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National Industrial Court

MR. BABALOLA OLABODE OLUGBENGA VS LAW UNION ROCK

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                   IN THE AKURE JUDICIAL DIVISION

                             HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE. OYEBIOLA O. OYEWUMI.

 

DATE: 24TH JANUARY, 2019                

SUIT NO: NICN/AK/01/2014

 

BETWEEN:

  1. BABALOLA OLABODE OLUGBENGA

CLAIMANT

 

AND

LAW UNION ROCK INSURANCE PLC

DEFENDANT/COUNTER- CLAIMANT

 

REPRESENTATION:

Oluwayomi Ojo Esq. for the Claimant with Oladokun Omolabake esq.

Olalekan Akinrinsola and Daniel Emagun for the Defendant.

                                               

                                                JUDGMENT

By a General Form of Complaint filed before this Court on the 3rd of January, 2014, the Claimant claims against the Defendant as follows:

  1. A Declaration that the Claimant’s Summary Dismissal from hisemployment with the Defendant, by the Defendant as contained in the Defendant’s letter dated 20th December 2013 is wrongful.
  2. An Order directing the Defendant to accept the Claimant’s letter of resignation of appointment in writing and payment of all entitlements or terminal benefits due to the Claimant from the Defendant.
  3. An Order directing the Defendant to pay the sum of Three Million Five Hundred (N3, 500,000.00) to the Claimant having worked about five (5) year with the Defendant.
  4. An Order restraining the Defendant by herself or her agent or privies or by and person whosoever from collecting, retrieving or disturbing the possession of the Toyota Yaris with Registration DW603APP which the Claimant automatically acquires having served the defendant for more than Five (5) years as a branch head in Ondo State.
  5. An Order directing the Defendant to pay the sum of Two Million Naira (N2,000,000) to the Claimant as damages for the wrongful allegation of gross misconduct fighting the office, hindrance or business activities and willful disobedience it made against the claimant and the consequential effect it has on the Claimant.
  6. An Order directing the Defendant to pay the Claimant his December 2013 salary having worked for the same being the sum of Twenty Thousand, Seven Hundred and Sixty Four Naira, Fifty-Three Kobo (N20, 764.53).

It is the case of the claimant that he was appointed an employee of the defendant as a Supervisor vide a Letter of Appointment dated 11thday of November 2005, that his conditions of service is governed by the Staff Handbook of the defendant (which was not given him but was read during the orientation programme conducted by the defendant for new staff) and other relevant labour regulations. He averred that his appointment was confirmed by a letter dated 28thday of September 2006.That his salary was reviewed upward and another letter dated 10thMarch 2006. He stated that he was promoted to the position of a Senior Supervisor by the letter dated  18thJuly 2007 and there was annual review in his salary by the letter dated 18th2007 and another upward againthrough a letter dated 24thMarch 2011. That by a letter dated 6thof September 2012, his salary was reviewed upward andthat on the 20thDecember 2013, he wrote a letter of resignation of appointment to the defendant which it refused to acknowledge or reply same, and this prompted him to write two (2) other letters on the 23rdDecember 2013 but however the defendants responded to the third letter informing him that he had earlier replied to his first letter and he has been exited from the company. It is his averment that he was not informed either orally or through any means prior to his letter of resignation of appointment dated 20thDecember 2013 that he had been dismissed from the employment of the defendant. He pleaded that it was after he wrote his letter of resignation that the claimant maliciously wrote a letter dated 20th December 2013 which was backdated and sent to the claimant. He stated that the said Letter of Summary Dismissal is a violation of the provisions of the defendant’s handbook and labour law. Thatthe defendant maliciously concocted the alleged offences and his dismissal to avoid the payment of his terminal benefit to which he is entitled in the sum of Three Million, Five Hundred Thousand Naira (N3,500,000) having worked for five (5) years with the defendant as well as allow the claimant leave with the Company Toyota Yaris car attached to him as the head of the Ondo State Branch. He stated that he worked for the month of December and ought to have  been paid for that month  in the sum of Twenty Thousand, Seven Hundred and Sixty Four Naira, Fifty Three Kobo (N20,764.53) after all deductions.

The defendant on the other hand in their amended statement of defence filed on the 11thNovember 2014 denied wrongfully dismissing the Claimant’s appointment, although it admitted that the Claimant’s appointment with the defendant is governed by its Staff handbook andlabour law, they traversed that contrary to the Claimant’s claim, a copy of its Staff Handbook was made available by the defendant to the Claimant and to other employees during orientation for their consumption, the content was explained to them and were further informed that a soft copy of same is available online on the Defendant’s intranet. They denied that the Claimant did not serve or issue it any letter of resignation or any other letter on or about the 20thDecember 2013 as claimed as such it could not possibly have acknowledged and/or responded to a non-existent letter on the said 20thDecember 2013. It averred that the Claimant never wrote any letter to it on the 23rdDecember 2013 rather what  he did was to forward three (3) separate emails to it purporting to resign his and by an email dated 23rdDecember 2013, it responded to all his emails. That on the 20thDecember 2013, the claimant had real and actual notice of his summary dismissal as it attempted to serve him the dismissal letter on the said date at the head office in Lagos but he refused to collect the same from the head of Human Capital Management attempted to serve him and proceeded to Akure without collecting his dismissal letter also that he never served the Company with any letter of resignation dated 20thDecember 2013. It was consequent upon his refusal to be served the letter that the Company was left with no other option to send the letter through courier to him at Akure where he resides and the letter arrived on the next working official day being Monday 23rdDecember 2013.  Also, on the attempt of the courier service to serve the claimant, he refused to collect same from the courier company delivery personnel and also refused to sign the information sheet when he noticed that it is the consignor of the letter. They averred that his dismissal was not a violation of the Company handbook and labour law and however that prior to his dismissal he had been queried both verbally and in writing various times by his superiors for engaging in act which the management considers to be grievous and detrimental to the interest of the Company and that at a certain period of time, the sum of Five Thousand Naira (N5,000) and a daily sum of Five Hundred Naira (N500) were deducted from his salary as disciplinary measures for engaging in unwholesome practices. Also that contrary to the Claimant’s assertion, he was invited by the Acting Chief officer on the 12th December 2013 to appear before an Ad Hoc Disciplinary Committee set up on the 20th December 2013 on the allegation of gross misconduct levied against him and at all stages in the proceedings, the Claimant’s right as an employee was not breached in any way. That it was consequent upon the findings of the Disciplinary Committee that the Committee recommended that the Claimant should be summarily dismissed and forwarded same to the management for consideration who adopted same hence his dismissal. That having been summarily dismissed is not entitled to terminal benefit in the sum of Three Million, Five Hundred Thousand Naira (N35,500,000) or any sumfrom the Company neither is he entitled to possession and/or ownership of any of the Defendant’s property inclusive of the Toyota Yaris Car with Registration Number DW 603 APP which he wrongfully held on to.

The Defendant filed a Counter-claim stating that upon the Summary dismissal of the Claimant from its employment, he is obligated to return all properties of the company in  his possession inclusive of the Toyota Yaris car which was purchased from Elizade Nigeria Limited in the sum of One Million, Nine Hundred and Ninety Thousand Naira because the car was solely assigned to him for official marketing purposes and not supposed to be the claimant’s possession nor converted to his personal/family use has he had done. It continued that despite several repeated demand for the immediate release of the Toyota Yaris Car by it, the Claimant blatantly refused to return same and the daily usage of the car by the Claimant and his refusal to surrender same has had material adverse effect on the Company business and logistics in Akure. Also, that the Claimant whilst in its employment applied for and was granted a credit facility by it (the company) in the sum of One Million, Two Hundred Thousand Naira Only to purchase a car. That under the Credit Facilities agreement as contained in the letter dated 27thJuly 2011, the interest rate of 12.50% per annum was agreed upon by both parties to apply and at the exit of the Claimant from its employment, 16% Commercial interest commercial interest shall be applicable on the outstanding lease balance. That upon the execution of the letter dated 27thJuly 2011 and the Undertaking of the Claimant, it drew a cheque for the sum of One Million, Two Hundred Thousand Naira Only in favor of Oladet Global Resources Limited which  is the Company engaged to procure the said vehicle and it was agreed that the  vehicle; Saturn Vue 2003 Model is to be purchased in the name of both the defendant and the Claimant with the Understanding that the said vehicle shall remain the asset of the defendant through the tenor of the facility and that repayment of the loan is to be deducted from the claimant’s monthly salary in forty-eight (48) equal and consecutive monthly principal and interest installments. It averred further that the outstanding indebtedness [both principal and interest] under the credit facility agreement is in the sum of Five Hundred and Seventy Four Thousand, One Hundred and Eighty Four, Sixty Nine Kobo [N574,184.69] and that the claimant has not paid any sum after his dismissal hence his indebtedness as per the interest of the defendant from 21stDecember 2013 to 1stJune 2014 is in the sum of Forty Seven Thousand, Three Hundred and Nineteen Naira, Eleven Kobo [N47, 319.11] and the cumulative sum due/payable by the claimant to the company under the car lease agreement from 25th August 2011 to 1st July 2014 is in the sum of Six Hundred and Twenty One Thousand, Five Hundred and Three Naira, Eighty Kobo [N621,503.80].

It is against this backdrop that the Defendant Claims against the Claimant as follows:

  1. A Declaration that the Defendant is the owner of the Toyota Yaris car with Registration Number DW 603 APP.
  2. A Declaration that the Claimant’s refusal to surrender the Toyota Yaris car with Registration Number DW 603 APP to the Defendant upon his summarily dismissal is wrongful and actionable per se.
  3. An Order of perpetual injunction restraining the Claimant either by himself, his agents, privies, assigns , personal representative or any person however called acting for him or through him and/or holding in trust for him from further exercising any act of possession and/or ownership over the Toyota Yaris Car with Registration Number DW 603 APP
  4. An Order directing the Claimant to return forthwith the defendant the Toyota Yaris car with Registration Number DW 603 App in the same excellent and perfect working conditions in which it was as at 20th December 2013 with all fixtures and fittings intact.
  5. An Order directing this Claimant to pay the Defendant the sum of Three Million, Five Hundred Thousand Naira [N3,500,000] as exemplary damage for the wrongful seizure and unauthorized use of the Defendant’s Toyota Yaris Car with Registration Number DW 603 APP from 20th December 2013 to date of judgment.
  6. An Order directing the Claimant to pay the defendant interest in the sum of Three Million, Five Hundred Thousand Naira [N3,500,000] as at the rate of 10% per annum from the date of judgment until the entire sum is fully liquidated.
  7. An Order directing the Claimant to pay the Defendant the sum of Six Hundred and Twenty One Thousand, Five Hundred and Three Naira, Eighty Kobo [N621,503.80] being the outstanding balance on the car lease credit facility that was given to the Claimant by the Defendant for the purchase of the Saturn Vue , 2003 Model car.
  8. An Order directing the Claimant to pay the Defendant interest on the Sum of Six Hundred and Twenty One Thousand, Five Hundred and Three Naira, Eighty Kobo [N621,503.80] at the rate of 10% per annum from 21st December 2012 to the date of judgment and thereafter at the rate of 10% per annum from the date of Judgment until entire judgment sum is fully liquidated
  9. Costs

The Claimant filed a consequential amended reply to the amended statement of defence and Counter-claim on the 19thMarch 2015, he denied that no copy of the defendant’s handbook was made available to him by the defendant and as a matter of fact, no such information was placed on the intranet. Also that his promotion and increment in his salary was due to his good performance and also that the Head of the Human Capital Management received his resignation letter from him but refused to acknowledge the receipt there of that he forwarded his resignation letter to the defendant through E-mail, the receipt which the defendant acknowledged by  the letter sent to him on 23rdDecember 2013 hence he had voluntarily resigned his employment with the defendant before the purported termination and hence he is entitled to his terminal benefitsand his official car with registration number DW 603 APP as stipulated in the defendant’s handbook.He denied ever been issued warnings on any alleged misconduct that the only warning he was issued was in relation to the target set for him which he could not met and all actions he had taken was in the best interest of the defendant. That the money in the memo dated 20th December 2010 or any other money was not released by the defendant for the maintenance of the car and the car having being in use since 2009 has depreciated in value and the value has been put at Two Hundred and Fifty Thousand Naira [N250,000.00] sequel to the valuation report done on same. He also denied the assertion of the defendant by stating that he was not summoned/nor did he appear before any Disciplinary Committee and there was no Ad-hoc Disciplinary Committee set up to investigate him. On the defendant’s counter-claim he pleaded that the defendant/counter-claimant approved the sum of One Million, Two Hundred Thousand Naira (N1,200,000.00) credit facility requested by him for Toyota Sienna but did not release the said sum to him but instead went and purchased Saturn Vue, a vehicle known to the defendant/counter-claimant to be lower quality and prior to Toyota Sienna, and that the defendant/counter-claimant shortchanged him to the tune of Two Hundred Thousand Naira (N200,000.00), the sum which was fraudulently made on illegal profit from the transaction that is the difference in price of the Toyota Sienna requested by the Claimant and the Saturn Vue supplied and forced on him by the defendant/Counter-claimant and prevented him from buying from his dealer from whom he had confirmed the price of the Toyota Sienna  and after he applied for the loan. He urged that the Court should dismiss the defendant/counter-claimant’s counter-claim with cost and order that the money deducted by the defendant/counter-claimant in respect of the Saturn Vue should be refunded to him, the contract under which it was deducted rendered void by fraud, duress and undue influence.

Parties during trial testified and adduced evidence in support of their cases, the claimant testified for himself as CW, he adopted his statements on oath dated 3rd January 2014 and 19th March 2015 respectively. He also tendered some documents which were admitted in evidence andmarked Exhibit BO-BO8.  The Defendants on the other hand testified through One Kemi Obanla, she adopted her deposition dated 4thMarch 2014 as an evidence in this case and also through Eyoanwan Ndiyo-Aiyetan , she adopted her written statement on oath dated 22ndNovember 2017, she tendered some documents which were admitted in evidence and marked ExhibitEN-EN11.

Parties caused their written address to be filed in compliance with the rules of this Court; the Defendant filed its final written address on the 17th of July, 2018 and canvassed two issues for the determination of the Court; the claimant on the other hand filled his written address on the 10th of August, 2018 and distilled two issues. Counsel on both divide canvassed some issues, salient portions of which would be referred to in the course of this judgment.

Upon an in-depth and careful consideration of the processes filed by the parties and the supporting documents, their respective written submissions canvassed by counsels on both divide, it is my respective view that the issues that would best determine this suit as canvassed by parties can be fused into:

  1. Whether the Claimant has proven his case to be entitled to the reliefs sought?
  2. Whether the defendant/counter-claimant is entitled to the counter-claim sought?

It is apt to examine the preliminary issue raised by learned counsel on both divide before delving into the substance of the suit; it is the contention of Learned Claimant’s Counsel  in Paragraph 3.05 of the Final Written Address filed on the 10thAugust 2018 that the Amended Statement of defence and the counterclaim filed on the 11th November 2014 is incompetent having not been accompanied by any of the items particularly the witness statement on oath listed in Order 15 Rule 1 of the National Industrial Court, Counsel whilst buttressing his point relied on Edu v. Commissioner for Agriculture [2000] 12 NWLR (Pt. 681) 316 at 323, Nkeiruka v. Joseph [2009] 2 NWLR (Pt.1135) 505, INEC v. Action Congress [2009] 2 NWLR (Pt. 1136) 524.  He continued that the amended statement of defence of the defendant was not accompanied by any statement on oath which is therefore fatal to the defendant’s case that evidently the defendant had brought an application/motion dated and filed 22ndNovember 2017 seeking to substitute one Mrs Adeoluwa Ola with Mrs Ndiyo-Aiyetan Eyoanwan Eslie (DW2). He also noted that the motion did not cure the defect as the motion prayed was for substitution of one witness for another and not for leave to file fresh or additional witness statement on oath. He argued further that since there is no statement on oath that accompanied or filed with the amended statement of defence hence there is no witness statement to be substituted, therefore the implication of this is that there is no competent statement of defence or on the other hand there is no evidence in support of the defendant’s statement of defence thus the defendant is deemed to have admitted all the claims of the claimant and the law is that facts admitted need no further proof. He cited Idahosa v. Oronsanye [1959] SCNLR 407; Amaonwu v. Ahaotu [1998] 9 NWLR (Pt 566) 454 @463. Learned Defence Counsel in paragraph 5 its Reply on Point of law filed on the 12th  October 2018 responded on the issue of not filing a new statement on oath to the amended statement of defence that the argument of the claimant has no substance, he reiterated the position of law that only facts are amended and evidence need not be amended and as a matter of fact, a party can even after leading evidence still amend his pleadings to reflect a certain fact without necessarily amending his evidence. He cited Edoigiawerie v. Aideyan [2006] 10 NWLR (Pt.988) 438.

It is a settled principle of law that amendment of processes can be made at any stage before judgment is delivered; the grant of all application to amended is at the discretion of the Court which must be exercised judicially and judiciously. Order 32 Rules 1 of the National Industrial Court Rules provides as follows: “The Statement of defence shall be a statement in summary and shall be supported by copies of documentary evidence, list of witness and their written statements on oath in accordance with these Rules”

A statement of Defence is the response of the defendant to the statement of fact. Where a defendant disputes the claimant’s claim or case, he must file a statement of defence and lead evidence thereon at the trail, See Eze Shipping &Trading Incorporate &Ors v. Tigris International Corporation [19991] 14 NWLR (Pt.637) P.70 at 84-85, Oba Adeyinka Oyekan II &Ors v. Mr Elli Rossek [2009] LPELR-11906 (CA) Sollite Assurance Co Ltd v. Socite Gen. Bank Ltd [1992] 2 NWLR (Pt. 224) P. 495 at 503,the defendant in this case filed his amended statement off defence on the 19th  March 2015 in response to the claimant’s case. It is the practice that an application or a statement of defence in this regard is amended by an Order of the Court.  Oputa JSC (as he then was) in Adekeye v. Akin Olugbade [1987] 3 NWLR (Pt. 60) 214 stated that: “the aim of an amendment is usually to prevent “the manifest justice of a cause from being defeated or delayed by formal slips, which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence of mistake of counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breathe to be used to perpetuate an injustice on the opposite party.”

It is evident from the Court’s record that the defendant by an application/motion on Notice filed on the 22nd November 2017 sought the leave of this Court to substitute the name of the witness on record with Mrs Ndiyo-Aiyetan Eyoanwan Eslie  and this Court on the 8th February 2018 granted the prayers of the defendant, it is then the argument of the learned claimant counsel that there is no witness deposition accompanied or filed alongside the amended statement of defence therefore there is no witness to be substituted. The learned defence counsel responded that the argument of the claimant is misconceived as it is only facts that are amended and not evidence. Now, it is pertinent to state that a statement of defence may be amended by order of Court and that the amended statement of defence can be filed without the need to file an amended or fresh witness statement on oath. An Amended pleading or process including a statement of defence has a retrospective effect and dates back to the date of the original process, See Oguma Associated Companies (Nig) Ltd v. International Bank for West Africa Ltd [1988] 1 NWLR (73) 658, 673, Uzodina v. Izunaso (No.2) [2011] 17 NWLR 30, 88 Where the Supreme Court, per Muhammad JSC stated as follows: “The general principle of law on the effect of an amendment of a pleadings…is that the amendment takes effect from the date of the original document. Thus if leave is granted and the pleadings duly amended, the action continues as through the pleadings has been in the amended from right from the original date”. See also Comptroller Abdullahi B. Gusau v. Comptroller General of Customs &Ors [2014] LPELR -23367 (CA). It is against this backdrop that I find that the defendant having filed an amendment statement of defence need not file an amendment statement of oath as the amendment takes effect not from the date of amendment, but from the date of the original document amended. I so hold.

It is the claimant’s claims that his summary dismissal from his employment with the Defendant, by the Defendant as contained in the Defendant’s letter dated 20th December 2013 is wrongful. Learned defence counsel submitted that the claimant in this suit have failed to establish before the Court the terms and conditions of his contract of service with the defendant. He stated that the claimant made a heavy weather on the staff hand book of the defendant but never made any attempt to get one or give the defendant a notice to produce same in Court and this clearly points to the irrebuttable conclusion that he was lawfully dismissed by the defendant as it is trite that when an employee complains that his employment has been wrongfully terminated he has the onus to place before the Court the terms of the contract of employment and to prove in what manner the said terms were breached by the employer. He cited the cases of Akinrinade v NEPA [2006] 33 WRN 107; Iwuchukwu v Nwizu [1994] 7 NWLR (Pt. 357) 379. Learned claimant counsel submitted that the claimant was not issued the staff handbook as same was read to him during his orientation and also that the defendant failed or refused to produce either a hard copy or soft copy of the staff hand book before the Court. Counsel urged the Court to invoke Section 167(d) of the Evidence Act, 2011 and hold that if the staff handbook had been produced, it would have been against the defendant and that the argument of learned defence counsel that claimant did not give notice to produce that handbook to the defendant is of no moment. He cited the cases of Nweke v State [2017] LPELR 42103 SC; Nwakhoba & ors v Dumez Nigeria Ltd [2003] FWLR (Pt. 179) 1188.

Now it is apt I  juxtapose that parties are in consensus ad idem that the defendant sure do have a staff handbook but the divergence is that to the claimant, he was not issued at the point of his employment as according to him the terms and conditions of employment were read to him. This the defendant vehemently denies and posited that the handbook was made available to the claimant during his orientation for his consumption and  further made the soft copy available on the company’s intranet which was accessible at all material point in time. It is now firmly established that where an employee alleges wrongful termination/dismissal of the employment by the employer, the onus lies on him, in law to prove that the termination of his appointment was wrongful in order to succeed in the claims he makes against the employer. To discharge the burden, he must prove that:-

( a) He is an employee of the employer

(b) Place before the court the facts by way of pleadings, the terms and conditions of the employment,

(c) Who can appoint and who can terminate the appointment,

(d) In what situations or circumstances the appointment can properly be determined.

See the cases of Okomu Oil Palm Co. Ltd v. Iserhienrhien[2001]21 WRN, 161; Emokpae v. UNIBEN [2002] 17 NWLR (795) 139; Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034, NRW Industries Limited v. Akingbulugbe [2011] 11 NWLR (pt. 1257) CA, Nitel Plc v. Akwa [2006] 2 NWLR (Pt.964) 391, Ogbonna v. Neptune Software Limited [2016] 64 NLLR (Pt228) P. 518; Partrick Ziideeh v. Rivers State [2007] LPELR-3544 (SC), Federal Mortgage Finance Ltd v. Hope O. Ekpo [2004 2 NWLR (Pt. 856) 100 at 19-120 A, Ijeonyeanani v. A.C.B Ltd [1997] 6 NWLR (Pt. 508).

It is a basic principal of law which has gained notoriety, that the terms and conditions of a contract of employment or service are the bedrock or foundation upon which the success or failure of a claim of wrongful termination of employment by a claimant can stand. Such terms and conditions of contract of the employment are required to be pleaded and placed before the Court in evidence by the claimant, it does not behoove upon the employer to prove any breach of term of contract. The above principle is predicated upon the trite fundamental principle of law of evidence, to the effect that he who asserts must prove the veracity or existence of the assertion. By virtue of Section 137 (1) of the Evidence Act 2011, in civil cases, the burden of proving the existence or non-existence of a fact lies upon the party against whom judgment would be given if no evidence were adduced by either party. See the cases of Nigeria Army Council &Anor v Erhabor [2018] LPELR 44958 CA; Cadbury Nig Plc v Oni [2014] 3 ACELR 118 @ P. 121;NITEL Plc. v. Akwa [2006] 2 NWLR (PT. 964) 391; Nigerian Gas Co. Ltd v Dudusola [2005] 18 NWLR (957) 292;George Onwudike v First Bank of Nig. Plc [2013] LPELR, 20385; Kato v CBN [1999] 5 NWLR pt. 607, 390, Seven up Bottling Company Pl v. Ajayi [2007] LPELR-8765 (CA).The law is long settled that parties are bound by the terms of their contract and same enforceable, so long as the employer acts within the terms of the contract, see the cases of BPS Construction &Engineering Co. Ltd v. FCDA [2017] LPELR-42516 Sc, CBN v.  Interstella Communication Ltd &Ors [2017] LPELR-43940 SC. It is trite that in action for declaration, the claimant must establish his case by credible and cogent evidence. See the cases of Onyia v Onyia [2012] 3NWLR (Pt. 1286) 182 CA; Sijuade v Oyewole [2012] 11 NWLR (Pt. 1311) 280 CA. All that the law requires from the claimant is to prove his case by drawing the attention of the Court by viable evidence to prove how the terms of his contract was breached, see the case of Union Bank v. Salaudeen [2017] LPELR-43415 CA. A careful examination of the evidence before the Court discloses that the claimant tendered exhibits BO, BO1 which are his employment letter with the defendant dated 11th of November, 2005 and his confirmation letter dated 28th of September, 2006. A keen perusal of the document does not reveal at anywhere where the Court can hinge its decision on whether or not the claimant’s dismissal was wrongful. I say so in view of the fact there is nothing before the Court evincing the in what way, manner and procedure the claimant was wrongfully dismissed. In this instant case since the claimant’s in suit contends that his dismissal by the defendant is wrongful, it behooves on him and not the defendant to plead and prove the conditions of service regulating the contract of service in question and in what way the conditions of employment gave his employer the defendant a restricted right of dismissal over him as he alleged and which he failed to do. Also, assuming without conceding that claimant was no issued with the staff handbook as he wants the Court to believe what stops him from asking or issuing notice to the defendant vide his pleading to produce same. The Apex Court reinforced this position of the law in its recent decision in Bukar Modu Aji v. Chad Basin Dev. Authority & anor [2015] LPELR, 24562, SC.  It is a case where the appellant as a civil servant was dismissed by the respondent, he challenged his dismissal on the ground that he was not given fair hearing,  Odili JSC, held among other things thus-

 

” … in the case at hand throughout the particulars of claim, there is no plea of the conditions of service governing his employment with the respondents and in evidence nothing is put forward from which those conditions could be ferreted out and no document evidencing the contract of service. It is therefore needs be said that wavering the flag of a breach of fair hearing entrenched in the Constitution as per Section 33 of the 1979 Constitution prevailing at the time of the action’s commencement which section is impari  materia with the current Section 36 of the 1999 Constitution does not provide the saving grace. This is because in the absence of the pleading and establishing the contract of service, the court is left without the working tool with which it can consider the case as advanced by the employee as to whether or not there was breach. …”

Also in the case of Mr. Clement Maku Aviomoh v. Forte Oil & anor, an unreported suit No. NIC/LA/172/2012, a judgment delivered on 18th June, 2015; where the Court stated thus–

        “ It is apparent from the above decision that the extant position of the law          is that pleading the claimant’s conditions of service and tendering of same is a condition precedent that must be fulfilled in any claim for wrongful     dismissal or termination, as it is only the terms and      conditions of service that         can be considered by the Court to           determine the question of wrongful dismissal or termination. In other     words condition of service of a claimant is a sine qua non in a        claim           for wrongful suspension/dismissal/termination.”

Clearly, the condition of service of a claimant is a sine qua non in his claim for wrongful dismissal. The contract of employment is the substratum of the claimant’s case and the burden is on him to establish the terms and conditions of service that have been contravened leading to his dismissal. The Court cannot conjure up or look outside to fish for facts not before it to buttress or strengthen the claim of claimant. The failure of the claimant to plead and establish the terms and conditions of service is fatal to the claimant’s case. His claims against the defendant must therefore fail. I so hold.

With regards to claims b of the claimant, it is the learned defence counsel submission vide paragraphs 1.3 that the claimant was lawfully dismissed for gross misconduct and that the resignation sent in by the claimant was belated as same came in after the claimant had already been dismissed. Continuing he posited at paragraph 3.13 that an analysis of the three separate mails sent by the claimant clearly shows that his purported resignation was scripted and that aside the facts that the claimant pleaded in paragraph 15 of his pleadings that he put in his resignation on the 20th of December, 2013, there is nothing proving so and the other two letters claimant claimed to have written on the 23rd of December, 2013 was discredited by the defendant by producing the three mails sent by the claimant all dated 23rd of December, 2013. In response the learned claimant counsel posited at paragraph 3.0.7 of his written submission that the contention of the defendant that it had dismissed the claimant before he sent in his resignation cannot by any stretch be proven as exhibit BO8 shows that the defendant received the claimant’s three resignation letter before 9.40am in the morning of 23rd December, 2013 and acknowledged same but only conveyed to the claimant his purported summary dismissal at 4.48pm on the 23rd of December, 2013 after receiving the claimant’s three letters of resignation. In addressing this issue, It is noteworthy that exhibit BO8 is a reply to the claimant as to his purported resignation, however, the twist here is that to the defendant the claimant had already been dismissed before he put in his resignation letter as clearly stated thus;

Exhibit BO8 dated 23rd of December, 2013 “None of the three resignation letters you sent to the company can be honoured please because as at Friday 20th December, 20th 2013, we had conveyed to you that you have been exited from the company”.

Also, the defendant in their statement of defence averred that the claimant had real notice of his dismissal on the 20th of December, 2013 but he refused to collect same. That his dismissal letter was then sent via courier service to his place of residence on the 23rd of December, 2013 and he further refused to accept same as seen vide Exhibit EN1.

The claimant on the other hand at paragraph 13 of his statement of fact averred that “On or about the 20th December, 2013 the claimant wrote a letter of resignation of appointment to the defendant but the defendant failed and refused to either acknowledge the letter or write a reply” then in his final written address he posited that the defendant received his resignation letter on the 23rd of December, 2013 at about 9.40 and conveyed his dismissal after he had tendered his resignation.  A cursory look into the circumstance of this suit to me point up to the fact that the claimant is blowing hot and cold at the same time like he is not certain as to when he sent in his resignation letter as in one breathe he says on the 20th of December, and in another 23rd of December, 2013. It clear from the record that there is nothing to prove that claimant was aware of his dismissal on the 20th of December, 2013 as the defendant would want the Court to believe, I say so in view of the fact that exhibit BO8 dated 20th of December, 2013 was not even  acknowledged by the claimant. In the same vein there is equally nothing on record evincing the fact that claimant duly resigned on the said 20th of December, 2013 as averred in his pleadings.  The evidence before the Court by Exhibit EN2 points to the fact that the claimant on the 23rd of December, 2013 at 8.27am tendered his resignation letter to the defendant vide a mail through one Toyin Lolu-Ogunmade and copying one Adedoja Dapo who are staff of the defendant and the defendant replied vide exhibit BO8 intimating him of his dismissal. Now the pertinent question to ask is upon when is communication of the claimant’s dismissal effected is it on the 20th of December, 2013 when according to the defendant claimant refused to accept service of the letter or the 23rd of December, 2013 when claimant alleged to have received same.

The law is well settled that a notice of termination/dismissal/resignation takes effect from the date the letter was received by the employer or its agent, See WAEC v Oshionebo [2006] 12 NWLR (PT 994) 258; Adefemi v Abegunde [2004] 15 NWLR (PT 895) 1; The apex Court reiterated and reaffirmed this position of the law in Christiana Yare v National Salaries and Wages Commission [2013] LPELR 20520, S.C. It is trite law that where an employee’s contract of employment is terminated without notice, the effective date of termination is the date on which the letter was communicated. In an English case of Horwood v Lincoinshire County Council [2012] UKEAT,0462/11.; it was held that where an employee’s contract of employment is terminated without notice as it is in this case, the effective date of termination is the day that notice is communicated. Applying the position of the Court in that case to this present, It thus means that the determination of contract between parties was on the 23rd of December, 2013 the day the claimant tendered his notice of resignation i.e. exhibit EN2 and not the date on the letter of dismissal which is 20th December, 2013, that in the eye of the law was the date claimant determined his employment. I therefore find that the claimant’s employment was determined on the 23rd of December, 2013 when he communicated his resignation to the defendants and I so hold.

It is the claimant’s claim that he is entitled to the sum of Three Million Five Hundred (N3, 500,000.00) to the Claimant having worked about five (5) year with the Defendant. It is learned claimant’s counsel contention that during the claimant’s orientation, the defendant told him he was entitled to this claim if he stayed up to five years and also that same was read to him. Learned counsel on that basis posited that since claimant has spent eight years in service with the defendant, he is entitled to his claim. Learned defence counsel did not controvert nor challenge this submission in his written address.  It is trite that he who asserts must prove. An examination of the record before the Court reveals at nowhere evincing his claim to the sum as his terminal benefit. There is nothing indicating a rightful claim to his assertion as the basis upon which both parties predicated the contract of service upon is not before the Court and the Court not been Santa Claus cannot award a claim that was not proven beyond probability. Thus, it is on this premise that I find and hold that claimant’s claim c fails.

It is the claimant’s claim that he is entitled to his December 2013 salary having worked for the same being the sum of Twenty Thousand, Seven Hundred and Sixty Four Naira, Fifty-Three Kobo (N20, 764.53). I have held earlier that the claimant resigned from the service of the defendant on the 23rd of December, 2013. Now the appropriate question to answer is, is he entitled to his salary for the month of December, 2013. The law is long settled that resignation or retirement takes effect immediately same is communicated/ received by the employer. It is also the law of common place that every employee has the right to resign/retire from his appointment whenever he so desires as there is also a corresponding right of an employer in a master/servant relationship to terminate its relationship with the employee. The resignation/retirement is effective in law immediately same is communicated to the employer, even when the employer does not expressly accept it. There is also no need for the employer to reply to the letter of retirement/resignation before it becomes effective. It is ordinarily effective on the date the letter of resignation is received by the employer. See the cases WAEC v. Oshionebo supra ; the South African cases of SACWU Obo Sithole v Afrox Gas Equipment Factory (Pty) Ltd [2006] 6 BALR 592 [MEIBC]; African National Congress v Municipal Manager, George Local Municipality & Ors [2010] 3 BLLR 221 (SCA) the South African Court while considering a similar issue where an employee tenders a resignation letter and whether or not the acceptance or refusal of same can change the status of the contract. The Court reasoned and held that resignation must be effective immediately or from specified date, and being a unilateral legal act, it does not to be accepted be the intended recipient to be effected. In WAEC v. Oshionebo, Supra a case relied on by the defendant, the Court of Appeal held that the tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. A keen perusal of exhibit BO1 shows that either party may terminate the contract of employment by giving the other party one month notice or salary in lieu of notice. The claimant resigned on the 23rd of December, 2013 thus he is not entitled to his claim as the sum claim will be deemed as his salary in lieu of notice to the defendant upon resignation. In effect claimant’s claim f fails. I so find and hold.

Claimant also prays for an order restraining the Defendant by herself or her agent or privies or by and person whosoever from collecting, retrieving or disturbing the possession of the Toyota Yaris with Registration DW603APP which the Claimant automatically acquires having served the defendant for more than Five (5) years as a branch head in Ondo State. It is learned claimant’s counsel argument that the claimant was intimated by the defendant that he would be entitled to this claim he stayed up to five years. Learned counsel on that basis posited that since claimant has spent eight years in service with the defendant, he is entitled to his claim.  It is trite to state that he who asserts must prove the existence of his assertion. See Section 131 of the Evidence Act supra. The claimant in this suit has failed to prove by cogent evidence that he will be entitled to keep the car upon determination of the contract. Hence, I find that his claim d fails. I so hold.

Claimant claims for damages in the sum of Two Million Naira (N2,000,000) to the Claimant as damages for the wrongful allegation of gross misconduct fighting the office, hindrance or business activities and willful disobedience it made against the claimant and the consequential effect it has on the Claimant. It is settled law that in claiming damages, a claimant must have findings in his favour in relation to his reliefs. Where he fails to prove his case upon which damages are sought as in this present case then the claim for damages must also fail, worse still, in this present case where I have held that the bedrock upon which the contract is predicated upon is not before the Court, the issue of damages does not and will not arise because it has no leg to stand on. See the cases of PHCN & Anor v Atlas Projects ltd [2017] LPELR 43622; National Universities Commission v Alli & Anor [2013] LPELR 21444 CA; Macfoy v UAC Ltd [1962] AC 150; Fashanu v Adekoya [1974] 6 SC 83. It is upon this basis that I discountenance claimant’s claim for damages. I so find and hold.

On issue two, it is the defendant’s counterclaimant claim that it is the owner of the Toyota Yaris car with Registration Number DW 603 APP and also prays for an order directing the Claimant to return forthwith the defendant the Toyota Yaris car with Registration Number DW 603 App in the same excellent and perfect working conditions in which it was as at 20th December 2013 with all fixtures and fittings intact. It is claimant’s averment in his reply to the counterclaim that he is entitled to the claim of the Toyota Yaris car as the car had been attached to him since 2010 and he has been the one personally responsible for the maintenance of the car. It is the learned defence counsel argument that through an avalanche of oral and documentary evidence that truly the defendant is the owner of the Toyota Yaris car and that the claimant has failed to establish before this Court that he is entitled to the defendant’s car and that claimant has not presented any evidence entitling him to the car as part of his terminal benefit.  It is settled law that he who asserts must prove. See the cases of Maihaja v Gaida [2017] LPELR 42474 SC; Peter Ojoh v Owuala Kamalu & ors. [2005] LPELR 2389 SC; Onah v Okenwa & ors [2010] LPELR 4781 CA. It is clear from the pleadings of both parties that that the car in question is that of the defendant but same was attached to the claimant to ensure the smooth running of his activity. However, as stated supra there is nothing on record before the Court substantiating the assertion of the claimant in this regard the Claimant has not discharged the burden placed on him to same to prove same.  It is upon this basis that I find for the defendant counterclaimant claim that it is the owner of the car and the claimant is to return forthwith the Toyota Yaris car with Registration Number DW 603 APP App in the same excellent and perfect working conditions in which it was as at 20th December 2013 with all fixtures and fittings intact. I so hold.

It is the counterclaimants claim that it is entitled to the sum of Six Hundred and Twenty One Thousand, Five Hundred and Three Naira, Eighty Kobo [N621,503.80] being the outstanding balance on the car lease credit facility that was given to the Claimant by the Defendant for the purchase of the Saturn Vue , 2003 Model car. Learned claimant counsel on this position argued that the contract of the loan under which the counterclaimant claims is fraught with fraud, duress and undue influence. He stated that the counterclaimant without the consent of the claimant supplied him with Saturn Vue instead of the Toyota Sienna he applied for. That when he rejected the Saturn Vue car, the defendant threatened to dismiss him hence he resigned to faith and accepted the car. The learned defence counsel submitted that the defence of fraud raised by the claimant cannot avail him as it is settled principle of law that when a party alleges crime in a civil transaction, such party alleging crime must prove beyond reasonable doubt and in this case that claimant has failed to so do. A careful examination of the evidence before the Court discloses that the claimant vide exhibit EN7/BO6 applied for a car loan of N1,200,000.00 for the purchase of a Toyota Sienna 2003 model. By exhibit EN7 the defendant counterclaimant approved the loan facility for the finance of one Saturn Vue 2003 Model (Underline Mine emphasis) in the sum of N1, 200,000.00 for the purchase period of 48 months. It is the claimant’s argument that the loan transaction was tainted with fraud. It is the law that fraud is an allegation of crime which must be proved beyond reasonable doubt. See the cases of Brila Energy Ltd v FRN [2018] LPELR 43926 CA; Olanrewaju v Unilag & Ors [2014] LPELR 24093 CA. From an indepth examination of the evidence before the Court there is no scintilla of evidence validating claimant’s assertion in regards to the claim of fraud as exhibit EN7 is clear as to the type of car the claimant agreed to purchase and the claimant vide same exhibit appended his signature on the contract agreement. Now assuming without conceding that the claimant was coerced into agreeing to purchase the Saturn Vue 2003 Model, why didn’t he object to the purchase of the car formally. All facts and evidence before the Court points to the fact that the claimant and defendant mutually agreed to the purchase of Saturn Vue 2003 Model there is nothing evincing otherwise as the claimant would want the Court to believe. It is trite that parties are bound by their agreement. See the case of Edilcon (Nig) Ltd v UBA Plc [017] LPELR 42342 SC; Desemyof (Nig) ltd v Kwara State Govt & ors [2018] LPELR 45705 CA. It is upon this that I find that parties are in ad idem as to the car to purchase. With regards to the sum of N621,503.80] being the outstanding balance on the car lease credit facility that was given to the Claimant by the Defendant for the purchase of the Saturn Vue , 2003 Model car, learned counsel to defendant to counterclaim denied owing such amount to counterclaimant and submitted that the counterclaimant has failed to prove how it arrived at the sum it claims as it did not tender any evidence to such claim. The counterclaimant to prove its claim tendered exhibit EN10 and EN 11. An examination of the document before the Court reveals at exhibit EN10 and EN11 that the claimant as 20th December, 2013 had an outstanding balance of the sum of N574, 184.69 and the addition of interest as seen in exhibit EN11 sum up to N621, 503.80. The counterclaimant having succinctly proven its counterclaim in this regard is entitled to its claim. I so find and hold.      

The counterclaimant claim  exemplary damages in the sum of [N3,500,000] exemplary damages are usually retributive in nature and awarded whenever the defendant’s conduct is sufficiently distasteful to merit punishment, as where it discloses malice, fraud, cruelty, insolence, brazen discount of the law. Exemplary damages must be claimed and proved before they can be awarded. See the case of Talabi v Law Union & Rock Insurance Plc [2016] 64 NLLR (Pt 227) 374.  From the circumstance of this suit there is nothing inferring an act of bad faith or malice on the part of the defendant to counter claim to incur such a punitive damage. It is in consequent of this that I discountenance this claim. I so find and hold.

On the claim for interest on the Sum of Six Hundred and Twenty One Thousand, Five Hundred and Three Naira, Eighty Kobo [N621,503.80] at the rate of 10% per annum from 21st December 2012 to the date of judgment and thereafter at the rate of 10% per annum from the date of Judgment until entire judgment sum is fully liquidated. It is apt that this claim borders on prejudgment interest, the rules of the Court as stated supra is that the Court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at the rate not less than 10% per annum to be paid upon any judgment. The import of this is that a Claimant cannot ask for prejudgment interest. This Court can only award on judgment as from the date of judgment, see Order 47 Rule 7 of the National Industrial Court Rules, Supra. It is in this vein I discountenance with Claimant’s claim on prejudgment interests. I so find and hold.

In conclusion, it is obvious that the claimant’s claims fails in the most part and the defendants counter claims succeeds in the most part. For the avoidance of doubt, I declare and order as follows;

  1. That the claimant’s claims a, c, d, e and f fails.
  2. That the claimant resigned on the 23rd of December, 2013.
  3.  That the defendant counterclaimant is the owner of  and the claimant is to return forthwith the Toyota Yaris car with Registration Number DW 603 APP App in the same excellent and perfect working conditions in which it was as at 20th December 2013 with all fixtures and fittings intact.
  4. That the defendant counterclaimant is entitled to the sum of N621,503.80 being the outstanding balance on the car lease credit facility that was given to the Claimant by the Defendant for the purchase of the Saturn Vue , 2003 Model car.
  5. That defendant counterclaimant claim on prejudgment interest fail.
  6. That defendant counterclaimant claim on exemplary damages fail.
  7. All the monetary awards are to be paid within 30days of this judgment, failing which it is to attract 10% interest.

No award as to cost.

Judgment is entered accordingly.

 

Hon. Justice Oyewumi Oyebiola. O

Presiding Judge

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