsel for the defendants did not refer this court to any specific provision of exhibit D4 in support of his position. The claimant in countering the submission of the defendants made reference to Article 15, sub-Article (iii) (D) (6), I have checked exhibit D4, I could not find the provision that correspond with the given reference.
  28. In any event from my examination of the entire provisions of exhibit D4, the relevant provisions that should be examined are the provisions of Article 15 sub-Article (ii), (iii) (ii) (a), which deal with branch executive committee and duties and function of the Chairman of the 2nd defendant. The relevant provision for consideration are:-

ARTICLE 15(II) BRANCH EXECUTIVE COMMITTEE (BEC)

There shall be a branch executive committee of the union

(iii) COMPOSITION

…………

………….

…………

  1. FUNCTIONS OF BEC

(a) ‘’It shall be the duty of each branch to see to the proper organisation of the union at the grassroots, to represent the members in appropriate cases, to follow the directives of the national delegate conference, and the national administrative council through the national president of the union in in the conduct of its affairs.

(b) It shall be duty of the branch executive committee to provide  leadership   at the local level and to run the affairs of the branch in-between congress meetings 

Article 15 sub-Article (iii)(ii) with title: INDIVIDUAL DUTIES OR FIUNCTION OF THE OFFICERS

(a) CHAIRPERSON

Shall preside over all meetings of the branch

Shall be the head/leader of the union at the branch level

Shall direct when any meeting of the branch shall be convened.

Shall be accredited representative of the branch within and outside

Shal direct when any meetings of the branch shall be convened 

Shall countersigned all orders, vouchers and cheaques for approved expenditure 

Shall have a casting vote on occasion when there is a tie of votes cast 

Have the final decision on controversial matters, provided such decisions reflect popular and majority opinion of members.  

  1. It is clear from the foregoing provisions of exhibit D4, the branch executive committee is the organ of 2nd defendant charged with running of the affairs of the 2nd defendant and also saddled with consideration and approval of budget of the 2nd defendant.
  2. While, the Chairman of the 2nd defendant is on the stated functions and duties as per as the above provisions of exhibit D4, is concerned, when it comes to issue of approvals of fund is only to countersigned all orders, vouchers and cheaques for approved expenditure. This clearly shows that the power of approval does not resides with the Chairman of the 2nd defendant. Therefore, his role begins when approval had been given, he counter signed. This clearly means his unilateral approval of increment is ultra vires as it was in violation of the extant provision of the constitution of exhibit D4. Therefore, the 2nd defendant has made the said approval of increment without vires and it cannot stand. All in all claimant failed to establish entitlement to increment of salary due lack of due process. By exhibit D4, it is the BEC that can make approval for day today running of the 2nd defendant. This means such approval has to be made by Branch Executive Committee in who power of running the affairs of 2nd defendant is vested on.
  3. The submission of counsel for the parties on solidus which is a punctuation mark (/) was unnecessary as a careful perusal of the relevant provisions of exhibit D4 will revealed that no such mark was used in the provisions of exhibit D4. Therefore, the argument on the slant issue deserves no consideration by the court as it is a moot issue as per as this suit is concerned.
  4. From the above analysis I came to the conclusion that reliefs (vi) and (vii) are not grantable, because they were built on approval of salary increment which was made properly due to lack of authorization by the Branch Executive Committee having power of running of the affairs of 2nd defendant.
  5. Having found that there was no salary increment, the claimants 7 months unpaid salary as per relief (v) will be calculated based on the sum of N26,000.00, which was his salary before the alleged purported increment. If this amount ius multiplied by seven months, the claimant will be entitled to the sum of N182,000.00 as his salary for seven months. If the sum of N42,000.00  outstanding unpaid loan is deducted from the claimant’s seven months’ salary the total amount remaining and which the claimant is entitled to is the sum of N140,000.00
  6. From the foregoing, it is clear that the claimant has only succeeded in proving entitlement to relief (v) even at that not the exact amount claimed. There is no disputing the facts that 2nd defendant has denied claimant his earned salary for seven months. However, the defendant gave reason of non-deductions of check off dues and its remittance as the reason for non-payment. The non-payment can only be justified at the  period the non-remittance lasted. Now that there is no strike, the defendants are not justified to continue to withheld claimant’s salary, in the circumstances claimant is entitled to damages I hereby award the sum of N1,000.00.00 (one Million Naira) as damages for withholding and non-payment of claimant’s salary.
  7. The claimant is also entitled to cost which I assessed in the sum of N300,000.00 (Three hundred thousand naira).
  8. From all I have been saying above and for ease of reference the order of the court is as follows:-
    1. The 2nd defendant is hereby ordered to pay the sum of N140,000.00 (One Hundred and forty thousand Naira) to the claimant being his seven months unpaid salary after deduction of the balance of loan facility granted to the claimant by the 2nd defendant.
    2. The 2nd defendant is hereby ordered to pay the sum of N1,000,000.00 (One Million  Naira) damages to the claimant for withholding and non-payment of his seven months’ salary.
    3. The defendants are hereby ordered to pay the sum of N300,000.00 (Three Hundred thousand Naira) as cost to the claimant. 
    4. All monetary award in this judgment shall be paid within 30 days from today failing which simple interest of 10% shall apply.
  9. Before, putting pull stop, I note that the references made to exhibits by counsel for the parties in their respective final written addresses and reply on points of law did not reflect the correct marking of exhibits before the court. In my decision I used the correct marking of the exhibits as marked when they were tendered and admitted in evidence. In the circumstances, counsel are expected to always make sure reference to exhibits represent the correct marking of the exhibits by the court. This is to ensure conformity with what is already before the court, so as to avoid creating unnecessary confusion, that may mislead the court or make comprehension unwieldy.
  10. Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge

REPRESENTATION:

Enome Amatey, Esq; for the claimant

Unice I. Eyagba, Esq; for the defendants.