IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.
DATE: 17/7/2019 SUIT NO. NICN/YEN/443/2016
BETWEEN:
MR. IHEANYI OBIRI CLAIMANT
AND
PORT- HARCOURT ELECTRICITY DEFENDANT
DISTRIBUTION COMPANY
LIMITED
REPRESENTATION:
I. E. Nwaokeke for the Claimant.
Emeka Njoku for the Defendant.
JUDGMENT:
The Claimant filed this suit via a Complaint and other accompanying processes in line with the provisions of the National Industrial Court Rules 2007 (As Amended) on 29th of November 2016 against the defendant asking for the following reliefs:
“1. That the termination of appointment with the Defendants on the 28th day of September 2016 is wrongful, unlawful, illegal and unconstitutional hence null and void and of no effect.
2. Order of this Honourable Court directing the Defendant to immediately reinstate the Claimant to the proper status and position due him as a management staff.
3. Order of this Honourable Court restraining the Defendant from unlawfully and illegally interfering and/or tampering with the Claimant’s employment with the Defendant.
4. A declaration that Claimant is entitled to salaries, allowances and benefits due him from the 28th day of September 2016 till the final determination of this action and the total sum of money equivalent to the Central Bank of Nigeria interest rate chargeable upon the judgment sum until full and final payment is made thereof.
5. A declaration that the publication made by the Defendant in the name and photographs of the Claimant is defamatory and injurious to the Claimant and that Claimant is entitled to the sum of One Hundred Million (N100,000,000) for damages.”
The Defendant filed a conditional memorandum of appearance, Statement of Defence and other accompanying processes on 15th of March 2017 vide a motion on notice filed on 26th of October 2017.The said processes were deemed as properly filed and served on the 9th of March 2018.
Upon exchange and close of pleadings, the matter proceeded to trial on the 24th of May 2018 where the Claimant (Mr. Iheanyi Obiri) testified for himself as CW1 and Upon the close of the case of the Claimant, the Defendant opened its defence on 8th October 2018 where Mr. Etini Akpabio, the Employee Relationship Officer in the Human Management Capital Development Office of the Defendant testified as DW1 on behalf of the Defendant.
Final written addresses were ordered upon the close of the case of the defence.
CASE OF THE CLAIMANT
The Claimant (Mr. Iheanyi Obiri) testified for himself as CW1 and adopted his written statement on oath and tendered Exhibits.
Claimant stated that he was a staff of National Electric Power Authority (NEPA) and subsequently absorbed as a staff of the Power Holding Company of Nigeria (PHCN) until 2013 when he was officially disengaged and his entitlements paid to him by the Power Holding Company of Nigeria. Claimant stated that the Defendant who took over electricity distribution from PHCN employed him as a contract staff between the year 2013 and 2014 and thereafter confirmed him as full staff on 30th December 2014 placing him on management cadre with a grade B and B1 salary structure. The Claimant posits that in the course of his duty as a service manager, he performed creditably to the satisfaction of the Defendant wherein recommendations for good work and commitment were given to him by the Defendant and he was redeployed to several service centres.
The Claimant stated that when he was redeployed by the Defendant to Elele Alimini distribution centre, he discovered issuance of fake G-Pay receipt to the Defendant’s customers by one Mrs. Munkpege Hekabari who was the service centre marketer and that the G-Pay receipts were unofficially printed in the name of PHEDC which she used in collecting monies from customers without remitting same to the company. Claimant stated that when he reported to the Defendant, nothing was done rather he was accused of appropriating N1,000,000.00 from Akpabu community, an allegation Claimant denies as he was not a marketer and could not receive monies on behalf of the Defendant. Claimant testified that the charge was concocted to punish him for exposing the fraudulent activities of the fake G-Pay receipt and was surprised when he was invited to appear before a panel constituted by the Defendant on 8th September 2016 headed by one Mr. Godwin Ororovei but nothing was found to incriminate him and no query was issued to him as he was asked to go and continue with his work. However, on 28th September 2016, the Defendant served him a termination letter and thereafter caused a publication using his photograph warning the general public not to deal with him as a staff of PHEDC.
The Claimant also stated that he was wrongfully disengaged from service by the Defendant and coupled with the embarrassment and smear of his personality he engaged the services of his lawyer who wrote to the Defendant and thereafter instituted this suit.
The Claimant tendered exhibit C1 (Regularization and Confirmation of Appointment Letter by PHCN dated 1/9/2009), exhibit C2 (Official Letter of disengagement from service by PHCN dated 21/10/2013), exhibit C3 (Confirmation of Appointment Letter dated 30/12/2014), exhibit C4 (Claimant’s Identity Card), exhibit C5 (Report of fake G-Pay Receipt dated 31/8/2016), exhibit C6 (Termination of Appointment letter dated 28/9/2016), exhibit C7 (Publication made with the photograph of the Claimant), exhibit C8 (Solicitor’s letter dated 8/10/2016), exhibit C9 (Redeployment letter dated 29/10/2015), exhibit C10 (Redeployment letter dated 1/12/2014) and exhibit C11 (Redeployment letter dated 13/5/2015). Meanwhile Exhibit C12 which is the offer of provisional employment with Port Harcourt Electricity Distribution Company (PHEDC) was tendered through the Claimant during cross examination. CW1 was cross examined by the defence and discharged.
CASE OF THE DEFENDANT:
Mr Etini Akpabio adopted his statement on oath and testified as (DW1). He denied the claims as put up by the Claimant and stated that the Claimant was employed by the Defendant sometime in 2014 or there about. DW1 stated that the Defendant has the unfettered powers, right to employ, redeploy and/or dismiss any of its employees in accordance with the terms and conditions of the contract. DW1 also stated that the Defendant did not receive any report of misconduct or misappropriation of funds against Mrs. Dumkpege Nekebari from the Claimant or any of its staff and that complaints are usually received through the Business Manager of every business unit of the defendant and the complaints are stamped boldly with the official stamp of the Defendant.
DW1 testified that sometime in September 2016, an allegation of gross misconduct and misappropriation of funds were made against the Claimant and a panel was set up to investigate same and fair hearing was given to him to defend himself. However, the Claimant’s appointment was terminated in terms with his letter of appointment and not based on any panel report and by his letter of termination dated 28th September 2016, he was paid one month salary in lieu of notice and other entitlements. According to DW1, after termination of the Claimant’s appointment, Defendant made a publication of disclaimer to its esteemed customers against the Claimant and other staff whose appointments were also terminated on the same date and pasted same on its Elele Alimini business office notice board not on any social media platform and the action is one of the Defendant’s management practice of which the Claimant is aware of. That the said publication of disclaimer is a qualified privilege.
DW1 tendered exhibits D1 and D2 (Letter dated 28/3/2017 and a hearing notice dated 14/2/2017 respectively) and was thereafter cross examined by the Claimant’s counsel and discharged.
DEFENDANT’S SUBMISSION
Counsel to the defendant filed his final written address on 29th October 2018 and adopted same on 2nd May 2019 wherein he raised two issues for determination thus;
“(a) Whether Defendant having complied with the terms and conditions of contract of employment as contained in the contract agreement can be said to have acted wrongly, unlawful, illegal and unconditional.” (sic)
(b) Whether a disclaimer publication as contained in exhibit C7 without much ado amounts to a defamatory publication as alleged by the Claimant.”
Counsel submits on issue 1 above that it is settled principle of law that by virtue of sections 131, 132, 133 and 136 of the Evidence Act, Laws of Federation of Nigeria 2011, the burden of proving the existence or non-existence of any fact in any civil suit lies against whom the judgment of the court would be given if no evidence were produced from the other party. In other words, the burden of proof rests on the party who asserts. Counsel cited cases of G & T Investment Ltd. V. Witt & Bush Ltd(2011) 8 NWLR (pt.1250) 50 SC, Mohammed V. DHL Int’l Ltd. (2001) FWLR (pt.38) 1312 and Intercontinental Bank Ltd. V. Brifana Ltd. (2013) 3 NWLR (pt.1324) 538. Counsel posits that he who alleges must prove as in the instant case the burden of proving the alleged facts rests on the Claimant, unless and until he does same the burden will not shift.
Counsel submits that the Claimant was employed by a letter dated 31/5/2014 which is in evidence as exhibit C12 which was tendered through the Claimant on 24th May 2018 by the defence counsel during cross examination and the Claimant admitted in his oral evidence that the said exhibit C12 is the only contract agreement between him and the Defendant.
Defendant via counsel submits that the Claimant’s employment with the defendant was lawfully terminated on 28th September 2016 in accordance with exhibit C12 and has also been paid one month salary in lieu of notice and other terminal benefits. These facts were pleaded in paragraphs 7, 8 and 11 of the Statement of defence and the Claimant did not join issues on these facts thus admitting same as once such provisions of an agreement have been complied with by parties to the agreement, parties cannot look elsewhere for determination of such contract. Counsel cited the case of Ajayi V. Texaco (Nig.) Ltd (1987) 3 NWLR (pt.62) 577 para F.G.
Counsel submits that in the case of Adams V. L.S.D.P.C. (2000) 5 NWLR (pt.656) 291, the court listed the following elements that must be pleaded and proved by a Claimant in an action for wrongful termination;
a. That he is employed by the Defendant.
b. The terms and conditions of his appointment including duration and termination.
c. Who can appoint and remove him.
d. The circumstances under which his appointment can be terminated.
e. That his employment can only be terminated by a person or authority other than the Defendant or the person who signed and issued his termination letter.
Thus the Claimant in this suit has failed to plead and prove all the above elements as required by law.
Counsel submits that in Olanrewaju V. Afribank Plc 92001) FWLR (pt.72) 2008, the court held that It is the terms set out in the contract of employment as binding on the parties which determine the procedure to be adopted in terminating the employment. And once it is shown that the parties acted in accordance with those terms, the contract would be deemed lawfully terminated and in such circumstances the issue of malice or natural justice does not apply.
Counsel to the Defendant argues that the termination of the Claimant’s appointment was not based on any investigation report but on the contract agreement (exhibit C12) that existed between them and not based on malice or any other motive as alleged by the Claimant.
Counsel argues also that in a contract of employment, motive for termination is not a prerequisite as the master can determine the employment for good or bad reason or for no reason at all provided he acted within the confines of the express or implied agreement between the parties. Counsel relied on exhibits C12 (Letter of Appointment dated 31/05/2014) and C6 (Termination of Appointment dated 28/09/2016), and the cases of Adams V. LSDPC(supra), Calabar Cement Co. Ltd. V. Daniel (1991) 4 NWLR (pt.180) 750 and Kano V. CBN (1999) 6 NWLR (pt. 607) 390.
Counsel submits relying on the cases of University of Jos V. Dr. MC Ikegwuoha (2013) 9 NWLR (pt.1360) 478 at 497- 498, Okoro V. Dakolo (2006) 14 NWLR (pt.1000) 401 and Akande V. Adisa (2012) 15 NWLR (pt.1324) 538 that a party seeking to be awarded any relief from the court must not only plead but prove by credible and convincing evidence as the court is not a father Christmas that goes around granting reliefs not asked for as lack of evidence to support such averments shows that the reliefs are deemed abandoned. Therefore, the court should resolve issue one in favour of the Defendant.
On issue 2, Counsel submits that the courts have held in several cases including that of Complete Communication Ltd. & Anor V. Miss Bianca Onoh (1998) 5 NWLR (pt.549) 197 that for a successful action of defamation, Plaintiff must show that the word published or complained of is calculated to lower the person in the estimation of a right thinking man or cause him to be shunned or avoided or exposed him to hatred, contempt or ridicule or convey an imputation on him, disparaging or injurious to him in his office, profession, calling, trade or business.
Counsel submits that in Saludeen V. Mammam (2000) 14 NWLR
(pt.686) 63, the court held thus;
Where a defendant pleaded or relied on the Defence of fair comment or qualified privilege in his statement
of defence, the Plaintiff must file a reply setting out facts or elements that show express malice, but where he fails then the Plaintiff cannot fall back upon the plea of
express malice to defeat the defence of fair comment or qualified privilege since that plea could not have been
raised as an issue on the parties pleadings.
Counsel also cited case of Ojeme V. Momodu (1994) 1 NWLR (pt.323) 685 and submits that the Claimant did not file a reply to the Defendant’s defence of qualified privilege and also did not show by his oral evidence or pleading how the publication affected his personality as a photograph and name in a publication of disclaimer without much ado does not amount to defamation per se.
Counsel urged the court to also resolve issue 2 in favour of the Defendant and since the Claimant has failed to prove his case with credible, direct and concrete evidence, the action should be dismissed with cost as same is irritating and vexatious to the Defendant.
CLAIMANT’S SUBMISSION
The final written address on behalf of the Claimant was filed by counsel on the 17th of January 2019 and was adopted on the 2nd of May 2019 wherein a lone issue for determination was raised thus;
“Whether the Claimant is entitled to the reliefs sought in this action.”
Counsel to the claimant answered the above question in the affirmative. Counsel submits that the Claimant aligns himself with the submissions of the Defendant as regards sections 131, 132, 133 and 136 of the Evidence Act 2011 Laws of the Federation of Nigeria and states that in all assertions of the Claimant, the proof thereof has been established and urges the court to hold same in his favour.
Counsel states that it is the assertion of the Claimant that he was wrongfully disengaged by the Defendant of which the said act was illegal and unconstitutional hence null and void.
Counsel submits that questions were put to the Claimant regarding his employment with the defendant during cross examination but that none of the facts of the Claimant was contradicted or successfully challenged. Counsel placed reliance on the deposition of CW1 dated 29th November 2016 and questions and response of CW1 on 24th May 2018. Thus where evidence is not challenged or successfully contradicted, the court is urged to admit such unchallenged evidence as true.
Counsel is of the view that even though exhibit C12 was admitted during cross examination, exhibit C12 is a mere offer of temporary employment and the use of the word :provisional” therein means “temporary” which is different from confirmation of appointment thus paragraph 7 of the document cannot guide the contractual relationship between the Claimant and the Defendant.
Counsel submits that assuming without conceding that what guides or purports to be a contractual agreement is contained in paragraph 7 of exhibit C12 dated 31st May 2014, the subsequent letter of confirmation dated 30th December 2014 (exhibit C3) wherein contractual agreement was also reached, no mention or reference to the mode of disengagement of Claimant was made.
Counsel submits therefore, that the latter document supersedes the earlier one and that paragraph 7 of the earlier document does not support the present position of this case as it states the termination of a temporary appointment and not the substantive one. Since it is the Labour Act and the Workmen Compensation Act that should govern the latter employment thus the termination of the Claimant’s appointment was illegal and unconstitutional. Counsel cited the case of Shitta Bay V. F.P.S.C (1981) 12 NSCC 19 in support thereof.
Counsel submits that it is true that an unwilling employer will not be compelled to keep an employee he no longer wants, he must however adopt the laid down rules in terminating the contract otherwise it will be deemed to be wrongful and unlawful. Counsel relied on section 11(1) of the Labour Act. which stipulates that;
either party to a contact of employment may terminate the contract on the expiration of notice given him to the other party of his intention to do so.
Counsel submits that the Claimant was never given any form of statutory notice in writing and the defendant never tendered any document showing that they complied with this requirement. The Defendant never gave any notice of termination to the Claimant and did not pay the one month salary in lieu of notice as DW1 during cross examination could not show any bank record of such payment to the Claimant. The burden therefore shifts to the Defendant to show compliance with this statutory provision. Counsel referred the court to section 136 of the Evidence Act 2011.
Counsel submits that in Western Developed Corporation V. Jimoh Abimbola (1972) ANLK (pt.2433), it was held that damages are awarded to restore the Plaintiff as far as money can, to the position he would have been if there was no breach.
Thus where an employer wrongfully dismissed an employee, he has put an end to his contract of service hence the employee is entitled to damages for breach of contract. Counsel cited the case of Savannah Bank V. Fakokum (2002) 1 NWLR (pt.749) 544 in support.
In conclusion Counsel urged the court to hold that the termination of the Claimant’s employment was wrongful and unlawful and the Claimant has proved his case to be entitled to the reliefs sought in the interest of justice.
DEFENDANT’S REPLY TO THE CLAIMANT’S ADDRESS:
Defendant’s Counsel submits that the arguments by the Claimant that the confirmation letter is a new/fresh contract agreement between the parties is misconceived as the confirmation was to complement adherence to the covenants contained in the contract agreement thus the confirmation letter is not on its own a contract agreement between the parties to this suit.
Counsel cited section 11(6) of the Labour Act 1971 LFN.
Counsel cited the case of Erawodaka V. UNTHMB (1993) 2 NWLR (pt. 277) 570, and submitted hat it is trite law that acceptance of salary in lieu of notice by an employee from his employer is tantamount to acceptance of the termination of appointment. Therefore, it is the duty of the Claimant to prove to the court that he did not receive any terminal benefit and/or entitlements in lieu of notice.
Counsel urged the court to dismiss the suit.
COURT’S DECISION
Having carefully considered all the evidence adduced during trial including the exhibits tendered and perused the arguments and submissions of learned counsel to the parties, the sole issue to be determined by the court is;
Whether by the evidence before the court the Claimant has proved his claims to be entitled to judgment.
The crux of the Claimant’s case is that his appointment with the Defendant was unlawfully terminated hence he sought for a declaration to be reinstated to the position due to him and arrears of salary from 28th September 2016 when his appointment was terminated to date.
It is elementary law in civil cases, that he who asserts bears the burden of proving that which he asserts and the success of a party seeking for declaratory relief depends on the strength of his case not on the weakness of the defence. See Oscar V Isah (2014) LPELR – 23620(CA), Faleye V Dada (2016) LPELR 40297-(SC).
The burden that the Claimant bears here is to found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. See Idoniboye – Obu NNPC (2003) LPELR – 1426(SC), Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC.
Exhibit C3 is the confirmation of appointment letter of the claimant while Exhibit C12 gives either party the right to terminate the contract by giving one month notice or salary in lieu of notice.
It follows from the above, that the Claimant’s employment with the Defendant is a contract of service terminable by either party by giving to the other at least one(1) months’ notice in writing or by payment to the other of one (1) month’s basic salary in lieu of notice.
The general law is that the courts will not grant specific performance of a contract of service and therefore a declaration that a contract of service still subsists will rarely be made. For that declaration to be granted, special circumstances will be required and such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship or a special legal status such as a tenure of public officers is attached to the contract of employment. See Idoniboye-Obu V N.N.P.C (2003) LPELR – 1426 (SC). Festus Mrakpor & Anor. V Police Service Commission(2018)15 ACELR 20 CA
It is also the law that, termination even if wrongful, bring to an end the contract of service owing to the confidential relationship between master and servant which cannot continue in the absence of mutuality. See Ifeta V S. P. D. C. Nig Ltd (2006) LPELR-1436(SC).
It is a long settled principle of law that an employee cannot be foisted on an unwilling employer and an employer can terminate employee’s appointment at any time and for no reason but such termination must be done in compliance with the terms and conditions of the contract of employment and where the termination is wrongful, the employee is entitled to damages for wrongful termination and not reinstatement. See the Supreme Court case of Obanye V. U.B.A. (2018) 281 LRCN 148 at 151-152 and 158. See also the case of Garuba V. K.I.C. Ltd. (2005) 5 NWLR (pt. 917) 160.
In the light of this, claimant’s reliefs Nos. 1, 2, 3 and 4 are not grantable and are therefore refused. This Court cannot declare that the termination of the claimant’s appointment is wrongful, unlawful, illegal, unconstitional and null and void in a contract of private employment.
See Patrick Ziideeh V Rivers State Civil Service Comm. (2007) NWLR (Pt. 1022), 554.
I must state here that the fact that the Claimant was a staff of the Defendant is not in issue. However claimant’s counsel contended that exhibit C3 (Confirmation of Appointment Letter dated 30/12/2014) either supercedes exhibit C12 which is the offer of provisional employment with the Defendant or that Exhibit C12 cannot regulate the contract of employment relationship between both parties. The above contention is unsustainable.
Exhibit C3 is a verification of the fact that exhibit C12 which embodies the terms of the contract of service exists between the parties thus both exhibits must be read together and not in isolation. It is settled that in the interpretation of a contract involving several documents, the documents must be read together. See C.B.N.V Igwillo (2007) LPELR – 835(SC).
Paragraph 7 of exhibit C12 states as follows ;
“Termination of appointment
During the period of your probation, either you or the company may terminate this contract by giving to the other a week’s notice in writing. Thereafter, either you or the company may terminate this contract by giving to the other at least one(1) months’ notice in writing or by payment to the other of one (1) month’s basic salary in lieu of notice.”
The Defendant in its evidence alluded to the fact that it complied with the provision of exhibit C12 stated above in terminating the Claimant’s appointment. Defendant claimed that they paid one month salary in lieu of notice to the Claimant as stated in exhibit C6 but the Claimant did not deny this fact by way of a reply but only denied that during cross-examination and there is no other evidence before the court showing actual payment. In the case of Chukwumah V. Shell Petroleum (1993) LPELR-864, (1993) 4 NWLR (pt.289)512, the Supreme Court held that:
…where a contract of service gives a party a right of termination of the contract by either party giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice.
That is to say, there must be evidence of actual payment of the one month’s salary in lieu of notice. I must admit that there is nothing before me to show that the one month’s salary in lieu of notice stated in exhibit C6 was paid to the Claimant. In the case of Adeniran V. NEPA (2002) 14 NWLR (pt.786) 30 at 48, the court held that where the termination of an employee is not done in accordance with his conditions of service, he is entitled to a payment in lieu of notice especially where reinstatement cannot be ordered. See also the cases of Isievwore V. NEPA (2002) 13 NWLR (pt. 784) 417 at 424, Nigerian Produce Marketing Board V. A. O. Adewunmi (1972) All NLR 870 and SPDC V. Olarewaju (2008)12 SC (pt.111) 27 and New Nigeria Newspapers Limited V. Mr. Felix Atoyebi (2013) NGSC 2.
The Claimant also seeks for a declaration of this court that the publication made by the defendant in the name and photograph of the Claimant is defamatory and injurious and he is entitled to damages of N100,000,000.00 (One Hundred Million Naira). The Claimant tendered exhibit C7 which is the publication as proof thereof.
To succeed in an allegation of defamation, the plaintiff (Claimant) must establish the following ingredients as held in the case of Guardian Newspaper Ltd. V. Ajeh (2005) 12 NWR (pt.938) 200;
The publication of the offensive word.
That the words refer to the Claimant.
That they are defamatory.
That the words are published to a 3rd party.
Lack of accuracy in the words.
That there are no justifiable legal grounds for the publication of the words.
See also Orji Asaa V. Frank Ojah (2015) LPELR- 24278 and Emmanuel BEkee & Ors. V. Friday Ebom Bekee (2012) LPERL-21270.
The Defendant on the other hand denies defaming the Claimant and raised a defence of qualified privilege. Therefore, it becomes incumbent on the Claimant to lead evidence to disprove that it was malicious and injurious to his person. See the case of Adeyemo & Anor. V. Akintola (2003) LPELR-10905 wherein the Supreme Court held that the “the onus of proving that a loss is sustained or that damages are suffered lies on the Plaintiff”.
In the case of Akomolafe V. Guardian Press Ltd. (2004) 1 NWLR (pt. 853) 1 at 5 thus;
A privilege occasion is in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social or moral to make it to the person to whom it was made and the person to whom it was made has a corresponding interest or duty to receive it.
Where a defence of qualified privilege is put up, it practically means that public convenience or interest must be preferred to private convenience or interest in the dissemination of information which is of paramount interest and benefit to the public but the dissemination must be without malice.
In this suit before me, the Claimant was a staff of the Defendant serving as a manager at the Elele Alimini distribution centre before the termination of his employment by the Defendant on 28th September 2016 and it is in the interest of the public who are customers of the Defendant to be notified of the status of the Claimant. The Claimant pleaded that this publication (exhibit C7) was posted on face book but never showed proof of it neither did he call the friend whom he claimed told him he saw it on face book to testify thereof. However the Defendant in its evidence denied putting the said publication of disclaimer on the internet but that same was pasted only on the notice board of the Defendant. See paragraph 8 of the statement on oath of DW1. Upon the plea of the defence of qualified privilege, the Claimant has to call evidence to show that the said publication was false and malicious.
Exhibit C7 reads;
“Disclaimer
The general public is hereby warned that the above named persons are no longer employees of Port Harcourt Electricity Distribution Company Plc.
They are not authorized to represent the company in any way.
Anyone who does business with them does so at his/her own risk.
Thank you
Signed: Management.”
In my considered view, the above words without more do not constitute defamation as the disclaimer shows the fact that the
Claimant is no longer an employee of the Defendant and he is no longer authorized to do business on behalf of the Defendant. This is a duty the Defendant owed its customers and not meant to demean the Claimant. However where the facts published are false, the defence of qualified privilege will no longer avail the Defendant. See the case of Duyile & Anor. V. Kelly Ogunbayo & Sons Ltd. (1988) 1 NWLR (pt.72) 601.
Consequently, I find and hold that the claimant’s claims fail however the Claimant is only entitled to one month salary thereof with the annual leave of 2016 both amounting to N102,963 (One Hundred & Two Thousand, Nine Hundred & Sixty- Three Naira) as stated in exhibit C6.
The claim against defamation made by the Claimant also fails and the entire case is accordingly dismissed.
Judgment is entered accordingly.
HON. JUSTICE S.H. DANJIDDA
(PRESIDING JUDGE)
