IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3RD MAY, 2019 SUIT NO: NICN/YEN/101/2016
BETWEEN:
LAWRENCE IKORO CLAIMANT
AND
PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY DEFENDANT
REPRESENTATION:
D. I. WARIBOKO FOR THE CLAIMANT
E. C. NJOKU FOR THE DEFENDANT
JUDGMENT
Originally this suit was commenced by a Complaint dated and filed on the 27/05/2016, but by an amended complaint dated 9/3 2018 and filed on 7/05/2018, the claimant seeks for the following reliefs:-
“(i) A DECLARTION 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 and 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 is delivered and thereafter at the sum of 10% interest on the judgment sum until the 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.”
Claimant’s amended complaint was accompanied by other originating processes but I observe that Claimant’s statement of fact was headed Amended Complaint instead of Amended Statement of fact.
The Defendant upon being served with the complaint had earlier filed its Memorandum of conditional appearance together with the statement of defence on the 2nd of September 2016 having sought leave for extension of time to do so. Following the claimant’s amendment of the complaint, the Defendant equally filed its amended statement of defence on the 31/05/2018.
Hearing in this matter commenced on 16/06/2018 where the Claimant testified in person as CW1 and adopted his witness statement on oath dated 7/05/2018.
Claimant testified that he was an employee of the Defendant and had been in that employment for about 20 years when he was first employed by the Defendant in 1986 under its former name NEPA. That he was confirmed in 1988 and served until the Defendant was renamed PHCN in 2005. That he was given a letter of employment dated 31st May 2014 by the current PHEDC, while his employment took effect from 1st June 2014. On the 30th of June, 2014, the Defendant queried the Claimant for alleged misconduct. Then sometime in August of 2014, the defendant summarily terminated the Claimant from its employment.
CW1 also tendered documents which were admitted in evidence and marked as follows: letter of confirmation of appointment dated 14/10/1988 was admitted and marked as Exhibit C1. Letter of appointment dated 31/05/3014 was admitted and marked as Exhibit C2. Claimant’s Identity Card was admitted and marked as Exhibit C3. Copy of PHEDC Bill for July 2014 was admitted and marked as Exhibit C4. Query letter was admitted and marked as Exhibit C5. Defendant’s Intelligent Power Report was tendered and admitted as Exhibit C6. Bank Statement for the period of 1/06/2014 to 1/08/2014 was admitted as Exhibit C7. Thereafter, Exhibits C2, C3 and C6 were substituted for photocopies upon the application of the Claimant’s Counsel.
During cross examination of CW1 by the defendant’s counsel, the Claimant testified 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 Defendant (PHEDC) in 2014. That the PHEDC is a public private company that is supervised by the government. CW1 stated that he was disengaged by the PHCN before he took the appointment with PHEDC. CW1 also stated under cross examination that he was paid all his entitlements when he was disengaged by the PHCN. He agreed to understanding the terms of the contract he signed with the PHEDC to the extent that it was a probational appointment. The Claimant also agreed to having received his last salary as well as other entitlements.
The Claimant’s termination letter was tendered by counsel for the Defendant during cross examination of CW1 and the said termination letter dated 28/08/2014 was admitted in evidence and marked as Exhibit C8.
CW1 further stated under cross examination that the defendant did not comply with paragraph 7 of Exhibit 2. Furthermore, CW1 testified that no crime or fraud was stated to have been committed by him in Exhibit C8. That there are two reasons for his termination but the reasons for his termination were not stated in Exhibit C8.
Upon conclusion of cross examination, the Claimant closed his case.
On 17/07/2018, the Defendant opened its case by calling DW1, (Jubilee Edegbai) a Human Capital Business Partner of the Defendant to testify. DW1 adopted her Witness statement on oath dated 31/05/2018 and testified that the Claimant received termination of his probational employment with the Defendant in accordance with the terms and conditions of his employment as contained in the contract. DW1 also testified that the Claimant is no longer the staff of the Defendant and upon termination; he received one month salary, a week salary in lieu of notice and other entitlements on the 31/8/2014. The Defendant through DW1 denies any liability for the Claimant’s misfortune and attendant hardship.
The following documents were tendered by DW1 and admitted in evidence thus: Investigation Report dated 20/10/2014 marked as Exhibit D1, Reply to query by Kaaka dated 2/07/2014 (Exhibit D2), another reply to query by the Claimant dated 30/06/2014 (Exhibit D3), letter of termination dated 28/08/2014 (Exhibit D4), a letter from customer’s solicitor dated 27/08/2014 (Exhibit D5) and query letter dated 30/06/2014 marked Exhibit D6. Upon the application of counsel, Exhibit D5 was substituted with a Photocopy.
While being cross examined by counsel for the Claimant, DW1 stated that she was employed in 2015 and had worked with the Defendant for almost 5 years. That she started working with them when it was PHCN. DW1 denied knowing whether the claimant had worked with the Defendant for 20 years since his appointment with NEPA. DW1 also denied knowledge of whether the Claimant was guilty of any misconduct in the past. DW1 stated that Mrs. M. A. Yusuf investigated the allegation of extortion against the claimant and Mr. Kaaka. That Exhibit D1 was produced by Mrs M. A. Yusuf after her investigation. DW1 acknowledged that the Claimant was exonerated in that report (Exhibit D1). DW1 also stated that Defendant is different from NEPA and PHCN. That the Claimant’s previous service with NEPA and PHCN might not have been considered and that the Claimant was not the only personnel terminated by the Defendant. The Defence closed its case upon discharge of DW1 and the matter was adjourned to 10/10/2018 for adoption of final written addresses but owing to my transfer to Makurdi judicial Division of the court, the matter was adjourned to a further date.
The Defendant’s final written address was filed on 07/08/2018 urging this court to determine one issue of whether the Claimant has proved his case from the totality of his evidence adduced to entitle him to the reliefs sought.
Defendant’s counsel canvassed arguments on the sole issue raised and cited relevant provisions of the Evidence Act that the burden of proof is on the Claimant who is asserting the given facts in this case. Counsel referred to G & T INVESTMENT LTD V. WITT & BUSH LTD (2011) 8 NWLR (PT.1250) 500, SC, MOHAMMED V. DHL INT’L LTD (2001) FWLR (PT. 38) 1312 AND INTERCONTINENETAL BANK LTD V. BRIFANA LTD. (2013) 3 NWLR (PT. 1324) P 538.
Considering the facts and evidence presented by the Claimant before this court, counsel submitted that the claimant’s action is for breach of contract of employment and as such, the court is obliged to enquire into the procedure adopted and determine whether it conforms to the procedure as prescribed. Counsel cited OYEDELE V. IFE UTH (1990) 6 NWLR (Pt. 155) 194.
Counsel directed the attention of the court to paragraph 7 of Exhibit C2 which is the appointment letter, submitting that the Claimant having received monies paid to him by the Defendant in lieu of notice, the Defendant cannot be said to have breached the terms of the contract agreement. Citing ADAMS V. L.S.D.P.C (2000) 5 NWLR (PT. 656) 291, PAGE 316 PARAS C-E, Counsel urged this court to hold that the Claimant failed to meet the set standards entitling him to the reliefs sought. That it is fairly settled that parties are bound by the terms of contract between them. Counsel cited AJAYI V. TEXACO (NIG) LTD. (1987) 3 NWLR (PT. 62) 577 P 319. PARAS F- G
Counsel called the attention of the Court to the crux of the claimant’s claims that haps on motive which counsel argued is irrelevant in law. Counsel submitted that the Claimant indicated in his oral evidence before this court that the termination of his appointment was not based on the report of any
investigation panel. Counsel while citing ADAMS V. L.S.D.P.C (supra), CALABAR CEMENT CO. LTD. V. DANIEL (1991) 4 NWLR (Pt. 188) 750; KANO V. CBN (1999)6 NWLR (Pt. 607) 390 argued that the law is clear that a master can determine employment for good or bad or no reason at all.
While also calling the attention of this court to the cases of UNIVERSITY OF JOS V. DR. MC IKEGWUOHA (2013) 9 NWLR Pt. 1360 at 478; AKANDE V. ADISA (2012)15 NWLR (Pt 1324) P. 538; AJAO V. ADEMOLA (2005) NWLR (Pt. 913) 636, counsel submitted that for a party to be entitled to the award of reliefs claimed, such party must not only place evidence before the court but such evidence has to be credible and convincing. Counsel therefore urged this Honourable court to hold that the claimant failed to prove his case by credible, veritable, concrete and direct evidence.
On the Claimant’s part, his final address was filed on 02/10/2018 wherein Claimant’s counsel formulated two issues for determination of the court which are as follows:
“Whether the Claimant’s employment can be said to have been rightly terminated by the Defendant in this case?
Whether the Claimant has proved his case to be entitled to the reliefs sought in the claim?”
On the first issue, counsel argued that the Claimant was employed by the Defendant in 1986 and confirmed in 1988. That after the restructuring of the Defendant, the Claimant continued working for over twenty (20) years. That the circumstances leading to the termination of the Claimant were masterminded by Mr. Valentine Akpaka, a colleague of the Claimant, in cohorts with his brother, Mr Emmanuel Kwushwe, who worked as Head of Human resources at the Head office of the Defendant. That this vendetta probably stemmed from the facts that while the Claimant was secretary of the Electricity workers union, he had refused to accede to the said Mr Valentine Akpaka’s request to circumvent the process and employ his daughter into the Defendant Company.
Counsel further argued that the method adopted by the Defendant in terminating the Claimant is indicative that there was some untoward motive behind it. Counsel purported that contrary to the procedure, the claimant was issued a direct query (Exhibit 5). After he had responded to it and without awaiting the outcome of the investigation, the Claimant was summarily terminated by Exhibit D4. Counsel submitted that the termination of the Claimant by the Defendant before the Investigative report (Exhibit D1) could and was issued amounts to denial of fair hearing. Counsel referred the court to Section 36 of the 1999 Constitution (as amended) as well as the cases of O. OZANA V. PSC (1995)4 NWLR (PART 277) 590; ERAWODAKA V. UBTHMB (1993) 5 NWLR (PART 277) 590.
Counsel further cited Article 4 of the International Labour Organization Termination of Employment Convention No.158 (1982), as well as the cases of PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA V. SCHLUMBERGER ANADRILL NIGERIA LIMITED (2008) 11 NLLR (PART 29); EBERE ALOYSIOUS AND DIAMOND BANK (2015) 58 NLLR (PART 199) 92 to submit that an employer can no longer terminate employment unless there is a valid reason for so doing.
On issue two, counsel relied on the strength of the evidence before the court in arguing that each of the reliefs sought was ably supported by evidence. Counsel expressed the view that the claimant’s claim was not disputed in the cause of trial. Overall counsel urged this court to hold that the Claimant had successfully proved his case against the Defendant.
DECISION OF THE COURT
I have gone through the pleadings of the parties, the Exhibits tendered and admitted in evidence and the submissions of counsel to the parties.
I consider it quite relevant to look at the reliefs sought by the Claimant as they relate to the issues raised to determine whether the Claimant proves his case as per the reliefs sought.
Claimant in his relief NO. 1 asks for a declaration that he was wrongfully dismissed by the Defendant and there was no basis for that dismissal.
In trying to prove his case, Claimant placed before the court letter of confirmation of his appointment dated 14/10/1988 (Exhibit C1), Letter of appointment dated 31/05/2014 (Exhibit C2) and Claimant’s Identity Card (Exhibit C3). Claimant brought Exhibit C1 to prove that he had been working with the Defendant since 1986 and confirmed in 1988. And that National Electric Power Authority who issued Exhibit C1 is still the Defendant. However, I observe that the initial letter of the appointment which might have contained the terms and conditions of the employment were not brought by the Claimant.
It is pertinent to observe that apart from the Oral testimony of the Claimant, there is nothing in the record that shows that NEPA is still the Defendant. CW1 said under cross-examination 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 Defendant (PHEDC) in 2014. He also stated that he was disengaged by the PHCN before he took the appointment with the Defendant and was paid all his entitlements when he was disengaged by the PHCN.
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 effecive from 1/6/2014 is a fresh one and cannot be said to be an extention 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.
By Exhibit C2, the Claimant has been able to discharge the burden placed on him by the law to prove that he was the employee of the defendant. And it is that Exhibit that the court will consider in determining the circumstances under which his employment can be determined. See Idoniboye – Obu V. NNPC (2003) LPELR – 1426(SC), Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC.
On this note, I find that Exhibits C2 contains the terms and conditions of the claimant’s employment.
Article 2 of Exhibit C2 says that the Claimant would be placed on probation for an initial period of six months from 1/6/2014 and the probation period may be extended if the Management considers it necessary. While Article 7 of the same Exhibit says that, during the period of probation, either party may terminate the contract by giving to the other a week’s notice in writing.
It is in the light of Article 7 of Exhibit C2 that Exhibit C8 was issued. Exhibit C8 is reproduced as follows :-
“………..
TERMINATION LETTER
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.
Kindly return all the company’s properties in your possession to the Business Manager, Onne before your exit.
Port Harcourt Electricity Distribution Company thank you for your past services to the company.
EMMANUEL KWUSHE
HEAD, HUMAN RESOURCES
CC: Chief Financial Officer
CC: Business Manager, Onne
Above is for your information, please.”
From the foregoing facts, I find that this is a contract of personal service and since it is the law that an employer is entitled to bring the appointment of his employee to an end so long as he acts within the terms of the employment. Then I am satisfied that the Defendant has complied with the terms and conditions of the contract of the employment of the claimant. See Idoniboye – Obu V NNPC (supra).
DW1 in her testimony averred that the Claimant upon termination, received one month salary, a week salary in lieu of notice and other entitlements on the 31/8/2014 and by this, where an employee accepts salary in lieu of notice of termination of his appointment, he cannot be heard to complain later that his contract of employment was not validly and properly determined. Such a conduct renders the determination mutual. See Morohunfola V Kwara Tech. (1990) NWLR (Pt.145) 506 SC. Exhibit C8 and the evidence of CW1 under cross-examination corroborate the averment of DW1.
Claimant’s relief NO. 2 is that he was wrongfully dismissed by the Defendant as the offence for which he was queried and upon which his employment was terminated was not committed by him.
On this, Claimant has proved that the panel of investigation set up to investigate the allegations levelled against him exonerated him in its report and DW1 confirmed this fact. However, the Defendant opted to give no reason in terminating the employment of the claimant as the law requires, and insisted that the appointment was terminated based on the parties terms and conditions of employment and no more. The Defendant did not attempt to justify its action of terminating the employment of the Claimant based on any allegation contained in the query (Exhibit D6).
For the Claimant’s reliefs Nos. 3, 4 and 5 which are for salaries and other entitlements from 30/9/2014 until Judgment is delivered, N50, 000,000 general damages and reinstatement of the claimant. I wish to say that this is a simple master and servant relationship governed by a written contract of employment. It is a contract of personal service and there is no evidence to show that it has any statutory flavour. Hence this Court cannot reinstate the claimant in the instant contract. It is trite that one cannot force a willing servant on an unwilling employer and so the court cannot treat the contract between the parties as continuous one by directing the defendant to pay the claimant his salaries and entitlements until judgment is delivered. See Afribank V Osisanya (1999)LPELR – 5206(CA).
I find also no proof from the side of the claimant that he is entitled to damages for wrongful dismissal because the contract was determined in accordance with the manner provided by the written contract of the parties. See Okobi V Sterling Bank Plc (2013) 30 NLLR (Pt. 86) 246.
On the whole, the Claimant’s claims fail and the reliefs sought are hereby refused.
Judgment is entered accordingly.
…………………………………………
HON. JUSTICE S. H. DANJIDDA
JUDGE
