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/62/2022

 

BETWEEN

Mr. Okeniyi Samson Oluseye                                                                    Claimant

 

AND

Macmillan Nigeria Publishers Limited                                                    Defendant

REPRESENTATION

Omodunni Adejuyitan with O. J. Oghiator for the Claimant

Defendant not represented

 

JUDGMENT

1.         Introduction & Claims

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

1.         A Declaration that there existed a contract of employment between the Claimant and the Defendant by virtue of letter referenced MNP/PERSCFO/ojo/2014, dated 15^th April, 2014and document titled Macmillan Nigeria Publishers Limited Conditions of Service.

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

3.         An Order of this Honourable Court directing and or compelling the Defendant to pay the Claimant all his accrued entitlements including one month salary in lieu, salary arrears, pension, monthly thrift/co-operative savings, unpaid leave bonuses, payments to retirement scheme and gratuity based on his monthly/annual emoluments in the sum of =N=443,561.83 (Four Hundred and Forty Three Thousand, Five Hundred and Sixty One Naira and Eighty Three Kobo).

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

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

 

2.         The originating processes were duly served on the Defendant. However the Defendant did not file any defence process in reaction.

 

2.         Case of the Claimant

3.         The case of the Claimant, in brief, as revealed by the pleadings filed and evidence led is that he was employed by the Defendant as a Security Guard by a letter of appointment; that he served diligently and apart from the fact that his employment was confirmed, both his salary and allowances were reviewed upward and that he was owed salary arrears of 18 and a half months, leave bonuses and other allowances before he was disengaged by the Defendant by a letter dated 26^th day of November 2018 after serving the Defendant for a period of four years and six months The claims of the Claimant in this suit is for his entitlements which include one month salary in lieu of notice of termination of employment, salary arrears, pension, monthly thrift/co-operative savings, unpaid leave bonuses in the total sum of =N=443,561.83.

 

4.         The Claimant opened his case on 5/7/23 when he testified in chief as CW1, adopted his witness deposition of 21/12/22 as his evidence in chief and tendered 7 documents as exhibits. The documents were admitted in evidence and marked as Exh. SO1 – Exh. SO7. The case was subsequently adjourned for cross examination. Although served requisites notices, the Defendant did not appear in Court to cross examine CW1 and neither did it indeed appear to defend this suit notwithstanding that opportunities to do so were afforded it.

 

3. Final Written Addresses

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

 

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

 

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

 

7.         Learned Counsel submitted that the Defendant breached the terms and conditions in the Handbook and prayed the Court to hold as such. Counsel added that the Defendant having failed to challenge the evidence led by the Claimant the Court should award the sum of One Million Naira as cost in favour of the Claimant and against the Defendant.

 

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

 

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

 

4.         Decision

10.       The case of the Claimant and the reliefs sought are straightforward. Claimant was an employee of the Defendant whose employment was terminated on 26/11/18 after serving for a period of Four years and Six months. His case was that he was not given a month notice in lieu of termination of employment; that he was owed arrears of salaries for about 18 and a half months, pensions deduction not remitted as well as monthly thrift savings.

 

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

 

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

 

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

 

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

 

14.       The Claimant sought 5 main reliefs in this case in this Court. The first is for a Declaration that there existed a contract of employment between the Claimant and the Defendant by virtue of letter of appointment referenced MNP/PERSCFO/ojo/2014 dated 15^th day of April 2014 and document titled Macmillan Nigeria Publishers Limited Conditions of Service. It is a trite law that a letter or contract of employment is the foundation for employment relationship between parties. Simply put, a letter of employment signifies the intention of an employer to establish an employment relationship with the other often referred to as an employee. Once an offer of employment is made via a letter of employment or a contract and same is accepted, a valid employment relationship is thereby consummated. Exh. SO1 dated 10/12/07 is a letter of employment titled Appointment as Security Guard. It was addressed by the Defendant to the Claimant. That exhibit contained terms and conditions of engagement between the Claimant and the Defendant details of which are contained in Exh. SO5. Claimant’s employment as reflected by Exh. SO1 was reinforced by Exh. SO2 which was a confirmation of the employment of the Claimant. A combined reading of both Exh. SO1 & Exh. SO5 makes the granting of the first relief sought imperative. It is thus accordingly granted. I declare that that there existed a contract of employment between the Claimant and the Defendant by virtue of letter of appointment referenced MNP/PERSCFO/ojo/2014 dated 15^th April, 2014 and document titled Macmillan Nigeria Publishers Limited Conditions of Service.

 

15.       The second relief sought is for a declaration that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under whatever guise and that all the terms and conditions of service remains the existing and binding terms of contract between the Claimant and the Defendant as at time the appointment of the Claimant was terminated. Exh. SO5 is the document of the Defendant known as Conditions of Service. The conditions in same were put together solely by the Defendant. The Claimant was not a part of arrangement leading to the contents of the exhibit. Claimant was meant to only comply with the conditions of service as contained in the exhibit. But compliance with these conditions is not for only the Claimant. The Defendant is also bound by same. Since these conditions form the basis of the employment contractual relationship between the Claimant and the Defendant not only must both sides comply with same, neither of the parties can singlehandedly vary the contents without a concurrent agreement of the other party. I grant this relief as sought. Accordingly, I declare that the Defendant cannot unilaterally deviate or vary the content of its Handbook known as Conditions of Service under any whatever guise and that all the terms and conditions of service remain the existing and binding terms of contract between the Claimant and the Defendant as at time the appointment of the Claimant was terminated.

 

16.       The third relief is for an Order of this Honourable Court directing and or compelling the defendant to pay the Claimant all his accrued entitlements including one month salary in lieu, salary arrears, pension, monthly thrift/co-operative savings, unpaid leave bonuses payments to retirement scheme and gratuity based on his monthly/annual emoluments in the sum of =N=443,561.83 (Four Hundred and Forty Three Thousand, Five Hundred and Sixty One Naira and Eighty Three Kobo).

 

17.       The first relief under this head of claim is a one month salary in lieu of notice of termination of appointment. The appointment of the Claimant was brought to an end by Exh. SO3. It was dated 26/11/18. By its 2^nd paragraph, Claimant was “ … disengaged from the services of the company with immediate effect”. However by Exh. SO1 the Claimant as a confirmed employee of the Defendant is entitled to a month notice or a month salary in lieu of notice of termination of appointment. Accordingly, I find and hold that the Claimant was neither given a month notice nor paid a month salary in lieu of notice. The Defendant is here ordered to pay to the Claimant the sum of Sixteen Thousand Two Hundred and Six Naira (=N=16,206.00) only being one month salary in lieu of notice of termination of employment.

 

18.       The 2^nd relief under this head of claim is for the sum of =N=299,811.00 being salary arrears for 18 and a half months. It is an accepted rule of procedure that parties are bound by their pleadings and that averments in pleadings not supported by evidence goes to no issue. I carefully perused both the 23 paragraph statement of facts and the 26 paragraph witness statement on oath of the Claimant which was adopted in chief by the Claimant on 21/12/22. Except in paragraph 17 of the former and paragraph 18 of the latter no reference was made by the Claimant to issue of salary arrears. For instance between when and when was the Claimant not paid salaries by the Defendant for 18 and a half months as alleged? The claim for arrears of salary is akin to a claim in special damages which is expected to be pleaded and strictly proved. These conditions are not met here. Claimant has not successfully proved his entitlement to any arrears of salary. This head of claim is accordingly refused and dismissed.

 

19.       In much the same vein, the claim for Co-operative savings in the sum of =N=80,000.00is not supported by evidence. How much did the Claimant save into the Cooperative? How did he save the sum? Was the cooperative savings deducted from his monthly salary or he made payments into same on a monthly basis? Is there any Card for entries of payment made? Claimant did not offer answer to any of these valid enquiries. I refuse this head of claim for lack of proof and accordingly dismiss same. Claimant also sought payment of his pension in the sum of =N=22,485.83. I have no evidence before me respecting deductions made for pension and neither is there evidence of Claimant’s Pension Funds Administrator or Claimant’s Pension Fund Account before the Court. The basis for this claim is vague, weak and lacks foundation. I refuse to grant same. I accordingly dismiss it.

 

20.       Claimant also claims entitlement to leave bonus for three years in the sum of =N=25,059.00. This head of claim came up for the first and only time in paragraph 17 of the statement of facts. Same was also reproduced in paragraph 18 of Claimant’s witness deposition of 21/12/22 adopted as evidence in chief. Throughout his evidence in chief Claimant did not lead any evidence as to how he arrived at the sum claimed as leave bonus. For instance, what is his leave bonus per year? It is important that learned Counsel would learn to tie claims of their clients to evidence led rather than leave the Court confronted with bundle of evidence to struggle through the bundle of evidence led and link same to the claims sought. This claim is not proved. I refuse granting it. I dismiss it without hesitation.

5.         Conclusion

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

 

1.         I declare that that there existed a contract of employment between the Claimant and the Defendant by virtue of letter of appointment referenced MNP/PERSCFO/ojo/2014 dated 15^th day of April 2014 and document titled Macmillan Nigeria Publishers Limited Conditions of Service.

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

3.         The Defendant is here ordered to pay to the Claimant the sum of Sixteen Thousand Two Hundred and Six Naira (=N=16,206.00) only being one month salary in lieu of notice of termination of employment.

 

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

 

23.       Judgment is entered accordingly.

 

 

___________________

Hon. Justice J. D. Peters

Presiding