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REPRESENTATION: Claimant present in Court. Defendant absent. Onyedu A.O for the Claimant. JUDGMENT The suit was commenced on the 16th of July 2013. The complaint by which it was commenced was accompanied with Statement of Facts, Statement of Claim, Witness Statement on Oath, List of Witness and documents to be relied on at the trial. The reliefs claimed in the Statement of Claim are as reproduced below: 1. The sum of N522,000 (Five Hundred and Twenty Two Thousand Naira only) as arrears of his salary 2. The sick leave entitlement as calculated as agreed per his letter of employment 3. The sum of N1,000,000.00 (One Million Naira only) general damages and cost of this suit. 4. AND FOR SUCH ORDERS as this Honourable Court may deem fit to make in the circumstances of the suit. On the 25th November 2013 the defence counsel applied to file their memorandum of appearance dated 23rd October 2013 and Statement of Defence out of time. The Application was granted. Subsequently the Statement of Defence was also amended on the 30th December, 2013. The Claimant filed a reply dated 27th January 2014 to the amended Statement of Defence The case of the Claimant is that he was employed by the Defendant as a sales and inventory supervisor on a salary of N40,000 (Forty Thousand naira only) per month per his letter of employment dated 30th may, 2014 admitted in evidence as exhibit A-A5, it is his claim that the Defendant contrary to the terms of their written agreement Exhibit A- A5 only paid him the contracted sum in full from the month of July 2010 to November 2011 after which he started paying him piece meal from December 2011. He claims that the Defendant further refused to pay him his sick leave entitlement as stipulated in their Written agreement Exhibit A-A5 only paid him the contracted sum in full from when he had an accident and had to go on leave on grounds of ill health and all arrears of his salary even after his solicitors had written 2 letters demanding same. Now, it is the case of the defence that the Claimant had been paid his full salary from July, 2010 to December, 2011, and that from January, 2012, it informed the claimant orally of its salary reduction to 30,000 (thirty Thousand naira only) per month which was paid to the Claimant monthly except for the month of September and October, 2012. The Defendant also contended that the Claimants accident was not serious and that it had also orally informed the claimant of the termination of his employment. At the close of the hearing, parties filed their written addresses. The Claimant in his written address formulated a sole issue for determination. This being: “Whether the Claimant has proved his claim and is entitled to the grant of reliefs sought by him per his General form of complaint and Statement of Claims.†The Defendant in its own address formulated two issues for determination. These were: 1. Whether the Claimant has proved his case before this Honourable Court to enjoy the claims and relief sought. 2. Whether the Claimant has placed before this Honourable Court sufficient evidence to enable the Court grant its discretion in favour of the Claimant. The Court looks at the issues as formulated by the parties and formulates the issue for determination thus: Whether the Claimant has proved his case/claim to entitle him to the grant of reliefs prayed for regard being had to the evidence before the Court. A treatment of the above issue as formulated by the Court would lead to a resolution of the matter as filed. It is the evidence of the Claimant that the Defendant employed him per his letter or employment dated 30th May, 2010 (Exhibit A-A5) which said letter of employment was mailed from Lagos State by the Defendant CEO and proved by Exhibit A6, A7 and A8. These exhibits being the Domestic way bill dated February, 16th 2010 of the Red Star Express, A5, A6, A7 being the envelope that contained exhibit A to A5, and A8 being the Red Star plastic envelope, Counsel for the Claimant, states that though the Defendant contested the facts at paragraph 2 of its witness deposition dated 23rd October 2013, and paragraphs 3 & 4 of it’s witness deposition dated 30th December, 2013, it was submitted for the Claimant at paragraph 4.1 of his address that the Defendant have not put before the Court any material evidence which is contrary to the Claimants assertion as it was not sufficient for a party to rely on mere averments that must be substantiated by exhibiting the relevant materials for those averments to be credible and relies on LIVESTOCK FEEDS PLC VS. FUNTUA (2005) ALL FWLR (PT. 286) P. 753 ATP. 771 PARAS C-D. In the Defendant’s written address in support of the first issue they formulated for determination, that is, whether the Claimant had proved his case, to enjoy the claims and reliefs sought. Counsel stated that the general principle is that he who alleges or asserts must prove, relying on A. OLA YUSUF V. ROBINSON OLUSEYI ADAMA (2010) 3 SCJN 95. Where the Court held that the burden of proof rests on the party. Whether plaintiff or Defendant, who substantially asserts the affirmative of the issue. Counsel for the Defendant states that the Claimant in this case has only stated that he was owed salary from December, 2011 to November 2012. He neither stated or proved in anyway in both pleading and in the trial a particular mode in which his salary was paid to him right from the day he was employed. That the employment letter issued to the Claimant by the Defendant’s Director when he was employed did not go further to show the way or manner the Claimant is to be paid his salary, that the Claimant read this employment letter and accepted all the terms and conditions and signed it, meaning he had admitted all the conditions and the manner he would be paid, whether a table payment, through his bank account number or by any other means by the Defendant. Counsel for the Defendant stated further that the Claimant did not give any evidence of his piecemeal payment of salary from December, 2012 to October 2013, that he did not apply that such record book of payment be brought and be tendered in Court and stressed that the Court is not a Father Christmas and cannot grant reliefs not prayed for without evidence from the Claimant in proof of his case. Relying on SPASCO VEHICLE PLANT HIRE CO LTD V. ALRAINE LTD (1995) 32 LRCN 479 At 491 p 2 and COMMISSIONER FOR WORKS, BENUE STATE V. DEVCOM DEVELOPMENT CONSULTANT LTD ( 1988) 3 NWLR (pt 83) 407, that the Court and parties are bound by the reliefs or prayers before the Court. On the second issue whether the Claimant placed sufficient evidence before the Court. The Defendant submits that no evidence has been led in proof of the assertion by the Claimant that he has been working without receiving his pay. The Defendant had averred that the Claimant was paid N40,000 per month from July 2010 to December 2011 but sometimes in the month of January 2012 the Defendant and Claimant agreed that as a result of poor trade and financial returns which shrank the business and led to indebtedness of the Defendant, some staff left, a nurse, a sales person and a pharmacist, leaving only the Claimant and the Defendant, that due to the relationship the Claimant had with the Director. He was notified as at January 2012 of his salary reduction by N10,000 to N30,000 (Thirty Thousand Naira) and any objection in writing against the reduction was waived as the Claimant was paid N30,000 consistently until August 2012 and he collected same until when he was notified that his services were no longer needed by the end of October 2012 and due to the financial difficulties the Defendant was undergoing, it could not pay the Claimant for September and October, 2012. The Defendant states further in the address that the disagreement that arose between the Claimant was as to entitlement which the Defendant puts at 160,000 as claimed by the Claimant. While the Defendant is contending that it owes the Claimant the sum of N60,000 for September and October 2012 which amount they assert that the Claimant has not proved that he has not received the amount in which the Defendant affirmed to have paid him. The Defendant asserted further that it has always been carrying out its transactions with the Claimant informally as a small concern of 2 workers which was why the problem of salary reduction was not put into writing. The Defendant further asserted that though the letter of employment was in writing, the absence of pay slips support the inference that the parties dealt informally with themselves. Counsel submitted for the defendant that a contract of employment can be terminated for any reason good or bad or for no reason at all, that Courts do not force an employee on an employer as the Claimant is asking. Counsel submits that the measure of damages in cases such as this is the salary and that the claim for general damages is unfounded. Since the claimant had two months notice in place of one in his letter of employment. Counsel relied on the case of INTERNATIONAL DRILLING CO. NIG. LTD V. MOSES EYIMOFE AJIALA (1997) ALL NLR 97. Counsel submitted further that no treatment for the fracture at the teaching hospital was proved and relied on the case of VEHICLE & PLANT HIRE CO. LTD V. ALRANE (supra) that exhibits B and B1 from Wilbasun Hospital did not show that the Claimant was seen by a medical doctor. In these premises the Defence urged the Court to find and hold that the Claimant had failed to prove his claim by credible evidence and urged the Court to dismiss the claim. In the Claimants Final Written address is formulated this sole issue for determination to wit: “Whether the Claimant has proved its claim and is entitled to the grant of the reliefs being sought by him per his General Form of complaint and statement of Claimsâ€. In the Defendant’s reply on points of law, Counsel submitted in response to the Claimants’ assertion on the failure by the Defence to call 2 witnesses it had intended to call, the witnesses having deposed to witness Statements on Oath, Counsel submitted that the Evidence Act 1 in Section 200 provides that except as provided in Section 201 to 204 of the Act no particular number of witnesses shall, in any case, be required in proof of any fact. He cited and relied on MOGAJI & OTHERS VS ODOFIN & OTHERS (1979) SC91 at 93-5. Where it was decided that a civil case is decided by the probative value of the evidence of testimony of witnesses which is the balance of probability and not by the number of witnesses called by each party. That the burden is on the Claimant to prove his case. Counsel submitted on the reduction of Claimant salary and the piecemeal payment that the course of the conduct between parties can establish that there is a contractual agreement, if the parties have acted in certain ways that supports the assertion of a contract like in service for payment. That the Claimant never wrote to the Defendant complaining of the piecemeal payment of his salary. Counsel relied on BAILIOL NIG. LTD VS. NAVCON NIG. LTD (2010) 16 NWLR (pt 1220) 619 Sc where the Court held that a latter agreement by parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract. Counsel then stressed that it is clear that if the Claimant did not accept the reduction the Defendant might have brought the relationship to an end given that it could no longer pay other staff who had left. That burden of proof was on the Claimant and reliance was placed on KOKOIWO VS. OGUNBAMBI (1993) 8 NWLR (pt 313) 627 and OLUFOSOYE VS. FAKOREDE (1993) 1 NWLR (pt. 272). Counsel submitted lastly that even if the Claimant was wrongly terminated the measure of damages is clearly determined by paragraph 7.2 of the employment letter. He relies on INTERNATIONAL DRILLING CO. VS. AJIJALA (supra) and SULE VS. NIGERIAN COTTON BOARD (1985) 2 NWLR PT 5) 17. From the foregoing, the following facts appear clearly. These are: 1) The Defendant employed the Claimant by virtue of Exhibit A to A5 on May 30th 2010. He started work on 2nd July 2010. 2) The Defendant offered to reduce the Claimant’s salary by N10,000 (Ten Thousand Naira) in January 2012 3) The Claimant refused but accepted payment of the reduced salary for the period of January 2012 to October 2012. 4) This offer to reduce the Claimants salary operated as a gentleman’s agreement 5) Claimant was last paid in August 2012 6) The Claimant’s employment ended in October 2012. Arising from the facts equally are the following issues to take in to consideration to enable the Court reach a just determination having regard to the law. The Claimant claims arrears of salary from December 2011 amounting to a sum of N522,000 (Five Hundred and Twenty two Thousand. In addition he claims the sum of N1,000,000 (One Million Naira) as general damages and cost of the suit, he also claims leave entitlement in (unspecified sums) as calculated and agreed as per his letter of employment. All these claims were denied strenously by the defendants. However, the Defendant concede somewhat, that what is owed the Claimant is the sum of N60,000, for the month of September and October 2012. Since as they contend the Claimant had agreed to salary reduction from January 2012. The law, with regard to disputes arising between employers and employees, rests in the terms agreed between the parties. In this case the provisions of Exhibit A to A5 would have to be construed against the backdrop of the evidence adduced by the parties. In AKINFE V. U.B.A PLC (2007) 10 NWLR (pt. 1041) 185 it was stated that a contract of service is a bedrock upon which an aggrieved employee must found his case, he succeeds or fails on the terms thereof. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. Exhibit A- A5 provides in clause 4 regarding salary. “You will receive a gross monthly salary of N40,000 in the terms of the annexure to this letter. This salary will be paid in arrears at the end of the month and will be subject to normal statutory deductions.†At clause 6.5 on sick leave, it is provided: “In any one calendar year, you may claim time off on the grounds of illness subject to a maximum of 3 working days on full pay. A further 15 days may be claimed on half pay. Any leave taken in excess of 45 days will be unpaidâ€. At clause 7.1, headed confidentiality of salaries it is provided: Information relating to salaries and other benefits at personal and should be treated confidentially. At clause 7.2 on normal termination it is provided. Termination of this contract is subject to one month notice, in writing or payment of one month’s salary in lieu of notice. From the above provisions of Exhibit, A – A5, and having found as a fact that the agreement to reduce the claimant’s salary was more of a gentleman’s agreement which I hold the Defendant’s unable to rely on given the detailed provision of the terms of employment. For instance clause 7.1 requires confidentiality on the issue of salaries and benefits. The defendant would have had to put this in writing. However they did not do this. A gentle man’s agreement cannot generally be enforced. See Union bank of Nigeria Plc. vs. Chinyere (2012) 2 NWLR pg 61-62 and A.CB v. Nbisike (1995) 8 NWLR (pt 416) 725 Texaco v. Kehinde (2002) FWLR @ pt 94 I find and hold that the Defendant cannot, in the face of clause 4 that stipulates a salary of N40,000 per month as salary maintain that N30,000 would be the new salary. I so hold. It is the duty of the employer to pay wages remuneration, or a salary which is determined by a letter of appointment see Jeremiah v. Ziregbe & Anor (1996) 7 NWLR part 347 at 356. I had found earlier as a fact that the payment of the Claimant’s salary at N30,000 a month was from January 2012 to August 2012 and his salaries for September and October 2012. On this basis, a claim for salaries and arrears of salary as claimed by the Claimant put at N522,000 (Five Hundred and Twenty Two Thousand Naira) is not proved. The Claimant could not demonstrate how he came about this figure on a month by month basis or by simple tabulation of how the sums added up to that figure. Applying simple arithmetical values to the periods complained of as when Salaries were paid piecemeal amounts to N80,000 for January to August 2012 at N10,000 per month, and N80,000 for the months of September and October 2012 at N40,000 a month. The total amount payable to the Claimant being the sum of N160,000 (One Hundred and Sixty Thousand Naira only). This is what I hold, should be paid to the Claimant. From the fact of the case and the evidence led, I hold and I find that the Claimant has not suffered any damages to warrant the claim for N1,000,000 (One Million naira). This claim is dismissed. Regarding the claim for leave entitlement as calculated and agreed per his letter of employment. I have gone through the letter of employment, exhibit A-A5 and it provide for sick leave but it does not give a formula or an idea how an ascertainable figure can be worked out. The claimant has not given evidence on a specific amount but he gave evidence of his accident and this, the Defendant disputes. It is a legal cliche that the court cannot act as a Father Christmas. It goes without saying at this point that the Claimant should have been specific with his claim and not vague. The Court can therefore go no further in making any order on this head and I cannot grant this head of claim. It is therefore dismissed. See FATUNBI V. OLANLOYE (2004) 12 NWLR 9PT. 887) 229 AT 256 PARA D-E per Musdapher J.S.C and Hona V. Idakwo (2003) 11NWLR (pt 830) 53 at 86 para F- G per Edozie JSC. On the whole, I make no order as to costs, the Claimant’s claim succeeds only in part of the first head of claim, the other heads of claim are dismissed. Judgment is entered accordingly. ________________________ HON. JUSTICE E. D. E. ISELE JUDGE