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NICN - JUDGMENT

 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 23RD JANUARY, 2024                              SUIT NO: NICN/IB/35/2021

 

BETWEEN

Mr. Olusegun Yaya                                                                          Claimant

 

AND

 

Olabisi Onabanjo University                                                                     Defendant

 

REPRESENTATION

Prof. Justus Sokefun for the Claimant

Mr. Felix Ogunmade with Olaide Balogun and

Daniel O. Ola for the Defendant.

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant instituted this Suit by his General Form of Complaint dated and filed on 7/7/21 along with a Statement of Facts, List of witnesses, Claimant witness statement on oath, list of documents as well as copies of documents to be relied upon at trial and sought the following reliefs against the Defendant –

 

1.         A Declaration that the Letter titled “Restructuring of the Olabisi Onabanjo University Primary School” by the OOU Primary School Management Board dated 27th May 2015, purporting to terminate the Claimant’s appointment is ulta vires, null, void and of no effect.

2.         A Declaration that the purported termination of the Claimant’s employment by the Defendant under the guise of restructuring of the Olabisi Onabanjo University Primary School Management Board or under any guise  whatsoever is unlawful, void and of no effect.

3.         A Declaration that the new salary scale foisted upon the Claimant between 1st June 2001 to December, 2010 was in breach of the Claimant’s contract of service.

4.         An Order directing the Defendant to pay all the shortfalls of the Claimant’s remuneration with the yearly incremental steps and promotions due between 1st June, 2001 to May 2015, totaling =N=10,724,083.60 (Ten Million, Seven Hundred and Twenty Four Thousand, Eighty Three Naira, Sixty Kobo).

5.         A Declaration that the purported contract of service dated 28th of November, 2010 which the Defendant surreptitiously foisted on the Claimant to substitute the initial contract of service dated 1st of October, 1996 is void and of no effect.

6.         An Order directing the defendant to pay all the shortfalls of the Claimant’s salary between February, 2011 to May, 2015 which sums up to =N=149,913.53 (One Hundred and Forty Nine Thousand, Nine Hundred and Thirteen Naira, Fifty Three Kobo) when the Defendant unilaterally decided on what to pay.

7.         An Order directing the Defendant to pay forthwith the Claimant’s gratuity which is =N=2,442,039.60 (Two Million, Four Hundred and Forty Two Thousand Naira Sixty Kobo) having served the Defendant for Nineteen years before his purported termination of employment.

8.         An Order directing the Defendant to transfer forthwith the sum of =N=574,382.00 (Five Hundred and Seventy Four Thousand, Three Hundred and Eighty Two Naira) being the Claimant’s Legacy Funds to his Pension Fund Account from 1996-2007.

9.         The sum of =N=10,000,000.00 (Ten Million Naira only) as General Damages for unlawful termination of employment and victimization.

 

2.         The Defendant in reaction to the originating processes filed a statement of defence along with all other frontloaded processes dated 25/10/21 denying all the reliefs sought by the Claimant. The Claimant later filed a Reply to the statement of defence and additional statement on oath dated 23/6/22.

 

2.         Case of the Claimant

3.         On 15/6/22, the Claimant opened his case and testified in chief as CW1 by adopting his witness statements of oath of 7/7/21 and 7/7/22 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence without objection and marked as Exh. C1 – Exh. C5.

 

4.         Under cross examination, CW1 stated that he worked with Olabisi Onabanjo University Primary School for about 18 years; that he is a seasoned Teacher; that he understood the processes and procedure of the University; that he is aware that employment, promotion and benefits of employees of the Defendant are regulated by laws and procedure of the University; that Pension Consultant referred to in paragraph 10 of his Reply is Nigerian Life Pension Commission, NLPC; that he has a pension account with the body; that Exh. C3 – Exh, C5 were served on the University; that Exh. C5 was served on the Vice Chancellor, the Registrar and Chairman of School Management Board; that he has drawn funds from his PFA Account; that the Defendant paid him some money upon the termination of his appointment; that he could not remember the figure off hand; that the School where he taught was a public school; that pupils of the school paid school fees to the Management Board and that the School is funded by both the University and from the fees paid by the pupils.

 

5.         Claimant reopened his case on 6/7/22 and gave additional evidence. He adopted his additional statement on oath of 23/6/22 as his additional evidence and tendered a pre action notice as additional exhibit. The document was admitted in evidence without objection and marked as Exh. C6.

 

6.         In cross examination, CW1 testified that the part payment of his terminal benefit was paid into his Bank Account; that his salaries were also usually paid into the said Bank Account; that deductions were usually made respecting his contributory pension; that only part of his contributory pensions was paid into his PFA Account and that he did not reject or refund any salary paid or terminal benefit paid to him because they were not complete.

 

3.         Case of the Defendant

7.         On 13/2/23 the Defendant opened its defence and called a lone witness. The witness, DW1, adopted his witness deposition of 29/10/21 as his evidence in chief and tendered 6 documents as exhibits. The documents were admitted in evidence and marked as Exh. ML1 – Exh. ML6.

 

8.         The case of the Defendant, in brief, as revealed by the pleadings filed and evidence led is that the Defendant, formerly Ogun State University, established the Olabisi Onabanjo University Primary School (formerly Ogun State University Primary School) with the assumption that it would be funded by the Ogun State Government; that the government subsequently declined funding and maintenance of the School; that the Defendant was compelled to re-establish the school as a separate self-sustaining entity and managed by Olabisi Onabanjo University School Management Board; that the initial employees of the Primary School were employed by the Defendant; that following re-organisation, all subsequent employees of the school were employed by the Primary School subject to decisions, directives, rules and regulations made by the Primary School Management Board; that Claimant’s pensions and gratuity were duly remitted into his account with NLPC; that Claimant’s employment was later impacted upon by certain changes for which his consent was sought and obtained; that Claimant’s employment was later terminated by the Management Board and his terminal benefits were mutually agreed upon and paid to him and the Claimant subsequently brought this action about 6 years after his final disengagement.

9.         While under cross examination, DW1 testified that Olabisi Onabanjo University constituted the Board of the School; that the Finance and General Purpose Committee he referred to was that of the Olabisi Onabanjo University; that remittance of pension of the Claimant was done by the Olabisi Onabanjo University Primary School; that he does not know who recommended the Legacy Fund; that the University is the owner and proprietor of the Primary School; that the Head Teacher of the Primary School would have to clear the Claimant upon termination of employment.

 

4.         Final Written Address

10.       At the close of trial and pursuant to the direction of the Court, learned Counsel on either side filed their final written addresses. The 35 page final written address of the Defendant was dated and filed on 16/3/23. In it Counsel set down 2 main issues for determination thus –

 

1.         Whether the Claimant’s claims are not fundamentally contradictory and unassailable in law.

            2.         Whether the Claimant’s claims are meritorious.

 

11.       On issue 1, learned Counsel submitted that the Claimant in an attempt to cook up story as an afterthought sharply contradicted himself; that Claimant asserted that he was employed by the Defendant yet by his Exh. C1 his appointment was by the Primary School and not the University; that contrary to the position of the Claimant the Primary School is being managed by the Primary School Board and not the University. Counsel urged the Court to strike out the evidence of the Claimant respecting all this citing Section 128, Evidence Act, 2011, Anyanwu v. PDP & Ors (2020) EJSC (vol. 142) 22 & Ayorinde v. Kuforiji (2022) LPELR-56600 (SC). Learned Counsel submitted further that the Claimant in one breadth sought a declaration that the termination of his employment was unlawful and void and at the same time sought general as well as special damages in pensions and gratuity; that by claiming damages, Claimant has demonstrated his acceptance of the termination of his employment; that the appropriate remedies that can follow wrongful or unlawful termination of an employment with statutory flavor is reinstatement and payment of salaries for the period the Claimant is forced out of work citing Olufeagba v. Abdul-Raheem (2010) All FWLR (Pt. 512) 1033 at 1074 & Yemisi v. FIRS (2012) LPELR-7964 (CA); that the employment of the Claimant does not enjoy statutory flavor and that the remedy available to him is salary in lieu of notice citing Idoniboye-Obu v. NNPC (2003)LPELR-1426(SC). Counsel urged the Court to dismiss the case of the Claimant as his claims are fundamentally contradictory and unsustainable in law.

 

12.       On issue 2, learned Counsel urged the Court to consider the admissibility or the weight to attach to Exh. C3 & Exh. C4; that there is no evidence that the exhibits were served on and received by the Defendant citing FBN Plc v. S.M.P Akiri (2013) LPELR-21966(CA) & Yalis Nig. Ltd v. G.N.I.C Ltd (2000) NWLR (Pt. 725) 540; that the proof of delivery of a document to a corporate institution like the Defendant is by its stamp/seal, duly affixed by the designated official who is expected to sign thereon and state the date and time of receipt thereof. Counsel urged the Court to expunge Exh. C3 & Exh. C4 from record on the basis that they were not served on the Defendant.

 

13.       Learned submitted that the principal claims of the Claimant are in the nature of declaratory reliefs which are not granted as a matter of course; that the Claimant is bound to adduce sufficient evidence in proof of same to be entitled citing A.G, Rivers State v. A.G. Federation (2022) LPELR-57708(SC); that in the instant case Claimant merely alleged that the termination of his employment is unlawful without showing the provisions of the statutes or regulations that have been breached citing Lawrence Azenabor v. Bayero University, Kano (2009) LPELR-8721(CA); that although the Claimant alleged that his employment was terminated by a document titled Restructuring of the Olabisi Onabanjo University Primary School dated 27/5/15 yet the Claimant did not tender the said document in evidence; that it is not the case of the Claimant that his terminal benefits were not duly calculated and paid but indeed confirmed under cross examination that he had received the terminal benefits and did not at any time reject or refund same and that it is late in the day for the Claimant to complain of unlawful termination of his employment citing Morohunfola v. Kwara State College of Technology (1990)4 NWLR (Pt. 145) 506. Counsel urged the Court to hold that the Claimant is not entitled to the declaratory reliefs as well as special and general damages. Counsel prayed the Court to dismiss the case of the Claimant in its entirety.

 

14.       The 26-page final written address of the Claimant was dated and filed 10/5/23. On behalf of the Claimant, learned Counsel set down 2 main issues for the just determination of this case thus –

 

1.         Whether the Defendant was duly served the statutory pre-action notice.

2.         Whether the Claimant is entitled to the claims as per endorsement on the Writ of Summons and Statement of Claim.

 

15.       On issue 1 learned Counsel submitted that Exh. C6 is evidence of receipt of pre-action notice of the Olabisi Onabanjo University Staff School Management Board; that the reason for any pre-action notice is to inform the proposed litigant of the intention of the author of the notice to prcoceed to court in case the authority fails to address his/her grievance as stated in the pre-action notice and that the notice submitted at various offices of the Defendant would suffice for pre-action notice against the Defendant. Counsel urged the Court to so hold. Counsel submitted further that assuming but without necessarily conceding that submission on pre-action notice was wrong, the fact that the Defendant pursued its defence from beginning to the end without any objection to the jurisdiction of the Court is a clear evidence of a total submission to the jurisdiction of the Court; that the submission against Exh. C6, Exh. C3 & Exh. C4 should therefore be discountenanced. Counsel urged the Court to do so. Learned Counsel further urged the Court to declare Section 45, Olabisi Onabanjo University Law which requires pre action notice as being inconsistent with Sections 6 & 46, Constitution of the Federal Republic of Nigeria, 1999, as amended and hence unconstitutional and void to the extent of its inconsistency. Counsel prayed the Court to so hold.

 

16.       Respecting issue 2, learned Counsel submitted that the Defendant established the Olabisi Onabanjo University Primary School Management Board; that the Defendant is vicariously liable for the acts of the Board citing Techno Mech. (Nig.) Ltd. v. Ogunbayo (2000)1 NWLR (Pt. 639) 150 at 767 & S.C.M Ltd. v. H.E.P. Eng. (Nig.) Ltd (2021)11 NWLR (Pt. 1788) 407 (SC); that the Management Board of the Olabisi Onabanjo University Staff School is a statutory creation of the Defendant and not an independent entity.

 

17.       On Claimant’s claim for gratuity, learned Counsel referred to Exh. C1 & Exh. C2 as well as Isievwore v. NEPA (2002)13 NWLR (Pt. 784) 417 at 435 & Achimugu v. Minister, F.C. T (1998)11 NWLR (Pt. 574) 467 at 479 and submitted that the Claimant is entitled to the relief. On claim for =N=574,382 being funds deducted for pension purpose between 1996 and 2007, Counsel referred to admission in paragraph 12 of Defendant’s statement on oath and prayed the Court to grant same citing M.I.N v. MFKWA Limited (2005)10 NWLR (Pt. 645) 661. With respect to a claim for =N=10,724.083.60 being shortfalls of Claimant’s remuneration with the yearly steps and promotion between 1/6/01 and May, 2015, Counsel referred to Exh. C1 and prayed the Court to hold that the figures in the said exhibit are sacrosanct for use in the calculation as contained in paragraph 20(d) of the Claimant’s claim. Counsel cited Ulegbe v. The Military Administrator, Benue State (2001)2 NWLR (Pt. 696) 73 at 91.

 

18.       Finally, learned Counsel prayed the Court to enter Judgment in favor of the Claimant.

 

19.       In reacting to the final written address of the Claimant, the Defendant filed a 12-page reply on points of law. It was dated and filed on 22/5/23.

5.         Decision

20.       The facts of this case as put forward by the Claimant are that he was employed by the Defendant and discharged his responsibilities creditably; that he was employed as a School Teacher for its Primary School; that his appointment which was confirmed and pensionable was subject to the laws of the Defendant and such conditions governing non-academic appointments; that sometimes in 2001 the Defendant unilaterally placed him and other members of staff on a salary scale called Public Primary School Salary Structure which action was resisted; that between February and May 2015, the Defendant paid him only 50% of his salaries without prior notice with a short fall of =N=149,913.53; that the shortfall of his remuneration with the yearly incremental step and promotion between 1/6/2001 and May 2015 is =N=10,724,083.60; that by a letter dated 27/5/15 the Defendant terminated his appointment; that he served a pre action notice on the Defendant and that the Defendant failed to transfer his Legacy Funds for the years 1996 - 2015 in the sum of =N=574,382.00 and that the Defendant has failed to pay his gratuity having served the Defendant for nineteen years. It is not disputed by the Claimant that upon cessation of employment in 2015 he was paid his terminal benefits and neither did he reject nor refund same to the Defendant. There is also no evidence that he contested or protested the sums of money paid to him as his terminal benefits. The Defendant on the other hand denied being the employer of the Claimant; that its Primary School is a separate entity from the Defendant; that the School Management Board is solely responsible for the management and operation of the Primary School which is the employer of the Claimant and that it is in no way liable to the Claimant for the reliefs sought.

 

21.       I read and clearly understood all the processes filed by the parties on either side. I heard the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned Counsel on either side at the point of adopting their final written addresses. Having done all this, I adopt the 2 issues as laid out by the Claimant for the just determination of this case thus –

 

 1.        Whether the Defendant was duly served the statutory pre-action notice.

2.         Whether the Claimant is entitled to the claims as per endorsement on the Writ of Summons and Statement of Claim.

 

22.       The first issue for determination deals with whether or the Claimant served the mandatory pre-action notice on the Defendant. The imperative of pre action notice in the instant case is that it is statutorily mandated. Indeed Section 45(4), Olabisi Onabanjo University Law, Laws of Ogun State specifically provided that no action shall be commenced against the University unless and until a three months’ notice of intention to do so is served on the Defendant by the intending Claimant. The statute also directs that such notice shall state clearly the cause of action, the particulars of the claims, the place of abode of the intending Claimant as well as the reliefs being sought against the Defendant. The rationale for the requirement of serving pre action notice especially is to allow ample room for the body or institution to be sued to consider whether or not it would not opt for amicable settlement without having recourse to the forum of Court. The consequences of non compliance with statutory requirement of pre action notice are far reaching and fundamental. It is trite that where a statute requires that there should be a pre-action notice before an action can be commenced in Court, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. Issue of pre-action notice where service is required is very fundamental as it touches on the competence of the suit. Failure to issue same amounts to a vital or serious omission that mars a suit and renders it a nullity. It is not a mere irregularity that could be waived or disregarded. That is the position of the Court of Appeal per Abdu Aboki JCA (as he then was) in Public & Private Development Centre Ltd/gte (PPDC) v. Nigerian National Petroleum Corporation & Anor. (2020) LPELR-50288 (CA). Again in a long line of appellate decisions Barclays Bank Ltd. v. Central Bank of Nigeria (1976) 6 SC 175; Okotie-Eboh v. Okotie-Eboh (1986) 1 NWLR (16) 264; Ijebu-Ode Local Govt. v. Adedeji Balogun (supra) and Eze v. Ikechukwu (2002) 18 NWLR (799) 348 and Ondo State Dev. & Property Corporation v. Jimzest Hotel Dev. Co. Limited (2011) LPELR-4782(CA), it has been established that requirement of pre action notice is not in any way an inhibition to the right of individuals to approach the Court for the ventilation of their constitutional rights.

 

23.       Now, did the Claimant serve the Defendant with the mandatory pre-action notice? In support of his case, the Claimant tendered, among other exhibits Exh. C6. That exhibit was addressed to The Secretary, Olabisi Onabanjo University Staff School Management Board, Ago Iwoye, Ogun State. A copy of same was served on The Vice Chancelor, Olabisi Onabanjo University the Defendant in this case. There is evidence of receipt of the exhibit in the office of the Vice Chancellor. It was signed for and received by one F.O. Kukoyi who after appending the stamp of the office of the Vice Chancellor also appended his signature. It was not argued before me at trial that the stamp and/or signature on page 3 of Exh. C6 were fake or forged. The issue of whether a document was received or not is, according to Onnoghen JSC (as he then was) in Yadis Nig. Ltd. v. GNIC Ltd (2000) NWLR (Pt. 725) 540, a question of fact. The fact as reflected in Exh. C6 is sufficient enough for me to hold that the exhibit was duly served on and received by the Defendant. Accordingly I resolve the first issue in favor of the Claimant and against the Defendant.

 

24.       The second issue set down for determination is whether the Claimant is entitled to the claims as per endorsement on the Writ of Summons and Statement of Claim. The state of the law remains the same as exemplified by diverse decisions of the Court that whoever approaches the Court for judicial intervention has the burden of proving his entitlement to the reliefs sought. The proof required is by adducing sufficiently cogent, credible and admissible evidence in support of his case. The statute law also supports the same position, Sections 131 & 132, Evidence Act, 2011. The evidence required to sustain a positive finding in his favour may be either oral or documentary or even both with credence being placed on documentary evidence. Until that burden is discharged, the Defendant is not obliged to call in evidence for the simple reason that he has nothing to lose and nothing to prove.

 

25.       This case was filed in 2021. That was about 6 years since the employment of the Claimant was terminated. The Claimant sought about nine reliefs in all. Reliefs 1, 2, 3 & 5 are for declaration. The state of the law relating to the grant of declaratory reliefs remains unchanged. It is that its grant is an exercise of the discretionary power of the Court. That being the case therefore an applicant for same must exhibit sufficient proof to move the Court to grant same. Thus it is not granted as a matter of course. Ogunwumiju, JSC made the point clearly and aptly in Attorney General of Rivers State v. Attorney General of the Federation & Anor (2022) LPELR-57708(SC) in the following words -

 

"A declaratory relief is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. Although the power to make a binding declaration of right is a discretionary power, the Plaintiff must establish a right in relation to which the declaration can be made. The claim to which the declaratory relief relates must be substantial. Thus, a declaration will only be granted where there is a breach of a right. It is the practice that a declaratory relief will be granted where the Plaintiff is entitled to relief in the fullest meaning of the word. Furthermore, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant. It should also not be contrary to the accepted principles upon which the Court exercises its jurisdiction."

 

26.       The first declaratory relief sought is for a declaration that the Letter titled “Restructuring of the Olabisi Onabanjo University Primary School” by the OOU Primary School Management Board dated 27th May 2015, purporting to terminate the Claimant’s appointment is ultra vires, null, void and of no effect. In proof of his entire case, the Claimant tendered 6 exhibits. Unfortunately, the document which the Claimant alleged to have been issued bringing his employment to an end with the Defendant was not tendered. In other words, there is nothing before the Court linking the Defendant with the termination of his employment. Without much ado it is safe to refuse to grant the first declaration sought on the solid ground that the Claimant failed to establish his entitlement to same. Accordingly I refuse and dismiss same.

 

27.       The second declaratory relief sought is for a declaration that the purported termination of the Claimant’s employment by the Defendant under the guise of restructuring of the Olabisi Onabanjo University Primary School Management Board or under any guise whatsoever is unlawful, void and of no effect. This relief must also fail being closely related to the first. Thus it is refused and dismissed Claimant not having proved his entitlement to same.

 

28.       The third relief sought is for a declaration that the new salary scale foisted upon the Claimant between 1st June 2001 to December, 2010 was in breach of the Claimant’s contract of service. Was the alleged new salary scale foisted on the Claimant verbally or in writing? If in writing where is the applicable document? The Claimant tendered Exh. C3 in support of the fact of his complaint following the alleged new salary scale. That exhibit was dated 4/6/02 and addressed to the Pro-Chancellor & Chairman of Council through the Vice Chancellor of the Defendant. It was argued before me that the said exhibit was not delivered to the Defendant and that the Court should discountenance it. I have carefully examined the said Exh. C3.  I find nothing on the 3 page exhibit to show that it was served on and received by the Defendant. Both Yadis Nigeria Limited v. GNIC Limited (2000) NWLR (Pt. 725) 540 & FBN Plc v. SMP Akiri (2013) LPELR-21966(CA) restated the position of the law that the issue of whether a document is received or not is purely an issue of fact to be proved by evidence. Indeed Aderemi JCA (as he then was) of blessed memory was to add emphatically in Yadis’ case that … the credible evidence which can fix the defendant/respondent with the knowledge of the contents of the original is the signature of the designated official of the company …

 

29.       This statement of the law was affirmed by the Supreme Court in Yadis Nigeria Limited v. Great Nigeria Insurance Company Limited (2007) LPELR-3507(SC) with the Supreme Court adding that it is the primary duty of the trial Court to evaluate evidence, make finding of facts, and apportion probative value thereto. I find no evidence of service of Exh. C3 on the Defendant. There is no evidence of receipt of same by the Defendant or any of its staff. Though admitted at trial Exh. C3 has no probative value or evidential utility. Accordingly, I discountenance same as being unhelpful to the determination of this case. In the light of this therefore, I refuse and dismiss this head of declaratory relief for lack of proof.

 

30.       The 4th relief sought is for an Order directing the Defendant to pay all the shortfalls of the Claimant’s remuneration with the yearly incremental steps and promotions due between 1st June, 2001 to May 2015, totaling =N=10,724,083.60 (Ten Million, Seven Hundred and Twenty Four Thousand, Eighty Three Naira, Sixty Kobo). The sum of money claimed under this head of relief revolves around incremental steps and promotions during the periods under consideration. The Claimant is expected to lead evidence as to from which incremental step to which is the shortfalls complained off for this claim. He is also expected to lead evidence as to when he was promoted and from what salary grade level to what salary grade level. Where is the letter of promotion for which he claims financial benefits? Aside from all this, how did the Claimant arrive at the sum of =N=10,724,083.60?  In any event, the sum claimed is a sum certain. This relief is therefore in the nature of a claim in special damages. To succeed in same the Claimant must specifically plead and strictly prove his entitlement. The Court of Appeal in First City Monument Bank Plc v. 12 Basket Foods Limited (2022) LPELR-57910(CA) simply put it thus that “Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim”. Aside from failing to specifically plead his entitlement to this relief, the Claimant also failed to strictly prove as required by law. The relief sought is not proved. Accordingly the relief sought is not granted. It is refused and dismissed.

 

31.       The 5th relief sought is for a Declaration that the purported contract of service dated 28th of November, 2010 which the Defendant surreptitiously foisted on the Claimant to substitute the initial contract of service dated 1st of October, 1996 is void and of no effect. Where is the alleged contract dated 28th of November, 2010? Although Claimant stated that he would rely on the said contract at trial, he however did not tender same. Of a truth a litigant is not obliged to tender all documents pleaded or planned to rely on at trial. However where the success of a relief is hanged on a piece of evidence failure to tender same will adversely affect the case of the party concerned. Therefore this relief suffers the same fate as the reliefs 1 & 2 which were refused and dismissed for lack of proof. I so hold.

 

32.       The 6th relief is for an Order directing the Defendant to pay all the shortfalls of the Claimant’s salary between February, 2011 to May, 2015 which sums up to =N=149,913.53 (One Hundred and Forty Nine Thousand, Nine Hundred and Thirteen Naira, Fifty Three Kobo) when the Defendant unilaterally decided on what to pay. This relief is akin to a claim for special damages. It is not clear how the Claimant arrived at the figure claimed. It is neither specifically pleaded nor strictly proved. I dismiss this relief.

 

33.       The 7th relief sought is for an Order directing the Defendant to pay forthwith the Claimant’s gratuity which is =N=2,442,039.60 (Two Million, Four Hundred and Forty Two Thousand Naira Sixty Kobo) having served the Defendant for Nineteen years before his purported termination of employment. Gratuity is explained by the Court of Appeal in Intels (Nig) Ltd & Ors v. William E. Bassey (2011) LPELR-4326(CA) to be in the nature of fringe benefit given to an employee for a deserving meritorious service. Provisions respecting entitlement to gratuity will ordinarily be contained in the terms and conditions of engagement between the parties concerned. Claimant asserted that he served the Defendant for a period of 19 years before he was disengaged and that he is entitled to the sum of =N=2,442,039.60. The only contract of employment exhibited by the Claimant is Exh. C1. That contract was between the Claimant and Ogun State University Primary School Management Board. The exhibit consists of 10 clauses. Quite apart from the fact that the Defendant was not the party mentioned in that exhibit, the exhibit did not contain any provision respecting issue of gratuity. It might be that the issue of Claimant’s entitlement to gratuity was contained in some other document, but certainly no such document is before the Court to support a finding in favor of the Claimant.

 

34.       Again, I ask how did the Claimant arrive at the figure claimed as his gratuity? How did the Claimant calculate his entitlement to gratuity? All that the Claimant told the Court is that he served the Defendant for nineteen years and that he is entitled to  the sum of =N=2,442,039.60 as gratuity. This head of claim is not proved as required by law. No cogent, credible and admissible evidence is led in support of same. It is accordingly refused and dismissed. It is in the same context that I refuse and dismiss prayer for an Order directing the Defendant to transfer forthwith the sum of =N=574,382.00 (Five Hundred and Seventy Four Thousand, Three Hundred and Eighty Two Naira) being the Claimant’s Legacy Funds to his Pension Fund Account from 1996-2007.

 

35.       The entire case of the Claimant is not supported by evidence. None of the reliefs sought is granted including a prayer for general damages.

 

6.         Conclusion

36.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment the case of the Claimant is dismissed in its entirety.

 

37.       I make no order as to cost.

 

38.       Judgment is entered accordingly.

 

___________________

Hon. Justice J. D. Peters

 

Presiding Judge