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National Industrial Court

Mr. Ameh Bala -VS- World Wide Commercial Ventures Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I. AMADI

 

Dated December 12, 2019

Suit No: NICN/JOS/25/2016

BETWEEN

 

  1. AMEH BALA ——-               CLAIMANT

 

V.

 

WORLD WIDE COMMERCIAL VENTURES LIMITED —– DEFENDANT

 

REPRESENTATION

P.A. Akubo (SAN) withS.YTsok, A.J Adudu and G.S.Orshiofor the Claimant

Chief G.J. Ezimohafor the Defendant

                                             JUDGMENT

INTRODUCTION

The Claimant commenced this case by a general form of Complaint and statement of claim dated 21st June 2016. The Claimant claimed against the defendantas follows:

  1. A declaration that the purported termination of Claimant’s appointment with the Defendant with effect from Tuesday, 31st May, 2016 vide a letter backdated to read Monday, May 2, 2016 but actually delivered to the Claimant through the Church Secretary, ECWA Good News Church, 54 Ahmadu Bello Way, Jos, on Monday, 6th of June, 2016 vide DHL courier delivery method without any formal notice or payment in lieu of notice is manifestly invalid, null and void and of no effect whatsoever.
  2. A declaration that the appointment of the Claimant with the Defendant as Sales Officer –GSK -1is still valid and subsisting having not been properly determined by the Defendant and as such the Claimant is entitled to payment of all his outstanding salaries and emoluments from January, 2016 until judgment and thereafter until his appointment is properly and lawfully determined by the Defendant.
  3. A declaration that the imposition of drugs and/or products on the Claimant by the Defendant which were not ordered for and/or requested by the  claimant is a gross breach of the terms of employment of the claimant and as such blatantly unfair, unlawful and illegal.
  4. A declaration that the imposition of near expired drugs and/or products on the Claimant by the Defendant which were not ordered for and/or requested by the Claimant is unethical, hazardous to human health and  a violation of ethical code of conduct governing the sale and distribution of pharmaceutical products for human use or consumption hence the Claimant has no obligation to sell such products arbitrarily handed over to him by the Defendant at a time they were precariously near the expiration period.
  5. A declaration that the arbitrary insistence of the Defendant on the Claimant to pay for unsold and expired drugs imposedon him by the Defendant is inhuman, unethical and an unwarranted attempt to encourage drug abuse and promote unjust enrichment and as such unlawful and illegal.
  6. A perpetual injunction restraining the defendant, its agents, servants or privies or anyone acting on its instructions or direction from imposing or compelling the Claimant to sell products or drugs that are near their expiration date and/or not requested for by the Claimant.
  7. A consequential order directing the defendant to pay the Claimant arrears of salaries and emoluments at the rate of ₦82, 424 (Eighty Two Thousand, Four Hundred and Twenty Four Naira) per month with effect from January, 2016 until judgment and thereafter until the Claimant is formally disengaged by the defendant from its  employment
  8. 20 million (Twenty Million Naira) only as general damages for the wanton humiliation and maltreatment of the Claimant by the defendant.
  9. Any further consequential reliefs.
  10. Cost of this action.

The Defendant filedits Statement of Defence dated 18th July, 2016 and an amended Statement of Defence dated 21st February 2018. The Claimant filed a Reply to Defendant’s Statement of Defence dated and filed on30thSeptember, 2016 and a further reply to the Defendant’s Amended Statement of Defence dated and filed 6th March, 2018.

The case was mentioned on 11th October 2017, and hearing commenced on 15thMarch, 2018, the Claimant testified asthe sole witness (CW1) by adopting his witness statement on oath. He tendered all documents pleaded and frontloaded. Hewas subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 15thMarch, 2018 after which the claimant closed his case.

The Defendant opened its case on 19thApril, 2018 and called a sole witness who testified on its behalf. He tendered some documents and was cross examined. The Defendant closed its case on the same 19thApril, 2018. After which the defendant closed his case. Thereafter the parties adopted their final written addresses on May 17, 2019, this judgment could not be delivered within the 90days window allowed for delivery of judgments for reasons which to be stated in my letter to the Chief Justice of Nigeria in that regard.

FACTS

The Claimant was offered appointment by the Defendant through a letter dated 26th August, 2011 as Sales Officer-GSK-1.  The Claimant accepted the said offer on 5th September, 2011, consequent upon which he was posted to Jos, Plateau State as accredited representative of the Defendant. The Claimant claims that he put in his best endeavours through aggressive marketing strategies which resulted in positive impact on the fortunes of the Defendant and the defendant was so impressed that it wrote different letters of commendation and increment of salaries to the Claimant.

That Contrary to his expectation the defendant began to send products (drugs) that had short expiration period to him, thereby making it difficult to dispose them easily in the market place. That despite his complaints, the situation did not abate rather it escalated whereby the Defendant even demanded that he pays for the expired drugs. That the defendant deducted the money for the expired drugs from his credit line.

That the climax of it was when he was lured to Kaduna by the Defendant through its Zonal Manager to come along with the expired products as well as the company vehicle, iPad and CUG (Official Sim Card) attached to him.That on arrival in Kaduna, on 15th January, 2016, the Defendant unceremoniously seized the said itemsfrom him even though hewas still in the employment of the Defendant.

That by a letter dated 3rd May, 2016, his Solicitors demanded of the Defendant to inter alia pay arrears of salaries and emoluments due and payable to the Claimant from January, 2016. That the said letter was delivered to the Defendant on 6th May, 2016 but the defendant never bothered to reply the letter.

That a month after his Solicitor’s letter was delivered to the Defendant; he received a letter from the Defendant on 6th June, 2016 whereby the Defendant purported to terminate his appointment with effect from 31st May 2016 without any notice or payment in lieu of notice. That the said letter received on 6th June, 2016 was backdated to2nd May, 2016,hence this suit.

The defendant on its part did not dispute the fact of employment of the claimant rather it stated that it never supplied the claimant with any products (drugs) that had short expiration period. That by virtue of his employment with the defendant he had no authority to order a particular drug in preference to any other rather it was his line of duty to market the defendant’s goods supplied provided that they were not expired. That the claimant became derelict in the course of his duty and cultivated a truant disposition incompatible with his status where upon in January 2016 he was advised to resign which he rebuffed consequently; his appointment was terminated by a letter May 2, 2016.

ADDRESSES OF THE PARTIES.

The final written address of the Defendant was dated 4th May 2018 and filed 10th May 2018; the learned counsel raised a sole issue for determination by this Honourable court to wit-

Whether having regards to the totality of evidence adduced in this case the employment of the Claimant was not validly determined vide the Termination of employment letter dated May 2, 2016.

 

Counsel submitted that a party who alleges wrongfultermination of employment must plead and prove the specific breaches or conclusions that made the action wrongful. Counsel referred to the case of Ibana vShell Petroleum Development Company of Nigeria Ltd (2005) 17 NWLR (pt. 954) pg 364 at pg 378 – 379 para G – E per Mohammed JSC.

Counsel argued that, the Claimant’s introductory relief annunciating the plethora of Declarative claims contained in the originating process dated 21st June, 2016 read thus:

“A declaration that the purported termination of Claimant’s appointment with the Defendant with effect from Tuesday, 31st May, 2016 vide a letter backdated to read Monday, May 12, 2016 but actually delivered to the Claimant through the Church Secretary, ECWA Good News Church, 54 Ahmadu Bello Way, Jos, on Monday, 6th of June, 2016 vide DHL courier delivery method without any formal notice or payment in lieu of notice is manifestly invalid, null and void and of no effect whatsoever.”

That a perusal of the foregoing relief clearly indicated an inadvertent concession by the Claimant that a termination letter was duly sent on the May 2nd 2016 to the

Claimant but was received by an amorphous and unnamed Church secretary at the No 54, Ahmadu Bello Way, Jos on June 6 2016.

That the phantom Church Secretary expectedly, was not called by the Claimant to testify, in aid of the date of receipt of the said termination letter by the Claimant or better still to prove the allegation of back dating levelled against the defendant.

That the Claimant under cross examination confirmed that his employment letter, Exhibit CB was received by him“through my church ECWA Good news Church 54, Ahmadu Bello Way, Jos”. That the Claimant in unmistakable terms also confirmed that even though he had changed his residential address in the course of his employment, henever communicated any such change to the Defendant. That in paragraph 7 of the Claimant’s witness statement on oath in support of the Reply to the Defendant’s Amended Statement of Defence the Claimant deposed thus:

(7)“That prior to joining the Defendant, I was residing in Rukuba Road (no longer ECWA Good news Church, 54 Ahmadu Bello Way, Jos). However, upon my marriage on 29th September, 2012, the need arose for me to relocate to a more spacious accommodation at Rock Heaven, behind Calvary Science Academy, Jos. It is therefore surprising for the Defendant to pretend not to know the address or correct qualification of its employee, my humble self.”

Counsel submitted that the Claimant’s employment was validly terminated by the Defendant and urged the Honourable Court to so hold.

Continuing counsel argued that the Claimant’s objection to the Defendant’s advice to voluntarily resign his appointment prior to the issuance of the formal termination of appointment letter was captured during Claimant’s cross examination when he said:

“I did not see any basis for advising me to resign after I had worked for the company for 5 years”

Thus, by his deliberate refusal to head the advice to resign the defendant had no option than to formally, terminate his appointment.

Continuing counsel argued that Exhibit CH and the attached Exhibit CH1 rightly showed that the Claimant’s unsold and expired products were returned and official reversals duly entered as there was no compulsion on the part of the Claimant to pay for them as falsely alleged.

 

That the Claimant’s derelict disposition to assigned duties and responsibilities was brought to the fore between the 10th – 15th April, 2015 when the Claimant went to Shendam on a frolic and without official authorization, a conduct that ordinarily should have attracted a dismissal by the defendant.That the lame contention by the Claimant that he had the discretion to undertake a trip without official approval clearly underlined the ordeal endured by the defendant at the hands of the Claimant in the course of his employment, that Exhibits DA(Venkat Kishan’s mail of 15/4/2015) and DB(Stephen Ojo’s mail of 14/4/2015) unequivocally confirmed that the Claimant’s impromptu and frivolous trip to Shendam was not only unauthorised but self-serving being clearly contrived by the Claimant.That the Claimant’s response vide Exhibit DC was damaging to any contention that the alleged trip, if any had official flavour, thus

  1. “I was having sleepless nights and always agitated over little things which I also was worried about and decided to take two days… to ponder about my future with the company and my work which I have so cherished…”
  2. “I am sorry if my absence to ponder about the challenges that were confronting me and my family has caused undue pressure on the others in the company including you that has always been of tremendous help to me.”

Counsel submitted that all that an employer, in a master servant relationship, needed to show whilst in exercise of its discretion to terminate was only to show compliance with the contract of service and no more referring to the case ofKatto v. CBN(1999) 6 NWLR (pt 607) pg. 390 at pg. 414 para. F-H.

Counsel argued that inthe instant case, the contractual relationship between the Claimant and Defendant in Exhibit CB (the offer of Employment letter) and the relevant portion provides as follows:

“if any time you shall by your own conduct render yourself incompetent to perform your duties or if you should be disobedient, intemperate, irregular in attendance, commit any breach of trust, the company by its right, be entitled to terminate your employmentforthwith, without notice or payment in lieu of notice and to deduct from your salary or other emolument, if any due to you the amount of loss the company may have sustained.”

Counsel submitted that if the Claimant has submitted to reconciliation in sync with the requirement under Exhibit CB, the avoidable controversy surrounding the Claimant’s outstanding salary for January 2016 – May 2016 would have been resolved inter parties. That theDefendanthas been consistent in its contention that the Claimant’s outstanding five months’ salary was never in dispute.Thus, the conflict embedded in the claims of the parties regarding the exact outstanding could only be resolved if parties had submitted to reconciliation.

That the Claimant had whilst challenging his termination by the Defendant, erroneouslyurged the Court to grant unusual Declarative reliefs in his favour in a master/servant relationship such as the instant case. That the courts have, over time, refused to grant declarations in such cases since it would tantamount to compelling and /or foisting a willing employee on an unwilling employer. Hence the amalgam of declarative reliefs of the Claimant cannot avail him.

Counsel submitted that the courts have also held that an employee who alleges that his contract had been unlawfully terminated cannot claim wages for services he never rendered as was canvassed in the Claimant’s Consequential Order sought from this honourable court, counsel referred to the case ofOlatunbosun v. NISER (1998) 1 NSSC vol19 ( pt 1) page 1025 at 1047 per Oputa JSC. Counsel submitted that the Claimant cannot justifiably claim payment for services not rendered in a master/servant relationship.

In conclusion counsel submitted that the Claimant’s suit as presently constituted is patently premature and extremely vexatious being an attempt to cajole as well as embarrass the defendant and should accordingly be dismissed. And that the Claimant having failed to adduce sufficient evidence in proof of his allegation of wrongful termination of appointment, is accordingly precluded from the award of the N20,000,000.00 damages or to any sum whatsoever.

The final written address of the Claimant was dated 28th May 2018 and filed 30th May 2018; the learned counsel for the claimant raised five (5) issues for determination by this Honourable court to wit-

  1. Whether the Defendant or its Counsel for that matter has the liberty to employ inappropriate use of language in the Statement of Defence (as amended), Witness Statement on Oath and Defendant’s Final Address.
  2. Whether the Amended Statement of Defence of the Defendant dated 11th day of February, 2018 but filed on 13th February, 2018 together with the accompanying Witness Statement on Oath of Defendant’s Witness is deemed to supercede Defendant’s Statement of Defence dated and filed 18th day of July, 2016 such that the latter together with accompanying Witness Statement on Oath is no longer of any consequence, let alone capable of being utilized by the Defendant in this case.
  3. Whether Exhibits DA, DB, DC, DD and DE were rightly admitted by this Honourable Court and/or have any probative value in this case.
  4. Whether having regard to the facts and circumstances of this case, the purported termination of Claimant’s appointment by the Defendant vide a letter dated Monday, May 02, 2016 is proper and valid having been delivered only to the Claimant on 6th June, 2016 after Claimant’s Solicitors’ letter was received by the Defendant on 6th May, 2016, albeit, without any reply/response from the Defendant and having regard to the Contract of employment.
  5. Whether the Claimant has discharged the required burden of proof upon him so as to entitle him to the reliefs sought vide paragraph 34 of his Statement of Facts.

On issue one;counsel submitted that it would be recalled that the proposed amended statement of defence of the defendant attached to its motion on notice dated the 10th day of November, 2016 contained various paragraphs both in the proposed pleading and accompanying witness statement of oath thereof that were studded with abusive use of language against the Claimant. Indeed, the attention of this Honourable court was drawn to this mind – boggling issue on 31st January, 2018 when the Motion of the Defendant for amendment was being moved consequent upon which the Honourable Court gave an opportunity to the learned Counsel to the defendant to file a clean copy of the Amended Statement of Defence and thereby ensure that the use of inappropriate language be avoided. Counsel urged this Honourable Court to take judicial notice of this fact pursuant to Section 122 (2) (m) of the Evidence Act, 2011. That in the case of Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145 at 179, paras. D-E, the Supreme court per Chukwuma – Eneh, JSC held thus:

‘I must however say it is trite that the court before whom a proceeding is pending or has been contemplated takes judicial notice of all processes filed in the proceeding as well as the proceeding itself including the judgement as the case may be and so following from this position of law, all processes to be relied upon in any application made before that court in the proceeding are judicially noticed.’

That the learned Counsel to the Defendant did not heed the admonition of this Honourable Court on the said 31st of January, 2018 judging from the tone of the Amended Statement of Defence dated 11th day of February, 2018 but filed on 13th February, 2018 together with the accompanying Witness Statement on Oath. Specifically, at paragraphs 12 and 19 of the Amended Statement of Defence, the learned Counsel to the Defendant took the liberty to employ inappropriate language against the Claimant. For instance, at paragraph 12, line 3, the learned Counsel to the Defendant referred to what he called “Claimant’s stubborn inclination”. At paragraph 19, lines 2 and 3, the learned Counsel to the Defendant also described the conduct of the Claimant with respect to the letter of termination as follows: “smacks of brazen desperation and chicanery on the Claimant’s part.”

That in the Witness Statement on Oath that accompanied the Amended Statement of Defence deposed on 13th February, 2018, StevenOjo, the sole Witness of the Defendant also took the liberty to abuse the Claimant in paragraphs 5 and 11 thereof. At paragraph 11 in particular, the sole Witness of the Defendant described the Claimant in the following words: “That it smacks of unbridled arrogance and native bravado for the Claimant who had alluded to the unfavourable business and security drawbacks in Jos and its environs but refused to resign when politely advised to do just that by the Defendant.” As if the foregoing were not bad enough, the learned Counsel to the Defendant equally took the liberty in his Final Address to use inappropriate language and even went to the extent of unfairly accusing the Claimant of wanting to deceive the Honourable Court with his Solicitors’ letter. The inappropriate use of language is borne out of paragraphs 4.7, 4.8, 4.9, 5.0, 5.2, 5.3 and 5.5 of Defendant’s Final Address.

Counsel submitted that with all due respect to the learned Counsel to the Defendant, the various parts of the Amended Statement of Defence, Witness Statement on Oath of StevenOjo and Defendant’s Final Address as highlighted above are characterised by inappropriate use of language which is intemperate, discourteous and uncouth. The learned Counsel to the Defendant does not need to abuse the Claimant in the pleading, Witness Statement on Oath and Defendant’s Final Address in order to make his point. The law is settled that a Counsel is forbidden from being unfair and abusive or inconsiderate to opposing litigants under and by virtue of Rule 25(4) of the Rules of Professional Conduct for Legal Practitioners 2007. The said Rule states thus:

“(4) A lawyer shall not be unfair or abusive or inconsiderate to adverse witnesses or opposing litigants or ask any question only to insult or degrade the witness; and he shall not allow the unfair suggestions or demands of his clients to influence his action.”

The Courts are also not silent on use of inappropriate, uncouth or abusive use of language. In the case of Maitumbi vBaraya (2017) 2 NWLR (Pt.1550) 347 @ 418 – 419, Paras. H – B, the Court of Appeal per Georgewill, JCA held thus:

“…that the legal profession is not only a noble one but indeed the noblest of all professions in the world and thus its practitioners as co-officers with the judges in the temple of justice, carry on their shoulders heavy responsibilities in the discharge of their duties in the court. See the timely and apt admonition of the erudite Niki Tobi, JCA, (as he then was) on the need to use temperate and refined language and to eschew uncouth language by legal practitioners in appellate briefs in his cerebral work titled “The Brief System in Nigerian Courts” at page 161. See also Abubakar v. Yar’ Adua (2008) 18 NWLR (Pt.1120) 1 @ pp.175 – 176; Alims (Nig.) Ltd. v. UBA Plc (2013) 1 SCNJ 1 @ p.4, (2014) 6 NWLR (Pt. 1351) 613.”

Counsel urged the Honourable Court to strike out and/or discountenance the offensive parts of the Amended Statement of Defence, Defendant’s Witness Statement on Oath and Defendant’s Final Address thereby resolving this issue in favour of the Claimant.

In arguing issue two Counsel submitted that it is common ground that by a Motion on Notice dated 10th day of November, 2016 but filed on 16th day of November, 2016, the learned Counsel to the Defendant sought the LEAVE of Court to amend the Statement of Defence and other processes originally filed and dated the 18th day of July, 2016. The Motion was heard and granted on 31st January, 2018. In pursuance of the Leave of Court, the learned Counsel to the Defendant filed Amended Statement of Defence on 13th February, 2018 along with the Witness Statement on Oath of StevenOjowhich was inappropriately titled DEFENDANT’S WITNESS FURTHER STATEMENT ON OATH.

That while giving evidence in this case on 19th April, 2018, Steven Ojo who testified as sole Witness for the Defendant purported to adopt his earlier Witness Statement on Oath deposed to on 18th July, 2016 in support of the Original Statement of Defence dated and filed 18th July, 2016 which was subsequently amended vide Amended Statement of Defence of 13th February, 2018. That is not all. At paragraph 5.2 of Defendant’s Final Written Address, the learned Counsel to the Defendant referred and relied on paragraphs 17 and 18 of the Statement of Defence of 18th July, 2016.

Counsel submitted that, once pleading is amended, what stood before the amendment becomes spent and of no legal consequence. This is too elementary to be contested. That in the case of AleluvEze(2015) 13 NWLR (Pt.1475) 75 at 99, Paras. C – E, the Court of Appeal held thus:

“As rightly submitted by the respondent’s counsel, once pleadings are amended by order of the court, it is the duly amended pleadings that determine the live issues before the court. Thus, while the old pleading does not, merely by the amendment, cease to exist, it cannot be used by the Court to determine the live issues to be tried. See the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) page 170 at 186-187, paras. H-B.”

Also, that in the case of Regd. Trustees of AON v. NAMA (2014) 8 NWLR (Pt.1408) 1 at 58 – 59, Paras. G – A, the Supreme Court per Kekere-Ekun, JSC held thus:

“The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the court. See: Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390 @ 412, D-E; Rotimi v. McGregor (1974) 11 SC 133 @ 152. It is also settled law that an amendment takes effect from the date of the original document sought to be amended. Once the amendment is made the action will continue as if the amendment had been inserted from the beginning. See: A.-G., Ekiti State v. Adewunmi &Anor . (2002) 1 SC 47 @ 63 31-41, reported as Adewunmi v. A.-G., Ekiti State (2002) 2 NWLR (Pt. 751) 474; Sneade v. Watherton Barytes & Lead Mining Co. Ltd. (1904) 1 K.B. 295 @ 297; Oguma Associated Companies (Nig.) Ltd. v. I.B.W.A. (1988) 1 NWLR (Pt. 73) 658 @ 673, C-D. It follows therefore that to all intents and purposes the proper respondent in the appeal before the lower court was the Incorporated Trustees of Airline Operators of Nigeria, notwithstanding the error committed by the respondent in using the name as originally contained in the originating summons.”

That by implication, the extant pleading of the Defendant in this case is the Amended Statement of Defence dated 11th day of February, 2018 but filed on 13th February, 2018. In the same token, the only valid Witness Statement on Oath of StevenOjoin this case is the one deposed to on 13th February, 2018 in support of Amended Statement of Defence. There is no provision under our law that allows the Defence Witness to presumptuously adopt a previous Witness Statement on Oath in support of an obsolete pleading such as the original Statement of Defence dated and filed 18th July, 2016 in this case. It is therefore immaterial that the said Steven Ojo referred to his old Witness Statement on Oath and consequently adopted same vide paragraphs 2 and 3 of his Witness Statement on Oath of 13th February, 2018.

Flowing from the foregoing, Counsel urged the Honourable Court to jettison and/or disregard the previous Witness Statement on Oath of Steven Ojo earlier deposed to on 18th July, 2016 as well as original Statement of Defence dated and filed 18th July, 2016.

That on 19th April, 2018, when the learned Counsel to the Defendant sought to tender documents in this case, objection was promptly raised to those documents. However, his Lordship in his wisdom ordered that objection to the admissibility of the documents and weight to be attached thereof be raised in the Final Written Address. Thereafter, the Honourable Court admitted the documents tendered by the learned Counsel to the Defendant and marked them as Exhibits DA, DB, DC, DD and DE respectively. That it is in compliance with the Order of this Honourable Court that formal objection to the admissibility of the said Exhibits and weight to be attached is being raised vide Issue 3. By Order 30, Rule 2(1) of the National Industrial Court of Nigeria (Civil Procedure)Rules, 2017, a Statement of Defence shall be accompanied by the following:

            “(a)      List of Witnesses to be called at the trial;

            (b)       A Written Statement on Oath of the Witnesses;

            (c)       Copies of every document to be relied on at the trial; and

            (d)       A List of non-documentary exhibits.”

The word “shall” is used in Order 30, Rule 2(1) of the Rules (supra). The word “shall” is a mandatory auxiliary verb. In the case of Gov., Ekiti State vOlubunmo (2017) 3 NWLR (Pt.1551) 1 @ 35, Para. A, the Supreme Court per Nweze, JSC held thus:

“In my view, the use of the auxiliary verb “shall” in the said section connotes a command; an imperative requirement, a constitutional direction which yields no room for discretion.”

Similarly, that in the case of Nwankwo V Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 @ 589, para B, the Supreme Court, per Adekeye, J.S.C. unequivocally stated the full implication of the word “shall” in the following words:

“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”

That in the case at hand, the Amended Statement of Defence dated the 11th day of February, 2018 but filed on 13th February, 2018 is not accompanied by copies of documents to be relied upon by the Defendant at the trial. Worse still, the said Amended Statement of Defence is also not accompanied by List of documents sought to be relied upon by the Defendant. It follows, that there is absolute non-compliance with Order 30, Rule 2(1) of the Rules (supra) on the part of the Defendant with respect to frontloading of documents. Rules of Court are not meant for fun. They are made to be obeyed. Commenting on the need for parties to obey Rules of Court, the Supreme Court, in the case of AfriBank Nig. PlcvAkwara (2006) 5 NWLR (Pt.974) 619 @ 646, Paras. B – C had this to say per TOBI, JSC (of blessed memory):

“Rules of court are not made for fun but are made to be obeyed by the parties and must be obeyed by the parties. There will be no order in the judicial process where the rules governing the process are not obeyed or where parties are free like the air to seek relief from a court as and when they like without any regard to the rules providing for time within which a relief could be sought in the court. That will result in the already congested causes and delayed justice which are becoming most unbearable and irksome. We will not add one bit to the malady.”

Continuing, counsel argued that besides non-compliance with Order 30, Rule 2(1) of the Rules (supra), Exhibits DA, DB, DC, DD and DE respectively were not specifically pleaded in the Amended Statement of Defence dated 11th day of February, 2018 but filed on 13th February, 2018. The only pleading as to documents in the Amended Statement of Defence of the Defendant is as contained in paragraphs 10 and 11 which are mere omnibus averments devoid of specificity.

Finally, that under cross-examinationStevenOjo admitted that he is not the author of Exhibits DA, DB, DC, DD and DE.On that score, counsel urged the Honourable Court not to attach any weight whatsoever to the said Exhibits DA, DB, DC, DD and DE.

In arguing issue four and five: the fourth issue for determination is whether having regard to the facts and circumstances of this case, the purported termination of Claimant’s appointment by the Defendant vide a letter dated Monday, May 02, 2016 is proper and valid having been delivered only to the Claimant on 6th June, 2016 after Claimant’s Solicitors’ letter was received by the Defendant on 6th May, 2016, albeit, without any reply/response from the Defendant and having regard to the contract of employment. On the other hand, the fifth issue for determination is whether the Claimant has discharged the required burden of proof upon him so as to entitle him to the reliefs sought vide paragraph 34 of his Statement of Facts.

 In respect of issue four, counsel submitted that going by the letter of offer of employment to the Claimant (Exhibit CB), the Defendant is obliged to issue one month’s notice or payment of salary in lieu of notice before terminating the contract of employment. That, the purported letter terminating the appointment of the Claimant (Exhibit CO) did not give one month’s notice or pay the Claimant one month’s salary in lieu of Notice.

Also, that the letter of the Claimant to challenge his humiliating treatment by the Defendant on 15th January, 2016 when his official tools in his custody were peremptorily seized and his salary halted for no just cause by instructing his Solicitors, namely, AKUBO & CO to do a letter on his behalf. That the Solicitors’ letter dated May 3, 2016 (Exhibit CN) was delivered to the Defendant on 6th May, 2016. That the evidence of delivery on 6th May, 2016 on the Defendant is Exhibit CN1. That the Defendant admitted that there was no reply to Exhibit CN. Counsel submitted that the failure of the Defendant to do a reply toExhibit CN is tantamount to an admission of its contents and by extension, Claimant’s Claim. Counsel referred to the case of Trade Bank Plc vChiami(2003) 13 NWLR (Pt. 836) 158 AT 219 – 220,where the Court of Appeal per Salami, J.C.A. (as he then was) had this to say:

“The respondent did not answer the letter and its failure or neglect to answer such a letter in the circumstance tantamount to an admission of the assertion in it. There is no evidence before the learned trial Judge that the debt referred to in exhibits 2 and 3 had been discharged. Exhibit 2 dated 20th July, 1999 is another letter of demand written by the appellant’s solicitors. It was also ignored like its forerunner of 30th November, 1998. Exhibits 2 and 3 are not social but business letters; while social correspondence may be ignored business letter deserves to be answered. The failure or neglect of the respondent to reply or answer those letters amounts to admission because what is asserted in those letters and is not denied is deemed admitted. There is no extenuating circumstance to persuade me to the contrary.”

Also in the case of Gwai v. Ebule (1990) 5 NWLR (pt.149) 201, this court relying on the Supreme Court decision in Joe Igav. Amakiri(1976)11 SC. held that:

“….The appellant by his silence in circumstances in which a reply is obviously expected raises irrefutable, presumptions of admission by conduct or representation.”

I am of the firm view that in the  instant case, failure of the appellants to respond to the letters written by the respondent demanding for balance of fees for the legal opinion he has provided the appellants, constituted an admission of liability by the appellant and lent credence to the respondent’s side of the case.

In respect of issue five (5), counsel argued that the Claimant adequately protected the interest of the Defendant by deploying his best endeavour through aggressive marketing strategies which in turn added value to the fortunes of the Defendant. That the Defendant acknowledged the meritorious services of the Claimant by repeatedly increasing his salary and commending him accordingly (Exhibits CE and CE1).

Counsel submitted that from the preponderance of oral and documentary evidence in this case the Claimant has discharged the requisite onus of proof on him so as to entitle him to the reliefs sought. Counsel urged the court to so hold.Counsel urged the Honourable Court to resolve issues four and five in favour of the Claimant.

In conclusion, counsel urged this Honourable Court to resolve the issues formulated for determination in his favour and thereupon grant the reliefs sought on the following grounds:

  1. Both the Defendant and its Counsel do not have the liberty to employ inappropriate language in the Amended Statement of Defence, Defendant’s Witness Statement on Oath and Defendant’s Final Address particularly having regard to Rule 25(4) of the Rules of Professional Conduct for Legal Practitioners, 2007.
  2. The Amended Statement of Defence filed on 13th February, 2018 together with the accompanying Witness Statement on Oath of StevenOjo supervene over the earlier Statement of Defence dated and filed 18th day of July, 2016 along with the accompanying Witness Statement on Oath thereof and as such the Defendant cannot utilize the latter in any way or manner.
  3. Flowing from 2 above, the purported adoption by Steven Ojo of his earlier Witness Statement on Oath of 18th July, 2016 on 19th April, 2018 is inappropriate and of no consequence and ought to be disregarded.
  4. Exhibits DA, DB, DC, DD and DE ought not to have been admitted in the first place having not been specifically pleaded, frontloaded and/or listed vide Amended Statement of Defence of 13th February, 2018.
  5. Besides, Exhibits DA, DB, DC, DD and DE are totally lacking in probative value having admittedly not been authored by Steven Ojoand as such the Court should not attach any weight to them.
  6. The purported termination of Claimant’s appointment by the Defendant vide a letter dated Monday, May 02, 2016 which was received by the Claimant on 6th June, 2016 is manifestly flawed being a gross transgression of the contract of employment vide offer of employment.
  7. The failure of the Defendant to do a reply to Claimant’s Solicitors’ letter dated May 3, 2016 (received by the Defendant on 6th May, 2016) much less denying its contents is tantamount to admission of the contents.
  8. Indeed, the arbitrary and capricious seizure of Official vehicle, iPAD and CUG (Official SIM Card) from the Claimant by the Defendant through its staff on 15th January, 2016 after the Claimant was lured to Kaduna by the Defendant thereby humiliating, ridiculing and embarrassing the Claimant is inexcusable, indefensible and tantamount to condemnable use of self-help without just and lawful cause.
  9. Contrary to the fleeting and lacklustre evidence of the Defendant through its sole Witness, namely, Steven Ojo, the Claimant led unrebutted evidence to the effect that he deployed his best endeavour for the good of the Defendant and was repeatedly commended and applauded by the Defendant.
  10. To all intents and purposes, the Claimant discharged the requisite burden of proof upon him so as to entitle him to the reliefs sought including award of General damages in order to teach the Defendant a lesson that Nigerians should not be short changed in their own country by foreign Nationals or Corporate entities owned by foreign Nationals under any guises.

The learned counsel for the defendant filed Defendant’s Reply on Points of Law to Claimant’s Final Written Address which is a further argument in support of his final written address.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that, the sole issue raised by the learned counsel for the defendant summarized the issues in controversy between the parties. I hereby adopt it as mine; consequently, I shall treat this suit based on that sole issue by treating the claims seriatim.

But before then I have to resolve the issue of theadmissibility ofExhibits DA, DB, DC, DD and DE. The learned counsel for the claimant raised objection to their admissibility and urged the court to discountenance them on the ground that the were not attached nor frontloaded with the AmendedStatement of Defence of 13th February, 2018. Counsel however conceded to the fact that those documents were originally frontloaded with the statement of defence dated 18th July 2016 and filed on that same date.This objection certainly is not on the issue of relevancy of the documents to the case before me. The issue of admissibility of any document in evidence as exhibit is one thing while the weight to be attached to the admitted document is another thing.The spirit and letters of the establishment of this court(National Industrial Court of Nigeria) are that it should be guided by substantial justice and not technical justice as evidenced by the provisions of sections 12,13,14 and 15 of the National Industrial Court Act 2006.

 Section 12(2)(a) and(b) of the National Industrial Court Act 2006 clearly empowers the court to regulate its procedure and proceeding as it thinks fit and may depart from the Evidence Act in the interest of justice. Not only that, section 43 of the National Industrial Court Act 2006, provides that Any person present in Court, whether a party or not in a cause or matter, may be compelled by the court to give evidence or produce any document in his possession or in his power in the same manner and subject to the same rules as if he had been summoned to attend and give evidence or produce such document and may be punished for any refusal to obey the order of the court. From the foregoing, Ihold that those exhibits were properly admitted in evidence in this case. SeeBlessing Ifeanyi Okpoko V Zenith Bank PLCUnreported suit No NICN/LA /167/13 ruling delivered onMarch 3, 2014See also the case of MashoodIlupegu V PZ Cussons Nig PLCUnreported Suit No.NICN/LA/406/12 delivered on April 29,2014.

I shall now deal with the claims seriatimas follows:

Claims A and B are related and declarative in nature. They seek to declare the termination of the claimant by the defendant as invalid, unlawful, null and void until the claimant’s employment with the defendant is properly terminated. There is no dispute between the parties that the contract of employment between the parties in this case is one under the common law often referred to as a master and servant relationship. In such a contract the law is settled that an employee cannot compel the employer to retain him no matter how desirable that may be on humanitarian or other grounds. In as much the same way an employer cannot compel an employee to remain in his service no matter how indispensable his services may be to his employer. See Odinkenmere v. ImpresitBakolori (Nig) Ltd (1995) 8 NWLR (Pt. 11) p. 52 at 66. The motive of the party that terminates the employment contract is equally irrelevant provided that the provisions of the employment contract in relation to its termination are complied with by the terminating party. See Commissioner for Works Benue State v Dervon Ltd (1988) 3 NWLR (Pt. 83) 407 @ 425, where the Court held thus:

“It has been stated and restated by this Court and the apex Court of the land in multiplicity of decided authorities that a master of an employee is entitled to suspend/retire/terminate/dismiss his or its servant/employee’s appointment for good or bad reasons or even for no reason at all”.

From letter of offer of employment (exhibit CB) the claimant is entitled to one month’s notice of termination or one month’s salary payment in lieu of notice. It is further settled that, where an employee is entitled to a length of notice or payment in lieu of notice and the employer determines that contract without the requisite notice, that termination is complete but wrongful, seeIsievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC. The employee under that circumstance is entitled to damages, the measure of which is the amount representing the length of notice prescribed, see the case of Afribank (Nig) PLC v Osisanya (2000)1 NWLR(Pt.642)592.The employment relationship between the parties in such a case can also be terminated by conduct of the defendant.  InOpuo v NNPC & Anor (2002) FWLR [Pt. 84] 11, the Court held that termination can be express or inferred from the conduct of the employer; the choice is that of the employer. The termination can also be constructive. InMiss EbereUkoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, this Court held thus:

“Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviourour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident. See generally Western Excavating v. Sharp [1978] 1 All ER 713 and OladosuOgunniyi’s Nigerian Labour and Employment Law in Perspective (Folio Publishers Limited: Ikeja), 2004, 2nd Edition, at pages 462 – 464”.

In this case, the claimant pleaded the fact that he waslured to Kaduna by the Defendant through its Zonal Manager to come along with the expired products as well as the company vehicle, iPad and CUG (Official Sim Card) attached to him. That on arrival in Kaduna, on 15th January, 2016, the Defendant unceremoniously seized the said items and subsequently advised him resign his appointment.

It is also on record that, from that date till today no further assignment was assigned to him and salaries were not paid to him. I therefore find and hold that the defendant constructively terminated or discharged the claimant albeit wrongfully on the ground that no notice of termination was served on him.

Since this case is a pure case of master and servant relationship, reinstatement is not a remedy for wrongful termination of employment.  I therefore find and hold that the termination of the employment of the claimant here was wrongful in which case the claimant is entitled to payment of damageswhich ordinarily should have been payment of one month’s salary see SPDC (Nig) Ltd v Ifeta (2001)11 NWLR(Pt.724)473.

 However, because of the way and manner of discharge of the claimant by the defendant and the dwindling value of the Naira, one month’s salary will not be adequate compensation, I therefore award him, his salary for two years in damages. I have to state here that the letter of termination of Appointment (exhibit CO) is of no moment because as at that May 2, 2016 when that letter was written there was no employment relationship between them to be terminated. Also, the letter of counsel to the claimant of May 3, 2016 did not take into cognizance the fact that the defendant had constructively discharged the claimant.

ClaimsC, D, and E deal with the issue of supplying the claimant with drugs not ordered and near expiry products. There is evidence that the claimant was employed as a marketer of the defendant’s products. I agree with the learned counsel for the defendant that he has no choice of product to market as long as the products are in good and marketable condition. In a case involving near expiry products evidence should be given in relation to their dates of manufacture and expiration which were lacking, consequently these prayers are refused.

Claims G and H deal with arrears of salary of the claimant from January 15, 2016 until the claimant is formally disengaged and for N20,000,000 in damages. I have held that the claimant’s employment was terminated constructive in January 2016. I have also awarded him his salary for two years, consequently, these claims are refused.

In sum, I make the following orders:

1) The defendant shall pay the claimant the sum of N1,978,176(One Million, Nine Hundred and Seventy-Eight thousand, One Hundred and Seventy-six Naira) only, in damages for constructive /wrongful termination of employment.

2) The defendant shall pay the claimant N100,000 (One Hundred thousand Naira) only being the cost of this suit.

3) The defendant shall pay all monetary awards in this judgmenton or before the 20th day of January 2020 failing which they shall attract 10% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

 (Judge)

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