Allen Ade-Onojobi -VS- Capic Hexagon Nig. Ltd & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED: 9^TH DECEMBER 2019 SUIT NO: NICN/BEN/01/2019

BETWEEN

ALLEN ADE ONOJOBI………………………………………. CLAIMANT

AND

CAPIC HEXAGON NIG. LTD
PHILIP MBULU ………………………………………… DEFENDANTS

REPRESENTATION:

OBI OJO HOLDING THE BRIEF OF C. O. IZOMOH FOR THE CLAIMANT

I. IDEHEN APPEARS FOR THE DEFENDANTS.

JUDGMENT

The claimant by a complaint filed on the 8^th January, 2019 claims against the defendants as follows;

a)A declaration that the purported demotion and redeployment of the claimant on the 5^th day of November, 2018 contrary to the claimant’s contract of employment is wrongful, null and of no effect.

b)An order of the Court directing the defendants jointly and severally to reinstate the claimant to his position prior to the 5^th of November, 2018 with all his full salaries and entitlement as at 5^th November 2018.

c)An order of the Court restraining the defendants jointly and severally from terminating the claimant’s contract of employment arising from the event of 29^th day of October, 2018 pending the determination of this suit.

d)General damages and cost of this suit.

The claimant filed along with the complaint, all accompanying processes, i.e. the statement of facts, deposition on oath of the claimant and list of documents to be relied upon.

The claimant’s case is that he was employed by the 1^st defendant vide a letter of employment dated 15^th July, 2012, and has enjoyed various financial benefits including salary increments and other benefits as a result of his diligence and commitment to his job.

The claimant averred that he fell ill on 29^th October 2018 and called the 2^nd defendant to inform him about his condition while he sought permission to be excused from duty. The claimant later presented an excuse duty/discharge certificate issued to him by Lily Hospital Limited, Benin, the designated hospital for employees of the 1^st defendant in the office upon resuming work on the 31^st of October, 2018, and was issued with a query on the same date. The claimant pleaded that he responded to the query and the aftermath was his redeployment to another office with a radical reduction in his salary and entitlements by the 1^st defendant vide letter dated 5^th November, 2018. The claimant thereafter instructed his solicitors, the law firm of Osegbe Osegbe & Co. to write a letter of appeal on the redeployment, which he viewed as a demotion, to the 1^st defendant, but this yielded no positive result. He finally averred that he was greatly traumatized by his demotion and faced a lot of financial hardship as a result of the reduction in his salaries and entitlements.

The defendants entered appearance in this suit vide a memorandum of appearance dated 28^thJanuary, 2019 and filed on 30^th January, 2019,along with the statement of defence and other accompanying processes. The defendants denied each and every allegation of fact contained in the statement of facts and pleaded in the defence that the claimant is no longer in their employment, the 1^st defendant having terminated his appointment on 14^th January, 2019. The defendants pleaded further that the 2^nd defendant is a mere employee of the 1^st defendant and as such his presence in the suit is a misjoinder and unnecessary.

The defendants averred that the claimant was found wanting in the discharge of his duties, hence he was issued with several queries and underwent a verbal counseling on 19^th March 2018.

The defendants contended the assertion of the claimant that he was ill on the 29^th of October, 2018, and averred that investigations revealed that the claimant actually travelled to Asaba on the day in question, and he was never examined by a physician before an Excuse/Duty Discharge Certificate was issued to him.

It is the defendants’ case that the claimant knew that his dereliction of duty will have consequences, they also added that his conduct and deliberate falsehood was intended to undermine the organizational structure, discipline and coherence of the 1^st defendant.

The defendants finally averred that the claimant’s suit be dismissed with substantial/exemplary cost.

Trial commenced in this suit on 13^th May, 2019 with the claimant testifying for himself as CW1, he adopted his written statement on oath and tendered several exhibits which were admitted without objection and marked Exhibits LJ1-LJ5, the claimant was thereafter cross examined. Under cross examination a letter of termination of employment and a computation of payoff dated 14^th January, 2019 was tendered through the claimant by the defence counsel, and this was objected to by the claimant’s counsel on the ground that the documents were issued during the pendency of this suit, the court however marked same as Exhibits LJ6i and LJ6ii respectively, with a directive that parties should address the court on the admissibility or otherwise of the documents and/or the probative value to be attached to same at the final written address stage. On the 1^st of July, 2019, the defence opened their case by calling Michelle Obarisiagbon, the Human Resources Manager of the 1^st Defendant as DW1, she adopted her witness statement on oath and tendered several exhibits which were marked Exhibits HX1-HX7, she was cross-examined and the defence closed their case.

The case was thereafter adjourned for adoption of final written addresses and parties filed their respective final addresses which were adopted on 14^th October, 2019. The defendants’ final written address dated 27^th August, 2019 and filed on 28^th August, 2019, was adopted by Oluchi Idehen of counsel on behalf of the defendants, wherein he formulated three issues for determination:

a)Whether or not the 2^nd defendant is necessary and a proper party to the just and equitable determination of the issues in this suit?
b)Whether the claimant is not estopped in law from challenging his redeployment and demotion?
c)Whether despite the valid termination of the contract of employment between the claimant and the 1^st defendant, the claimant can as a matter of law be imposed on the 1^st

On issue one, learned defence counsel submitted that the 2^nd defendant is neither a necessary party nor a proper party to the just and equitable determination of this suit. He argued that from the pleadings and the evidence adduced in the case, the 2^nd defendant is a mere employee of the 1^st defendant and has no direct involvement in the cause of action nor is his presence necessary for the effectual determination of this suit. He noted further that there is no relief sought against the 2^nd Defendant in the statement of facts, and cited the case Mobil Producing Nig. Unltd. v LASEPA (2002) 12 S.C (Pt 1) 26 at 44, and several other cases in support of his argument on this issue. He argued that an agent of a disclosed principal is neither a proper nor necessary party where the identity of the principal is known. Learned counsel cited Niger Progress Ltd. v N.E.L. Corp. (1989) 4 S.C (Pt 11) 164 at 193, and urged the court to strike out the name of the 2^nd defendant from this suit.

On issue two, learned counsel posited that the claimant is estopped from challenging his demotion, redeployment and subsequent termination of his employment as he had by his subsequent actions accepted his redeployment by resuming work and accepting salaries in the new capacity. The defence counsel relied on Section 169 of the Evidence Act; Adetoro v UBN (2007) LPELR-CA/IL/48/2006; Oyerogba v Olaopa (1998) 12 S.C 115 at 119-120, Buhari v INEC (2008) 12 S.C (Pt. 1) 1 at 60-61 and submitted that the conduct of the claimant amounted to estoppel by conduct.

On issue three, counsel submitted that the claimant’s employment was terminated in accordance with the contract of employment between the parties in this suit, and added that a contract of employment is the foundation of the employment relationship in the instance case and the terms and conditions therein regulates the employment, citing Ibama v Shell (2005) 10 S.C (Pt. 111) 62 at 96.

Learned counsel asserted that the 1^st defendant has an unfettered right to determine the employment of the claimant in line with the procedure stipulated in the contract of employment, and this was done in this case. He relied on Longe v First Bank of Nigeria Plc. (2010) 2-3 S.C (Pt. 111) 61 at 126 and other cases.

On the relief sought by the claimant for reinstatement, counsel argued that it is a well-established position of law that a court cannot impose a willing employee on an unwilling employer, and vice-versa, and as such, the claimant in this case cannot be imposed on the 1^st defendant. The defendants relied on Okwara Agwu v Julius Berger Nigeria Plc. (2019) LPELR-47625 (SC); Isievwore v NEPA (2002) 7 S.C (Pt. 11) 125 at 133.

The defence counsel urged the court to hold that the termination of the claimant’s employment adhered to the contract of employment between both parties and is therefore valid.

On the admissibility of Exhibit LJ 6i & ii i.e. letter of termination dated 14^th January, 2018 (sic)and computation of payoff dated 14^th January, 2019, counsel submitted that these documents were not only pleaded but relevant in this case, in that it is in proof of the fact that the claimant’s employment was terminated and his terminal benefits paid. He relied on Section 1 of the Evidence Act, and Oguoneze v State (1997) 8 NWLR (Pt. 518) 566; Abubakar v Chuks (2007) 12 S.C at 13.

On the probative value to be attached to Exhibits LJ6i & ii, the defence counsel argued that Exhibit LJ6i (letter of termination) was issued by one Daniel Aiwelera, an employee of the 1^st defendant who issued same in his official capacity as General Manager, hence he is therefore not an interested party within the meaning of Section 83 (3) of the Evidence Act 2011. He relied on UTC Nigeria Plc. V Lawal (2013) 12 S.C (Pt. 111) 1 at 17-18; N.S.I.T.F.M.B v Klifco Nigeria Ltd. (2010) 4-7 S.C (Pt. 11) 238 at 250-251; Evan v Noble (1949) 1 KB 222 at 225 and Section 258 of the Evidence Act 2011.

On the claims for damages and cost of this action, it is the argument of the defence counsel that the claimant did not provide any particulars in proof of these reliefs nor did he lead any oral or documentary evidence to support same. He added that the claimant cannot claim damages for his distress or other loss unless such damage or loss is expressly provided for in the contract of employment. He reiterated that the claimant’s appointment was terminated with his terminal benefits duly paid, and cited Nigeria Produce Marketing Board v Adewunmi (1972) 11 S.C (Pt. 111) 73 at 78.

In conclusion, the defence counsel urged the court to dismiss this suit in its entirety with substantial/exemplary costs awarded in favour of the defendants.

The claimant’s final written address dated and filed on 3^rd October, 2019, was adopted by C.O Izomon Esq at the hearing, wherein counsel formulated three issues for determination, to wit:

a)Whether or not the letter of redeployment dated 5^th October, 2018 is valid.
b)Whether or not the termination of 14^th January, 2019 is binding on the claimant.
c)Whether or not the claimant is entitled to the reliefs sought.

On issue one, learned counsel for the claimant conceded that the relationship between the claimant and the defendants is that of master/servant and the master under this type of relationship is generally at liberty to terminate the employment of his servant at any time and for any reason or no reason at all, provided the termination is done in line with the terms of the contract of employment. Learned counsel cited Salami v Union Bank of Nigeria Plc (2010) LPELR-8975 (CA) and Ajuzi v FBN PLC (2016) LPELR-40459 (CA) on this position.

Learned counsel referred to the medical report tendered by the defendants to rebut the claimant’s assertion that he was ill as Exhibit HX7B (sic). It is important to point out at this point that counsel erroneously referred to the medical report as Exhibit HX7B, whilst the record of this court shows however that it was marked Exhibit HX7A.The claimant’s counsel argued that the cited report was unsigned, and therefore lacks any evidential value. The claimant’s counsel relied on the cases of Global Soap & Detergent Ind. Ltd v NAFDAC (2011) ALL FWLR (Pt. 599) pg. 1025 R1; Aregbesola v Oyinlola (2001) ALL FWLR (Pt. 570) pg. 1292 R21 and Bello v Sanda (2012) ALL FWLR (Pt. 636) pg. 462 R9. He argued further that the available evidence reveals that the claimant informed his immediate supervisor of his ill health and this remains unchallenged, he therefore urged the court to discountenance the unsigned medical report i.e. Exhibit HX7A as same is inadmissible.

On issues two and three argued together, the claimant’s counsel submitted that Exhibit LJ6ii.e. the letter of termination, was issued and served on the claimant in defiance of this suit, with a view to undermine the powers of the court and this is in clear violation of paragraph 14(iii) of the claimant’s statement of facts, thus same is not binding on the claimant, citing Olaleye v Trustees of ECWA (2011) ALL FWLR (Pt. 565) pg. 297 at R11.

Learned Counsel argued therefrom that the termination of the claimant’s employment was wrongful and thus he is entitled to damages and cost of this suit, given that the only remedy for wrongful dismissal is in damages. He cited Wilbros Nig. Ltd. & Anor. V. Macaulay (2009) LPELR-8507 (CA) and added that general damages is presumed by law to flow directly from the natural or probable consequence of the act of the defendants and its quantum need not be pleaded or proved. He relied on NEPA v Mallam Muhammed Auwal (2010) LPELR-4577 and Mrs. Abosede Dauda v Lagos Building Investment Co. Ltd. & 30 Ors. (2010) LPELR-4024.

On the issue of cost, he stated the position of law that cost follows event and a successful party in any event is entitled to cost, he cited Adelakun v Oruku (2006) 11 NWLR (Pt. 992) pg. 625 and Order 55 Rule 5 of the National Industrial Court Rules, 2017 to buttress his argument.

In conclusion, learned counsel urged the court to grant the reliefs sought by the claimant in this suit with substantial cost.

On 10^th October 2019, the defendants filed a Reply to the claimant’s final written address which the defence counsel also adopted at the hearing.

The defence counsel contended in the Reply that the claimant did not disprove the evidence that he travelled out of town on the day in question by calling the medical doctor who examined him and relied on Section 131 (2) of the Evidence Act 2011; Adesoye Olanlegbe v Afro Continental Nigeria Limited (1996) 7 NWLR (Pt. 458) 29; Umejiako v Ezenwa (1990) 1 S.C at 249 lines 17-27; Nzekwu v Nzekwu (1989) 3 S.C (PT. 110 76 at 161 lines 24-28.

Learned counsel in response to the contention of the claimant on the import of the termination of his employment during the pendency of this suit, argued that the termination was done in accordance with the terms and conditions of employment, thus he was accordingly paid one (1) month salary in lieu of notice.

On the claim for damages and cost, the defence counsel argued that the address of counsel is not a substitute for pleadings filed and evidence led. He stated that the claimant in his originating process alleged that his employment was under threat and never pleaded wrongful termination of employment, thus the claimant is not entitled to damages for wrongful termination. He cited Egonu v Egonu (1978) 11-12 S.C (Reprint) 82 at 101; Etim Ekpenyong & 3 Ors. v Inyang Offing Nyong & Ors. (1975) 2 S.C (Reprint) 65 at 73.

Counsel posited that the court cannot impose a willing employee on an unwilling employer, the best the court can do is to order that all the entitlements of the employee be paid to him, of which the defendants have already complied with in the instance suit. He relied on Okwara Agwu v Julius Berger Nigeria Plc. (2019) Supra, and continued that an award of damages other than payment of salary in lieu of notice in a Master/servant employment has no foundation in our laws, citing Gabriel Ativie v Kabelmetal Nig. Ltd. (2008) 5-6 S.C (Pt. 11) 47 at 58.

The defence counsel reiterated that the claimant did not plead any facts on the issue of cost to be computed by the court, and relied on Orizu v Anyaegbunam (1978) 5 S.C (Reprint) 18.

In conclusion, learned defence counsel urged the court to enter judgment in favour of the defendants and dismiss this suit in its entirety.

After a careful consideration of the processes filed by parties in this suit, the evidence of witnesses and Exhibits tendered, I find that the issues that would best determine this suit are:

Whether or not the redeployment and demotion of the claimant is wrongful.

Whether or not the 1^stdefendant validly terminated the employment of the claimant during the pendency of this suit.

It is imperative to address some preliminary issues before delving into the main issues for determination. The defendants raised the issue of a perceived misjoinder of the 2^nd defendant. In accord with settled authorities, I will therefore be dispensing with preliminary issues first in this suit, see Onuoha v. National Bank of Nigeria Ltd & Anor [1999] LPELR-8134 (CA). The defence counsel in this suit has argued that the 2^nd defendant is a mere employee of the 1^st defendant and this suit discloses no cause of action against him, hence his presence in this case is not necessary for the effective determination of the claim before the Court. In other words, this court is called upon to ascertain whether or not the joinder of the 2^nd defendant as a party in this suit is necessary or essential.

It is settled law that proper parties are persons who though have no vested interest in the claim before the court, but are nonetheless joined in an action for some underlying reasons, whereas a necessary party is not only interested in the subject matter, but one in whose absence the suit cannot be effectively determined, see Delak Distribution Service Ltd &Anor v. Ugbowanko [2018] LPELR-46480 (CA), Adefarasin V. Dayekh [2007] 11 NWLR (Pt.1044) 89. “Necessary party” was also defined in Panalpina World Transport Ltd v. J.B Olandeen International &Ors [2010] LPELR-2902 SC, as a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the Court. The position of the law therefore is that a person is a proper and necessary party when his joinder will enable the Court to properly adjudicate and settle all the issues involved in the case.

After applying the above test to the facts in this case, I find that the employment relationship in this suit is strictly between the claimant and the 1^st defendant, while it is not in doubt that the 2^nd defendant is the direct supervisor of the claimant, the fact that there is no privity of contract between the 2^nd defendant and the claimant is more than obvious, added to this, the fact that the 1^st defendant by itself is a legal person capable of suing and been sued is not in dispute. It is on record that the claimant himself under cross-examination confirmed that the 2^nd defendant is an employee of the 1^st defendant, whose salary is being paid by the 1^st defendant. The claimant therefore, having admitted that the 2^nd defendant is an employee of the 1^st defendant and an agent of the 1^st defendant, has by inference admitted that the cause of action is maintainable against the 1^st defendant who is the employer of both the claimant and the 2^nd defendant. It is trite that admitted facts need no further prove, See section 123 of the Evidence Act 2011, Okereke v. State [2016] LPELR-26059 SC. I find in essence that the 2^nd defendant would not be affected either positively or negatively by the outcome of this case and his presence is not crucial or fundamental to the resolution of the issues before the court. Consequently, the 2^nd defendant’s name is hereby struck out from this suit as his presence in this suit is superfluous/unnecessary. I so hold.

In determining the 1^st issue for determination formulated by me, I find it pertinent to state the three categories of employment recognized by the law, they are: (1) those regarded as purely Master and servant, (b) those where a servant holds office at the pleasure of the employer and (c) those where the employment is regulated or governed by statute otherwise known as statutory employment. See Seven-Up Bottling Company Plc. V Ajayi (2007) LPELR-8765 (CA).

The facts abound in this case that the parties in this suit are in a master-servant relationship. It is trite that in this type of employment, it is the contract of employment between the parties that governs the relationship. Therefore, all the actions of the parties to the relationship must sprout from and is subject to the terms contained in the contract of employment. See John Oforishe v Nigerian Gas Company (2018) 2 NWLR (Pt. 1602) 35 at 53-54.

In proof of his case, the claimant tendered Exhibit LJ1 (contract of employment) which details the rights, powers and responsibilities of both parties. In determining these rights, it is the position of law that the duty of the court is to confine itself to the plain words and meaning contained in Exhibit LJ1. See Seven-Up Bottling Plc. V Ajayi (Supra).

The originating processes in this suit reveals that the claimant in the instant case instituted this action to challenge his redeployment, demotion and reduction in his salary by the defendant. Thus, this issue can only be determined by considering the provisions of the contract of employment. A thorough examination of Exhibit LJ1 reveals no provision empowering the defendant to demote the claimant. Furthermore, I find that the disciplinary procedure adopted by the defendant in this case was not provided for in the contract of employment between the parties or any other document placed before this court.

It is trite that parties are bound by their agreement and any disciplinary action to be taken by an employer against an employee must be in line with the terms of the contract of employment. See SCOA (Nig) Plc. V Ifebuzoh (2018) lpelr-46784 (CA) and Dornier Aviation Nig AIEP Ltd. v Captain Tunde Oluwadare (2006) LPELR-11579 (CA). In the absence of any provision to support the action of the defendant, the inevitable conclusion to be drawn is that the defendant acted outside the provisions of the Exhibit LJ1 in demoting and reducing the salary of the claimant. The defendant had canvassed the doctrine of estoppel in its defence, arguing that the claimant cannot contest his demotion because he had accepted same and resumed work in his new duty post. However, contrary to the argument of the defendants in this regard, I find that in Exhibit LJ5, the claimant, through his solicitors contested the demotion and appealed to the defendant to rescind its decision.

The principle of estoppel by conduct was well treated in the Supreme Court case of PINA v MAI-ANGWA (2018) LPELR-44498 (SC) where Kekere-Ekun JSC held as follows;

‘’By operation of the rule of estoppel a man is not allowed to blow hot and cold. To affirm at one time and deny at the other or as it is said to approbate and reprobate. He cannot be allowed to mislead another person into believing a state of affairs and then turning around to say to that person’s disadvantage that the state of affairs which he had presented does not exist at all or as represented by him.’’

In the present case the defendant cannot be said to have been misled by the claimant into thinking he agrees with the demotion. This is in view of Exhibit LJ5 which expressed the claimant’s dissatisfaction with the demotion and appealed for its review, thus the claimant cannot be estopped from instituting this legal action.

The position of law is that a party to a contract should take steps to mitigate his loss where he perceives that the other party is in breach of the terms of a binding contract. Therefore, when a party take steps to mitigate his loss in such circumstance, his right under the contract cannot be extinguished. It is expected that an aggrieved plaintiff in a case for breach of contract is under an obligation to take reasonable steps to minimize the damages incurred by him as a result of the breach, failure upon which he is barred from claiming any part of the damage which is due to his neglect to take such steps. See Akinbiyi v Lagos Island Local Government Council & Ors. (2012) LPELR-19839 (CA). Flowing from the above, I find that the claimant’s action in resuming work and accepting the reduced salaries from the defendant after his demotion cannot extinguish his rights to pursue his claim in this suit. See Okongwu v. NNPC [1989] NWLR (Pt.115) 296 where the Supreme Court per Nnaemeka Agu, J.S.C held that:

“the duty to mitigate does not imply that a plaintiff whose contractual right has been breached is automatically relegated to a position inferior to the defendant’s wherein he is obliged to pick up, as it were, the crumbs that fall from the master’s table. The true position is that a defendant who is already in breach of his contract, as it were, demanding a positive action from the plaintiff who is innocent of blame. For this simple reason, the law has never taken the view that such a plaintiff has to undertake an onerous burden in the name of mitigation of damages. The duty of mitigation on a plaintiff is that of a reasonable man, acting reasonably…”

In all, I find on this issue that the demotion of the claimant, contrary to the contract of employment between the parties in this suit is wrongful and in breach of the contract of employment. It therefore goes without saying that since the defendant lacks the power to demote the claimant and reduce his salary, it becomes unnecessary to delve into the ground for the demotion as one cannot build something on nothing and expect it to stand. See the case of MacFoy v UAC Ltd. (1962) AC 152 PC. It is based on the above premise that I find that the demotion of the claimant in this case is wrongful and contrary to the contract of employment. I so hold.

On issue two, i.e. whether or not the claimant’s employment was validly terminated during the pendency of this suit by the defendant on 14^th January, 2019. The defence counsel had argued that the facts pleaded by the claimant are in respect of threatened termination, thus the claimant is not entitled to damages for wrongful termination as same is not supported by his pleadings.

The position of the law on the above issue is well stated in the case of PROF DUPE OLATUNBOSUN V. NISER SC 1988 3 NWLR Pt 80 25, where Oputa J.S.C stated and I quote;

“Pleading is a delicate art, which requires considerable tact; assiduity, effort, and circumspection. A good pleader will naturally limit himself to the issue raised by the Statement of Claim (here the vires of the Respondent to issue Ex 4 under the NISER decree). The Defendant/ Respondent should have been restrained and careful not to introduce collateral or bilateral issues which may either befog the central issue or else complicate the case unduly. What the Plaintiff called to question in paragraphs 8 and 13 of his Statement of Claim was the proper construction of Section 4 of Schedule 2 of the Niser Decree No. 70 of 1977 and whether if properly construed the new Institute had or lacked the power to terminate his appointment. This is a simple and straightforward issue. It was the Defendant itself that expanded the scope of the inquiry by gratuitously introducing the conduct or rather misconduct of the Plaintiff/ Appellant and by recklessly stepping into the delicate, difficult and sometimes dangerous arena of fair hearing or “due hearing” which it pleaded.”

Oputa J.S.C went on to espouse further in that Judgement as follows:

“After pleading thus the Defendants/Respondents has made the conduct or misconduct of the Plaintiff/Appellant the central issue. The Respondent is estopped from arguing otherwise.”

In PILLARS NIG. LTD V. MRS HANNAH DESBORDES & ORS 2009 LPELR 8204 CA, the court of Appeal held as follows:

“The rules governing filling a reply to a statement of Defence are as follows: (a)Generally, it is not necessary for a Plaintiff to file a Reply if his only intention in doing so is to deny any allegations that the Defendant may have made in the Statement of Defence. (b) A reply to join issues is not permissible if no reply is filed, all material facts alleged in the Statement of Defence are put in issue. (c) The purpose of filing a reply is to join issue on allegations made in the Statement of Defence, (d) where a new issue to attract a reply must in law be really new to the Statement of Claim in that it was introduced for the first time in the Statement of Defence by the Defendant.”

The defendant has by its own pleadings and arguments introduced the issue of the termination of the claimant’s employment into this suit and even went as far as tendering the letter of termination. This fact was not contended by the claimant in anyway. That Exhibit J6 was issued on 14^th January, 2019, during the pendency of this suit is also not in contention by both parties, the sum total of the above is that the termination of the claimant’s appointment became a live issue with the defendant’s introduction of same. The validity or otherwise of the defendant’s action and its effect will in due course be examined in the course of this Judgment.

It is noteworthy to state here that Exhibit LJ6i i.e. letter of termination of employment, is dated 14^th January, 2018 (sic), however a thorough perusal of all the processes and evidence adduced before this court reveals that the year 2018 does not correlate with the facts contained in the statement of defence and the evidence adduced at trial. The entire case of the defendant on this issue clearly rest on the fact that the claimant was dismissed in year 2019, after this suit was initiated on 8^th January, 2019. This fact was affirmed by DW1’s testimony and further reiterated by the fact that the computation of pay off attached to Exhibit LJ6(i) and marked Exhibit LJ6 (ii) is dated 14^th January, 2019 on these, the defence never contended otherwise. I find therefore that the date intended in Exhibit LJ6 (i) is 14^th January, 2019 and not 14^th January, 2018, as inadvertently stated thereon. I so hold.

The admissibility and probative value to be attached to Exhibits LJ6 (i) & (ii) is however another issue. It is on record that the defence counsel during the course of trial on the 13^th of May, 2019, tendered the cited Exhibits through CW1 under cross examination, the claimant’s counsel objected to this on the ground that the documents were issued during the pendency of this suit, this Court however admitted the documents as Exhibits and ordered parties to address it on the admissibility and probative value to be attached to Exhibits LJ6 (i) & (ii).

In line with the order of court, the defendant’s counsel argued that Exhibits LJ6 (i) & (ii) are relevant and therefore admissible in this case. He continued that the maker of the Exhibits is an employee of the defendant, who is not personally interested in the proceedings in this case and is therefore not impliedly affected by the provisions of Section 83 (3) of the Evidence Act 2011. It is common knowledge that a company being an artificial person only acts through natural persons. See Olojede & Anor. V Olaleye& Anor. (2012) LPELR-9845 (CA). Also, it is clear that the maker of Exhibit LJ6 (i) & (ii) did not issue the letter of termination in this suit in his personal capacity but in his official capacity as General Manager of the defendant, thus his action in this sense is deemed to be the act of the company. It is therefore premised on the above that I find the argument of the defendant on this issue is utterly misconceived and mistaken. Exhibit LJ6 (i) having been issued under the authority of the defendant is in law authored by the defendant.

In examining the position of the law on the status of a document issued during the pendency of a suit, I restate the principle of law that relevancy governs admissibility, however, this is qualified by certain exceptions, one of which is documents issued during the pendency of a suit. As espoused by Sanusi JSC in the case of Anagbado v Tarik (2018) NWLR LPELR-44909 (SC),

“it is trite law that evidence produced during the pendency or in anticipation of a case is not admissible in law’’.

See also Samuel Iheanacho & Anor. V Emmanuel Iwuamadi & Anor. (2013) LPELR-20689 (CA).

The provisions of the Evidence Act on the status of documents of this nature as provided in Section 83 (3) of the Act is as follows;

“nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”

A cursory look at Section 1(b) of the Evidence Act reveals as follows; ‘’ this action shall not entitle any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.’’

The summary of the above is that, an assertion of relevancy in producing evidence of a fact that a person is disentitled to prove by any provision of the law for the time being in force is disallowed. The defendant having admitted that Exhibits LJ6i & LJ6ii were issued during the pendency of this case is precluded in law from relying on Exhibits LJ6 (i) & (ii) as evidence of the dismissal of the claimant because it was produced during the pendency of this suit.

In addition, the Supreme Court has expanded the application of the doctrine of lis pendens to all civil matters, the rationale being to dissuade parties in litigation from disposing of/or destroying the res in a suit so that all parties must await the decision in a matter as to the right of the parties. See BFI Group Corporation v Bureau of Public Enterprises (2012) 18 NWLR (Pt. 1332) 209 and Mangut Mashingil & Ors. v Chief Jethro M. Akin &Ors. (2013) LPERLR-21922 (CA).

One of the fundamental principles of judicial adjudication is that where a matter is before a court of law, none of the parties can legally or lawfully take any action that will prejudice or tend to prejudice the hearing or adjudication of the matter by the court. The doctrine of lis pendens, which is expressed in the Latin maxim lis pendent lite nihitinnoveteur meaning that nothing should change during the pendency of an action, is a variant of this fundamental principle of adjudication. Parties to a proceeding ought not to do anything which may have the effect of rendering nugatory the judgment of the court. Any action by a party in respect of the subject matter of a suit while the action is pending before the court is null and void. See the cases of Kewel v Abraham (2010) 1 NWLR (Pt. 1000) 624 and Attiogbey v UBA Plc. & Ors. (2013) LPELR-20326 (CA). It is based on the position of law enunciated above that I find and hold that Exhibits LJ 6 (i) & (ii) are void in law and same are hereby discountenanced. The nullification of Exhibit LJ6 (i) & (ii) leaves little or no doubt about the status of the termination of 14^th January, 2019, the termination of the claimant’s employment during the pendency of this suit is consequently declared unlawful, null and void ab initio, I so hold.

It is pertinent to point out at this stage from the record that the claimant acknowledged the receipt of one month’s salary in lieu of notice and other terminal benefits totaling N136,000 (One hundred and thirty six thousand naira) while testifying under cross-examination. The implication of the acceptance of the payoff by the claimant will now be examined.

The Court of Appeal case of FAAN v Nwoye (2012) LPELR-8377 (CA) is very apt on this issue, wherein Yakubu JCA held that:

“The law was well stated by his Lordship, Karibi-Whyte, JSC. in Adeniyi v Governing Council of Yaba College of Technology (2003) 6 NWLR (Pt. 300) 426 at p. 426 thus: ‘’the consequence of acceding to this (learned counsel’s) argument is to convert an ultra-vires act committed in breach of an enabling statutory provision into a valid act. The compulsory retirement of Appellant on grounds of misconduct under section 12(1) is void. So also in Military Administrator of Benue State v O.P. Ulegbede & Anor (2001) 17 NWLR (Pt.741) 194 at pp. 222-221 the Supreme Court reiterated the same principle of law that: the acceptance by the respondent of payment of three month’s salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement nor did it stop the respondent from challenging the purported retirement’’

The termination of the claimant’s appointment having been held unlawful and void ab initio cannot be validated by the acceptance of a payoff by the claimant because one cannot build something on nothing and expect it to stand. See Yakubu v Federal Mortgage Bank of Nigeria Limited. (2014) LPELR-24188 (CA).

This court will however not close its eyes to the overt intention of the defendant to terminate the claimant’s employment. It is the law that in an ordinary master-servant relationship, the court will not impose a willing employee on an unwilling employer and the only remedy available in a case of wrongful termination is in damages. See the case of Seven –Up Bottling Company Plc. v Augustus (2012) LPELR-20873 (CA). Thus, this court finds that the claimant’s employment is deemed to have been terminated with effect from the date of this judgment, the defendant having paid in lieu of notice. I so hold.

It is based on the above that I find that the claimant’s reliefs (ii) and (ii) seeking for re-instatement to his position before the demotion and injunction restraining the defendant from terminating his employment, have been frustrated by circumstances in this case and consequently fails.

The claimant in this suit is also seeking general damages and cost of this suit. The general position of the law is that in an action for wrongful termination of a master/servant relationship, the quantum of damages is measured by the amount which the claimant will ordinarily be entitled to, for the period of notice required to terminate the contract of employment. See the case of Okungbuwa & Ors. v Governor of Edo State & Ors. This suit however presents peculiar facts which distinguishes it from this general position. This is because the termination of the claimant’s employment in the instant case is deemed unlawful, null and void because it was done during the pendency of this suit, contrary to S.83(3) of the Evidence Act, 2011, and the doctrine of lis pendes captured in FAAN v Nwoye (Supra), as a result of which, the letter of termination issued to the claimant in this suit is void ab initio as earlier stated, the claimant therefore will ordinarily be deemed to be still in the employment of the defendant or entitled to damages by way of his salaries for the period. However, reinstatement can only be ordered in a statutory employment, and as such the court cannot grant an order of reinstatement in the instant suit, as for damages by way of his entitlements to salaries for the period, the claimant in this suit did not deem it fit to amend his processes to include this relief, and the salaries in question are in the realm of special damages that must be specifically pleaded and proved. This court is therefore precluded from awarding the above as the court is not father Christmas and lacks the jurisdiction to grant a relief not sought. The only window left for the claimant in this suit is the grant of a relief in general damages. See the case of Simeon v College of Education, Ekiadolor, Benin (2014) LPELR-23320(CA).

It is settled law that general damages are damages which the law presumes to be the consequence of an act complained of and does not need to be specifically pleaded or specially proved by evidence. They are compensatory damages for the wrongful action of the defendant. See the case of EFCC v INUWA & ANOR. (2014) LPELR-23597(CA). Having held the that demotion of 5^th November, 2018, is wrongful and the termination of the claimant’s employment on 14^th January, 2019 is unlawful, null and void, this court is inclined to award general damages in an amount commensurate with the loss of the claimant as a result of the action of the defendant. I find that the claimant in this case has succeeded in proving his entitlement to general damages having been wrongfully demoted and unlawfully relieved of his employment during the pendency of this suit. Consequently, I hereby award the sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) against the defendant as general damages to be paid to the claimant in this suit

For the avoidance of doubt, this court declares and order as follows:

The demotion of the claimant on 5^th November, 2018 is wrongful, null and void;
The termination of the claimant’s employment on 14^th January 2019 during the pendency of this suit, is unlawful.
The claimant’s reliefs ii and iii fails.
The termination of the claimant’s employment with the defendant is effective from the date of this judgment.
General damages in the sum of N750,000.00k (Seven Hundred and Fifty Thousand Naira) is awarded in favor of the claimant against the defendant in this suit.
All judgment sums in this suit shall be paid within 30 days failing which it shall attract a 10% annual interest.

A cost of N100,000.00k is hereby awarded against the defendant.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge