MR. OMADACHI OTACHE VS NOTORE CHEMICAL INDUSTRIES

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: 16^TH JANUARY, 2019

SUIT NO: NICN/YEN/57/2015

BETWEEN:

OMADACHI OTACHE

CLAIMANT

AND

NOTORE CHEMICAL INDUSTRIES LTD

DEFENDANT

REPRESENTATION:

Levi Asogwa with Elijah Tutu for the Claimant

Thompson Dede for the Defendant

JUDGMENT

By a Complaint and Statement of Facts dated and filed on 23^rd July, 2015, the Claimant commenced this suit against the Defendant. The Originating processes were amended sequel to an order of court made on 1^st of June, 2016 vide Statement of Facts dated and filed on 8^th of April, 2016, wherein the Claimant seeks the following reliefs against the Defendant:

A declaration that the dismissal of the Claimant for no ascribed reasons amounts to an unlawful breach of contract of employment, witch-hunting, intimidation and victimization and is wrongful, illegal and unlawful for the reasons and mode of execution.

A declaration that the Claimant is entitled to gratuity, pension contributions to Stanbic IBTC, Salaries, medical expenses, phone cell charges, leave allowances and annual gross compensation as a bona fide staff of the Defendant.

An order of court directing the Defendant to pay to the Claimant the sum of N382, 633.86 per month and all other monthly entitlements from March, 2015 when the Defendant stopped payment of Claimant’s salary until final determination of this case.

The sum of N400,000,000.00 being and representing general damages for breach of contract and unlawful dismissal of Claimant as well as emotional and psychological trauma the Claimant have been subject to as a result of Defendant’s action.

A declaration that the Claimant is entitled to the sum of N400,000,000.00 (Four Hundred Million Naira) only as exemplary and aggravated damages resulting from the tortuous actions of torture, libel, inhuman and extremely unlawful acts and the emotional and psychological trauma which the Claimant has suffered in the course of his employment by the acts of the Defendant.

N50, 000, 000 (Fifty Million Naira) being the cost of Solicitor’s fees of a Professor and Senior Advocate of Nigeria for the conduct this case.

ALTERNATIVELY

An order directing the Defendant to immediately reinstate the Claimant to work, pay to the Claimant all his outstanding salaries/allowances as stated in paragraphs 33 (c) above from March 2015 to when judgment is delivered.

The Defendant’s Statement of Defence, Witness Statement on Oath, List of Witnesses and List of Documents were all dated and filed on the 6^thof September, 2016.

The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 8^th of April, 2016 and tendered a total of five (5) documents which were admitted and marked as exhibits CW1-CW2, CW3, CW4-CW5, CW6-CW7 and CW8-CW23. The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel.

The Claimant then closed his case on the 16^th of January, 2018, and the matter was adjourned to 26^th February, 2018 for the Defendant to open its Defence.

The Defendant on the other hand called one witness Mr. Kennedy Dike (the Defendant’s Head of Human Resource Department) who testified as DW. He adopted the Witness Statement on Oath made on 6^th September, 2016, and tendered 3 documents which were admitted and marked as Exhibits DW1, DW2, and DW3.

The witness was cross-examined by the learned Claimant’s counsel after which he was re-examined by the learned Defendant’s counsel. The Defendant then closed its case on 18^th of April, 2018.

With the close of the defendant’s case, parties were ordered to file their final written addresses and the case was adjourned for adoption of Final Written Addresses.

When the matter came up for hearing on the 9^th of November, 2018, parties adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was filed on 8^th June, 2018 but deemed as having been properly filed and served on 11^th June, 2018. The Claimant’s Final Written Address on the other hand was dated 16^th October, 2018, filed on 19^th October, 2018, but deemed as having been properly filed and served on 23^rd October, 2018. The Defendant also filed a Reply on Points of Law to the Claimant’s Final Written Address dated and filed on 8^th of November, 2018, but deemed as properly filed and served on 9^th November, 2018. With the adoption of the parties’ Final Written Addresses, 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 in 2009 as a contract staff in the Defendant’s Warehouse under Maintenance Department. That the contract appointment was subsequently regularized as a full staff with gross salary of N4, 591, 606.27 at N382, 633.86 per month.

The Claimant alleges that, on the 27^th of September, 2013, the Defendant’s office in Onne received a letter from the Defendant’s Group Managing Director/Head Office alleging some unethical practices in the Defendant. That based on these allegations, the Defendant’s Ethics Committee visited the Onne Branch for the purpose of investigating the allegations which were said to have been made by some concerned members of staff of the Defendant.

According to the Claimant, he was not among those that wrote the petition and when he was interrogated by the Ethics Committee, he gave his honest view on the questions put forward to him which did not go down well with some senior staff of the Defendant that were allegedly involved in the alleged unethical practices. That he did not know that the Defendant did not put in place any mechanism to protect those who testified before the Ethics Committee and when some of the senior staff of the Defendant (Mrs. Tola Mbachu and Mr Apollo Goma) were indicted, the Defendant suspended them for a period of over one (1) year.

The Claimant further averred that, when the said officers (Mrs. Tola Mbachu and Mr. Apollo Goma) had their suspension lifted and resumed duties, they began to oppress, victimize and repress those they suspected as being behind the petition and the testimony before the Ethics Committee including the Claimant and one Mrs. Sharon Philips. That due to the persistent attack, hatred, victimization, oppression and repression from Mrs. Mbachu and Mr. Apollo Goma he was transferred from the Administration and General Services Department to Human Resource Department as a Training Assistant.

That sometimes in the month of March, 2015, when the Claimant reported for work, he was asked to leave the Defendant’s premises by armed mobile policemen accompanied by Mrs. Mbachu and Mr. Goma after which he was subsequently dismissed. That his salary for the month of March, 2015 was stopped and upon inquiries he discovered that it was orchestrated by Mrs. Mbachu and Mr. Goma in collaborated with the Defendant’s Account Department even when the Claimant was diligent with his work and had never been indicted, or made to face the Ethics Committee or even queried for any issue whatsoever.

According to the Claimant, even though the dismissal letter was prepared, same was neither given to him nor has he been paid his salary due to the overzealous behavior of the Defendant’s staff. That as at when his salary was stopped, he was not due for retirement and his gross annual salary was N4, 591, 606.27 at N382, 633.85 monthly. That the non-payment of his salary till date has placed him and his family in untold and very terrible economic hardship as he is the bread winner of the family with four children and two dependants who have been thrown out of school for lack of fees.

That by the Defendant’s Policy Manual, the procedures for discipline of an erring staff begins with verbal warning to three (3) queries before termination or dismissal.

That contrary to the Defendant’s Policy Manual, the Claimant was not given opportunity to respond to any allegation raised against him and no notice of dismissal was given to him nor was he informed of the reason for his dismissal.

According to the Claimant, he was allegedly forced out of office not because he committed any crime or offence, and that he is still willing and ready to go back to work since he was not issued any letter of dismissal. He further averred that, his employment still subsists hence he is entitled to the payment of all his benefits.

DEFENDANT’S CASE:

According the Defendant, the Claimant was employed as an outsourced staff of the Defendant and his employment was subsequently regularized on 1^st October, 2014.

That while it is true that the Defendant’s Ethics Committee visited the Defendant’s Onne Branch to investigate unethical practices and the Claimant was among those that testified before the Committee, the investigations were commenced sequel to an anonymous petition by a caller through the Defendant’s Whistle Blowing Hotlines on 11^th October, 2013. That the identities of all those that testified were closely guarded and were never revealed to anyone other than members of the Committee.

That the Defendant is not in the know of any negative statement given to the Ethics Committee by the Claimant against any of the Defendant’s senior staff, and none of the Defendant’s senior staff was indicted and/or suspended for a period of one year or any other period following the testimony of the Claimant before the Committee.

According to the Defendant, even after the conversion of the Claimant’s employment from an outsourced staff to regular staff on 1^st October, 2014, he remained on probation until his employment was terminated on 5^th March, 2015 when his services were to longer required by the Defendant.

The Defendant averred further that, when the Claimant’s appointment was terminated on 5^th May, 2015, the Claimant’s immediate supervisor, Mr. Tama Bomor informed him verbally of the development and handed over to the Claimant letter of termination of appointment but the Claimant refused to accept the letter. The Claimant however handed over his staff identity card and key to his office to Mr. Tama Bomor.

According to the Defendant, since the Defendant paid the Claimant his salary up to 5^th March, 2015 when the Claimant’s employment was terminated, the Defendant is no longer obligated to pay the Claimant any other sum of money except his one month basic salary in lieu of notice in the sum of N125,992.39 (One Hundred and Twenty Five Thousand, Nine Hundred and Ninety Two Naira, Thirty Nine Kobo) and leave allowance in the sum of N27, 214. 36 (Twenty Seven Thousand, Two Hundred and Fourteen Naira Thirty Six Kobo) which cumulatively amounts to N153, 206.75 (One Hundred and Fifty Three Thousand, Two Hundred and six Naira, Seventy Five Kobo.)

That the Defendant made several efforts to hand over the entitlements to the Claimant to no avail as the Claimant vowed to extort outrageous sums of money from the Defendant. According to the Defendant, the services of the Claimant are no longer required by the Defendant and the termination of his appointment was not based on malice, witch-hunting or victimization as alleged by the Claimant.

The Defendant therefore urged the court to dismiss this suit in its entirety with substantial cost as same is frivolous, vexatious and an attempt to extort money from the Defendant.

DEFENDANT’S SUBMISSIONS.

The Defendant distilled one (1) issue for determination, to wit:

Whether from the totality of the pleadings and evidence before this Honourable Court, the Claimant is entitled to the claims in this suit?

The learned counsel to the Defendant submits that from the strength of the evidence adduced before the court, the Claimant is not entitled to the reliefs sought against the Defendant in this suit because he has failed to prove his claims as required by law. That the onus is on the Claimant to establish his case before the court as whoever desires any court to give judgment as to any legal right or liability (dependent on the existence of facts asserted by him), must prove that those facts exist because the burden of proof is on the person who would fail if no evidence at all is given on either side. See C.P.C. V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 539-540; AG Anambra State V. AG Federation (2005) 9 NWLR (Pt. 931) 572 at 635; Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 122 and Organ V. NLNG Ltd (2013) 16 NWLR (Pt. 1381) 507 at 538 – 539. See also sections 131, 132 and 133(1) of the Evidence Act, 2011

That in the instant case since the Claimant’s case borders on an allegation of unlawful dismissal from the Defendant’s employment, for the Claimant to be entitled to the reliefs being sought from the court, he must prove the co-existence of the following pre-requisites :

That the Claimant was an employee of the Defendant;
That the Claimant was dismissed from the Defendant’s employment; and
That the dismissal of the Claimant is wrongful. See Anaja V. UBA Plc (2011) 15 NWLR (Pt. 1270) 377 at 394 – 395, Ibekwe V. I.S.E.M.B. (2009) 5 NWLR (Pt. 1134) 234 at 252.

On whether the Claimant was an employee of the Defendant, it was argued that by paragraphs 3 and 6 of the Statement of Facts, the Claimant averred that he was recruited as a contract staff of the Defendant in 2009 and later converted to regular staff on 14^th November, 2014. That since the Defendant admitted those averments, the court is at liberty to rely on them. That the Claimant has therefore discharged the evidential burden placed on him to establish his employment relationship with the Defendant. See Bello V. Gov. Gombe State (2016) 8 NWLR (Pt. 1514) 219 at 279.

Regarding whether the Claimant was dismissed by the Defendant, learned Defendant’s counsel referred the court to paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Statement of Facts, and submitted that contrary to the Claimant’s averments, he was not dismissed by the Defendant but his employment was rather terminated lawfully in accordance with his terms of employment when his services were no longer required. That the Defendant apart from challenging the Claimant’s testimony in this regard, also contradicted him during cross-examination.

According to the Defendant, since the Defendant’s witness allegedly led credible and unchallenged evidence before the court, it is not sufficient for the Claimant to merely allege that his dismissal from the employment of the Defendant was wrongful without either producing a copy of the dismissal letter or credible oral evidence of persons who witnessed his verbal dismissal by the Defendant. See N.N.B. Plc V. Imonikhe (2002) 5 NWLR (Pt. 760) 294 at 321-322, National Bank of Nigeria Limited V. B. P. Olatunde & Co. Nigeria Limited (1994) 3 NWLR (Pt. 334) 512.

Learned Defendant’s counsel also referred the court to Exhibits CW1 – CW2, CW3, CW4-CW5, CW6-CW7 and CW8-CW23 tendered by the Claimant, paragraphs 16 and 20 of the Claimant’s deposition on oath, and the answers elicited from the Claimant during cross-examination, and submitted that apart from the Claimant not producing any credible evidence documentary or otherwise to prove his alleged dismissal from the Defendant’s employment, he only told the court what was allegedly said to him by Mrs. Tola Mbachu and Apollo Goma and other unnamed persons. That since the said evidence were reported to the Claimant by persons who were not called as witnesses in this suit, they constitute hearsay evidence and should not be relied upon by the court. See Chime V. Ezea (2009) 2 NWLR (Pt. 1125) 263 at 314, Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 435.

It was the further submission of the learned Defendant’s counsel that, it is the law that a claimant is expected to succeed on the strength of his case and even where a defendant chose not to adduce any evidence before the court, he may still be entitled to judgment where it is shown that a claimant failed to adduce evidence on material facts of his case, or where the evidence adduced by the Claimant has been discredited or made so unreliable that no court can accept or rely on it. That the case of the Claimant has not been proved as he has failed to discharge the burden placed on him by law to prove that he was dismissed from the Defendant’s employment. See Ukaegbu V. Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 230, Ezeokafor Umejiako& Anor V. Ahanonu Ezenamo & 10 Ors (1990) 1 NWLR (Pt. 126) 253 at 267, and Agagu V. Mimiko (2009) 7 NWLR (Pt. 1140) 342 at 386 – 387.

The learned Defendant’s counsel argued further that, since the Defendant did not only traverse the facts in the Statement of Facts in its Statement of Defence but raised additional facts explaining the circumstances surrounding the termination of the Claimant’s employment, the Claimant who failed to file a Reply to the Defendant’s Statement of Defence is deemed to have admitted the facts contained therein. See Ansa V. Ntuk (2009) 9 NWLR (Pt. 1147) 557 at 590.

Learned counsel referred the court to exhibits DW1, DW2 and DW3, and submitted that, since the Claimant refused to collect the termination letter and also frustrated all attempts to hand over his severance benefits to him, the court should hold that he has failed to establish his case before the court.

On whether the Claimant’s employment was lawfully determined, the learned Defendant’s counsel answered in the affirmative, and submitted that, it is the law that a willing employee cannot be foisted on an unwilling employer, referring to the case of C.B.N. V. Amika (2000)13 NWLR (Pt. 683) 21 at 34. That by the termination clause in exhibit CW1-CW2, both parties are at liberty to terminate the employment agreement between the Claimant and the Defendant at any time provided the party gives two weeks notice in writing or salary in lieu to the other party. That it was stated in exhibit DW1 that upon the termination of the Claimant’s employment, he will be paid in lieu of the period of notice and that his entitlement will be computed and paid upon the completion of the exit clearance processes.

It was finally argued that, upon review of all the facts of this case the Claimant has failed to prove his case and the court should therefore dismiss this suit as same is baseless and lacking in merit.

CLAIMANT’S SUBMISSIONS:

The Claimant submitted three (3) issues for the determination of this court, to wit:

Whether or not the Claimant was not wrongfully dismissed from his employment by the Defendant in the circumstances of this case and thereby breached the contract of employment with the Claimant.

Whether or not the Claimant having been dismissed is entitled to the payment of his salary, from March 2015 till date, his leave allowances, severance entitlements (such as Pension Contributions to Stanbic IBTC etc) from March 2015 till date in accordance with the law and terms of contract or to general damages for the dismissal.

Whether or not the Claimant is entitled to general damages for the breach of the contract of employment, for emotional and psychological trauma occasioned by the Defendant’s retaliatory acts of victimization, oppression, humiliation and intimidation as well as for the Solicitor’s fees for the institution and prosecution of this case deliberately occasioned by the Defendant’s recalcitrance.

On issue one (1), it was submitted that, every employment takes the form of a contract which may be terminated pursuant to the terms of the contract of employment or by statute, and that by exhibits CW1 –CW2 and CW8 – CW23, there exists a contract between the Claimant and the Defendant as well as the mode of terminating the said contract of employment. See section 9(7) of the Labour Act, Cap. L1 LFN 2004.

That since the instant contract can only be terminated in two ways either by giving two weeks’ notice in writing or by paying salary in lieu of notice, before the claimant’s employment can be lawfully determined, the two conditions must be complied with, and the court is urged to respect the terms of the contract agreed to by the parties in this suit. See Adams O. Idufuek V. Pfizer Products Ltd & Anor (2014) 12 NWLR (Pt. 1420) 96 at 115, Dr. Useni Uwah & Anor V. Dr. Edmunson T. Akpabio & Anor (2014) 7 NWLR (Pt. 1407) 472 at 489 and Shell Pet. Dev. Co. V. Lawson – Jack (1998) 4 NWLR (Pt. 545) 271.

That since there was neither notice of termination issued to the Claimant by the Defendant nor was there payment of salary in lieu of notice in line with paragraph 3.0 of Exhibit CW8-CW23 and Exhibit CW1-CW2, it cannot be said that the Defendant has terminated the Claimant’s appointment, and in the eyes of the law, the employment of the Claimant still subsists until it is validly determined through either a notice of termination or salary in lieu of notice is paid to him, or he is properly dismissed by the Defendant.

The learned Claimant’s counsel referred the court to the answers elicited from DW during cross-examination, and argued that not only did the Defendant failed to give any notice of termination, it also failed to make payment of salary in lieu of notice to the Claimant. That by the case of Nigerian Society of Engineers V. Ozah (2015) 6 NWLR (Pt. 1454) 76, an employee whose appointment is being terminated must be paid his salary and entitlements by his employer as stated in the contract of employment at the point of termination. That the actual payment of salary in lieu of notice must be made contemporaneously with the service of the letter of termination of appointment on the employee. See also Oforishe V. NGC Ltd (2018) 2 NWLR (Pt. 1602) 35 at 55-56, and Chukwuma V. SPDC (1993) 4 NWLR (Pt. 289) 512.

That since the Defendant did not comply with the terms in the contract of service between the parties relating to termination of employment, the dismissal of the Claimant is ineffective, null, void, wrongful and of no effect whatsoever, and the court should reinstate him to his rank and post with all the outstanding salaries and benefits from March, 2015. That alternatively, the court should award general damages for the Claimant’s shameful dismissal.

It was further argued that since DW in one breath deposed in paragraph 6 of his Witness Deposition on oath that the Claimant’s appointment was terminated on the 5^th of May, 2015, and in another breath he deposed in paragraph 4 that the claimant’s employment was terminated on the 5^th March, 2015, there is therefore a contradiction in the evidence of the Defendant’s witness as such the said contradictory evidence should be discountenanced by the court. See Apostle Peter Ekweozor & Ors V. The Registered Trustees of Savior Apostolic Church of Nigeria (2014) 16 NWLR (Pt. 1434) 433 at 475.

Learned Claimant’s counsel referred the court to the evidence of DW during cross-examination and argued that, since DW admitted that he was not present during the conversation and when termination letter was allegedly given to the Claimant, his testimony constitutes hearsay as all that the witness stated were based on things he was told by Mr. Tama Bomor who was the supervisor present with the Claimant at the material time. And also that, since Exhibit DW3 was not made by DW through whom it was tendered, same also constitutes hearsay and should be discountenanced by the court. See Godwin C. Onovo & Ors. V. Ferdinand Mba & Ors (2014) 14 NWLR (Pt. 1427) 391 at 417; Musa Ikaria V. State (2014) 1 NWLR (Pt. 1389) 639 at 651 and Senator Iyiola Omisore & Anor V. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) 15 NWLR (Pt. 1482) 205 at 323.

On exhibit DW3 it was further submitted that, since there is no name of the recipient/receiver of the document, the full name of the maker is not stated, the document is not signed, there is nothing on the face of the Document to show that it emanated from the Defendant, same should not be given any weight and should therefore be discountenanced by the court. It was further argued that since DW was not present when the termination letter was given to the Claimant and also when the Claimant handed over his Staff ID Card and office keys to the supervisor, his evidence should also not be acted upon by the court. See Dr. Soga Ogundalu V. Chief A. E. O. Macjob (2015) 8 NWLR (Pt. 1460) 96 at 116.

That the Defendant failed and/or neglected to protect the claimant’s identity as a witness before the Defendant’s Ethics Committee thereby exposing him to retaliatory actions from persons he testified against. That Defendant’s failure to protect the claimant as a witness from retaliatory acts of victimization which led to his dismissal from service and failure to issue proper notice of termination of employment or salary in lieu constitute breach of the claimant’s employment contract with the Defendant.

The court is therefore urged to resolve Issue one (1) in favour of the Claimant.

On Issue two (2) it was submitted that, if Issue one (1) is resolved in favour of the Claimant he is entitled to payment of his salary from March, 2015 till date or payment of his severance packages and entitlements including contributions to Stanbic IBTC in accordance with the law and terms of the contract between the parties. That the Claimant’s employment still subsists until same is validly terminated as such he is entitled to his salary of N382, 633.86 per month and all other monthly entitlements from March 2015 till date, or in the alternative, awarded general damages for the dismissal.

On Issue three (3) it was submitted that, the Claimant has discharged the burden of proof envisaged in sections 131, 132, and 133 of the Evidence Act.

That the court should take into consideration the humiliation and embarrassment suffered by the Claimant at the hands of the Defendant such as the facts that the claimant’s children have all dropped out of school. The court should also consider cost of this litigation as it has cost the Claimant N80, 000, 000 to hire the services of a Senior Advocate of Nigeria and a Professor of Law who led his team of lawyers in this suit. That in also awarding damages the court should also take into consideration the need to checkmate the excessive dismissal of employees by employers without following due process.

The learned Claimant’s counsel finally urges the court to enter judgment in favour of the Claimant in this suit.

DEFENDANT’S REPLY ON POINTS OF LAW:

The Defendant filed a Reply on Points of Law on the 8^th of November, 2018, wherein it was argued that, where a party to an action fails to counter an argument or an issue in the address of the other party to the suit, the argument or issue not so contested is deemed conceded by the defaulting party. See Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 at 556.

That in the instant suit the Defendant argued in paragraphs 4.41 – 4.46 of its Final Written Address that since the Claimant did not file a Reply to the Defendant’s Statement of Defence, the Claimant is deemed in law to have admitted the additional facts alleged in the Statement of Defence regarding the termination of the Claimant’s employment. That the Claimant in his Final Written Address did not counter the Defendant’s argument and has therefore by his conduct conceded on the point that the additional facts contained in the Defendant’s Statement of Defence which were not traversed are deemed admitted.

It was further submitted that, since the Claimant did not adduce any evidence on his submission that Mrs. Tola Mbachu and Mr. Apollo Goma were suspended by the Defendant and his evidence before the Ethics Committee led to their suspension, or that upon their resumption from suspension they victimized and oppressed the claimant until his eventual dismissal from the Defendant’s employment, the address of counsel no matter its persuasiveness cannot take the place of evidence. See Adegbite V. Amosu (2016) 15 NWLR (Pt. 1536) 405 at 423. That the court should therefore discountenance counsel’s address in this regard as it is not supported by any evidence.

On the probative value to be ascribed to exhibit DW3, it was argued that, exhibit DW3 is not hearsay as argued by the Claimant. That the court has the powers to admit and rely on a document even though the maker of the document is not called as a witness in the matter, provided the court is satisfied that insisting on tendering the document through the maker will occasion undue delay or expense. See John V. The State (2011) 18 NWLR (Pt. 1278) 353 at 367-368, and section 83 (1) (b) of the Evidence Act.

That since the Defendant laid the foundation for the admissibility of exhibit DW3 to the effect that the maker of the document Mr. Tama Bomor is not with the Defendant any longer and is on study leave outside the country, the said exhibit DW3 is not hearsay and the court should therefore rely on it in determining this suit.

On the alleged contradiction in the evidence of DW regarding the date the Claimant’s employment was determined, it was submitted that, the slight discrepancy on the date of termination of the Claimant’s employment is not weighty enough to justify the Claimant’s request that the court should discountenance the evidence of DW.

That for a contradiction to be fatal, it must be substantial. That the court should discountenance the Claimant’s submissions in this regard because the alleged discrepancy is immaterial and it could have been a typographical error.

The court is further urged by learned Defendant’s counsel to dismiss the suit.

COURT’S DECISION:

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, I shall adopt the sole issue distilled by the Defendant in determining this case because I am of the humble opinion that same is comprehensive enough in resolving this suit.

Before I proceed to consider the merit or otherwise of the Claimant’s case before the court, it is pertinent to address the point raised by the learned Claimant’s counsel in paragraph 3.29 – 3.31 of the Claimant’s Final Written Address concerning the probative value to be attached to exhibit DW3. That the court should discountenance the said exhibit DW3 and not give it any value because it does not have the full name of the recipient/receiver, the full name of the maker is not stated, the document is not signed, and there is nothing on the document to indicate that it emanated from the Defendant.

May I state that, at the hearing of this matter on the 18^th of April, 2018, the learned counsel who appeared for the Claimant A. T. Lawson objected to the admissibility of exhibit DW3 and after hearing from both counsel, the court overruled the objection and admitted the document as exhibit DW3. That ruling of the court to all intents and purposes still stands.

It is therefore pertinent to note the legal position that even though relevancy generally guides admissibility, the fact that a document is relevant and has been admitted is not a guarantee that the court will attach significant weight or any weight at all to the said document. The party who tendered and relied on the document has the additional duty to give oral evidence to link the document to the part of his case for which the document is tendered.

In the case of Peoples Democratic Party V. INEC & Ors. (2011) LPELR-8831(CA), the appellate court per Tsammani, J.C.A. held as follows on the weight to be attached to a document:

“It is interesting to note that the Appellant tendered a cache of documents, to wit: the result sheets from the various polling units in an effort to prove that voters were disenfranchised. Unfortunately, evidence of disenfranchisement cannot be deduced from the result sheets declared.

Even where it can be done (which is not conceded) the party tendering those documents ought to call witness who will give oral evidence to explain or demonstrate how the disenfranchisement occurred. That is so because the law is that, the fact that a document has been admitted in evidence does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. See Agballah V. Chime (2009) 1 NWLR (Pt. 1122) p. 373; Adefarasin V. Dayekh (2007) 11 NWLR (Pt. 1044) p. 89. Accordingly, a party who tenders such documentary evidence has a duty to adduce oral evidence to support same. In other words, documents, no matter how useful they could be, should not be of assistance to case of any party who tenders same or to the court, if there is no admissible oral evidence from the person who tenders it, explaining the purport of such document. A duty is therefore cast on a party who tenders and relies on documents in proof of his case to call oral evidence to specifically relate each document he tenders, to that part of his case for which the document is tendered. That duty does not lie in the court to fish for evidence for the party tendering it, from those documents. See Terab V. Lawan (1992) 3 NWLR (Pt. 935 p. 150; Eze V. Akoloage (2010) 3 NWLR (Pt. 1180) p. 183; Chime V. Ezea (supra) at pp. 380 – 381; Audu V. INEC (2010) 12 NWLR (Pt. 1212) p. 456 and A.N.P.P. V. INEC (2010) 13 NWLR (Pt. 1212) p. 549 at p. 597.” See also the decision of this court in the case of Mr. Jude Ozioko V. South Atlantic Media Ltd (Operators of 91.7 Radio Port Harcourt) Suit No. NICN/YEN/119/2015 delivered on 26^th September, 2018.

From the court’s records, it is glaring that DW (Kennedy Dike) told the court in paragraph 6 of his deposition on oath that Mr. Tama Bomor made a note to him concerning the conversation the said Tama Bomor had with the Claimant. This was further reiterated by DW during cross-examination when he informed the court that even though he was not present when the conversation between the Claimant and his supervisor took place in the office, but that after the said conversation the Claimant was given the letter of termination of appointment.

I am therefore of the humble view that since the Defendant has given oral evidence relating to the said document, it will be in the interest of justice for this court to rely on the said exhibit DW3, and same shall be relied upon in this judgment. I so hold.

I shall now consider the merit or otherwise of the Claimant’s suit before the court.

May I state from the onset the position of the law that in a claim for wrongful termination of employment, the Claimant has the onus to place and establish before the court not just the terms/conditions of his employment but also how those terms were violated by the Defendant in dismissing or relieving him of his employment. See G. U. S. Ijeonyenani V. African Continental Bank Limited (2015) 62 N.L.L.R. (Part 219) 504 at 517. See also U.T.C. Nigeria Ltd V. Samuel Peters (2009) LPELR-8426(CA), where 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.

It is pertinent to note that, from the pleadings and evidence in this suit, the fact of the Claimant’s employment with the Defendant is not in doubt as the Claimant pleaded his employment relationship with the Defendant in paragraphs 1, 3, 4, 5, 6, and 7 of the Statement of Facts. Exhibits CW1-CW2, CW3 AND DW2 all go to show that the Claimant was an employee of the Defendant. I therefore find and hold on this note that the Claimant has established his employment relationship with the Defendant.

The Claimant’s case before the court as can be deduced from his evidence – in chief vide his deposition on oath is that while working for the Defendant, he testified before the Defendant’s Ethics Committee concerning some unethical business practices and after the investigation of the Committee some senior staff of the Defendant were indicted and subsequently suspended from office for a period of one year. That when the suspensions on the indicted officers (Mrs Tola Mbachu and Mr. Appollo Goma) were lifted and they resumed work, they started harassing and intimidating him until sometimes in March, 2015 when he was told to leave the Defendant’s premises by some armed mobile policemen accompanied by Mrs. Mbachu and Mr. Goma. He was then told that he had been dismissed and should therefore not come to the company again. That even though he was informed that a dismissal letter was prepared but same was not given to him.

According to the Claimant, his removal from the services of the Defendant falls short of the stipulations of the Defendant’s Manual on Disciplinary Policy (exhibit CW8-CW23) because he was neither given notice of dismissal nor paid a month salary in lieu of notice.

To better appreciate the terms of the Claimant’s employment, it is important to reproduce Exhibit CW1-CW2 for the purpose of clarity:

June 08, 2009

Mr. Omadachi Otache

No. 4 Victoria Lane

Rumuokwurusi, Port Harcourt

Rivers State

Nigeria

Dear Omadachi,

CONTRACT OFFER OF EMPLOYMENT

We are pleased to offer you a one year (1) contract of employment with Notore Chemical Industries Ltd in the Material Warehouse Unit, Maintenance Department. The following terms and conditions apply:

Gross Compensation: N269, 991.28 per month

Termination

This appointment may be terminated at any time provided each party gives Two (2) weeks’ notice in writing or salary –in-lieu to the other party.

Hours of Work:

The company’s normal working hours are as follows are:

Monday – Friday: 8:30am – 5:30pm

These hours of work are subject to alteration from time to time as may be necessary.

Deployment:

You may be deployed to any division within Notore Chemical Industries Limited or any company in which Notore may have any interest and in any part of the country as the company may think fit.

Medical Examination and Reference:

This appointment is subject to your being certified medically fit by a doctor nominated by the company and on receipt of satisfactory reference from your previous employers and/or references.

Acceptance:

If the above terms and conditions are acceptable to you, kindly affix and sign across a N20 stamp on the endorsement attached to this letter and return same to the Head, Human Resources, Notore Chemical Industries Limited.

Yours Sincerely,

Onome Agomate

Head, Human Resources

It is also important to note that the Claimant also pleaded his letter of conversion which was admitted as exhibit CW3. The said exhibit CW3 is equally reproduced below for clarity:

November 14, 2014

Mr. Omadachi Otache

C/O Notore Chemical Industries Limited

Notore Industries Complex

Onne, Rivers State

Nigeria

Dear Omadachi,

Letter of Conversion

Owing to your outstanding performance, management is pleased to convert your contract employment to confirmed regular employment with details below:

Position Title: Training Coordinator

Level: Professional 3

Annual Salary: N4, 591, 606.27

Effective Date: October 1, 2014

On behalf of Management, I congratulate you on a job well done and trust you will find both personal and professional rewards as a result of your association with Notore.

Congratulations!

Sincerely,

For: Notore Chemical Industries Plc

Onome Agomate

Group Head, Human Resources.

During the cross-examination of the Claimant, he informed the court that, he neither made any formal complaint to the Defendant’s management nor made any phone call or sent e-mail concerning his alleged victimization in the Defendant; and that throughout his stay in the Defendant he was neither indicted nor queried for any wrong doing. The witness maintained his testimony in chief that, he was denied entry into the Defendant’s premises and that he was informed that though a dismissal letter was prepared, it was not given to him and he never saw the said letter. That both his staff ID card and office keys were retrieved from him by the police officer in the Defendant.

I have equally looked at the evidence of the Defendant’s sole witness Mr. Kennedy Dike who testified as DW. The witness informed the court during examination in chief that, even though the Claimant was employed as an outsourced staff, his employment was subsequently converted to a regular staff and he remained on probation till the termination of his appointment on 5^th March, 2015, when his services were no longer needed or required by the Defendant. That when the termination letter was given to the Claimant by his immediate supervisor Mr. Tama Bomor, he read through same and refused to acknowledge or accept it but that he handed over his staff ID Card and office key. The witness further informed the court in chief that, the Claimant’s salary was paid up to the date of the termination of his employment, hence the Claimant is only entitled to one month’s basic salary in lieu of notice put at the sum of N125, 992.39 (One Hundred and Twenty Five Thousand, Nine Hundred and Ninety Two Naira, Thirty Nine Kobo) and leave allowance in the sum of N27, 214.36 (Twenty Seven Thousand, Two Hundred and Fourteen Naira, Thirty Six Kobo) which cumulatively amounts to the sum of N153, 206.75 (One Hundred and Fifty Three Thousand, Two Hundred and Six Naira, Seventy Five Kobo).

According to the DW, even though the Defendant made efforts to pay the Claimant the outstanding amount, the Claimant refused to collect same.

During cross examination, DW informed the court that, even though there was no record of any misconduct by the Claimant, the claimant had a conversation with his supervisor after which he was handed a letter of termination of appointment. That by the Defendant’s disciplinary policy, which was made known to every staff, an employee can only be disciplined when found to have engaged in a prescribed misconduct, and that in the instant case, the Claimant was entitled to two (2) weeks notice or salary in lieu of notice before his employment could be terminated.

According to the DW, the Defendant did not give the Claimant the prescribed notice but that the Claimant was paid in lieu of notice.

On the Defendant’s assertion that the Claimant remained on probation until he was relieved of his appointment, may I state that that assertion is neither supported by pleadings nor evidence produced before the court. Exhibit CW3 is emphatic on the fact that the appointment of the Claimant was duly converted to that of a confirmed regular employment. It is therefore my holding that the Claimant was a confirmed staff of the Defendant prior to the termination of his employment with the Defendant.

May I add that, though the Claimant did not produce before the court the letter terminating his appointment on the ground that same was not given to him, the Defendant tendered the said letter in evidence as exhibit DW1, and for the purpose of clarity, may I reproduce the said letter below:

5^th March 2015.

Omadachi Otache

Notore Chemical Industries Limited

Notore Industrial Complex

Onne

Dear Omadachi,

Termination of Employment

This serves to inform you that your services will no longer be required with effect from 5^th March 2015.

You are directed to hand over all company property in your possession to your supervisor upon the receipt of this letter.

You (sic) entitlement (if any) will be computed and paid to you on successful completion of the exit clearance process. You will also be paid in lieu of period of notice as per your contract of employment with us.

Thank you for your contribution to the organization thus far and we wish you the best of luck in your future endeavors.

Yours Sincerely,

For: Notore Chemical Industries Ltd

Kennedy Dike

Ag. Group Head, Human Resources

I have also looked at paragraph 3.0 of exhibit CW8-CW23 (the Disciplinary Policy of the Defendant) and it provides for the disciplinary steps and processes to be taken in disciplining an employee as follows:

Verbal Counseling or Warning in the case of category I Misconduct;
Final Written Warning in the case of category II Misconduct;
Final Written Warning;
Suspension without pay which can only be upon the recommendation of the Disciplinary Committee;
Investigative Leave which can only be recommended by the Disciplinary Committee;
Termination which can only be recommended by the Disciplinary Committee in respect of Category III/Misconduct and the employee must be informed in writing of the allegation(s) against him by the Head, Human Resources and given a date by which to reply and to appear before the Committee.

Can it then be said that the Defendant observed its disciplinary procedures in terminating the appointment of the Claimant? I do not think so. There is nothing before the court either by way of pleadings or evidence (oral or documentary) indicating that the Claimant was either informed of any misconduct committed by him or given any opportunity to defend any allegation before any Disciplinary Committee as envisaged in exhibit CW8 – CW23. The claimant was clearly not afforded any fair hearing before the termination of his appointment.

Be that as it may, I am aware that the contract relationship between the Claimant and the Defendant is that of master/servant. It is not an employment with statutory flavor. That being the case, it is pertinent to reiterate the position of the law that, an employer can terminate the employment of its employee even for no reason at all provided that the terms of service particularly with respect to notice or payment in lieu of notice are observed.

While the Claimant is contending that no letter of termination of appointment was served on him even when he was aware that same was written, and that his salary was stopped in the month of March, 2015, the Defendant tendered exhibit DW1 to prove that the Claimant’s services with the Defendant have been terminated. I must pause here to state that, while I agree with the Claimant the he was not given any letter of termination of appointment, it must be pointed out straight away that, in a master and servant employment such as the instant case not being an employment with statutory flavour, termination of employment can be made either orally, in written form or even by conduct. The conduct of the Defendant in stopping the Claimant’s salary is enough proof that the Claimant’s services were no longer required by the Defendant. See Mr. Solomon Jude V. Nigeria Bottling Company Plc (2016) 67 N.L.L.R. (Pt. 241)609 at 637.

Having therefore failed to serve the Claimant the requisite notice before terminating his employment and having failed to pay him in lieu of notice, the termination of the Claimant though wrongful, the said employment remains terminated.

I therefore disagree with DW when he informed the court during cross-examination that the Claimant was paid in lieu of notice as there is nothing before the court to support this evidence. This same witness informed the court during examination in chief that the Claimant was not paid in lieu of notice and that the Defendant made several attempts to hand over the amount to him but to no avail. This witness has therefore not told the court the truth in this regard and this piece of evidence is not worthy to be relied upon. That being the case, the Claimant is entitled to be paid salary in lieu of notice and all other terminal entitlements. This much was acknowledged by the Defendant in exhibit DW1 wherein the Defendant stated thus: “You (sic) entitlements (if any) will be computed and paid to you on successful completion of the exit clearance process. You will also be paid in lieu of period of notice as per your contract of employment with us.”

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

Relief ‘a’ is for a declaration that the dismissal of the Claimant for no ascribed reasons amounts to an unlawful breach of contract of employment, witch-hunting, intimidation and victimisation and is wrongful, illegal and unlawful for the reasons and mode of execution. It must be noted on this relief that, from available evidence the Claimant was not dismissed from the Defendant. From exhibit DW1 his service was terminated hence his being entitled to terminal benefits which dismissal would not have afforded him. This relief is therefore refused. See Alhaji M. K. V. First Bank of Nigeria Plc & Anor (2011) LPELR-8971(CA).

Relief ‘b’ is for a declaration that the Claimant is entitled to gratuity, pension contributions to Stanbic IBTC, salaries, medical expences, phone cell charges, leave allowances and annual gross compensation as a bona fide staff of the Defendant. On this relief I have observed that nowhere in the Claimant’s pleadings did he plead that he is entitled to gratuity, pension contributions to Stanbic IBTC, salaries, medical expenses, phone cell charges, leave allowances or annual gross compensation nor is this relief supported by any evidence. This relief is therefore refused.

Relief ‘c’ is for an order of court directing the Defendant to pay the Claimant the sum of N382, 633.86 per month and all other monthly entitlements from March, 2015 when the Defendant stopped payment of Claimant’s salary until final determination of this case. On this relief, the Claimant has not shown the court that he continued to work for the Defendant from the Month of March, 2015 when his salary was stopped. That being the case, he cannot claim salary for periods from March 2015 until final determination of the suit when it is glaring that he did not work for those periods. Relief ‘c’ is therefore refused. See Mr. Solomon Jude V. Nigeria Bottling Company Plc (supra) at 638.

Relief ‘d’ is for the sum of N400, 000, 000.00 being and representing general damages for breach of contract and unlawful dismissal of Claimant as well as emotional and psychological trauma the Claimant have been subject to as a result of Defendant’s action. On this relief, may I state 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, 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. In this regard, it is my decision that the Claimant is only entitled to one month salary in lieu of notice which is put at the sum of N382, 633.86.

Relief ‘e’ is for a declaration that the Claimant is entitled to the sum of N400,000,000.00 (Four Hundred Million Naira) only as exemplary and aggravated damages resulting from the tortuous actions of torture, libel, inhuman ad extremely unlawful acts and the emotional and psychological trauma which the Claimant has suffered in the course of his employment by the acts of the Defendant. This relief is not supported by any evidence and same can therefore not be granted. Relief ‘e’ is therefore refused.

Relief ‘f’ is for the sum of N50, 000, 000 (Fifty Million Naira) being the cost of Solicitors’ fees of a professor and Senior Advocate of Nigeria for the conduct of this case. This relief is neither supported by pleadings nor evidence. Nowhere in the Claimant’s Statement of Facts did he plead this relief nor did the Claimant produce before the court any evidence (documentary or otherwise) to establish this leg of claim. Relief ‘f’ is therefore refused.

Relief ‘g’ is an alternative relief for an order of court directing the Defendant to immediately reinstate the Claimant to work, pay to the Claimant all his outstanding salaries/allowances from March 2015 to when judgment is delivered. This suit being one relating to master/servant relationship as against an employment with statutory flavor, the court cannot order for reinstatement. A willing employee cannot be foisted on an unwilling employer. The court can also not order payment of salaries/allowances to the Claimant from March 2015 to when judgment is delivered because the Claimant has not shown that he continued to work for the Defendant from March, 2015. He is therefore not entitled to salaries/allowances for periods not worked for. The alternative Relief ‘g’ is therefore refused.

In the final result, the Claimant’s case succeeds in part, and for the avoidance of doubt the court hereby orders as follows:

The Defendant shall pay to the Claimant the sum of N382, 633.86. (Three Hundred and Eighty Two Thousand, Six Hundred and Thirty Three Naira, Eighty Six Kobo only) which is one month salary in lieu of notice.

Cost of this suit is assessed at the sum of Seven Hundred Thousand Naira Only (N700, 000.00) to be paid by the Defendant to the Claimant.

The terms of this judgment shall be complied with not later than 30 days from the date of delivery failing which they shall attract interest at 10% per annum.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge