IN THE NATIONAL INDUSTRIAL COURT
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE THIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: …. OCTOBER 2022 SUIT NO: NICN/ABJ/123/2020
BETWEEN
JAMIL AMMA -CLAIMANT
AND
THE REGISTERED TURSTEES OF
ALLIANCE FRANCAISE MAIDUGURI -DEFENDANT
REPRESENTATIONS
I.J Mbatsavdue with him M.P. Anaukyaa Esq for the claimant
Nil for the defendant
1. It is the claimant’s case that he was employed by the defendant on the 1st of October, 1998 and got regularized on 1st January 2000 and has been diligently committed and hard working to an extend that his status as director was confirmed several times by the Ambassador of France to Nigeria and was equally paid monthly salaries and other privileges based on his meritorious service. However, the defendant failed to pay his salaries since August, 2017 for no reason and he was constrained to demand for the payment of his salaries and allowance which have remained unpaid for the past twenty-nine (29) months. He pleaded the Central Bank’s exchange rate between August 2017 – January 2020 to 1125 Euro monthly salary in the below table. He equally averred that in addition to his unpaid salaries, the defendant still owes his arrears of salaries from January 2010 to July 2017. He averred further that his twenty one (21) years entitlement with the defendant comprising of his full monthly salary of 1125 euros plus half of the monthly salary 562.5 Euro per year and multiplied by N350.45 by 21 years which stand at N12,419,071.00 (Twelve Million, Four Hundred and Nineteen Thousand, Seventy One Naira) only is also unpaid .That despite demand for same, the defendant has refused to pay same.
2. It is against this backdrop that Claimant approached this Court vide a General form of complaint dated and filed on 17th June, 2020 subsequently amended on 26th January, 2021 wherein he is praying the Court for the following reliefs;
1. AN ORDER of this Court directing the defendant to pay the claimant the sum of N12,564,270.00 (Twelve Million Five Hundred and Sixty Four Thousand, Two Hundred and Seventy Naira) only. Being salaries for the month of August 2017 to January 2020 and continuing.
2. An Order of the Court directing the defendant to pay the claimant the sum of N11,642,910.00 (Eleven Million, Six Hundred and Forty Two Thousand, Nine Hundred and Ten Naira only) being arrears of rent from 2010 to July, 2017.
3. An Order of Court directing the defendant to pay the claimant sum of N12,419,071.00 (Twelve Million, Four Hundred and Nineteen Thousand , Seventy One Naira Only) being entitlement for the twenty one (21) years of service with the defendant and counting.
4. An Order of Court directing the defendant to pay the claimant sum of N36,626,251.00 (Thirty Six Million, Six Hundred and Twenty Six Thousand, Two Hundred and Fifty One Naira) only being the total sum owned the claimant.
5. Any Order or Orders as the Court may deem fit to make.
3. It is on record that the defendant has failed to enter appearance or represented by a counsel in this case it has equally failed to filed any defence to the claimant’s claim. It is equally on record that when the claimant opened his case, and testified for himself as CW in this case on the 4th November, 2021, by adopting his written statement on Oath as his oral evidence in this case. The documents he tendered were admitted in evidence and marked as Exhibits J-J5 yet again, the defendant did not showed up neither was it represented by a Counsel despite been severally served with the hearing notices through substituted means on 9/11/2021 and received by one Jacob Ndoshana. Consequently, the defendant was foreclosed by the Court from cross examining the claimant. Subsequently, the claimant case was closed and the case adjourned for defence. Similarly, on the next adjourned date for defence, the defendant failed to come as usual consequently upon which the defendant was equally foreclosed from defending this case pursuant to Order 38 Rule 2 (4) and Rule 9 of the NIC Rules and parties were urged by the Court to file their final written addresses respectively.
4. In accordance with the Rules of this Court, learned Counsel on behalf of the claimant filed his final written address 16/02/2022 therein formulated a sole issue for the Court determination thus.
“Whether the claimant has proved his claim to be entitled to the reliefs sought”
5. Learned Counsel to the claimant submitted that the law is settled that in civil proceedings, that the burden of proof is discharge on the balance of probabilities pursuant to section 131-134 of the Evidence Act. 2011.He relied on the following cases -Maigoro v. Bashir & Anor ]2000] 11 NWLR (Pt. 679) 453; Are v. Adisa & Anor [1967] 5 NSCC 168; Jwan v Ecobank [2021] NWLR (Pt. 1785) 449. He equally submitted that where an employee alleges a breach of terms of contract of employment, he has a duty to plead the said terms of employment and further demonstrate to the satisfaction of the Court the beach in support of which he cited the case of Ibama v. S.P.D.C [2005] All FWLR (Pt. 287) 832 @ 843,Paras B-F. he noted that in proving his case tendered exhibit J which embodies the terms and conditions of his employment, he equally noted that paragraphs 10,11,12 and 13 of his pleading demonstrate evidence of the breach, he continued that entitlement to salaries and allowances which exhibit J3(payment slip) confirms his basic monthly salary he is entitled to. He submitted that the claimant has successfully proved the terms of his employment with the defendant and also shows how the said terms were breached and as such entitled to his claim.
6. Learned Counsel submitted that in addition to his salaries which remained unpaid, the defendant also owes him arrears of salaries from 2010 to July 2017. He submitted that though there were differences occasioned in the exchange rate between the Naira and Euros from 2010 to date, the claimant’s salary still remained at 1125 Euros which is equivalent of 155,000.00 Naira from 2010 to July 2017 without any increase in Naira payment to reflect the changes in exchange rate which cumulatively left behind the unpaid arrears of salaries. It is his position that the fall in the value of the Naira against the Euros in the period under review presupposes an upward increase in the Naira equivalent in salary in order to adequately reflect the changes in the exchange rate which is evinced in exhibit J3 (salary payment slip). He submitted that this claim has been adequately proved and urged the Court to grant same.
7. Learned Counsel also submitted that the payment of the N12,419,071.00 being Claimant’s entitlement for the 21years of service with the defendant for his meritorious service is supported by oral and documentary evidence. He submitted that documentary evidence serves as a hanger to test oral evidence while relying on the case of Kimday v. Military Governor of Gongola State [1988] 2 NWLR (Pt. 77) 445. He noted that the defendant deliberately stayed away from defending this case despite the service of the originating processes on them as well as hearing notices alongside proceeding of the Court, but they chose to stay away, he continued that the fact that a suit is not defended does not automatically guarantee victory in favour of the claimant as the satisfaction of Court but however, the requirement of proof in such a case is minimal. Learned counsel maintained that the defendant having failed to defend the claimant’s action is therefore deemed to have admitted the claims as contained in the originating processes, he noted that it is the law that facts not challenged are deemed admitted. He relied on the case of Okoebor v. Police Council [2003] 12 NWLR (Pt. 834) 444 @ 472-473 and; Military Gov. of Lagos State & Ors v. Adeyiga & Ors [2012]5NWLR (Pt 1293)291@331-332. Conclusively, learned Counsel submitted that the claimant has successfully proved his case on the balance of probabilities as required by law and urged the Court treat the claimant’s claim in the affirmative. In conclusion, Counsel submitted that the claimant has moved his case and in the absence of any defence nor evidence from the defendant, he urged Court to grant the claimant’s reliefs as prayed.
8. I have carefully examined all the processes filed by the claimant as well as the documents tendered, it is in my considered view that the vexed issue begging for the Court’s intervention and determination is ;
“Whether or not the claimant has proven his case to be entitled to the reliefs sought”
9. Before going into the merits of this case, let me also address a cogent issue that touches on the jurisdiction of this Court to entertain this case. It is well settled that service of originating process is a condition precedent to the exercise of jurisdiction by a Court. See the following cases; Ezim v. Menakaya [2018]9NWLR (Pt 1623)113@131, Paras F-H (SC); Okon & Anor v. Field Bird (Co-op) Ltd & Anor [2017]LPELR-43607(CA)1@3-4, Para F and; Okolo & Ors v. Nwafor &Anor [2016]LPELR-41534(CA)1@19, Paras D-D. It is noteworthy that the defendant in this case was served with the amended originating process and other accompanying processes in this case on the 22nd day of February, 2021 by courier as seen on pages 157-163 of the Records. It was also served several hearing notices in this case as seen on the records of the Court. However, for reasons best known to it, it refused to appear or cause an appearance to be entered for it in this matter. It is the view of this Court that the Court can exercise its jurisdiction to entertain this action in their absence since it is on record that it was served.
10. It is important to note that the defendant never appeared in Court even after it was served severally the Court processes and hearing notice pursuant to which this Court ruled on the 24th day of November, 2021 that it has been foreclosed from cross examining Claimant. The law is settled that a defendant who failed to file a statement of defence is entitled to a hearing before the Court even though he cannot lead evidence. The only legal effect in that circumstance is that the defendant is deemed to have forfeited his right to first address the Court. However, he can rely on a point of law arising from the statement of claim/facts without necessarily filing pleading and adducing evidence. He may rest on the claimant’s case and simply wish to address the Court on the issues raised in the claimant’s case. In fact, such a defendant still has a right to address the Court at the stage of final address. In the case of INEC & Anor v. Benjamin & Anor [2019]LPELR-(CA)1@13-15, Para F, the Court of Appeal per Yakubu JCA held inter alia thus; “The decisions of this Court in Faladu v. Kwoi [2003] 9 NWLR (Pt.826) 643 and Onigha Onah v. Chief Linus E. Okom[2012] 8 NWLR (pt.1301) 169, relied upon by the Appellants' learned counsel, are to the effect that where a defendant failed to file his pleadings in any matter, he is still entitled to a hearing. He may even elect to rest its case on the plaintiff's case and address the Court on the issues raised in the plaintiff's case. He cannot be shut out of the case because he failed to file his pleadings. That is the position of the law. See also the following cases; Sterling Bank v. Oyoyo [2018]LPELR-46748(CA)1@30-31, Paras D-D; Majekodunmi & Ors v. Ogunseye [2017] LPELR-42547 (CA) 1@16-19, Para G and; Mainstreet Bank v. Yau [2015] LPELR-24657(CA) 1 @ 10, Para B. However, the defendant on its own accord still failed to appear in Court to exercise the above right given him under the law. As such, only Claimant was heard by the Court. It is the light of the above facts and circumstances that this Court will only consider this case based on the facts put forward by the Claimant.
11. Ordinarily, the position of the law is that the effect of the failure of a defendant to file pleadings is that the assertions of the claimant in his pleading stand unchallenged and are deemed admitted and established. See the case of Consolidated Resources Ltd v. Abofar Ventures (Nig) Ltd [2007] 6NWLR (Pt.1030) 221 and Omale v. Federal Ministry of Lands, Housing and Urban Development & Ors [2015] LPELR-4347 (CA) 1 @ 14-15. However, the Court is mindful of the fact that the claimant’s reliefs as pleaded in his General form of complaint, are monetary reliefs. Monetary claims fall in the realm of special damages which must be specifically pleaded and proved and as such cannot be granted on mere admissions. In the case of Arab Construction Ltd & Anor v. Isaac [2012]LPELR-9787(CA)1@20, Para A, the Court of Appeal per Garba JCA when considering if special damages may be awarded in the absence of defence held thus; “As may be recalled, the only reason given by the High Court was that the Appellants were deemed to have admitted the claim since they did not appear or file a statement of defence. However on whether a claim for special damages will succeed based on admission, the Supreme Court in the very recent case of NNPC v. CLIFCO NIG. LTD. (2011) 4 MJSC 142 at 174 had held that:- "A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357." Put simply, the statement of the law above by apex court is that because special damages are exceptional and specific, they will not succeed and be granted as a matter of course, merely on admission, express or otherwise, even where pleaded as required by the law.” (Emphasis mine) This explains why it was expedient that the Claimant proves his entitlement of the monetary claims sought which are in the realms of special damages even in the absence of a defence
12. Claimant vide his relief one claims for the sum of N12,564,270 (twelve million, five hundred and sixty four thousand two hundred and seventy naira) only being arrears of his salary for the month of August 2017 to February, 2020. Claimant averred facts relating to this claim in several paragraphs of his statement of facts. Specifically, Claimant vide paragraph 11 of his statement of facts averred that his salaries have remained unpaid for the past 29 months that is August 2017 to January 2020. In the case of Alao v. Vice Chancellor Unilorin [2008]1 NWLR (Pt 1069)421@466, Paras F-G, the appellate Court held that claims for salaries, emoluments, allowances and other benefits accruing to an office are in the nature of special damages. Claimant gave particulars of the said sum of N12, 564, 270 claimed as arrears of salaries at the monthly salary of 1125 Euro. As is expected in claims for monetary sums which are in the realms of special damages, strict proof is required and merely pleading particulars will not suffice as proving same. See the following cases; Oteri Holdings Ltd v. H.B. Co Ltd [2021] 1 NWLR (Pt 1756)29@80, Paras C-E; Ajigbotosho v. RCC [2018]LPELR-44774(SC) and; Access Bank Plc v. Vicapek Intl Ltd & Anor [2016]LPELR-41262(CA)1@33-34, Para G. Claimant in support of this tenders Exhibit J3 and Exhibit J5 together with its certificate of compliance. Exhibit J3 contains two documents, one is a document in a language other than the language of the Court while the other is an English translation.
13. It is trite that the language of the Court is English language and every document sought to be used or tendered or used in Court must be in that language hence the need to have English translated versions of document written in another language before the Court as both go hand in hand. See the following cases; Olaolu v. FRN [2016]3NWLR (Pt 1498)133@152, Paras F-G; Ogidi v. State [2005]5NWLR (Pt 918)286@330, Paras D-F and; Damina v. State[1995] 8 NWLR( Pt 415) 513 @539-540 Para A-D . Where the translated version is not in Court, the Court would be denied of the opportunity to evaluate and examine same as the Court can not rely on the one recorded in a language other than the language of the Court even though it is admissible. The document ought to be translated by the party who seeks to use same. However, where such a party fails or omits to translate same, superior Courts has a duty to cause the document to be translated by the official interpreter of the Court. Pronouncing on this principle, the Supreme Court, per Iguh JSC held, in Ojengbede v. Esan [2001] 18 NWLR (Pt 746) 771@790 Paras A-B, as follows; “There can be no doubt that the official language of superior Courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.” (Emphasis mine)See also the case of Usman v. State [2022]12 NWLR (Pt 1843)@199, Para H, 200-201, Paras D-A. In the instant case it was the Claimant who produced the translated version of the document and not the official interpreter of the Court. It is important to note that beyond just tendering the English translation it is important for the interpreter to be brought before the Court or called as a witness to tender the said translation in order to test the veracity of the said translation. See the case of Olanipekun v. State [2016]13 NWLR (Pt 1528)100@117, Paras C-F(SC). See also the dictum of Nweze JCA (now JSC) in the case of South African Airways v. Obi [2013]LPELR-40642(CA)1@26-28, Para D. The translated version in this case was merely tendered as part of the bundle of documents through Claimant and it was never stated that Claimant was the interpreter of the document. In fact, there is no signature on the interpreted version to ascribe it to a particular identifiable interpreter or maker not to talk of the particular maker or interpreter being called in evidence. Although it is not compulsory for the English translation to be signed by the maker/interpreter though desirable, it is nonetheless compulsory that its maker be called to testify as to the veracity of the translation failing which it will be regarded as documentary hearsay. In the case of Tasiu (ATS ) v. Sammani 2019]LPELR-49189(CA)1@11-12, Para F, the Court of Appeal per Daniel- Kalio JCA had this to say about documentary hearsay; “A document is not hearsay if it is tendered for the purpose of proving that the statement in it was actually made. If on the other hand, the document is tendered for the purpose of proving the truth of the statement in it, it is documentary hearsay unless the person making it is called to testify. See article titled "Documentary Hearsay, the scope of Queensland Evidence Act" by L. A. Wilson in the QLD Institute of Technology Law Journal.”(Emphasis mine). The translated version was not tendered to show that that there is actually a translation but to show that what is contained therein is the true and correct translation of the original document written in a language other than the language of the Court hence it is documentary hearsay unless the maker/ interpreter is called to testify as to the veracity of the translation else it would be taken as documentary hearsay. This is because its content would be taken as speculative in the absence of its maker being called to testify as to the veracity of the translation. The apex Court in the case of State v. Usman [2021]16 NWLR (Pt 1801)73@93-94, Paras H-C held inter alia that where the interpreter of an extra judicial statement is not brought to Court as a witness to testify as to the veracity of the translation being the true and correct version of the original, the translation is in law nothing more than documentary hearsay and inadmissible. In view of the above I find that the purported translated version of the said document which is part of Exhibit J3 is inadmissible, unreliable and thus discountenanced.
14. Be that as it may, Claimant equally relied on Exhibit J5 which is a computer generated evidence of the Central Bank of Nigeria Exchange rate. I have perused the said Exhibit and find that it contains details of the Exchange rate of the CBN spanning over the period of 2017-2020 in dispute specifically showing the exchange rate between euro and naira within the period in dispute. However, it is worthy of note that the only document before the Court in support of Claimant’s claim to the sum of 1125 Euro as monthly salary is the original document recorded in a language other than that of the Court having discountenanced the translated version for reasons given above. In the case of Darma v. Batagarawa [2002] 17 NWLR (Pt.796) 243, it was held as follows: “The Court cannot admit and rely on a document written in a language other than the official language of the Court which, in the instant case is English. The language of all Courts of record in this country is English. The Court cannot use its own knowledge of the language to engage in the translation of the document without compromising its own position as an arbiter by playing the dual role of a judge and a witness whose evidence or view of the content of the document had not been brought out and subjected to forensic test of cross-examination in open Court. See also Mamman v. State [2017]LPELR-43188(CA). In essence, a Court cannot rely on an untranslated version of a document recorded in a language other than the official language of the Court even if the Court has the knowledge of the said language. This cannot be dispensed with even the judge understands the foreign language used in making the said document as the judge cannot play the dual role of a judge and a witness. In the instant case since the only copy before the Court having discountenanced the translated version is the one in foreign language, same is not reliable before this Court. As reasoned supra, special damages like in this instant will only succeed on strict proof. Although Claimant had particularized his claim in paragraph 11 of the statement of facts, there is lack of proof for the sum of 1125 Euro pleaded as his monthly salary. I say so in view of the fact that Exhibit J3 which is not in the language of the Court is not reliable and Exhibit J which is contract document does not equally reflect this sum. In the absence of credible documentary evidence, the assertion made by Claimant that his monthly salary is 1125 Euro is in the realm of speculation and conjecture. Claimant has not successfully proven that the sum of 1125 Euro used in the particularization and calculation as his monthly salary is clearly his monthly salary. Claimant ought to have proven the said sum of 1125 Euro as his monthly salary with exactitude. In the absence of any credible and reliable proof, same is a mere conjecture. A claim founded on mere conjecture is clearly an invitation to the Court to descend to the realm of conjecture and thereby producing an order that is uncertain in terms; and that is not a hallmark of judicial order. In view of the above, I am unable to grant Claimant’s relief 1.
15. Now let me address relief two in the General Form of Complaint. Let me first say that Claimant vide relief 2 in the General Form of Complaint claims for the sum N11, 642,910 (Eleven Million, Six hundred and forty two thousand, Nine Hundred and ten naira being arrears of salaries from 2010 to July, 2017. However in in relief 2 in the Statement of facts claims for the sum N11, 642,910 (Eleven Million, Six hundred and forty two thousand, Nine Hundred and ten naira being arrears of rent from 2010 to July, 2017. Although the sums claimed in both reliefs are the same, however, ‘arrears of salaries’ is what is being claimed in relief 2 in the General Form of Complaint while what is being claimed in relief 2 in the statement of facts is arrears of rent. It would be agreed that ‘arrears of salaries’ and ‘arrears of rent’ are different and distinct from each other. It is an established principle that the Statement of claim (herein as statement of facts) supersedes the Writ (herein as the General Form of Complaint). See the following cases; Salisu v. Mobolaji [2016] 15 NWLR (Pt 1535)242@290, Paras B-E; Onyero v. Nwadike [2011]18 NWLR (Pt 1279)954@967, Paras F-G, 970, Paras E-F (SC) and; Offoboche v. Ogoja LG [2001]16 NWLR (Pt 739)458@484, Para C (SC). As such where there two different or distinct reliefs in the General Form of Complaint and the Statement of Facts, it is the one in the Statement of facts that should be considered. Thus, I will consider the relief two of the statement of facts wherein claimant claims for the sum N11, 642,910 (Eleven Million, Six hundred and forty two thousand, Nine Hundred and ten naira being arrears of rent from 2010 to July, 2017
16. I have perused the Claimant’s statement of facts paragraph by paragraph with the finery of a toothcomb and I cannot find anywhere Claimant pleaded facts relating to being owed the said sum as arrears of rent from 2010 to July 2017 as is claimed in relief 2. Claimant merely averred vide paragraph 12 of his statement of facts that he is being owed arrears of salaries from January 2010 to July, 2017 and gave a breakdown of the arrears of salaries. Although the sums averred in paragraph 12 of the statement of facts is the same as the sum claimed in relief 2, however, arrears of salaries is what is being referred to in paragraph 12 of the statement of facts while what is being claimed in relief two is arrears of rent. Thus, paragraph 12 of the statement of facts can not support relief 2. Be that as it may, it must be understood that relief sought in a statement of claim/facts does not constitute facts averred in the pleading as the reliefs claimed in a suit must be based on substantive averments of facts in the body of the pleadings. Where reliefs claimed in a suit are not based on pleaded facts, they are baseless and go to naught. See the case of Trade Bank Plc v. Pharmatek Ind. P. Ltd [2020] 8 NWLR (Pt 1725)124@169, Paras D-F, 170, Paras G-H, 177, Paras A-D. There is fact in support of relief two in the statement of facts and as such same cannot fly. Accordingly relief two is refused.
17. Claimant vide relief 3 claims the sum of N12, 419, 071.00 Twelve Million, Four Hundred and Nineteen Thousand, Seventy One Naira) only being entitlement for the twenty one (21) years of service with the defendant and counting. Claimant averred facts relating to this relief in paragraph 13 of the statement of facts and also supported his claim with the contract of employment herein as Exhibit J. I have perused the said Exhibit J and I find that clause 4 in the said Exhibit provides for Severance benefit thus;
4. SEVERANCE/RESIGNATION/RETIREMENT PAY
In case of lay-off (due to staff reduction), resignation or retirement, the Employee is entitled to a pay of which the amount will depend on his /her length of service.
-service from 1 to 10 years ¨a pay equivalent to half his/her last monthly basic salary multiplied by the number of years of service
-service above 10 years and up to 20 years a pay equivalent too his/her last monthly basic salary multiplied by the number of years of service
-service above 20 years ¨a pay equivalent to one and a half his/her last monthly basic salary multiplied by the number of years of service and this as a reward for uninterrupted and meritorious service.
18. In the case of Keystone Bank Ltd v. Clarke [2020] LPELR-49732 (CA) 24, Para A, the Court per Nimpar JCA, quoted with approval the decision in Olaniyan & Ors v. Unilag & Anor [1985] LPELR-2565 (SC) that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of the Court in such instance is to interpret the terms of contract of the parties and give effect to it. See also the case of Oforishe v. Nigerian Gas Co Ltd [2017] LPELR-42766 (SC)and; Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547. It is trite that document speak for itself and the Court cannot infer an intention different from the word used. See the cases of Asuquo &Anor v. Omole & Anor [2019] LPELR-47867 (CA)1@41, Para A; Ikemefuna &Ors v. Ilondior& Ors [2018] LPELR- 44840 (CA)1@18, Para D and; Ogbonna v. AG Imo State [1992] LPELR-2287(SC)1 @60, Para E. It is clear on the face of the said document that the at the point of the determination of the employment whether by termination of by retirement or resignation, the employee would be entitled to severance benefits depending on the years of service. Thus, the said employee will only be entitled to the said benefit at the severance of the employment relationship. It is clear from the said Exhibit J3 that any employee who has spent more than 20 years will be entitled to a severance pay equivalent to one and a half his/her last monthly basic salary multiplied by the number of years of service spent.
19. Claimant in the instant case by his relief 3 is asking for his severance pay for 21 years of service and still counting. What this presuppose is that Claimant is saying his service is still counting that is he is still in service. If Claimant is still in service how then can he be asking for severance pay when the employment relationship is still subsisting? Besides, Claimant neither averred that he has resigned his employment nor that the employment has been terminated. In the same vein, neither did he tender any evidence before the Court to evince severance of the employment relationship. He also has not asked the Court to severe the employment relationship or determine the status of the employment relationship between parties vide a declaration to that effect. In essence, if Claimant by relief 3 is claiming for severance pay in respect of years of service that is still counting then it means that he is still in employment and can not be asking for severance pay until the employment relationship has been severed as Exhibit J is clear as regards to when severance pay would be paid. It must also be borne in mind that I have reasoned supra that Claimant in this case has not justified that his monthly salary which is equally what will be used in calculating the said severance pay in line with Exhibit J is actually 1125 Euro as averred in paragraph 11 of the statement of facts. It is clear from the foregoing that relief 3 for severance pay will only suffer the same fate just like the two previous reliefs notwithstanding the fact that Claimant may be entitled or qualified to be paid. It is in the light of this that I will also refuse relief 3.
20. Now to relief 4. It is a well-established principle of our law that where the main claim has failed, the ancillary reliefs cannot succeed. See the following cases-Fafunwa v. Bellview Travels Ltd [2013] LPELR-20800 (CA)1@18-19, Para F and; Nsugbe v. Nkobi [2012] LPELR-24481(CA)1@30-31, Para E. The main claims being reliefs 1, 2 and 3 having failed, relief 4 which is ancillary for being the addition of all the sums claimed in reliefs 1, 2 and 3 must equally fail.
21. Judgment is accordingly entered.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge