IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE, A.N
UBAKA
DATED 22nd MAY, 2025 SUIT NO: NICN/LA/564/2015
BETWEEN
AWOGU DOROTHY ADAEZE CLAIMANT
AND
LUXURY VILLAS
GROUP
DEFENDANT
REPRESENTATION
K. A. Adisa the Claimant
No legal representative for the defendant
JUDGMENT
The claimant’s claim as contained in paragraph
21 of his statement of claim is for;
1.
An
order of court directing the defendant to pay the claimant the sum of N250, 000
(Two Hundred and Fifty Thousand) being the total sum of her outstanding salary
for the month of September 2015.
Particulars
Per Month
a.
Basic
Salary
N75, 000
b.
Housing
Allowance N75,
000
c.
Transport
Allowance N62,
000
d.
Lunch
Allowance N12,
500
Total………………………………………….
N250, 000
2.
An
order of court directing the defendant to pay to the claimant the sum of N250,
000 (Two Hundred and Fifty Thousand Naira) only as general damages for the
breach of employment contract.
Accompanying the complaint is the claimant’s written
statement on oath, list
of witnesses and documents to be relied upon on trial dated 18th November, 2015 but filed on 19th
November, 2015.
In reaction, the defendant did not enter appearance
nor file its statement of defence despite service of the originating processes
on it.
The facts of the claimant’s
case are that she was employed on the 6th July, 2015 as a Head,
Sales/Marketing and Business Development in the defendant’s; that her July
salary was paid same month but her August 2015 salary was not paid until 30th
September, 2015. That on the offer of employment, she was given a probationary
period of 3months until confirmation of employment by the defendant. that due
to the unbearable attitude of the Managing Director of the defendant, she
tendered a Letter of Resignation dated 22nd September to the Human
Resources of the defendant wherein she gave one (1) week notice of her desire
to resign from the employment of the defendant at the end of 30th
September, 2015 in line with the terms and condition of her employment.
That on the 28th
September, 2015 while performing her duties, the Human Resources of the
defendant informed her that the management no longer requires her services and
thereafter instructed her to surrender all the defendant’s property which she
complied with without any hesitation and that upon the determination of her
appointment on 28th September, 2015, two days to the expiration of
her one (1) week notice by the defendant, she demanded for the payment of her
September 2015 Salary having worked fully for the defendant in month of
September 2015. That the defendant’s Head of Human Resources thereafter
promised to get back to her and that payment of her salary would be duly
communicated vis her bank.
That several calls
and email has been sent to the defendant for her salary for the month of
September, 2015 all to no avail and that she thereafter instructed her counsel
to write the defendant a letter requesting for the payment of her salary but
despite being in receipt of her counsel letter demanding for the payment of
September salary, the defendant has failed, refused and neglected to pay her
salary. That due to the refusal and deliberate wickedness of the defendant to
pay her salary, she had no other option than to instruct her counsel to
commence legal action against the defendant; that her other colleagues at work
has received their salaries for the month of September and October 2015
respectively.
That her counsel
gave her a bill of N250, 000 as the cost of litigation which she would not have
embarked upon if the defendant has respected and not breach the contract of
employment entered with her.
There was no cross
examination of CW by the defendant’s counsel nor did the defendant open its
defence on trial despite several hearing notices served on it. The defendant was thereby foreclosed on 4th
December, 2024.
The parties were directed to file their final written addresses. The claimant’s
final written address is dated 3rd February, 2025 but filed 5th
February, 2025. The defendant did not file its final written address.
Learned counsel
on behalf of the claimant formulated two (2) issues for the court’s
determination viz:
1.
Whether the claimant has failed to comply with the terms and conditions
of employment between the claimant and the defendant as contained in exhibit
AA1 (Offer of appointment as Head Sales/Marketing and Business Development
dated 5th June, 2015 while resigning from the employment of the
defendant.
2.
Whether the claimant is not entitled to the reliefs sought.
The claimant’s
counsel jointly addressed the two issues formulated above and submitted that it
is trite law that in a claim for the unlawful or wrongful dismissal or
termination from employment, it is the duty of the claimant to prove and plead
that he is an employee of the defendant, the terms and conditions of his or her
employment, and how he or she was appointed. That the claimant having complied
with the terms and conditions of employment before her resignation by tendering
exhibit AA2 (Resignation Letter) to the defendant is entitled to her September
2015 Salary in the sum of N250, 000 and failure of the defendant to pay same is
unlawful and a clear breach of the terms and condition of employment between
the claimant and the defendant despite the claimant’s demand for same. That
from the undisputed claims of the claimant and evidence led before the
honourable court, it is not in dispute that the claimant has suffered wrong
from the defendant’s breach of terms and conditions of employment and that the
claimant is entitled to damages. He cited the case of Aliyu v State (2021) 17
NWLR (PT 1805) 197 and urged the honourable to so hold and resolve the issues
in favour of the claimant.
From the pleadings and the entire
evidence before this court, it is my view that the issue for determination is
Whether the claimant
has led sufficient credible evidence entitling him to succeed on his claim.
The law guiding the court in civil
cases is that the burden of proof lies on the claimant to prove his claim. It
is also settled that where the claimant leads evidence in support of his claim
but the defendant failed to lead evidence in rebuttal, the burden of proof on
the claimant is discharged on minimal evidence. See Chami vs U.B.A Plc (2010) 6
NWLR Pt. 1191 page 474 at 496 – 497 (H-A) where the Supreme Court stated the
nature of the burden of proof on the claimant where the defendant offers no
defence as follows:
It is settled law that where
the party offers no evidence in defence of the case of the plaintiff, the
burden placed on the plaintiff is minimal since there is no evidence to
challenge the case of the plaintiff and the plaintiff can use the unchallenged
evidence to challenge the case of the plaintiff and the plaintiff can use the
unchallenged evidence to establish his case – See Osun state Government vs
Dalami (Nig) Ltd (2003) 7 NWLR (Pt 818) 72 at 99.
However, the law is also trite that
where one side does not call evidence, the minimum or least evidence called by
the other party satisfies the requirement of proof by it in civil cases. This
is the minimum requirement of proof by it in civil case. This minimum evidence
rule, see Adewuyi v Odukwe (2005) 7 SCNJ 227. In the instant case, as there was
no evidence offered by the Appellant, the imaginary scale preponderated very
heavily in favor of the Respondents. From the proceedings at the trial court in
the printed record of appeal, there is nothing from the defence to place
against the evidence of the Respondents / plaintiffs. See Sasan v HFP
Engineering (Nig) Ltd (2004)3 NWLR (pt 861) 546; Balogun v Labiran (1988) 3
NWLR (pt 80) 66; & Mogaji v Odofin (1978) 4 SC 91. As afore-stated it is
settled that where there is no evidence to put on one side of the imaginary
scale in a civil case, the minimum evidence on the other side satisfies the
requirement of the rule. See also Buraimoh v Bamgbose (1989) 3 NWLR (pt 109)
352; Nwabuoko v Ottih (1961) AALL NLR 487.
In this case, the evidence of the
claimant is that she was employed by the defendant on the 6th July
2015 as Head sales/Marketing and Business Development. In proof of the reliefs
claimed the claimant testified as the only witness in the case. The claimant
worked up to September 22nd 2015 she tendered her letter of resignation,
and was on probation at this period and was required to give one week notice
before termination. That she requested
for her salary for the month of September 2015.
In proof of this, the claimant tendered exhibit AA1 (offer of employment)
resignation letter (exhibit AA2), demand letter (exhibit AA3). The claimant
worked for the defendant from July to September 2015 and her August salary was
not paid up to when she tendered her letter of resignation. As to the offer of
employment is provided in it is probation of 3 months. The letter of
appointment exhibit AA1 is the contract of employment and it contains the terms
and conditions of the claimant’s employment with the defendant.
By
INEC & Ors v Orji & Ors (2009) LPELR -4320 (CA), the position of the
law is that resignation from employment is by giving of the required length of
notice or payment in lieu of notice. The law is settled that an employee has an
absolute power to resign and the there is no discretion to refuse same. See
Zubairu & Anor v Mohammed & Ors (2009) LPELR-5124 (CA) the court of
appeal held as follows:
The legal position is that resignation from employment is by
giving the required length of notice or payment in lieu of notice. Resignation
dates back from the date the notice is received. There is absolute power to
resign and no discretion to refuse to accept the notice of resignation. it must
be emphasized that where a person has taken steps he is required by law to take
in this case submit his letter of resignation, the refusal, failure, neglect of
the relevant officials to do their part, in this case, stop the payment of his
salary cannot be visited on the person.
It is the view of this tribunal that this principle of law applies with
equal force here. What was required of the 1st Respondent by section
107 (1) (f) of the constitution is to resign his appointment 30 days before the
election. From the pleadings of the parties and evidence led, we are of the
view that the 1st Respondent has duly resigned his appointment as
required by law.
In
this case the claimant tendered her letter of resignation giving one week notice.
As earlier stated, that there is
absolute power to resign and no discretion to refuse to accept notice. Below is part of the letter of resignation
(exhibit AA2):
Dorothy Awogu
Dear madam,
I regret to inform you
that I would like to tender my resignation as Head sales, marketing & Business
development effective immediately. This is a one week notice in line with my
terms of employments as Wednesday the 30th of September will be my
last day. The current financial situation of the company and non-payment of
staff salaries since the month of August 2015 has made things difficult for me
to look after myself and my other dependents
On whether the claimant’s resignation
is accepted by the defendant to make the exit from the defendant proper, I call
in aid the Supreme Court decision in Yesufu v Gov Edo State (2001) 13 NWLR (Pt
731) 517 SC where it held
A notice of resignation
of an appointment becomes effective and valid the moment it is received by the
person or authority to whom it is addressed.
This is because there
is absolute power to resign and no discretion to refuse to accept and it is not
necessary for the person to whom the notice of resignation is addressed to
reply that the resignation is accepted.
It is a
unilateral act that requires no acceptance by the employer because there is an
absolute power inherent in the employee under the employment contract to bring
the employment to an end which the claimant did by resignation. See Adefemi v
Abegunde (2004) ALL FWLR (Pt 203) 2109. It
is a well-established principle of law that, one cannot force a servant on a
master. While every employer reserves the right to ‘hire and fire’, every
employee also has the right to accept appointment and to opt out of it at will,
provided each complies with the laid down rules relating to necessary notices
to be served on the other. Longe v FBN plc (2006) All FWLR (pt 313) 46, (2006)
3 NWLR (Pt 967) 22; S.P.D.C (Nig) v Emehuru (2007) 5 NWLR (pt. 1027) 347. The
claimant tendered the letter of resignation as she had the right to do and the
defendant is duty bound to accept the resignation as long as it complies with
the agreement between the parties. The
letter was received by one Maryam Owolabi and in the foot note ‘’ resignation takes
effect from 28/09/15 HR dept and she equally signed. Since the acceptance of same by the HR
personal, the claimant is entitled to the sum of N250, 000 being salary for the
month of September 2015.
As to termination Exhibit AA1 provides
thus
The employment may be
terminated by either party during the probationary period by giving one-week
written notice or payment in lieu.
The claimant gave one week notice as
she was still on probation, the age long principle that the terms of employment
govern parties in a contract of employment. See Adekunle v UBA (2016) LPELR
-41124 (CA) where the court of appeal held:
I wish to restate that,
in an employer/employee dispute, it is the applicable conditions of service or
any other terms stipulated in the contract that must be referred to, construed
and applied in the resolution of the dispute between the parties. Accordingly,
the conditions of service are the bedrock of the contract of employment. It
therefore means that where there are documents or series of documents which
stipulate the terms and conditions of any employment contract, no court should
look outside those terms and conditions as stipulated in the document in
deciding the rights and obligations of the parties to the agreement. See Jowan
& 77 Ors v Delta Steel Company Ltd (2013) 1 A.C.E.L.R P.18 ANS. Mrs. Anja v
United Bank of Africa Plc. (2014) A.C.E.L.R P.78.
See also Ajuzie v FBN (2016) LPELR –
40459 (CA) where the court of appeal explained how to interpret the contract of
employment as follows
The relationship of
master and servant existing between the appellant and Respondent in this appeal
is one of an ordinary master and servant governed by written contract not
subject to statutory flavor. What this readily portends for the parties is that
in construing the terms and conditions of the relationship, the parties have
practically nowhere else to look for determination of the terms of the
relationship but the written contracts existing between them
From the above authorities the law is
clear that parties in a contract of employment are governed by the terms agreed
upon. The claimant is entitled to the
sum of N250, 000 being the outstanding salary for the month of September 2015.
The 2nd relief is for damages. In an
employment, where the claimant claims for special damages, he has a duty to
show the court what entitles her to it, the law is that he who asserts must
prove. See sections 131(1) & (2) and 132 of the Evidence Act 2011, Atufe v
Oghomienor (2004) 13 NWLR (Pt 890) 327, Ajayi v Attorney General of Ogun State
& Ors (2008) LPELR -8568 (CA). There is no proof of damages before the
court save for the pleading that she instructed a counsel to write to the
defendant and that she suffered irreparable loss as a result of the breach of employment,
there is no evidence supporting same. the relief fails and is dismissed.
In all the claimant’s case succeeds to
the extent of payment of N250, 000 as one month’s salary for September 2015.
Cost of N200,000 is awarded against the
defendant.
All sums are to be paid within 30 days
failing which it will attract interest of 10% until the sums are finally paid.
Judgment is entered accordingly.
HON. JUSTICE A.N. UBAKA
JUDGE