Mr. Okafor Grant Endurance – VS- C&1 Leasing PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 6^TH DAY OF FEBRUARY, 2019 SUIT NO: NICN/YEN/130/2015

BETWEEN:

OKAFOR GREAT ENDURANCE ————————– CLAIMANT

AND

C & I LEASING PLC ———————– DEFENDANT

REPRESENTATION:

D. Wariboko for the Claimant
Ndubuisi with N. Nsemo for the Defendant

JUDGMENT

By a Complaint dated and filed on 6^th November, 2015 together with a Statement of Facts dated 4^th November, 2015 and filed on 6^th November, 2015, the Claimant commenced this suit against the Defendant claiming the following reliefs:

A declaration that the purported letter of Termination of appointment on the 24^th June, 2015 terminating the Claimant’s employment is null and void.

An Order of court directing the Defendant to pay to the Claimant the sum of N30,000 (Thirty Thousand Naira) per month commencing from the month of June, 2015 till judgment is given in this case and at the same sum of N30,000 per month till judgment sum is liquidated, being the basic salary per month of the Claimant.

An Order of court directing the Defendant to pay to the Claimant all the allowances entitled to, by the Claimant such as transport, housing, lunch, utilities, free accident bonus, traveling and over time allowances amounting to the sum of N58,316.03K per month from the month of June,2015 till judgment is delivered in this case and at the same N58,316.03K per month until the judgment sum is liquidated.

An Order of court directing the Defendant to pay to the Claimant N20,000,000 (Twenty Million Naira) as damages for the unlawful termination of the Claimant appointment.

Upon service of the Originating Processes on the Defendant, the Defendant filed Memorandum of Appearance, Statement of Defence and other accompanying processes all dated and filed on 5^th April, 2016, but deemed to have been properly filed and served on 11^th April, 2016.

Upon receipt of the defendant’s processes, the Claimant filed a Reply to the Statement of Defence dated 12^th October, 2016, filed on 13^th October, 2016, but deemed to have been properly filed and served on 14^th February, 2018.

The Defendant again filed a process titled, ‘Rejoinder to the Reply to Statement of Defence’ dated and filed on 5^th March, 2018, but deemed to have been properly filed and served on the 7^th March, 2018. The court equally granted leave to the Defendant to call one Babatunde Oluwakemi as an additional witness in this suit.

The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW. He adopted his witness deposition on oath made on 6^th November, 2015, together with the Further Deposition on Oath made on 13^th October, 2016. The witness then tendered 2 documents which were admitted and marked as exhibits CW1A –B and CW2. The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel. The Claimant then closed his case, and an opportunity was given to the Defendant to open its Defence.

The Defendant opened its defence on the 17^th of May, 2018, by calling its first witness Babatunde Oluwakemi (a Human Resource Executive in the Defendant) who testified as DW1. The witness adopted her witness deposition on oath made on 5^th March, 2018, was cross-examined by the Claimant’s counsel after which she was re-examined by the learned counsel to the Defendant.

On the 20^th of June, 2018, the Defendant called its 2^nd witness one Udensi Ifeanyichukwu, a staff of the Defendant who testified as DW2. The witness adopted his witness deposition on oath made on 5^th April, 2016, after which he was cross-examined by the claimant’s counsel without being re-examined. The Defendant then closed its case on 20^th of June, 2018, after which the suit was adjourned for adoption of Final Written Addresses.

When the matter came up for hearing on the 29^th of November, 2018, the Defendant adopted its Final Written Address dated and filed on 26^th July, 2018, but deemed to have been properly filed and served on 23^rd of October, 2018.

The Claimant did not file any Final Written Address in this suit but the learned Claimant’s counsel I. D. Wariboko Esq. informed the court that they did not intend to file any Final Written Address and that they were leaving the matter to the discretion of the court.

With the adoption of the Defendant’s Final Written Address, the suit was adjourned for judgment.

THE CASE OF THE CLAIMANT:

It is the case of the Claimant that, he was employed by the Defendant on 8^th April, 2014, and attached to one Mr. Edike Onyemechi of G. E. Company as his personal and official driver.

That due to his diligence and the good working relationship with his employer, co-staff and customers, his probationary appointment was confirmed by the Defendant, as he was not at any time issued any query or found wanting in the course of his employment.

The Claimant alleged that on the 21^st of June, 2015, when he closed from work and on his way home Mr Edike Onyemechi called and directed him to hand over the car keys to his wife, and without hesitation he complied with the instructions and handed over the car keys to the wife of Mr. Edike Onyemechi.

According to the Claimant, to his surprise when he resumed his duties the next day at Mr. Edike Onyemechi’s residence, he was denied access to the car keys by Mr. Edike Onyemechi’s wife. That he then called his supervisor Mr. Ifeanyi and informed him of the action taken by Mr Edike and the wife. He was then instructed to stay put until a formal complaint/report was received by the Defendant from Mr. Edike Onyemechi.

That when there was no official report or complaint to the Defendant by Mr. Edike from 21^st to 23^rd June, 2015, on 24^th June, 2015, he reported the matter officially to the Defendant’s Headquarters in Port Harcourt.

That to his dismay Mr. Ifeanyi informed him that Mr. Edike Onyemechi had visited the Defendant’s office and informed the Defendant orally that he was no longer interested in the Claimant’s services, and he was directed to sign a letter of termination of appointment from one Miss Jessica which he refused to sign.

That he had never been issued any query, warning or found guilty of any act of misconduct; and the Defendant neither gave him two weeks’ notice nor paid two weeks basic salary in lieu of notice as stated in the Condition of Service. That after the termination of his appointment, the defendant has refused to pay the allowances accruable to him such as accident free bonus, transport, housing, lunch, utilities, traveling and fixed overtime till date.

That since the termination of his appointment his family has been having difficulty surviving due to unemployment which has caused untold hardship to him and his family.

The Claimant therefore urged the court to grant the reliefs being sought in this suit.

DEFENDANT’S CASE:

According the Defendant, after the Claimant’s employment by the Defendant he was attached to Mr. Edike Onyemechi who was a client of the Defendant as part of the Claimant’s duty. That on the 22^nd of June, 2015, officers of the Defendant received calls from Edike Onyemechi who complained about the unruly conduct of the Claimant towards him and his family.

That when the Claimant informed the Defendant that he was having some misunderstanding with the family of the Defendant’s client Mr. Edike Onyemechi, the Defendant directed the Claimant to be reporting to duty in the Defendant’s office and that the Defendant would look into the matter to ascertain the problem between him and the Defendant’s client. That instead of reporting for duty as directed, the Claimant absconded from duty since the last week of June, 2015 and has since not been seen. That since the Claimant was not employed by Mr. Edike Onyemechi he has no right to stop reporting to duty at the Defendant’s offices on the excuse that he had a problem with the Defendant’s client, Mr. Edike Onyemechi.

According to the Defendant, the Claimant has no direct contractual relationship with Mr. Edike Onyemechi as he was only attached to the said Mr. Edike Onyemechi by the Defendant, and only the Defendant has the competence to disengage or otherwise retain the Claimant.

That there was never a time Mr. Ifeanyi informed the Claimant that Mr. Edike Onyemechi visited the Defendant’s office to inform the Defendant that he could no longer continue with the Claimant, and that, the Claimant was not directed to sign any letter of termination of appointment from Miss Jessica or from any other person as alleged by the Claimant. To the Defendant it did not at anytime issue any letter of termination of appointment to the Claimant, but that the Claimant for reasons best known to him absconded from duty since June, 2015 after his alleged quarrel with Mr. Edike Onyemechi.

That since the Defendant did not issue any letter of termination of appointment to the Claimant, the Defendant is not under any duty to pay two weeks basic salary in lieu of notice to the Claimant as the Claimant absconded since June, 2015 and disappeared into the thin air, and has not been to work from June, 2015 to date. That the Claimant is also not entitled to any allowances whatsoever whether by way of accident free bonus, transport, housing, lunch utilities, traveling and fixed overtime. He can therefore not claim payment for work not done. That it is the Claimant who is liable to refund the Defendant two weeks basic salary for absconding from duty and unilaterally exiting the Defendant’s employment without notice.

That the Defendant is not responsible for the upkeep of the Claimant’s family and did not contribute to any alleged hardship suffered by the Claimant’s family.

CLAIMANT’S REPLY TO STATEMENT OF DEFENCE:

It is instructive to note that, the Claimant filed a Reply to Statement of Defence together with a Further Witness Deposition on Oath on 13^th October, 2016, wherein the Claimant further pleaded that he performed his duties creditably well as a result of which the Defendant issued a confirmation letter to him as guarantor to enable him borrow money from First Bank Plc.

That he did not abscond from duty as alleged by the Defendant, and that it was not Mr. Edike Onyemechi that called the Defendant, rather he was the one that reported/informed the Defendant’s supervisor Mr. Ifeanyi about the act of Mr. Edike Onyemechi. That when he reported to the Defendant’s office on 24^th June, 2015, Mr. Ifeanyi without any prior notice, collected his staff identity card from him, and issued him a letter of termination of appointment. That he was neither given any notice nor payment of two weeks basic salary in lieu of notice.

DEFENDANT’S REJOINDER:

The Defendant filed a process tagged, ‘Rejoinder to the Reply to Statement of Defence’ wherein the Defendant stated further that, it did not issue any letter of termination of appointment to the Claimant and the letter dated June, 24, 2015 and purported to be signed for Emmanuel Timothy, the Human Resources Manager did not show the name of the person who purportedly signed it.

DEFENDANT’S SUBMISSIONS:

The Defendant identified three (3) issues for the determination of the court, to wit:

Whether the Claimant has proved his case by credible evidence to be entitled to his claim.

Whether the Claimant can rely on written statement on oath not bearing his signatories.

Whether the written statement on oath dated 6^th November 2015 and the further written statement on oath dated the 13^th day of October, 2016 constitute evidence by the Claimant.

In arguing issues 1 and 2 jointly, the Defendant submitted that the Claimant has not led credible evidence for him to be entitled to the reliefs being sought from the court.

According to the Defendant, the Claimant’s witness statements on oath dated 6^th November, 2015 and 13^th October, 2016 were not signed by the Claimant and can therefore not constitute evidence in this suit. That the Claimant stated during cross-examination that, his signature is the one on exhibit CW1A-B, hence the court cannot rely on the two witness depositions on oath as evidence of the Claimant since he denied signing same. That the implication of this is that the Claimant did not lead evidence in this suit. See Omisore V. Aregbesola (2015) All FWLR (Pt. 813) 1673 at 1773 Para. H, where the apex court held that, “The law is well settled that a court will act only on a written deposition of a witness which is his evidence-in-chief, if it is found to be credible and reliable upon proper evaluation.”

According to the Defendant, assuming without conceding that the written statement can be reckoned with, the Claimant still failed to establish his case as the burden is on him to prove his case. Section 131(1) Evidence Act, 2011.

That while in one breath the Claimant stated under cross-examination that he refused to collect and sign for the alleged letter of termination (exhibit CW2) and left it with Jessica because he felt that Edike Onyemechi was not saying the truth, in another breath the Claimant while trying to lay foundation as to the whereabouts of the original of the alleged termination letter informed the court on 7^th March, 2018, that his house rent expired and after packing in May, 2016, he searched everywhere to get the original and he could not find it.

That the foregoing shows that the CW (Claimant) is not a witness of truth. That the law is settled that the court cannot pick and choose between two conflicting evidence of a witness. That since the contradictions in the Claimant’s evidence before the court are fundamental to the justice of the case, the Claimant’s evidence should be rejected and jettisoned by the court. That a party cannot approbate and reprobate at the same time. See Solomon Michael V. That State (2014) All FWLR (Pt. 752) 1760 at 1773 Paras B- D; Sankey V. Onayifeke (2014) All FWLR (Pt. 749) 1034 at 1083 para. H, and Osemeikhian V. Edionwele (2016) All FWLR (Pt. 838) 870 at 893 Para. E.

The Defendant submitted further that, the contradictions in the Claimant’s testimony before the court has strengthened the defence of the Defendant that it did not issue any letter of termination to the Claimant, and that it was not the maker of exhibit CW2. That a perusal of exhibit CW2 will show that someone signed for Emmanuel Timothy the Human Resources Manager of the Defendant without indicating the name. That it is the law that a signature without name is invalid referring to Ewukoya V. Buari (2017) All FWLR (Pt 881) 1114 Paras D – E where it was held as follows:

“The word ‘signature’ is defined in Black’s Law Dictionary 7^th edition at page 1387 thus: ‘A person’s name or mark written by the person or at the person’s direction. Any name, mark or writing used with the intention of authenticating a document.’ The importance of stating the name of the signatory cannot be overemphasized. Signature is only identifiable by the name of the signatory…”

That the evidence of DW1 and DW2 to the effect that the Claimant absconded from duty since June, 2015, and the Defendant did not terminate the Claimant’s employment is the truth as compared to the Claimant’s testimony.

It was further argued that, the Claimant’s relief ‘a’ is for declaration, and the law is that a party seeking for declaratory relief must succeed on the strength of his case, and not on the weakness of the case of the Defendant. INEC V. Atuma (2013) All FWLR (Pt. 697) 619 at 636-367 paras. G – C, and Olasupo V. Morakinyo (2014) All FWLR (Pt. 726) 593 at 612 Paras E – F.

The Defendant posited further that, even if it is taken that the Defendant terminated the Claimant’s appointment, the Claimant has still failed to prove that the termination of his appointment was wrongful because a Claimant who seeks a declaration that the termination of his appointment was wrongful must prove that:

That he is an employee of the Defendant.
The terms and conditions of his employment.
The way and manner, and by whom he can be removed.

That in this case the Claimant did not plead and prove the terms of his employment and the way and manner by which he can be removed. See Nigerian Gas Co. Ltd V. Dudusola (2005) 18 NWLR (Pt. 957) 292.

That in a master/servant relationship, dismissal of an employee cannot be declared null and void and of no effect, and such employment cannot be said to be subsisting as the court cannot impose a servant on an unwilling master. That the remedies of the employee in the circumstance is in damages where the court finds the termination or dismissal to be wrongful. See Osianya V. Afribank (Nig) Plc (2007) 6 NWLR (Pt. 1031) 565.

Regarding reliefs ‘b’ and ‘c’ it was submitted that since the Claimant admitted in his pleadings and his evidence during both examination-in-chief and cross-examination that he stopped going to work in June, 2015, he is not entitled to be paid for periods he did not work for the Defendant. That where the retirement or dismissal of an employee is found to be wrongful, the employee will only be entitled to damages which would be what was due to him during the period of notice. See Osianya V. AFribank (Nig) Plc (supra), and NITEL Plc V. Akwa (2006) 2 NWLR (Pt. 964) 391.

That assuming without conceding that the Claimant proved wrongful dismissal, his claim will still fail because he did not plead and prove his monthly salary or two weeks’ salary and allowances. That a court cannot make a finding on facts not pleaded and proved. See Samchase (Nig) Ltd V. Gidado (2014) All FWLR (Pt. 760) 1302 at 1322 Para F.

On the Claimant’s relief ‘d’ it was equally argued that, the Claimant did not lead any evidence or prove his case to be entitled to damages as damages recoverable in master/servant relationship are only in lieu of the amount outstanding. That from the uncontroverted and unchallenged evidence of the Defendant, the Claimant absconded from duty, and was not unlawfully terminated. The Defendant therefore urges the court to dismiss the Claimant’s case for lacking in merit and hold in favour of the Defendant.

COURT’S DECISION

The Claimant’s counsel did not file final written address in this suit despite several opportunities given to the Claimant to do so. Notwithstanding this failure on the part of the Claimant, the court shall go ahead and evaluate the evidence adduced by both the Claimant and the Defendant with a view to determining the matter on the merit. See Usman Salihi Lawan V. The State (2014) LPELR – 23647(CA).

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel in this suit, I shall determine this matter on the basis of issue one (1) distilled for determination by the Defendant, to wit: Whether the Claimant has proved his case by credible evidence to be entitled to his claim. This is because this issue would seem to have covered the remaining two (2) issues (issues 2 and 3) formulated by the learned Defendant’s counsel.

The fact of the Claimant’s employment with the defendant is not in doubt. The Claimant pleaded facts relating to his employment by the Defendant in paragraphs 1, 3 and 4 of the Statement of Facts. These were affirmed by the Defendant in paragraphs 2, 3 and 4 of the Statement of Defence. Exhibit CW1A-B tendered by the Claimant goes to further buttress the fact that he was indeed employed by the Defendant on 8^th April, 2014.

The case of the Claimant is simply that after his employment by the defendant on 8^th April, 2014, he was deployed to work with one Mr. Edike Onyemechi of G. E. Company as his personal and official driver. That in the course of working with the said Mr. Edike Onyemechi, on 21^st June, 2015, he was called and instructed to hand over the car keys to Mr. Edike Onyemechi’s wife which he did without hesitation.

That the next day when he reported to Mr. Edike Onyemechi’s house, he was denied access to the car keys by Mr. Edike’s wife. That subsequently the Defendant terminated his appointment even when he had never been issued any query or warning or found guilty of any misconduct, and instructed him to sign the letter of termination of appointment which he refused to sign.

The case of the Defendant on the other hand is simply that, after the incident the Claimant had with Mr. Edike Onyemechi whom he was posted to work with, the Claimant stayed away from the Defendant’s office since the last week of June, 2015, and refused to come to work even when he was instructed to be reporting at the Defendant’s office pending when the matter would be looked into.

In a claim for wrongful termination of employment as the instant one, the burden is on the Claimant to establish before the court not just the terms/conditions of his employment but also how those terms were violated by the Defendant in relieving him of his employment. In the case of U.T.C. Nigeria Ltd V. Samuel Peters (2009) LPELR-8426(CA), the appellate court held thus on what must be proved in an action for wrongful termination of employment:

“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 also Nigerian Telecommunications Plc (NITEL) & Anor V. Mr. L. D. Akwa (2006) 2 NWLR (Pt. 964) 391.

In a bid to place before the court the terms and conditions of his employment, the Claimant tendered exhibit CW1A-B which is the contract of employment evidencing the claimant’s employment by the Defendant.

To better appreciate the terms of the Claimant’s employment, it is important to reproduce Exhibit CW1A-B for the purpose of clarity:

April 8, 2014

Okafor Great Endurance

Mr. Onyemeachi Edike Compound

Agbeta, Onne

Port Harcourt, Rivers State.

Dear Great,

EMPLOYMENT OFFER

We are pleased to inform you that with effect from April 8, 2014, you have been offered employment based on the following terms and conditions:

Position: Driver

Remuneration Breakdown Per Month


*Basic Salary*	*30,000.00*
*Transport*	*9,600.00*
*Housing*	*11,000.00*
*Lunch*	*9,500.00*
*Utilities*	*8,216.03*
*Fixed Over Time*	*20,000.00*
*TOTAL*	*88,316.03*

*Subject to statutory deductions.

Job Description: You will work strictly under the rules and regulations of the Company and as specified in your code of conduct. You will take instructions from the designated officer in charge.

Hour of Duty: This shall be from 8.00am to 5.00pm 7.00am to 6.00pm. You may be required to do shift work as operations may require work to be done outside normal hours.

Medical: Staff, his spouse and a maximum of two children shall receive medical treatment in company designated hospitals in accordance with C&I Leasing medical insurance scheme.

Annual Vacation: You shall be entitled to two week’s annual vacation.

Disciplinary Issues: This will be treated in accordance with Hertz Disciplinary procedures.

Non Accident Bonus: This is payable monthly based on free accident driving. The bonus payment will be forfeited if you are found guilty of any act of misconduct as stipulated in your code of conduct. The amount to be forfeited shall be determined by the gravity of the offence.

Out of Station Allowance: You are entitled to a sum of N2,000.00 for each trip embarked upon within a day outside your area of operation. You are also entitled to a sum of N5,000.00 per night as overnight accommodation allowance for all trips outside your area of operation.

Overtime/Weekend Allowance: This is fixed at N20,000.00 per month and it is included in your monthly salary.

Probation: This appointment is subject to a probationary period of (6) six months after which, subject to satisfactory performance, the employment will be confirmed. During the probation period, either party can terminate the employment without notice; but such intention must be expressed in writing.

Termination: Upon confirmation either party has the right to terminate this employment by giving two weeks’ notice or the payment of two weeks’ basic salary in lieu of notice.

Industrial Action: You are not permitted to engage in any industrial action in the premises of Hertz Car Rental during the duration of your employment with the company.

Any breach of the Communication and the Industrial Action Laws will result in immediate termination of your employment.

Communication: You are a staff of Hertz Car Rental and therefore no direct communication between you and our client will be entertained. All matters on welfare are to be directed to the company (Hertz Car Rental) for necessary action.

Please sign a copy of this letter and return same to us in acknowledgement of your acceptance of this offer.

Yours faithfully,

For: C&I LEASING PLC

ANDREW OTIKE-ODIBI

EXECUTIVE DIRECTOR

The bone of contention in this suit would seem to be exhibit CW2 which is the letter of termination of the Claimant’s appointment. While the Claimant pleaded and tendered the said document which was admitted by the court after due consideration of the abjection to its admissibility, the Defendant is urging the court not to place reliance on the said exhibit because the Claimant told the court during cross examination that he did not collect and sign for the letter of termination and left it with Jessica because he felt that Edike Onyemechi was not saying the truth. The Defendant appears only to be concerned with how the Claimant got the document rather than the existence and form of the said exhibit. The said exhibit CW2 was duly pleaded by the Claimant and there is no basis for same to be discountenanced by the court. I shall therefore place reliance on same in the determination of this suit. I so find and hold.

Exhibit CW2 is hereunder reproduced for clarity.

June, 24, 2015

Okafor Great Endurance

Mr. Onyemaechi Edike Compound

Agbeta

Port Harcourt, Rivers State.

Dear Great,

END OF CONTRACT

This is to inform you that your contract with us ends effective June 24, 2015.

Please ensure you return all Company property in your possession to the Human Resources Unit.

Please return the following where applicable:

KBL Card

Company ID

Phone

Others

We wish you success in your future endeavours.

Thank you.

Yours faithfully,

For: C & I LEASING PLC

Emmanuel Timothy

Human Resources Manager.

I have looked at the evidence of the Claimant during Cross-examination wherein he told the court that, he did not intentionally stop coming to work because of the quarrel between him and Edike Onyemechi, but that it was Jessica who informed him that Edike Onyemechi said he did not want to work with the Claimant again. That Jessica gave him a letter of termination of appointment and told him that the Defendant did not want his services any longer.

I have also looked at the testimonies of the two (2) witnesses called by the Defendant (Babatunde Oluwakemi and Udensi Ifeanyi-Chukwu. DW1 (Babatunde Oluwakemi) informed the court during examination in chief that, the Claimant who was an employee of the Defendant was attached to the Defendant’s client Mr. Edike Onyemechi of GE Company until 22^nd of June, 2015 when Mr. Edike Onyemechi called officers of the Defendant complaining about the unruly conduct of the Claimant towards him and his family. That the Claimant was consequently directed to be reporting for duty at the Defendant’s office pending the resolution of the complaint, but rather than doing so, the Claimant absconded from duty since the last week of June, 2015 to date. That the Defendant did not issue any letter of termination of appointment to the Claimant, rather it was the Claimant, who absconded from duty and has not been to work since June, 2015.

During cross-examination, DW1 informed the court that the claimant’s appointment was confirmed by the Defendant after the probationary period, and that it is true that the Claimant was employed by the Defendant and attached to Mr. Edike Onyemechi. Upon being referred to paragraphs 4 and 5 of her deposition, the witness told the court that upon receiving the calls from Edike Onyemechi the Claimant was called to come to the office but he refused to show up hence the Defendant could not ascertain what the problem was between Mr. Onyemechi and the Claimant. The witness said personally she does not know what the problem is between the Claimant and Mr. Onyemechi. With respect to exhibit DW2, the witness told the court that while the document is on the Defendant’s letterhead and Emmanuel Timothy is still the Defendant’s Human Resource Manager, the signature on the document is neither that of Emmanuel Timothy nor any of the people designated to sign termination letters.

DW2 (Mr. Ifeanyichukwu Udensi) on his part informed the court in his examination in chief vide his deposition on oath that, as at when the Claimant worked with the Defendant he was the Defendant’s Operations Supervisor and the Claimant as a driver attached to the Defendant’s client Mr. Edike Onyemechi was under his supervision. The witness further stated that, sometime in June, 2015, the Claimant reported to him that he had misunderstanding with his boss who would not want to work with him again, and the witness instructed the claimant to be reporting to the Defendant’s office in the interim but rather than reporting to the Defendant’s office as instructed, the claimant stopped coming to work and absconded from duty till date. That he did not direct the claimant to sign any letter of termination from Miss Jessica or anybody and the Defendant did not issue any letter of termination of appointment to the Claimant.

During cross-examination, the witness maintained his position that, he was the Claimant’s supervisor and in charge of all the drivers under the Defendant’s Fleet Management including the Claimant. That the Claimant who was assigned to Mr. Edike Onyemechi informed him about the challenges he had with Mr. Edike, and that the issues were not investigated because the claimant never showed up for the investigation. That it is not true that the Claimant stayed away from the office because the Defendant issued to him letter of termination and asked him to hand over his ID Card and other office items.

May I state that, in trial proceedings, it is expected of a party to maintain his or her case from the beginning to the end, and not to change the case midway in the course of the trial. A party is in law not allowed to disfigure the case as initiated before the court. Put in another way, a party must be consistent in his case and not to do a complete volte-face or u-turn midway into the case or even on appeal to the highest court in the land. The law deprecates and frowns at the practice. See Hon. Chief Ogbuefi Ozomgbachi V. Mr. Dennis Amadi and 2 Others (2018) LPELR – 45152(SC).

The Claimant who had told the court vide paragraph 12 of his main statement on oath that when he was directed to sign and collect the termination letter he refused to do so, made a summersault in paragraph 5 of his Further witness deposition where he informed the court that when he went to the office on 24^th June, 2015, one Mr. Ifeanyi retrieved his staff Identity Card from him and gave him a letter of termination of appointment. In yet another breath, the claimant told the court during cross-examination that, it was out of annoyance that he refused to collect the letter of termination of appointment from the Defendant’s staff (one Jessica) when she informed him that the Defendant did not want his services any longer, and it was on that basis he stopped reporting for duty.

The Claimant has clearly given contradictory evidence in this case. No wonder he tried to suggest to the court during cross examination which of his contradictory evidence should be believed by the court. I have looked at the court’s records, and there is nowhere the Claimant amended his Complaint and Statement of Facts in this suit. His further evidence vide the Further deposition on oath filed on the 13^th of October, 2016 particularly paragraph 5 thereof is at variance with his evidence in the main deposition on oath filed on 6^th of November, 2015, particularly paragraph 12 thereof. There is therefore a clear case of contradiction and inconsistency in the evidence of the Claimant, and in the circumstance, it is not the duty of the court to pick and choose which one of the contradictory evidence to believe and which one to disbelieve. I so find and hold.

It has been decided in several cases that, where a witness gives material pieces of evidence that are inconsistent such a witness is not worthy of being described as a witness of truth and is therefore not accorded the honour of credibility. See Apostle Peter Ekweozor and Others V. The Registered Trustees of Saviours Apostolic Church of Nigeria (2014) LPELR – 23572(CA); and Bayo Aremu V. Daniel George Chukwu (2011) LPELR-3862(CA).

I therefore agree with the submission of the counsel to the Defendant that, the contradictions in the evidence of the Claimant are so fundamental as to affect the justice of the case. There is therefore no basis for the court to rely on such inconsistent evidence. I so find and hold.

I therefore believe the testimonies of DW1 and DW2 when they informed the court that the Claimant upon being asked to be reporting at the Defendant’s office decided to stay away from the office. These pieces of evidence by the Defendant have not in anyway been challenged even during cross-examination of the defence witnesses. The Claimant would seem to have out of anger or annoyance frustrated his contract by himself as he informed the court that out of annoyance he left the letter of termination of appointment with one Jessica.

May I now consider the reliefs being sought by the Claimant in this suit.

Relief ‘a’ is for a declaration that the purported letter of termination of appointment on the 24^th June, 2015 terminating the Claimant’s employment is null and void. Two things must be noted with respect to this relief. Firstly, the relief being a declaratory one, the Claimant must succeed on the strength of his case and not to rely on any weakness (where available) on the case of the Defendant. In fact, even where this is admitted by the Defendant, the law still enjoins the Claimant to establish same by credible and convincing evidence to be entitled to the court’s exercise of discretion in his favour. See Engr. George T. A. Nduul V. Barr. Benjamin Wayo and 3 Others (2018) LPELR-45151(SC).

Secondly, in employment law, where the contract between the parties is one of master/servant as in the instant case (not being contract with statutory flavor), the termination of the employee’s contract of service by the employer can only be declared wrongful and not null and void. The rationale for this is that no willing employee can be foisted on an unwilling employer.

See S. O. Ilodibia V. Nigerian Cement Company Ltd (1997) 7 N.W.L.R. (Part 512) 174 at 198 paragraphs D – E.

The Claimant has therefore failed to establish relief ‘a’ and same is hereby refused.

Relief ‘b’ is for an order of court directing the Defendant to pay to the Claimant the sum of N30,000 (Thirty Thousand Naira) per month commencing from the month of June, 2015 till judgment is given in this case and at the same sum of N30, 000 per month till judgment sum is liquidated, being the basic salary per month of the Claimant. I do not know how the Claimant, who admitted that he stopped working for the Defendant on 24^th June, 2015 will now want the court to order for the payment of his salaries from June, 2015 till when judgment sum is liquidated. The Claimant is not entitled to salaries for periods he did not work for the Defendant. Relief ‘b’ is therefore refused. See Solomon Jude V. Nigeria Bottling Co. Plc (2016) 67 N.L.L.R. (Part 241) 609 at 638; and Mr. Omadachi Otache V. Notore Chemical Industries Ltd (Unreported) Suit No. NICN/YEN/57/2015, judgment of this court delivered on 16^th January, 2019.

Relief ‘c’ is for an order of court directing the Defendant to pay to the Claimant all allowances entitled to by the Claimant such as transport, housing, lunch, utilities, free accident bonus, travelling and over time allowances amounting to the sum of N58, 316.03k per month from the month of June, 2015 till judgment is delivered in this case and at the same N58, 316.03k per month until the judgment sum is liquidated. Again, the Claimant has not shown that he continued to work for the Defendant from June, 2015 to be entitled to this relief. This relief therefore fails and same is also refused.

Relief ‘d’ is for an order of court directing the Defendant to pay the Claimant N20, 000, 000 (Twenty Million Naira) as damages for the unlawful termination of the Claimant’s appointment. With respect to this relief, let me say that legally even where the termination of an employee’s employment has been declared unlawful for failure to give notice or payment in lieu of notice (which is not the situation in this suit), the employee’s entitlement is limited to what he would have earned for the period of notice (in terms of salary) and other legitimate earnings due to him at the time of the termination of the employment, and not an award of general damages or an order for his reinstatement. See Gabriel Ativie V. Kabel Metal Nig. Limited (2016) 9 ACELR 1. The Claimant has therefore not shown why he should be awarded damages in the sum of N20, 000, 000.00 (Twenty Million Naira) in this suit. This relief equally fails and same is accordingly refused.

In the final result, I hold that the Claimant has failed to prove his case and same fails and is hereby dismissed.

The single Issue identified for determination is therefore resolved against the Claimant.

I make no order as to costs.

Judgment is entered accordingly.

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Hon. Justice P. I. Hamman

Judge