IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA 

IN THE BENIN JUDICIAL DIVISION 

HOLDEN AT BENIN

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

                                                                

DATED:  17^TH MARCH, 2026                          

SUIT NO: NICN/BEN/31/2023

 

 

BETWEEN 

 

 

PROF. ERNEST B. IZEVBIGIE                           …………… CLAIMANT 

 

AND 

 

MUDIAME UNIVERSITY, IRRUA ….….……. DEFENDANT

 

 

 REPRESENTATION

 U. L. Osa-Uwagie and Emmanuel C. Okonkwo Esq. for claimant

 E. E. Otutu and A. B. Adesemoye for defendant

 

JUDGMENT

                      

1. The Claimant instituted this suit vide a General Form of Complaint and Statement of Facts with accompanying processes dated 22^nd June 2023 and filed 5^th July, 2023, whereby he is seeking the following reliefs against the defendant: 
   1. A DECLARATION that the failure of the Defendant to pay the Claimant’s emoluments as at when due leading to his eventual resignation was a Breach of Contract and a Breach of the terms of Appointment.
   2. A DECLARATION that the Claimant is entitled to the sum of N18,717,181.33 (Eighteen Million Seven Hundred and Seventeen Thousand, One Hundred and Eighty-One Naira and Thirty-Three Kobo) only, being the sum of payment for the Claimant’s Outstanding Salaries (N7,687,527.00), Edo State Tax (N2,432,724.33) to be paid to Edo State Government), Pension (N3,463,200.00) and reimbursable expenses incurred on behalf of the Defendant (N2,564,365).
   3. AN ORDER directing the Defendant to pay the sum of N18,717,181.33 (Eighteen Million Seven Hundred and Seventeen Thousand, One Hundred and Eighty-One Naira and Thirty-Three Kobo) only, being the Claimant’s outstanding salaries, tax, and pension during his employment with the Defendant.
   4. A DECLARATION that the Claimant is entitled to the sum of N67,680,000.00 (Sixty-Seven Million, Six Hundred and Eighty Thousand Naira) only, being the sum of the unexhausted 3 years of the contract at the rate of basic salary of N19,200,000.00 (Nineteen Thousand Two Hundred Thousand Naira) only per annum and allowances of N3,360,000.00 (Three Million Three Hundred and Sixty Thousand Naira) only per annum. 
   5. AN ORDER directing the Defendant to pay the sum of N67,680,000.00 (Sixty-Seven Million, Six Hundred and Eighty Thousand Naira) only, being the sum of the unexhausted 3 years of the contract to the Claimant.
   6. AN ORDER of this Honourable Court that the Claimant is entitled to the use of a Toyota Highlander (2013 model) to the exclusion of the Defendant or any other person, being that the Claimant is entitled to retain 1 (one) of the 2 (two) official vehicles upon termination of his employment with the Defendant pursuant to the terms of employment or in the alternative.
   7. AN ORDER directing the Defendant to pay to the Claimant the sum of N15,000,000.00 (Fifteen Million Naira) only being the open market value of the Toyota Highlander (2013 model).
   8. The sum of N10,000,000.00 (Ten Million Naira) only as general damages against the Defendant.
   9. The cost of filing and prosecuting this suit.

 

 

1. N4,800,000.00 (Four Million Eight Hundred Thousand Naira) being and as representing Three (3) Months’ Salary in lieu of termination of employment contract as contained in the document referenced MUU/REG/002/0921 dated 19 September, 2021.
2. N3,683,618.00 (Three Million, Six Hundred and Eighty-Three Thousand Six Hundred and Eighteen Naira) only being and as representing unapproved and unaccountable expenditure made by the Defendant from the University coffers.

Whereby the Defendant/Counter-Claimant is counter-claiming against the Claimant as follows:

1.  A DECLARATION that the Counter Claimant is entitled to the sum of N4,8000.000.00 (Four Million Eight Hundred Thousand Naira) being and as representing Three (3) Months’ Salary in lieu of termination of employment contract by the Defendant.
2. An Order directing the Defendant by Counter Claim to pay to the Counter Claimant the sum of N4,800,000.00 (Four Million Eight Hundred Thousand Naira) only being and as representing Three (3) Months’ Salary in lieu of termination of employment contract by the Defendant.

 

ALTERNATIVELY SET-OFF 

 

3. An Order that any other sum as may be awarded to the defendant in this suit (if any) be set off from the sum of N4,800,000.00 (Four Million, Eight Hundred Thousand Naira) only being and as representing Three (3) Months’ Salary in lieu of termination of employment contract by the Defendant.
4. A DECLARATION that the Counter-Claimant is entitled to the sum of N3,683,618.00 (Three Million, Six Hundred and Eighty Three Thousand Six Hundred and Eighteen Naira) only being and as representing unapproved and unaccountable expenditure made by the Defendant by Counter Claim.
5. An Order directing the Defendant by Counter Claim to pay to the Counter Claimant the sum of N3,683,618.00 (Three Million, Six Hundred and Eighty Three Thousand Six Hundred and Eighteen Naira) only being and as representing unapproved and unaccountable expenditure made by the Defendant from the University coffers.
6. General damages against the Defendant by Counter Claim in the sum of N10,000,000.00 (Ten Million Naira).
7. The cost of prosecuting this suit.

3. The Claimant filed a Reply to the Statement of Defence and defence to the Counter-Claim dated 15^th March, 2024 and filed 29^th April, 2024, while the Defendant/Counter-Claimant filed a Reply to defence to counter-claim dated 7^th June, 2024 but filed 11^th June, 2024.
4. The summary of the Claimant’s case is that he was appointed Vice Chancellor of the defendant i.e. Mudiame University, Irrua, Edo State in September 2021, for a tenure of five (5) years, and served the in that position till sometimes in 2022 when his salary and bonuses were arbitrarily stopped by the defendant in breach of his employment contract. As a result, the claimant resigned his appointment as he was unable to meet his personal obligations, and he accused the defendant of interference with his duties as Vice Chancellor. He also alleged that upon his exit, the defendant is owing him a sum of N18,767,181.33 (Eighteen Million Seven Hundred and Seventeen Thousand, One Hundred and Eighty-One Naira and Thirty-Three Kobo). The claimant denied all the allegations in the counter-claim that he incurred unapproved expenditures, he maintained that receipts of reimbursable expenses were handed over to the defendant’s Accounts department, which were verified by the Audit Department before his exit from the defendant.
5. On the other part, the defendant alleged in the counter-claim that CW1 resigned from the University without given three (3) months requisite notice, and that he incurred unapproved and unauthorised expenditure on behalf of the School.
6. Trial in this suit commenced on 3^rd October, 2024, with the claimant, Prof. Ernest Izevbigie testifying as CW1, he adopted his depositions on oath, and tendered several documents which were admitted without objection, and marked Exhibits A1 – A5.  (A1, A2(i), A2(ii), A3, A4 and A5) on his list of documents dated 22^nd June, 2024, and Exhibits A6 - A11 on the additional list of documents dated 15^th March, 2024, but filed 29^th April, 2024. 
7. Under cross-examination, CW1 confirmed that apart from Exhibit A1, no other document or auxiliary agreement was executed by parties, he further confirmed that Exhibit A4 was voluntarily written by him. The claimant maintained that Exhibit A4 was electronically served on the defendant 1^st week of January, 2023, and his financial entitlements were paid monthly and this was never an issue. CW1 maintained that he spent 18 months with the defendant before he exited the employment, and was paid for 12months, leaving 6 months salaries outstanding. 
8. CW1 confirmed, he was paid N1.5m by the defendant after he left the defendant as part payment of the outstanding sum owed by the defendant, but reiterated that this is in breach of Exhibit A1, as same was not paid as at when due. CW1 maintained that he gave the defendant three months’ notice of his resignation, and as Vice Chancellor he was in the position to know if taxes were not remitted, and that this constitutes an illegality as same were being deducted from salaries. The claimant stated that there was an agreement that he would be given one of his official vehicle, i.e. a Highlander upon his exit from defendant’s employment in Exhibit A1. The claimant subsequently closed his case after given evidence, and the case was adjourned for defence. 
9. The defendant opened its defence on 30^th January, 2025, with Sylvester Emeya, a Chartered Accountant, Principal Partner Sylvester Emeya & Co. and member Governing Council of the defendant testifying as DW1. He adopted his written statement on oath, tendered some documents upon which the claimant’ counsel raised an objection which was overruled by the court, and same were admitted and marked Exhibits MU1 – MU3. Under cross-examination, DW1 testified that he is conversant with the mode of communication in the defendant, which is vide emails and memos. He maintained that he is a member of University Governing Council, and he is conversant with the Exhibit A11, which spells out spending limits and approving authority. 
10.  DW1 confirmed that he is aware that approval limit of a Vice-Chancellor is not more than N500,000.00 (Five Hundred Thousand Naira), and that the defendant has an External Auditor but no Internal Auditor. DW1 admitted knowing Ambassador Akin O. Fayomi, former Pro-Chancellor of the Defendant, and Dr. Solomon Edebiri, Vice Chairman, Board of Trustee of the defendant. He maintained that the defendant’s Auditor computed claimant’s entitlement before he left the University, and it was observed that there were shortfalls in the salaries paid to him for months, but explained that the shortfall is statutory, as it consists of Personal Income Tax which were deducted from his monthly salary, i.e. Pay As You Earn.
11.  DW1 testified that the remittance of Pay As You Earn (PAYE) has not taken off in the defendant at the time CW1 was in the employment, but as at today, PAYE is being remitted to the Tax Authority. DW1 also confirmed that a portion of his salary was being deducted as Pension Contributions asides the statutory contribution of not less than 7½% but same could not be remitted because CW1 did not supply details of his Pension Fund Administrator (PFA), even when same was requested, DW1 maintained that he has evidence to support this fact, but same is not with him in court, and that he personally requested for this information from defendant’s Accountant but cannot remember whether he made the request before or after CW1 left the employment. DW1 admitted that monies deducted from claimant’s salary and his Pension Contributions are still with the defendant, and he confirmed that CW1 was in defendant’s employment for 18 months, but received salaries for about 14months. DW1 also denied knowledge that the defendant’s Chancellor agreed to pay CW1 his entitlements after his exit in three instalments out of which he paid one.  
12. The defendant closed its case after the evidence of DW1, and the court adjourned for adoption of final written address. Counsel for both parties filed their respective final address, and same was adopted by their counsel on 29^th January, 2026.
13.  The defendant’s final written address dated 11^th February, 2025, but filed 12^th February, 2025, was argued by A. B. Adesemoye Esq. In the address, counsel for the defence formulated the following issues for determination, to wit:    
    1.  Whether or not the Claimant’s claim can succeed based on pleadings, oral and documentary evidence including the terms and conditions of the Claimant’s appointment as contained Exhibit A1;  
    2. Whether or not the Defendant’s counter-claim can succeed based on pleadings, oral and documentary evidence including the terms and conditions of the claimant’s appointment as contained Exhibit A1.  
14.  On issue one, defence counsel submitted that the claimant’s annual entitlement and mode of payment is determined by the following documentary evidence:
    1. Letter of appointment dated the 19^th of September, 2021 -Exhibit A1;  
    2. Copy of the Appendix A of the Letter of appointment dated the 19^th of 

September, 2021 - Exhibit A2(I); 

15.  He noted that the details of the claimant’s remuneration is contained in APPENDIX A of Exhibit A2(I) and argued that there is no agreement that the salary and allowances are to be paid monthly. Counsel maintained that where an agreement in writing is referred to in a pleading, it forms part of the pleading, and it is open to the court to give same its true legal effect. He argued that having pleaded Exhibit A2(I) the terms ought to be given their due legal effect.  Counsel cited Adams v L.S.D.P.C.  (2000) 5 NWLR (Pt. 656) 291, and paragraph 1 of Exhibit A1 which stated the tenure of the claimant in the employment, and submitted that the Defendant never stopped paying Claimant’s salaries and bonuses contrary to the terms and conditions of his appointment as alleged. He argued that the Defendant is not indebted to the Claimant in the tune of N18, 717,181.33 (Eighteen Million, Seven Hundred and Seventeen Thousand, One Hundred and Eighty-One Naira, Thirty-Three Kobo) being claimed as outstanding salaries, Edo State Tax, Pension and any reimbursable expenses purportedly incurred on behalf of the Defendant. Counsel maintained that the CW1 despite the defendant’s request failed or refused to furnish the defendant with his pension account details to enable the remittance of pension contributions in line with his contract agreement with the Defendant.
16.  Counsel maintained that paragraph 8 of Exhibit A1 reveals that CW1 as Vice Chancellor is entitled for reimbursement of travel, hotel and other reasonable incidental expenses incurred by him in the performance of his duties but subject to prior approval of the Chancellor and presentation of receipts. He contended that the Claimant tendered the Audit Report i.e. Exhibit A3 to show that the N3,683,618.00 represents various degree of expenditure purportedly made by him without prior approval of the Chancellor, supporting documents/evidence, excess allowance without presentation of receipts. The defence counsel cited the Supreme Court case of M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506 that reference to a document in a pleading makes the same part of the pleading, and it is open to the court to give the document its true legal effect.
17.  He noted that the Claimant pleaded that he would be relying on Exhibit A3, but he is seeking a sum of N2,564,365 [Two Million, Five Hundred and Sixty-Four Thousand, Three Hundred and Sixty-Five Naira] as reimbursable expenses. He noted that Exhibit A3 disclose a different amount, and therefore posited that the Claimant failed to prove the expenditure. Counsel submitted that the Claimant has absolute power to resign and the defendant has no discretion to refuse to accept same, and urged the court to hold that the claims in this suit cannot succeed based on pleadings, oral evidence and the terms and conditions of the Claimant’s appointment as contained in the document referenced MUU/REG/002/0921 dated 19^th September 2021. 
18.  On issue two, the defence counsel submitted that to succeed in its counter-claim, the defendant must prove: 
    1. That the Claimant failed to give the Defendant the required notice or payment of salary in lieu of notice as prescribed by Exhibit A1 being document containing the terms and conditions of the Claimant’s appointment. 
    2. That the total sum of N3,683,618.00 [Three Million, Six Hundred and Eighty- Three Thousand, Six Hundred and Eighteen Naira] represents various degree of expenditure made by the Claimant contrary to and as prescribed by Exhibit A1.
19.  He submitted that the defendant particularized its claim for special damages in paragraph 3 of the counter-claim, and that in addition to the documentary evidence tendered by CW1 which in law forms part of pleadings, the Defendant/Counter-Claimant also led sufficient documentary and oral evidence in prove of the counter claim. Counsel reiterated that the Claimant in defence of the counter-claim pleaded and admitted in paragraphs 3, 4 and 5 of the   statement of facts that the terms and conditions of his appointment is as contained in Exhibit A1.
20.  Counsel cited Sifax (Nig.) Ltd v Migfo (Nig.) Ltd (2018) 9 NWLR (Pt. 1623) 138, in support of his argument that reference to a document in a makes the document a part of the pleading. He referred the court to Section 15(2)(a) of the Interpretation Act, Cap. 192, LFN. 1990, and argued that the 3 month notice given by CW1 can only be calculated effective from a day after the delivery of Exhibit A4 up till the day preceding the date of termination of the Claimant’s employment on 4^th April, 2023 as indicated in Exhibit A4. He noted that Exhibit A4 was received on 9^th January, 2023 and in computing the period of notice, date of delivery must be excluded, and same will be calculated from 10^th January, 2023. He therefore surmised that three months from that date would end after 4^th of April, 2023, when CW1 was no longer in the Defendant’s employment, and went on to cite Auto Import Export v Adebayo (2002) 18 NWLR (Pt. 799) 554 
21.  He argued that the Claimant failed to give the required length of notice or payment in lieu of notice in line with Exhibit A1, even though he has the absolute power to resign, the Defendant has no such discretion to refuse. Counsel noted that Claimant’s resignation is by giving the required length of notice or payment in lieu of notice, and cited the case of Osho v Adeleye (2024) 8 NWLR (Pt. 1941) 431. He argued that the pleadings, oral and documentary evidence showed that the Claimant did not comply with the relevant provisions of Exhibit A1 by offering three months’ salary in lieu of notice 
22.  The defence counsel submitted that where two parties have made a contract which one of them has broken, the damages which the other party ought to receive should be such as what may have been fairly and reasonably considered. He continued that same must have arisen in the usual course of things, or must reasonably be contemplated by both parties as the probable result of a breach, he referred the court to Vital Inv. Ltd v CAP Plc (2022) 4 NWLR (Pt. 1820) 205.
23. Counsel noted that the Claimant did not deny the breach of contract vide failure to give notice to the defendant amongst other breaches and subjected the defendant to un-timeous and undue pressure as pleaded in paragraph 19 of its statement of defence. He further referred to the evidence adduced before this court and cannot be heard to deny the damages arising from the said breach of his contract. He finally urged the court to uphold the counter-claim based on the evidence available before the court. 
24.  The Claimant’s final written address dated 16^th May, 2025 and filed 18^th July, 2025, but deemed properly filed 24^th July, 2025, was argued by U. L. Osa-Uwagie, Esq.  wherein he submitted four issues for determination, to wit:
25. Whether the Claimant resignation from the Defendant University was in accordance with Claimant’s Appointment Letter dated 19^th September, 2021 admitted and marked as Exhibit A1.
26. Whether the Claimant’s remuneration as contained in paragraph 5 and referenced in Appendix A of Claimant’s Appointment Letter dated 19^th September, 2021 admitted and marked as Exhibit A1 states categorically as a term that Claimant remuneration shall be paid annually and or yearly.
27. Whether the non-payment of Claimant’s remuneration and or emolument leading to Claimant’s involuntary resignation amounted to Defendant’s breach of the contractual agreement between the parties amounting to constructive dismissal or constructive discharge (termination) of the contract of employment that existed.
28. Whether the Claimant has led credible evidence in proof of his claim to entitle him to all his reliefs.
29.  On issue one, counsel submitted that Contract of employment is defined under Section 91 of the Labour Act 2004, and an employer/employee relationship is governed by the contract of employment. Counsel cited MINTING PLC v. OLALEYE (2020) LPELR-50409 (CA) and argued that both parties are ad idem on the existence and legal status of Exhibit A1. He noted that this document was pleaded in paragraph 3 of the Statement of Facts and CW1 led evidence on same in paragraph 4 of his witness statement on oath. The claimant’s counsel further noted that the defendant pleaded the document in paragraph 3 of its Statement of Defence and led evidence on same in paragraph 3 of the deposition of DW1. 
30.  Counsel submitted that CW1 led evidence on his resignation in paragraph 9 of the Statement of Facts and tendered Exhibit A4 (resignation letter) in compliance with Paragraph 11 of Exhibit A1. He referred to paragraph 3(a) -3(g) of the Additional Written Statement on Oath dated 29/04/2024, and submitted without conceding that assuming Exhibit A4 was not addressed to the proper organ of the Defendant, Exhibit A7 cures the defect. Counsel noted that Exhibits A6, A6¹ and A9 makes it crystal clear that the defendant received notice of Claimant’s resignation and accepted same with robust commendation.
31.  He submitted that Exhibit A4 and Exhibit A7 meets with the form, content and substance of Paragraph 11 of Exhibit A1 as the Claimant resigned his appointment by giving three (3) months’ notice in writing to the University through the Board of Trustees, stating the reason for his resignation. 
32. On issue two, counsel pointed out that Appendix A of Exhibit A1 provides for the annual remuneration of the Claimant, and referred to paragraph 5 thereof, which is a sum of N19, 200, 000.00. He stated that nowhere in Exhibit A1 is it stated that the Claimant shall be paid annually, as same merely provides for his remuneration annual emolument which is the practice in Contracts of Employment, he urged  the court  to take judicial notice of this practice. He cited Section 9(4) of the Labour Act Cap L1 LFN 2004, and pointed out the defendant’s contention that the employment contract provides for annual payment is not supported by any evidence on record and is also not contained in Exhibit A1. 
33.  He noted that defendant’s witness admitted under cross examination that the university was in arrears of claimant’s monthly salary, although he was paid for some months before the Defendant started defaulting in the payment. He argued that in the absence of an express term of contract, the court will have to fall back on the implied terms of the contract which is deducible from the intention of parties, he cited E. O. Amodu vs. Dr. Jo Aode & Anor (1990) 9-10 SC 61.
34.  Counsel argued that what is expressly or implicitly prohibited by statute is illegal, and cited the case of Shidipo vs. Lemmin Kainem &Anor. (1986) 1 NSCC 92. He posited that the defendant’s argument that claimant’s remuneration was to be paid annually is illegal and does not represent the terms agreed by parties, trade remuneration practices and convention.
35. On issue three, counsel referred to the term constructive termination/dismissal which presupposes a situation where an employer either expressly or by certain acts caused an employee to involuntarily resign his appointment. He cited CBN V. ARIBO (2018) 4 NWLR (PT. 1608) 130 @ 172 PARAS. C-E; and Mrs EBERE UKOJI V. STANDARD ALLIANCE LIFE ASSURANCE CO. LTD. (2014) 47 NLLR, (PT. 154), 531
36.  The claimant’s counsel contended that the evidence on record is clear and direct on the fact that defendant was in arrears of several months’ salary of the Claimant causing hardship and making life unbearable for him. He argued further that this amounts to a breach of a fundamental term of a contract of employment between the parties which in itself amounted to constructive termination/dismissal, he cited the case of G.N. Nwaolisah (trading under the name and style of G.B. vitallis Co. (Nig) v. Paschal Nwaolisah (trading under the name and style of Paskodi Maritime Agencies) (2011) 6-7 SC (Pt 11) 138.
37.  Counsel submitted that from the state of pleadings and evidence on record, the breach of the contractual agreement between parties by non-payment of claimant’s salary amounted to constructive determination (discharge) of the employment contract. He argued that Claimant’s involuntary resignation is in law viewed as unlawful termination of employment known as constructive dismissal or constructive discharge (termination) which upon prove gives right to a cause of action. He relied on C.B.N. v. ARIBO (2018) 4 NWLR (PT. 1608) 130 @ 144 RATIO 16; BALONWU V. VOLUNTARY SERVICE OVERSEAS (VSO) INTERNATIONAL, (Unreported) SUIT NO. NICN/ABJ/280/2018.
38.  He argued further that another consideration for constructive dismissal or termination is that the claimant resigned soon after the incident(s) he is complaining about as held in JOSEPH OKAFOR V. NIGERIAN AVIATION HANDLING COMPANY PLC (UNREPORTED SUIT NO. NICN/LA/29/2016). He urged the court to resolve this issue in favour of the Claimant and hold that the defendant’s refusal to pay the Claimant’s salary in itself amounted to constructive termination/dismissal of Claimants employment.
39.  On issue four, counsel pointed out that the requirement of the standard of proof in civil cases is on balance of probabilities or preponderance of evidence which requires the trial Judge to rely on his judicial and judicious mind to arrive at where the imaginary scale preponderates. He submitted that a party seeking a declaratory relief must prove that he has an interest or right which forms a foundation for the relief sought before the court, and cited  UMAR V. GEIDAM (2019) 1 NWLR (PT.1652) 29 SC. He argued that the Claimant has by his pleadings and evidence been able to establish his legal right which was infringed by the defendant’s actions in breaching the contract of employment between the parties.
40.  He submitted that the Claimant has proved his claim to entitle him to judgment in this case, he noted that claimant’s evidence largely stands alone and uncontroverted particularly in the light of the above argument in issue one. He argued that Claimants averments and evidence in proof of same were not impugned under cross-examination neither was there any evidence from the Defendant contradicting same.  He therefore posited that the evidence before this Court goes one way with no other set of facts or evidence weighing against it, and the onus of proof in such a case is naturally discharged on a minimal proof. 
41.  Counsel cited Section 3(a) and (b) of the Pension Reform Act 2014  which provides to the effect that an employer shall deduct at source the monthly contribution of the employee, and not later than 7 days from the day the employee is paid his salary remit the employee’s contribution. He further cited Section 11 (6) of the same Act provides that an employer who fails to deduct or remit the contribution within the stipulated time shall be liable to a penalty. 
42.  He noted that the evidence on record reveals that the Defendant admitted that Claimant’s monthly pension contributory deductions was never remitted to his Pension Administrator and still remains unremitted. Counsel also referred the court to Sections 81(1) and 82 of the Personal Income Tax Act 2011, and reiterated that an employer owes the employee a duty to pay wages or salary in accordance with the terms of contract express or implied. He cited Browning v. Crumlin Valley Colleries Ltd. (1962) 1 KB 522; and the case of MINTING PLC v. OLALEYE(2020) LPELR-50409(CA. 
43.  He noted that both parties are ad idem that the Claimant was an employee of the Defendant for a fixed term of five years with an option of reappointment subject to certain conditions whose appointment took effect from 20^th September 2021 to end on 31^st August 2026. Counsel submitted that where a contract of service is for a fixed term, the employee cannot be removed during the term contracted except for misconduct or where the employer dies. He continued that If the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of the employee’s fixed contractual term. He cited GOV. OF IMO STATE & ORS. V. DELU ENT. (NIG) LTD. (2021) LPELR – 54724 (CA) and AYORINDE V. KUFORIJI (2022) LPELR 56600 (SC). He therefore surmised that the determination of Claimants employment as earlier submitted is a constructive termination.

 

 

 

 

43.  I have thoroughly studied the processes in this suit, the testimony of witnesses called by both parties, the Exhibits tendered as well as the final submissions of counsel in their respective final written address. Thereafter, I have deduced the following issues for determination in this case; 
44. Whether or not the claimant has proved his case against the defendant, and is entitled to the reliefs sought in this suit.
45. Whether or not the defendant is entitled to its counterclaim. 

 

44.  It is important to identify the category of employment relationship between parties before delving into the issue for determination. It is uncontroverted that parties were in a Private employment relationship also known as Master and Servant guided by the terms and conditions formally executed by them. In this wise, the duty of court is to interpret the rights and obligations of parties under the employment contract. Undoubtedly It is an employee who is claiming breach of his employment contract that must establish the following before he can be entitled to any relief:
    1. He must prove his employment relationship.
    2. Place the terms and conditions of his Employment before court.
    3. He must prove breach of the term of his employment contract by the Employer.

 

"It is the law that, he who asserts, must prove the positive of his assertion, if he is to succeed. When an employee or a former employee as in this case, complain that his employer or former employer as the case may be, is in breach of the conditions of service by wrongfully withholding the payment of his gratuity to which he is entitled under the said conditions of service, he has the onus:- (a) To place before the court the staff conditions of service or the terms of the contract of employment, and (b) To prove in what manner the said staff conditions of service or the terms of contract of service were breached by the employer.” 

 

 

 

 

 “January 04, 2023

 

The Pro-Chancellor, & Chairman, Governing Council,

Mudiame University, Irrua

Edo State

Dear Pro-Chancellor;

Reference: Letter of Resignation

Please accept this as my official letter of Resignation as Vice Chancellor, Mudiame University, Irrua, (MUI) Edo State, effective April 4, 2023(3-month notice) as required under my Employment Contract executed on September 20, 2021, and in agreement with the Termination clause section 11). The resignation was accessioned(sic) by: 1. Breach of Contract Terms of Employment with regard to salary payment and others 2. Code of Governance-Flagrant usurpation and interference with the Vice Chancellor’s responsibilities and powers. 3. Incessant salary delays, which weaken the smooth running and good order in the University. 5. Lack of Institutional and financial support to faithfuly execute the duties of the office of Vice Chancellor as prescribed under the law of the University, the Vision and Mission of the University, and NUC guidelines. 5. Lack of funding for basic day-to-day operations of the University.

       Meanwhile, in the next one(1) week by January 15, 2023), I humbly request that ALL my outstanding and past due salaries, dating back to more than five(5) months in arrears---totalling N14, 520, 849 as today, subject to adjustment for statutory deductions and pension contribution, be paid. I need the funds to meet my immediate/urgent family needs, and to transition out of the University. This has been a very painful decision for my family and I to make considering the nascent age of the University but success is unattainable under these conditions.

       I am deeply grateful to the Founder and Chancellor of MUI, Professor S. E. Eronmosele, for his friendship and support; HRM, the Ogierua and Oaijesan of Esanland, Alhaji W. O. Momudu 11, and Chairman Board of Trustees(BOT);                                                                                                          ; Dr. Solomon Edebiri, Vice Chairman BOT; Barrister Elvira Salleras, Secretary BOT, Governing Council, staff, and students of MUI.

Earnestly Yours,

Sgd.

Prof. Ernest B, Izevbigie(Ph.D Michigan State Univ. (1996), U.S Inventor, NAI-Distinguished Professor of Biology/Biochemistry”

 

50.  It is evident from the above that allegations were levied against the defendant for failure to pay claimant’s salaries for months, and this was not disproved by the defendant’s evidence, rather DW1 confirmed under cross-examination that CW1 worked for 18 months, and was paid for about 14 months. It is a renowned fact that a labourer is entitled to its wages, and the defendant owes a duty to pay its workers’ salaries as at when due, otherwise, it will constitute a breach of terms of employment. It is on record that the claimant vide Exhibit A4 hinged his decision to resign on this, while he also highlighted undue interference with his work, and usurpation of his authority amongst others.
51.  The content of Exhibit A4 conclusively points to constructive dismissal, in that claimant’s working condition was not conducive, which resulted in his resignation, and this was collaborated by the evidence of DW1 under cross-examination, where he admitted failure of the defendant to pay claimant’s salary for about four (4) months. Consequent upon the above, I find that the defendant reneged on its legal responsibility under the employment contract between parties which is one of the characteristics of a Constructive Dismissal. Constructive dismissal in employment law is a situation where an employee is forced to resign or leave the employment, because of a serious breach of contract, bullying, unfair treatment, stoppage or reduction of salaries, etc. In this regard, see B.E.D.C. PLC. V. ESELUKA (2015) 2 NWLR (PT. 1444) 411, as well as the oral and documentary evidence placed before this court which attest to this fact; It is unsettling that an employer will deprive its worker salaries for months, and the Employee is expected to survive without his wages, and to continue working under that condition. 
52.  The above findings lead to an inexorable conclusion that the claimant’s contention that he was constructively dismissed by the defendant, has been duly established. As a result,  I find that claimant’s resignation in this instance was occasioned by a breach of the employment contract by the defendant which amount to constructive dismissal in the instant case.
53.  On whether or not the claimant’s resignation was in compliance with the contract of employment (Exhibit A1) CW1 led evidence that he resigned his appointment vide Exhibit A4 dated 4^th January, 2023 effective 4^th April, 2023. He referred the court to Section/clause 11 of Exhibit A1 which is reproduced as follows;

“….You may resign your appointment by giving three(3) months’ notice in writing to the University through the Board of Trustees stating the reasons for resignation or pay three(3) months’ salary in lieu of notice. The Board may waive all or part of this notice. The University may elect to terminate your employment and pay three(3) months base salary in lieu of notice as well……”

54.  The defendant on its part contended that CW1 failed to comply with the provision for failure to put in the requisite notice to terminate the employment. The defence counsel noted that the claimant’s resignation letter was received on 9^th January, 2023, and as such, the calculation of three months’ notice will commence a day thereafter i.e. 10^th January, 2023, citing S.15(2) of Interpretation Act Cap. 192 LFN, 1990. He surmised that the effective date of claimant’s resignation therefore ended days after 4^th April, 2023, when he exited the employment. Notwithstanding the fact that I have held in this Judgment that the claimant’s resignation from the defendant amount to constructive dismissal, I will go ahead to evaluate the merits of the defendant’s contention on this issue.  
55.  The law is trite that parties are bound by a contract freely entered into by them, see Olude v. Adeeso [2015] LPELR-25587 (CA), Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA). Okonkwo v. CCB (Nig) Plc [2003] 8 NWLR (Pt.822) page 382. The function of Court is therefore to interpret the agreement in enforceable terms without more, see Arta Industries Limited v. N.B.C [1997] 1 NWLR (Pt. 483) Pg 593, para F. The defence counsel seems to be under a misconception that the employment relationship between parties is statutorily flavoured, even though same was never pleaded in the statement of defence, hence his introduction of the Interpretation Act. 
56.  It is on record that this court earlier identified the employment relationship between parties in this suit as Private Employment which is guided by terms and conditions voluntarily executed by parties, see Exhibit A. As a result, this court will only consider this document in determining the rights of parties in the employment relationship, in this regard, see clause 11 of Exhibit A1 earlier reproduced above where it is stated“….You may resign your appointment by giving three(3) months’ notice in writing to the University through the Board of Trustees stating the reasons for resignation or pay three(3) months’ salary in lieu of notice. The Board may waive all or part of this notice…..” . The above is to the effect that assuming the notice of resignation fell short of the requisite three months by a few days or even more as alleged by the defendant, the defendant may waive all or part of the notice, which it did when it accepted the claimant’s resignation vide Exhibit A6.
57.  It is on record that the defendant acknowledged and accepted the claimant’s notice of resignation in Exhibit A6 dated 3^rd February, 2023, and never raised any issue with the effective date of resignation prior to the filing of this suit. Consequently, the defendant’s contention on the issue of notice given by the claimant when he resigned goes to no issue based on clause 11 of Exhibit A1. In other words, the defendant having accepted claimant’s resignation is precluded from contesting the effective date of same in this suit, in the light of this, I find that the claimant’s resignation from the defendant was done in accordance with his employment contract i.e. Exhibit A1, and the argument of defendant to the contrary is bereft of merit. I so hold. 
58.  On whether or not Appendix A to the claimant’s employment letter/contract of employment specifies that the claimant’s remuneration is payable annually or yearly. The defence has argued that the employment contract does not specify monthly payment of his entitlements. Counsel for the defendant further argued that since this is the case, the defendant was not in default of paying the claimant’s salary as he is only entitled to annual salary. 
59.  The evidence before this court vide Appendix A(Exhibit A2(1) clearly spells out the claimant’s annual salary as follows: 

                                                                      APPENDIX A 

VC ANNUAL EMOLUMENT ANALYSIS 

                                                                            

Annual Basic Salary                                        NGN 5,760,000.00 

Annual Housing Allowance                                    NGN 3,840,000.00 

Annual Medical Allowance                                     NGN 2,880,000.00 

Annual Transport Allowance                                 NGN 2,880,000.00 

Annual Privilege Allowance                                    NGN 1,920,000.00 

Annual Club Allowance                                  NGN   672,000.00 

Annual Pension Contribution                                NGN 1,248,000.00 

 

      TOTAL                                              NGN 19,200,000.00 per annum 

 

60. The contention that claimant’s salary is payable annually is not supported by any provision in the employment contract (Exhibit A1) as Appendix A merely indicates the total annual remuneration of the claimant, and nowhere was it indicated that CW1 is to be paid annually. Under the International Labour Organisation (I.L.O) Protection of Wages Convention, 1949 (No. 85) payment of wages can be calculated monthly or yearly but must be paid not less than once a month, see Recommendation 85, paragraph 4 of that convention.
61.  Moreover, the defendant never contested the fact that CW1 was paid monthly from the evidence adduced before this court, see Exhibit A6, wherein the defence failed to rebut the fact that it is owing the claimant some months’ salary. The position of the law is that failure to respond to a business letter, is deemed to be an admission, see AROCOM GLOBAL INVESTMENT LTD. VS UNITED PARCEL SERVICE LTD. (2021) LPELR – 52891 (CA) pp. 26 – 27 Para E – E. 
62. In such instances, where a party had an opportunity to deny an allegation, but decided to keep silent, same can be construed against him. The defendant had all the opportunity in the world to contest claimant’s assertion that his salary was paid monthly but elected to be silent. Instead, the defence counsel chose to argue in its final address that claimant’s salary is payable annually based on in Appendix A i.e. Exhibit A2(1) attached to Exhibit A1.  Curiously, this fact cannot be gleaned from this document, as the Appendix merely listed the annual remuneration and nothing else. A further scrutiny of Exhibit A3 prepared by the defendant’s Auditor reveals the monthly salary of the claimant, and the monthly salary paid to him between October 2021 and February, 2023. This clearly debunked the contention that claimant’s salary was payable annually as canvassed by the defence.
63.  In this vein, annual remuneration is against the norm in labour practise in Nigeria and is illegal unless written approval of the State Authority has been previously obtained as required under S. 9(4) of the Labour Act, cap. L1 LFN, 2004. There is no evidence of a written authority to pay CW1 annually in this case, therefore the defendant’s contention on this issue is unsupported by evidence, in this vein, I find that the claimant has established his case that his remuneration is payable monthly and not annually.
64.  On whether or not the claimant has established his entitlement to the reliefs sought, relief “a” is for a declaration that the claimant’s resignation due to failure to pay his emoluments as at when due is in breach of his employment contract. Again, I have held earlier in this Judgment that the defendant breached the contract of employment for failure to pay claimant’s salary regularly, therefore this relief is meritorious and consequently succeed. I so hold.
65.  In respect of relief “b” for a declaration that the claimant is entitled to a sum of N18, 717, 181. 33k, this requires him to establish his claim for special damages under relief “c” wherein he is seeking an order for the defendant to pay him the aforestated sum. In line with the above reliefs “b” and “c” will be considered together, in respect of relief “b” for a declaration, this requires prove to the satisfaction of the court before same can be granted, see Kwande & Anor v Mohammed & Ors. (2014) LPELR-22575(CA)  where his lordship Gumel JCA held:

“The law is settled that courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing and being satisfied by such evidence. The burden of proof on a claimant in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such reliefs are not granted even on admission by the defendant.”

“…Special Damages are in a class of their own requiring strict proof which can only be proved/established by credible and ascertainable facts which must have been specifically pleaded and of course strictly proved.”

“The Court has no business, to embark on guesswork or speculation as to what is or what is not. A party seeking the judgment of a Court in his favour has the unenviable duty to provide all the necessary materials in his evidence that will justify the relief sought. A Court should not be left to grope in the dark in search of the truth in any given situation. Speculation and guesswork is an anathema in our adversarial system of justice.”

“Parties to an action are bound by the pleadings. Parties are to present the facts on which their action is based in the pleadings. The party who needs pronouncement of the court must lead evidence on his pleading to give it life in proof of the assertion it wants to establish before the court. Pleadings upon which no evidence has been led goes to no issue”

“On no account dump documents on the trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case. 

“The law does not allow the court to inquire in chambers into documents thrust on it by a party without having a witness speak so to say to the document in open court to enable the other party openly contest the contents of the tendered documents……”,

Question: How many months did the claimant receive salaries from the defendant?

DW1: 14 months, about 14 months.

N6,881, 549.34k. – N1, 500,000. = N5, 381, 549.34k

73.  The claimant is therefore entitled to a sum of N5, 381, 549.34k as balance of his arrears of salary to be paid by the defendant. I so hold.
74.  In respect of the claim for unremitted Pay as you Earn Taxes (P.A.Y.E) to the Edo State Tax Authority, this is a statutory deduction that must be paid to the Agency. Exhibit A3 clearly reveals that the payment due to the Edo State Government as Taxes is N2,366,976.00k, in line with this, the defendant is ordered to remit the sum as claimant’s taxes for the period of employment to the Edo State Tax Revenue Board. I so hold.
75.  On the claim for payment of N3,463,200k as Pension which is also statutory, the defence led evidence through DW1 that the claimant failed to provide details of his Pension Fund Administrator, hence the defendant’s inability to remit same. They further contended that the amount being claimed is bloated and unproven, while a perusal of Exhibit A3 reveals the claimant’s monthly pension deduction is N112,000.00, the claimant’s pension entitlement for 18 months can therefore be calculated as follows:

 N112,000 x 18(months = N2,016,000.00K

Consequent upon the above, the claimant is ordered to provide details of his Pension Fund administrator to the defendant, upon which the defendant is to remit a sum of N2,016,000.00K, as contributions, to the Pension Fund Administrator (PFA).

76.  In respect of the claim for reimbursable expenses, i.e. N2, 564,365.00k, the claimant failed to lead evidence in proof of the expenses he incurred before this court. Furthermore, Exhibit A3 is not in support of same, as the defendant’s Auditor clearly indicated that the expenses were neither approved nor authorised. As such this leg of the relief is unproven and therefore fails. I so hold.
77.  On account of the above, I find that the claimant is entitled to a declaration and an order for the defendant to pay him as follows; a sum of N5,381,549.34k as his outstanding arrears of salaries; (ii) payment of a sum of N2,366,976.00 as claimant’s personal income tax for October 2021 - February 2023, to Edo State Tax Authority; iii) Remittance of N2,016,000.00K as his pension contributions to a PFA of claimant’s choice; (iv) the claim for entitlement to a sum of N2,564,365.00 as reimbursable expenses is unproven and therefore fail. 
78.  The claimant vide relief “d” is seeking a declaration that he is entitled to the sum of N67, 680,00 for his unexhausted 3 years tenure from the defendant; and an order directing the defendant to pay him same in relief “d” and “e” respectively. I find that these reliefs are totally unsupported by Exhibit A3. In a private employment, either party reserves the right to terminate the relationship as done in this instance. This category of employment i.e. private employment is unlike statutory employment where the court can order reinstatement or payment for an unexpired part of the Employee’s tenure. It is worthy of note that the claimant’s resignation which has been held to be a case of constructive dismissal, nonetheless, the employment relationship between parties ended on 4^th of April, 2023. The claimant cannot earn any salary for the unexpired part of his tenure in a private employment after the relationship has ended. Consequently, reliefs “d” and “e” are unsustainable, and therefore fail. I so hold.
79.  Relief “f” is for an order that the claimant is entitled to the use of a Toyota Highlander (2013) model as contained in the terms of employment, or in the alternative relief “g” whereby he is seeking a sum of N15million Naira, the open market value of the vehicle. A look at Appendix B(Exhibit A2(ii) to Exhibit A1 reveals the personal office incentives of a Vice Chancellor in the defendant, as follows;

“….Transportation: Two official Vehicles² + Two Drivers +Maintenance (excl. fuel expenses)

…..

² One car to be retained at the end of tenure”

80.   It is clear from the above that the claimant did not complete his tenure in this instance, as he resigned 18 months into a tenure of 5 years  as such the claim for reliefs “f” and “g” are unsupported by the contract of employment, and therefore fails. I so hold.
81.  The claimant in his relief “h” is seeking N10 million as general damages against the defendant. It is settled law that the quantum of damages available to an aggrieved employee is the sum he is ordinarily entitled to for the period of notice, but in deserving cases, the court can award compensation against the Employer. Under Section 19(d) of the National Industrial Court Act, 2006, this court is empowered to award compensation in deserving cases, this provision is reproduced as follows:

“The Court may in all other cases and where necessary make appropriate order, including-

(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.”

82.  In line with the above, instances where the dismissal of an employee carries a sort of stigma, embarrassment or constitutes an unfair labour practise, the Employee is deserving of an award of compensation by way of general damages. In BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288, the court of appeal upheld the award of two years’ salary as compensatory damages to the claimant by the trial court. The court further held that the quantum of damages recoverable by an employee depends on whether the wrongful termination was as a result of failure to give the required notice, or whether the termination carries a stigma, in which case, the employee shall be entitled to substantial damages far beyond payment of salary in lieu of notice in line with International best practise.
83.  The position in British Airways V Makanjuola supra was affirmed in the case of Sahara Energy Resources Ltd. V Mrs Olawunmi Oyebola, {2020} LPELR-51806 CA where his lordship Ogakwu JCA held as follows:

“..The National Industrial Court, in considering the measure of quantum of  

damages is to do so in accordance with “good or international best practices or      

Industrial relations”

84. In this suit the claimant made out a case of constructive dismissal against the defendant, mainly because he was deprived of his salary for months, and unable to meet urgent family needs. The defendant’s action is oppressive and constitutes an unfair labour practise, that is deserving of compensation for breach of his terms of employment in this instance. Consequently, I award a sum of N7.5million as general damages against the defendant in the claimant’s favour. 
85.  On the issue of cost in relief “i”, cost follow event, and is usually awarded to a successful litigant. In line with the above expositions, I hold that the claimant’s case succeed in  substantial part, and issue one is resolved in favour of the claimant in line with the findings in this Judgment.

 

                                        COUNTER CLAIM

86.  The defendant counter-claimed against the claimant as aforestated, in proof of its counter-claim the defendant called DW1 and relied on Exhibits MU1, MU2 and MU3. DW1 led evidence that the claimant failed to give the requisite notice as stipulated in Exhibit A1, and also incurred expenditure of N3,683,618.00k without authorisation. The defendant is therefore seeking in relief “a” a sum of N4,800,000.00 form the claimant as three months’ salary in lieu of notice for failure to give defendant the requisite notice and in relief “b” a sum of N3,683,618.00k for various degree of expenditure in contravention of Exhibit A1 
87.  I have held earlier in this suit, that the claimant complied with the provision on the requisite notice to terminate the employment relationship as stipulated in Exhibit A1 vide his resignation letter which was accepted by the defendant in defendant’s  Exhibit A6. As a result, the defendant is precluded from withdrawing his approval or waiver for any contravention of Exhibit A1 in the claimant’s resignation notice.  Furthermore, considering the holding of court in this judgment that claimant was constructively dismissed in breach of his employment contract, the defendant cannot be allowed to benefit from its own breach. In view of the foregoing, relief “a” in the counter-claim is unsustainable and is hereby refused. I so hold.
88.  In respect of relief “b” in the counter claim, the defence counsel has argued in his final address that CW1 incurred expenditure in the sum of N3,683,618.00k, without prior approval, receipts and supporting documents. He contended that the defendant has placed sufficient facts before the court to be entitled to this relief, and posited that the claimant is in breach of Exhibit A1, which was never denied by him. The claimant on the other hand argued that the onus to prove its counter-claim rest on the defendant, which they failed to discharge with credible and reliable evidence. He further argued that the counter-claim is speculative and no evidence was adduced on how the defendant arrived at the figure stated in this relief.
89.  It is the position of the law that a party will not be allowed to benefit from his own wrong, i.e. Ex Turpi Causa Non Oritur Actio, i.e. no cause of action can arise from a dis-honourable cause, see The Administrator & Exec. Of the Estate of Abacha v. Eke-Spiff & Ors. [2009] 7 NWLR 97 SC. Moreover, there is no evidence before this court to establish the fact that CW1 was paid for the expenses captured in Relief “b” which were allegedly incurred by him while with the defendant. This is also a claim in special damages, which the defendant/counter-claimant must particularise and proof with cogent and concise evidence in order to be entitled to same. The defendant however offered no evidence that the money expended by the claimant was sourced from the defendant, or released to the claimant, as a result; this relief is unproven and unsustainable. 
90.  Consequent upon the above, I find that the defendant’s counter-claim is frivolous, lacking in merit and is therefore accordingly dismissed. The same fate will befall the alternative reliefs in the counter-claim which is based on the particulars of the counter-claim which this court has held to be unmeritorious.
91.  In conclusion, and for clarity, the claimant’s case succeed in part, and I hereby declare and order as follows:
    1. The defendant’s failure to pay the claimant’s emoluments as at when due leading to his resignation was in breach of his terms of employment.
    2.  The claimant is entitled to a sum of N5, 381, 549.34k as his outstanding salaries; (ii) payment of a sum of N2,366,976.00 as claimant’s personal income tax for October 2021 - February 2023, to Edo State Tax Authority; iii) Remittance of N2,016,000.00K as his pension contributions to a PFA to be provided by the claimant; (iv) the claim for entitlement to a sum of N2, 564,365.00 as reimbursable expenses fail. 
    3. The defendant is ordered to pay the claimant a sum of N5, 381, 549.34k as his outstanding salaries; (ii) pay a sum of N2,366,976.00 as claimant’s personal income tax for October 2021 - February 2023, to Edo State Tax Authority; iii) Remit a sum of N2,016,000.00K as his pension contributions to a PFA of his choice; (iv) the claim for a sum of N2,564,365.00 for reimbursable expenses is refused. 
    4. Reliefs “d”, “e” “f” and “g” are refused.
    5. A sum of N7.5million is awarded as general damages against the defendant in the claimant’s favour.
    6. All monetary sums awarded in this judgment are to be paid within 60 days failure of which it shall attract 10% interest per annum.

 

           COUNTER- CLAIM

 

 

      A cost of N300,000.00k is awarded against Defendant/Counter-Claimant.

 

 

 

              Judgment is entered.

 

 

 

 

 

Hon. Justice A. A. Adewemimo

Presiding Judge