IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/YL/06/2014
DATE: MAY 17 2018
BETWEEN:
YUSUF YAHAYA – CLAIMANT
AND
FEDERAL ROAD SAFETY COMMISSION – DEFENDANT
REPRESENTATION:
S. Wilson, Esq – for Claimant;
M.P Atsev, Esq, (Holding the Brief of A.M Mshelie, Esq) – for Defendant
JUDGMENT
The Claimant instituted this action at the then Yola Registry of this Court (now Yola Judicial Division) vide a Complaint dated and filed on 5th November 2014, along with other frontloaded court processes against two Defendants; Federal Road Safety Commission and the Attorney General of the Federation as the 2nd Defendant, whereby he challenged the termination of his employment with the services of the 1st Defendant. However, following the Ruling on a Notice of Preliminary Objection dated 6th January 2015, the 2nd Defendant was struck out for not being a proper party to the suit, and thus no longer a party in the proceedings, leaving the 1st Defendant as the only Defendant in the Suit.
The Claimant was a former employee of the Federal Road Safety Commission (FRSC), whose appointment as a Road Marshall II was terminated by the FRSC on the ground that ‘his services is no longer required’, whereas the Claimant believed it was on account of a rape allegation leveled against him by his colleague, of which he was served query and appeared before a Disciplinary Panel set up by the Defendant, which later indicted him.
He sought for the following Reliefs:
“(i). A declaration that the termination of employment of the [Claimant] is a breach of the contract of employment of the [Claimant] as same is illegal, malicious, null and void, not founded on any fact or finding of fact against the [Claimant] by the Defendants and a breach of the [Claimant]’s fundamental right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria, section 36 of the 1999 Constitution thereof;
(ii). A declaration that an allegation of rape is criminal in nature and cannot be deliberated upon by the defendants, as it is an issue within the exclusive jurisdiction of a court of law;
(iii). An Order of the Hon. Court directing the Defendants to reinstate the plaintiff to his position with the 1st Defendant;
(iv). An Order of the Honourable court directing the 1st Defendant to pay the [Claimant] all outstanding arrears of his entitlements and / or benefits with the defendants from the date of [termination] of his employment up to the date of judgment;
(v). The sum of N1,000, 000.00 as general damages to the plaintiff for the hardship he suffered as a result of the wrongful termination of his employment;
(vi). The cost of the suit.
The Originating Court processes were served on the Defendants at Abuja, Federal Capital Territory (FCT). After several adjournments/proceedings at Jos Division, the matter was transferred to Yola Division following the commencement of sitting of the Court in Yola Division, and the matter came up for mention on 11th October 2017, the very day this court formally started proceedings at Yola Division. Hearing started on the matter on 3rd November 2017.
At the hearing, the Claimant who was his own sole Witness testified for himself, adopted his Written Statement on Oath sworn to on 15th November 2014, and tendered 6 Exhibits admitted and marked as Exhibits CY1- 5 A & B”, described as follows: (1). Claimant’s letter of provisional offer of appointment dated 18/05/1996 with Ref. No.FRSC/HQ/A/3 (Exh. CY1); (2). Medical Report signed by Dr. D.I. Okuobeya dated 18/09/2013 (Exh.CY2); Letter of Termination of Appointment dated 06/03/2014 with Ref No. FRSC/HQ/AHR/696/Vol.II/49 (Exh. CY3); Claimant’s letter of Appeal dated 30/04/2014 (Exh. CY4); Claimant’s Solicitors’ letter dated 19/08/2014 (Exh. CY5A) and another Claimant’s Solicitors’ letter dated 08/09/2014 (Exh.CY5B). Another Exhibit (Claimant’s confirmation of appointment dated 24th February 1999) was tendered through the Defendant’s Witness (DW) during cross examination, and marked Exh. DY3.
The crux of the Claimant’s case, as disclosed in his pleadings and testimony in court, is that, sometime on 18th May 1996 he was employed as a Road Marshall II by the FRSC as per his letter of appointment dated 18/05/1996 (exh.CY1), and he served in various capacities in various States of Nigeria without blemish until sometime in 2013. Whilst he was serving in Karu, Nassarawa State, his colleague and flat mate (one Marshall Bitrus Moses) accused him of raping his sister-in-law (one Ringna Faith Kefas). That the matter was reported to his office and he was invited to appear before the investigation panel where he vehemently denied the allegation, whereupon a comprehensive medical test was conducted on the alleged victim of the rape by one Dr. D.I Okuobeya of the FRSC Medical Centre, HQ Abuja. And that the Medical Report (Exh, CY2) issued thereafter was inconclusive yet the panel went ahead to indict him, of which he wrote a letter of appeal (Exh.CY3) to upturn the decision of the disciplinary panel. His Solicitors subsequently wrote two letters to the FRSC (the Defendant) , one requesting for his reinstatement (Exh.CY5A) and the other being a statutory Pre-Action Notice to FRSC, indicating his intention to commence this Suit (Exh.CY5B).
On the part of the Defendant (FRSC), after several changes of counsel for the Defendant (about 3 different counsel), the defence was conducted on the basis of the Further Amended Statement of Defence and other frontloaded defendant’s processes settled by A.M Mshelia, Esq., pursuant to the Order for Amendment of the said processes granted by this court on 24th January 2018.
It is imperative to note a development in the course of the proceedings on this matter. At the resumed hearing of the matter on 9th November 2017 for Cross-Examination of the Claimant’s Witness, the learned counsel for the Defendant, I.D Midala, Esq., informed the court of the pending Notice of Preliminary Objection dated 3rd November 2017, challenging the jurisdiction of the court, on account of non-compliance by the Claimant with the rules on service of originating court processes out of jurisdiction, requiring leave of court and endorsement of the processes to be served ‘out of jurisdiction as prescribed by the Sheriff & Civil Process Act. He insisted that the Application must be heard and disposed off before any further proceedings. The Motion was thereafter adjourned to the next day 10th November 2017 for hearing. After hearing both counsel for the parties, in a considered Ruling delivered on 7th December 2017, the Preliminary Objection was dismissed for lacking merit.
In the said Ruling, I painstakingly reviewed the extant NICN (Civil Procedure) Rules 2017- Or.1 Rule 10, Or.17 Rule 15(1)(2),16; Or.8 Rules 1 and 3) and the applicable provisions of Sections.96 and 97 of the Sheriff and Civil Process Act. Upon a sublime distinguishing of the factual and legal regime of the instant case from the ratio decindi of the two potent Supreme Court’s decisions relied on by the Defendant/Applicant’s counsel (Owners of M.V Arabella v. NAIC [2008] 11 NWLR [pt.1097]182 and Drexel Energy And Natural Resources Ltd & 2 Ors. v. Trans International Bank Ltd & Ors. [2008] 18 NWLR [pt.1119]388), I took the view and held that “this court has one jurisdiction throughout the country, and thus, it is not necessary for the Claimant to have obtained leave of court and endorse his processes before it can be served in one State for an action commenced in another State in Nigeria, as ‘out of jurisdiction’ in the extant NICN Rules 2017, means ‘out of Nigeria/ foreign territory’”. And that the provisions of the Sheriff and Civil Process Act prescribing 30 days for entering Appearance by Defendant served with Originating court process cannot override the specific provisions of the NICN (CP) Rules 2017 prescribing 14 days, as each court is bound by its own Rules of procedure, thus “the general provision of the Sheriffs and Civil Process Act cannot override the specific provisions of the Rules of this Court which derives its force directly from the Constitution and its enabling Statute; the National Industrial Court Act 2006, pursuant to the powers conferred on the Honourable President of the Court by S.254(F)(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by the Third Alteration Act 2010) and Section 36 of the National Industrial Court Act 2006”.
Further to the said Ruling paving way for continuation of the trial, the Defendant conducted the cross-examination on the 7th December 2017, and opened the Defendant’s case at the resumed hearing on 24th January 2018. The sole Witness for the Defendant (DW), Micheal Matthew Odugbo, the Zonal Legal Officer in the Defendant’s Office, testified for the Defendant. He adopted his Written Statement on Oath sworn to on 19th January 2018 as his evidence- in- chief and tendered 3 documents as Exhibits, one of which was admitted during his cross-examination by the Claimant’s counsel. The descriptions of the exhibits are as follows 🙁 1).Claimant’s letter of Provisional Offer of Appointment dated 15/05/1996, with Ref. No. FRSC/HQ/A/3 (Exh.DY1/CY1), (2). Letter of Termination of Claimant’s Appointment dated 06/08/2014 (Exh.DY2/CY3) and (3). Confirmation of Claimant’s Appointment dated 24th February 1999 with Ref. FRSC/HQ/AF/07/Vol.1/A (Exh. DY3- the one admitted through cross-examination).
From the pleadings and testimony of the Defendant’s sole Witness, the Defendant did not join issues with the Claimant’s allegation that his employment was terminated because of allegation of rape, of which he was queried and disciplinary panel indicted him. Rather, the plank of the Defendant’s defence is that the management of the Defendant deemed it fit to dispense with his services, which according to the letter of termination (Exh. DY2/CY3), the termination was on the basis that ‘the Claimant’s services were no longer required’, and therefore, his appointment was terminated with immediate effect, and that was lawful, in absence of any contrary evidence led by the Claimant to establish the unlawfulness of the said termination of his employment.
The Hearing was concluded on 24th January 2018 and Final Written Addresses from both counsel were ordered by the court and the matter was adjourned for adoption of the Final Written Addresses.
At the resumed proceedings on 15th March 2018, both counsel adopted their respective Final Written Addresses duly filed and served for each of the parties. Defendant’s counsel, A.M Mshelia, Esq, adopted the Defendant’s Final Written Address dated 12th February 2018 and filed on 13th February 2018, and the Defendant’s Reply Address on Point of Law dated 9th March 2018 and filed on 12th March 2018 and regularized by Order of the court on 15th March 2018, having been filed and served out of the prescribed time. On his part, learned Claimant’s counsel, S.Wilson, Esq., adopted the Claimant’s Final Written Address dated and filed on 2nd March 2018. By way of adumbration, both counsel urged the court to uphold their respective submissions on the issues raised for determination.
COUNSEL’S SUBMISSIONS
Submissions by Defendant’s Counsel:
The Defendant’s counsel in his Final Written Address dated 12th February 2018 and filed on 13th February 2018, and the Reply Address on Point of Law dated 9th March 2018 and filed on 12th March 2018, raised and addressed the following four (4) issues for determination, viz:
1. Whether it can be said that the Honorable Court has the jurisdiction to hear and determine the matter in view of the total non-compliance with the extant laws as regards the issuance and service of the complaint in this case?
2. Whether having regard to the pleadings and evidence on record, it can be said that the Claimant has pleaded and proved the terms and conditions of the contract of service to enable the court enter judgment in his favour?
3. Whether Exhibit DY3 the letter of confirmation of appointment being an inadmissible evidence was not wrongfully admitted and ought to be expunged from the record?
4. Whether in the light of the evidence on record, it can be said that the Claimant is entitled to the reliefs he is seeking against the Defendant?
Arguing the issues, learned Defendant’s counsel, A.M Mshelia, Esq., canvassed his succinct submissions on each of the set out issues for determination as follows:
On issue (1) – Whether it can be said that the Honorable Court has the jurisdiction to hear and determine the matter in view of the total non-compliance with the extant laws as regards the issuance and service of the complaint in this case: Counsel urged the court to adopt the arguments they previously canvassed in their Notice of Preliminary Objection dated 3rd November, 2017 and filed on 8thNovember, 2017, of which a considered Ruling was delivered on 7th December 2017 by this court.
On issue (2)-Whether having regard to the pleadings and evidence on record, it can be said that the Claimant has pleaded and proved the terms and conditions of the contract of service to enable the court enter judgment in his favour: Counsel submitted that, of the six (6) documents tendered in evidence by the Claimant in proof of his case, none is a document that can be properly called the contract of service containing the terms and conditions of the Claimant’s appointment. And that in an action for a declaration that he Claimant’s termination is illegal, null and void, the Claimant has a duty to place before the court a document containing the terms and conditions governing his appointment. He refers to Joshua Babatunde v. Oshogbo Rolling Co Ltd (2005) 2 N.L.L.R. (Pt.5) 294 @P312 Para.G-H, wherein the Court of Appeal per Tabai JCA, emphasized the essential materials to plead and establish in evidence by a claimant in an action challenging termination of appointment, thus:
“It is settled principle of law that in an action which seeks a declaration that the termination or dismissal of an appointment is null and void, the plaintiff must plead and prove not only the appointment, but also the terms and conditions of such appointment because such terms and conditions of the appointment (otherwise called the contract of service) constitute the foundation of the action.”
Counsel also cited and relied on the Supreme Court case of Francis Adesegun Katto v. Central Bank of Nigeria (2005) 2 N.L.L.R. (Pt.4) 1 @ Pp. 19-20 Paras. G-H, A-C, wherein the apex court, per Uwaifo JSC, held as follows:
“It is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first , to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer…………The principle has been laid down by this court in many cases, including specifically Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356, followed in Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) at 412. In Amodu v. Amode (Supra) Agbaje, JSC, who read the leading Judgment observed at page 370: “It appears clear that since it is the Plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them, it is for the Plaintiff to plead and prove the conditions of service regulating the contract of service in question.”
He submitted that in the Francis Adesegun Katto’s case, (supra) @ P.373, Wali JSC, added that “The terms of the contract of service are the bedrock of the Appellant’s case.”
It is therefore the Defendant’s counsel’s contention that, the fact that the Claimant pleaded in paragraphs 1 and 2 of his Statement of Facts, that he was a public servant with the Defendant and the Defendant is a creation of statute and an Agency of Government is of no moment, and does not take the place of the requirement of the law that the Claimant must plead and prove the terms and conditions of his appointment via the tendering in evidence of the contract of service that governs his appointment with the defendant, of which the claimant has woefully failed to do.
Counsel placed heavy reliance on Fakuade v. Obafemi Awolowo University Management Board [1993] 5 NWLR (Pt. 291) 49 @ Pp. 57-58 and 63, per Karibi-White JSC and Alhassan v. A.B.U. Zaria (2010) ALL FWLR (Pt.538) 962 @ P. 992 Paras C-E, per Orji-Abadua JCA, all to the effect that, the fact that an employer is a creation of statute or statutory body does not, without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Relying on the cases of Okomu Oil Palm Co.Ltd v. Iserhienrhien (2001)ALL FWLR (Pt.45) 690 and Emokpae v. University of Benin [2002] 14 NWLR (Pt.786) 30, counsel argued that for the Claimant to succeed in his case, he has a duty to prove that the termination of his appointment by the Defendant is unlawful and in doing that he has to prove the following:
(a) That he was an employee of the defendant
(b) He must place before the court the terms of the contract of employment
(c) He must prove the person who can appoint him and the person who can remove him.
(d) He must also prove to the court the circumstances under which the appointment can be determined by the defendant and in what ways the terms of contract had been breached.
Counsel further submitted that apart from meeting the 1st condition- proof of the fact that the Claimant was an employee of the defendant through the tendering in evidence the letter of offer of provisional appointment admitted as Exh.“CY1”, the Claimant has failed to prove the other conditions that would enable the court to enter judgment in his favour. And since the Claimant failed or neglected to place before the court the contract of service, the court will not be in a position to know whether any of the terms and conditions of the contract of service has been breached or not. Citing Muhammed Duriminiya v. COP (1961) NNLR and Onibudo v, Akibu (1982) 7SC 60 , to the effect that a trial judge is to adjudicate upon the facts properly laid down before him and not to investigate the matter or go on a voyage of discovery, counsel urged the court to discountenance the approach adopted by the Claimant.
Concluding on the issue, the learned Defendant’s counsel urged the court to hold that the Claimant did not by any stretch of imagination plead the contract of service that governs his relationship with the Defendant let alone proving same by any iota of evidence.
On issue 3- Whether Exhibit DY3 the letter of confirmation of appointment being an inadmissible evidence was not wrongfully admitted and ought to be expunged from the record: Counsel stated that in the course of the trial and during the testimony of DW, Micheal Matthew Odugbo, a document, (Confirmation of Appointment) was tendered and admitted under cross examination by learned counsel to the Claimant. According to Defendant’s counsel, throughout the 15-paragraph Statements of Facts and 12- paragraph Witness Statement on Oath of the Claimant himself, there is no averment of fact regarding the said Confirmation of Appointment. And that apart from not pleading any averment in relation to the Confirmation of Appointment in both the Statement of Facts and Witness Statement on Oath, the said document has no nexus whatsoever with the Claimant nor does it have any relevance to the prosecution of the Claimant’s case, as the document bears Y.Yahaya instead of the full names of the Claimant, being Yusuf Yahaya.
Placing reliance on Buhari v. INEC (2008) ALL FWLR (Pt. 4337) 43 @ 83 Para.. F-l; Onochie v. Odogwu (2006) ALL FWLR (Pt. 317) 544 @ Pp. 564-566 Para. H-.A. ; Agbi v. Ogbe (2006) ALL FWLR (Pt. 329) 941 @ 972 Para. B-D, counsel submitted that since the said document is inadmissible ab initio, admitting it without objection does not cure its defects, thus it should be expunged from the record of the court.
On issue 4(erroneously listed as Issue No.5 contrary to the listing as No.4 in the List of Issues submitted for Determination in the Defendant’s Final Written Address) – Whether in the light of the evidence on record, it can be said that the Claimant is entitled to the reliefs he is seeking against the Defendant: learned Defendant’s counsel contended that the Claimant did not place any sufficient materials before the court to warrant granting him any of the Reliefs sought. He argued that the Clamant is not entitled to reinstatement since he did not show that his employment is protected by Statutes, and that by rules of Master-Servant relationship, an employee cannot be foisted on an unwilling employer.
On his claim for outstanding salaries and allowances, counsel submitted that the Claimant did not lead any evidence or plead details of his employment remunerations to enable the court determine what is outstanding to be awarded to him.
On the claim for general damages of N1, 000,000, by the Claimant, the Defendant’s counsel contended that it is awardable based on success of the case and where the case fails, the court cannot have basis for awarding general damages.
Defendant’s counsel also raised additional Issue (erroneously placed as No.4 in the body of the submissions and swapped as No.5 the issue originally listed as No.4 in his listed Issues for Determination in the Defendant’s Final Address) – Whether going by the Defence proferred by the Defendant to the Suit, it can be said the Claimant’s case has become unsustainable: On this, counsel contended that the Defendant’s core defence as expressed in the pleadings (Further Amended Statement of Defence) and the Witness Statement on Oath adopted as oral evidence of DW was not controverted or denied or debunked during cross examination, regarding the fact that the Claimant’s employment was terminated because ‘his service was no longer required’. This fact, learned counsel stated, have been expressly admitted by the Claimant under cross-examination, when asked to “Take a look at exh. “CY3” (termination letter).From the letter, I would be right to state that your service was terminated because your service was no longer required by the defendant? And he answered ‘yes”. And also, when asked: “From that termination letter, did it state whether the appointment was terminated because of any offence? And he answered: ‘No”
Counsel further argued that since the service of the Further Amendment of the Defendant’s Statement of Defence, the Claimant who had the opportunity to file Reply and join issues with the Defendant in its line of defence, but failed to do so, the Claimant is deemed to have admitted the averments in the said pleading. To buttress his point on this issue, counsel cited and relied on Nwaukoni v. Arueze (2011) ALL FWLR (Pt. 504) 72 @ 97, where it was held that :”Evidence related to a matter in controversy which was neither successfully debunked nor controverted remains good and credible that ought to be relied upon by the court of trial”.
In his Written Reply on Point of Law, the Defendant’s counsel responded to an issue concerning payment of filing fees of the Defendant’s process raised in paragraph 4.10 of the Claimant’s Final Written Address, wherein the Claimant’s counsel contended inter alia that the Defendant did not pay the filing fees for its Further Amended Statement of Defence and that the default has affected the jurisdiction of the court, with the effect that it is deemed that the Defendant did not file any defence to the suit.
Responding, Defendant’s counsel submitted that the Defendant’s Further Amended Statement of Defence was properly and validly filed, as same was duly assessed by the Registry of the court, stamped and appropriate assessed fees paid and acknowledged by payment receipt number 3502 -0454-9800 dated 25th January, 2018 and Revenue Collector’s Receipt number 109555601 of 25th January, 2018 in the sum of N1, 050.00 (One Thousand and Fifty Naira). He also attached (as Exhibit “B”) the said Receipts of filing fees for the Defendant’s Reply on Points of Law. Counsel cited and relied on Akpaji v. Udemba (2009) ALL FWLR (Pt.47) 811 @ 829 Para. D-E, wherein the Supreme Court, per Ogbuagu JSC held that: “I am aware and this is also settled that a document or process of court is deemed duly filed, when a paper or a document or a process is brought to the Registrar and is Assessed and paid for, that such a document etc, can be said to be filed in law.” Also, in A.C.B v. Henshaw [1990]1 NWLR (Pt. 129) 646 @ 650 Para, E; 651 Paras. A-B, where it was held that: “The question of payment of adequate or inadequate filing fees for documents for use in court does not raise an issue of jurisdiction and the failure to fulfill the provisions of the High Court Rules in that regard is a mere irregularity which when not taken up timeously or when acquiesced in becomes incapable of affecting the proceedings in any way.”
On the whole, Defendant’s counsel urged the court to discountenance the Claimant’s claims and dismiss the Suit for lacking merit.
Submissions by Claimant’s Counsel:
On the part of the Claimant’s counsel, learned Claimant’s counsel, S. Wilson, Esq., in his Final Written Address dated and filed on 2nd March 2018 also adopted the 5 Issues formulated by the Defendant’s counsel and addressed them seriatim. On issue (1)-Whether it can be said that the Honorable Court has the jurisdiction to hear and determine the matter in view of the total non-compliance with the extant laws as regards the issuance and service of the complaint in this case: Counsel also urged the court to adopt the argument and submission taken on the 10th November, 2017 in this court and also the Ruling already delivered on the issue on 7th December, 2017.
On issue 2-Whether having regard to the pleadings and evidence on record, it can be said that the Claimant has pleaded and proved the terms and conditions of the contract of service to enable the court enter judgment in his favour: counsel submitted that at the trial, Claimant tendered six exhibits to proof his case, and none of the exhibits were challenged or discredited by the Defendant, and that the defendant had agreed that the Claimant was their staff. He further submitted that the Claimant placed before this court exhibit “CY1”, which is his Appointment Letter, and which clearly stated the conditions for his appointment with the Defendant. Counsel argued that the Defendant cannot be a judge in their own case and dismiss the Claimant by merely stating that his services were no longer needed by them, contrary to the principle of fair hearing as capsulated in the maxim- audi alteram partem and Nemo judex in cause sua, He refers to Venn vs. Access Bank Plc (2015) All FWLR (Pt. 772) 1765 @ 1768-1769, and urged the court to so hold and resolve this issue in favour of the Claimant.
On issue 3-Whether Exhibit DY3 the letter of confirmation of appointment being an inadmissible evidence was not wrongfully admitted and ought to be expunged from the record: Counsel submitted that it was the Defendant that raised the issue of the confirmation of the appointment of the Claimant in paragraphs 5 ( c) of their Further Amended Statement of Defence. And that the Defendant having pleaded such, goes to show that issues have been joined with the Claimant on it , and it is the duty of the Claimant to prove that indeed, his appointment with the Defendant have been confirmed by them And which he did by providing and tendering exhibit “DY3” during cross examination of the Defendant Witness (DW).
Counsel further submitted that the exhibit “DY3” emanated from the Defendant and it was properly tendered, and should not be expunged from the record of the court. He refers to S.83 (1) (b) of the Evidence Act 2011. He further submitted that it is a relevant piece of admissible evidence by virtue of S.4 of the Evidence Act, which states that: “Facts which though not in issue, are so connected with a fact in issue as to form part of same transaction, are relevant, whether they occurred at the same time and place or at different times and place”.
In response to the contention of the Defendant’s counsel that exhibit “DY3” does not contain the correct and proper name of the Claimant by which he instituted this case, counsel stated that a closer look at the said exhibit “DY3”, would show that it bears the Appointment Number/Reference Number of the Claimant’s employment with the Defendant -FRSC/HQ/A13, which goes to show that, it belongs to the claimant though it bears Y. YAHAYA and Y. Yahaya means Yusuf Yahaya, the Claimant herein.
On issue 4(erroneously listed as Issue No.5 contrary to the listing as No.4 in the List of Issues submitted for Determination in the Defendant’s Final Written Address)- Whether in the light of the evidence on record, it can be said that the Claimant is entitled to the reliefs he is seeking against the Defendant: It is the counsel’s submission that the claimant has provided the court with the terms and conditions of his service, which terms and conditions are stated and or listed out on the claimant’s appointment letter. According to learned counsel, the terms are in evidence before the court and admitted as exhibit “CY1”. And that it was not challenged or contradicted by the Defendant.
Counsel further submitted that the claimant by credible evidence has shown that the termination of his appointment with the Defendant was predicated upon malicious grounds and the allegations of rape by the Defendant. He contended that the Claimant tendered in evidence the Medical Report which was signed by Dr. I. Olukuobeya (exhibit”CY2”) and the said exhibit “CY2” was never challenged on contradicted on cross examination or otherwise by the Defendant. On that note, counsel urged the court to hold that where evidence led is uncontroverted, contradicted or challenged they are deemed admitted.
On the additional Issue 5 (erroneously placed as No.4 in the body of the submissions and swapped as No.5 the issue originally listed as No.4 in his listed Issues for Determination in the Defendant’s Final Address) – Whether going by the Defence proferred by the Defendant to the Suit, it can be said the Claimant’s case has become unsustainable: Claimant’s counsel contended that it is not correct as stated by the Defendant’s counsel that the Defendant’s evidence was unchallenged and uncontroverted, as the claimant has led evidence in respect thereof and even went further to challenge same by tendering documentary evidence which include exhibits “CY1”, “CY2”,”CY3”,”CY4”, “CY5” and “DY3”.
On the contention of the Defendant’s counsel that since the Claimant did not file Reply to the Defendant’s Further Amended Statement Defence, all issues raised are deemed admitted, learned Claimant’s counsel urged the court to hold that this view is erroneous. And that since it is not compulsory for the Claimant to file Reply to the Further Amended Statement of Defence, the Claimant may still lead evidence to deny the averment in the Statement of Defence, which in this suit, the Claimant had led evidence by testifying and tendering exhibits to support his claims and also denying the averments of the Defendant.
Counsel refers to Ogundalu v. Macjob (2015) ALL FWLR (Pt 784) 103 @108 and Punch (Nig) Ltd v. Jumsum (Nig) Ltd (2011) All FWLR (Pt. 567)768 @ 772 wherein the court held that: “A reply to a statement of defence is not necessary in every case, especially so where a defendant does not file a counterclaim. In such circumstance, a joinder of issues the defence is implied and this means that the material allegations of facts in the statement of defence are deemed to be denied by the plaintiff. The mere filing of statement of defence does not ipso facto, necessitate filing of a reply by the plaintiff”.
Learned Claimant’s counsel, finally urged the court to hold that the Claimant has established his case by credible evidence which was not contradicted, controverted and challenged by the Defendant, and thus grant the Claimant’s Reliefs as prayed.
COURT’S DECISION
I participated actively in the proceedings; have read the processes filed and exchanged by the parties, listened with rapt attention during the trial and observed the demeanor of the witnesses for the parties while testifying. I have also extensively reviewed the submissions of both counsel as canvassed in their respective Final Written Addresses, and I have equally done an independent research on the legal issues arising for determination on the matter, so as to sure-foot the authorities to rely on in the resolution of the dispute.
The case appears simple but slyly fraught with intrigues. The plank of the Claimant’s case is that he was unlawfully terminated from his 14-year old employment with the Defendant, the Federal Road Safety Commission (FRSC), and ought to be reinstated and paid his outstanding salaries and allowances, as his termination is a breach of constitutional right to fair hearing set out in S.36 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), his termination having been based on spurious allegation of rape of a colleague’s ward leveled against him in the course of employment. The Claimant essentially attempts to set up a case of unlawful termination of employment which ought to be with statutory flavour.
However, the Defendant on its part took a detour, apparently admitting all that the Claimant stated in his pleadings and testimony at the trial in respect of the rape allegation, but set up a different defence to the effect that the reason given by the Claimant bordering on allegation of rape was not the reason given as basis for termination of the employment. Rather, it was because his service was no longer required as stated in his termination letter (exh.CY3).
Both counsel raised and addressed 5 common issues for determination. Nonetheless, to properly showcase the issues set down for determination, it is pertinent to raise a preliminary issue on the competency of the Issue 1: Whether it can be said that the Honorable Court has the jurisdiction to hear and determine the matter in view of the total non-compliance with the extant laws as regards the issuance and service of the complaint in this case?
In other words, it is imperative to determine in limine – whether this issue No.1 can be competently raised again here and be determined once again, after it has been raised, addressed and ruled on in the course of the proceedings? Here, both counsel have urged the court to adopt their respective arguments they previously canvassed during the hearing of the Defendant’s Notice of Preliminary Objection dated 3rd November, 2017 and filed on 8th November, 2017, of which a considered Ruling was delivered on 7th December 2017 by this court.
But then, is this approach a proper procedural rule of practice? Put differently, having delivered a considered Ruling on the issue now re-submitted for another decision, the pertinent legal question to be determined first is: can such fresh determination of the issue be allowed in our adjudicatory jurisprudential system, which permits the court to take decision only once on a matter/issue set out for determination? In other words, has this court not acted functus officio on this issue now slated again for determination after a considered Ruling has been delivered in respect thereof?
I have found a helpful recourse in the case of FRCN-v- Iwuoha [2013] 1NWLR (Pt.1335) CA 207 @226 Para. D-F, wherein the court held that:
“A Court is said to be functus officio in respect of a matter, if the court has fulfilled or accomplished its function in respect of the matter and it lacks the potency to review, re-open or revisit the matter. Once a Court takes a decision on a matter, it cannot revisit it or review the said decision except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue or where the proceedings relating to the issue is an abuse of court process.”
Incidentally, from the records, this is not the only Preliminary Objection raised, heard and determined in the course of the proceedings. I recall that there was a hearing on a Notice of Preliminary Objection dated 6th January 2015, which challenged the joinder of a 2nd Defendant, the Attorney General of the Federation. Ruling was delivered, but inexplicably, either counsel did not re-submit the issue for re-determination, but were quick in concert to re-submit this one.
No insight was provided as to what informed the approach by both counsel to re-submit the second Notice of Preliminary Objection also heard and determined in the same proceedings. Also, if both counsel desire to set up an exception to the rule of ‘functus officio’, again they failed, as none of the counsel presented any ground providing a condition to warrant the review and delivery of a second ruling on the issue already disposed off.
In my thought-out view, even with the unholy alliance of both opposing counsel, I consider the idea of re-submission of this issue for re-determination as an abuse of court process. See: Bluechip Communications Company v. Nigerian Communications Commission (2008)LELR-3882(CA)@P.52, Paras. F-G, wherein ‘Abuse of Court Process’ was defined to include ‘re-litigation of issues previously settled, compromised or decided in a matter’. Having acted functus officio on the issue, I will resist the temptation of the invitation by both counsel to run foul of the established principle of ‘functus offico’, and to further waste scare judicial time and resource on reviewing same. Accordingly, I find this Issue No.1 as incompetent and is hereby discountenanced and dismissed. I so hold.
Since Issue No.3 is bordering on admissibility of document already admitted and ready to be used in the evaluation of evidence and review of submissions, it is safer to deal with it first to determine its fate and role in the proceedings. The crux of the submissions of Defendant’s counsel on this issue is that the piece of evidence (exh.CY3-confirmation of employment of the Claimant by the Defendant) was wrongly admitted even though he did not raise objection to its admissibility during the trial when it was admitted through the DW under cross-examination. His contention is that there was no pleading backing it (that the claimant did not plead it) and that such evidence being inadmissible cannot remain in the record when challenged but should be expunged as the law allows so. On the other side, Claimant’s counsel’s submission is to the effect that evidence extracted during cross-examination of a witness is admissible irrespective of lack of pleading, more so as the document in issue was authored by the Defendant and now tendered through its maker’s witness (DW), and is also relevant to the fact in issue regarding the employment status of the Claimant with the Defendant.
I have reviewed the submissions of both counsel for and against admissibility of the said piece of evidence already tendered and admitted as exh.DY3. It is not in dispute between both counsel that the said document being an employment related document is relevant to the fact in issue in the suit, regarding lawfulness or otherwise of the termination of employment. The main consideration for its admissibility, in my view, is whether a piece of evidence is relevant and if it can be tendered through the maker via its witness? The said letter of confirmation issued to the Claimant is authored by the Defendant and the document was tendered through its witness, DW, during cross-examination.
Importantly too, the Defendant had made an issue of the status of the employment by alleging that the employment was not confirmed. See: Para.5(c) of the Defendant’s Further Amended Statement of Defence dated 19th January 2018, wherein the Defendant averred as follows: “That the appointment of the Claimant was never confirmed by the Defendant which means that there was no ratification of his employment by the appropriate Management Committee of the Defendant”.
This led to the reaction of the Claimant’s counsel who queried the Claimant’s alleged doubtful employment status during DW’s cross-examination and took the opportunity to tender the Confirmation letter which was omitted in their pleading. Although the Claimant did not specifically plead the said Confirmation letter, he nevertheless pleaded facts of the employment which termination is the dispute between the parties. Admissibility of such a document is the intendment of S.83 Evidence Act 2011. In Adeosun v. Gov.Ekiti State [2012] 4NWLR (Pt.1291) SC 581@602, Para.A-B, the Supreme Court per Onnoghen JSC (as he then was; now CJN) stated:
“Evidence elicited from the cross examination of a defence witness which is in line with the facts pleaded by the plaintiff forms a part of the evidence produced by the plaintiff in support of facts pleaded in the statement of claim and can be relied upon in proof of facts in dispute between the parties” .
Accordingly, I find and hold that the exhibit DY3 (confirmation letter) is admissible and validly admitted through the DW during the cross-examination.
Other sundry issues that arose in the submissions of the both counsel regarding some issues in the proceedings are: whether Reply to Statement of Defence on the part of the Claimant is compulsory upon service of Defendant’s Statement of Defence, and if not done, whether the effect has become admission of the Defendant’s pleadings. Also, whether the Defendant paid the filing fees for its Further Amended Statement of Defence with consequential effect of rendering the process incompetent if not paid?
By Or.33 R.1 NICN (CP) Rules 2017, “where a Claimant wishes to make a Reply, the Claimant shall file it within fourteen (14) days of service of the Defence on the Claimant”. Thus, Reply to Statement of Defence is not compulsory but is done based on strategic approach by counsel in conducting his case. Where however, by rules of pleading certain averment(s) in the Statement of Defence that ought to be debunked or controverted in a Claimant’s Reply to the Defendant’s Statement of Defence, is not done because of the choice and strategy adopted by counsel not to file a Reply, the said averment(s) is deemed admitted at the pleading stage, and ought not to be an issue for proof by adducing evidence at the trial. See: Sijuade v. Oyewole [2012] 11 NWLR (Pt. 1311) CA 280.
Consequently, whereas I agree with the Claimant’s counsel that the Reply to the Defendant’s Further Amended Statement of Defence is not compulsory, I also uphold the point canvassed by the Defendant’s counsel in respect of potential admission by pleading that could arise from the strategy adopted by the Claimant’s counsel in choosing not to file Reply to the Defendant’s said Further Amended Statement of Defence. I so hold.
On the issue of alleged non-payment of filing fees for the Defendant’s Further Amended Statement of Defence, I am sufficiently satisfied that the Defendant’s counsel has clarified the issue and even provided proof of the payment. The issue even arose at all due the mistaken belief on the part of the Registry of the court, that since by Or.57 R.3 NICN (CP) Rules 2017, government or public institution do not pay filing fees, every court process filed for and on behalf of any government or public body is exempted from payment. The proviso to Or.57 R.3 and Or.57 R. 4 NICN (CP) Rules 2017 stipulate the two conditions the payment is demanded from the government agency/public institution: penalty for late filing and where a private legal practitioner is briefed. So, the target for payment, as in this case, is not on the Defendant, being government agency, but on the fact that the counsel representing it is a private counsel, and should pay appropriate filing fees in line with Or.57 R.4 NICN (CP) Rules 2017. This he did when the issue came up in open court and he has shown sufficient proof of compliance thereto. I so hold.
I now return to consideration of the main issues set out for determination by both counsel, viz: Issues Nos.2, 4 and 5. Upon a cursory review of the case theory of the dispute between the parties and the other issues raised for determination, I have formed the view that the Issues 2, 4 and 5 as canvassed by both counsel are basically dealing with whether the Claimant has placed sufficient materials and proved his case of unlawful termination of his employment by the Defendant as required by law so as to be entitled to the Reliefs he sought?
To that end, I find and hold that the Issues set as No.2, 4 and 5 for determination in the respective counsel’s Final Written Address, can be subsumed under the sole issue – Whether the Claimant has placed sufficient materials and proved his case of unlawful termination of his employment by the Defendant as required by law to be entitled to the Reliefs he sought?
I will proceed to determine the case along line of this sole encompassing issue so narrowed. The case set out by the Claimant is that of unlawful termination of his employment by the Defendant. The legal regime of applicable principles in this area of employment law is fairly settled, to the effect that the burden is on the Claimant employee who asserts that his employment has been wrongfully terminated to, not only plead and show by credible evidence what the terms/conditions of the employment are, but also establish in what way or manner the said term(s)/conditions were breached by the Defendant employer. Thus, the contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. And it is not for the employer who is a defendant to the action brought by the employee to prove any of these nor is obliged to help the Claimant to establish these essentials. And that until the Claimant discharges this burden the Defendant is not to be called upon to defend itself in the alleged default. See: F.M.C., Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) 411, Joshua Babatunde v. Oshogbo Rolling Co Ltd (2005) 2 N.L.L.R. (Pt.5) 294, Francis Adesegun Katto v. Central Bank of Nigeria (2005) 2 N.L.L.R. (Pt.4) 1, Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 , Okomu Oil Palm Co.Ltd v. Iserhienrhien (2001) ALL FWLR (Pt.45) 690, Emokpae v. University of Benin [2002] 14 NWLR (Pt.786) 30, Olaniyan & ors v. University of Lagos [1985]2NWLR (Pt.9)559.
Now, the question is, did the Claimant discharge this burden? In other words, did the Claimant plead and establish by credible evidence his terms/conditions of employment with the Defendant and how the term(s) were breached by the Defendant? From the records, the Claimant made averments in his Statement of Facts and Written Statement on Oath, testified for himself as CW and tendered 5 Exhibits (marked exh.CY 1-5A&B) and another one (marked exh.DY3) through the DW under cross examination. His pleadings and evidence reveal that he was employed by the Defendant sometime on 18/5/1996 as Road Marshall II (Para.4 of the Statement of Facts and exh.CY1), and that his said employment was confirmed by the Defendant on 24th February 1999 (exh. DY 3). No other document was tendered regarding the details of the terms/conditions of the employment other than the Provisional Offer of Appointment (exh.CY1).
Apart from the averments in Paragraphs 2 and 4 of the Statement of Facts, stating: Paragraph 2- “The 1st Defendant is a creation of statute and an Agency of government charged with the responsibility of road safety maintenance by road users in Nigeria within the jurisdiction of this Hon Court”, and Paragraph 4 – “The Claimant avers that he was employed as Road Marshall II by the 1st Defendant on 18/05/1996. The Claimant hereby pleads his letter of offer of temporary appointment and shall rely on it at the trial”, nothing more was pleaded throughout the length and breadth of his 14-paragraph Statement of Facts regarding the legal status of his employment with the Defendant.
The nearest evidence relating to terms/conditions of his employment is Paragraph F of the Provisional Offer of Appointment (exh.CY1), which reads: “Until our new condition of service is produced, you will enjoy all provisions as contained in the Federal Public Service”. Even as a ‘new condition of service’ of the Defendant is alluded to in the said Paragraph F of the Provisional Offer of Appointment (exh.CY1)-‘until our new condition of service is produced’, which presupposes existence of an old one (Defendant’s own condition of service), yet no such existing condition of service was referred to or highlighted on at any part of the processes and evidence adduced by the Claimant, stating at least the basic terms/ conditions of the employment regarding, key areas of discipline and termination, which are stormy in issue in this case.
At the conclusion of the proceedings, there is nothing in the pleadings or evidence adduced at the trial or written submissions of the counsel, that threw any light, drew any attention or made any attempt at showing what the conditions are in the said Federal Public Service and how the conditions are applicable to the case of the Claimant, and which Rules of the Public Service has been breached and in what manner, so as to anchor the Claimant’s case and sure-foot the reliefs he sought for, particularly to reinstate him in his position of employment with the Defendant.
With this development, the status of the employment becomes very crucial to determine, as the Reliefs sought for by the Claimant of which the Defendant is vehemently contesting, largely depends on the status of the employment. Given that such an employment can either be laced with Statutory Flavour or remains under the common law Master-Servant relationship, the Claimant’s pleading attempted to situate the employment as an employment laced with statutory flavour. He averred in Paragraph 2 of the Statement of Facts that: “The 1st Defendant is a creation of statute and an Agency of government charged with the responsibility of road safety maintenance by road users in Nigeria within the jurisdiction of this Hon Court”.
Incidentally, not even a word was mentioned in the pleadings or lip service paid at the trial to say which statute that created the Defendant as a government agency, so as to tickle judicial ears to tune its antenna to take judicial notice of the said statute and invoke same in aid of the Claimant’s employment in dire need of terminal bailout in court.
Again I ask, was there a conscious and sufficient effort to establish that the Claimant’s employment enjoys statutory flavour? Here we go. A long line of judicial authorities have settled the principle that is not every employment in a Federal Government Agency that is clothed with statutory flavour. In F.M.C., Ido-Ekiti v. Alabi [2012] 2 NWLR (Pt. 1285) C.A. 411@ Pp. 458-459, paras. G-B, the Court held that:
“It is not every employment in a federal government agency that is clothed with statutory flavour. The fact that the federal government agency is a statutory body does not automatically mean that the condition of service of its employees must be of a special character ruling out the relationship of mere master and servant. It is only when that employment is protected by statute which makes provisions for the procedure for employment and termination of such employment that it can respectfully be said that the employment is clothed with statutory flavour”.
In the F.M.C., Ido-Ekiti’s case (supra) @ P.459, Paras. F-H, the court further clarified what determines if an employment is clothed with statutory flavour, thus:
“Where an organization or parastatal of Government makes no provision for the procedure for employment and termination of such employment, then such employment cannot be said to be clothed with statutory flavour. In fact, it is the rules and regulations governing employment, disciplinary action, termination and dismissal of an employee from the service of the employer that make the employment to be said to be one with statutory or clothed with statutory flavour and not because the employer is Government agency or parastatal. Where an employee’s employment is one with statutory flavour, the employee (sic) may not be disciplined or his employment terminated and or dismissed except in accordance with the rules and regulations governing such employment”.
See also: C.B.N. v. Igwillo [2007] 14 NWLR (Pt. 1054) 393; Olaniyan v. Unilag (No.2) [1985] 2 NWLR (Pt.9) 599; Shitta-Bey v. F.P.S.C. (1981) 1 SC 40.
What happens where, as in the instant case, the Claimant’s employment would ordinarily seem to be clothed with statutory flavour but no sufficient pleading or evidence was adduced to establish such status, particularly with the absence of the condition of service tendered and examined during trial?
Certainly damage has been done due to absence of proper pleading and tendering of relevant material evidence. In Hon. Taye Adenoma Oyefolu v.Hon. Abayomi Sadiq & ors [2008] LPELR-481(CA), the court took the position that where material facts are not pleaded or are badly pleaded, damage has been done; and it is not for the court to fix the damage.
His Lordship, Hon. Justice Tur, JCA aptly described the situation in Chief James Onyewukwe v, Modu Sule [2011] LPELR -9084 (CA): “A trial judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since courts are not carpenter’s workshops where judges toil to mend defects in pleadings”. See also: Adesanyo & ors. v. Shogo [2005] 7NWLR (Pt.925)467 SC@ P. 479
Let me also add that, in my personal perception of the judicial process of our adversarial adjudicatory jurisprudential system, civil cases are won and lost on pleadings and evidence, where facts, evidence and law are intertwined, such that facts are the driver of law and evidence dictates the route to the destination the law will descend to apply. Where facts take the law through the appropriate route of evidence, it descends and applies to settle the dispute between the parties in accordance with the dictates of justice. Otherwise, as in the instant case, no matter how expedient the situation presents itself, law will not descend to lend helping hand to a crying litigant desiring to benefit from the doctrine of ubi jus ibi remedium!
Another agitating question is: can this improper and insufficient pleading and evidence be classified as a mere error/mistake of counsel or a failed strategy adopted by counsel? From the records, both sides adopted different strategy to prosecute their side of the case. The two previous counsel engaged by the Defendant in deed joined issues with the claimant on the rape allegation despite that the termination letter (exh.CY 3) was silent on it but stated that the Claimant’s ‘services were no longer required’.
However, the latest counsel, who conducted the trial, changed the strategy and relied solely on the terms of the said termination letter and dropped other witnesses already lined up to testify on the rape allegation inclusive of the Doctor that carried out the examination of the alleged victim. On his part, the Claimant’s counsel, did not review his approach of relying on the rape allegation to anchor the case. No Consequential Amendmentt (which is of right) was made on the Claimant’s pleadings in response to the Further Amended Statement of Defence presented by the new Defendant’s counsel. Also, no Reply was made to address the current tide of defence presented by the Defendant’s Further Amended Statement of Defence. This was the basis of the argument canvassed by the Defendant’s counsel regarding the implication of the Claimant’s failure to file a Reply to their Statement of Defence. The impending implication is now clear to the Claimant’s counsel, though too late in the day.
I hold the tenacious view that the issue is that of failed strategy rather than mere error/mistake of counsel. In British Airways v. Amadi [2012] 2NWLR (Pt.1283) CA21 @ P.44, Paras.C-G, the implication of error resulting from legal strategy adopted by counsel was addressed and resolved, thus:
“A decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds then it enhances the case of that party, but if it fails such litigant cannot ask for leave to adduce further evidence in order to repair his damaged case. If every party who makes a wrong choice of that nature is allowed to repair his case, there is no end to litigation. The legal maxim is interest reipublicae ut sit finis litum. In the instant case, the appellant counsel’s inadvertence was not related to procedural law but on legal strategy and that would not sway the court. The inadvertence of counsel in the circumstance was not a special ground”.
Going forward, I call in aid the Supreme Court case of Dudusola v. Nigeria Gas Limited [2013] 10 NWLR (Pt.1363)423@Pp.435-436, Paras.H-C, were similar situation was considered. In that case, the Claimant also contested his termination which was stated to be based on that his services were no longer required, but he insisted that the termination was based on alleged theft in the Defendant’s store. The apex court in restating the principle of imperativeness of tendering and relying on the terms/ condition of service contract in employment claim held that:
“A contract of service is the bedrock upon which an aggrieved employee may found his case. He succeeds or falls on the terms thereof. In this case, since neither of the parties tendered the contract of service, the court could only fall back on the common law principle of master and servant relationship. It was not alleged that the appellant’s employment had statutory flavour. If this were the case, the respondent would be bound to comply with the conditions of service, otherwise any action taken to bring to an end the appellant’s employment would be declared null and void and any other act based thereon would also be void. But from the evidence presented, it was clear that the relationship between the appellant and the respondent was a mere master and servant relation”. (emphasis, mine).
This decision of the apex court is clearly applicable to the circumstance of the Claimant’s case. I am therefore bound to follow same. Accordingly, I find that the Claimant was not able to establish that his employment with the Defendant is clothed with statutory flavour as he did not make sufficient pleadings or tendered the most relevant evidence (condition of service) to establish this vital material fact of the status of his employment as one laced with statutory flavour.
To that effect, I hold that his employment and indeed, this case, would only be considered on the basis of the common law principles of Master-Servant relationship, having failed to establish that the employment is one laced with statutory flavour.
It is time to consider the Reliefs sought for by the Claimant. In his Relief (i), the Claimant seeks “A declaration that the termination of employment of the plaintiff is a breach of the contract of employment of the plaintiff as same is illegal, malicious, null and void, not founded on any fact or finding of fact against the plaintiff by the Defendants and a breach of the plaintiff’s fundamental right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria, section 36 of the 1999 Constitution thereof”.
The Defendant did not join issues with the Claimant on this relief but maintained the position that the Defendant can terminate the employment with or without reason, and that would not amount to breach of fair hearing, since the termination is based on the fact that his ‘service is no longer required’. Declaratory relief on itself is not granted even on admission by the adverse party. The law is that it is incumbent on a party seeking declaratory relief to satisfy the court by evidence not admission in the pleading of the Defendant. See: Dim v. Enemuo [2009] 10 NWLR (Pt.1149) SC 353@Pp.380-381, Para.F-D.
The evidence laid by the Claimant was to show that he was wrongfully framed up in a rape allegation by a colleague, of which he was invited and appeared before the Defendant’s Disciplinary panel, which indicted him upon which his employment was subsequently terminated, and he was not recalled despite his appeal for reversal of the indictment and his Solicitor’s letters to that effect, consequent upon which he filed this suit to challenge the unlawful termination of his employment.
To determine the Claimant’s entitlement to this relief, two issues agitate the mind: one, Is the motive for the termination still relevant given his employment status as governed by the common law principle master-servant relationship? And two, given the current judicial pronouncement by the apex court on the propriety of reliance on Section 36 of the 1999 Constitution (As Amended) to anchor a claim for breach of fair hearing by non-judicial bodies, can this relief be granted as couched?, given that it is alleging ‘breach of the plaintiff’s fundamental right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria, section 36 of the 1999 Constitution thereof’’
In the Dudusola’s case (supra) @ P.436, Paras.B-D, the Supreme Court, again held that:
“Where the contract of employment is a mere master and servant relationship, the master has an unfettered right to terminate or even dismiss the servant. The motive in exercising the right does not render the exercise of the right ineffective. In other words, the master is at liberty to terminate the servant’s employment with or without reason”.
From the position taken by the apex court, to which I am bound to follow, in so far as the Defendant cleverly did not join issue with the Claimant on the motive behind the termination of the employment, a strategy adopted by the Defendant’s latest counsel in the Defendant’s Further Amended Statement of Defence, the motive of the alleged rape allegation upon which the Claimant built his case, is hereby discountenanced. I so hold.
On the arm of the relief bordering on alleged breach of fair hearing contrary to Section 36 of the 1999 Constitution, I found resourceful companion in the recent Judgment of my Lord, Hon. Justice B.B Kanyip, Phd (Presiding Judge, Lagos Division) in Dr. Cecilia Arinye v. University of Lagos (Unreported: Suit No. NICN/LA/305/2017; Judgment of which was delivered on February 16 2018 ). His Lordship extensively reviewed the current legal regime of the rule of fair hearing as applicable to workplace, as follows:
“The recent decision of the Supreme Court in Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] 14 NWLR (Pt. 1577) 410 suggests the fallacy/error of the claimant’s reliance on section 36 of the 1999 Constitution especially with the Court of Appeal decision in Adeyanju v. WAEC relied upon by the claimant. In Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors, the Supreme Court, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body”.
I find this decision useful and applicable to the circumstance of the Claimant’s relief and adopt same as mine. Accordingly, this relief fails and is hereby discountenanced. I so hold.
On Relief (ii): “A declaration that an allegation of rape is criminal in nature and cannot be deliberated upon by the defendants, as it is an issue within the exclusive jurisdiction of a court of law”, the question is, did the Claimant discharge his onerous burden to link the allegation of rape with the reason disclosed in exhibit CY3 (termination letter)? The Supreme Court treated similar issue in the Dudusola’s case (supra) @ Pp. 440-441, Paras.H-B, and the apex court came to the holding that:
“By virtue of section 136 of the Evidence Act 2011, the burden of proving , in instant case, that the appellant’s appointment was terminated on the allegation of crime leveled against him and the consequent investigation of same lay on the appellant, who had failed to prove same. The appellant, therefore, failed to establish a link between the termination of his appointment and the allegation made”.
I find as a fact that the Claimant during cross-examination at the trial contradicted himself and weakened the probative value of his pleadings and evidence tendered in respect of linking his termination with the rape allegation which formed the plank of his case. When shown the termination letter (exh.CY3), he was asked: ‘From that termination letter, did it state whether the appointment was terminated because of any offence?’He answered: ‘No’. Attempt by his counsel under Re-examination to make him further clarify the apparent contradiction and emphasize the underlying rape allegation also failed. The Re-examination question asked was not directly on the issue of offence but on a possible general ground for termination. His counsel asked: “When asked if the defendant reserves the right to terminate your employment as the employer, you said No, can you explain why you said No? His answer: “the reason is that you must have done something wrong”. That answer did not clarify any issue regarding the rape allegation, and thus, did not provide any link with the reason for the termination of his employment by the Defendant. I so hold.
In my considered view, this issue has even become mute since the thrust of the case is no longer built on the motive of alleged rape allegation rather on the exercise of the employer’s unfettered right to terminate the employment of the employee with or without any reason, under the common law principle of master-servant relationship. I so hold.
However, even if the rape allegation is to be considered central in the resolution of the employment dispute in issue between the parties, this relief would still have been ill-fated. It is not the current position of the law that once a criminal allegation is raised against an employee, the employer would sheath its disciplinary sword, play dumb on the criminal allegation and wait patiently until the employee returns from criminal trial in a court of law.
In Osagie v. New Nigeria Bank Plc [2016]65 N.L.L R (Pt.232)482 CA @ P.517, Paras.C-F the court held:
“It is not in every case where an employee is accused of misconduct that he must be arraigned before a court on a criminal charge before disciplinary action can be taken against him. Once the offence committed by the employee is within domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge. Where an allegation of misconduct by an employee can be proved without the need to find the employee guilty of acts amounting to a criminal offence, a disciplinary tribunal can investigate without being held to be trying a criminal charge”.
See also: Uzohu v. Task Force on Hospital Management [2004]5NWLR (Pt.867)627.
Again, what is the probative value of Exhibit CY2, the Medical Report signed by Dr.Okuobeya dated 18/09/2013, which is an expert opinion, but was tendered not through the maker or any other expert in the field? In Access Bank PLC v.Trilo Nigeria Co Ltd & Ors (2013)LPELR-22945(CA), the Court of Appeal, relying on the Supreme Court case of Nteogwuile v.Otuo [2001]15 NWLR (Pt.738)58, took the position that ‘before an expert opinion could become part of the evidence which the trial court could act upon and in the absence of the writer as a witness, such opinion must be put to another expert in the same field who is a witness in the case for his confirmation. When this is done, the opinion properly becomes part of the evidence in the case and the trial Judge is entitled to consider it as such’.
Having not satisfied this requirement in respect of tendering the medical report (which was tendered by the Claimant himself, not being such an expert), upon evaluation of evidence, I find that the piece of evidence- exh.CY 2, though tendered and admitted in evidence without objection, is inadmissible, and is hereby discountenanced and expunged from the records. I so hold.
The Claimant’s Relief (iii) is for “An Order of the Hon. Court directing the Defendants to reinstate the plaintiff to his position with the 1st Defendant”. Relief of Reinstatement to the work place with full benefits and privileges of a wrongly terminated or dismissed employee is one of the distinguishing features of employment with statutory flavour and is not available for employees under the common law governance of master-servant relationship.
The supreme court in the Dudusola’s case (supra) @436, Paras.D-E, put it succinctly thus:
“Termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant, employer and employee. A servant (employee), even though willing and able, cannot be imposed on an unwilling master (employer)”.
Since reinstatement is not an available remedy for unlawful termination of employment which is based on master-servant relationship, this relief fails and is accordingly discountenanced and dismissed. I so hold.
In Relief (iv) the Claimant is seeking for “An Order of the Honourable court directing the 1st Defendant to pay the plaintiff all outstanding arrears of his entitlements and / or benefits with the defendants from the date of termination (sic) of his employment up to the date of judgment”. Unlike exiting employment through dismissal, one of the benefits of employee’s exit from employment by way of termination of employment is the entitlement to certain privileges available in the course of employment while exiting, some of which include terminal benefits and sundry allowances.
From the pleadings and evidence placed before the court, it was common ground between the parties that the Claimant was not dismissed but his employment was terminated vide the Defendant’s letter dated 06 August 2014 tendered by both CW and DW , and marked exh.CY3/DY2.
The relevant portion of the exh.CY3 alludes to his right to terminal benefits. Paragraph 4 states: “You are advised to report to the HOD (F&A) RSHQ, Abuja for your entitlement(s) if any”. From the evidence adduced, the Claimant did not report at the said office for his entitlement. Under cross-examination, the Claimant’s attention was drawn to the paragraph 4 of the exh, CY3 and was asked: “Did you report to the HOD (F&A) at Abuja for your entitlement? He answered: “No”. When re-examined by his counsel, who asked: “When you were also asked as an advice to report to HQ to collect your entitlement, you said you did not report. What was your reason? His answer: “It is because the termination is wrongful”.
From this testimony, it is clear that the Claimant’s terminal benefits are still outstanding, of which he is entitled to, having exited the Defendant’s employment by Termination rather than Dismissal. Accordingly, I find and hold that this relief succeeds to the extent that the Claimant’s terminal benefits should be computed and paid to him by the Defendant.
To achieve this, the Claimant shall upon this Judgment report to the Defendant’s Headquarters at Abuja as earlier advised in the Termination of Appointment letter Ref: FRSC/HQ/AHR/696/Vol.II/49, for computation and payment of his terminal benefits.
Relief (v) is asking for the sum of N1, 000, 000.00 as general damages to the plaintiff for the hardship he suffered as a result of the wrongful termination of his employment. General damages are awarded generally without further proof upon breach of a contract, inclusive of employment contract, as in the case at hand.
However, the measure of damages for unlawful termination of employment has been pruned and generally limited, in absence of any special circumstance, to the amount of the period of notice that was breached during the termination. See: Ado v. Commissioner of Works, Benue State & ors [2007] 15NWLR (Pt.1058) CA 429, Obot v.CBN [1993]8NWLR (Pt.310) SC140, British Airways v. Makanjuola [1993] 8NWLR (Pt.311) CA276.
From the exhibit CY3 (Termination letter), no notice was given to the Claimant. Paragraph 2 states: “Your services with the Federal Road Safety Commission are no longer required. Your appointment is hereby terminated with immediate effect”. In the instant case, due to absence of evidence of conditions of service which would ordinarily provide for period of notice for termination, it is not clear what the length of notice or salary in lieu of notice that is applicable.
However, even in master-servant relationship governed by common law, employment is not terminated automatically with immediate effect without a period of notice at all. At common law, where no notice is provided, reasonable notice is implied, and is expected to be granted an employee whose services are no longer required. At least such an employee can arrange personal belongings and do a handover note of activities he/she is undertaking in the course of employment. In Honika Sawmill (Nig) Ltd v. Holf [1992]4NWLR(Pt.238)CA673, it was held that “where there is no express or specially implied provision for the determination of an appointment by notice, the common law will imply a presumption that appointment is terminable by reasonable notice given by either party”.
On that note, I find the act of the Defendant of not giving any notice at all to the Claimant as constituting a breach of the employment contract of a duly confirmed employee of the Claimant’s caliber.
Since general damages is awarded as per breach, and there is no special circumstance to warrant the measure of damages being computed beyond the period of notice expected, which I find to be at least one month, given the cadre and length of years put in by the Claimant before him termination (Road Marshall II with 14 years in service). I therefore hold that the Claimant is entitled to One Month Salary in lieu of Notice, in addition to his other terminal benefits to be computed as at the time of the termination of his employment in August 2014.
The Claimant’s Relief (vi) is for the cost of the suit. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.
On the whole, the Claimant’s Suit fails in Reliefs (i)(ii)(iii) and (iv) and succeeds in part as per Reliefs (iv) and (v), to the extent of declaration that he is entitled to terminal benefits , which shall be computed by the Defendant and paid to him, and also award of one month salary in the sum of his salary as at August 2014 when his appointment was terminated.
For clarity and avoidance of doubt, the terms of this Judgment are as follows:
1. For the reasons advanced in the body of the Judgment, Relief (i) fails and is hereby discountenanced and dismissed.
2. For the reasons advanced in the body of the Judgment, Relief (ii) fails and is hereby discountenanced and dismissed.
3. For the reasons advanced in the body of the Judgment, Relief (iii) fails and is hereby discountenanced and dismissed.
4. For the reasons advanced in the body of the Judgment, Relief (iv) succeeds to the extent that the Claimant’s terminal benefits should be computed and paid to him by the Defendant. To achieve this, the Claimant shall upon this Judgment report to the Defendant’s Headquarters at Abuja as earlier advised in the Termination of Appointment letter Ref: FRSC/HQ/AHR/696/Vol.II/49 dated 06 August 2014. The Defendant is hereby ordered to compute and pay to the claimant his terminal benefits as at August 2014.
5. For the reasons advanced in the body of the Judgment, Relief (v) succeeds to the extent that the Claimant shall be paid One Month Salary in lieu of Notice. The Defendant is hereby ordered to pay to the Claimant the sum equivalent to his one month salary as at August 2014.
6. For reasons advanced in the body of the Judgment, Relief (vi) fails and is hereby discountenanced and dismissed.
7. Monetary payments in this Judgment shall be computed and paid within three (3) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice N.C.S Ogbuanya
Presiding Judge
17/5/18
