C.C.E.C.C. (NIG) LTD v. IGILA & ORS (2020)

C.C.E.C.C. (NIG) LTD v. IGILA & ORS

(2020)LCN/14064(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/A/63/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

CHINA CIVIL ENGINEERING AND CONSTRUCTION COMPANY (C.C.E.C.C.) NIGERIA LIMITED APPELANT(S)

And

1. INNOCENT IGILA 2. OJO ADEYEMI 3. JOHN UKWEZE 4. ABEL SHENOM 5. STEPHEN OBI 6. DANIEL ATTA RESPONDENT(S)

RATIO

WHETHER OR NOT THE MERE VOLUNTEERING OF INFORMATION TO THE POLICE AMOUNTS TO INITIATING JUDICIAL PROCESS AGAINST A PERSON

However, as a general rule, the mere volunteering of information to the police does not amount to initiating the judicial process against a person. See generally GARBA VS. MAIGORO (1992) 5 NWLR (PT. 243) 588; C. C. B. NIG LTD VS. ODOGWU (1990) 3 NWLR (PT. 140) 646; MANDILAS & KARABERIS LTD VS. APENA (1969) ALL NLR 390. Secondly, the plaintiff must prove that the prosecution terminated in the favour of the plaintiff. See IYALEKHUE VS. OMOREGBE (1991) 3 NWLR (PT. 177) 94. PER IDRIS, J.C.A.

WHETHER OR NOT PLEADINGS CAN BE SUBSTITUTED FOR EVIDENCE

It is settled law that pleading cannot substitute and are not tantamount to evidence, and a defendant who does not give evidence in support of his pleading or in challenge of the evidence adduced by a plaintiff is deemed to have adopted it. See IBWA VS. IMANO (NIG) LTD & ANOR (2001) FWLR (PT. 44) 421 @ 443 – 4 SC. Averments in a pleading on which no evidence is adduced would be deemed abandoned. See also IFETA VS. SPDC NIG LTD (2006) ALL FWLR (PT. 314) 305; AYORINDE VS. FAYOYIN (2001) FWLR (PT. 75) 483; NIDB LTD VS. OLALOMI INDUSTRIES LTD (2002) FWLR (PT. 98) 979; NNB PLC VS. DENCLAG LTD & ANOR (2004) ALL FWLR (PT. 228) 606. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court holden at Abuja, delivered on the 31st day of October, 2016 by the Honourable Justice M. N. Esowe, wherein the Court declared and ordered at pages 463 to 464 of the Record of Appeal as follows:
“Consequently, and in line with the above cited provision of the National Industrial Court Act, the judgment of this Court is as follows:
1. Claim (a) succeeds in part, the 1st Claimant is entitled and is hereby ordered to be paid the sum of N1,246,048.18 as his terminal entitlements, N1,000,000.00 as general damages for malicious prosecution, and N100,000 as cost of this suit.
2. Claim (b) succeeds in part, the 2nd Claimant is entitled and hereby ordered to be paid the sum of N570,086.34 as his terminal entitlements, N1,000,000 as general damages for malicious prosecution, and N100,000 as cost of this suit.
3. Claim (c) succeeds in part, the 3rd Claimant is entitled and is hereby ordered to be paid the sum of N682,296.95 as his terminal entitlements. N1,000,000.00 as general damages for malicious prosecution, and N100,000 as cost of this suit.

Claim (d) succeeds in part, the 4th claimant is entitled and is hereby ordered to be paid the sum of N517,854.00 as his terminal entitlements, N1,000,000.00 as general damages for malicious prosecution, and N100,000 as cost of this suit.
5. Claim (e) succeeds in part, the 5th claimant is entitled and is hereby to be paid the sum of N665,037.71 as his terminal entitlements, N1,000,000.00 as general damages for malicious prosecution, and N100,000 as cost of this suit.
6. Claim (f) succeeds in part, the 6th claimant is entitled and is hereby ordered to be paid the sum of N728,191.30 as his terminal entitlement and N100,000 as cost of this suit. The 6th claimant did not prove claims for malicious prosecution as he was never arraigned nor discharged by the magistrate Court as stated by the defendant.
7. The claims for N2,000,000.00 as general damages for wrongful termination of their employment, made by each of the claimants, fails, as same was not adequately proved.”

The Appellant is dissatisfied with the said judgment and by a Notice of Appeal filed on the 6th day of January, 2017

has initiated an appeal against the said judgment. The Notice of Appeal contains six grounds, which bother on the breach of the Appellant’s right to fair hearing. (See pages 466 to 472 of the Record of Appeal).

The Appellant also filed 5 Additional Grounds of Appeal on 16th June, 2017, with complaints on grounds other than the breach of the Appellant’s right to fair hearing; it was filed alongside an application for leave to argue the said grounds in this Brief of Argument and an order deeming this Brief as properly filed and served. The Additional Grounds of Appeal are numbered Grounds Seven to Eleven.

The Respondents were the Claimants at the trial Court, while the Appellant was the Defendant. By a general form of complaint, on the 22nd day of August, 2012, the Respondents instituted an action against the Appellant claiming the following reliefs:
“(a) 1st Claimant claims the sum of N1,246,046.18 (One million naira and eighteen kobo) (sic) at his terminal entitlements and N2,000,000 being general damages for wrongful termination of his employment. 1st Claimant also claims N5,000,000 general damages for the defendant’s

malicious report to the police against him and the subsequent malicious prosecution at the Chief Magistrate Court Life Camp Abuja and also N100,000 special damages over same. 1st claimant also prays for an order of Court directing the defendant to issue him a certificate of service.
(b) 2nd claimant claims the sum of N570,086.34 as his terminal entitlements and N2,000,000 being general damages for wrongful termination of his employment. 2nd claimant also claims N5,000,000 general damages for the defendant’s malicious report to the police against him and the subsequent malicious prosecution at the Chief Magistrate Court, Life camp, Abuja and also N100,000 special damages over same. 2nd Claimant also prays for an order of Court directing the defendant to issue him certificate of service.
(c) 3rd claimant claims the sum of N682,296.95 as his terminal entitlements and N2,000,000 being general damages for wrongful termination of its employment. 3rd claimant also claims N5,000,000 general damages for the defendant’s malicious report to the police against him and the subsequent malicious prosecution at the Chief Magistrate Court Life Camp Abuja

and also N100,000 special damages over same. 3rd claimant also prays for an order of Court directing the defendant to issue him a certificate of service. 3rd claimant also prays the Court to direct the defendant to allow him to go to his office at the latter’s yard to remove his New World Translation of the Holy Bible left in the office.
(d) 4th claimant claims the sum of N517,854.00 as his terminal entitlements and N2,000,000 general damages for wrongful termination of his employment. 4th claimant also claims N5,000,000 general damages for the defendant’s malicious report to the police against him and the subsequent malicious prosecution at the Chief Magistrate Court, Life Camp, Abuja and also N100,000 special damages over same. 4th claimant also prays for an order of Court directing the defendant to issue him a certificate of service.
(e) The 5th claimant claims the sum of N665,037.71 as his terminal entitlements and N2,000,000 general damages for wrongful termination of his employment. 5th claimant also claims N5,000,000 general damages for the defendant’s malicious report to the police against him and the subsequent malicious

prosecution at the Chief Magistrate Court, Life Camp, Abuja and also N100,000 special damages over same. 5th claimant also prays for an order of Court directing the defendant to issue him certificate of service.
(f) The 6th claimant claims the sum of N728,191.30 as his terminal entitlements and N2,000,000 being general damages for wrongful termination of his employment. 6th claimant also claims N5,000,000 general damages for the defendant’s malicious report to the police against him and the subsequent malicious prosecution at the chief magistrate Court life camp Abuja and also N100,000 special damages over same. 6th claimant also prays for an order of Court directing the defendant to issue him certificate of service. The 6th claimant also prays for an order of Court directing the defendant to allow him to remove his 14 inches’ colour TV from his office in the latter’s yard.
(g) The claimants also claim 10% interest on the judgment sum from the date of judgment until final liquidation.”
(See pages 2 to 4 of the Record of Appeal)

The sum of the case of the Respondents at the trial Court was that the Appellant wrongfully

terminated their employment without recourse to the National Joint Industrial Council Agreement (NJICA) and thereafter proceeded to maliciously instigate a criminal action against them.

The Appellant contends that the trial Court did not consider the case made out by the Appellant before it, failed to afford the Appellant opportunity of being fairly heard and proceeded to find for the Respondents against the Appellant. It is this purported breach of the Appellant’s right to fair hearing in the determination of its rights and obligation that led to this appeal.

The parties filed their respective briefs of argument which were adopted at the hearing of the appeal.
The Appellant in its brief formulated the following issues for determination in this appeal:
1. Whether the trial Court committed an error of law and a breach of the Appellant’s right to fair hearing when it ignored the evidence of the non-participation of the 6th Respondent in the criminal proceedings upon which it premised the finding of malicious prosecution of the 1st – 6th Respondents against the Appellant. (Grounds 1, 5, 6, 10 and 11)

Whether the trial Court breached the Appellant’s right to fair hearing and committed an error of law when in the determination of the rights and obligations to the Appellant, the Court applied the NJIC to the Appellant without any evidence that the Appellant is a party to the Agreement to the NJIC or subscribed thereto. (Grounds 2 and 7)
3. Whether the trial Court committed an error of law and a breach of the Appellant’s right to fair hearing when the Court found the Appellant guilty of unlawful dismissal without any evidence to establish same. (Grounds 4 and 9)
4. Whether the trial Court committed an error of law and a breach of the Appellant’s right to fair hearing when the Court granted declaratory reliefs sought by the Respondent despite lack of evidence to support the grant of same. (Grounds 3 and 8)

On the first issue, learned counsel for the Appellant argued that for a claim of malicious prosecution to succeed, taking cognisance of the peculiar facts of this case, where there are multiple claimants, the law is that the parties purportedly jointly presented must have all participated in the criminal proceedings. That in the instant case,

the 6th Respondent was at large throughout the proceedings at the Magistrate Court, yet the 6th Respondent alongside the 1st – 5th Respondents initiated the claim for malicious prosecution and the Court found the Appellant liable for their claims. It was argued that the Court erred in law and also breached the Appellant’s right to fair hearing when in the face of the admitted evidence, it ignored the non-participation of the 6th Respondent at the criminal proceedings and allowed the claims of the Respondents. Learned counsel urged the Court to resolve this issue in favour of the Appellant.

On the second issue, learned counsel for the Appellant argued that the learned trial Court erred in law and breached the Appellant’s right to fair hearing when it applied the NJIC to the Appellant without any evidence that it was a party to same. The Court was urged to resolve this issue in favour of the Appellant.

On issues three and four, it was argued that the trial Court erred in law and breached the Appellant’s right to fair hearing when it granted declaratory reliefs in favour of the Respondents who did not succeed on the strength of

their case, and that the trial Court erred in law and breached the Appellant’s right to fair hearing when the Court found for the Respondents on unlawful dismissal without any evidence to support same.

Learned counsel for the Appellant urged the Court to allow the appeal and grant the reliefs sought by the Appellant in this appeal. These authorities were relied upon:-
1. NEW RESOURCES INT’L LTD & ANOR VS. ORANUSI (2010) LPELR – 4592 (CA); (2011) 2 NWLR (PT. 1230) PG 102 AT 118 PARA C – G
2. OGBONNA VS. OGBONNA (2014) LPELR – 22308 (CA)
3. BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (PT. 107) PAGE 18 AT PAGE 30
4. JOHN HOLT PLC VS. ALLEN (2014) 17 NWLR (PT. 1437) PAGE 443 AT 470
5. COMPAGNIE GENERALE DE GEOPHYSIQUE (NIG) LTD VS. ARIEMUGHARE, REPORTED IN (2016) LPELR – 40786 (CA)
6. AFRIBANK (NIGERIA) PLC VS. OSISANYA (2000) 1 NWLR (PT. 642) 599; (1999) LPELR – 5206 (CA)
7. IKPEAZU VS. ACB LTD (1965) NWLR 374
8. NEGBENEBOR VS. NEGBENEBOR (1971) 1 ALL NLR 210
9. NEW RESOURCES INTERNATIONAL LIMITED & ANOR VS. EJIKE ORANUSI (2011) 2 NWLR (PT. 1230) 102 AT PAGE 125 PARA G

ATTORNEY-GENERAL OF THE FEDERATION VS. AIC LIMITED (2000) 10 NWLR (PT. 675) 293 AT PAGE 306 PARAGRAPH D – F; PAGE 311 PARAGRAPH C – D
11. OGUNDARE VS. OGUNLOWO (1997) 6 NWLR (PT. 509) PAGE 360
12. NISSAN (NIG.) LTD VS. YAGANATHAN (2010) 4 NWLR (PT. 1183) PAGE 135
13. BEST (NIGERIA) LTD VS. BLACKWOOD HODGE (NIGERIA) LTD & ORS (2011) LPELR – 776 (SC)
14. S. P. D. C. (NIG.) LTD VS. EMEHURU (2007) 5 NWLR (PT. 1027) 347 AT 366 PARAS G – H (CA)
15. MOMOH VS. C. B. N. (2007) 14 NWLR (PT. 1055) @ PG 526 PARA A – B
16. KATTO VS. CBN (1999) 6 NWLR (PT. 607) AT 405 PARA B – C
17. HON. KHAMISU AHMED MAILANTARKI VS. HON. YAYA BAUCHI TONGO & 2 ORS delivered on 2nd June, 2017 in Appeal No. SC/792/2015
18. NEPA VS. ADEYEMI (2007) 3 NWLR (PT. 1021) P. 315; (2006) LPELR – 5932 (CA)
19. MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506 AT 525 – 526
20. OBASI BROS. CO. LTD VS. M. B. A. S. LTD (2005) 9 NWLR (PT. 929) 117
21. AJUZIE VS. FBN PLC (2016) LPELR – 40459 (CA)
22. AMODU VS. AMODE (1990) 5 NWLR (PT. 150) PAGE

356 AT PAGE 370 PARA E – F
23. OGUNLEYE VS. AINA (2011) 3 NWLR (PT. 1235) PAGE 479; (2010) LPELR – 4694 (CA)
24. INEC VS. ATUMA (2013) 11 NWLR (PT. 1366) 494 PAGE 540 PARA F – H
25. A – G RIVERS STATE VS. A – G BAYELSA (2013) 3 NWLR (PT. 1340) PAGE 123 @ 160 – 161 PARA G – B

The Respondents formulated these issues for the determination of this appeal:-
1. Whether the Appellant was given fair hearing at the trial.
2. Whether the learned trial Judge was right in his judgment that held the Appellant liable in damages for malicious prosecution of five out of the six Respondents.
3. Whether the Respondents proved at the trial the terms and conditions of their contract employment with the Appellant on which the learned trial Judge anchored his finding of wrongful dismissal and payment of Respondents’ entitlements.

On the first issue, learned counsel for the Respondents argued that the learned trial judge gave the Appellant fair hearing as the trial Court did not violate the provision of Section 36(1) of the 1999 Constitution (as amended).

Learned counsel argued on the second issue that the Respondents who were plaintiffs at the trial Court proved all the ingredients of malicious prosecution which the trial Court relied upon to find in their favour.

On the third issue, the Respondents argued that their contract of employment was regulated by the NJIC which contained the conditions and terms of the Respondents employment with the Appellant and that this was tendered and marked as Exhibit F4 at the trial. That the Appellant did not tender any document different from the NJIC as its conditions of employment with the Respondents. It was submitted that the Respondents proved the basis of their contract of employment with the Appellant and that the trial Court was right to have relied on the said NJIC to find in favour of the Respondents.

The Court was urged to dismiss the appeal and reliance was placed on these authorities:-
1. SECTION 36(1) 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED
2. OGBONNA VS. OGBONNA (2014) LPELR – 22308 (CA)
3. BAYOL VS. AHEMBA (2001) 2 WRN 109 AT 119
4. NJIOKWUEMENI VS. OCHEI (2004) 15 NWLR (PT. 85) 196 AT PAGE 226 – 227

ADEYEMI VS. STATE (1991) 7 SCNJ (PT. 1) 131
6. FAMAKINWA VS. T. A. NIG. PLC (2007) 18 WRN 36
7. AMODU VS. AMODE (1990) 5 NWLR (PT. 150) 536
8. EZE VS. SPRING BANK PLC (2012) VOL. 20 WRN 1
9. BLACKS LAW DICTIONARY (Sixth Edition)

I shall for the purpose of determining this appeal adopt the issues that were formulated by the Appellant as follows:-
1. Whether the trial Court committed an error of law and a breach of the Appellant’s right to fair hearing when it ignored the evidence of the non-participation of the 6th Respondent in the criminal proceedings upon which it premised the finding of malicious prosecution of the 1st – 6th Respondents against the Appellant. (Grounds 1, 5, 6, 10 and 11)
2. Whether the trial Court breached the Appellant’s right to fair hearing and committed an error of law when in the determination of the rights and obligations to the Appellant, the Court applied the NJIC to the Appellant without any evidence that the Appellant is a party to the Agreement to the NJIC or subscribed thereto. (Grounds 2 and 7)
3. Whether the trial Court committed an error of law and a breach of the

Appellant’s right to fair hearing when the Court found the Appellant guilty of unlawful dismissal without any evidence to establish same. (Grounds 4 and 9)
4. Whether the trial Court committed an error of law and a breach of the Appellant’s right to fair hearing when the Court granted declaratory reliefs sought by the Respondents despite lack of evidence to support the grant of same. (Grounds 3 and 8)

RESOLUTION OF ISSUE ONE
In resolving the issue of malicious prosecution, the learned trial judge held at page 458 of the record as follows:-
“Learned counsel to the defendant in his written address made heavy weather that the 6th claimant was at large when the claimants were arraigned before the magistrate Court, life camp division Abuja, whilst the 1st to 5th claimants were jointly tried and discharged by the Court on a no case submission. It is only wise to believe that since the 6th claimant was at large, and was never arraigned before the Court, he couldn’t have been discharged of the offence alleged before him, and I so hold.
However, counsel stated that the 6th claimant not being discharged by the magistrate

Court makes the suit liable to be dismissed on grounds of misjoinder of parties. On this, I do not agree with him. Misjoinder of parties, is not a ground for dismissing an action, because, a Court on motion or on its own, may at any time, add or drop a party, and the Court may also sever any claim against and/or in favour of the party.
It is pertinent to note that all persons may be joined in one action as Claimants or plaintiffs in whom any right to relief is alleged to exist, whether jointly or severally, and judgment may be given for such claimants as may be found to be entitled to the relief and for such relief as they may be entitled to.
Misjoinder arises where a person who ought not to have been made a party in an action is joined in an action as a plaintiff or as defendant, but there are a plethora of judicial authorities to the effect that no cause or action shall be defeated for reason of misjoinder or non-joinder of parties.
Sequel to the above, I resolve this issue in the negative and in favour of the claimant.”

And at pages 461 – 462 of the record of appeal, the learned trial judge held as follows:

“What is clear from the facts of Balogun’s case is that the claimant in an action for malicious prosecution, must plead and show by evidence, the following ingredients:
(a) That the defendant wrongly set the machinery of the law in motion against him;
(b) That as a result of this, a criminal charge was laid against the plaintiff;
(c) That at the end of prosecution, the plaintiff was discharged and acquitted and
(d) That the defendant acted out of malice and without reasonable cause.
ON THE FIRST INGREDIENT i.e. that the defendant wrongly set the machinery of the law in motion against him
Looking at the facts presented by the claimants, the claimants were union executives of the workers union in the defendant company. The workers themselves, were contesting for a refund of tax deductions not remitted to the FIRS, of which it was averred that some of the workers were refunded of the tax deductions whilst some were not.
It was averred that on the day the riot took place in the building site of the defendant, some representatives of the defendant were in a meeting with the claimant, when the workers started shouting and chanting

and demanding for the refund of the tax deductions from their salaries. The parties could not go far with the meeting when the workers besieged the site and started rioting. Even some of the claimants and defendants, as I gathered, had to even run for their lives. Eventually, the claimant was arrested and subsequently charged for inciting the riots. The defendants even admitted most of the facts, based on this, I have no hesitation to hold that the first ingredient is proved.
ON THE SECOND AND THIRD INGREDIENT
The facts herein speaks for itself, it is not in doubt that the claimants were charged with the alleged offence and was arraigned before a magistrate Court. The Court after a no case submission filed by the claimant, discharge the claimant excluding the 6th claimant who was never arraigned, of the said offences. Of course, the discharge in this case, amounts to an acquittal, hence the 2nd and the 3rd ingredient was also proved, and I so hold.
ON THE FOURTH INGREDIENT
There is also nothing before me that is suggestive of the fact the defendant did not act out of malice and without reasonable cause. If not, how can a person who was in a

meeting with a defendant go behind, still without the knowledge of the party they are meeting with, go out to incite workers to riot and destroy properties. Based on this, I draw the inference that the fourth ingredient was proved, and I so hold.
Having discussed these ingredients, one after the other, it is however pertinent to note that damages are anchored on the need to assuage a claimant for the wrong he has suffered. In the eye of the law, the defendants have inflicted certain injury on the claimant to justify the award of damages in favour of the claimant.
For all the reasons above, and the authorities I have referenced, I have no hesitation in answering the third issue also in the affirmative, and in favour of the claimants.”

The four essential elements, a plaintiff must prove to succeed in his claim in malicious prosecution has been restated by the Apex Court inBALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (PT. 107) 18.These are:
Firstly, that the defendant investigated or initiated the prosecution of the case against him. The plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against

new anno the plaintiff. However, as a general rule, the mere volunteering of information to the police does not amount to initiating the judicial process against a person. See generally GARBA VS. MAIGORO (1992) 5 NWLR (PT. 243) 588; C. C. B. NIG LTD VS. ODOGWU (1990) 3 NWLR (PT. 140) 646; MANDILAS & KARABERIS LTD VS. APENA (1969) ALL NLR 390.
Secondly, the plaintiff must prove that the prosecution terminated in the favour of the plaintiff. See IYALEKHUE VS. OMOREGBE (1991) 3 NWLR (PT. 177) 94.
Thirdly, the plaintiff must prove that the defendant had no reasonable and probable cause for the prosecution. The test whether there was reasonable and probable cause for the arrest and prosecution is an objective one, namely whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant would believe that there was reasonable and probable cause. See generally BAYOL VS. AHEMBA(1992) 8 NWLR (PT. 257) 104.
Lastly, the plaintiff must prove that the defendant acted maliciously. Malice in this context means that the proceedings of which the plaintiff complains were initiated in a malicious spirit,

that is, from indirect and improper motives and not in furtherance of justice. Evidence of malice may be inferred from the facts and circumstances of a given case. See generally BALOGUN VS. AMUBIKAHUN(SUPRA); USIFO II VS. UKE & ANOR (1958) 3 FSC 59.

Did the learned trial Judge apply the law correctly to the facts of the case? I am of the firm view that he did. I need not repeat the facts because they are correctly captured in the judgment of the learned trial Judge which I have reproduced hereinabove.

The trial judge had dealt correctly with the issue of the non-participation of the 6th Respondent at the criminal proceedings. There is no doubt that the 6th Respondent alongside the 1st – 5th Respondents initiated a claim for malicious prosecution and the Court found the Appellant liable in the claims as against the 1st – 5th Respondents only. The Court did not ignore the non-participation of the 6th Respondent at the criminal proceedings because at page 463 of the record of appeal, the learned trial judge held as follows:
“6. Claim (f) succeeds in part, the 6th claimant is entitled and is hereby ordered to be paid the sum

of N728,191.30 as his terminal entitlement and N100,000 as cost of this suit. The 6th claimant did not prove claims for malicious prosecution as he was never arraigned nor discharged by the magistrate Court as stated by the defendant.”

Consequently, this issue is resolved in favour of the Respondents against the Appellant.

ISSUES TWO, THREE AND FOUR
In resolving the above issues, the learned trial judge held at page 459 of the record of appeal as follows:-
“Article 6 of NJIC provides for Discipline and Dismissal and Article 6 (B) (V) of NJIC gives the employer power to dismiss employee whose “conduct is likely to endanger the lives or safety of others or willful damage to the company’s property”.
The question that hits the camel’s back is whether the defendant can summarily dismiss the claimants over these allegations bothering on crime without doing any of these – (1) Giving the claimants the opportunity to make their defence on these allegations so as to comply with the rules of natural justice contemplated under common law etc. (or) (2) giving the Courts the opportunity to pronounce on the

guilt of the claimants more so that they were arrested and charged to Court on the complaint of the defendant over these allegations of crime.
To me, before the defendant can rightfully or correctly dismiss the claimants on these allegations, they should have been given opportunity to defend themselves or must have been convicted by a Court over these offences. The allegations of dismissal of the claimants, were anchored on criminal offences. The claimants were arrested and charged to Court to answer to the crimes alleged by the defendants, and before the claimants were discharged, they were already dismissed by the defendant, the defendants could not wait till the conclusion of the matter before the Magistrate Court, neither did they call the claimants to defend themselves. To me, this is wrongful, and I so hold.
Accordingly, and for the reasons stated above, I resolve issue two in the affirmative, and in favour of the claimant.”

The first question I would like to answer is whether the Respondents are employees of the Appellant herein? I have looked at the pleadings of the parties.

In paragraph 1 of the Respondent’s joint statement of facts which can be found at pages 193 – 208 of the record of appeal, the Respondents averred as follows:-
“The 1st, 2nd, 3rd, 4th, 5th and 6th claimants (hereinafter called “The Claimants) were at all material times relevant to this case employees of the defendant. The Claimants hereby plead their staff identity cards.”

In paragraph 1 of the Amended Statement of Defence and counterclaim of the Appellant which can be found at pages 237 – 245 of the record of appeal, it is averred as follows:
“1. The defendant admits paragraphs 1, 3 and 4 of the claimant’s joint statement of claim.”

By the state of the pleadings, it is not in dispute that the Respondents were the employees of the Appellants’ Company. In the circumstances, the Respondents had no need to prove that they were employees of the Appellant. This is so because, where issues were not joined on the point, there is no need to prove them. See generally OYAGBOLA VS. OKUBULE (1980) 2 CA (PT. 1) 251; ONYEJEKWE VS.ONYEJEKWE & ORS (1999) 3 SC 1.

In matters of this nature where an employee complains to the Court that his

dismissal was wrongful, what the Court is expected to look out for first is whether the dismissal was in accordance with the terms of his employment, and secondly, whether the principles of audi alterem partem which imposes a duty on the employer to act fairly was observed. In this regard, the next question to ask at this stage is what were the terms of the Respondent’s employment in the Appellant Company? To answer this question, reference must be made to the pleadings of the parties.

In paragraph 37 of the pleading filed by the claimants, they averred as follows:-
“37. The Claimants state that their condition of service is regulated by National Joint Industrial Council agreement on terms and conditions of service for all former Employees in the building and Civil Engineering Industry in Nigeria dated 5th December, 2007 later reviewed by agreement dated 24th November, 2009 and also later amended by an agreement dated 30th November, 2011 (the three are hereinafter called NJIC). The said NJIC are hereby pleaded.”

The Appellant denied paragraph 37 of the Respondents’ statement of fact in paragraph 2 of the amended statement of

defence and counterclaim and put the Respondents to the strictest proof thereof. In paragraphs 52 and 53, the Appellant averred as follows:-
“52. That the Claimants have rightly and carefully been dismissed by the defendant and in accordance with the terms and conditions of the contract of service binding between the parties and so are not entitled to any severance package.
53. In reaching the above decision, the defendant avers that it also relied on Terms and Conditions of Service, which is always made available to workers upon employment. The said agreement titled Agreement on Terms and Conditions of Service for Junior/Intermediate Staff Nationwide is hereby pleaded.”

At the trial, the Respondents testified that their contract of employment was regulated by the NJIC, and these terms were admitted in evidence and marked as Exhibit F4. PW6 identified the NJIC as the condition of service as a result of which it was admitted in evidence. See pages 401 – 403 of the Record of Appeal. At this stage, it is clear that the Respondents had led evidence in support of the averment in paragraph 37 of its pleading.

See generally OKIRI VS. FEAGHA (2001) FWLR (PT. 73) 140; IFETA VS. SPDC NIG. LTD (2006) ALL FWLR (PT. 314) 305.
The Appellant on the other hand did not at the trial, tender its purported Terms and Conditions of Service as pleaded in paragraphs 52 – 53 of its Statement of Defence and counterclaim. It is settled law that pleading cannot substitute and are not tantamount to evidence, and a defendant who does not give evidence in support of his pleading or in challenge of the evidence adduced by a plaintiff is deemed to have adopted it. See IBWA VS. IMANO (NIG) LTD & ANOR (2001) FWLR (PT. 44) 421 @ 443 – 4 SC. Averments in a pleading on which no evidence is adduced would be deemed abandoned. See also IFETA VS. SPDC NIG LTD (2006) ALL FWLR (PT. 314) 305; AYORINDE VS. FAYOYIN (2001) FWLR (PT. 75) 483; NIDB LTD VS. OLALOMI INDUSTRIES LTD (2002) FWLR (PT. 98) 979; NNB PLC VS. DENCLAG LTD & ANOR (2004) ALL FWLR (PT. 228) 606.
From the foregoing, it is clear that the Appellant herein did not give evidence in support of the averments in paragraphs 52 and 53 of its Statement of Defence and Counterclaim, and they are deemed to have accepted Exhibit F4 as the terms and conditions of the employment of the Respondents.

In the circumstances, the learned trial judge was right in applying the NJIC to the Appellant. The learned trial judge was also right in holding the Respondent liable for unlawfully dismissing the Respondents without following due process. The reasoning and conclusions reached by the learned trial judge were correct, and there is no reason to upset same.

On the whole, issues two, three and four are resolved in favour of the Respondents and against the Appellant.
Consequently, I hold that the appeal lacks merit and it is accordingly hereby dismissed. N500,000 cost is awarded in favour of the Respondents against the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother Mohammed Baba Idris, JCA.

I am in agreement with his reasoning and conclusion that this appeal lacks merit and I do dismiss it. The Lower Court’s decision in suit NO: NICN NO/ABJ/244/2012 delivered on 31/10/2016 is hereby affirmed.
I abide by the order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

OGUNLEYE ESQ., with him, T. ABIOLA-OLOKE ESQ., J. BOYODE ESQ., M. U. IBEME ESQ., H. SALMAN ESQ. and M. M. IFURUEZE ESQ. For Appellant(s)

ADEWALE ESQ., with him, M. OGUNGRESAN ESQ. For Respondent(s)