Esther Austyn v Leisure Investment Capital Ltd

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 29 May 2020
• Respondent: Leisure Investment Capital Ltd
• Appellant: Esther Austyn
• Docket Number: NIC/ABJ/02/2018
• Counsel: Ofem Obete, Esq; for the Claimant.
• Court: National Industrial Court (Nigeria)

1. This judgment was initially fixed to be delivered on 2/4/2020, however due the lockdown as a result of the outbreak of coronavirus COVID -19 the judgment could not be delivered on that date till today.
2. On 5th of January 2018, the Claimant instituted this suit against the Defendant claiming the following reliefs:
a. DECLARATION that the purported termination of appointment of the Claimant by the Defendant is premature, wrongful at law and contrary to the condition of service of the Defendant and therefore null and void and of no legal consequence.
b. A DECLARATION that the purported termination of the Claimant by the Defendant is premature, wrongful at law and contrary to the conditions of service of the Defendant
c. A DECLARATION that the purported termination of the Claimant’s appointment amounts to a breach of contract and negates all agreement reached between Claimant’s union and Defendant and therefore wrongful, null and void
d. AN ORDER of this Honourable Court compelling the Defendant with immediate effect to pay the Claimant his annual leave allowances assessed at the rate 10% of Claimant basic salary of N648,996 which was due from 2006 till December 2016 before the purported termination of appointment.
e. AN ORDER of this Honourable Court directing the Defendant to pay the Claimant all his pension funds 8% of Basic salary deducted from 2006 till December, 2016 and 12% of the Defendant mandatory pension contribution withheld by her since the Claimant period throughout the Claimant’s employment.
f. AN ORDER of this Honourable court directing the Defendant to pay the Claimant all his entitlements, gratuity, severance package, all benefits flowing from such termination and all pension funds deducted from the Claimant’s salary from the time of his employment till December 2016 and when his appointment was purported terminated.
g. AN ORDER of this Honourable Court, directing the Defendant to pay the Claimant all salaries withheld from January 2017 till the final determination of this suit. IN THE ALTERNATIVE: AN ORDER of this Honourable court, directing the Defendant to pay all the Claimant’s Redundancy benefit to which the Claimant is entitled to.
h. AN ORDER of this Honourable court directing the Defendant to pay the Claimant the sum of N15,000,000.00 (Fifteen Million Naira) only for the severe hardship and serious psychological trauma which the action of the Defendant has plunged them(sic) into.
i. AND FOR ANY FURTHER ORDERS as this Honourable court may deem fit to make in the circumstances.
Claimant’s case.
3. The Claimant joined the services of the Defendant vide letter dated 1/12/2006, exhibit A1-4, as a cashier in the casino section of the Defendant. Vide exhibit B1-3, the Claimant was offered permanent employment with effect from 1/4/2012, on three months’ probation. The Claimant’s employment was purportedly terminated on 22nd December 2016, without notice by the Defendant. At the time her employment was determined, the Claimant was not issued with any letter indicating whether she was dismissed, terminated or affected by redundancy. In fact, there was no mode of communication between the Claimant and the Defendant until this suit was instituted in this court.
4. During the period of employment of the Claimant, the Defendant was involved in a tussle with its employees with regards to workers condition of service and general staff welfare. This resulted in mediation by Federal Ministry of Labour in which communiqué was reached between the parties. In 2016, another communiqué was reached. On May 9, 2016, the Defendant communicated to the Claimant outcome of meeting held with representatives of the Union of workers of the Defendant, exhibit C1-2.
5. It was averred that the Defendant at all times issues the Claimant with a pay slip for every month salary paid. In the pay slips various sums of money were compulsorily deducted every month to a supposed pension fund administrator from 2006 till December 2016, when the Claimant’s employment was terminated. The said pension funds were deducted at the rate of 8% of the Claimant’s basic salary of N648,996.00. The Defendant was also mandatorily contributing 12% of the said basic salary per month, per annum as spelt in the scheme but all these sums were not reflected in any pension manager’s account and in fact were never remitted to any pension manager.
6. It was averred by her employment the Claimant was entitled to payment of annual leave at 10% of her annual basic salary. The Defendant has been deferring payment of the leave allowances to date Claimant has never been paid annual leave from 2006 when she was engaged to Defendant 2016, when she was disengaged by the Defendant.
The Defendant’s case.
7. The Claimant was affected by redundancy because the Defendant was unable to meet its obligations based on lack of patronage of its casino business. That prior to the redundancy in the year 2016, the Defendant’s total number of staff was 131 (One Hundred and Thirty-One) and out of which a total number of 21 (Twenty-One) were affected by the redundancy.
8. Also the Defendant was forced to shut down 4 (four) out of its 9 (Nine) Business Tables at the Abuja office and the Claimant was aware of the challenges faced by the Defendant occasioned by lack of patronage of its business. Consequent upon which the Defendant proposed a 10% (Ten Percent) salary cut because of the Economic Challenges being encountered by the Defendant but the proposal was rejected by the Claimant. The Claimant insisted on a 5% (Five Percent) deduction which was not sustainable by the Defendant.
9. The Claimant was invited by the Defendant but the Claimant refused to accept her letter of redundancy. However the Claimant’s entitlement were paid to her through her usual Bankers, Guaranty Trust Bank Account number 0024523278 in the sum of #450,000.00 (Four Hundred and Fifty Thousand One Hundred Naira) only paid to the Claimant based on a Gross Salary of 75,000.00 (Seventy-Five Thousand Naira) only multiply by 6 (six) Months, along with the sum of N13,976.00 (Thirteen Thousand Nine Hundred and Seventy-Six Naira) only for leave days payment.
10. The following documents were tendered by the Defendant and admitted in evidence as exhibits:
I. GTBank online Transfer Advice dated 16/01/2018, with the following transaction dates 30th January, 2017, 27th February 2017 and 29th March, 2017- Exhibit DW1F 1-3;

II. GTBANK Online Transfer Advice with transaction date 15th August, 2017- Exhibit DW1E 1-3 III. Re: Urgent Request for Statement of Accounts IV. Letter of Redundancy dated 22nd December, 2016- Exhibit DW8

V. Certificate of Compliance admitted as Exhibit- CWA1-2

VI. FCT Health Services Certificate admitted as Exhibit DW1-4; VII. CTC of ARM Pension Urgent request of Accounts- DW-1-5. THE SUBMISSION OF THE DEFENDANT.

11. The Defendant raised two issues for Determination;
1. Whether the Claimant has successfully proved his claim against the Defendant which will entitle the Claimant to reliefs sought?
2. The effect of a party who fail to adduce reliable and credible evidence to prove his case in court
12. In arguing Issue one; counsel for the Defendant submitted that the Claimant in its fruitless attempt to prove her case tendered some evidence, that none of the documents supports, let alone establishes the case of the Claimant. Counsel contended that the Claimant allegation that her appointment was terminated by the Defendant was reflected in the claims before this court particularly paragraph A, B, C, D, F and G of the Claimant’s statement of claim is spurious, spacious, misleading and unfounded. According to counsel it is the claims before this Honourable Court that confer Jurisdiction on this court. In support of this position counsel refers to the case of FEDERAL COLLEGE OF EDUCATION V AKINYEMI (2009) ALL FWLR (PT 465) PG 1791 PARAG.9 AND ENECHUKWU V NNAMANI (2009) ALL FWLR (PT 492) PG 1093 PARAG.12.
13. It is contended that there is no evidence adduced before this court establishing that the Defendant in effect terminated the Claimant’s appointment. This is because the Claimant herself under cross examination admitted that from the date of her employment until she was sent on redundancy the Defendant pays her at the end of each month, and that the Claimant by implication knows that the exercise carried out by the Defendant was a redundancy and not termination as contained in her claims before this Honourable court. It is the contention of counsel that the Claimant failed to adduce either oral or documentary evidence in proving the alleged case of termination of her appointment by the Defendant.
14. It is contended that the position of the law is that, where a fact or facts are pleaded and no evidence is led to prove them, no onus shifts to the other party to disprove the fact or facts that have not been established. They refer to the case of SMITHKLI NE BEECHAM PLC V. FARMEX LIMITED (2009) ALL FWLR (PT 477) PG 568 PARAG.9. It is further argued that any pleaded fact that was not proved or supported by evidence is deemed abandoned and same position was held by the Supreme Court in THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) AND EKE-SPIFF & 3 ORS. 2009 ALL FWLR (PT267 PG 11 PARAG.17. it is submitted that the Claimant having failed to adduce any evidence in proving her claims as contained in paragraphs A,B,C,D,E,F and G, they urge this court to refuse the claims.
15. It is contended that the heavy reliance placed by the Claimant on the letter of employment dated 1st December, 2006 (Exhibit B1-3) and contract of employment dated 1st April, 2012 in a futile attempt to prove his claims reveals that parties thereto can unilaterally determine the contract provided notice if given or payment is made in lieu of notice. They refer your Lordship to Clause 8 of the letter of employment dated 1st December, 2006 and Clause 2 Contract of employment dated 1st April, 2012, which says either party can terminate...