Mr Olu Ariyo VS Naira Pools Company Ltd & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: APRIL 25, 2018

SUIT NO. NICN/LA/209/2014

BETWEEN

Mr Olu Ariyo-Claimant

AND

Naira Pools Company Ltd
Madam Modupe Badero (For herself and

the Estate of Late Chief E. A. Badero) -Defendants

REPRESENTATION

S. Igwe, for the claimant.

Mark Ogbonnaya, for the defendants.

JUDGMENT

On 8th May 2014, the claimant took up a complaint against the defendant. By the statement of facts, the claimant is praying for the following reliefs:

A declaration that the Estate of late Chief E. A. Badero (Deceased) has no right, power or authority to terminate the employment of the claimant in the service of the 1st defendant.
A declaration that the said purported termination of the claimant’s appointment by the 2nd defendant is void and of no effect to determine the services of the claimant to the 1st defendant.
A declaration that the claimant is still the Managing Director of the 1st defendant.
The sum of N20,000.00 being outstanding part of the claimant’s remuneration for the month of April 2013.
The sum of N20,000.00 per week being the unpaid remuneration of the claimant from June 2013 until the claimant is reinstated in his office as General Manager of the 1st defendant.
An order reinstating the claimant to his position as the General Manager of the 1st defendant.
The sum of N5,000,000.00 as general damages for unlawful termination of the appointment of the claimant.

Or in the alternative

An order of perpetual injunction restraining the 2nd defendant, its servants, agents or privies howsoever from interfering or further interfering with or in the claimant’s employment by the 1st defendant.

The defendants entered formal appearance and then filed their statement of defence, list of witnesses, witness statement on oath and list of document indicating that no document will be tendered. To this, the claimant filed a reply to the statement of defence and a statement on oath pursuant to the reply to the statement of defence.

At the trial, which commenced on 7th December 2016, the claimant testified on his own behalf as CW and tendered 9 documents admitted and marked as Exhibits C1 to C9. The claimant was cross-examined by the defendants’ counsel. At the close of the claimant’s case, the defendants were given the opportunity to open its defence. However, at the Court’s sitting of 24th May 2017, the defendants’ counsel indicated that the defendants’ witness was not in Court as she was indisposed. The adjournment the defendants’ counsel prayed for was opposed, whereupon the defendants’ counsel informed the Court that he was not averse to being foreclosed. The Court at that point ordered that parties, starting with the claimant, file their final written addresses. The case was then adjourned to 25th October 2017 for adoption of written addresses. At the sitting of 25th October 2017, the claimant was in Court but his counsel was not, and did not file any written address as ordered by the Court. The defendants and their counsel were equally not in Court. The matter was thus adjourned to 1st February 2018 for adoption of written addresses. At the sitting of 1st February 2018, once again the claimant was in court but not his counsel; and yet again, counsel to the claimant did not file any written address. Equally true, neither the defendants nor their counsel was in court. In all of this, no reason whatsoever was given the Court as to the absence of the claimant’s counsel, the defendants and their counsel. Order 45 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which deals with filing of written addresses, makes provision only for when a defendant fails to file a written address as ordered, in which case the Court may foreclose the defendant. See Order 45 Rules 11, 12 and 13. The NICN Rules 2017 is silent where it is the claimant or where it is both the claimant and the defendant who fail to file written addresses. However, Order 1 Rule 9 provides as follows:

(1) Where a matter arises for which no provisions or adequate provisions are made in these Rules, the Court may adopt and apply any procedure as will in its view do substantial justice to any of the parties concerned in the matter.

(2) These Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in section 12(2)(b) of the National Industrial Court Act, 2006.

Since it appeared to the Court that no written address will be filed by any of the parties, and given that evidence of the claimant had been taken, and since written addresses are meant to guide the Court for they do not take the place of evidence, and guided by Order 1 Rule 9 of the NICN Rules 2017, the Court then adjourned the matter for judgment. Case law authorities abound on the principle that while written addresses may be desirable, they are not an absolute requirement. For instance, in Hope Democratic Party v. INEC &ors[2009] LPELR-8677(CA); [2009] 8 NWLR (Pt. 1143) 297 SC, the Supreme Court held that failure to file written address does not absolve the Court from considering the merit or demerit of objections with a view to sustaining or overruling them. And in Bosma &ors v. Akinole &ors [2013] LPELR-20285(CA), Augie, JCA (as Her Ladyship then was) put the matter succinctly thus:

…the importance of addresses from counsel cannot be over-emphasized as “a good address may provide a Judge a clear mental opinion to perceive either the tenuousness in what had appeared impregnable or to see through the veneer and discover the hard core of a party’s case” – see Ndu v. The State (1990) 7 NWLR (Pt.164) 550 SC where Akpata, JSC added that there are, however, occasions when address from counsel are a matter of formality – they may not diminish or add strength or weakness in a party’s case”. See also Niger Const. Ltd. v. Okugbene (1987) 2 NSCC 1258 where Oputa, JSC said –

Addresses are designed to assist the Court. When, as in this case, the facts are straight forward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for lack of evidence to prove and establish or else disprove and demolish points in issue.

In other words, written address assists the court in arriving at its decision, but it is not designed to take the place of credible evidence or provide the avenue to raise objections that should have been raised earlier on in the case.

And by Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA):

Where a counsel failed or refused to address the court, it is not the duty of court to impose on such counsel. The Appellants had various opportunities to present their Written Address but failed or refused to do so by playing tricks with frivolous applications and adjournments. In the circumstance of this case therefore, failure to address the court does not amount to breach of fair hearing. The Appellants were given ample opportunity to take whatever steps they would have wished, but they threw it away. Accordingly, the Appellants were not denied fair hearing whatsoever as they purposely denied themselves opportunity to present their Address.

In the instant case, the suit cannot stall simply because counsel in the matter are not interested in filing written addresses, hence the order that judgment will be delivered based on the evidence already elicited from the claimant, the defendants having decided not to call any witness or even defend the case. After all, College of Education, Ekiadolor &ors v. Obayagbona[2016] LPELR-40154(CA) decried inordinate delays in especially employment cases.

From the pleadings and statement on oath of the claimant, his case is that he is the General Manager of the 1st defendant and was employed on or about 1981 as a Claim Manager in the 1st defendant and was later promoted to a Checking Manager in 1988. The claimant relies on his identity cards in substantiation of these facts. That on or about the year 2007, he was promoted to the position of General Manager on a remuneration of N20,000.00 per week due to the nature of the 1st defendant’s business which is weekly generating. That given his position in the service of the 1st defendant, he was sent to London in 1985 and 1988 where he attended training sponsored by the 1st defendant. For this, the claimant relies on two respective travel tickets and his international passport. That after the death of Chief E. A. Badero, the late Managing Director (MD) of the 1st defendant, the 2nd defendant, who is the daughter of the late Chief Badero became MD of the 1st defendant. That on 3/6/2013, the 2nd defendant handed him a letter terminating his appointment. That age was given as the reason for the termination of his appointment. That all efforts to continue his lawful duties were prevented by the 2nd defendant, hence this suit. That before the termination of his appointment, he was being owed N20,000.00 being part of his unpaid remuneration during the month of April 2013. That he is entitled to his remuneration at the rate of N20,000.00 per week from 1st June 2013 till date as his appointment with the 1st defendant still subsists. That since 1981, he has never worked under the Estate of Chief Badero nor was he employed in any capacity whatsoever by the said Estate or anyone at all other than the 1st defendant.

The claimant is accordingly complaining that his appointment was terminated wrongfully. he is praying the Court for reinstatement and arrears of his salaries paid to him as well as general damages for the hardship he has been put through in terms of being unable to feed his family, pay school fees and other responsibilities as a bread winner of his family. The law is that an employee who is complaining that his employment was wrongfully terminated must plead and prove the following:

(a) That he was employed by the defendant;

(b) The terms and conditions of his appointment including duration and termination.

(d) The circumstances under which his appointment can be terminated;

(e) That his appointment can only be terminated by a person or authority other than the defendant.

It is not for the employer to prove any of these.These facts are the foundation of any action for wrongful termination. Where a plaintiff fails to establish them and leaves them to speculation by the Court, he is bound to fail. See Uzondu v. UBN Plc[2008] LPELR-4535(CA),Akinfe v. UBA Plc [2007] 10 NWLR (Pt. 1041) 185 CA, UTC Nigeria Ltd v. Peters[2009] LPELR-8426(CA), Ahmed v. Abu&anor[2016] LPELR-40261(CA) and Ante v. University of Calabar [2001] 3 NWLR (Pt. 700) 239 CA. The recent Supreme Court decision in Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC) reinforced the requirement of placing before the Court the conditions of service by an employee who complains that his termination is wrongful; and that the conditions of service is a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination.

Has the claimant in the instant suit discharged any of these requirements? The answer is in the negative. The documents tendered by the claimant are identity card as checking manager (Exhibit C1), identity card as claim manager (Exhibit C2), affidavit of loss of identity card as General Manager and police report of same (respectively Exhibits C3 and C3(a)), 2 airplane tickets and data page of international passport (respectively Exhibits C4, C4(a) and C4(b)), termination letter from the Estate of Chief Badejo (Exhibit C5), letters from claimant’s solicitor to the defendants (Exhibits C6 and C7), EMS speed post receipts evidencing payment for delivery of solicitor’s letters, (Exhibits C8 and C8(a)), and a letter showing new postings with the claimant becoming the Checking Manager (Exhibit C9). In all of this, no conditions of service was put before the Court. In his evidence under cross-examination, the claimant testified that he was given a letter of employment but that he lost it around 1985. There is, however, no affidavit of loss and police report of the loss of the employment letter as the claimant did for his lost identity card. See Exhibits C3 and C3(a). I must note here the uncertainty of the claimant when situating events. In paragraphs 4 of his statement on oath, the claimant testified that ‘on or about 1981’ that he was employed; in paragraph 5, that it was ‘on or about the year 2007’ that he was promoted; and under cross-examination, that it was ‘around 1985’ that he lost his letter of employment.

The evidence of the claimant that his salary is N20,000.00 per week is oral. No documentary evidence was shown to this Court, not even the pay-slip was tendered. The claimant acknowledged that he does not have any document to show the payment of salary. To the extent that the testimony of the claimant is that in spite of his promotion in 1988 and to the post of General Manager, his salary still remained N20,000.00 per week, much doubt arises as to veracity of the evidence as to his salary being N20,000.00 per week. The evidence as to salary being paid weekly and in cash itself is doubtful since the more usual thing is that it is paid monthly and through the Bank. Regarding the trip to London, the claimant himself acknowledged under cross-examination that he has no letter from the defendant asking him to go to London for training.

As it is, the claimant has not discharged the burden placed on him to prove that his termination was wrongful. This being the case, his claims fail and are hereby dismissed. The case itself is accordingly dismissed.