IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

DATE: MAY 23, 2025                                                          

SUIT NO: NICN/ABJ/352/2017

 

BETWEEN                                

MS. CLEGG IBUKUN ZAINAB                                                                    CLAIMANT

             

AND

INTERNATIONAL FERTILIZER DEVELOPMENT                                         

CENTER (IFDC)                                                                                    DEFENDANT

                                                                                                                         

REPRESENTATION

Charles U. Abalaka for the Claimant, with O.H. Baba

Ahmed T. Uwais for the Defendant, with O.V.Ogedegbe, Muazzam Rabiu.

 

JUDGMENT

Introduction and Claims

 

[1] The Claimant filed this Complaint against the Defendant on December 04, 2017 together with the accompanying processes. By order of Court, the Claimant filed an amended statement of facts dated 24^th  May 2018 seeking for the following reliefs:

a.      A Declaration that by virtue of the Defendant’s failure to issue the Claimant one (1) month notice of termination of employment and its failure to pay one month salary in lieu as contained in the Claimant’s employment letter, the purported termination of the claimant’s employment by the Defendant is null and void.

 

b.     An Order directing, mandating and compelling the Defendant to reinstate the Claimant forthwith with all his entitlement, benefits, allowances, promotions connected therewith from the date of termination of employment till date.

 

c.      An Order compelling the Defendant to pay the Claimant her remuneration/salaries from the month of January, 2017 inclusive of the date of purported termination of her employment being 27th January, 2017 till the final determination of the suit on the ground that her employment was not validly terminated in line with the Defendant’s offer letter duly accepted by the Claimant.

 

d.     An Order directing, mandating and compelling the Defendants jointly and severally to reinstate the Claimant forthwith with all his entitlements, benefits, allowances, promotions concerned therewith from the date of termination of employment till date.

 

e.      An Order compelling the Defendant to pay the Claimant the sum of N50, 000,000.00 (Fifty Million Naira only) as general damages for the unlawful termination of the Claimant’s employment.

 

f.        Twenty-Two percent (22%) post judgment interest per annum until the judgment sum is fully liquidated.

 

g.      Cost of instituting this action.

[2] The Defendant filed a statement of defence and a counter claim together with the accompanying processes on 24^th January 2018. The Defendant counter claimed as follows:

a.         An Order of this Honourable Court compelling the Claimant to pay the Defendant/Counter Claimant the sum of N609,705.50 (Six hundred and Nine Thousand, Seven Hundred and Five Naira, Fifty kobo) only, being the value of the office stationary, toiletries and to also replace the missing HP Laptop containing sensitive official information and data that got missing under the care of the Claimant, to enable the Defendant Counter/Claimant pay the Claimant her end of service entitlements including the one (1) month salary in lieu of the Notice.

OR IN THE ALTERNATIVE: 

a. An Order of this Honourable Court compelling the Claimant to render account to the Defendant/Counter Claimant for the HP Laptop containing sensitive official information and data, office stationary and toiletries value at the sum of N609, 705.50 (Six Hundred and Nine Thousand, Seven Hundred and Five Naira, Fifty kobo) only to enable the Defendant pay ther Claimant her and of service entitlements including the one (1) month salary in lieu of the Notice.

b.         An Order of this Honourable Court compelling the Claimant to pay the Defendant/Counter Claimant the sum of 2000 U S Dollars or its equivalent in Naira being the monetary liability incurred by the Defendant/Counter Claimant as a result of the Claimant’s action and failure to carry out the instruction of the Defendant/Counter Claimant of rending account of the Defendant’s office stationary and toiletries placed under her care.

c.         An Order of this Honourable Court compelling the Claimant to pay the  Defendant/Counter Claimant the sum of N100,000,000.00 (One Hundred Million Naira) only as a general damages for unnecessary litigation against the Defendant/Counter Claimant.

The Claimant the filed a defence to the counter claim on April 09, 2018.

Case of the Claimant        

[3] The case of the Claimant on the pleading is that sometime in September, 2012 she entered into a contract of employment with the Defendant for one year starting from September, 2012 to August, 2013 which duration was extended various times. The Claimant averred further that by a letter dated December 7^th, 2016 the Defendant extended her contract till the January 31, 2017. She stated that by Article 12 of the Contract of Employment, the Defendant is to give her one month notice prior to the expiration of the contract of employment. The Claimant averred that ten days to the expiration of the extension of her contract employment, on the 20^th January, 2017 she received a letter from the Defendant captioned ‘Confirmation of End of Contract’ contrary to the agreed one month notice.

[4] She further stated that on the 25^th January, 2017, the Defendant wrote a letter to her titled ‘Outcome of performance evaluation– year 2016’ where in the Defendant appreciated her performance with a salary increase of 3.5%  to the sum of Two hundred and Sixty Six Thousand, Nine Hundred and Thirty Naira, Sixty Four Kobo (N266, 930.64). The Claimant averred that four days to the end of her contract, on the 27^th January, 2017 the Defendant wrote a ‘Notice of termination of Contract’ to her and retrieved her official identity card and barred her from the office since the 31^st January 2017. The Claimant averred that the Defendants never gave her the mandatory one months notice prior to the termination of her contract as contained in the contract employment between her and the defendant.

[5] The Claimant averred further that the termination of her contract of employment by the Defendant did not follow due process as stipulated in the contract. The Claimant further averred that since the termination of the contract of employment by the Defendant, she has suffered emotional torture leading to her being depressed as the action of the Defendant was a huge shock to her. The Claimant stated that she engaged the law firm of Agala & Agala Chambers to institute this action; and that the firm charged her the sum N500,000.00 as Solicitor’s fees. The Claimant avers that the Defendant has not  paid her salary, entitlements, allowances and leave bonuses since 31^st January, 2017 till date and that her family had suffered as a result of the ill-treatment she had suffered and still suffering in the hands of the defendant. The Claimant avers that the Defendant breached the terms of the contract of employment.

Case of the Defendant

[6] The case of the Defendant on the pleadings is that it did not bar the Claimant from the office but the Claimant is avoiding and evading the Defendant. The Claimant stated that it has severally invited the Claimant by e-mail messages and letter dated November, 22, 2017 but the Claimant has failed and refused to visit the Defendant’s office to give account of items in her possession such as HP, Pro Laptop with asset tag 3612 and office supplies and stationary. The Defendant averred that it has agreed to pay the Claimant one month salary in its letter/notice of termination of contract. The Defendant averred that the termination of contract of employment of the Claimant followed due process.

[7] The Defendant stated that the Claimant is not entitled to be paid salary, entitlements, and allowances and leave bonuses from 31^st January, 2017 till date. That she is only entitled to one month salary in lieu of prior notice of termination of contract as indicated 5.25, paragraph 5.25.1.6 of the personnel Manual and her end of service entitlements as contained in the Human Resources Manual. It averred further that the procedure adopted in the termination of the contract of employment complied with the terms of the Contract.

[8] On the counter claim, the Defendant averred that the Claimant’s job description as Project Assistant requires her to take inventory and maintain an up-to-date project inventory list, monitor and maintain the project stationary and office supplies. That Claimant failed, refused and neglected to account for IEDC office stationary and toiletries placed under her care despite repeated demands and an official HP Laptop which was declared missing. The Defendant averred that the Claimant was instructed in the Notice of Termination of Contract dated January 27, 2017 that before the payment of her end-of-service entitlements, she should hand over all materials in her possession but she failed to comply with that instruction. The Defendant averred that the Claimant’s action has cost it monetary liability because it has had to engage the services of a lawyer who charged the sum of 2000 US Dollars to represent the Defendant in Court.

Final Address

 

[9] The Defendant’s final address is dated February 14, 2024 and filed on the same day. The Claimant’s final address is dated November 11, 2024 and filed on the same day. In the absence of counsel, the final addresses were deemed adopted in line with the Rules of Court.

 

[10] The Defendant submitted one issue for determination:

 

Whether the employment of the Claimant was lawfully terminated or not?

[11] Learned Counsel submitted that the contract of employment was lawfully terminated in line with the contract. He further submitted that parties are bound by the terms contained therein, particularly where the terms are clear and unambiguous, citing Nigerian Cement Co. Plc & Ors v Obidike [2015] LPELR 40647 (CA). He submitted that an employment for a fixed period of time will be terminated automatically at the expiration of such period in the absence of any extension of the employment, relying on section 9(7)(a) Labour Act. That the Claimant with or without notice is aware of the duration of her contract especially as the contract is for a fixed period of one year. Counsel contended that an employment for a fixed period needs no formal notice of termination and the effluxion of time or performance/completion of the job automatically discharges the contract. Counsel argued that Exhibit C5 and D8 the notice of termination is a mere reminder of to the Claimant whose employment is for a fixed period.

[12] Learned Counsel submitted further that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not allowed to add to, vary, subtract from or contradict the terms of the written instrument; and where there is any disagreement between the parties to a written agreement on any point, the authoritative or legal source of information for the purpose of resolving the disagreement or dispute is the written contract executed between the parties, citing Christaben Groups Ltd v Oni (2008) 11 NWLR (Pt. 1097) 84, 111 or (2008) LPELR - 5157, Union Bank (Nig) Ltd v Ozigi (1994) 3 NWLR Pt. 333) 385. He  submitted that on the evidence adduced, the Defendant has proved the counter-claim which is an independent action and it needs not relate to or be in any way connected with the Claimants' claim or rise out of the same transaction citing Oroja & Ors. v. Adeniyi & Ors [2017] LPELR-41985(SC). Counsel in conclusion urged the Court to dismiss the case of the Claimant and grant the Defendant’s Counter Claim.

 

 

 [13] The Claimant submitted three issues for determination:

1.      Whether the Witness Statement on Oath of Adetoro Aderele which was signed at her solicitor’s office is competent before this Honourable Court thus providing any valid evidence in support of the Defendant’s Statement of Defence and Counter-Claim?

 

2.      Whether the Defendant’s Exhibits D1, D6, D7, D8, D9, D10, D11, D12 and D13 are not liable to be expunged from evidence as Exhibits before this Honourable Court having been admitted in violating of relevant provisions of the Evidence Act, 2011?

 

3.      Whether the Claimant is not entitled to the grant of all her reliefs sought in the circumstance of this case?   

[14] Learned Counsel began by stating that the Claimant was withdrawing reliefs 2 and 4 on jurisdictional grounds and urged the Court to strike them out. He then raised a preliminary objection to the competency of the Defendant’s final address. He submitted that the Defendant’s final address is incurably defective as it failed to comply with the mandatory provisions of Order 45 Rules 2, 3(1) and 9 of the Rules of Court 2007. Counsel contended that the address was filed outside the mandatory 21 days after the close of hearing without the leave of Court, and did not comply with the format on structure.

[15] Learned Counsel submitted on issue 1 and 2 that a witness statement on oath not sworn to before a Commissioner for Oaths cannot be regularized by subsequent adoption of same in open Court and so the same is incompetent and liable to be stuck out, citing Igbu & Ors. v. Imande & Anor. [2022] LCN/16842 (CA). He submitted that it is trite law that where pleadings are unsupported by evidence, they are liable to be struck out, citing Ubom & Ors v. Ekanem & Ors [2017] LPELR – 43372 (CA). He further submitted that the Court ought to expunge the Defendant’s Exhibits D1, D6, D7, D8, D9, D10, D11, D12 and D13 from the records as the statement on oath with which they were tendered is incurably defective. Learned Counsel contended that Exhibit D7 is a photocopy of a Police Extract which by law is inadmissible, being a public document, relying on Section 90(1) C of the Evidence Act; Danguru v. Unity Bank Plc [2014] LPELR– 23987 (CA). Counsel submitted that Exhibit D13 is an unsigned document to which this Court ought to attach no probative value. citing Omega Bank v. O.B.C [2005] LPELR–2636 (SC).

[16] Learned Counsel submitted on issue three the Claimant has furnished sufficient unchallenged evidence before the Court to merit a grant of the declaratory relief to the effect that the termination of the Claimant’s employment with the Defendant was wrongful, citing Institute of Health Ahmadu Bello University Hospital Management Board v. Mrs. Jummai R. I. Anyip [2011] 12 NWLR (Pt.1260) at 6. Counsel submitted that a successful party is entitled to general damages and costs as may be discretionally awarded by the Court, citing ELF PETR, Nig. Ltd.v Umah [2018] 43 W.R.N. 6-7.; Osuji v. Isiocha [1989] 3 NWLR (Pt. 111) 6223 at 540.

Decision

[17] I have carefully considered the originating processes, the evidence adduced, the submissions of Counsel and authorities relied on by parties in their final addresses. The Claimant in final address has asked for leave to withdraw reliefs (b) and (d). Consequently, reliefs (b) and (d) are struck off this suit. The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provides for his rights and obligations, and the manner such terms and conditions were breached; see UTC (Nig) Plc v Peters (2022) 18 NWLR (Pt 1862) 297, Oforishe v Nigerian Gas Co Ltd (2017) LPELR-42766 (SC), Buka Modu Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 15, , Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. The Claimant has placed in evidence her contract of employment (Exhibit C1), amendment to contract (Exhibit C2), confirmation of end of contract (Exhibit C3), performance evaluation (Exhibit C4), notice of termination (Exhibit C5), demand letter (Exhibit C6), reply (Exhibit C7), Solicitors fees (Exhibit C10), hand over report (Exhibit CIZ 1).

[18] The Defendant/Counter Claimant in support of its counter claim has placed the following documents before the Court, human resource manual (Exhibit D1), emails (Exhibits D2, D3, D4, D5), Requests to reconcile (Exhibit D6), Police Extracts (Exhibit D7), notice of termination (Exhibit D8), contract of employment (Exhibit D9), amendment to contract (Exhibit D10), handover report (Exhibit D11), invoice (Exhibit D12), unaccounted office stationary (Exhibit D13), waybill (Exhibit D14).

[19] I will begin with the preliminary issues raised by learned counsel to the Claimant. The first is that the Defendant’s final address is filed out of time, and is not in accordance with the content and format of written addresses as provided by Order 45 Rules 2, 3(1), and 9 of the Rules of Court and therefore incompetent. By the provisions of Order 5 Rule 1, failure to comply with any of the Rules may be treated as an irregularity and the Court may give any directions as it thinks fit. Applying the provisions of Order 5 Rule 3 and 4, I authorize a departure from the Rules in the interest of justice and deem  the Defendant’s final address competent.

[20] The second preliminary issue is whether the witness statement on oath of Adetoro Aderele that she stated in cross-examination she signed at her Solicitor’s office is competent? It is the law that a deposition on oath must be signed by the deponent in the presence of the person authorized to administer oaths, failing which the deposition on oath must be discountenanced as the defect is fundamental. It is a defect as to substance, see Ashiru v INEC (2020) 16 NWLR (Pt 1751) 416, Abubakar v INEC (2022) 8 NWLR (Pt 1833) 463, Igbu & Ors v Imande (2022) LCN/16842, Okobiemen v U.B.N. Plc (2019) 4 NWLR (Pt 1662) 265. The statement on oath cannot be regularized by subsequent adoption in open court. It is a situation where the witness has given no evidence. You cannot place something on nothing and expect it to stand UAC v Macfoy (1962) AC 152 The statement on oath of DW is incompetent, and evidence of DW at the trial is to no avail. Consequently, all the documents referred to and relied on in the incompetent statement on oath by DW are expunged from the records. The effect is that the there is no defence to the Claimant’s case.

[21] The issues for determination are as follows:

1)     Whether on the pleadings and evidence the Claimant is entitled to the reliefs she is seeking?

 

2)     Whether the Defendant/Counter Claimant has proved the counter claim?

[22] The effect of a party’s failure to defend a claim against him/her is that he/she is presumed to have admitted the case made against him/her by the other party; and a trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd supra, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316. This however does not mean automatic victory for the Claimant because she must succeed on the strength of her case and not rely on the fact that there is no defence before the Court. The absence of a defence does not exonerate the Claimant of the evidential burden of proof placed on her in section 131 (1) & (2) Evidence Act 2011.

[23] The Defendant by Exhibit C3 dated January 20, 2017 informed the Claimant that her contract would “officially expire” on January 31, 2017. The Defendant issued the Claimant a notice of termination of her employment contract reproduced as follows:

 

 

January 27, 2017

Ms. Ibukun Zainab CLEGG

 

Subject: Notice of Termination of Contract

Dear Ms. Clegg,

This refers to Article 12 of your employment contract numbered # 1-412-0912-NG/MARKETS II dated September 1, 2012 which officially expires on January 31, 2017.  Please note that your contract will end on that date and this letter serves as the one-month notice.

Furthermore, as the contractual period of the project you were hired for has come to an end, you will receive payment in-lieu of the 1-month notice period alongside your final payment.

Your end-of-service entitlements as per our policy in the personnel manual will be included in your final salary payment.

Please arrange to return all materials in your possession as well as any data or reports to your immediate supervisor for clearance prior to the settlement of your entitlements.

Best regards,

Dr. Oumon Camara

Deputy Director, IFDC North and West Africa

 

[24] The Claimant’s grouse is that the termination of her contract of employment did not follow the process stipulated in the contract of employment. Article 12 of the contract of employment (Exhibit C1) provides:

The present contract can be terminated in the face of a breach or a serious offence on the part of one or the two contracting parties. In the event of non-renewal of contract, the party found to be the initiator of such a move, shall issue to the other party, one month’s notice prior to the expiration of the present contract.

[25] The notice of termination states that the Claimant is to receive payment in lieu of one months notice alongside her final payment. The law requires that the Defendant having terminated the Claimant’s employment without giving one month’s notice must pay her one months salary in lieu of notice at the time her employment was terminated  on January 31, 2017. The failure to do this is a breach of the employment contract, see Chukwumah v Shell Petroleum Development Co. Ltd (1993) 4 NWLR (Pt 289) 512; (1993) LPELR-864 (SC) at 28 -29. I hold that the termination of the Claimant’s employment without giving her one months notice, and the non-contemporaneous payment of one months salary in lieu of notice on the 31 January 2017 makes the termination wrongful. The Defendant is ordered to pay to the Claimant, the sum of N266,930.64 (Two hundred and Sixty Six Thousand, Nine Hundred and Thirty Naira, Sixty Four Kobo (N266,930.64) being one month salary in lieu of notice.

[26] The Claimant asserts that the Defendant failed to pay her January 2017 salary and allowances, and her end of service entitlements. The Defendant admits this fact in its pleadings but on the ground that the Claimant failed to properly handover and obtain a clearance. It is the law that parties are bound by their pleadings Anyafulu v Meka (2014) LPELR-22336 SC. The Claimant testified under cross-examination that she handed over to Mrs Blessing Ada. Her handover notes are in evidence (Exhibit CIZ 1). The Defendant is ordered to pay the Claimant her January 2017 salary and allowances, and her end of service benefits forthwith.

[27] The Claimant has made a claim for general damages. The Defendant failed to pay the Claimant salary in lieu of notice in breach of the employment contract, her January 2017 salary and her end of service entitlements. There can be no doubt that the Claimant who has been deprived of her earnings has suffered financial damage that naturally flows from the breach. The value of the Naira in year 2017 when these sums ought to have been paid is not the same value in 2025 due to the depreciation of the Naira. The Claimant is entitled to an award of general damages pursuant to the provisions of section 19(d) of the National Industrial Court Act 2006 as compensation for the loss of the use of her money. See Units Environmental Science Ltd v Revenue Mobilization And Fiscal Commission (2022) 10 NWLR (Pt 1837) 133 at 162 -163 Paras B-F, G-B. I hereby award the Claimant the sum of N1,601,583.84 (One Million Naira, Six Hundred & One Thousand, Five Hundred & Eighty Three Naira, Eighty Four Kobo) being the equivalent of six (6) months base salary as general damages.

[28] On the Defendant’s counter claim, the law is settled that where a party to an action fails to or does not lead evidence in support of the averments in his/her pleadings, the averments will be taken as having been abandoned; see Help Ltd v Silver Anchor Ltd supra, Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd (2006) supra. There is no evidence in support of the Defendant’s counter claim having found that the statement on oath of DW is incompetent. The pleadings of the Defendant are therefore deemed abandoned. The Defendant’s counter claim is dismissed for want of proof.

  

[29] For all the reasons given above, I hereby declare and make the following orders:

a.      It is declared that the Defendant’s failure to issue the Claimant one (1) month notice of termination of employment and its failure to pay one month salary in lieu of notice as contained in the Claimant’s employment letter, the termination of the Claimant’s employment by the Defendant is wrongful.

 

b.     The Defendant is ordered to pay the Claimant one month base salary in lieu of notice in the sum of N266,930.64 (Two Hundred and Sixty Six Thousand, Nine Hundred and Thirty Naira, Sixty Four Kobo (N266,930.64).

 

c.      The Defendant is ordered to pay the Claimant her salary and allowances for the month of January 2017; and her end of service benefits.

 

d.     The Defendant is ordered to pay the Claimant general damages in the sum of N1,601,583.84 (One Million Naira, Six Hundred & One Thousand, Five Hundred & Eighty Three Naira, Eighty Four Kobo).

 

e.      Costs awarded the Claimant on the main claim N250,000.00; and on the counter claim in the sum of N250,000.00.

The monetary awards are to be paid within 14 days. Thereafter, any sum outstanding will attract interest at the rate of 15% per annum.

Judgment is entered accordingly.

 

                                    ______________________________

                                    Hon Justice O.A. Obaseki-Osaghae