MR. LIONEL JOHN -VS- BOARD OF GOVERNORS, INTERNATIONAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 3^rd day of February, 2020 SUIT NO: NICN/PH/62/2019

BETWEEN

LIONEL JOHN————————————- CLAIMANT

AND

BOARD OF GOVERNORS,

INTERNATIONAL DAYCARE

NURSERY AND PRIMARY SCHOOL ———————— DEFENDANT

Representations:

I.S. Wenike or the Claimant.

I.E. Thompson for the Defendants.

Judgment.

This suit was commenced by way of a General Form of Complaint filed on the 7^th of May, 2019 along with an affidavit of verification, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial. The foregoing processes except for the list of witnesses and exhibits were amended on the 2^nd of December, 2019.

Arising from the Amended Statement of fact, the Claimant’s claims against the Defendant are:

(i) A DECLARATION that the purported verbal leave the school order on the 25th of February, 2019 by the Head Mistress of school — Mrs. Veronica Ogbogbo without more which led to the Claimant’s dismissal to the effect (that) the Claimant committed the wrongs of misconduct, insubordination, negligence of duty and disrespect to the school authority by not given(sic) the Claimant opportunity to see the evidence against him throughout the decision period of the Defendant and defend himself, offends the principles of natural justice and has gravely violated the Claimant’s fundamental right to fair hearing enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which resulted to the unfair/wrongful dismissal of the Claimant’s appointment.

(ii) A DECLARATION that the dismissal of the claimant’s appointment by the defendant on 8^th of April, 2019 in default of serving the one (1) month notice in writing is in breach of the terms of appointment dated5^th of May, 2005.

(iii) AN ORDER of court setting aside the Defendant’s wrongful letter of dismissal of the Claimant’s appointment, dated 8^th day of April, 2019, for breach of natural justice fair hearing and for being wrongful.

(iv) The total sum of N744,696.00 (Seven hundred and Forty Four Thousand, Six Hundred and Ninety Six Naira) only being and representing the Claimant’s accrued/unclaimed wages, entitlements and benefits for February, March and April, 2019 and representing the default to serve one (1) month prior written termination of appointment.

(v) The sum of N500,000.00 (Five Hundred Thousand Naira) only being cost of this action.

(vi) 10% post judgment interest until full and final liquidation of the judgment debt.

In reaction to the claims, the Defendant filed memorandum of appearance on the 30^th of May,2019 and filed along same statement of defence, list of witnesses, witness statement on oath, list of documents and copies of same.

Trial commenced in this suit on the 9^th of October, 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness for the Claimant as CW1 and he adopted his witness statements on oath marked as C1(a) and C1(b). Through the said CW1, 9 documents were tendered in evidence and admitted as exhibits C2 – C10. While Exhibits C8 and C10 were properly admitted in evidence, the rest of the Exhibits were admitted under protest.

Arising from the amended statement of facts and witness statements on oath, the case for the Claimant is that Pursuant to a letter dated 11^th April, 2005, he was employed by the Defendant as a gardener with an enclosed copy of memorandum and schedule of duties regarding the condition of service and that he put in vigor to his duties leading to increment in his salary till sometime in 2018 which was maintained till January, 2019. Claimant further averred that he was paid the sum of N23,100 instead of N26,700 as salary for February, 2019 while on the 25^th of February, 2019, the head mistress — Mrs. Veronica Ogbogbo verbally informed the claimant that the chairperson of the defendant — Mrs. Joy A. Lale instructed that the claimant leave the defendant’s premises and he did so with respect. Claimant averred further that he waited for 10 days before he enquired about his employment situation in writing and when there was no response from the Defendant he engaged the services of his lawyer to also write the Defendant before the Defendant formally served him a letter of dismissal which is in violation of Clause 13 of the Memorandum as to terms of appointment and also in violation of his right to fair hearing as guaranteed by the Constitution. He added that he was not paid salary for the month of March 2019, one month salary in lieu of notice for April, 2019, the percentage of salary increment and gratuity.

Upon cross examination of the Claimant as CW1, he stated that he was employed in February, 2005 as he got his letter of employment on 11/4/2005. He admitted that one year after his employment he was issued query while he denied being issued queries in September, 2006, in 2008, in 2009 and in 2015. He insisted he got only one query and was not told why he was arrested as he is not a troublesome employee. He denied calling the headmistress names. He also denied going to work drunk and neither did he exhibit violence, nor absent himself from work.

Upon the discharge of CW1, the claimant closed his case while the Defendant opened theirs. In doing so, the Defendant called one witnesses in person of Veronica Ogbogbo as DW1 who adopted her statement on oath which was marked as D1. Through the said DW1, 13 documents were tendered and admitted in evidence as Exhibits D2 – D14.

Arising from the statement of defence and witness statements on oath, the case of the Defendant is that the Claimant is the worst employee ever employed by the Defendant. The Defendant averred that the increment of salary of the Claimant was not as a result of the vigor put to work but a general increase in salary for all employees. The Defendant added that the Claimant was fond of dereliction of duty and after several queries to the Claimant, the Defendant started punishing the Claimant by deducting N1,000.00 from his salary each day he absents himself from work without permission and the Claimant will barely have half salary for the month due to number of days deducted. The Defendant averred further that the Claimant and another gardener by name Emmanuel Maduike shared the same office with the female cleaners of the School but due to the much needed privacy of the female cleaners, the School management decided to allocate an office in the new building constructed by the School to the female cleaners while the Claimant and the other gardener continue to occupy the old office. However, barely few days after the Head Mistress informed the Claimant and Emmanuel Maduike of management decision, precisely on Monday 25^th (sic) of February, 2019 the Claimant led his colleague gardener to chase out the female cleaners from the new office and move their own belongings into it thereby forcibly occupying the office against management decision. The Defendant added that upon being confronted by the Head Mistress, the Claimant started trouble and rendered the school insecure so much that the Chairperson of the school intervened but was unsuccessful and had to call the CSO of Uniport who directed his arrest while the Head Mistress ordered the Claimant not to come to school until further notice. The Defendant admitted that the Claimant wrote to the school and also got his lawyer to write to the school before he was issued with a letter of dismissal and that the condition for the dismissal as stated in the memorandum is at the discretion of the Board of Governors.

Upon cross examination, DW1 posited that she was employed in January, 2011 and did not know the Claimant before her employment. She posited that she does not know if the school is registered and she was given a letter of employment. She admitted knowing one Emmanuel Madueke who was employed in 2017. She posited that the Claimant goes to his sister’s house all the time instead of being at the school and added that that was why he was queried. She stated that the Claimant is not educated but she does not know if the Claimant has different handwriting. DW1 insisted that other gardeners left the office but the Claimant refused and they had to call the Security to move him while adding that the deduction of Claimant’s salary by N1,000.00 was part of school rules and regulation.

Upon discharge of DW1, The Defendant closed their case and matter was adjourned for adoption of final addresses.

The Defendant filed their final written address on the 28^th of October, 2019 and arising from the said final address, counsel to the Defendant, I.E. Thompsom Esq. formulated two issues for determination to wit:

WHETHER THE DEFENDANT IS A JURISTIC PERSON AS TO CONFER JURISDICTION ON THIS COURTTO ADJUDICATE ON THIS SUIT.
WHETHER THE CLAIMANT HAS PROVED HIS CASE ON THEPREPONDERANCE OF EVIDENCE AS TO BE ENTITLED TO THE RELIEFS SOUGHT

In arguing issue one, counsel posited that it is copiously pleaded on record that the Claimant was employed by the University of Port-Harcourt Women Association whom through its Board of Governors administers International Day Care/Nursery School and that the Claimant is in no way deceived at any time material to his employment that he was not employed by the Defendant but rather the University of Port-Harcourt Women Association Board of Governors as owners of International Daycare Nursery/Primary School.

Counsel also referred to paragraph 1 of Exhibit C4 to contend that the Claimant arbitrarily decided to sue the Defendant which is not a juristic person and the Defendant not being a juristic person, counsel submitted that this court does not have jurisdiction to entertain this matter.

Counsel argued further that jurisdiction is the life wire of a court as a court will act in futility when it acts without jurisdiction. He cited the case of Dingoli v. Bara’u (2012) All FWLR (Pt.609) 1156@1166, paras. D-G and added that the only reasonable order this Court is to make in the circumstance of this case is to dismiss this suit for want of jurisdiction considering the stage of the matter or in the alternative, to strike-out this suit with substantial cost, for want of jurisdiction.

In arguing issue two, counsel argued that the Claimant upon tendering secondary evidence of private documents, is required by law to lay foundation as to the where about of the original documents which will enable him tender the secondary evidence and this duty the Claimant failed woefully to discharge.

Counsel also argued that under section 91 of the Evidence Act, 2011 the Claimant is required to issue to the Defendant a Notice to Produce the original document while the Defendant’s failure to comply will afford the Claimant the right to tender the secondary evidence but the Claimant also failed to comply with the provision.

Counsel also added that Exhibit C3 is unsigned and has no probative value and thereby urged the court to refuse the admissibility of Exhibits C2, C3, C4, C5, C6 and C8 and mark them rejected.

Counsel proceeded to argue that assuming without conceding that the Defendant is a juristic person and the documents passed the admissibility test, the Claimant and the Defendant are in a Master and Servant relationship stricto senso and the master is entitled to hire and fire the servant at his will especially when the servant’s employment is without statutory flavor and the servant is found wanting of gross misconduct.

Counsel added that the Claimant is proved to be a servant with complete disregard for his duty, rules and regulations of his employer and a menace to his employer as evidenced in exhibits D2-D11. Counsel contended that the Claimant carefully refused to plead his gross misconduct of 25^th of February, 2019 which led to his indefinite suspension from work in paragraph 9 of his witness deposition.

Counsel posited that a Master has authority to indefinitely suspend and subsequently dismiss his Servant without notice on proof of gross misconduct and without proffering any explanation. He cited the case of Eze v. Spring Bank Plc. (2012) All FWLR (Pt.609)107.SC. He submitted in addition that while under indefinite suspension, the Claimant is not entitled to wages, therefore, should not be paid wages that he did not work for. He cited the case of Michelin v. Alaribe (2010) All FWLR (Pt. 543) 1998 @2018, Para. G. and Longe v. First Bank of Nig. (2010) All FWLR (Pt.525) Sc 258@309-310. Paras. H-C.

With regards to issue of fair hearing, Counsel argued that the Head Mistress upon knowing that they have moved into the new office, approached both Claimant and Emmanuel Maduike and offered them an opportunity to explain why they took laws into their hand. Counsel added that the Claimant’s allegation of lack of fair hearing is not enough to entitle him judgment in this case and cited the case of Michelin v. Alaribe (2010) All FWLR (Pt. 543) 1998 @ 2012, paras. H-A.

With regards to claim for February salary, counsel argued that the Claimant was indefinitely suspended from work from 25^th of February, 2019 therefore was only entitled to salary equivalent to the days that he worked which was N23, 100.

With regards to claim for Salary for March, 2019 which was N26,700, counsel posited that the Claimant was under indefinite suspension therefore he is not entitled to wages he did not work for.

With regards to claim for salary in lieu of notice for April, 2019, counsel argued that the Claimant has not proved that he is entitled to one-month salary in lieu of notice. He added that Exhibit C4 is inadmissible in evidence as it is not properly tendered and unenforceable against the Defendant as it is not signed by the Defendant.

With regards to claim for gratuity of N672,840.00, counsel argued that the Claimant did not prove how he arrived at this figure. He added that the Claimant pleaded and testified that from April, 2005 when he was employed to December, 2018 i.e. 13 years and 10 months that the Claimant worked for the Defendant, his annual salary was N90,000.00 but it was only from January,2019 that he was paid N26,700.00.

Counsel posited that 15% of 90,000 = 13,500 per annum deduction as gratuity while 13,500 per annum X 14 years = 189,000.00. Hence, the claimant did not establish in evidence how he came by the N672,840 gratuity he is claiming from the Defendant.

Counsel further argued that there is no evidence before this court that shows that 5% of the Claimant’s salary was actually deducted annually to fund his gratuity as from all evidence and records available to this court, the entirety of the Claimant’s salary was paid to him monthly and annually. Therefore, the Claimant cannot be allowed to claim what he did not contribute to.

Counsel concluded that the claim for 1% increment of salary per annum for 14years is completely unfounded and even on the strongly challenged Exhibit C4, in paragraph 6, it is only recommended on satisfactory performance of duty and not as of right. He added that an employee of the Claimant’s standing can never be regarded as having performed his duties satisfactorily.

Counsel added that the Claimant failed to prove each of the different heads of claims he seeks before this court and urged the Court to dismiss same with substantial cost.

Reacting to the Defendant’s final address, the Claimant filed his final address on the 2^nd of December, 2019 wherein counsel to the Claimant, I.S. Wenike, Esq. formulated three issues for determination to wit:

WHETHER FROM THE PLEADINGS AND EVIDENCE ADDUCED BY PARTIES, THE CLAIMANT’S EXHIBITS TENDERED OUGHT TO BE ADMITTED TO ALLOW FOR SUBSTANTIAL JUSTICE.
WHETHER BY THE RULES OF THIS COURT THE DEFENDANT’S WRITTEN ADDRESS IS COMPETENT.
WHETHER THE ACT OF THE DEFENDANT ABRUPTLY DISMISSING THE CLAIMANT’S APPOINTMENT WITHOUT DUE PROCESS IS IN COMPLIANCE WITH THE TERM OF APPOINTMENT.

In arguing issue one, counsel argued that it is the position of the Claimant that the foundation for tendering the documents admitted under protest is to the effect that the originals of the documents sought to be tendered are with the Defendant as stipulated in Section 89 (a)(1) of the Evidence Act, 2011.

Counsel urged the court not to strictly apply section 91 of the Evidence Act as same will cause rigidity to the law against substantial justice. Counsel cited the case of GE Int’l Operations Ltd vs. Q-OiI & Gas Services (2015) INWLR (Part 1440) 244 @ 251, ratio 2 and urged the Court to invoke Section 12 (b) of the National Industrial Court of Nigeria Act in departing from the rule of evidence.

In arguing issue two, counsel contended that the Court should not indulge the non-compliance with Order 46 Rule 2 of the Rules of this Court which stipulates that a brief summary statement of the facts with reference to the exhibits tendered at the trial must be stated in a written address. Counsel contended that the exhibits the Defendant tendered at the trial were not referenced in her written address. Counsel cited the case of lfeanyichukwu Investment Ventures Ltd vs. Onyesom Community Bank Ltd (2015) 17 NWLR (Part 1487) 109, ratio 8.

In arguing issue three, counsel submitted that it is not in contention that the Defendant is a registered body under Part C of the Company and Allied Matters Act, 2004 as contained in her pleadings in paragraph 1 of the Defendants Statement of Defence. He added that it is the position of the law in the case of Olufoseye vs. Olorunfemi (1989)1 NWLR (Part 95) 26, ratio 16, that “an admitted fact is not a fact in issue. It is only where facts are in dispute that they are said to in issue”.

Counsel submitted further that it is also not in doubt that the Defendant admitted in her pleading in paragraph 21 of the statement of defence that the condition for dismissal are contained in the memorandum as to the terms of Appointment of the Claimant i.e., Exhibit C4.

Counsel argued thereon that when an employee complains that his employment has been wrongfully terminated, he has the onus: to place before the court terms of the contract of employment; and (b) to prove what manner the said terms where breached by the employee”. He cited the case of Ibama vs. S.P.D.C Ltd (2005) 17 NWLR (Part 954) 364 @ 367 ratio 1 and added that in the instant case Exhibit C4, the terms of the contract pleaded by the Defendant in clause 13, was not complied with by the Defendant.

Counsel also argued that the Defendant cannot dismiss the Claimant on account of that which has been waived or condoned. He cited the case of Ekunda vs. Uni. Ibadan (2000) 12 NWLR (Part 681) 220 CA.

Counsel submitted further that it is the law that where the terms of contract are plain, it should be given its ordinary meaning and placed reliance on the case of Lewis vs. UBA Plc (2016) 6 NWLR (Part’1508) 329 & 333 ratio 2.

With regards to whether the defendant observed the principles of fair hearing in dismissing the Claimant, counsel cited the case of Ogunsanya vs. State (2011) 12 NWLR (Part 1261) 401 @ 405 ratio 1 and 2 to contend that in the instant case, the Claimant was dismissed without being given any opportunity to be heard. More particularly when Exhibit C6, the Claimant’s letter and exhibit C8 the letter of his legal representative were sent to the Defendant.

Counsel argued that evidence that contradicts pleadings should be expunged while adding that in the claims of the Claimant, Schedule A explains schedule B in that by the upward review of his salary to N26,700 per month that transcend to N320,400, he will be entitled to gratuity of N672,840.00 i.e., 15% of the N320,400.00 = N48,060×14 = N672,840.00 as his claim, inclusive of salary shortfall of N3,600 which the Defendant claimed it deducted, unpaid salary for March at N26,700, salary in lieu of dismissal — 26,700 and salary increment N320,400 by 1% = 3,204×14 = N44,856.00 bringing his claim to N774,696.

With regards to cost of action, counsel posited that Claimant tendered exhibit C10 which was unchallenged and evidence that is unchallenged should be acted upon. He cited the case of CBN v. Okoye (2015) 14 NWLR (Part 1479) 231 @ 239 R 7.

Counsel concluded that the Claimant has proved his case and urged the Court to give judgment in favour of the Claimant with punitive cost.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the following issues are for determination by this court is to wit:

Whether the Claimant is a juristic person to confer jurisdiction on this court for the purpose of this suit.
Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.

Before resolving the foregoing issues, it is expedient to address the status of the exhibits admitted under protest. In this regard, Counsel to the Defendant objected to the admissibility of exhibits C2-C7 and C9 on ground that the said documents are photocopies and no proper foundation was laid in tendering them and that the Claimant did not issue notice to produce the originals of the documents.

Reacting to the objection, counsel to the Claimant contended that notice to produce was given to the Defendant in paragraph 11 of the Statement of fact. In addition, counsel urged the court to rely on section 12 of the National Industrial Court Act in refusing to strictly apply section 91 of the Evidence Act.

In view of the foregoing, I have taken a look at the exhibits in question. Exhibit C2 is a copy of the Claimant’s letter of appointment dated 11^th April, 2005 while exhibit C3 is a copy of the Claimant’s letter of salary review dated 11^th April,2005 and exhibit C4 is a copy of Memorandum as to the terms of appointment. In addition, exhibit C5 is a copy of a letter of salary increase dated 18^th May, 2005 while exhibit C6 is a letter of plea written by the Claimant and dated 7^th March, 2019 while Exhibit C7 is a printout of the Claimant’s statement of account with UBA. Lastly is exhibit C9 which is the dismissal letter issued to the Claimant dated 8^th April, 2019.

Upon examination of the foregoing documents, I find that Exhibits C7 and C9 are not photocopies, hence they are not caught up by the objection and argument of counsel to the Defendant. With regards to Exhibits C2-C6 however, I find that they are rightly photocopies and the notice to produce original stated in paragraph 11 of the Claimant’s statement of fact is only in respect of Exhibit C8 which indicates that notice to produce was not issued in respect of Exhibits C2-C6.

That notwithstanding, I reckon that the Claimant in the course of tendering the said documents in evidence laid foundation by stating that “all the originals are in custody of the school. I have only photocopies of some of the documents”.

The foregoing suffices in stating the whereabouts of the originals of Exhibits C2-C6 as required by section 89 of the Evidence Act which states the circumstance under which the secondary documents may be tendered. This is particularly in view of the fact that the Defendants have not denied the existence of the documents but merely contends that notice to produce was not given.

The contention of the Defendant in the instant case that notice to produce was not given is considered an undue technicality in attempt to prevent admissibility of the said documents and this court finds it expedient to exercise discretion in invoking section 12(2)(b) of the National Industrial Court Act which permits this court to depart from the Evidence Act in the interest of justice.

In view of the foregoing provision, the objection of counsel to the Defendant is overruled and the said Exhibits C2 – C6 are accordingly admitted in evidence.

I then turn to the resolution of issue one. The said issue is paramount in view of the fact that it touches on the jurisdiction of this court and it is without doubt that jurisdiction is the life wire of adjudication. In ARDO & ANOR v. NYAKO & ORS(2013) LPELR-20887(CA) the court held that:

“it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B – C and Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 76”.

It is also important to reckon that the determinants of whether a court will have jurisdiction is settled as the court in the case of L.M.B LTD v. PTF (2006) 5 NWLR (Pt. 974) Pg. 463 posited that:

“The determinants of jurisdiction of a court have for long been pronounced upon by the apex court. In the locus classicus case of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; the Supreme Court laid down the ingredients of jurisdiction which guide a court of law to consider whether it has jurisdiction on the case before it or not. These are, whether:

(a) the Court is properly constituted with respect to the number and qualification of its membership:

(b) the subject matter of the action is within its jurisdiction;

(d) any condition to the exercise of its jurisdiction has been fulfilled.

Any defect in proceedings would be fatal however well conducted, as the defect is intrinsic to the adjudication. See further UTIH V. ONOYIVWE (1991) 1 NWLR (Pt.166) 166; MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 NWLR (Pt.745) 295 at pp. 327 B-C and 355 A-D.” Per MUHAMMAD, J.C.A (Pp. 8-9, paras. F-D).

In view of the foregoing authorities, the ground upon which Counsel to the Defendant has casted doubt on the jurisdiction of this court is that he contends that the Defendant as sued by the Claimant is not a juristic entity. Counsel contended that it is on record that the Claimant was employed by University of Port Harcourt Women Association and not the Defendant who is not a juristic person.

Counsel did not state how the Defendant is not a juristic person but wants the court to, on the basis of the Defendant not being a juristic person, strike out this suit for want of jurisdiction.

Counsel to the Claimant reacted to the contention by arguing that it is not in contention that the Defendant is a registered body under Part C of Companies and Allied Matters Act 2004 and that same is admitted by the Defendants in paragraph 1 of the statement of Defence, therefore facts admitted need no proof.

In the light of the foregoing, I have taken a look at the description of the Defendant as stated by the Claimant in his statement of fact which reads:

2.The Defendant is a registered incorporation with its head office at Gladys Cookey Resources Centre, University of Port Harcourt, Choba, Rivers State.

3.The Claimant was employed by the Defendant vide the Defendant letter dated 11th April, 2005 as a gardener with an enclosed copy of memorandum and schedule of duties regarding the condition of service, dated 5th May, 2005 after a successful passing of fitness test for appointment. The said letters of appointment and memorandum/schedule of duties are hereby pleaded.

In reaction to the foregoing paragraphs, the Defendant in paragraph 1 of the statement of defence averred thus:

The Defendant admit the averment of fact in paragraphs 1, 2 & 3 of the Statement of fact only to the extent that until his dismissal he was employed as a gardener in the service of the Defendant.

In view of the foregoing averment, the Defendant’s admission of paragraph 2 and 3 of the statement of fact was made only to the extent that ‘until his dismissal, the Claimant was employed as a gardener in the service of the Defendant’.

In that extent, the Defendant has admitted that the Defendant employed the Claimant even though the fact that the Defendant is a registered incorporation has not been expressly admitted. I must however mention that the traverse in respect of the status of the Defendant is a pregnant traverse and which is not sufficient for the court to predicate a conclusion that the Defendant is not a juristic entity.

In view of the failure to establish how the Defendant is not a juristic person, I have taken a further look at the letter of appointment of the Claimant which bears a letterhead of “International Day Care/Nursery School”.

I have also considered paragraph 1 of the said letter which reads:

“I write on behalf of the Board of Governors of International Daycare/Nursery School in view of the interview you attended on the 11^th of March, 2005 and inform you that you have been appointed as a gardener”.

In view of the foregoing, the contention of the counsel to the Defendant is misplaced as it is not the University of Port Harcourt Women Association who offered the Claimant appointment but the Defendant. Nothing useful has been placed before this court to prove /substantiate the claims that the Defendant is not a juristic person as it is trite that he who asserts must prove.

It is considered view of this court that the contention of Counsel to the Defendant that the Defendant is not a juristic person is unsubstantiated and therefore lacks merit. The contention is accordingly discountenanced and this court validly assumes jurisdiction as there is nothing on the face of the proceeding to prevent the court from doing so.

Issue one is accordingly resolved in favour of the Claimant and against the Defendant.

Issue two on its part touches on the reliefs sought by the Claimant and two of the said reliefs are declaratory in nature as they urge the court to declare the dismissal of the Claimant from employment to be wrongful and in violation of the terms of appointment of the Claimant. For sake of clarity, the said reliefs read thus:

(i) A DECLARATION that the purported verbal leave the school order on the 25^th of February, 2019 by the Head Mistress of school — Mrs. Veronica Ogbogbo without more which led to the Claimant’s dismissal to the effect (that) the Claimant committed the wrongs of misconduct, insubordination, negligence of duty and disrespect to the school authority by not given(sic) the Claimant opportunity to see the evidence against him throughout the decision period of the Defendant and defend himself, offends the principles of natural justice and has gravely violated the Claimant’s fundamental right to fair hearing enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which resulted to the unfair/wrongful dismissal of the Claimant’s appointment.

(ii) A DECLARATION that the dismissal of the claimant’s appointment by the defendant on 8th of April, 2019 in default of serving the one (1) month notice in writing is in breach of the terms of appointment dated 5^th of May, 2005.

With regards to the fact that the foregoing reliefs are declaratory, I must state that the proof of same rests squarely on the Claimant and to be entitled to the reliefs, the Claimant must discharge the burden by presenting cogent and convincing evidence to establish that he is entitled to the said reliefs. In this regard, the court in the case of DIAMOND BANK PLC. V. YAHAYA & ANOR.(2011) LPELR-4036(CA) held that:

“The law is settled that the courts do not grant declaratory reliefs based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief sought. So where the plaintiff in his own evidence fails to prove his claim for a declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.” Per ONYEMENAM J.C.A. (P. 27, paras. B-D).

In the light of the foregoing, the law is settled on the burden placed on the Claimant with respect to his claim for the declaration of his dismissal from employment as wrongful or in violation of the terms of employment. In this regard, the court in the case of U.T.C. NIGERIA LTD. v. SAMUEL PETERS (2009) LPELR-8426(CA) held that:

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus- (i) To place before the trial court the terms of the contract of employment; (ii) To prove the manner in which the said terms were breached by the employer thereof. See GARUBA V. KIC LTD (2005) s aft e17) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D).

In an attempt to discharge the onus placed on the Claimant in the instant case, the Claimant tendered Exhibit C2 which is the letter of offer of appointment issued to him by the Defendant dated 11^th of April, 2005 and also Exhibit C4 which is the Memorandum of the terms of Appointment dated the 5^th of May, 2005.

The two documents together serves as the terms of the contract of employment regulating the Claimant’s employment as the said Memorandum (exhibit C4) was expressly referred to in the letter of offer of appointment in paragraph 4 and 5 which reads thus:

“4.Enclosed herewith is a copy of memorandum (exhibit C4) regarding the condition of service as approved by the Board of Governors of the DayCare/Nursery School.

5.If you accept the offer on the terms set out, you may please sign on the memorandum(exhibit C4) under acceptance on affixed twenty kobo stamp and send a photocopy to the board through me.” (Emphasis mine)

The foregoing paragraphs negates the argument of counsel to the Defendant that it is only the Claimant that signed Exhibit C4 as he is merely required to sign same and return to the Defendant.

More so, the signature of the Chairperson to the Defendant as impressed on the letter of offer of appointment which makes copious reference to the Memorandum i.e. Exhibit C4, suffices in giving effect to the content of the memorandum and to make same binding on the Defendant.

That said, it is clear that the Claimant has fulfilled the first limb of the onus placed on him by placing before this court, the terms of the contract of his employment.

The second limb of the onus placed on the Claimant is to establish convincingly how the terms of the contract of employment was breached to make his dismissal wrongful.

In an attempt to establish how the said terms were breached, Claimant posited that on the 25^th of February, 2019 the head mistress verbally informed him that the Chairperson directed that the Claimant should leave the Defendant’s premises and upon his leaving he waited for 10 days before writing the Defendant to enquire about the situation of his employment and followed up same with a letter from his lawyer before the Defendant eventually wrote him a letter of dismissal without complying with the terms of his employment in clause 13 of Exhibit C4 and that his dismissal was in breach of the rules of natural justice and his right to fair hearing.

The Claimant did not originally narrate the incident leading to the directive that he should leave the school, until the Defendant did so in their statement of Defence that the Claimant disobeyed a directive of the headmistress with regards to occupying a particular office meant for female staff which the Claimant was directed to vacate but refused to do so until he was arrested and taken to the police station.

Claimant tendered the letter he wrote to the school after he was asked to leave as exhibit C6 which is dated the 7^th of March, 2019 and titled ‘Plea to Enquire of my employment situation’. Claimant also tendered Exhibit C8 which is the follow up letter written by the Claimant’s lawyer when he was yet to be recalled by the Defendant. The said letter is dated 4^th April, 2019 while the letter of dismissal to the Claimant is dated the 8^th of April, 2019 and the Claimant tendered same as Exhibit C9.

The Defendant on their part contended that the Claimant had been an unruly employee from the moment of his employment and he always absents himself from work leading to his earning several queries. The Defendant through DW1 narrated the incident to leading to the directive to leave the Defendant’s premises as he constituted a threat to the school when he occupied an office not meant for him along with one Emmanuel Maduike. He was asked to leave the office but refused to do so until he was taken to the Police station.

The Defendant tendered exhibit D2, D4, D6 and D8 through DW1 which are queries issued to the Claimant and respectively dated 6/1/06, 18/1/06, 9/8/2008 and 14/10/2009. The Defendant also tendered the Claimant’s replies to the foregoing letters respectively as Exhibits D3 dated 9/1/06, D5 dated 19^th September, 2006, D7 dated 10^th July, 2008 and D9 dated 15/10/09.

In addition, Defendant tendered Exhibit D10 which is another reply to query of the Claimant dated 18/8/2015 before the Claimant was issued a warning letter dated 19^th August, 2015.

It is in view of the foregoing that this court shall consider whether or not the Defendant complied with the terms of Exhibit C4 which is the terms of the Claimant’s employment and whether or not the Claimant was accorded fair hearing.

With regards to the issue of compliance with the terms of the Claimant’s employment in dismissing the Claimant, Claimant contended that clause 13 of exhibit C4 which is the condition of service of the Claimant was not complied with. In this regard, I must state that the condition of service is the bedrock upon which the relationship of employer and employee must be founded. The court in the case of SEVEN-UP BOTTLING COMPANY PLC v. AJAYI(2007) LPELR-8765(CA)posited in this wise that:

“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service, the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.” Per SHOREMI, J.C.A (P. 25, paras. A-B)

That said, I have taken a look at the said clause 13 which the Claimant contended was not complied with and find that same reads thus:

“‘The Board of Governors shall not terminate your appointment without given(sic) you one month notice in writing of its intention to do so or having tendered payment of one month salary in lieu of notice.”

In view of the foregoing paragraph, counsel to the Defendant argued that the Claimant was dismissed from employment hence cannot be given one month notice nor payment in lieu of notice.

Rightly so, I have taken a look at exhibit C9 which is the letter of dismissal, it is apparent that the letter is headed ‘Dismissal’ and not ‘termination’. The body of the letter also clearly states thus:

“I have been directed to terminate your appointment with effect from the 25^th of February, 2019, as a result of your misconduct, insubordination, negligence of duty and disrespect to the school authority which you have exhibited since your appointment as a gardener and especially that of 22^nd of February 2019when you forcefully took over the office of the cleaners.

Your services is (sic) therefore no longer required.”

In view of the foregoing, it is clear that the Claimant’s employment was not terminated based on clause 13 as he was dismissed on ground of misconduct which is regulated by clause 14 of Exhibit C4.

The said Clause 14 reads thus:

“Termination of your appointment shall be at the discretion of the Board of Governors should you be convicted of a criminal offence or found to show gross misconduct.”

The foregoing paragraph clearly indicates that the Claimant’s employment was terminated based on being found to show misconduct as stated in the letter of dismissal in which case the termination is at the discretion of the Defendant.

Therefore, the contention that claimant was not given one month notice or paid one month salary in lieu of notice is misplaced as this court finds that the dismissal of the Claimant was predicated on clause 14 rather than Clause 13 of Exhibit C4.

With regards to the issue of failure to comply with rule of natural justice and fair hearing, I must state that ideally, an employer is generally required to comply with the rules of natural justice and fair hearing in the exercise of summary dismissal of an employee. This is the position of the law as stated in the case of UBA PLC v. ORANUBA(2013) LPELR-20692(CA) where the court held that:

“It is settled that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded to him to justify or explain same – see Yusuf v. Union Bank (1996) 6 NWLR (Pt.457) 632, where Wali, JSC stated: ” – – Before an Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime”. Per AUGIE, J.C.A. (Pp. 51-52, paras. C-D).

In the instant case, counsel to the Claimant argued that the Claimant was not afforded the opportunity of being heard as he was asked to leave the school and while waiting to be recalled, he was dismissed. Counsel to the Defendant on the other hand posited that the Claimant was afforded opportunity to be heard as the Head Mistress approached both Claimant and Emmanuel Maduike to explain why they took laws into their hands.

In view of the foregoing contention, it is clear that both counsel to the Claimant and the Defendant have limited their arguments over the Claimant’s dismissal to the incident of 22^nd of February, 2019 whereas the letter of dismissal predicates the grounds of dismissal to be beyond that.

The letter refers to several acts which the Claimant has exhibited since his appointment before making the incidence of 22^nd February, 2019 an especial reason for the dismissal. The Defendant tendered several queries issued to and replies obtained from the Claimant spanning between 2006 to 2015 and stated in the letter of dismissal that the termination is as a result of misconduct and other traits which he had exhibited from the time of his appointment. Therefore, it is not an isolated case that led to the Claimant’s dismissal.

I must state that I reckon the argument of counsel to the Claimant that the Defendant had absorbed the conducts for which the Claimant was earlier queried. However, I find no strength in such argument as the Defendant has discretion in dismissing the Claimant based on misconduct. The Defendant may decide to waive or do otherwise and from exhibit C9, the letter of dismissal, it is clear that the misconducts were not waived.

In addition, I must state that Exhibit C4, does not expressly lay down a procedure which the Defendant must comply with before summarily dismissing the Claimant hence the exercise of discretion in the dismissal in case of misconduct. The meaning of gross misconduct was stated in the case of ANAJA v. UBA PLC (2010) LPELR-3769(CA) where the court held that:

“Gross misconduct has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer.” Per YAHAYA, J.C.A (P. 25, paras. C-D).

The several misconducts committed by the Claimant leading to his dismissal were queried by the Defendant as established in Exhibits D2, D4, D6 and D8 and thereby affording the Claimant the opportunity to state his side of events as he did in exhibits D3, D5,D7, D9, D10 and his warning coming in Exhibit D11. Even though there was no specific query for the Claimant’s misconduct of the 22^nd of February, 2019 the narratives of the Defendant as stated in paragraph 8 of the statement of Defence and 18 of DW1 statement on oath showed that the Claimant was orally queried in respect of the specific incidence as DW1 stated that when the matter of the Claimant’s occupation was made to her, she went to the office and met with the Claimant to query what he was doing there but the Claimant returned same with shouting, daring to be removed and cause of panic across the school.

All that is required for fair hearing is for the Claimant to be heard and he had that opportunity which the evidence before the court shows that the Claimant misplaced.

I must state that I am not oblivious of the averments made in the Claimant’s reply to the statement of Defence over the incidence of the 22^nd of February, 2019 however, I consider same to be an afterthought in view of the fact that the Claimant denied knowing why he was asked to leave the School premises and also in view of the fact that during cross examination, Claimant denied knowing why he was taken to the police station.

Consequent upon the foregoing, the Claimant has failed to establish the second limb of the onus placed on him as to how the Defendant breached the terms of his employment. For want of clarity, the termination of the Claimant’s employment is at the discretion of the Defendant where same is on the grounds of misconduct as stated in Clause 14 of Exhibit C4. Therefore there is no particular procedure to be complied with and the right to fair hearing of the Claimant was not breached in view of the series of letters of queries issued to the Claimant over his conduct at work and his several replies.

In view of the foregoing finding, there is no merit in the declarations sought in reliefs 1 and 2 and they are accordingly refused.

Relief 3 is for “AN ORDER of court setting aside the Defendant’s wrongful letter of dismissal of the Claimant’s appointment, dated 8^th day of April, 2019, for breach of natural justice fair hearing and for being wrongful”.

The grant or refusal of the said relief 3 is dependent on the success or failure of the declarations sought in reliefs 1 and 2. In view of the apparent fact that the said declaratory reliefs have failed, it is axiomatic that the request for an order setting aside that letter of dismissal shall also fail. Relief 3 is accordingly refused.

Relief 4 is for the total sum of N744,696.00 (Seven hundred and Forty Four Thousand, Six Hundred and Ninety Six Naira) only being and representing the Claimant’s accrued/unclaimed wages, entitlements and benefits for February, March and April, 2019 and representing the default to serve one (1) month prior written termination of appointment.

The computation of the sum of N744,696.00 is stated by the Claimant in schedule B to paragraph 19 of the Amended statement of fact and I find it apposite to consider them seriatim.

With regards to the claim of N3,600 as salary shortfall for the month of February, 2019, I reckon that the Claimant tendered Exhibit C7 which is his bank statement to establish that his salary paid for the month of January, 2019 was N26,700.

However, the said exhibit C7 does not establish the payment of N23,100 in the month of February, 2019 and also does not cover transactions for the month of March 2019 or any month farther so as to establish the fact that it was indeed the sum of N23,100 that was paid to the Claimant as salary for the month of February, 2019.

In addition, the Defendant denied owing the Claimant any sum as arrears of salary. Although the Defendant posited that it started to deduct the sum of N1,000 from the Claimant’s salaries for days of absence, the Defendant did not expressly admit the deduction of the sum of N3,600 for the month of February, 2019. Upon such general denial, it is incumbent on the Claimant to establish the deduction of the sum of N3,600 from the February 2019 salary. The claim for the deduction of N3,600 for the month of February, 2019 consequently remains unproved.

With regards to the claim for salary for the month of March, 2019, it is a fact common to both parties that the Claimant did not work for the month of March 2019, the period for which he was waiting for the Defendant’s position on his employment status. In view of the foregoing common fact, I must state that the Claimant did not earn the salary for the month of March, 2019 having not worked for the Defendant during the said period.

According to the section 91 of the Labour Act, the meaning of the word ‘wages’ which is a synonym for salary was defined thus:

“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered (emphasis mine).

The implication of the foregoing provision on the instant case is that the salary for the month of March, 2019 claimed by the Claimant ought to be for a work done. The Claimant in view of his misconduct was verbally suspended from work before he was dismissed and he has not placed before the court any term which provides for him to earn salaries for the period of his suspension.

Consequently, the claim for salary for the month of March, 2019 fails and same is accordingly refused.

With regards to claim for salary in lieu of notice for the month of April, 2019, I must state that in view of the resolution of reliefs 1 and 2 and having found that the Claimant is not entitled to notice for his dismissal from employment on the ground of misconduct, he cannot lay claim to payment in lieu of notice for the month of April, 2019 and the claim for same is accordingly refused.

With regards to claim for gratuity, put at the sum of N672,840, I will predicate the consideration of the claim on the position of the law which clearly states the implication of summarily dismissing an employee. The court in the case of MR A. S. JOMBO (J.P.) V. PETROLEUM EQUALISATION FUND (MANAGEMENT BOARD) & ORS(2005) 14 NWLR (Pt.945)443 held that:

“Termination” or “Dismissal” of an employee by the employer translates into bringing the employment to an end. Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring an employment to an end is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.” Per Oguntade, J.S.C

Notwithstanding the foregoing position of the law, Claimant computed his gratuity for the years he worked for the Defendant i.e. from 2005 to 2019. Claimant claimed that he is entitled to 15% of the sum of N320,400 multiplied by 14 which is the number of years he worked.

Although, the Claimant is generally not entitled to gratuity as he was dismissed from employment, however, I reckon that according to clause 9 of exhibit C4, Claimant was to contribute 5% of the gratuity while the Defendant makes up the remaining 10%.

The said Clause 9 reads:

“You shall not be entitled to pension benefits but 15% of your annual salary shall be kept aside by management as gratuity. Management shall contribute 10% while employees shall contribute 5% of annual salary.”

In view of the foregoing, the Claimant did not provide sufficient particulars on year to year basis to ascertain how the said gratuity came to the sum ofN672,840. This is particularly in view of the fact that clause 9 stipulates the contribution on an annual basis and according to the Claimant in paragraph 6 of the statement of fact and witness statement on oath, his salary was increased from N99,600 to N312,000 sometime in 2018 while his current salary is put at N320,400.

For sake of clarity, the gratuity computed by the Claimant is on the estimation of 15% of his last salary which he is no longer entitled to based on his dismissal from the service of the Defendant. However considering the fact that 5% of the said gratuity accrued from the Claimant’s salary which was kept aside, the Defendant is hereby directed to compute on a year to year basis, the 5% of the annual salary of the Claimant based on his years of service and pay same to the Claimant within 30 days of his Judgement.

With regards to claim for salary increase of 1% computed based on the annual salary of N320,400 multiplied by 14 years, I find that the claim for same emanated from Clause 6 of Exhibit C4 which states that:

“On satisfactory performance of duties, a yearly increment of 1% of annual salary is recommended.”

The words of the foregoing provision is crystal clear that the said 1% is a recommendation and predicated on satisfactory performance. The Claimant has not established that the said 1% was on each year earned and approved for him. The claim for salary increase cannot be predicated on mere conditional recommendation and same accordingly fails.

Having addressed all the heads of claim which makes up the sum of N744,696.00 and finding that the Claimant is only entitled to a portion to be computed as his 5% contributed gratuity. I come to the irresistible conclusion that relief 4 sought by the Claimant fails to a large extent and same is accordingly refused in that extent of its failure save for the directive made discretionally by this court.

Relief 5 is for the sum of N500,000.00 (Five Hundred Thousand Naira) only being cost of this action. With regards to cost, I am not unmindful of Exhibit C10 which is the receipt issued to the Claimant by his lawyer in the sum of N250,000.

That notwithstanding, I must posit clearly that cost is awarded at the discretion of the court and in usual cases, awarded to the successful party in a suit. In EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) the Court held that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).

In view of the foregoing authority vis-à-vis the resolutions reached with regards to reliefs sought, it is evidently clear that the Claimant is not the successful party and consequently is not deserving of the discretion of the court in the award of cost and same is accordingly refused.

Relief 6 is for 10% post judgment interest which is dependent on the award of payment of any monies claimed. In the instance, the award of payment of money, made is in respect of the 5% contributory gratuity deemed to have been made by the Claimant consequently, there is no basis upon which relief 6 is to be granted and same is accordingly refused.

Having considered all the reliefs sought, there is no gainsaying that relief two is resolved against the Claimant and in favour of the Defendant.

In the final analysis, the case of the Claimant lacks merit in their entirety and same is accordingly dismissed in its entirety. Save the discretionally order made by the court.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE