LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mr. Emmanuel Agboti -VS- Chanzhon Quanquing Company Nigeria Ltd & ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 18thNovember 2019                   SUIT NO. NICN/LA/591/2018

 

BETWEEN

 

  1. EMMANUEL AGBOTI                 …     CLAIMANT

 

AND

 

  1. CHANGZHOU QUANQUING COMPANY

NIGERIA LIMITED                                   …     DEFENDANTS

  1. PETER JOHNSON

 

JUDGMENT

 

1             This suit was commenced on 23rdNovember 2018. By his amended general form of complaint dated 7thMarch 2019, the Claimant claimed against the Defendants as follows:

  1. A declaration that the event of 14th June 2018 by which the 2nd Defendant orally requested the Claimant to stop work on the ground that his services were no longer needed does not amount to termination of Claimant’s employment.

  1. A declaration that being a contract of employment embodied in a written document, only a written determination of the contract is lawful and effective.

  1. A declaration that the Claimant remains a bonafide employee of the 1st Defendant and entitled to his monthly salary and other allowances until his employment is properly determined.

  1. Payment of the sum of N1, 000, 000.00 [one million naira] only being arrears of his salary from the month of June 2018 to the month of September 2018 at the rate of N250, 000.00 [two hundred and fifty thousand naira] only per month.

  1. Payment of the Claimant’s monthly salary of N250, 000.00 [two hundred and fifty thousand naira] only from the month of October 2018 until judgment is delivered in this suit.

Alternatively

Payment of Claimant’s monthly salary of N250, 000.00 [two hundred and fifty thousand naira] only from the month of June 2018 until Claimant’s appointment is duly determined by the 1st Defendant in accordance with his terms of employment.

  1. General damages in the sum of N5, 000, 000 [five million naira] only in favour of the Claimant.

  1. Cost of this action in the sum of N2, 000, 000 [two million naira].

The Claimant filed with the amended complaint his amended statement of facts, list of witness, witnessstatement on oath, amended list of documents and copies of the documents. Upon receipt of theamended originating processes, the Defendants filed theiramended statement of defence and other defence processes dated 4th April 2019, to which the Claimant filed a reply and further witness statement on oath dated 17th April 2019.Trial commenced and was concluded on 8th May 2019. The Claimant testified for himself and tendered three documents in proof of his claim which were marked as exhibits 1 to 3. He was thereafter cross-examined. Learned counsel for the Defendants tendered one document through the Claimant, Zenith Bank transaction receipt, which was marked as exhibit DW1. Mr. Joshua Obuba, General Manager of the 1st Defendant, testified on behalf of the Defendants and tendered three documents which were marked as exhibits DW2 to DW4. He was cross-examined. Learned counsel for the Claimant tendered two documents through the witness which were marked as exhibits DW5 and DW6.

In compliance with the Rules of the Court, parties filed their final written addresses which their respective counsel adopted as their final arguments in support of their case.

  1. In the final written address filed by the Defendants, learned counsel for the Defendants, Mr. F. T. Kumah, raised one issue for determination, to wit:

“Whether the Claimant’s contract of employment was not terminated in accordance with the terms and conditions of employment of the 1st Defendant as a result of which the Claimant is entitled to the reliefs sought in this suit?”

Learned counsel for the Claimant, Mr. Gabriel Onojason, also formulated one issue for determination in the Claimant’s final written address, viz:

“Whether the Claimant’s contract of employment was rightly terminated in line with the terms and conditions of the existing contract of employment?”

  1. Arguing this issue, learned counsel for the Defendants submitted that where a contract is contained in several documents, all the documents must be read together and cited many authorities including CBN v. Igwilo [2007] 14 NWLR [pt.1054] 393 at 433. He explained that the Claimant admitted under cross-examination that the letter of employment made reference to ‘job brief, job responsibilities and job requirements’ buttressing the fact that the contract of employment between the Claimant and the 1st Defendant is governed by two documents; and since so many versions of the job brief, job responsibilities and job requirements were admitted in evidence and marked as Exhibits “CW1”, “DW3” and “DW4”, the task before the Court is to determine which of these exhibits should be read alongside the letter of employment contained in Exhibit “CW1” in order to decipher the terms of contract of employment between the Claimant and the 1st Defendant. Learned counsel further explained that Exhibit DW3 was tendered to show that the version of job brief, job responsibilities and job requirements attached to Exhibit CW1 is forged but argued that assuming, without conceding, it is not forged, it ceased to have any legal life the moment the Claimant received and signed Exhibit DW4 which overrides the earlier one sent to the Claimant via e-mail and attached to Exhibit CW1. That being the case, he argued, there is no doubt that it is only Exhibit DW4 and the letter of employment contained in Exhibit CW1 that govern the contract of employment between the Claimant and the 1st Defendant. The case of Orji v. D.T.M. [NIG.] Ltd. [2009] 18 NWLR [pt.1173] 467 at 496 was cited in support.Counsel also argued that a community reading of Exhibits DW4 and CW1 would show that the Claimant was on six months’ probation and not entitled to one month’s notice of termination of employment or one month’s salary in lieu of notice.

On power of the Court to compare signatures on documents admitted in evidence, it was submitted that the Court has unbridled powers to compare the signature of a party on different documents admitted by Court and his signature on the document admitted to have been signed by him pursuant to section 101[1] of the Evidence Act, 2011and referred to the cases of Daniel-Kalio v. Daniel-Kalio [2005] 4 NWLR [pt.915] 305 at 328 and Daggash v. Bulama [2004] 14 NWLR [pt. 892] 144 at 188. He explained that the Claimant admitted, during cross-examination, that the signature on Exhibit DW1 is the short form of his signature while the signature on his statements on oath is his full signature. He contended that if the Court rummages Exhibits DW1, DW2 and DW4, it will come to an inescapable conclusion that it is the short form of Claimant’s signature on Exhibit DW1 that appears on Exhibits DW2 and DW4 thus reinforcing the Defendants’ assertion that it is the Claimant who acknowledged receipt of Exhibits DW1, DW2 and DW4. He therefore submitted that a literate person of full age, capacity, and understanding who signs a document is presumed to understand what he signed and bound by it. The case of Afribank [Nig.] Plc v. Alade [2000] 13 NWLR [pt. 685] 591 at 603 was cited in support.

On forgery, learned counsel submitted that where allegations of crime are made in a civil suit it must be proved beyond reasonable doubt; and explained that unlike the Defendants who pleaded particulars of forgery and gave evidence to substantiate it, the Claimant failed to particularise his allegation of forgery.

He submitted that by section 12[2][b] of the National Industrial Court Act, 2006, this Court is empowered to depart from provisions of Evidence Act in the interest of justice. Accordingly, he argued that since there is preponderant evidence that the Claimant acknowledged receipt of Exhibit DW1 coupled with his admission during cross-examination that the signature on Exhibit DW1 is the short form of his signature, it is one of the compelling instances where this Honourable Court can evoke the above provision to the effect that Exhibit DW1 is relevant and admissible in evidence notwithstanding the argument of the Claimant’s counsel that Exhibit DW1 is devoid of any evidential value and Exhibit DW4 is inadmissible for non-compliance with section 84 of the Evidence Act, 2011. He argued that since Exhibit DW4 was pleaded, duly received and signed by the Claimant, it is not only relevant to this suit but it is also admissible in evidence; and urged the Court to discountenance the argument of learned counsel.

He submitted further that it is the law that an employee who has been served with a letter of dismissal or termination of employment is deemed to have constructive notice of dismissal from employment and cannot seek an order of Court to compel the employer to continue to pay him salary until termination of employment in accordance with its terms and conditions and relied on B.E.D.C. Plc v. ESEALUKA [2015] 2 NWLR (Pt. 1444) 411 at 430-431. He argued that since there is evidence that the Claimant’s employment was terminated by Exhibit DW2, the argument by the Claimant that he is still an employee of the 1st Defendant and therefore entitled to salaries until his employment is duly terminated ‘is not only parsimonious but a mere prevarication calculated to camouflage a make-belief’. It was further argued that it is tantamount to approbating and reprobating for the Claimant who has alleged that his employment was terminated by the 2nd Defendant orally on 14th June 2018 on the ground that his services were no longer needed to cunningly turn around to assert that he continued going to the work till the end of June 2018. Learned counsel finally submitted that since the Claimant’s employment was terminated by the 1st Defendant on 1st June 2019 [sic] in addition to the fact that he is not entitled to one month’s notice of termination or one month’s salary in lieu of notice by virtue of Exhibit DW4, the Claimant’s case lacks any basis and should be dismissed. The Court was so urged.

  1. Responding, learned counsel for the Claimant submitted that the Claimant’s employment was not rightly terminated and where the contract of employment is in writing, parties are bound by the express terms and conditions stipulated therein and referred tothe cases of Katto v CBN [1999] LPELR-1677[SC] 10 andBFI Group Corporation v. B.P.E. [2012] LPELR-9339[SC] PP. 23-24. He explained that the document which governs the relationship between parties in the instant case is the letter of employment dated 14th May 2018, exhibit 1 which contains the conditions of employment including provision for termination. Referring to Adetoun Oladeji [Nig.] Ltd. v. Nigerian Breweries Plc [2007] LPELR-160[SC] P.14, he submitted that when construing documents in dispute between the parties, the proper course is to discover the intention of the parties and not to import into the  contract ideas not potent on the face of the document. He argued that the wordings of the contract are very clear and urged the Court to so hold. He explained that the defence witness, under cross examination, admitted that no notice was served on the Claimant and thus the Defendants breached the contract of employment.

Learned counsel contended that the Defendants did not at any time dispute the contract of employment which governs the relationship between parties and did not contradict the existence and provisions of the contract of employment; but while the matter is pending in Court the Defendants prepared a letter of termination purportedly signed by the Claimant. When cross examined particularly concerning the letter of termination, the Claimant denied the existence of any letter of termination. He urged the Court not to attach any evidential value to the letter of termination, Exhibit DW2. It was further argued that, assuming without conceding, there was indeed a letter of termination, it cannot explain away the [non]performance of the condition precedent to termination of the contract by either party.

He contended that out of desperation and in a bid to cover up their lapses, the Defendants also prepared another “job description” incorporating terms that were not in the original document so as to cover up for the unlawful termination and also to deny the Claimant of his entitlement. He argued that a critical look at the [relevant] paragraph of exhibit DW3 will show a failed attempt by the Defendants to deny the Claimant of his entitlement as the clause is not contained in the original job description attached to the offer of employment, Exhibit CW1. He urged the Court to hold that the new job description, Exhibit DW3, is a sham.

Learned counsel submitted that exhibits DW1 – DW3 [assuming without conceding that it is valid] did not comply with sections 84 of the Evidence Act, 2011 in that being documents produced by a computer, there is no certificate of compliance and referred to Omisore v. Aregbosola [2015] 15 NWLR [pt.1482] 205 at 295. He further submitted that the acknowledgement by the Claimant, during cross examination, that the signature on Exhibit DW1 is the short form of his signature does not imply that he signed and acknowledged receipt of the purported letter of termination. As a matter of fact, the Claimant did not testify that he signed it. Therefore, it cannot be in the interest of justice for the Court to depart from Section 84 of the Evidence Act to accord relevance and admissibility to the Zenith Bank transaction receipt and purported letter of termination.

Learned counsel submitted that the general rule is that where parties have embodied the terms of their contract in a document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument and referred to section 128[1] of the Evidence Act, 2011,Olaoye v. Balogun [1990] 5 NWLR [pt. 148] 24 and UBN v. Ozigi [1994] 3 NWLR [pt. 333] 385. It was also submitted that it is trite law that general evidence is not admissible as to what passed between the parties before execution of a written agreement or during its preparation. In the instant case, all the Defendants’ sole witness averments as to the existence of certain recruitment and appraisal exercise that was done purportedly in May, 2019 during the course of the Claimant’s employment [assuming it was proved that there was any appraisal exercise] is inadmissible because it constitutes an extrinsic evidence intended to be used to contradict the letter of employment, exhibit 1. He submitted further that oral evidence is inadmissible either to add to or to subtract from the contents of a document and referred to Bongo v. Gov., Adamawa State [2013] 2 NWLR [pt. 1339] 403.He therefore urged the Court to discountenance the assertions of the Defendants’ witness on the purported existence of exhibits DW1 – DW3 and instead accept the facts as contained in the 1st Defendant’s letter dated 19th July 2019, exhibit DW5.

Referring to the statement on oath of DW1 and paragraph 10 of the statement of defence, learned counsel argued that the credibility of evidence adduced by defence witness during cross examination is questionable because in one breadth he said the Claimant was given one month’s notice but in his statement on oath, attached exhibits and statement of defence he averred that the Claimant was not given notice of termination because he is not entitled to notice. This contradiction remains unresolved. The Court was urged to so hold.

On remedies available to an employee whose employment was illegally terminated, he referred to Osisanya v. Afribank [Nig.] Plc [2007] LPELR -2809[SC] and submitted that what the employee could have earned during the period is the requisite damages that the employee is entitled to. He argued that there was a breach by the 1st Defendant acting through the 2nd Defendant and it will not be out of place  to say that the Claimant is entitled to the payment of his salary for the period  of June to September 2018 as damages in view of the fact that he was never issued the requisite one month’s notice for the termination of  his employment contract. The case of Oforishe v. Nigerian Gas Co. Ltd [2017] LPELR -42766 [SC] was cited in support.

He submitted further that the line of defence by the Defendants that there was an alleged appraisal that was purportedly organized for the purpose of evaluating the performance of the employees in the 1st Defendant company in June 2018 is an afterthought. This is because the Claimant was appointed after a successful screening exercise by the Defendants who confirmed this in exhibit 1 and an indicator that the termination of the Claimant’s employment was done in bad faith and in view of this, the Claimant ought to be compensated with the payment of damages by the Defendants. He therefore urged the Court to grant the prayers of the Claimant as per the Amended General Form of Complaint and Statement of Facts.

  1. I have carefully considered the submissions of learned counsel for the parties and reviewed the evidence before me and, in my respectful view, the issue for determination submitted by learned counsel for the Defendants is apposite and I hereby adopt it in consideration of this case with a slight modification, that is:

“Whether the Claimant’s employment was not terminated in accordance with its terms and conditions and whether the Claimant is entitled to the reliefs sought in this suit?”

The law is trite that he who asserts must prove. See section 131 of the Evidence Act, 2011, which provides thus:

“[1]   Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

[2]    When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

See also the case of United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2014] 2 NWLR [pt.1390] 1 at 21.

 

Thus, the burden of proof is on the Claimant to establish by credible evidence his entitlement to judgment on his claims. That burden does not shift to the Defendants. See Orji v. Dorji Textiles Mills [Nig.] Ltd. & 3Ors. [2009] 12 S.C. [pt.111] 73 at 88also cited by learned counsel for the Defendants.In doing this, he must specifically plead and prove the terms and conditions of his employment which is the bedrock upon which an aggrieved employee must found his case. The terms and conditions of employment fix the rights and obligations of the parties and the Claimantsucceeds or fails upon the terms contained therein. See Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761and A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154.

 

Where the Claimant successfully discharges this burden, a prima facie case is made out and the burden shifts to the Defendants to adduce counter evidence to sustain their defence. Where, however, the Claimant fails to make out a prima facie case there will be nothing for the Defendants to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660at page 674 and Orji v. Dorji Textiles Mills [Nig.] Ltd. & 3Ors. [supra] at 89.

  1. By the pleadings, the Claimant’s case is that he was employed by the 1st Defendant by letter dated 14th May 2018, which employment was terminated orally by the 2nd Defendant on 14th June 2018 in breach of the terms of his employment. The Defendants, on the other hand, contend that the Claimant’semployment is regulated by the letter of employmentdated 14th May 2018as amended by exhibit DW4, the job brief, job responsibilities and job requirements [“job description”].

The Claimant, in his evidence in chief, testified that by letter of appointment dated 14th May 2018 with accompanying job description sent to him by email, he was appointed Finance Manager of the 1st Defendant which employment he accepted by email dated 15th May 2018. Copies of the email, attached letter of appointment and job description were received in evidence and marked as exhibit 1. The Claimant’s email acceptance of employment was admitted in evidence and marked as exhibit 2 while the certificate of compliance was marked as exhibit 3. He stated that,bythe contract, he was entitled to a monthly gross salary of N250, 000 and either party could terminate the contract by giving the other one month’s notice or one month’s salary in lieu of notice. He resumed duties as directed on 15th May 2018 and was paid his salary for the month of May 2018 but on 14th June 2018, the 2nd Defendant instructed the General Manager to inform him orally that his services were no longer required and that his appointment had been terminated. In spite of this, he worked throughout the month of June 2018 liaising with banks, tax authorities, meeting vendors and suppliers and was not accused of incompetence but at the end of the month, his working tools were taken from him and he was not allowed entrance into the premises. He stated that the Management promised to send work to him to execute from home but failed to do so. He claimed that his employment was terminated in breach of contract as he was not served a month’s notice or paid salary in lieu of notice and that the failure to pay his June salary constitutes a material breach of contract which has occasioned hardship to him. He averred that he is still an employee of the 1st Defendant and entitled to salaries until his employment is lawfully terminated. The Claimant also stated that the failure of the Defendants to pay his outstanding salaries in spite of repeated demands led him to brief a Solicitor to represent him and by email dated 19th July 2018, the 1st Defendant contended that his employment was not unlawfully terminated but that his recruitment process was invalid and his contract invalid and consequently, he was not entitled to June 2018 salary. His Solicitors replied the email by letter dated 15th October 2018 demanding payment of arrears of salary but the Defendants refused/failed and or neglected to accede to his demands or respond to the letter till date. As a result, he claimed as per his amended statement of facts. He denied receipt of a document titled “job brief, job descriptions/requirements of employment” and stated that the letter of termination dated 1st June 2018 is a total fabrication and the signature on the letter does not belong to him. Under cross examination he acknowledged that he received his May 2018 salary by Zenith Bank transfer to his Fidelity Bank account. The transfer receipt was admitted in evidence and marked exhibit DW1. He confirmed that the signature on exhibit DW1 is his abbreviated signature while the signature on his statement on oath is his full signature. He denied receipt of any letter of termination and would be surprised to see his signature on any letter of termination.

  1. The thrust of Mr. Onojason’s argument, as I understand it, is that having stipulated in the letter of appointment that either party may terminate the contract by giving to the other one month’s notice of termination or payment of one month’s salary in lieu of notice, the Defendants are bound by that term and breached it when the Claimant’s employment was orally terminated on 14th June 2018. He contended that exhibit DW2 is an afterthought and was produced during the pendency of this suit and that when the Claimant was cross-examined, he denied the existence of any letter of termination. Learned counsel for the Defendants did not specifically respond to this submission but, in paragraphs 2.7, 2.9 and 2.10 of the Defendants’ final written address, he argued that the letter of appointment contained in exhibit 1 was amended by exhibit DW4 and by a community reading of exhibit DW4 and the letter of appointment, the Claimant is not entitled to one month’s notice of termination of his employment or salary in lieu of notice but, in spite of this, the Claimant was given and acknowledged receipt of a letter of termination dated 1st June 2018.

It is good law, as submitted by learned counsel for the Defendants, that where a contract is contained in several documents, all the documents must be read together to distilled the terms of that contract.See Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25and C.B.N. & Anor. v. Igwillo [2007] LPELR-835[SC] at page 40. The question,however, is whether exhibit DW4 amended the letter of appointment? Mr. Kumah explained that the Claimant admitted, under cross-examination, that the letter of appointment made reference to ‘job brief, job responsibilities and job requirements’ buttressing the fact that the contract of employment between the Claimant and the 1st Defendant is governed by two documents; and since so many versions of the job brief, job responsibilities and job requirements were admitted in evidence and marked as Exhibits “CW1”, “DW3” and “DW4”, the task before the Court is to determine which of these exhibits should be read alongside the letter of appointmentto determine the terms of the contract of employment between the Claimant and the 1st Defendant.He explained further that Exhibit DW3 was tendered to show that the version of job brief, job responsibilities and job requirements attached to Exhibit CW1 is forged and argued that, assuming without conceding, it is not forged, it ceased to have any legal life the moment the Claimant received and signed Exhibit DW4 which overrides the earlier one sent to the Claimant via e-mail and attached to Exhibit CW1. That being the case, he argued, there is no doubt that it is only Exhibit DW4 and the letter of appointment contained in Exhibit CW1 that govern the contract of employment between the Claimant and the 1st Defendant.

In proof of the allegation of forgery, the Defendants tendered two versions of the job brief, job responsibilities and job requirements which were received in evidence and marked respectively as exhibits DW3 and DW4. In the particulars of forgery contained in paragraph 9 of the amended statement of defence, the Defendants averred thus:

“a.    The “job brief, job descriptions/conditions of employment” pleaded in paragraph 6 of the Amended Statement of Fact was forged by the Claimant because the Claimant knows that the authentic copy of the 1st Defendant’s “job brief, job descriptions/conditions of employment” dated 15th day of May, 2018 [which was received by the Claimant] does not provide for one month’s notice of termination of employment or one month’s salary in lieu of notice for the Claimant who was still a probationary employee of the 1st Defendant.”

“b.    The content of the 1st Defendant’s “job brief, job descriptions/conditions of employment” dated 15th day of May, 2018 and the one that was sent to the Claimant’s e-mail is the same but the only difference is that the one sent to the e-mail of the Claimant was unsigned and undated while the authentic Job Description of the 1st Defendant dated 15th day of May, 2018 was signed by the 1st Defendant’s General Manager.”

“c.    The conditions of service for confirmed employees and the probationary employee of the 1st Defendant are not the same. The removal of the [sic] of the provision that forbids service of one month’s notice of termination of employment or one salary [sic] in lieu of notice on probationary staff in the 1st Defendant’s “job brief, job descriptions/conditions of employment” sought to be relied upon by the Claimant speak[s] volume of the fact the said document was forged.”

“d.    The Claimant took advantage of the fact that copy of the “job brief, job descriptions/conditions of employment” of the 1st Defendant that was sent to his e-mail was unsigned and forged the 1st Defendant’s “job brief, job descriptions/conditions of employment” pleaded in paragraph 6 of the Statement of Facts.”

This paragraph was repeated in paragraphs 7 to 10 of DW1’s statement on oath. The Claimant in paragraphs 6, 7 and 8 of his reply to the amended statement of defence denied the averments and put the Defendants to the strictest proof.

  1. First, and as rightly argued by learned counsel for the Defendants, whenever an allegation of crime is made in civil proceedings, the standard of proof is beyond reasonable doubt. See section 135[1] of the Evidence Act, 2011 which provides that:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”

See also Yakubu v. Jauroyel & Ors. [2014] LPELR-22732[SC] at page 26. Proof beyond reasonable doubt has been held to mean proof of the essential ingredients of the offence. SeeAjiboye v. Federal Republic of Nigeria [2014] LPELR-24325[CA] at pages 25-26.

What are the ingredients of forgery? To ascertain the ingredients of forgery we must know the meaning of forgery. Forgery consists of the making of a false document or writing knowing it to be false and with intent that it may be used as a genuine document. A document is forged if the whole or any material part thereof purports to be made by or on behalf of a person who did not make it or authorized its making. See Smart v. The State [1974] 11 S.C. 130 at 138 line 40,Asomugha v. Nwabueze [2011] LPELR-4630[CA] at page 24andSection 465 of the Criminal Code Act, CAP C38, Laws of the Federation of Nigeria whichprovides inter alia:

“A person who makes a false document or writing knowing it to be false and with intent that it may in any way be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may, in the belief that it is genuine be induced to do or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing.”

Thus, the essential ingredients of forgery are the making of a false document and the intent that it should be used as genuine. The summary of the evidence of the Defendants is that the copy of the job brief, job responsibilities and job requirements attached to the Claimant’s letter of appointment and marked as exhibit 1 is materially different from the copy which was emailed to the Claimant and which was admitted in evidence and marked as exhibits DW3 and DW4 in that the authentic copy contains a clause which modified the letter of appointment. Also, that exhibit DW4was received by the Claimant.

I have carefully examined the three documents which make up exhibit 1, exhibits DW3 and DW4 and the following inconsistencies are manifest:

  1. In the letter of appointment, which is not disputed, DW1 signed as ‘Country Head’ and the attached ‘job brief, job responsibilities and job requirements’ does not have any provision for name or signature of DW1.

  1. Exhibit DW3, which was allegedly sent along with the letter of appointment to the Claimant by email, has a column for signature and DW1’s designation changed from ‘Country Head’ to ‘General Manager’. Also, the content of the ‘job requirements’ is different from the content of the ‘job requirements’ in exhibit 1 and the positioning of ‘job requirements’ in exhibit DW3 is equally different.

  1. Exhibit DW4 which is the signed version of exhibit DW3 is materially different from exhibit DW3 in that it contains the following clause: “NOTE: This job brief and job responsibilities/conditions supersedes the unsigned one sent to the employee via email.”

  1. The Claimant was not confronted with exhibits DW3 and DW4 even though he is alleged to have received it.

Afurther question is thrown up by these inconsistencies, especially as it relates tonumber ‘c’ above.If exhibit DW4 is the same document that was sent to the Claimant by email, why are the words ‘sent to the employee via email’ used instead of ‘sent to your email’ which is more specific. Also, could DW1 have issued two different documents at the same time with two different designations?It is improbable that two documents emanating from the same officer and dispatched contemporaneously could bear different designations of that officer. What is more, the content of ‘job requirements’ in exhibit 1 is consistent with the position of Finance Manager than the content of ‘job requirements’ in exhibits DW3 and DW4 which look more like conditions of employment. Finally, the fact that the Claimant was not confronted with exhibits DW3 and DW4 which he is alleged to have received casts doubt on its authenticity. The signature of the Claimant being a material part of exhibit DW4, it was necessary to have confronted him with it. The only way the ‘job brief, job responsibilities and job requirements’ attached to exhibit 1 can be forged is if it is proved that the Claimant received exhibit DW4 and still pleaded exhibit 1 as representing the terms and conditions of his employment knowing it had been altered by exhibit DW4. See generally the case of Alake v. The State [1992] LPELR-403[SC] at page 11 lines B-E. The fact that exhibits DW3 and DW4 are different from the copy attached to exhibit 1 alone cannot ground the offence of forgery. Claimant’s knowledge of the falsity of the ‘job brief, job responsibilities and job requirements’ attached to exhibit 1 must be proved.

As rightly submitted by learned counsel for the Defendants, this Court is imbued with power to examine the signatures on documents properly before it and compare it with the signature accepted by a party to the proceedings as his. See section 101[1] of the Evidence Act, 2011 and the cases of Amadi v. Orisakwe & Ors. [2006] 3 W.R.N. 1 at 13-14 and Daggash v. Bulama [supra].Accordingly, although I am not a handwriting expert, I have carefully compared the Claimant’s signatures on the statements on oath with thesignatures on exhibits DW1, DW2 and DW4. It is my humble view that the writing and signatures on exhibits DW1, DW2 and DW4 are remarkably different. The signatures on exhibits DW2 and DW4 appear copied or traced and do not represent the signature of theClaimant on exhibit DW1. In the circumstance, it is doubtful that the Claimant signed and acknowledged exhibits DW2 and DW4.This doubt must be resolved in favour of the Claimant and I so hold. See Aituma & Anor. v. The State [2006] LPELR-7647[CA] at page 21 lines A-B. In consequence, the allegation of forgery has not been made out.

Apparently, surmising that the allegation of forgery was built on quicksand, learned counsel for the Defendants argued that assuming, without conceding, the ‘job brief, job responsibilities and job requirements’ is not forged, it ceased to have any legal life the moment the Claimant received and signed Exhibit DW4 which overrides the earlier one sent to the Claimant via e-mail and attached to exhibit 1. That being the case, he argued further, there is no doubt that it is only exhibit DW4 and the letter of appointment contained in exhibit 1 that govern the contract of employment between the Claimant and the 1st Defendant.

While it is the law that where a document is altered, it ceases to enjoy legal life, and becomes moribund to the extent of the alteration; the argument of learned counsel is now a non-issue in view of my finding above that the Claimant’s signature on exhibit DW4 appears copied or traced and does not represent his signature on exhibit DW1.The effect is thatthe Defendants having not shown that the Claimant received exhibit DW4, that document cannot and did not vary the terms of the letter of appointment.It is settled law that where a contract is in writing, any agreement which seeks to vary the original agreement, must be in writing. See section 128[1] of the Evidence Act, 2011 and the cases of Ezemba v. Ibeneme & Anor. [2004] LPELR-1205[SC] at page 69 and Baliol Nigeria Ltd. v. Navcon Nigeria Ltd. [2010] LPELR-717[SC] at page 10.

  1. As a corollary, the document which regulates the relationship between the Claimant and 1st Defendant is the letter of appointment contained in exhibit 1. Clause 7 thereof stipulates that:

“Either the company or you could terminate this appointment following an agreement to that effect, with the termination-initiation party giving the other party a one-month lieu of notice or payment of one month gross salary in lieu of notice.”

This clause is clear and must be given its ordinary grammatical meaning. See Governor of Ogun State v. Coker [2007] LPELR-4217[CA] at page 23 and Olatunde v. Obafemi Awolowo University [1998] LPELR-2575[SC] at page 22. The Claimant’s contention is that this term was breached by the Defendants. The evidence in proof is contained in paragraphs 12, 13, 14 and 16 of his statement on oath dated 7th March 2019. Under cross-examination, he denied receipt of any letter of termination and would be surprised to see his signature on any letter of termination. In response, the Defendants averred that the Claimant’s employment was terminated by exhibit DW2 and followed laid down procedure since the Claimant was not entitled to one month’s notice or one month’s salary in lieu of notice. DW1 confirmed under cross-examination that the Claimant was not given one month’s notice or salary in lieu of notice. I have found earlier in this judgment that the signature on exhibit DW2 does not represent the signature of theClaimant on exhibit DW1 and as a result, the Claimant could not have received exhibit DW2. This finding is buttressed by exhibit DW5 which was written by DW1 when hostilities have not begun.No reference was made to exhibit DW2 or that he was not entitled to one month’s notice of termination or salary in lieu. Paragraph 2 sets the tone for the events that led to Claimant’s termination. It states:

“We are a new company in the Nigerian terrain, that resumed operations in May 2018. Prior to that, a recruitment process was carried out in the absence of the Managing Director, yet at his directive. However, on arrival of our MD into the country, he did not feel that the recruitment process was professionally done.”

A new recruitment exercise was undertaken and the Claimant, in his words, was informed orally that his services were no longer required. Throughout the trial, the Defendants did not impugn the letter of appointment and are bound by its terms. It is clear, therefore, that the exercise of the right of termination is conditioned by either notice of termination or payment of salary in lieu of notice. The law is settled that where a contract of employment provides conditions for termination, those conditions must be strictly observed failing which the termination will be wrongful. SeeFiicharles Organ & 14Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2016] 8 ACELR 35 at 52, where Muhammad, JSC, held:

“Again it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.”See also P. C. Mike Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 60

This is so notwithstanding exhibit DW2. The unchallenged evidence before me is that the Claimant’s employment was terminated without service of the requisite one month’s notice or payment of one month’s salary in lieu of notice. Consequently, I find and hold that the termination of Claimant’s employment is in breach of his contract of employment and thus wrongful.

  1. This now leads me to a consideration of the reliefs sought in this suit. Relief one is for a declaration that the event of 14th June 2018 by which the 2nd Defendant orally requested the Claimant to stop work on the ground that his services were no longer needed does not amount to termination of Claimant’s employment. The evidence of the Claimant has been reproduced above. The basis of this claim is clause 7 of the letter of appointment which provides for service of one month’s notice or payment of one month’s salary in lieu of notice. A declaratory relief is a discretionary relief and for the discretion of the Court to be exercised judicially and judiciously, it must be backed up by concrete evidence. That is to say, a Claimant who seeks a declarationmust establish his entitlement to the relief. Evidence which supports a legal right must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Nwagu v. Fadipe [2012] LPELR-7966[CA] at pages 16-17.

The law is settled that in a master and servant relationship, a termination of employment that is at variance with the terms of employment still takes effect in bringing the employment to an end. See Wilbros Nig. Ltd. & Anor. v. Macaulay [2009] LPELR-8507[CA] at page 37. It is equally the law that a declaration that the employer-employee relationship subsists after it has been terminated, albeit wrongfully, can rarely be made because the Court cannot impose a willing employee on an unwilling employer. See Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC] at page 27.For this reason, I find and hold that this relief has not been proved.

  1. Relief two seeks a declaration that being a contract of employment embodied in a written document, only a written determination of the contract is lawful and effective. While it is the law that an employer must comply strictly with the terms under which the employee is hired before he can be fired, it remains true that where the employer, in breach of those terms terminates the contract of the employee, such termination is unlawful but it is not ineffective. The relationship of employer and employee comes to an end immediately, but the employer will be liable for unlawful termination of the services of the employee. See Fiicharles Organ & 14Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [supra]. The employee’s remedy is in damages. For this reason, relief two has equally not been proved.

  1. The third relief seeksa declaration that the Claimant remains a bonafideemployee of the 1st Defendant and entitled to his monthly salary and other allowances until his employment is properly determined. This claim presupposes that the Claimant is still in the employment of the 1st Defendant. I said earlier that where the employer,in breach of contract, terminates the appointment of the employee, the relationship of employer and employee comes to an end immediately. The employee’s remedy is only in damages for wrongful termination. See Okwoche v. Nigeria Airways Ltd. [2002] LPELR-7133[CA] at page 7. It is equally trite law that the Court will not direct payment of salaries to an employee for days he has not worked. See Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] 3 NWLR [pt.80] 25 at 55 – 56 and Federal Capital Development Authority & Ors. v. Dr. Charles Nzelu & Anor. [2014] 5 NWLR [pt. 1401] 565 at 586.Even the Bible enjoins that he who does not work should not eat. This claim therefore fails.

  1. Relief four is for payment of the sum of N1, 000, 000.00 [one million naira] only being arrears of his salary from the month of June 2018 to the month of September 2018 at the rate ofN250, 000.00 [two hundred and fifty thousand naira] only per month.There is unchallenged evidence that the Claimant’s employment was terminated on 14th June 2018 even though he claimed that, in spite of the notice of termination, he continued to work until he was denied access to the 1st Defendant’s premises at the end of June 2018. To this extent, the Claimant is entitled to his salary for the month of June 2018.It is the law that the Claimant is only entitled to what he has claimed and proved. See the case of C. G. G. [Nig.] Limited v. Augustine & Ors. [2010] LPELR-8592[CA] at pages 13-14. It is equally settled that this Court is imbued with power to grant the Claimant less than he claimed if the evidence proves a sum less than what he has claimed. See the case of Uko v. The Liquidator, Utuk Construction and Marketing Company Limited in Liquidation & Ors. [2011] LPELR-9120[CA] at page 11. From the evidence before me, I find as proved the Claimant’s claim for outstanding salaryfor the month of June 2018 in the sum of N250, 000.

  1. Relief fiveis for payment of the Claimant’s monthly salary of N250, 000.00 [two hundred and fifty thousand naira] only from the month of October 2018 until judgment is delivered in this suit. This claim is dependent on the success of reliefs one to three above which sought various declarations. There must be a declaration of right in favour of the Claimant before an order can be made for payment of salaries from October 2018 until judgment is delivered.No such declaration was made in favour of the Claimant and once the principal relief sought is refused, no order incidental to the principal relief can be granted. See Benjamin Ukelere v. First Bank of Nig Plc [2011] LPELR-3869[CA] at page 29.This relief presupposes that the Claimant is still an employee of the 1st Defendant. I have held above that the employment relationship has come to an end and accordingly, the Claimant is not entitled to salaries from October 2018 until judgment is delivered.

 

The alternative relief is for payment of Claimant’s monthly salary of N250, 000.00 [two hundred and fifty thousand naira] only from the month of June 2018 until Claimant’s appointment is duly determined by the 1st Defendant in accordance with his terms of employment. I adopt the reasoning and conclusion in the principal relief and hold that the alternative relief has not been proved.

  1. Relief 6seeks general damagesin the sum of N5, 000, 000.00 [five million naira]. Where there is a wrong, there must be a remedy. See Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] at page 43. Having found that the Claimant’s employment was wrongfully terminated, it goes without saying that there must be a remedy for this wrong.General damages are within the discretion of the Court to grant and are losses which flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Dauda v. Lagos Building Investment Co. Ltd. & 3Ors. [2010] LPELR-4024[CA] at pages19-20.However, the law is settled that in employer-employee relationship, the measure of damages is the salary the employee would have earned if his employment had been terminated in accordance with the terms of the contract. See Festus Mrakpor & Anor. v. Police Service Commission [2016] LPELR-40489[CA] at page 9.The contract provides for one month’s notice of termination or salary in lieu of notice and that is what the Claimant is entitled to and no more.

  1. The last relief is for cost of this actionin the sum of N2, 000, 000 [twomillion naira]. It is trite law that costs follow the events in litigation and as such, a successful party is entitled to costs unless there are special reasons to deprive him of costs. See Jaiyeola v. Abioye [2002] LPELR-7169[CA] at page 28.Indisputably, award of cost is within the discretion of the Court which must be exercised judicially and judiciously. See Order 55 rules 1 and 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. The Court’s discretion is said to have been exercised judicially and judiciously where it is based only on the materials placed before the Court and not due to extraneous considerations. See Porbeni v. Darabella Nigeria Limited [2014] LPELR-24094[CA] at page 26.

 

Order 55 rule 5 provides that “in fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.” Thus, costs fall into two broad categories namely: necessary expenses in the proceedings made by a party and cost in terms of the litigant’s time and effort in coming to Court. The former category includes filing fees and Solicitors’ fees and is akin to special damages which must be specially pleaded and strictly proved. They are easily ascertainable by producing receipts and fee notes. That is why Order 55 rule 5 classifies it as ‘expenses’. The latter category is for the litigant’s time and effort in coming to Court. Under this category the Court usually takes the circumstances of the case into account including the number of appearances of the litigant and his counsel in Court. See generally Lonestar Drilling Nigeria Ltd. v. New Genesis Executive Security Ltd. [2011] LPELR-4437[CA] at pages 11-12.

 

In all cases, costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out of pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] at page 43and Union Bank of Nigeria Ltd. v. Nwaokolo [1995] 6 NWLR [pt.400] 127 at 152.

Some factors to be considered in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] at pages 34-35. From the records of this Court, the Claimant has been in Court four times and spent N26, 610 on filing fees. In the circumstance, cost of N50, 000 is awarded in favour of the Claimant against the Defendants.

 

  1. On the whole, the Claimant’s claim succeeds in part. Reliefs 1, 2, 3 and 5 fail and are hereby dismissed. Reliefs 4, 6 and 7 are granted in part.

Accordingly, judgment is entered in favour of the Claimant against the Defendants as follows:

  1. It is hereby declared that the termination of the Claimant’s employment orally on 14th June 2018 is wrongful but not ineffectual.

  1. The Defendants shall pay to the Claimant the sum of N250, 000 [two hundred and fifty thousand naira] being hissalary for the month of June 2018.

  1. General damages are awarded in favour of the Claimant against the Defendants in the sum of N250, 000 [two hundred and fifty thousand naira]being one month’s salary in lieu of notice.

  1. Cost of N50, 000 is awarded in favour of the Claimant against the Defendants.

  1. The monetary award shall be paid within 30 days from the date of this judgment, failing which it shall attract interest at the rate of 10% per annum until the entire judgment sum is fully liquidated.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

18/11/19

admin

Website:

Related Story