LawCare Nigeria

Nigeria Legal Information & Law Reports

IKORO v. PHED (2022)

IKORO v. PHED

(2022)LCN/16899(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, November 18, 2022

CA/OW/391/2021

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

LAWRENCE IKORO APPELANT(S)

And

PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY RESPONDENT(S)

 

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS CONTAINED IN A CONTRACT OF EMPLOYMENT

It is settled law that parties are bound by the terms embodied in a contract of employment. Courts have been adjured to be wary of looking outside their terms, as the terms govern the relationship between the employer and the employee. Extrinsic evidence is not admissible, I hold, to add to, vary or subtract therefrom. Where the terms spell out unambiguously how and when to terminate the employment and the termination is carried out in the manner provided by the terms, that termination is not wrongful, I hold. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 53 Para D per Rhodes-Vivour JSC; – Olarewaju v. Afribank (Nig) Plc (2001) 13 NWLR Part 731 Page 691 at 712 Para C at 714 -715 Para F-C- per Katsina-Alu JSC (as he then was), Layade v. Panalpina (1996) 6 NWLR Part 456 Page 544 at 555 Para B-C, per Belgore JSC (as he then was). PER ADEFOPE-OKOJIE, J.C.A.

THE POSITION OF LAW ON THE EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS ON A PARTICULAR MATTER

The witness was not cross-examined on the receipt of the said entitlements. The effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness, I hold. See Gaji v. Paye (2003) 8 NWLR Part 823 Page 583 at 605, Para A-C per Edozie JSC, Oforlete v. State (2000)12 NWLR Part 681 Page 415 at 436, Para B-C per Achike JSC. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT AN EMPLOYER CAN TERMINATE A CONTRACT WITH AN EMPLOYEE AT ANY TIME

The law is that the employer can terminate the contract with the employee at any time and for any reason or, no reason at all. The master, in an ordinary case of master and servant, cannot be compelled to retain a servant he no longer wants – Oforishe v. NGC Ltd (2018)2 NWLR Part 1602 Page 35 at 61 Para A-C per Galinje JSC, Obanye v. Union Bank Plc (2018)17 NWLR Part 1648 Page 375 at 389 Para F-G per Nweze JSC. Had they given a reason which they failed to justify, they would most certainly have been found liable for wrongful dismissal. See Osisanya v. Afribank Nig. Plc (2007)6 NWLR Part 1031 Page 565 at 580 Para E-F per Oguntade JSC. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): Consequent upon leave granted by this Court on the 12th day of October, 2021, the Appellant filed a Notice of Appeal on 20th October, 2021 against the judgment of the National Industrial Court, Yenagoa Judicial Division, delivered by S.H. DANJIDDA J. on the 3rd of May, 2019 dismissing the claims of the Appellant for unlawful dismissal.

Following transmission of the Record of Appeal, the Appellant filed its Appellant’s Brief of Arguments on 23/12/21, which was amended by leave of the Court on 27/9/21 and filed on 30/9/22.

ISSUES FOR DETERMINATION
In the Appellant’s Amended Brief of Arguments, settled by L.K. Gbarato Esq., three issues were distilled for the Court’s determination, namely:
1. Whether the Defendant/Respondent in this matter is still N.E.P.A. (National Electric Power Authority).
2. Whether the Respondent comply (sic) with Exhibit C2 before terminating the appointment of the Appellant.
3. Whether the learned justice of the lower Court assessed, evaluated and interpreted the various documents, tendered and admitted as exhibits before the lower Court in line with relevant statutory provisions of the law and case law especially Exhibits C2, C5, C8 and D1-6 before coming to the conclusion that the Appellant’s claim fail and relief sought are hereby refused (sic).

In the Respondent’s Brief of Arguments filed on 17/02/22 but deemed by this Court as properly filed on 27/9/22, Emeka C. Njoku of Counsel inserted a Notice of Preliminary Objection challenging the Brief of Arguments filed by the Appellant, subsequent to which he formulated a sole issue for determination, namely:
“From the totality of evidence adduced at the trial by both parties whether the trial Court erred in law when it refused the Appellant’s claim and entered judgment in favour of the Respondent.”

Preliminary Objection
I note that the Respondent’s Counsel failed to move his Preliminary Objection at the hearing of this appeal. This may be because the Appellant, by his Amended Appellant’s Brief filed subsequent to the Respondent’s Brief, which encapsulated the objection, corrected the anomalies pointed out in the Notice of Preliminary Objection. I thus deem the Preliminary Objection as having been abandoned and dismiss it. I shall thus discountenance submissions in respect thereof in both Briefs of Argument.

Facts leading to appeal
The Appellant commenced his action before the lower Court by a “Complaint” dated and filed on 27/5/2016, which was subsequently amended. By his Amended Complaint dated 9/3/2018 and filed on 7/05/2018 (Page 117 of Record) he sought the following reliefs:
Whereof the Claimant claims against the Defendant as follows:
i. A DECLARATION that the Claimant was wrongly dismissed by the Defendant from its employment in that there was no basis for the dismissal.
ii. A DECLARATION that the Claimant was wrongfully dismissed by the Defendant, as the offence for which he was queried and upon which the Claimant’s employment was terminated was not one committed by him (the Claimant).
iii. AN ORDER directing the Defendant to pay the Claimant the sum of N397,997.00 (Three Hundred Ninety-Seven Thousand, Nine Hundred and Ninety-Seven Naira) only per month which includes his salaries and other entitlements commencing from the 30/09/2014 until judgment sum is liquidated.
Iv. AN ORDER directing the defendant to pay to the claimant the sum of N50,000.000.00 (Fifty Million Naira) only as general damages.
v. AN ORDER directing the Defendant to reinstate the Claimant to its employment with all his promotional benefits thereon.

The case of the Appellant, as stated in his witness statement on oath adopted by him, as the sole witness in proof of his claim, is that he was an employee of the Respondent. He had been in that employment for about 20 years from when he was employed by the Respondent in 1986 under its former name NEPA. He was confirmed in 1988 and served until the Respondent was renamed PHCN in 2005. He was given a letter of employment, dated 31st May, 2014, by the current PHEDC and his employment took effect from 1st June, 2014. On the 30th of June, 2014, the Respondent queried him for alleged misconduct. His employment was however summarily terminated by the Respondent in August 2014.

During the cross-examination of the Appellant (CW1) by the Respondent’s Counsel, the Appellant stated that he worked with the defunct NEPA which was wholly owned by the Nigerian government and also with the PHCN which was co-owned by the same Nigerian government along with other shareholders, before he took up a new appointment with the Respondent (PHEDC) in 2014. That the PHEDC is a public private company that is supervised by the government. CW1 further stated that he was disengaged by the PHCN before he took the appointment with PHEDC. CW1 also stated, still under cross-examination, that he was paid all his entitlements when he was disengaged by the PHCN. He agreed that he understood the terms of the contract that he signed with the PHEDC and that it was a probational appointment. He also agreed to having received his last salary as well as other entitlements.

The Appellant’s termination letter, dated 28/08/2014, was tendered during his cross-examination by Respondent’s Counsel and received as Exhibit “C8”.

The Respondent’s case was put forward by its sole witness, Jubilee Edegbai (DW1), who, in her witness statement adopted by her, stated that the Appellant received the termination of his probational employment with the Respondent in accordance with the terms and conditions of his employment as contained in the contract. DW1 also testified that the Appellant is no longer a staff of the Respondent and that upon termination of his employment, he received one-month’s salary, a week’s salary in lieu of notice and other entitlements, on the 31/8/2014. She denied any liability by the Respondent for the Appellant’s misfortune and attendant hardship.

Under cross-examination, she stated that she was employed in 2015 and had worked with the Respondent for almost 5 years. That she started working with them when it was PHCN. She denied knowledge of whether the Appellant had worked with the Respondent for 20 years since his appointment with NEPA. DW1 also denied knowledge of whether the Appellant was guilty of any misconduct in the past. She stated that one Mrs. M.A. Yusuf investigated the allegation of extortion against the Appellant and one Mr. Kaaka and that after her investigation the Appellant was exonerated as stated in the report (Exhibit D1). She also stated that the Respondent is different from NEPA and PHCN. Also, that the Appellant’s previous service with NEPA and PHCN might not have been considered.

I shall adopt the Appellant’s issues, with necessary modifications for succinctness, as those which arise for determination.

The first issue for determination is:
Whether the Respondent in this matter is still NEPA (National Electric Power Authority)

The importance of this issue to the Appellant is the security of tenure that is conferred on him if answered in the affirmative.

Appellant’s Submissions
Learned Counsel referred to Exhibit D5, a letter written to the Respondent from a Solicitor, in proof of the fact that the Respondent and NEPA are one and the same. He considered the denial of the witness of this fact, under cross-examination, as of no moment, as it was not pleaded. He also referred to what he considered an admission by the Respondent’s witness that the Federal Government of Nigeria has shares in the Respondent’s company.

Respondent’s Submissions
This issue was responded to by Respondent’s Counsel in arguing his sole issue for determination. He submitted that the Appellant, under cross-examination, admitted that he was disengaged by National Electricity Power Authority (NEPA), and Port Harcourt Power Holding Company of Nigeria (PHCN) before taking up employment with the Respondent, Port Harcourt Electricity Distribution PLC (PHED). This therefore means that National Electricity Power Authority (NEPA) and Port Harcourt Electricity Distribution PLC (PHED) are not one and the same entity. He also referred to the testimony of DW1 that the Respondent is not owned by the Federal Government of Nigeria and is also not a continuation of National Electricity Power Authority (NEPA) and Port Harcourt Power Holding Company of Nigeria (PHCN) but is rather a Publicly owned company.

RESOLUTION
The trial Judge in his judgment, on this issue, held as follows:
“It is quite clear from the above that since the Claimant had been disengaged by the PHCN and given all his entitlements, then the appointment he took with the Defendant on 31/5/2014 effective from 1/6/2014 is a fresh one and cannot be said to be an extension of the appointment of 1986. The Claimant has not been able to prove to the Court that NEPA is the same PHEDC but by mere saying (sic).”

It is settled law that parties are bound by the terms embodied in a contract of employment. Courts have been adjured to be wary of looking outside their terms, as the terms govern the relationship between the employer and the employee. Extrinsic evidence is not admissible, I hold, to add to, vary or subtract therefrom. Where the terms spell out unambiguously how and when to terminate the employment and the termination is carried out in the manner provided by the terms, that termination is not wrongful, I hold. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 53 Para D per Rhodes-Vivour JSC; – Olarewaju v. Afribank (Nig) Plc (2001) 13 NWLR Part 731 Page 691 at 712 Para C at 714 -715 Para F-C- per Katsina-Alu JSC (as he then was), Layade v. Panalpina (1996) 6 NWLR Part 456 Page 544 at 555 Para B-C, per Belgore JSC (as he then was).

It is agreed by both the Appellant and the Respondent that the letter of employment is Exhibit “C2”.
Exhibit C2 provides:
“31st May, 2014
IKORO LAWRENCE
OFFR. 1 (M)
STAFF NO:14850
ONNE Business Unit
Dear IKORO LAWRENCE
OFFER OF PROVISIONAL EMPLOYMENT WITH PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY (PHED)
The PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY (PHEDC) is pleased to offer you employment on your current position and grade subject to the following terms and conditions with effect from 1st June, 2014.
1. Duties
You will be expected to perform all duties and exercise all such authority as may be assigned or delegated to you from time to and act in a manner which is necessary and proper in the interests of the Company.
2. Probation and Confirmation
You will be placed on probation for an initial period of six (6) months from June 1, 2014. This probation period may be extended if Management considers it necessary. Your appointment will be confirmed in or after six (6) months subject to your satisfactory performance pursuant to the Company’s staff evaluation process. You will be required to complete all employment documentation, pass a medical test of fitness and obtain satisfactory character references before confirmation of your employment.
3. Hours of Work
Your working hours shall be from 8:00pm. You may also be required to work extra hours, as and when deemed necessary by the Company.
4. Compensation
Your current salary with the company shall be increased by 10% (ten percent). By accepting this offer, you hereby authorize the Company to deduct and remit all statutory deductions and contributions required by law on your behalf.
5. Annual Leave
After confirmation, you will be entitled to Annual Leave of 20 working days, within the calendar year, or as otherwise determined by the Company, excluding all statutory holidays.
6. Devotion to Duty
You shall while in the employment of the company be expected:
1) To devote yourself exclusively to the services of the company.
2) To conduct yourself properly at all times and show respect to constituted authorities within and outside the company.
7. Termination of Employment
During the period of your probation, either you or the Company may terminate this Contract by giving to the other a week’s notice in writing. Thereafter, either you or the Company may terminate this Contract by giving to the other at least One (1) months’ notice in writing or by payment to the other of One (1) month’s basic salary in lieu of notice.
The Company shall also have the right to terminate your employment in cases of material breach of contract and to dismiss you without prior notice for gross misconduct and fraud without any liability for compensation or damages.
Please confirm your acceptance of this offer by signing and returning the enclosed copy of this letter to us within three working days of receipt.
Accept my congratulation.
Your sincerely,
PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY
Jon Abbas
Chief Executive Officer
The terms and conditions of this offer are agreed to by:
Name: IKORO LAWRENCE
Signature: SGD Date: 02-06-2014.”

It is clear from Exhibit C2, that the parties, having embodied the terms of their contract in Exhibit C2 are bound by it.

The Appellant has argued that the Respondent and NEPA are the same. He tendered Exhibit C1, which is a letter dated 14/10/1988 from the District Distribution Manager of National Electric Power Authority confirming his (Appellant’s) appointment with the Authority from 10/9/1988. He also tendered Exhibit C3, which is Power Holding Company of Nigeria PLC ID Card in his name. However, from his letter of employment set out above, Exhibit C2, it is apparent that the Respondent is a different entity from both NEPA and PHCN, and that is why the contract he entered into was not with those entities but with Port Harcourt Electricity Distribution Company, the Respondent.

Indeed, it has been held that the fact that an organization, which is an employer, is a statutory body, does not mean that the conditions of service of its employees must be of a special character and not merely that of master and servant. The Court, I hold, must confine itself to the terms of the contract of service. See Fakuade v. Obafemi Awolowo University Teaching Hospital (1993) 5 NWLR Part 291 Page 47 at 57-58 Para A-A per Kutigi JSC (as he then was).

It is accordingly clear that the employer of the Appellant, at the time of the incident, was Port Harcourt Electricity Distribution Company and not National Electric Power Authority or Power Holding Company of Nigeria PLC. It is also clear that the contract of the Appellant was with Port Harcourt Electricity Distribution Company.

The Appellant has however relied on Exhibit D5 in proof of the fact that the predecessor of the Respondent is NEPA, so his employment is with that authority. Exhibit D5 however is merely a letter written to the Respondent by a Solicitor alleging trespass to his client’s land by NEPA, who he referred to as the Respondent’s “predecessor company” and seeking damages for trespass. This letter, without more, is no proof that NEPA and the Respondent are one and the same, I hold.

Indeed, the Appellant, under cross-examination, stated:
“Yes I was discharged by PHCN before I took the appointment of PHED. PHED is Public Private Company still supervised by the Government. Yes I was appointed by PHED in 2014…Yes when PHCN disengaged me I was paid all my entitlements.”
DW1 stated, under cross-examination:
“The Defendant is different from NEPA and PHCN…The Government may have a share in the Defendant company but it is not as it urge (sic) to be where it had 100% share during NEPA and PHCN.”

It can thus not be said that all three companies are the same, I hold. Even if they are, the contract between the Appellant and the Respondent is as embodied in Exhibit C2, the terms of which were agreed to by the Appellant. I accordingly agree with the lower Court that since the Appellant had been disengaged by PHCN and given all his entitlements, the appointment with the Respondent is a fresh one and cannot be said to be an extension of the appointment of 1986. In the absence of any instrument showing that the Respondent and NEPA are the same, I shall have to resolve this issue against the Appellant.

I shall take both the 2nd and 3rd issues together, namely:
2. Whether the Respondent complied with Exhibit C2 before terminating the appointment of the Appellant.
3. Whether the lower Court assessed, evaluated and interpreted the various documents, tendered and admitted as exhibits before the lower Court in line with relevant statutory provisions of the law and case law, before coming to the conclusion that the Appellant’s claim fails.

Appellant’s Submissions
Appellant’s Counsel has submitted that the Respondent did not give one week’s notice in writing, as mandated in the contract of employment. The contention of the Respondent that it paid one week’s salary in lieu of notice, while not conceded, is contrary to the requirement of the contract. 

Respondent’s Submissions
Respondent’s Counsel simply referred to the evidence of the Appellant under cross-examination where he admitted receiving his salary in lieu of notice and other terminal benefits as contained in Exhibit C2.

RESOLUTION
Exhibit C2, the contract of employment, states that during the period of the Appellant’s probation, either party may terminate the contract by giving a week’s notice in writing. Thereafter either party may give one month’s salary in lieu of notice.

The letter of “Termination of Appointment” dated 28th August, 2014 from the Respondent to the Appellant (Exhibit C8) read:
“Kindly refer to your letter of provisional appointment dated 30th May, 2014. Management wish to inform you that your services are no longer required with immediate effect.
You will be paid your salary and allowance up to 28th August, 2014. You will also be paid one week salary in lieu of notice in accordance with the conditions of your probationary appointment.”

The Appellant’s averment in his Amended Complaint with regard to his entitlement received, is at Paragraph 25 thereof at Page 116 of the Record, as follows:
“That I received his (sic) last salary and entitlement on 31/8/2014 and the salary and entitlement amounts to N397,997.00 (Three Hundred Ninety-Seven Thousand, Nine Hundred and Ninety-Seven Naira) per month which I am entitled to beginning from 31/09/2014 till judgment is delivered and thereafter at 10% per annum until judgment sum is liquidated. A copy of the bank statement of the last salary/entitlement from the bank which produced the statement of account is hereby pleaded and shall be relied upon in the course of the trial.”

In his evidence, under cross-examination, at Page 206 of the Record, said:
“I received my last salary and other entitlements…I was paid my entitlement after I submitted all property in my possession belonging to the Defendant. The Defendant did not comply with Paragraph 7 of Exhibit 2…”

Also, DW1 in Paragraph 14 of her witness statement on oath, at Page 154 of the Record, stated:
“…the Claimant received one month’s salary, a week salary in lieu of notice and entitlement on 31/8/2014 to the tune of N397,997.00.”

The witness was not cross-examined on the receipt of the said entitlements. The effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness, I hold. See Gaji v. Paye (2003) 8 NWLR Part 823 Page 583 at 605, Para A-C per Edozie JSC, Oforlete v. State (2000)12 NWLR Part 681 Page 415 at 436, Para B-C per Achike JSC.

It is thus deemed admitted that the Appellant, in addition to payment to him of his salary and entitlements was also paid one week’s salary in lieu of notice, as stipulated in Exhibit C2, he being under “provisional employment”, as stated in the letter. Having been paid one week’s salary, he was not expected to work for one week, as he contends.

I accordingly hold it proved that the Appellant was paid his entitlements as stipulated in his letter of employment. There was thus compliance by the Respondent with Exhibit C2, the said Letter of Employment”.

The Appellant’s Counsel has however argued that the Appellant’s employment should not have been terminated, as he had been found not guilty of misconduct. I do commiserate with the Appellant. It is clear from the facts of the case and as vociferously maintained by him, that he was innocent of the misconduct he was accused of. I note from the panel of investigation that another officer had owned up to collecting some money from a customer, which, unfortunately was the allegation made against the Appellant. He was indeed exonerated, as Exhibit D1 the Investigative Report tends to suggest, and which was confirmed by DW1.

However, even though the allegation against him, for which he was exonerated, was most likely the reason for which his appointment was terminated, the Respondent, in Exhibit C8, the “Letter of Termination” made no mention of the reason for his termination.

The law is that the employer can terminate the contract with the employee at any time and for any reason or, no reason at all. The master, in an ordinary case of master and servant, cannot be compelled to retain a servant he no longer wants – Oforishe v. NGC Ltd (2018)2 NWLR Part 1602 Page 35 at 61 Para A-C per Galinje JSC, Obanye v. Union Bank Plc (2018)17 NWLR Part 1648 Page 375 at 389 Para F-G per Nweze JSC. Had they given a reason which they failed to justify, they would most certainly have been found liable for wrongful dismissal. See Osisanya v. Afribank Nig. Plc (2007)6 NWLR Part 1031 Page 565 at 580 Para E-F per Oguntade JSC.

Fortunate for the Respondent, no reason was given by it.

Much as I sympathize with the Appellant and agree that he was very badly treated by the Respondent, the Court cannot, in an ordinary contract of service, which I hold this to be, foist an employee on an unwilling master. Had this been a contract with a statutory flavour, the declarations sought by the Appellant would most certainly have been considered. As I have held above, however, this is a simple contract of employment. The lower Court, I hold, properly assessed and evaluated the various documents before it, in refusing the claims of the Appellant. I thus resolve the 2nd and 3rd issues for determination against the Appellant.

Having resolved all issues against the Appellant, this appeal fails and is hereby dismissed. The judgment of the lower Court, the National Industrial Court, coram S.H Danjida, delivered on 3rd of May, 2019 is accordingly affirmed.

The parties shall bear their respective costs.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.

I agree with his reasoning and conclusions.

I dismiss the appeal and affirm the judgment of the National Industrial Court delivered on the 3rd of May, 2019.

ADEMOLA SAMUEL BOLA, J.C.A.:  I am privileged to have read in draft the judgment of this Court delivered by my learned brother, O. A. Adefope-Okojie, JCA. I am in solid agreement with his reasonings and decision as embodied in the decision. I adopt them as mine. This appeal lacks merit. It is accordingly dismissed. The judgment of the lower Court is affirmed.


I make no order as to cost.

Appearances:

L.K. GBARATO, ESQ. For Appellant(s)

EMEKA NJOKU, ESQ. For Respondent(s)