IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE:  30^TH OCTOBER 2024                                         

SUITNO: NICN/IB/61/2022

 

BETWEEN

Mr. Gabriel Bello                                                                                                Claimant

 

AND

Macmillan Nigeria Publishers Limited                                               Defendant

REPRESENTATION

Omodunni Adejuyitan with O. J. Oghiator for the Claimant

Defendant not represented

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant, Mr. Gabriel Bello, by his General Form of Complaint dated and filed 21/12/22 accompanied by a Statement of Facts and other relevant originating processes of same date sought the following reliefs against the Defendant –

1.         A Declaration that there existed a contract of employment between the Claimant and the Defendant by virtue of letter referenced MNPAdmin/GB/90, dated 30^th day of July, 1990 and by virtue of document titled Macmillan Nigeria Publishers Limited Conditions of Service.

2.         A Declaration that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under whatever guise and that all the terms and conditions of the contract stated in the Defendant’s service remain the existing and binding terms of contract between the Claimant and the Defendant as at time the Claimant voluntarily retired from the employment of the Defendant.

3.         An Order of this Honourable Court directing and or compelling the Defendant to pay the Claimant all his accrued entitlements, pension, monthly thrift/co-operative savings, unpaid leave bonuses, payment to retirement scheme and gratuity based on his monthly/annual emoluments in the sum of =N=2,954,587.23k (Two Million, Nine Hundred and Fifty Four Thousand, Five Hundred and Eighty Seven Naira, Twenty Three Kobo).

4.         An Order awarding cost of =N=1,000,000.00 (One Million Naira) against the Defendant but in favour of the Claimant being general damages against the Defendant for withholding and unjustly denying the Claimant his entitlements since he voluntarily retired.

5.         And for such order or further order(s) as the Court may deem fit or proper to make in the circumstance of this suit in favour of the Claimant. 

2.         Case of the Claimant

2.         The case of the Claimant, in brief, as revealed by the pleadings filed and evidence led is that he was employed by the Defendant as a Driver by a letter of appointment; that he served diligently and apart from the fact that his employment was confirmed, both his salary and allowances were reviewed upward and that he was owed entitlements including pension, monthly thrift/co-operative savings, unpaid leave bonuses, payments to retirement scheme and gratuity in the sum of =N=2,954,587.23 (Two Million, Nine Hundred and Fifty Four Thousand, Five Hundred and Eighty Seven Naira and Twenty Three Kobo) before he voluntarily retired from the Defendant on 1/6/15 after serving for a period of Twenty Five years (25 years). The claims of the Claimant in this suit is for his entitlements which include one month salary in lieu of notice of termination, salary arrears, pension, monthly thrift/co-operative savings, unpaid leave bonuses and payments to retirement scheme and gratuity in the total sum of =N=2,954,587.23.

 

3.         The Claimant opened his case on 6/6/23 when he testified in chief as CW1, adopted his witness deposition of 21/12/23 as his evidence in chief and tendered 8 documents as exhibits. The documents were admitted in evidence and marked as Exh. GB1 – Exh. GB8. The case was subsequently adjourned for cross examination. Although served requisites notices, the Defendant did not appear in Court to cross examine CW1 and neither did it indeed appear to defend this suit notwithstanding that opportunities to do so were afforded it.

 

3. Final Written Addresses

4.         At the conclusion of trial and pursuant to the direction of the Court that parties should file their final written addresses, the Claimant filed a 9-page final written address. It was dated and filed on 6/9/24. In it learned Counsel set down a lone issue for determination as follows –

 

Whether having regards to the exhibits tendered and evidence led before this Honourable Court, the Claimant has proved his case as required by law.

 

5.         Arguing this lone issue, learned Counsel submitted that the standard of proof in civil cases is on the preponderance of credible and sufficient evidence citing Section 134, Evidence Act, Lawal & Ors v. Kazeem & Ors (2018) LPELR-425548(CA) & Odebola v. Registered Trustees Redeemed Christian Church of God (2017) LPELR-42548(CA). Counsel submitted that the Claimant has sufficiently proved his case before the Court; that it is a settled principle of law that any facts not controverted, denied or challenged is deemed admitted more so when the Defendant had ample time to challenge the evidence of the Claimant but fails to do so citing Owners of M/V Gongola Hope v. Smurfit Cases Limited (2007)All FWLR (Pt. 388) 105 (SC). Counsel submitted that with Exh. AY1 & Exh. AY5, there existed a binding contract of employment between the Claimant and the Defendant which the Defendant cannot unilaterally vary citing UNION Bank of Nigeria Plc v. Emmanuel Aderewaju Soares (2012)11 NWLR (Pt. 1312) 571.

 

6.         Learned Counsel submitted further in paragraph 5.16 vi that “… it is evident from the documents: Computation of Gratuity (exhibit AY6, Letters dated 27^th January, 2021 and 4^th February, 2021 (exhibits GB7-GB8) that the claimant voluntarily retired and gave notice via his letter pursuant to the terms and conditions of service that either party may terminate the employment contract as long as the other party is given notice”.

 

7.         Counsel added that by the documents mentioned, the Claimant was not paid from 1^st April, 2010 to 1^st June, 2015 when the Claimant voluntarily retired and hence Defendant is in breach of Part II, clause 8 & 18 of MACMILLAN NIGERIAN PUBLISHERS LIMITED  CONDITIONS OF SERVICE by refusing to pay all of Claimant’s accrued entitlements, pension, monthly thrift/cooperative savings, unpaid leave bonuses, payments to retirement scheme and gratuity on his monthly/annual entitlements in the sum of =N=2,954,587.23.

 

8.         Learned Counsel urged the Court to determine same based on the evidence led by the Claimant and enter Judgment in favour in his favor as he has discharged the burden placed on him to prove his case.

 

9.         Again, although the Defendant was afforded opportunity to file a final written address, it elected to not file any.

 

4.         Decision

10.       The case of the Claimant and the reliefs sought are straightforward. Claimant was an employee of the Defendant whose employment was terminated after serving for a period of about 25 years. His case was that he was owed some unpaid entitlements by the Defendant following his voluntary retirement from the Defendant.

 

11.       I have read and clearly understood all the processes filed by the Claimant. I heard the oral testimony of the sole witness for the Claimant at trial, watched his demeanor and carefully evaluated all the exhibits tendered and admitted at trial. In addition, I heard the submissions of the learned Counsel to the Claimant at the point of adopting his final written address. Having done all this, I set down a lone issue for the just determination of this case thus –

 

Whether the Claimant has discharged the burden of proof on him to be entitled to a grant of all or some of the reliefs sought in this Court.

 

12.       I need to reiterate the fact that the Defendant did not enter an appearance to this suit and neither did it file any defence. Throughout the whole trial, the Defendant was not represented in Court either by a Counsel or a staff member. Notwithstanding the absence of defence or the absence of the Defendant at trial the burden of evidential poof is by no means removed from the Claimant. The law is trite that he who asserts must prove same in order to be entitled to positive disposition by the Court. Sections 131 & 132, Evidence Act are in support of this position of the law. This is to further cement the accepted state of the law that the absence of defence does not translate to an automatic Judgment in favour of the Claimant. The Claimant must adduce evidence in proof of his claims before the Court.

 

13.       The sole issue set down for determination is whether the Claimant has discharged the burden of proof in this case to be entitled to a grant of all or some of the reliefs sought. It is a trite state of the law that he who asserts must prove the assertion. The proof required may be by oral or documentary evidence or by both. Credence is however often placed on documentary evidence over and above oral evidence.

 

14.       The Claimant sought 5 main reliefs in this case in this Court. The first is for a Declaration that there existed a contract of employment between the Claimant and the Defendant by virtue of letter referenced MNP/Admin/GB/90, dated 30^th day of July, 1990 and by virtue of document titled Macmillan Nigeria Publishers Limited Conditions of Service. It is a trite law that a letter or contract of employment is the foundation for employment relationship between parties. Simply put, a letter of employment signifies the intention of an employer to establish an employment relationship with the other often referred to as an employee. Once an offer of employment is made via a letter of employment or a contract and same is accepted, a valid employment relationship is thereby consummated.  Exh. GB1 dated 30/7/1990 is a letter of employment titled Appointment as a Driver. It was addressed by the Defendant to the Claimant. That exhibit contained terms and conditions of engagement between the Claimant and the Defendant details of which are contained in Exh. GB2. Claimant’s employment as reflected by Exh. GB1 was reinforced by Exh. GB5 which was a confirmation of the employment of the Claimant. A combined reading of both Exh. GB1 & Exh. GB2 makes the granting of the first relief sought imperative. It is thus accordingly granted. I declare that that there existed a contract of employment between the Claimant and the Defendant by virtue of letter of appointment

 

15.       The second relief sought is for a declaration that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under whatever guise and that all the terms and conditions of service remains the existing and binding terms of contract between the Claimant and the Defendant as at time the Claimant voluntarily retired from the employment of the Defendant. Exh. GB1 is the document of the Defendant known as Conditions of Service. The conditions in same were put together solely by the Defendant. The Claimant was not a part of arrangement leading to the contents of the exhibit. Claimant was meant to only comply with the conditions of service as contained in the exhibit. But compliance with these conditions is not for only the Claimant. The Defendant is also bound by same. Since these conditions form the basis of the employment contractual relationship between the Claimant and the Defendant not only must both sides comply with same, neither of the parties can singlehandedly vary the contents without a concurrent agreement of the other party. I grant this relief as sought. Accordingly, I declare that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under whatever guise and that all the terms and conditions of service remain the existing and binding terms of contract between the Claimant and the Defendant as at time the Claimant voluntarily retired from the employment of the Defendant.

 

15.       The third relief is for an Order of this Honourable Court directing and or compelling the Defendant to pay the Claimant all his accrued entitlements, pension, monthly thrift/co-operative savings, unpaid leave bonuses, payment to retirement scheme and gratuity based on his monthly/annual emoluments in the sum of =N=2,954,587.23k (Two Million, Nine Hundred and Fifty Four Thousand, Five Hundred and Eighty Seven Naira, Twenty Three Kobo).

 

16.       The first relief under this head of claim is Pension in the sum of Two Hundred and Eighty Thousand One Hundred and Sixteen Naira only (=N=280,116.00). There is no evidence led by the Claimant respecting this relief. There is no evidence of any deductions by the Defendant for pension from the salary of the Claimant. There is also no evidence of statement of account of the Claimant from his Pension Fund Administrator before the Court. Besides, how did the Claimant arrive at the figure claim as his pension? There is no answer provided to these enquiries. This claim is not proved. It is accordingly refused. The second claim under this head of claim is Employer’s contribution in the sum of =N=372,930.00. This claim also suffers the same fate as the pension. What is the figure of the employer’s contribution? Between when and when was the contribution not made? There is even no evidence that the Claimant has a Pension Fund Administrator as required by Law. This head of claim is not proved. I refuse and dismiss same.

 

17.       Claimant also makes a claim for gratuity in the sum of =N=2,049,510.00. In support of this relief, Claimant testified in chief to the effect that he worked with the Defendant for a period of 25 years. He was employed by Exh. GB1 on 30/7/90 and he retired voluntarily on June 2015 by Exh. GB3. By paragraph 27 of Exh. GB2, having served for 25 years, Claimant is entitled to 30 months’ total emoluments as gratuity. In paragraph 16 of his witness deposition, Claimant stated that the Defendant increased his basic salary and other allowances to a total of =N=33,242.00 per month. Throughout the hearing of this case there was no challenge to the evidence led by the Claimant. Therefore gratuity entitlement of the Claimant is the equivalent of his total emoluments for 30 months in the sum of Nine Hundred and Ninety Seven Thousand, Two Hundred and Sixty Naira only (=N=997,260.00). Accordingly, the Defendant is here ordered to pay to the Claimant the sum of =N=997,260.00 being Claimant’s gratuity entitlement from the Defendant.

 

18.       Claimant’s claim for Co-operative savings in the sum of =N=252,031.23 is not supported by evidence. How much did the Claimant save into the Cooperative? How did he save the sum? Was the cooperative savings deducted from his monthly salary or he made payments into same on a monthly basis? Is there any Card for entries of payments made? Claimant did not offer answer to any of these valid enquiries. There is even no evidence of a Pay slip which would have reflected deductions for Co-operative savings from Claimant’s salary. I refuse this head of claim for lack of proof and accordingly dismiss same.

 

19.       It is said that cost follows event. Accordingly, the Defendant is ordered to pay to the Claimant the sum of Two Hundred Thousand Naira as the cost of this action.

5.         Conclusion

20.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant succeeds in part as follows-

 

1.         I declare that there existed a contract of employment between the Claimant and the Defendant by virtue of letter referenced MNPAdmin/GB/90, dated 30^th day of July, 1990 and by virtue of document titled Macmillan Nigeria Publishers Limited Conditions of Service.

2.         I declare that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under any whatever guise and that all the terms and conditions of service remain the existing and binding terms of contract between the Claimant and the Defendant as at time the Claimant voluntarily retired from the employment of the Defendant.

3.         The Defendant is here ordered to pay to the Claimant the sum of =N=997,260.00 being Claimant’s gratuity entitlement from the Defendant.

5.         The Defendant is ordered to pay to the Claimant the sum of Two Hundred Thousand Naira (=N=200,000.00) as the cost of this action.

 

21.       All the terms of this Judgment shall be complied with not later 30 days from today.

 

22.       Judgment is entered accordingly.

 

 

___________________

Hon. Justice J. D. Peters

Presiding