IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 10TH DAY OF MARCH, 2023
SUIT NO: NICN/LA/23/2020
BETWEEN:-
MR. QUADRY WAHEED ADENRELE - CLAIMANT
AND
1. LAGOS STATE GOVERNMENT
2. ATTORNEY GENERAL OF LAGOS STATE
3. MINISTRY OF EDUCATION, DISTRICT IV, LAGOS STATE
4. TUTOR GENERAL MINISTRY OF EDUCATION DISTRICT IV
5. LAGOS STATE POST PRIMARY TEACHING SERVICE COMMISSION
6. CHAIRMAN LAGOS STATE POST PRIMARY TEACHING SERVICE COMMISSION
7. LONGFORD INTERNATIONAL SCHOOL FORMERLY KNOWN AS AGO-EGBA HIGH SCHOOL
8. LAGOS STATE GOVERNMENT BIRREL AVENUE SENIOR HIGH SCHOOL
9. LAGOS STATE GOVERNMENT COMMUNITY SENIOR HIGH SCHOOL
10. LAGOS STATE GOVERNMENT GBAJA GIRLS' SENIOR HIGH SCHOOL
- DEFENDANTS
REPRESENTATION
Dr. M. O. Ubani for the Claimant
Bamidele Adaramewa for the Defendants
JUDGMENT
The Claimant commenced this suit by way of Complaint and other accompanying processes filed on 23/1/2020.
From the pleadings filed by the Claimant, he was employed by the 1st Defendant sometime in 1990 and served diligently for 35 years and retired in November, 2014. That he was a Biology Teacher with the 1st Defendant and had served as HOD Sciences in different Schools while in the employment of the 1st Defendant. According to the Claimant, he was entitled to some Allowances which were not paid to him for performing Special Additional duties as HOD Sciences while also performing his enormous primary duties as a Biology Teacher in those schools.
That his claim for Allowances regarding performing special additional duties is contained in the 1st Defendant's Hand Book of 2003 and the said Allowances have remained unpaid despite repeated demands.
Claimant in his Statement of facts has asked for the following reliefs against the Defendants:
1. A DECLARATION that the Claimant's benefits and or entitlements being Allowances for serving as HOD Sciences and for Teaching special subject in the Defendants' Schools while in the employment of the 1st Defendant have not been paid as deserved as same have been withheld by the Defendants who have ignored, neglected and or refused to pay the said benefits/entitlements being Allowances due to the claimant herein as HOD Sciences at different times in different Defendants' Schools and for Teaching special subject despite repeated demands up till the time of this action in this court.
2. AN ORDER directing the 1st to 7th Defendants to adhere strictly to their Conditions of service with the Claimant as agreed and as contained in the 1st Defendant's Hand Book regarding Staff Allowances for members who worked in special Areas, who taught special subjects and or who performed special additional duties as the Claimant did as HOD Sciences in the following subjects, namely: Physics, Chemistry, Biology, Mathematics, Agricultural Science, Foods and Nutrition, Computer Science, Eko Science projects including LAWMA, JETS Club activities and as a Biology Teacher in dual capacities while in the employment of the 1st Defendant as a Biology Teacher.
3. AN ORDER directing the 1st to 7th Defendants to immediately pay the Claimant for all his benefits and entitlements being Allowances due to the Claimant as the HOD Sciences and for Teaching special subject as at when due as agreed and contained in the said conditions of service having served the defendants variously and meritoriously without blemishes.
4. AN ORDER directing the Defendants to immediately pay the claimant the sum of N12,940,000.00 for his additional special duties as HOD Sciences in Acting capacity as at 7th Oct., 1997 whilst in Ago-Egba High School, Kano Street, E/B Lagos on GL 10-12 till 6/1/2002, when he was subsequently confirmed as full-fledged HOD Sciences upon transfer to Birrel Avenue Senior High School, Sabo. Yaba i.e.
PARTICULARS OF ALLOWANCES
a. The sum of N40,000/month x50months (4years 2months) =N2,000,000.00 From 7th Oct.1997-6th Jan, 2002 as Acting HOD Sciences on GL 10-12 at AGO-EGBA High School now known as LONGFORD INTERNATIONAL SCHOOL.
b. The sum of = 60,000/month x 57months =N43,420,000.00 from 6/1/2002-18/10/2006 as HOD Sciences at Birrel Avenue Snr. High School, Sabo Yaba on GL 12-14.
c. The sum of = 70,000/month x 24months=1,680,000.00 from 19th Oct., 2006-16th Oct., 2008 as HOD Sciences at Community Snr, High School, Tafawa Balewa Crescent, Surulere on GL 14-15.
d. The sum of =N80,000/monthx73months=5,840,000.00 from 16th Oct., 2008-24th Nov., 2014 as HOD Sciences at Gbaja Girls' Snr. High School, Surulere on GL 15-16.
Total sum of Allowances = N2,000,000 + N3,420,000 + N1,680,000+ N5,840,000 =N12,940,000.00
e. 10% interest on the said total sum of Allowances due to the claimant as HOD Sciences and Teaching special subject from inception till judgment and 5% interest on the Judgment sum until the total indebtedness is fully liquidated.
f. N2,000,000 :00 (Two Million Naira) only as General damages for the undue hardship, undue delay, blatant refusal to pay and psychological trauma the Claimant has been through as a result of the prolonged delay to pay the Allowances stated herein.
g. Cost of action as may be assessed by this Court.
Total Claims=N12,940,000.00"
The Defendants in reaction to the Claimant’s suit entered appearance and filed their Statement of Defence by leave of court granted on 5/7/2021.
It is the Defendants’ case that the Claimant was appointed as a Master Grade II teacher in 1990, confirmed in 1992 and retired from service on 24th November, 2014. That the schedule of duties of Education Officer Cadre include among others; heading a department in a school or college.
The Defendants state that the Claimant was paid Consolidated Teachers Salary till his retirement from service and he at no point complained of not being paid emolument while in service as Head of Department Sciences.
That the Claimant’s appointment letter bears a portion that states that his duties shall include teaching and any other suitable duties which the Teaching Service Commission may call upon him to perform and that there is no special allowance attached to additional duties as Head of Department Science as stipulated in the Teachers’ Handbook of 2003 or any other Handbook.
According to the Defendants, Paragraphs 3.5.1(a) to (g) of the Handbook indicate those entitled to special allowances which do not include Heads of Department.
TRIAL
In trying to prove his case, the Claimant on 3rd November, 2021 testified as CW1. He adopted his witness statement on oath dated 23rd January, 2021 and tendered Exhibits QW1 to QW16.
Claimant was then cross-examined and re-examined and thereafter discharged.
At the close of the case of the Claimant, the Defendants opened their case by calling their sole witness Mr. Aluko Akindele Michael(DW1). He adopted his witness statement on oath dated 24th February, 2020 as his evidence in chief. DW1 was cross examined by the learned Counsel for the Claimant and as there was no re-examination, the case of the defendants was closed and the matter was adjourned for adoption of final written addresses.
DEFENDANTS’ FINAL WRITTEN ADDRESS.
Defendants' final written address dated and filed on 30/3/2022 contains one issue for determination to wit;
"Whether the Claimant is entitled to special allowances for performing additional duties as Head of Department, Science while in the Service of Lagos State Government."
Learned Counsel submitted that a Contract of employment means any agreement whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That the employment of Lagos State Public Servants is governed by the provisions of the Public Service Rules 2015.
It is the submission of counsel that the Lagos State Public Service Rules, 2015 would apply to all Officers/Public Servants except where they conflict with specific terms approved by the State Government and written into the contract of employment or letters of appointment and also not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria or the Laws of Lagos State in so far as the Conditions of service and any other law applicable to these officers are concerned.
Counsel submitted that in the instant case, the Claimant was employed by the 1st Defendant via a letter of Appointment dated 7th June, 1990(Exhibit QW1a) as a Biology Teacher and the Claimant read and understood the content of the Letter of Appointment and accepted same and was issued with Oracle No. 17818.
That the terms and conditions of the Claimant's appointment shall be regulated by his Letter of Appointment which specifically binds his Contract of Employment, the Staff Hand Book issued to him at Teaching Service Commission as well as the Public Service Rules, 2015.
Counsel submitted that a Letter of Appointment is a legal and official document issued by an Organization to a qualified and selected candidates offering a job and employment within the Organization. It goes into enormous detail of what is predictable of the new employees and the role they play in the Organization.
Counsel referred the court to paragraph 3 of the Letter of Appointment (Exhibit QW 1a) which state that:
“Your duties shall include teaching and any other suitable duties which the Teaching Service Commission may call upon you to perform".
It is the submission of counsel that the Claimant, having admitted that he read and understood the content of the Letter of Appointment (Exhibit Qw1a) and accepted same, then he is presumed to have known that the conditions in the letter of appointment were meant to regulate his employment with the Defendants.
That the contents of the Letter of Appointment given to the Claimant by the Defendant contained clear and unambiguous and indeed specific terms and conditions which can stand independent of any provision provided in the staff handbook or any other document regulating the employment of the Claimant. Citing the case of Union Bank of Nigeria Plc. vs. Emmanuel Aderewaju Soares (2012) 11 NWLR Pt. 1312 Pg. 571 B-C.
It was further submitted that parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous and the only duty of the court is to interpret those clauses written in the contractual document which is the pivot bedrock or foundation of the Claimant's contract of employment, and upon which the employee must base any incidental case. Citing also the case of Archbishop Olubunmi Okogie & Ors. vs. Mrs.Margaret Epoyun (2010) 11 NWLR (Pt. 1206) Pg.479.
Counsel submitted that the Court should give recognition to the ordinary meaning/interpretation of the content/clauses of the letter of appointment (Exhibit QW1a) which forms part of the documents the Claimant tendered as his basis for employment in this case. That having therefore taken benefit of the said (Exhibit QW1a), the Claimant cannot resile therefrom, or claim the non-existence thereof. Citing the case of A. G. Rivers State vs. A. G. Akwa Ibom State (2011) 29 WRN 1 at 161-162.
Counsel therefore urged the Court to hold that the letter of appointment regulates the Claimant's employment with the Defendant and the Claimant is bound by the terms and conditions contained therein. Referring to the case of A. G. Ferrerro & Co. Ltd. vs. H. C. (Nig.) Ltd .(2011) 13 NWLR (Pt. 1265) 592.
Counsel submitted that a Staff Hand Book is a body of rules or contract which regulates the internal affairs of an Organization as well as its relationship with its employees. It's intended to give every employee the basic information about the employer's work place and the general conditions of service. It can also be regarded as a body of rules that sets down the rules and regulations guiding employees.
It is the submission of counsel that the role of Head of Department is an integral part of an Officer's duties as a staff on managerial level. That the Head of Department provides strong academic leadership and he is required to lead, manage and develop the department to ensure it achieves the highest possible standards of excellence in all its activities.
That the Staff Hand Book (Exhibit Qw6) given to the Claimant by the Defendant is clear and unambiguous and indeed specified those entitled to special allowances. Counsel referred the Court to paragraph 3.5.1 (a) to (g) of the Teachers Hand Book, 2003.
It was contended that there is nowhere in any of the paragraphs of the said Hand Book where it was written that Head of Department is entitled to payment of special allowances.
Counsel submitted that the Claimant during trial, gave evidence and admitted that he has gone through the Hand Book and there is no HOD Sciences specified in the Hand Book as those entitled to special allowances but it is a special duty. That, It goes without saying that the Claimant must be bound by the content of the Handbook.
That the onus is on the Claimant to show that he is entitled to the special allowances as HOD Sciences in accordance with paragraphs 3.5.1 and 3.5.2 of the Teachers Hand Book. Citing Sections 131 and 132 of the Evidence Act.
Counsel referred the court to paragraphs 11,15,16,18,19,20,21 and 22 of the Defendants' Written Statement on Oath to submit that the Defendants led evidence to establish that the Claimant is not entitled to special allowances as HOD Sciences.
It was contended that in all the documents tendered by the Claimant before this Court, no single document supports his claim or that it was written in any of the documents tendered that Head of Department Sciences shall be entitled to the special allowances.
Learned Counsel submitted that the Claimant did not tender any document indicating that special allowances were paid to any HODs in other departments nor did he tender any statement of account or pay slip to show that other HODs were being paid special allowances except him. Citing the case of Jinadu vs. Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142 at 180
Counsel also referred to the Supreme Court case of Edeani Nwavu & Ors. vs. Chief Patrick Okoye & Ors. (2008) 18 NWLR (Pt. 1118) Pg. 29 at 61,
Counsel submitted that mere verbal demand of such payment of the said special allowances without backing it up with cogent and credible documents authenticates the credibility of DW1's evidence who testified that the Claimant did not put forward his grievances during his service with the State Government.
Learned counsel also submitted that assuming without conceding that the Claimant is entitled to special allowances as HOD Sciences, paragraph 3.5.2 of Exhibit QW6 makes a mandatory requirement on the method of applying for such allowances which the Claimant failed to do. Counsel cited the case of Achineku vs Ishagba (1988) 4 NWLR (Pt 89), 411.
Counsel submitted that there is no single documentary evidence provided by the Claimant before this Court to show that he actually applied for this special allowances in accordance with the provision of paragraph 3.5.2 of the Teachers Hand Book while in the service of the Lagos State Government. That he admitted during trial that he did not apply but demanded verbally which is contrary to the provision of paragraph 3.5.2 of the Teachers Hand Book. (Exhibit QW6).
Counsel noted that the first time the Claimant demanded for the payment of this special allowances officially was through his Solicitor's letter dated 13th June, 2017, three (3) years after his retirement from service and same was addressed to the Governor of Lagos State contrary to the provision of paragraph 3.5.2 of the Teachers Hand Book and in response to the said Letter, the State Government through the Ministry of Establishments, Training and Pensions adequately replied via a letter dated 7th September, 2017 informing the Claimant that there was no special allowance attached to additional responsibility as Head of Department. Exhibits QW7 and QW8 were cited in aid.
Learned Counsel submitted that where evidence is uncontroverted, unchallenged and credible, it ought to be accepted. Citing the case of Military Governor of Lagos State & Ors. vs. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291 at 331-332.
Counsel further submitted that if a party fails to lead evidence in support of averments in the Statement of Facts, the averments will be deemed abandoned. In other words, facts not supported by evidence will be discountenanced by the Court. Citing the case of ADAMU VS SHIFA PLASTIC INDUSTRY CO. LTD. Unreported Judgment in Suit No. NIC/26/2008 delivered on 13h March,2012, KANU VS A.G. CROSS RIVER STATE. Unreported Judgment in Suit No. NIC/CA/39/2012 delivered on 13th March, 2013.
It is the submission of counsel that a Defendant is not expected to assist a Claimant to prove his case but the Claimant must prove his case on the strength of his evidence, not failings on the Defendants. Citing the case of AJAMOBE VS PRINCE OF PRINTS LTD. Unreported Judgment in Suit No. NIC/LA/351/2012 delivered on 16th July, 2013.
CLAIMANT’S FINAL WRITTEN ADDRESS
Claimant's final written address is dated 13th April, 2022 and filed on 19th April, 2022. The final written address contains a sole issue for determination to wit;
"Whether the Claimant who was employed as a Biology Teacher by the 1st Defendant is not entitled to Allowances as a Biology Teacher and for Performing Additional/Special Duties as HOD Sciences in the Schools of the 1st, 7th to 10th Defendants."
Learned Counsel submitted that Exhibits QW1a and QW6 constitute a legally binding contract of employment between the Claimant and the 1st Defendant in this case and that the two Exhibits herein ought to and must be read together while interpreting the terms and conditions of the Claimant's employment with the 1st Defendant.
That there is significant evidence such that a reasonable person would have believed in the promises made by the 1st Defendant in paragraphs 3.5.1 and 3.5.1(a) at page 25 of Exhibit QW6.
Counsel submitted that the Claimant's evidence vis-à-vis Exhibits QW1 and QW6 is very clear, concise and instructive to show that a binding contract of employment exists between the Claimant and the 1st Defendant on one hand and indeed all other Defendants in this case on the other hand. That the binding nature of such contract is clearly illustrated by the Supreme Court in the case of UBN v. Ajagbule [2011] 12 (Pt. 11) MJSC 160 at para. 6.
Counsel also submitted that, it logically follows therefore that Exhibits QW1a and QW6 are contractually binding and form part of the contract of employment.
It was stated by counsel that it is a hallowed principle of law that any rule, express or implied that is part of an employee's conditions of service is a contract term including the general duty to obey all reasonable management instructions and same is binding on both the employer and the employee. That Exhibit QW 6 contains certain representations and assurances of what the 1st Defendant was offering in exchange for an employee's service, in this case, the claimant. Citing Section 7 of Labour Act. Citing also the case of SPECOMILLS TEXTILES, IKEJA VS NATIONAL UNION OF TEXTILES GARMENT AND TAILORING WORKERS (DIGEST OF THE NATIONAL INDUSTRIAL COURT(1978-2006-DJNIC)334 AT 335, RATIO 1.
Learned counsel urged the court to adopt the unassailable position of law in holding that Exhibits QW1 and QW6 constitute the contract of employment between the claimant and the 1st Defendant in this case and indeed all other defendants and the terms and conditions stated in the Hand Book (Exhibit QW6) form part of the contract of employment between the parties herein.
That in Ladipo V. Chevron (NIG) LTD (2005) 1NWLR (PT.907)277, the Court of Appeal held that whether document contains the terms of employment or service is a question of fact; and where more than a single document provide for the terms, such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are.
Counsel stated that it is trite law that, document must speak for itself in a situation where the document makes the subject matter of dispute clear as in the instant case. Citing the case of RAUF AREGBESOLA V 2 ORS V OLAGUNSOYE OYINLOLA & 2 ORS (2011) 9 NWLR PT 1253 Pg 582 C-E,
Counsel contended that the 1st Defendant is bound by the terms and conditions contained in Exhibit QW6. That in the case of A.G Ferrerro & Co Ltd V. H.C(Nig.) Ltd (2011 13) NWLR PT. 1265) 592, it was held that parties are bound by the Agreement they voluntarily entered into as Exhibit QW6 is the fulcrum of the employment relationship or contract between the parties in this case.
Counsel submitted that it is settled law that oral evidence will not be admitted to vary, alter or add to the term of any contract which has been reduced into writing when the document is in existence except the document itself. Citing the Supreme Court cases of Da Rocha V Hussain (1958) 3 FSC 89 at 92(1958) SCNL 280 and S.C.O.A(NIS) LTD V BOURDEX LTD (1990) 3 NWLR (PT.138) 380 at 389. Citing also Section 132 of the Evidence Act, 2011 and the case of Union Bank Plc V Sa (Nig)Ltd & Ors (1994) 9 SCNJ 1 at 12.
Counsel pointed out that documentary evidence is the best evidence. Referring to the Attorney General, Bendel State & 2 Ors V United Bank for Africa Ltd (1986) 4 NWLR (Pt. 37) 547 at 565.
Counsel referred the court to the Content of Exhibit QW6 regarding allowances for the claimant as a Biology Teacher and allowances for performing special duties as HOD.
It is the submission of counsel that the evidence of DW1 under cross-examination reinforces the Claimant's claims as to non-payment of allowances both as a Biology Teacher and as HOD Sciences and that piece of evidence from the Defendant's Witness is a clear admission which needs no further proof as the claim of the Claimant was unchallenged and uncontroverted by the Defendants.
Counsel stated that it is settled position of law that unchallenged evidence is deemed admitted. Citing the cases of Ezeanah v. Atta [2004] 4 MJSC 1 at 7, Odebunmi v. Abdullahi [1997] 2 NWLR (Pt. 489) 529 and Oseni v. Bajulu [2009]12 MJSC (Pt. 1) 30.
It was contended that there is no burden in law to prove any facts admitted as they are regarded as established. Citing Section 125 of the Evidence Act 2011 and the case of Alagbe v Abimbola [1978] 2 SC 39, Tijani Jolasun v Napoleon Bamgboye[2010] 18 NWLR (Pt 1225) 285.
Counsel argued that the unpaid allowances owed the Claimant having been proved by virtue of the fact that the Defendants admitted during cross-examination that they did not pay the claimant any allowance and there was no evidence to proof that they did, the said claim of the claimant and the reliefs in that regard are established.
Learned Counsel also argued that Exhibit QW6 is clear and concise and instructive at paragraphs 3.5.1 and 3.5.1(a).
Counsel submitted that from the unambiguous provisions of Exhibit QW6(the Hand Book), the Claimant falls squarely on the list and in fact, the claimant teaches Biology which is the number Three (3) on the list of the provision in the hand book of the 1st defendant. That Exhibit QW1a which is the claimant's letter of offer of employment as a Biology Teacher and the fact that he taught Biology is clearly undisputed.
Learned counsel also submitted that it is settled that the Claimant was employed to teach Biology which he diligently and dutifully carried out from 1990 when he was first employed till 2014 when he statutorily retired from the employment of the 1st Defendant. It is glaring from the evidence of the claimant that in the course of his employment with the 1st Defendant, he was appointed HOD Sciences at different times and in different schools of the Defendants and in fact, he was variously issued with certificates or letters to show that he served in the dual capacity which evidence was admitted by the Defendant's Witness in the open court and in paragraphs 7 to 10 of the Defendant's Written Statement on Oath.
Counsel referred the court to Exhibits QW 2 A-D, QW3, QW4, QW5 and QW16 as evidence that the Claimant served as HOD Sciences in the schools of the Defendants which pieces of evidence have remained uncontroverted by the defence.
According to counsel, the duties of an HOD are Special duties as they run apart with the duties of the claimant as a Biology Teacher. That while it is unarguable that the employment duty of the claimant as a Biology Teacher was to teach students in classroom and it starts from 8.00am and ends by 2.00pm of every working day, the duty of the Claimant as HOD entails coordinating and supervising other teachers' activities and it starts from 2pm to 6pm of every working day.
Counsel argued that if the claimant is not entitled to Allowances as provided in Exhibit QW6, then it will encourage unfair Labour Treatment which this Court and the law frown at as inhuman and degrading in the light of the time differences involved, the energy and resources including the category of persons to benefit from his services as HOD and the category of services required of the Claimant as HOD sciences are not the same with those required of him as a Biology Teacher. That Exhibit QW15 outlines the Claimant's duties as a Biology Teacher and juxtaposes it with his duties as HOD Sciences in Exhibit 13.
Counsel submitted that the Claimant's duties as HOD amounted to special duties because they do not fall within his teaching job which presupposes teaching his students. Section 7 (6) of the National Industrial Court Act, 2006 and Section 254C (1) (f) and (h) , and (2) of the 1999 Constitution of Federal Republic of Nigeria were cited in aid.
Learned Counsel submitted that the argument by the defence relying on paragraph 3 of Exhibit QW1 to say that the Claimant's duties as a Biology Teacher included any other duty is to disregard the obvious difference between the duo and the fact that his employment as a Biology Teacher does not extend or include the duties of HOD and both are clearly not in the same Ejus den generis and cannot be interpreted as such.
Counsel argued that the evidence of defence witness is full of admission, speculations, inconsistencies and contradictions and where a witness gives contradictory and/or conflicting evidence on material facts, his evidence will be rendered unreliable. That contradictions in the evidence of a party are disastrous and have the effect of destroying the case of that party. Citing the cases of Intercontinental Bank Ltd v. Brifina Ltd [2012]LPELR-SC.67/2004; CDC (Nig.) Ltd v. SCOA Nig.Ltd [2007] 6 NWLR (Pt. 1030) 300 SC.
Counsel submitted that it is trite law that the burden of proof in civil cases rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. Citing the case of Mozie V.Mba Malu (2006) 27 NSCQR,P.425 AT 474.
That, it is also trite law that a party is not allowed to blow hot and cold at the same time, to affirm one time and deny at the other time, that is to approbate and reprobate - Quod approbonon reprobo. Citing UDE VS NWARA & ANOR (1993)2 NWLR PT278) PAGE 638 AT 602,LAWAL BABATUNDE VS HON.COMMISSIONER FOR LANDS,HOUSING & SURVEY, OYO STATE (2013) LPELR-21114;JULIUS BERGER NIGERIA PLC VS ALMIGHTY PROJECTS INNOVATIVE LIMITED & ANOR ( 2018) LCN/10888 (CA). See also section 157 of the Evidence Act,2011.
It is the submission of counsel that the Claimant has established a fundamental case that is so cogent, convincing and compelling to entitle him to all the reliefs sought against the Defendants on the preponderance of evidence.
Learned counsel submitted that the non - payment of the Claimant's allowance as a Biology Teacher and allowance for doing special duties as HOD without any justifiable reason is unlawful and a gross breach of Exhibits QW1 and QW6 which all together form the terms and conditions of the Contract of employment between the claimant. Citing the case of Francis Arinze V. Firstbank of Nigeria PLC.[1999] LPELR-5648,
Learned counsel posited that in law, every employee has absolute right to his entitlements. That an employee has an immutable right to demand for unpaid entitlement and it is of no moment or consequence that the Claimant did not follow any alleged procedure or did not put his complaint in writing during his course of employment as argued by the Defence in their Final Address.
Counsel further submitted that entitlement for an employee is a basic right and the unpalatable circumstances such as non- payment and or failure to pay his entitlements, in this case, his allowances on the part of the defendants, is an unfair labour practice by the employer which is actionable perse.
Learned counsel contended that the Claimant is entitled to all his earned entitlements as a Biology Teacher and for acting as HOD Sciences as provided for in the 1st Defendant's Hand Book(Exhibit QW6). That in this regard, earned entitlement is inalienable and not following any alleged procedure or writing a complaint during the course of employment cannot disentitle the employee/Claimant from his earned entitlements as provided by Exhibit QW6.
Contending further, Counsel stated that a breach of an employment agreement occurs when either party involved fails to perform their duties as determined by the contract terms. And the 1st Defendant's failure to pay entitlements as stated in the contract document or denying the Claimant of what he is entitled to as provided in Exhibit QW6 constitutes a fundamental breach of the contract of employment in its entirety.
Learned counsel argued that the Claimant is entitled to general damages. Citing the cases of JIDE ARULOGUN V. COMISSIONER OF POLICE & ORS (2016) LPELR 40190 (CA), LABODE V OTUBU (2001) 7 NWLR (Pt. 712)256 and FBN PLC V ASSOVIATED MOTORS CO. LTD (1998) 10 NWLR (Pt. 570). BRITISH AIRWAYS V. ATOYEBI (2014) 3NWLR (Pt.1424) 253.
Counsel finally urged the Court to grant the Claimant's reliefs.
REPLY ON POINTS OF LAW
Defendants' counsel filed a reply on points of law on 28th April, 2022.
Counsel essentially rehashed his main points and further submitted that where the words of a contract or agreement are clear, the operative words in it should be given their simple and ordinary grammatical meaning. That if parties enter into a contract, they are bound by its terms and the Court cannot legally or properly read into the contract the terms on which the parties have not agreed. That, it is the law that a document speaks for itself. Citing the cases of DALEK NIGERIA LTD VS OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) 7 NWLR PT 1033 pg 441 Paras A-B. Per Ogbuagu JSC.
COURT’S DECISION
I have gone through the pleadings of the parties and the evidence adduced as well as the arguments and submissions of the Counsel for the respective parties. Both parties have raised one issue each in their respective submissions but I have chosen to adopt the issue submitted by the Defendants’ counsel which states as follows:-
"Whether the Claimant is entitled to special allowances for performing additional duties as Head of Department, Science while in the Service of Lagos State Government."
It is the case of the claimant from his pleadings and testimony that he was employed by the 1st Defendant sometime in 1990 and served diligently for 35 years and retired in November, 2014. That he was a Biology Teacher with the 1st Defendant and had served as HOD Sciences in different Schools while in the employment of the 1st Defendant. According to the Claimant, he was entitled to some Allowances which were not paid to him for performing Special Additional duties as HOD Sciences while also performing his enormous primary duties as a Biology Teacher in those schools.
That his claim for allowances regarding performing special additional duties is contained in the 1st Defendant's Hand Book(Exhibit QW6) and the said allowances have remained unpaid despite repeated demands.
The Defendants have however argued that the Claimant is not entitled to any special allowances as it was clearly stated in Exhibit QW1 that Claimant's duties shall include teaching and any other suitable duties which he may be called upon to perform. Defendants also contended that the terms and conditions in the letter of appointment (Exhibit QW1) were meant to regulate the claimant's employment with the Defendants and Exhibit QW6 notwithstanding.
It should noted that the employment relationship between the parties in the instant case involves several documents and the court can only determine the issues before it on the basis of those documents including the conduct of the parties. It is settled that in the interpretation of a contract involving several documents, the documents must be read together. See C.B.N.V. Igwillo (2007) LPELR-835(SC).
Equally, the position of the law remains established that in the interpretation of a document or judgment, the document(s) or judgment must be read as a whole and not in isolation of others relating to the same issue. See the case of Mbani V. Basi (2006) NGSC 152. That is to say that Exhibits QW1 and 6 tendered and admitted would be read together in arriving at a just conclusion.
Arising from the above, I hold the view that both Exhibits QW1 and 6 govern and regulate the employment relationship between the parties contrary to the assertion of the Counsel for the Defendants.
Claimant has asked for a declaration that his benefits and or entitlements have been denied by the Defendants hence asked for an order directing the Defendants to immediately pay him the sum of N12,940,000.00 for his additional special duties as HOD Sciences.
There is no doubt that the Claimant was an employee of the 1st defendant and diligently served for 35 years and retired in 2014. It is not also in doubt that he was a Biology Teacher with the 1st Defendant and had served as HOD Sciences in different Schools while in the employment of the 1st Defendant. But what is in dispute is, whether he is entitled to some allowances which were not paid to him for performing Special Additional duties as HOD Sciences while also performing his primary duties as a Biology Teacher in those schools.
The law is well settled and remains the same that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
Similarly, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
In law, claims for entitlements being monetary claims are a claim for special damages and the burden thus lies on the claimant to prove his specific claims. In other words, it is the duty of the Claimant who asserts the existence of a legal right to prove that those facts exist. See the case of Veepee Ind. Ltd. V. COCA Ind. Ltd (2008) All FWLR (pt.425) 1667.
Therefore, the Claimant is expected by law to plead and support his claims by credible and convincing evidence and that evidence should preponderate in civil matters before those claims can be acceded to by the court and where he fails to discharge the onus, his claim is bound to fail. See Hamza V. Kure (2010) 42 NSCQR (pt.1) 592 at 595.
To prove an entitlement as in the instant case, the claimant must refer the Court to the exact instrument or document that conferred the entitlement. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39.
Claimant has tendered in evidence Exhibits QW3, 4 and 5 which state that he had served as a Biology Teacher and HOD Sciences in some of the Defendants Schools at different times. He has also presented Exhibit QW6 and referred to clause 3.5.1 to show that he is one of those entitled to special allowances. Clause 3.5.1 and 3.5.1(a) of Exhibit QW6 state as follows:-
"3.5.1 STAFF ALLOWANCES:
The State Government has packaged special allowances for members of staff working in special areas, teaching special subjects or performing special duties.
3.5.1(a) SCIENCE/MATHEMATICS TEACHER'S ALLOWANCE,
This is an allowance payable to teachers employed to teach the following subjects:
(¡) Physics,
(¡¡) Chemistry
(¡¡¡) Biology
(¡v) Integrated Science
(v) Agriculture
(v¡) Mathematics and
(vii) Other subjects approved by the Commission."
Claimant has referred to the evidence of DW1 who said that he does not have evidence that the Claimant was paid allowance as a Biology Teacher.
Claimant in his relief 4(a to d) has asked for the total sum of ₦12,940,000.00 as his allowance which according to him has not been paid in accordance with Exhibit QW6 but there is no document that shows how the claimant arrived at the sums stated above and I have not been able to see any such document.
I also see no document that conferred those figures as Claimant's entitlement.
I need to state the position of the law that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly and the court is not entitled to make its own estimate of such claim or engage in logical deductions. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC V. Clifco Nig. Ltd [2011] LPELR-2022(SC), Nwangwu V FBN Plc (2022)1 NWLR (Pt. 1812)427, SC.
In other words, the fact that DW1 stated under cross-examination that he does not have evidence that the Claimant was paid allowances as a Biology Teacher does not in any way relieve the Claimant of the burden to prove that he is entitled to that entitlement nor does it automatically entitle him of the sums claimed. It has to be specifically pleaded and strictly proved but the Claimant has not strictly proved his special damages allegedly accruable to him. See Institute of Health ABU Hospital Management Board V Anyib (2011) LPELR-1517(SC).
According to the Claimant, he is entitled to sum of ₦40,000/month x 50 months as Acting HOD Sciences at AGO-EGBA High School now known as Longford International School, the sum of ₦60,000/month x 57 months as HOD Sciences at Birrel Avenue Snr. High School, Sabo Yaba, the sum of ₦70,000/month x 24 months as HOD Sciences at Community Snr, High School, Tafawa Balewa Crescent, Surulere and the sum of ₦80,000/month x 73 months as HOD Sciences at Gbaja Girls' Snr. High School, Surulere. But there must be particulars and credible evidence upon which those special damages are based and proved. Averments contained in pleadings are no evidence and the onus is on the party to establish his case by credible, satisfactory and convincing evidence based on pleadings. See Help (Nig.) Ltd. V. Silver Anchor Nig. Ltd (2006) LPELR-1361(SC). Nwanji V. Coastal Services Nigeria Ltd (2004) LPELR-2106(SC).
On the whole, I find that the Claimant's responsibility of proving his monetary claims before the court on the balance of probability has not been discharged as the balance does not tilt in his favour. It is clear to me that the evidence of the Claimant as regards his alleged allowances remains unsubstantiated.
Consequently, Claimant's case fails and is accordingly dismissed.
Judgment is entered accordingly. I make no order as to cost.
______________________________
HON. JUSTICE S.H. DANJIDDA
(JUDGE)