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National Industrial Court

DR. ABRAHAM O. AINA -VS- THE MOST REV. MATTHEW MAN’OSO

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 28TH MAY 2018                                                    

SUIT NO. NICN/ABJ/268/2015

 

BETWEEN:

  1. ABRAHAM O. AINA …………………………………. PLAINTIFF/RESPONDENT

 

AND

  1. THE MOST REV. MATTHEW MAN’OSO NDAGOSO
  2. REV. SISTER TERESA DUNG
  3. ST. GERARD’S CATHOLIC HOSPITAL, KADUNA

DEFENDANTS/APPLICANTS

REPRESENTATION

CHRIS UGBOGU Esq, for the Claimant

DANJUMA TORO Esq.  for the Defendants.

JUDGEMENT

  1.             The Claimant instituted this action via Amended Complaint with the accompanying frontloaded documents filed on 15th June, 2016 against the Defendants for the following reliefs:

  1. A DECLARATION that under the 3rd Defendant Hospital’s Constitution that    governs the Claimant’s contract of employment, the 2nd defendant has no power    whatsoever to unilaterally terminate the Claimant’s appointment, without the         requisite recommendation of the Hospital’s Management Board to the 1st      Defendant to that effect.

  1. AN ORDER setting aside the purported termination of the Claimant’s       appointment that was unilaterally effected by the 2nd Defendant, vide her letter         dated the 27th day of September 2010 on the ground that, the 2nd Defendant had no power to unilaterally terminate the Claimant’s appointment without the            recommendation of the Hospital’s Management Board to the 1st Defendant to that       effect.

  1. A DECLARATION that the Claimant is entitled to be paid his new monthly       salary package of N256,591.00 (Two Hundred and Fifty Six Thousand, Five        Hundred and Ninety One Naira) with effect from the month of October, 2010 until his contract of employment with the 3rd Defendant is properly and validly          terminated by the 1st Defendant in accordance with the provision of the       Hospital’s Constitution.

  1. The sum N2,000,000.00 (Two Million Naira) as general damages against the         Defendants for the ignominious, spiteful, malicious, contemptuous and high-           handed manner in which the 2nd Defendant purportedly terminated the     Claimant’s appointment when the 2nd Defendant had no power to do so.

  1. The cost of this action which shall be assessed upon the determination of this suit

  1. 10% post judgment interest per annum on the judgment sum until the entire           judgment sum shall be fully liquidated by the defendants.

  1. The defendants did not file a Statement of Defence.

  1.             At the trial the claimant called two witnesses:- the first was Mr. Fidelis Freeman, who testified as CW1, adopted his written statement on oath of 15th June 2016, which was marked C1  and the Claimant who testified on his own behalf as CW2; he adopted his written statement on oath of 15th June 2016 which was marked Exhibit C2 and proceeded to tender ten (10) documents which were admitted in evidence and marked as Exhibits C3-C12 seriatim the Claimants list of documents dated 14th June 2016 and filed on the 15th June 2016.

  1.             Claimant’s exhibits and documents.
S/No Title of Documents Dated Date tendered Exhibit No Remarks
1. CW1’s Witness statement on oath 15/6/2016 16th Oct.  2017 C1  
2. CW2’s Witness statement on oath 15/06/2016 16th Oct.  217 C2  
3. Offer of Probationary Appointment 22/2/2002 16th Oct. 2017 C3  
4. Letter of Confirmation 13/2/2006 16th Oct. 2017 C4  
5. Letter of promotion 19/5/2006 16th Oct. 2017 C5  
6. Re Hospital Contract Service Agreement 2/12/2009 16th Oct. 2017 C6 No indication of dispatch
7. Re Hospital Contract…. 8/2/2010 16th Oct. 2017 C7 (refers to C6)
8. 3rd Defendants Constitution June 1997 16th Oct. 2017 C8  
9.

 

 

 

 

 

 

 

 

 

 

 

 

 Offer of Committee Appointment 28/3/2008 16th Oct. 2017 C9-C9(3) C9(1)- Letter of Resignation from Hospital Management Committee dated (23/2/2010).

C9(2) – Letter of Resignation from Hospital Advisory Board dd(23/2/2010).

C9(3) – Re Resignation from Hospital Management Team dd (6/5/2010)
1 Termination of Appointment 27/9/2010 16th Oct.  2017 C10  
11 Claimants pay slip Sept. 2010 16th Oct.  2017 C11  
12 Claimant’s Solicitors Letters; Restoration of Employment/Demand 13/11/2010

3/11/2010

5/11/2010

 16th Oct.  2017 C12  

  1.             The Defendants called no witnesses and Learned Counsel to the Defendants indicated in open court that they did not intend to call evidence but would address the court on point of law. Thereafter, parties were directed to file their respective written addresses in line with the provisions of Order 38 rule 20. The Claimant’s Final Written Address is dated and filed on 4th December,  2017 whilst the Defendant’s Final Written Address is dated and filed on 1stFebruary/31st January, 2018 while the Defendant’s reply on point of law was filled on the 7th March, 2018.

 

  1.             The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 4th December, 2017.

  1.             ISSUE

Whether in view of the uncontroverted and unchallenged facts that were pleaded and proved by the Claimant, can it be said that, the Claimant has not proved his case against the Defendants on the preponderance of evidence, as to entitle him to the reliefs being sought or claimed against the Defendants in this case?

 

  1.             Learned Counsel to the Claimant Chris Ugbogu Esq. submitted that the Defendants did not file any defence to the Claimant’s claims nor did they lead any evidence (whether documentary or oral) in rebuttal of the Claimant’s entire evidence that was adduced in support of his claims before this Honourable Court and that in a situation like this, the law only imposes a minimal burden of proof on the claimant to entitle him to the reliefs claimed in this case. ALHAJI USMAN BUA VS. BASHIRU DAUDA (2003) FWLR (Pt 172) 1892 at 1911 para H, Per Mohammed, JSC; NEW NIGERIAN BANK PLC VS. DENCLAG LIMITED & ANOR (2004) ALL FWLR (Pt 228) 606 at 642 para E. It is Claimant Counsel’s submission that the Court is entitled to accept, rely and act on the unchallenged, uncontradicted and uncontroverted evidence of the Claimant in this suit, in granting the Claimant’s claims against the Defendants. That this is so, because, the failure, refusal, and or neglect of the Defendants to file a defence to the Claimant’s claims in this suit, and also failed, refused and or neglected to adduce evidence to rebut the evidence adduced by the Claimant, clearly shows that, the Defendants have no defence to the Claimant’s claims in this suit. NIGERIAN DYNAMIC LIMITED VS. JOHN AGUOCHA (2002) FWLR (pt 104) 630 at 659 para A; OWENA BANK PLC VS. CHIEF M. 0. OLATUNJI & ANOR (2002) FWLR (Pt 124) 529 at 594 para D, per Onnoghen, JCA as he then was, now the CJN); Per Edozie, JSC in the case of CHIEF S. I. DUROSARO VS. T. A. A. AYORINDE (2005) ALL FWLR (Pt 260) 167 at 182 D-E. Counsel to the Claimant urged the Court to accept and act on the entire evidence adduced by the Claimant in this suit in proof of his entire claims against the Defendants as the said evidence stands unchallenged and uncontroverted; and to also hold that, the failure of the Defendants to file a defence to the Claimant’s claims, is tantamount to admitting the claimant’s claims in its entirety. BERNARD OKOEBOR VS. POLICE COUNCIL & ORS (2003) FWLR (Pt 164) 189 at 210 paras B-C, per Tobi, JSC.

 

  1.             He argued that since the claimant is praying for some declaratory and monetary reliefs relating to his contract of employment with the defendants in this suit, and as a general rule, it is the claimant who has the evidential burden of proving his entitlement to such reliefs. ALHAJI SARATU ADELEKE & ORS VS. SANUSI IYANDA & ORS (2001) FWLR (Pt 60) 1580 at 1594 para  A.

 

  1.             It is Counsel’s submission, that, the Claimant has also proved (as contained in paragraphs 5.10 to 5.19 of this address) that he is entitled to the fourth relief which he is claiming against the Defendants in this case. The relief, which is for the sum N2,000,000.00 (Two Million Naira) as general damages against the Defendants for the ignominious, spiteful, malicious, contemptuous and high-handed manner in which the 2nd defendant purportedly terminated the Claimant’s appointment when the 2nd  Defendant had no power to do so. Furthermore, that the law is that, if an employer terminates the employee’s appointment in a manner not warranted or contemplated by the particular contract, the employer must pay damages for the breach. TEXACO OVERSEAS (NIG) PETROLEUM COMPANY UNLTD vs. ROLAND OKUNDAYE (2003) FWLR (P136) 961 at 972 para G; OLARENWAJU vs. AFRIBANK NIGERIA PLC (2001) FWLR (Pt 72) 2008 at 2017 para H.

 

  1.             Claimant Counsel further contended that the law is that, costs follow event and cost would normally be awarded in favour of the successful party at the end of any case. Order 55 Rules 1, 4 and 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.

 

  1.             Furthermore, that the Court has a very wide and unfettered power under Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to award in favour of the Claimant, 10% post judgment interest per annum on any judgment-sum that your Lordship may deem or consider necessary to award in favour of the Claimant in respect of the main claims or reliefs being sought by the Claimant against the Defendants in this suit.

  1.             The DEFENDANTS’ FINAL WRITTEN ADDRESS filed on 1st February, 2018.

  1.             ISSUE

Whether from the totality of the Claimant’s pleadings and evidence on record, the Claimant is entitled to the reliefs claimed against the Defendants in this suit.

 

  1.             Learned Counsel D. Toru Esq. argued that even though the general rule is that where a defendant does not file a statement of defence, the facts, as presented by the claimant stands unchallenged and uncontroverted , it is not in all circumstances that the court shall proceed to willy nilly, award the Claimant’s claim. In other words, that the failure to file a statement of defence does not automatically lead to judgment for the Claimant, whether the court would award the reliefs claimed by the Claimant depends on the circumstances of the case. ONAH V OKOM (2012) 8 NWLR [PT 1301] 169; FALADU V KWOI (2003) 9 NWLR [PT 826] 643 at Pp 657 paras D — E. Learned defence Counsel contended that even where a termination of contract of employment is established, paragraph 28 sub paragraph (b) cannot be granted by this Honourable Court because in an ordinary master and servant relationship, the master has the right to dismiss the servant and the court cannot impose a servant on an unwilling master. OSISANYA V. AFRIBANK (NIG.) PLC (2007) 6 NWLR [PT 1031] 565 at p579-580 paras H — F; DUDUSOLA V. NIGERIA GAS COMPANY LTD (2013) 3 SCNJ 24 at Pp 35-36 lines 35-5.

 

  1.             Referring the Court to Paragraph 28 sub paragraph (C) is clearly seeking this Honourable Court to declare the claimant as being entitled to a new salary package subsequent to termination of his employment, counsel submitted that if as argued earlier, a court cannot nullify or set aside termination of employment, it logically follows that a court cannot award a claim as the instant one. LAGOS UNIVERSITY TEACHING HOSPITAL AND MANAGEMENT BOARD V. ADEWOLE (1998) 5 NWLR [PT 550] 406 at Pp 422 paras E — F.

 

  1.             In respect of the fourth relief in which the claimant seeks general damages against the Defendants for the ignominious, spiteful, malicious, contemptuous and high handed manner in which the defendant purportedly terminated the Claimant’s appointment when the 2nd Defendant had no power to do so’, counsel submitted that motive or malice is not a relevant consideration when deciding upon matters of this nature. DUDSOLA V. NIGERIA GAS COMPANY LTD (Supra) at page 38 lines 1-5 (Supra).

 

  1.             Defence Counsel submitted that even though it is conceded that where a Claimant proves that the termination of the Claimant’s employment is wrongful, the remedy available to such Claimant is in damages. However, that the law relating to such circumstance, restricts the quantum of damages which the court can award to the Claimant. That the law further states that a court, in deciding upon what to award to the Claimant should look at the contract of employment entered into between the parties as it is trite law that parties are bound by the contract which they willingly entered into. And that the quantum of damages in case of this nature is what the Claimant would have earned had his employment been properly terminated. IDUFUEKO V PFIZER (2014) 5 SCNJ 989 where at Pp 1026.

 

  1.             The CLAIMANT’S WRITTEN ADDRESS ON POINTS OF LAW filed on 7th march, 2018.

  1.             Learned Claimant Counsel submitted that there is a clear distinction in law, between a wrongful termination that was carried out by a person or authority that has the power or authority to carry out the termination of an employee’s appointment but who effected the termination in a wrongful manner; and a termination that was carried out by a person or authority that does not have the requisite power or authority to carry out the termination in the first place, but who purports to effect the termination of the appointment of a fellow employee, whether in a proper or wrongful manner.

  1.             He submitted that in the former situation, the termination would normally be declared as wrongful and the remedy that would be available to the aggrieved employee, will be damages, calculated based on the amount of money or salary that the employee would have earned but for the wrongful act of the termination of his appointment. On the other hand, in the latter situation, the purported letter of termination that was issued by the person or authority that has no power or authority to issue the same in the first place, will be set aside and the contract of employment of the employee concerned will be declared to be subsisting by the court until a valid letter of termination is issued by the person or authority that has the requisite power or authority to so do. “Employment Law” 1st Edition, by Prof. Emeka Chianu, at pages 297 to 299; ASHIBOGUN vs. AFPRINT NIGERIA LIMITED (1985) HCNLR 400.

 

  1.             On the             23rd April 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

 

Court’s Decision

 

  1.             I have carefully summarized the evidence of the Claimant, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the reliefs claimed against the Defendants in this suit.
  2.             The Claimant in his Amended Statement of Fact is seeking the following reliefs;

 

  1. A DECLARATION that under the 3rd Defendant Hospital’s Constitution that    governs the Claimant’s contract of employment, the 2nd Defendant has no power   whatsoever to unilaterally terminate the Claimant’s appointment, without the         requisite recommendation of the Hospital’s Management Board to the 1st      Defendant to that effect.

  1. AN ORDER setting aside the purported termination of the Claimant’s       appointment that was unilaterally effected by the 2nd Defendant, vide her letter         dated the 27th day of September 2010 on the ground that, the 2nd Defendant had no power to unilaterally terminate the Claimant’s appointment without the            recommendation of the Hospital’s Management Board to the 1st Defendant to that       effect.

  1. A DECLARATION that the Claimant is entitled to be paid his new monthly       salary package of N256,591.00 (Two Hundred and Fifty Six Thousand, Five        Hundred and Ninety One Naira) with effect from the month of October, 2010 until his contract of employment with the 3rd Defendant is properly and validly          terminated by the 1st Defendant in accordance with the provision of the       Hospital’s Constitution.

  1. The sum N2,000,000.00 (Two Million Naira) as general damages against the         Defendants for the ignominious, spiteful, malicious, contemptuous and high-           handed manner in which the 2nd Defendant purportedly terminated the     Claimant’s appointment when the 2nd Defendant had no power to do so.

  1. The cost of this action which shall be assessed upon the determination of this suit

  1. 10% post judgment interest per annum on the judgment sum until the entire           judgment sum shall be fully liquidated by the defendants.

  1.             Before I delve into the merits of the case it is necessary to address the salient point that, considering, as stated earlier that the Defendants did not defend this action or call any evidence. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the Defendant had the ample opportunity to defend this action but chose not to, in this regard I would otherwise agree with the submission of the Claimants that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. (unreported) NICN/LA/25/2011 delivered 6th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case place before it by the claimant.  See IFETA Vs. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] Vol. 6 MJSC, CONSOLIDATED RES LTD. Vs. ABOFAR VENTURES NIG. [2007] 6NWLR (Pt. 1030) 221 and OKOLIE Vs. MARINHO [2006] 15 NWLR (Pt. 1002) 316.

 

  1.             But this, however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the defendant’s case or the fact that there is no defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the claimant the burden of proof placed on him. See Section 131(1) and (2) Evidence Act 2011, OGUNYADE Vs. OSHUNKEYE [2007] 15 NWLR (Pt. 1057). The claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO [2003]8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the claimant to prove his case in accordance with the minimum evidence rule. In A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS (unreported) NICN/LA/275/2012 delivered 19th December 2012 this court held as follows;-
  2.             “Order 15 of the National Industrial Court Rules 2017 (using the present Rules) enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 15 therefore recognizes the right of a defendant not to defend an action filed against him or her. And by Order 38 Rule 2 where the defendant is absent at the trial and no good reason is shown for the absence, the claimant may prove his/ her case as far as the burden of proof lies on him upon her. This Rule, of course accords with the minima evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE supra at 247”

 

  1.             Mindful of this position of law I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant.

  1.             The rule of thumb in evaluating the Claimants evidence is as follows;- “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of his claims that the court should on balance decide in his favour” Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD.(2005) LPELR-2153(SC) (P. 9, paras. A-B).

  1.             This legal requirement of reliable evidence from the Claimant is all the more imperative in the instant case, in that two of the reliefs sought by the Claimant are declaratory in nature and in declaratory reliefs the law is, as was stated in the Court of Appeal case of NASCO TOWN PLC & ANOR v. MR. FESTUS UDE NWABUEZE (2014 Legalpedia CA O8YH) (suit number: CA/L/949/12) “Declaratory reliefs should only be granted based on evidence adduced by the Plaintiff. See Jules Vs. Ajani (1980) 5 – 7 SC 96; Ogolo Vs. Ogolo (2006) 2 S.C. (PT. 1) 61 or (2006) 5 NWLR (PT.972) 173.Therefore a declaratory order cannot be made in a proceeding for judgment in default of defence or Summary Judgment. Consequently, the proper step to take when there is a claim for declaratory relief is for the court to order the Plaintiff to prove his claim by calling evidence.” PER OSEJI, J.C.A. Also in the same suit the court held that “It is settled that the fundamental requirement of a declaratory relief is to satisfy the Court that the Claimant is entitled in law to the relief claimed.” PER ABUBAKAR, J.C.A.

 

  1.             Now, the position of the law is that an employee who complains of wrongful termination of his employment must place before the Court the terms of the contract of employment and then prove how the terms were breached by the employer. See KATTO V. CBN [1999] 6 NWLR (PT. 607) 390 SC. It is to satisfy these requirements that the Claimant tendered, among other documents, Exhibit C3 – C11. It is, however, also the law that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See ANGEL SHIPPING & DYEING LTD V. AJAH [2000] 13 NWLR (PT. 685) 551 CA. See also LADIPO Vs. CHEVRON (NIG.) LTD [2005] 1 NWLR (PT. 907) 277 CA where it was held that what document contains the terms of employment or service is a question of fact; and where more than a single document provides for the terms, such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are.

  1.             The Supreme Court in EKEAGWU Vs. THE NIGERIAN ARMY [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful. Even at this, the rule is that he who asserts must prove; and in employment law, the onus is on the claimant who asserts that his termination is wrongful to show how wrongful it actually is. And to do this, the claimant must place before the Court the terms of the contract of employment and then prove in what manner the said terms were breached; it is not for the defendant employer to prove any of this. See AKINFE V. UBA PLC [2007] 10 NWLR (PT. 1041) 185 CA and UTC NIGERIA LTD V. PETERS [2009] LPELR-8426(CA)
  2.             The claimant in the instant case has presented the court with Exhibits C3, his letter of Appointment, Exhibit C5 his Letter of Confirmation detailing his entitlements and Exhibit C8 the 3rd defendants Constitution. The gravamen of the claimant’s case is that his termination was wrongful in that the person who terminated him lacked the legal vires to so terminate him and on that basis the claimant is seeking an order of this court restoring him to his appointment, contending the 2nd defendant not only lacked the requisite authority under his contract to terminate him but that she acted in malice in so doing describing her actions as  contemptuous and spitefully high handed manner for which he seeks damages.

  1.             By CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC to determine the rights and duties of parties to an employment contract, the Court will consider the terms of contract of service between an employer and an employee. These terms of agreement are binding on both parties. FMC IDO-EKITI v. OLAJIDE (2011) 11 (PT. 1258) 256.A careful perusal of the claimants exhibits C3, 4, 5 AND 8 present a employment relationship.

  1.             The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment

(a)    Purely Master and Servant relationship

(b)   Servants who hold their office at the pleasure of the employer

(c)    Employment with statutory flavour….”

  1.             A community reading of the above – mentioned exhibits creates this scenario; by Exhibit C3, the letter of Provisional Employment provides that after a satisfactory probation of one year the claimant would be put on contract appointment. The letter goes on to state that other terms of and conditions of the employment were contained in the document attached to the letter however the claimant did not tender this other document. Now the claimant tendered Exhibit C4 the Letter of Confirmation stating that the claimant; appointment had been confirmed and offering him a yearly renewable contract from 15th March 2003 and setting out his salary and other benefits and stating that his conditions of services are as stated in the Hospital’s Constitution: Exhibit C8, however the said exhibit is not addressed to the Claimant or any person whatsoever and as such no weight can be attached to it.  The claimant also tendered Exhibit C5 his Letter of Promotion dated 18th May 2006 wherein the claimant was promoted to PMO 1 on salary grade level MSS 1 step 4 with effect from the 1st May 2006. In 2009, 2nd December the claimant wrote Exhibit C6 seeking clarification as to the nature of his appointment and the defendants in Exhibit C7 informed his that he was a permanent staff and no longer on contract employment since his promotion in 2006.

  1.             The position of the law has be well elucidated in the case of U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. Where it was held that “in a contract of employment between a master and a servant without statutory flavour, once the master complies with the terms of the agreement, he may relieve the servant of his job with or without a reason” Se also. OLATUNBOSUN v. NISER COUNCIL (1988) 3 NLWR (PT. 80) 25 referred to.] (P. 21, PARAS. C-E).

 

  1.             All this means is that the Claimant was a permanent staff as at the time of his termination, in a non-statutory employment relationship with the features and conditions characteristic of an employer/ employee relationship commonly referred to as a Master and Servant relationship. In the instant case the employment relationship had progressed from a renewable yearly contract to a permanent employment with the 3rd defendant to a Master and servant and that the Claimants employment was governed by exhibit C8. particularly Chapter 3 Article 4. 8, (e) and Chapter 4.Artilce 4.1 (a) and (b)

  1.             Chapter 3. Article 4. 8, (e) provides as follows;
  2.             All appointments in the range of Senior Medical Officer….. and other Management are to be recommended by the Hospital  Advisory Council and approved by the Proprietor
  3.             The Definition Section of Exhibit 8 defines the Proprietor as the Archbishop of the Kaduna Archdiocese of the Roman Catholic Church.
  4.             The term Hospital Advisory Council is not defined anywhere in the Constitution.
  5.             It is apropos at this time to note that Exhibit C8 defines Hospital Authority to include Hospital Matron, the Hospital Management Board the Proprietor and any person lawfully authorized to exercise authority over the affairs of the Hospital

  1.             Now Chapter 4.  Article 4.1 (a) and (b) provides as follows;

  1. The Hospital may at anytime terminate the employment of an employee without assigning any reason for so doing by giving notice to the employee in writing or without previous notice by payment of salary in lieu of notice thereof as follows:
  2.       Senior Staff ………………………..3 months
  3.       Intermediate Staff  ……………. 1 month

                                                          iii.      Junior Staff    ………………………. 2 weeks

  1. An employee may terminate his/her  employment with the Hospital at anytime by giving notice in writing or without previous notice by paying salary in lieu of notice thereof as follows:
  2.       Senior Staff ……………………….. 3 months
  3.       Intermediate Staff  ……………. 1 month

                                                          iii.      Junior Staff    ………………………. 2 weeks

  1.             The position of the law has been well established in Master and Servant Learned Author Sasegbon in his book SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. At PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP.

  1.             States as follows; – … In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them.

  1.             Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.” – per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620.

  48.            In C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR(1985) LPELR-2565(SC) It was held that “There is also no doubt that the contract of master and servant is subject to both statutory and common law rules.  By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all.  But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach.  Concentrating on termination, which is in issue in this appeal, one soon discovers that:-
  1.             The second class of cases will cover the ordinary master and servant relationship governed by a written contract not subject to any statutory restrictions or limitations. The duty of the court will be to construe and apply the terms, conditions and provisions of the contract.

 

  1.             In ODEH Vs. ASABA TEXTILE MILL PLC. (2004) ALL FWLR (PT. 242) 2163, it was held that

            “a master can terminate the employment of his servant/employee at anytime and     for any reason or for no reason at all, provided the termination is in accordance          with the terms of their contract. In the instant case, the retirement or termination      being in compliance with terms of contract of employment of the Appellant cannot         make a case for wrongful termination of his employment”.

  1.             See also IBAMA Vs. SHELL PET. DEV. CO. (NIG.) LTD. (1998) 3 NWLR (PT. 542) 493;  NITEL PLC. Vs. OCHOLI (2001) FWLR (PT. 74) 254. Where it is settled law by several authorities that master/employer reserves the right to hire and fire a servant at any time. See the case of ALI Vs. NNA (2005) ALL FWLR (PT. 272) 265 @ 293 -94; UBA Vs. TOYINBO (2008) LPELR 5056 CA.

  1.             “When a non statutory appointment e.g. Master and Servant is found to be wrongfully determined the remedy lies in damages. The aggrieved party is only entitled to damages.)” See UNION BECERAGES LRD Vs OWOLABI [1988] 1 NWLR (Pt. 68. NNB VS OBEVUDIRI [1986]3NWLR (Pt. 29) 387 and NNB Vs OSUNDE [1998] 9 NWLR (Pt. 566) 511@521E-F.

 

  1.             By EKUNOLA v. C.B.N. (2013) 15 NWLR (PT. 1377)  224 @ 231 S.C. It is also the law that “once a Letter of Dismissal is served on the employee he stands effectively dismissed and whether or not the dismissal is wrongful to entitle him to damages is a question for the court to resolve..”

 

  1.             In addition, generally, “where a contract of employment is properly terminated, intention and motive become irrelevant”. [TAIWO v. KINGSWAY STORES (1950) 19 NLR 123; AJAYI v. TEXACO (NIG.) LTD. (1987) 3 NWLR (PT. 62) 577; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25.

 

  1.             In the instant case the claimant is asking the court to consider this case within the ambit of the pronouncement of the Learned Author Prof. Emeka Chianu in his book  “Employment Law” 1st Edition, at pages 297 to 299; – relying on the case of ASHIBOGUN vs. AFPRINT NIGERIA LIMITED (1985) HCNLR 400 to argue that that there is a clear distinction in law, between a wrongful termination that was carried out by a person or authority that has the power or authority to carry out the termination of an employee’s appointment but who effected the termination in a wrongful manner; and a termination that was carried out by a person or authority that does not have the requisite power or authority to carry out the termination in the first place, but who purports to effect the termination of the appointment of a fellow employee, whether in a proper or wrongful manner. To the claimant the purported Letter of Termination was issued to him by the 2nd defendant, and that the 2nd Defendant has no power or authority to issue the same in the first place, and that because of the lack of authority the said letter will be set aside and the contract of employment of the employee concerned will be declared to be subsisting by the court until a valid letter of termination is issued by the person or authority that has the requisite power or authority to so do. To the claimant for him to be properly terminated the Hospital Management Board is required to recommend his termination arguing that this was not done and that the 2nd acted suo moto and ultra vires in terminating him out of malice.

  1.             I am aware that there are cases where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which it can remove or dismiss him. In such contracts, if the servant is removed on grounds other than those specified in the employment contract or allowed by Statute, his removal will be held to be unjustified or ultra vires, null and void as the case may be:- see MCCHELLAND V. NORTHERN IRELAND GENERAL HEALTH SERVICE BOARD (1957) 1 W.L.R. 549. And that a decision given in breach of fair hearing must be declared to be no decision and set aside. AUGUSTUS A. NDUKAUBA v. CHIEF SILAS M. KOLOMO & ANOR. (2005) ALL FWLR (PT. 248) 1602 @ 1614,
  2.             The question then becomes, has the Claimant brought his case within the ambit of the reasoned thinking of the Court in ASHIBOGUN vs. AFPRINT NIGERIA LIMITED. Supra.
  3.             The Claimant contends that the 2nd Defendant had no authority to terminate him appointment and that his termination to be valid requires the recommendation of the Hospital Management Board. First of all in the Condition of Service in Exhibit C8 the Defendants had reserved the right to terminate the claimant “at any time”  See Chapter 4 Article 4.1 (a), and the circumstance therein where the recommendation of the Hospital Management Board is required prior to termination is under disciplinary measures; see Chapter 10 dealing with Discipline and particularly Chapter 10 Article 10..3 (g)
  4.             Termination on Disciplinary Grounds

            ‘Termination of appointment may be imposed at anytime by the Hospital                     Management Board.  In the case of an employee on probation no reason need             be given by the Hospital to the employee for the termination.  In the case of a      confirmed employee termination will usually follow written warnings from the Hospital Authority.  The warning will specifically state the reasons and          also intimate that termination will follow unless improvement is made.  Upon   the termination of an employee’s employment under this clause, the             respective notices set out in Chapter Four of these Conditions of Service shall            be given by the Hospital’.

  1.             Also see Chapter 10 article 10.6 Discipline of Management Staff

            ‘General disciplines including Dismissal or Termination of appointment of       employees in the range of the Senior Medical Officer, the Principal Nursing         Superintendent, the Hospital Secretary, Assistant Matron, and other            Management Stagg of similar posts, are to be recommended by the Hospital          Management Board and approved by the Proprietor’.

  1.             From the foregoing, I find that the recommendation of the Hospital Management Board is only a pre requirement to termination in instances of discipline and the claimant has not presented to the court that his termination was as a result of disciplinary measures so as to necessitate the recommendation of the Hospital Management Board to the extend that the failure to obtain the said recommendation would invalidate or vitiate his termination.
  2.             Secondly the claimant contends that the 2nd defendant lacked the power to terminate him, having faulted the argument of the House Management Board and considering that all the Claimant exhibits barring one were all signed by the 2nd Defendant and especially considering the definition of Hospital Authority which the claimant has not shown exclude the 2nd Defendant whom he describes as the Hospital Matron and Administrator in his Amended Statement of Facts. In order to succeed with the argument that the 2nd Defendant lacked the authority to terminate the claimant, the claimant would have to show the court that the 2nd defendant could not be considered Hospital Authority in the context of Exhibit C8. This I find that the Claimant has not done, and I so hold. The claimant has been unable to bring his case within the ambit of ASHIBOGUN vs. AFPRINT NIGERIA LIMITED. Supra. as was presented by the Claimant.
  3.             The case of the claimant, I find is that his termination especially the evidence of CW1, was as a result of the 2nd defendant being unable to seize from the claimant and two others a choice piece of real estate; – land.  Bearing in mind that the motive for termination or the intentions the employer are of no bearing in a situation where the termination is properly done.  In the instant case I find that the termination of the claimant was executed in line with the provisions of Chapter 4, Article 4.1 (a) (except as regards notice in lieu, I shall come back to this later in the judgement) and for that reason the averments of the Claimant and his witness as to ‘a dispute over refusal to swop land’ in addition to being mere pleadings without any evidence, go to no issue and are of no moment under a contract of Employer /Employee. From the above and having found that the Claimant’s employment was terminated Reliefs 1, 2, 3, and 4, fail and are accordingly dismissed.

  1.             Having said that Section 14 of the National Industrial Court Act 2006 enjoins the court to consider all the rights and entitlements to which parties before the court are legally entitled and Section 14 provides thus;-

“the court shall in the exercise of the jurisdiction vested in it by or under this Act, in every cause or matter have power to grant either absolutely or on such terms and conditions as the court thinks just, remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and a multiplicity of legal proceedings concerning any of those matter be avoided”.

  1.             There is nothing before the court to indicate that the claimant was paid his 3 months’ salary in lieu of notice the defendant in the course of the suit had argued that the claimant was at best entitled to damages for wrongful termination. I find that the claimant although terminated under Chapter 4.8 (a) as the claimant was not given his entitled (3) month salary in lieu of notice as required by Exhibit C8, this means the claimants termination was constructively wrongful as was described by the learned author Chigozie Nwagbara© in her book “Determination of Contract of Employment and Remedies for Wrongful Dismissal” 1st Edition Reprint 2012 at page 77.
  2.             The contract of employments provides for three (3) month salary in lieu of notice on

Termination, the claimant is so entitled, I so hold.

  1.             The Claimant had pleaded that his last pay was N205, 273.00 for the month of September

2010, and tendered Exhibit C11 in furtherance thereof. This evidence is uncontroverted and hence the court is entitled to rely on it.  In that wise the defendant shall pay to the claimant the sum of N205, 273.00 multiplied by three X 3 = N615,819.00 less taxes, and other authorized deductions being his due salary in lieu of notice.  The claimant is also entitled to damages for the constructively wrong termination which I, by Section 14 NICA I place at 6 months basic salary which by Exhibit C11 stands at N36, 177.00 X 6 months = N217,062.00.

  1.             For avoidance of doubt this is the Court’s judgment.
  2.             Reliefs 1, 2, 3, and 4 are hereby refused and are dismissed.

  1.             The defendant shall pay to the claimant the following:

  1. The sum of N615,819.00 being N205, 273.00 multiplied by three X 3 = less           taxes, and other authorized deductions as his salary in lieu of notice.

  1. Damages of N217,062.00 for the constructively wrong termination under Section 14 NICA 2006, being  6 months basic salary N36, 177.00  X 6 months

  1. Cost of this suit is put at 100, 000.00

  1. All sums payable within 30 days thereafter interest of 10% per anum will attach.

  1.             This is the court’s Judgment and it is thereby entered.

……………………………………….

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE, ABUJA DIVISION

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