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: 25TH SEPTEMBER, 2018
SUIT NO: NICN/YEN/151/2015
BETWEEN:
- THOMPSON INI BASSEY
CLAIMANT
AND
MONIER CONSTRUCTION COMPANY NIGERIA LIMITED
DEFENDANT
REPRESENTATION:
- S. Minanyo for the Claimant
- A. Ayewoh with U. Okafor, Esther Solomon and O. Ogbonda for the Defendant
JUDGMENT
By a Complaint and Statement of Facts dated and filed on 23rd December, 2015, the Claimant commenced this suit against the Defendant claiming the following reliefs:
- A declaration that the dismissal of the Claimant from the employment of the defendant with effect from 20th December, 2009 is illegal, unlawful, null and void.
- A declaration that the claimant is entitled to all his salaries, allowances, emolument and benefit due to him from the month of December, 2009 to December, 2012 when judgment was delivered in favour of the Claimant.(sic)
- A declaration that the claimant contract of employment with the defendant is still subsisting.
- A declaration that the arrest, detention and prosecution of the claimant at the instance and instigation of the defendant is illegal and unlawful.
- The sum of Five Million (N5,000,000.00) Naira as damages against the defendant.
It is pertinent to state that, since the Originating Processes were not served on the defendant on time, the lifespan lapsed and same was renewed for a further period of three (3) months vide order of court made on 28th November, 2017.
Upon service of the renewed Originating Processes on the Defendant, the Defendant filed Memorandum of Appearance dated 11th December, 2017 and filed on 12th December, 2017. The Defendant also filed Statement of Defence, List of Witnesses and Witness Statement on Oath, all dated 11th December, 2017 and filed on the 19th of December, 2017.
Upon receipt of the defendant’s processes, the Claimant filed a Reply to the Statement of Defence dated 28th December, 2017 and filed on 29th December, 2017.
The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW. He adopted his witness deposition on oath made on 23rd December, 2015, and tendered 5 documents which were admitted and marked as exhibits CW1, CW2, CW3, CW4 and CW5. 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 then given to the Defendant to open its Defence.
The learned counsel to the Defendant N. A. Ayewoh however informed the court that the defendant was not calling any witness and would rather rest its case on that of the Claimant.
With the position taken by the defendant, parties were ordered to file their final written addresses and the case was adjourned to 19th July, 2018 for adoption of Final Written Addresses.
When the matter came up for hearing on the 19th of July, 2018, parties adopted their Final Written Addresses respectively. The Claimant’s Final Written Address was dated and filed on 21st June, 2018. The Defendant’s Final Written Address was dated and filed on 25th June, 2018. The Claimant also filed a Reply on Points of Law to the Defendant’s Final Written Address on 2nd of July, 2018, which was equally adopted by the learned counsel for the Claimant.
With the adoption of the parties’ Final Written Addresses, the suit was adjourned to 25th September, 2018 for judgment.
THE CASE OF THE CLAIMANT:
It is the case of the Claimant that, he was employed by the Defendant on 20th December, 2006, as Assistant Surveyor. The appointment though dated 20th December, 2006 was with effect from 8th January, 2007. The Claimant’s letter of employment was admitted as exhibit CW1.
The Claimant alleged that on the 24th of November, 2009, one Mr. Denis Madukor, the Defendant’s Site Manager in Diobu, Port Harcourt requested for survey work and the Claimant was detailed to undertake the assignments on several streets in Diobu where the Defendant had a road construction contract from the Rivers State Government tagged “Operation Zero Port Hole.”
That he worked for the defendant diligently and was therefore surprised when on 30th November, 2009 he was given a query (exhibit CW2) for undertaking a survey work and supervising an illegal job at Obidianso Street, Port Harcourt. That he responded to the query in writing and denied the allegation leveled against him.
That notwithstanding his response, the defendant vide letter dated 14th of December, 2009 (exhibit CW3), dismissed him from service with effect from 20th December, 2009, and withheld the Claimant’s salary for the month of December, 2009.
According to the Claimant, the defendant lodged a complaint with the police upon which he was arrested, detained and subsequently granted bail. The claimant and three other employees were later arraigned before the Senior Magistrate Court Port Harcourt on a two count charge of conspiracy and attempt to steal a grader machine belonging to the defendant. The charge against one of the accused persons (Wosu Henry) was later withdrawn while the prosecution of the Claimant and two others continued until they were allegedly discharged and acquitted by the court on 12th December, 2012.
That after he was discharged and acquitted of the criminal charges leveled against him, he made several efforts to be reinstated by the defendant to no avail. He subsequently engaged the services of his solicitors who wrote to the defendant letter dated 30th September, 2013, (exhibit CW4) to which the defendant replied vide letter dated 17th December, 2013 (exhibit CW5) denying liability.
That by the terms of his employment with the defendant, he is entitled to retirement benefit upon attainment of the retirement age and made payment as a staff of the defendant to the Trust Fund Pension Plc with Pin Number PEN100433192116.
To the Claimant, his arrest, detention and prosecution at the instance of the defendant caused him physical, mental and psychological damage.
The Claimant therefore urged the court to grant the reliefs being sought in this suit.
DEFENDANT’S CASE:
According the Defendant, in the course of working for the defendant, the claimant was on several occasions found wanting and cited an instance where, in July 2009, the claimant allegedly collaborated with the defendant’s time keeper to enter in the defendant’s Time Sheet that the claimant did over-time even when he was absent from work on the stated dates. That the monies paid to the claimant in July for the false claims of over-time were deducted from the claimant’s September, 2009 salary.
To the Defendant, the Claimant abandoned his duty post and was caught carrying out and performing illegal jobs around Mile 2 Diobu Port Harcourt as Mr. Denis Madukor did not request the Claimant to carry out any survey work in the defendant’s Work Site in Diobu or at any other place on 24th November, 2009 or at any time.
That the Claimant was consequently queried to which he responded to the query but his response was not found to be satisfactory hence his dismissal from service by the defendant.
According to the defendant, it withheld the claimant’s December, 2009 salary to pay for and defray the expenses incurred by the defendant as a result of the illegal job carried out by the claimant; and that, the matter was only reported to the police for investigation .
To the defendant, since it complied with the terms and conditions that governed the employment of the claimant before dismissing him from the service of the defendant, this suit is baseless, without foundation and same should be dismissed with punitive cost.
CLAIMANT’S SUBMISSIONS:
The Claimant submitted two (2) issues for the determination of this court, to wit:
- Whether in the light of the facts and evidence before this court the dismissal of the claimant from the services of the defendant was proper and valid.
- Whether on the balance of evidence before this court the claimant has proved his case to be entitled to the reliefs claimed.
On issue one (1), it was submitted that, the claimant’s evidence vide the letter of employment (exhibit CW1) and the averments in both the Statement of Facts and the deposition in paragraph 18 of the witness statement on oath were neither challenged nor controverted by the defendant. That facts admitted or unchallenged need no further proof, and where a party’s evidence or testimony is not discredited, the court should act on same. See Olayiwola V. Fed. Republic of Nig. (2006) 1 FWLR (Pt. 304) 12; and Ogun V. Asepoh (2002) 4 NWLR (Pt. 756) 208.
It was the further submission of the Claimant that, exhibits CW2 and CW3 and the evidence of the Claimant in paragraphs 7, 8, 9 and 10 of the Witness Statement on Oath indicate clearly that the Claimant was dismissed from the service of the Defendant because of the allegation that he used the Defendant’s materials to execute an illegal work which led to the arrest, detention, prosecution and subsequent discharge and acquittal of the Claimant by the Magistrate Court.
That since the Claimant was duly prosecuted, discharged and acquitted of the charges leveled against him, his dismissal by the Defendant based on exhibits CW2 and CW3 is illegal and void as something cannot be put on nothing.
That since the Defendant dismissed the Claimant from its employment before conclusion of the criminal proceedings against the Claimant and upon which he was discharged and acquitted, the reason for the dismissal which is criminal in nature cannot stand and the court should therefore hold that the Claimant’s employment with the Defendant is still subsisting.
See The Shell Petroleum Development Co. Ltd V. Olarenwaju (2002) 16 NWLR (Pt. 792) 45; and Savannah Bank Plc. V. Fakokun (2002) NWLR (Pt. 749) 549.
On Issue two (2) identified for determination by the Claimant, it was argued that the Claimant has on the balance of probability established his case to be entitled to judgment in his favour. See Section 134 of the Evidence Act, 2011.
That the claimant’s evidence was uncontroverted to the effect that he was dismissed on an alleged criminal misconduct as stated in exhibit CW2 (the query), and exhibit CW3 (the letter of dismissal) clearly stated that the Claimant was dismissed with respect to his response to the query (exhibit CW2).
According to the Claimant, even though the learned counsel to the defendant during cross-examination asked the Claimant if he was aware that the police is not under the control of the defendant to which the Claimant answered in the affirmative, that question is of no moment because it is a notorious fact that the police is under the control of the executive arm of the Federal Government being a creation of statute and the Constitution, which the court should take judicial notice of.
That since the criminal allegations leveled against the Claimant were not proved beyond reasonable doubt which resulted in his being discharged and acquitted of the criminal charges, and the defendant did not reverse the claimant’s dismissal after his discharge and acquittal by the court, the Claimant has proved that his dismissal from service by the defendant did not comply with due process with respect to employer/employee relationship.
According to the Claimant, since the management of the defendant who determined the claimant’s faith based on exhibit CW2 (the query) is not a court of law and the same management of the defendant acted as the accuser and the judge in its own case of a criminal nature, the Claimant’s constitutional right to fair hearing was infringed upon in the processes leading to his dismissal from service.
It was finally submitted on behalf of the Claimant that, since the Claimant pleaded his response to the query and gave the defendant notice to produce same but the defendant failed to produce the document knowing that it will negatively affect its case, and the evidence of the Claimant was neither challenged nor controverted, he has established his case before the court and is therefore entitled to all the reliefs being sought from the court.
DEFENDANT’S SUBMISSIONS.
The Defendant in its Final Written Address distilled two (2) issues for determination, to wit:
- Whether the Defendant ever instigated the arrest, detention and prosecution of the Claimant at any time.
- Whether the dismissal of the Claimant from the employment of the Defendant is illegal and thus null and void.
The Defendant by way of preliminary arguments submitted that, it is the law that a Plaintiff in an action must succeed on the strength of his case even where the evidence is unchallenged. And even where the evidence is unchallenged and uncontroveted, the court still has the duty to evaluate the evidence and be satisfied that same is credible and sufficient to sustain the Claimant’s case. See Maduabum V. Nwosu (2010) All FWLR (Pt. 547) 678 at 705; Martchem Ind. (Nig) Ltd V. M. F. Kent (WA) Ltd (2005) All FWLR (Pt. 271) 1 at 13; Gonzee (Nig) Ltd V. Nigerian Educational Research and Development Council (2005) All FWLR (Pt. 274) 235 at 249 – 249 and Agbi V. Ogbeh (2006) All FWLR (Pt. 329) 941 at 969. Also sections 131 and 133(1) of the Evidence Act, 2011.
According to the Defendant, by law a Defendant is not bound to call evidence in a proceeding to establish his defence where a prima facie case has not been proved by the plaintiff; and the refusal of a Defendant to testify or prove his case does not remove/reduce the burden placed on the Claimant to establish his case. See Health Care Products (Nig) Ltd V. Bazza (2004) 3 NWLR (Pt. 861) 582 at 605 – 606 H – D; Atunwa V. Ladenike (1998) 7 NWLR (Pt. 557) 221 at 228 – 229 H – A; and O. Arabambi V. Advanced Beverages Ind. Ltd (2005) All FWLR (Pt. 295) 581 at 602 G – H.
On Issue one (1) it was argued that, for a plea of malicious prosecution to be sustained, four ingredients must be pleaded and established by the Claimant, to wit:
- That he was prosecuted by the Defendant.
- That as a result of the prosecution, the Claimant was discharged and acquitted.
- That the prosecution by the Defendant was without reasonable and probable cause.
- That the prosecution was as a result of malice by the Defendant against the Claimant.
See Bayol V. Ahemba (1999) 10 NWLR (Pt. 623) 381; UAC (Nig) Plc V. Sobodi (2007) 6 NWLR (Pt. 1030) 368; Musa V. Yusuf (2006) 6 NWLR (Pt. 977) 454; and CBN V. Okojie (2004) 10 NWLR (Pt. 882) 488.
The learned counsel to the Defendant referred the court to paragraphs 7, 11, 12, 13 and 14 of the Statement of Facts and submitted that, where a complaint is made to the police, the police has the duty to properly investigate the complaint and decide what necessary actions to take in the circumstance of the case. See Asua V. Tofi & Ors (2001) FWLR (Pt. 72) 2054; Alhaji Atta V. COP, Kogi State (2003) FWLR (Pt. 185) 407 at 418; SGBN Ltd V. Afekoro (1999) 11 NWLR (Pt. 628) 521; and Onah V. Okemwa (2011) All FWLR (Pt. 565) 357 at 375.
It was further submitted by the Defendant that, where a person merely makes a report or gives information to the Police and the Police goes ahead to make an independent judgment on the matter, it will not be sufficient to form the basis of a claim for malicious prosecution because in an action for malicious prosecution, the Claimant must plead and also successfully show by credible evidence that the Defendant, apart from merely reporting to the Police and leaving it at the discretion of the Police, actively instigated the prosecution of the Claimant. See Ojo V. Lasisi (2003) FWLR (Pt. 156) 886 and Effiom V. Ironbar (2001) FWLR (Pt. 53) 137.
To the Defendant since the Claimant neither pleaded nor led any evidence to show that the Defendant was in any way instrumental to the decision of the Police to charge the claimant to court as a counsel holding or watching brief in a criminal trial has no say in the trial, nor did the claimant tender any court judgment discharging and acquitting him of criminal charges, the Claimant has not established that he was prosecuted by the Defendant or that the Defendant was actively instrumental in the prosecution of the Claimant.
That the Claimant neither raised the issue of malice nor placed any material before the court to establish malice on the part of the Defendant against the Claimant. And the court should therefore hold that the Claimant has not established the mandatory ingredients needed legally to substantiate a claim for malicious prosecution, and resolve Issue one (1) in the negative.
Regarding Issue two (2), it was submitted that the dismissal of an employee by the employer cannot be declared null and void and the available remedy in the circumstance is in damages. See Osisanya V. Afribank Nig. Plc (2007) 6 NWLR (Pt. 1031) 565.
That a plaintiff who seeks a declaration that the termination of his employment is a nullity as being contrary to his contract of employment, must establish the following before the court:
- That he is an employee of the defendant;
- The terms and conditions of his appointment; and
iii. The circumstances under which his appointment can be terminated, or he can be retired.
That since by the provisions of exhibit CW1 (the contract of employment) the contract was made subject to all conditions in ‘MCC Conditions of Service’ relating to staff discipline, the onus was on the Claimant to prove that the termination of his employment was wrongful. See Bamgboye V. University of Ilorin (2001) FWLR (Pt. 32) 12 at 48 A – B; Ayorinde V. Oyo State Govt. (2007) All FWLR (Pt. 356) 709 at 722 E – G; Mobil Producing Nig. Unltd V. Asuah (2002) All FWLR (Pt. 356) 709 at 722 E – G; and Texaco Nig. Plc. V. Kehinde (2002) FWLR (Pt. 94) 143 at 157 D – E.
That since in the instant case the Claimant has not placed the terms and conditions of his employment with the Defendant before the court, there is no way the court can determine whether there was any breach of the said terms and conditions of the Claimant’s employment with the Defendant. That an employer can suspend, retire, terminate or dismiss his employees for good or bad reason or even no reason at all and where the action of the employer is found to be wrongful, the employee will only be entitled to damages which would be what was due to him in the period of notice.
On the Claimant’s allegation that he was not given fair hearing before dismissing him, it was submitted by the Defendant that natural justice does not require that a hearing be accorded an employee before his services is terminated by the employer. See Jirgbah V. UBN Plc (2000) FWLR (Pt. 26) 1790 at 1807 B – C.
On the claim of Five Million (N5, 000, 000.000) Naira as damages, it was submitted relying on New Nigeria Bank Plc V. Imonikhe (2002) FWLR (Pt. 118) 1385 at 1428 B – D that an employer has no obligation to award any financial compensation to a dismissed employee.
It was finally submitted by the Defendant that, the termination of a contract of employment even if unlawful brings to an end the relationship of master and servant or employer/employee and a willing employee cannot be imposed on an unwilling employer. That an employee whose contract is wrongfully terminated cannot continue to treat the contract as subsisting and sue for an account of profits which he would have earned to the end of the contractual period.
The learned Defendant’s counsel therefore urged the court to dismiss the action with substantial costs as the Claimant has not made out any case to be entitled to the reliefs being sought in this suit.
CLAIMANT’S REPLY ON POINTS OF LAW:
It is instructive to note that, the Claimant filed a Reply on Points of Law to the Defendant’s Final Written Address on 2nd July, 2018, wherein the Claimant canvassed additional arguments in further support of his case.
On the issue of malicious prosecution argued by the Defendant in its Final Written Address, it was submitted that since neither the Claimant nor the Defendant pleaded malicious prosecution in their pleadings filed before the court, the said issue raised by the defendant together with the authorities cited are completely irrelevant and inapplicable to this case. That the case before the court relates to wrongful dismissal premised on criminal complaint against the Claimant. According to the Claimant, it is the law that parties are bound by their pleadings filed before the court. See Olumosola V. Oloroma (2002) NWLR (Pt. 750) 116.
That since the Defendant did not give evidence in this case when it had the opportunity to do so, it cannot now surreptitiously give evidence in its Final Written Address as counsel’s brief no matter how brilliantly worded cannot take the place of evidence. See United Bank for Africa V. Akparabong & Anor (2002) 12 NWLR (Pt. 939) 247.
That the Defendant who did not give evidence cannot now question the authenticity of the prosecution and subsequent acquittal of the Claimant on the ground that the said judgment of the Magistrate Court was not tendered by the Claimant.
On the case of Osisanya V. Afribank (supra) cited by the defendant to the effect that the dismissal of an employee cannot be declared null and void as his remedy is in damages, it was submitted by the Claimant that, the authority applies only where the basis of the dismissal is not premised on criminal allegation but rests basically on the exercise of the right of the employer to hire and fire his employees in which case the employer is not obliged to give reasons for the termination or dismissal of the employee. That where however the termination/dismissal is premised on criminal conduct of the employee and the employer fails to prove beyond reasonable doubt or establish the offence in support of the dismissal, such a dismissal will be declared null and void, relying on the case of SPDC V. Olarenwaju (supra).
On the defendant’s submission that exhibit CW1 (the Employment letter) was made subject to terms of a certain service contract, it was argued that the said exhibit CW1 being the only document given to the Claimant and containing his salaries and entitlement, he has successfully laid before the court the terms of his employment. According to the Claimant, if the Defendant knew of another document containing the terms and conditions of service it was incumbent on it to plead and produce same before the court.
That since the Defendant did not lead evidence in support of its Statement of Defence, there is no defence in this case as pleadings not supported by evidence goes to no issue particularly that the Defendant rested its case on the case of the Claimant.
COURT’S DECISION
Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, I am of the view that the Claimant’s Issue two (2) is comprehensive enough to determine the issues in controversy, and I shall therefore adopt the said Issue distilled by the Claimant in determining this matter.
Before I delve into the consideration of the issue in question, may I observe that even though the Defendant filed a Statement of Defence together with a Witness Deposition on Oath deposed to by one Pius Uchuno Esq. on 19th December, 2017, when the matter came up for trial on 5th June, 2018, the learned counsel for the Defendant N. A. Ayewoh informed the court that the defendant did not intend to call any witness and was resting its case on that of the Claimant. The implication of the position taken by the learned Defendant’s counsel is that the said Witness Deposition on Oath of Pius Uchuno Esq. having not been adopted as evidence in this suit is deemed to have been abandoned and same is hereby struck out.
I shall now proceed to consider the sole issue identified for consideration in this case, which is whether on the balance of evidence before this court the Claimant has proved his case to be entitled to the reliefs claimed.
It is now the law as well laid down in a legion of decided cases that, in an action for wrongful dismissal from service, the onus is always on the Claimant to not only establish through credible evidence the terms and conditions of the said contract of employment but also how and in what manner those terms and conditions have been breached by the employer. In the case of James A. Ikuma V. Civil Service Commission Benue State & 2 Ors. (2012) LPELR-8621(CA), the appellate court per Tsamiya, J.C.A. held as follows on what a Claimant needs to do in order to establish a claim for wrongful dismissal:
“It is the principle of law that in action for declaration that dismissal is null and void, as in this case, the plaintiff must plead and prove the terms and conditions of appointment. See NITEL VS OSADIN (1999) 8 NWLR (Pt. 616) 528 at 341 and 544. Where the pleadings and evidence of the plaintiff fall short of the standard set out above it is fatal to the plaintiff case.”
See United Bank for Africa Plc V. Nkolika Oranuba (2013) LPELR-20692(CA).
This legal position of he who asserts must prove that which he asserts in order to succeed in his claim before the court is in line with the provisions of sections 131, 132, 133 and 134 of the Evidence Act, 2011, and judicial pronouncements such as enunciated by the apex court in the case of Famfa Oil Limited V. Attorney – General of the Federation & Anor. (2003) LPELR-1239(SC), where the Supreme Court reiterated the principle in the following words:
“The decision that the appellant had to prove that he did all he had to do, in the circumstance of this case, is a great error. Therefore, in allowing the appeal and holding that the appellant did not prove that he did all he had to do to take out the Originating Summons is shifting the burden of proof on a wrong party. The evidential principle of who asserts must prove has stayed with us for long that it is too late now to change the rule.”
In the bid to establish the existence of an employment relationship between the Claimant and the Defendant, the Claimant pleaded in paragraph 3 of the Statement of Facts that he was employed by the Defendant vide letter of employment dated 20th December, 2006 but with effect from 8th January, 2007. This was also the Claimant’s evidence in paragraph 4 of his deposition on oath. The Claimant equally tendered the letter of employment (exhibit CW1). These pieces of evidence which to my mind were neither challenged nor controverted by the Defendant go to show that the Claimant has established the existence of an employment contract between him and the Defendant. I so find and hold.
The Claimant herein is urging the court to declare as illegal and unlawful his dismissal from the employment of the Defendant having regards to the terms of his employment. The question agitating my mind is what are the terms/conditions that governed the employment of the Claimant with the Defendant?
Exhibit CW1 which is the employment letter is reproduced hereunder.
MCC/MPTD/265/2006 Port Harcourt 20th December, 2006
Mr. Ini Bassey Thompson
Uda – Iko
Eket
Sir,
OFFER OF APPOINTMENT
With reference to your application for employment and subsequent interview, we are pleased to inform you that you have been offered appointment as an Assistant Surveyor on MCC Job Grade Level FSG4 Step 000 on a salary of N7, 943.00, per month effective 8th January, 2007.
In addition, you will be paid the following allowances relating to Junior Staff as per MCC Terms and condition of Service:
- Transport Allowance – N2,400.00
- Housing Allowance -N3177.00
- Meal Subsidy -N880.00
- Utility Allowance -N300.00
- Family Medical Allowance -N750.00 (after three months of your employment)
You must be ready to serve the Company for a minimum of three (3) years before electing to withdraw your services.
You will be subject in all respects to all conditions stipulated in MCC conditions of service that relates to staff discipline.
You will in addition be required to elect a Guarantor (who will be of high integrity) to execute a Fidelity Bond in your behalf.
If this offer is acceptable to you, please call at the Manpower and Records section of the Personnel Department without delay in order to complete other employment formalities and further discussion relating to this offer.
If we do not hear from you within ONE WEEK from the date of this letter, this offer will be considered null and void.
Yours faithfully,
(MONIER CONSTRUCTION COMPANY (NIGERIA) LIMITED.
It is instructive to note that, exhibit CW1 reproduced above was made subject to the Conditions of Service of the Defendant relating to staff discipline. The said conditions of service was however not produced by the Claimant to enable the court ascertain whether or not the terms and conditions of the employment were flouted by the defendant and in what manner were they flouted. In the absence of the Staff Conditions of Service I do not know how the Claimant expects the court to know the terms of the said employment and in what manner were the said terms flouted by the Defendant as being alleged in this suit. The letter of employment reproduced above (exhibit CW1) provides for only the Claimant’s remunerations and allowances and made reference to the Defendant’s Staff Conditions of Service with respect to staff discipline. The said Conditions of Service which is important in determining this matter was not tendered by the Claimant.
The allegation against the Claimant which eventually led to his dismissal from the service was that on the 24th of November, 2009 the Claimant surveyed and supervised an illegal job at Obidianso Street, Mile 2 Diobu Port Harcourt without authorization. And that such act amounted to sabotage and a serious misconduct on the part of the Claimant.
Exhibit CW2 which clearly captures the allegations against the Claimant is reproduced hereunder for clarity:
MCC/PD/IRW/701/2009
Port Harcourt
November 30, 2009
Mr. Thompson Ini Bassey
ufs: Contracts Manager
MCC (Nig) Ltd
Port Harcourt
Dear Sir,
QUERY
Report forwarded to the Industrial Relations and Welfare section indicates that on 24 November, 2009 you surveyed and supervised an illegal job at Obidianso Street, Mile 2 Diobu without authorization.
As you are aware, your action amounts to sabotage which is a serious misconduct and violates MCC Terms and Conditions of service.
You are therefore required to explain within twenty-four (24) hours in writing on receipt of this query why disciplinary action should not be taken against you for misconduct.
It may be necessary to advise that your written response should reach the Personnel Department within the stipulated time frame otherwise Management would be free to take appropriate action.
Yours faithfully,
MONIER CONSTRUCTION COMPANY (NIGERIA) LIMITED
cc: General Manager
Contracts Manager
Survey Coordinator
It will seem that the Claimant responded to the query (exhibit CW 2). This could be gleaned from the letter written by the Claimant’s Solicitors to the Defendant (exhibit CW4) wherein it was stated in paragraph ‘b’ that, ‘That notwithstanding the thorough and detailed explanation rendered by our Client concerning the alleged illegal job he was subsequently dismissed from your employment vide a letter dated 14th December, 2009 and all his salaries and emoluments confiscated.’
Again the Claimant failed to tender the said ‘thorough and detailed’ response to the query (exhibit CW2). This clearly does not support the Claimant’s assertion that he was not given a fair hearing because by his admission vide exhibit CW4 he was issued a query which he responded to. It is therefore my humble view that the Claimant was afforded the opportunity to respond to the allegations made against him. I so find and hold.
The bone of contention in this suit is exhibit CW 3 which is the letter dismissing the Claimant from the service of the Defendant. The said exhibit CW3 is also reproduced hereunder for the purpose of clarity.
MCC/PD/IRW/718/2009 Port Harcourt December 14, 2009
Mr. Thompson Ini Bassey
ufs: Contracts Manager
- C. C. (Nig) Ltd
Port Harcourt.
Dear Sir,
DISMISSAL FROM SERVICE
We refer to our query letter dated November 30, 2009 requesting an explanation why you surveyed an illegal job at Obidianso Street Mile 2 Diobu without authorization. Management has found your explanation unsatisfactory and unacceptable and has therefore decided to dismiss you from the service of the Company.
Consequently, you are hereby dismissed from the service of Monier Construction Company (Nigeria) Limited with effect from 20th December, 2009.
Your salary for the month of November/December, 2009 shall be withheld to defray part of the hire rate of the Grade MCC 3938 and the cost of repair of the damage incurred while engaging in the unauthorized job.
Please handover any company property that may be in your possession including your staff Identity Card to your superior officer before leaving the Company premises.
Yours faithfully,
MONIER CONSTRUCTION COMPANY (NIGERIA) LIMITED
cc: Contracts Manager
Surveyor Coordinator
Security Section
Wages & Salaries Section
The Claimant gave evidence to the effect that the alleged job that led to his dismissal was not an illegal job because he was detailed to undertake the job by his supervisor in the Defendant’s office on the 24th of November, 2009 under the Rivers State Government’s Road Maintenance initiative tagged, ‘Operation Zero Pot hole.’ The Claimant did not make any effort to call the said supervisor or even subpoena him to testify in this matter.
Another point raised by the Claimant is that the Defendant made a complaint to the Police upon which he was arrested, detained and subsequently charged to court. That after the trial he was discharged and acquitted of the charges against him in a judgment delivered on 12th December, 2012. That since his arrest and detention and subsequent trial was instigated by the Defendant, he ought to have been reinstated to his office after his discharge and acquittal by the Magistrate Court.
I have gone through all the documents tendered by the Claimant and admitted in this suit and the said judgment of the Magistrate Court which discharged and acquitted the Claimant is not in evidence before this court. I do not know how the Claimant would want the court to believe this piece of evidence that he was tried, discharged and acquitted without the production of the said judgment or even the records of proceedings of the Magistrate Court that acquitted him. The law is that proceedings and judgments of courts can only be established through the production of the proceedings/judgments or the duly certified copies of same and not through oral evidence. See Major Bukar Alibe (Rtd) V. Alhaji Yaro (2001) LPELR-7022(CA).
As stated earlier in this judgment, the Defendant chose not to give evidence in this suit but rather rested its case on that of the Claimant. The legal import of what the defendant did was aptly stated by the apex court per Ogbuagu, JSC in the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) V. Samuel David Eke-Spiff & 4 Others (2009) LPELR-3152(SC) as follows:
“Thirdly, the Appellants rested their case on that of the Plaintiffs/Respondents. So, the evidence of the Respondents, remained uncontroverted. It is now settled that the implication where a defendant rests his case on the plaintiffs case, it may mean that:
(a) that the defendant is stating that the plaintiff, has not made out any case for the defendant to respond to; or
(b) that he admits the facts of the case as stated by the plaintiff or
(c) that he has a complete defence in answer to the plaintiffs case.
See the cases of Akanbi v. Alao (1989) 3 NWLR (pt. 108) 118; (1989) 5 SCNJ 1 and NEPA v. Olagunju & Anor. (2005) 3 NWLR (pt. 913) 603 @ 632 C.A.
In the case of Aguocha v. Aguocha (2005) 1 NWLR (Pt. 906) 165 @ 184 citing Akanbi v. Alao (supra), it is stated that a situation where a defendant failed/fails to lead evidence in defence, but rested his case on that of the plaintiff, it is regarded as a legal strategy and not a mistake. If he succeeds, then it enhances his case, but if he fails, that is the end of his case. So it is in this instant case leading to this appeal. They failed woefully, in their strategy – i.e. not to testify or defend.”
Now in the instant case, can it be said that the defendant’s strategy of not testifying or defending this suit enhances the case of the defendant? I am of the humble view that it does. I do not think the Claimant has placed sufficient evidence before the court to discharge the onus of proof placed on him. More so, the reliefs being sought from the court by the Claimant are declaratory in nature and it is the law that even where the defendant elects not to testify in a suit, that will not entitle the Claimant to automatic judgment as a matter of course. He still has to adduce credible and sufficient evidence to sustain the claim. The Claimant to my mind has failed to adduce such credible and sufficient evidence to establish his case before the court.
The law is trite that a Plaintiff (in this instance Claimant) must win or succeed on the strength of his case and not to depend on any weakness on the case of his opponent. See the case of Chukwuemeka Anyafulu & 4 Ors. V. Maduegbuna Meka & 5 Ors. (2014) 57 NSCQR, 185 at 216, where the apex Court per Walter Samuel Nkanu Onnoghen, JSC (as he then was) held as follows:
“Also settled law is the principle that a plaintiff must succeed on the strength of his case and not on the weakness of the defence, though in an appropriate case, a plaintiff can rely on the weakness of the defence to establish his claim. Where that exception operates it must be seen clearly that the case of the defence, which constitutes its weakness, supports the facts pleaded by the plaintiff otherwise it is worthless, as same would have no evidential value.”
See also the case of Jovinco Nigeria Limited & Anor V. Mr. Emeka Ibeozimako (2014) LPELR-23599(CA), and Linus Nwajagu & Ors V. Francis Okoli & Ors (2014) LPELR-22926(CA).
May I now look at the reliefs being sought by the Claimant in this suit to ascertain whether they can be granted by this court.
Relief ‘a’ is for a declaration that the dismissal of the Claimant by the Defendant with effect from 20th December, 2009 is illegal, unlawful, null and void. This relief is not supported by any credible evidence and same is hereby refused.
Relief ‘b’ which is for a declaration that the Claimant is entitled to all his salaries, allowances, emolument and benefit due to him from December, 2009 to December, 2012 is also refused as same is neither supported by evidence or law. The Claimant has not shown this court that he worked for the defendant upto 2012 as being claimed. The law is trite that a letter of termination of appointment becomes effective from the moment same is issued and delivered, and an employee is not entitled to salaries for services not rendered. In this case, the Claimant’s employment with the defendant was effectively brought to an abrupt end on 20th December, 2009 vide exhibit CW3. It is therefore out of place for the Claimant to claim salaries upto 2012 when it is clear that he did not work for the Defendant in those periods. This is clearly not an employment with statutory flavor. See Adekola Oluwakemi Funlola V. C & M Exchange (2016) 64 NLLR (PT. 228) 553 at 574 – 575. Relief ‘b’ is therefore refused.
I now turn to relief ‘c’ which is for a declaration that the claimant’s contract of employment with the defendant is still subsisting. I have held on relief ‘b’ that this is not an employment with statutory flavor and that the claimant’s employment with the defendant ended effectively on 20th December, 2009. This relief can therefore not be granted as no court of law can force or foist a willing employee on an unwilling employer. See Patrick Ziideeh V. Rivers State Civil Service Commission (2007) LPELR-3544(SC). Relief ‘c’ is therefore refused.
Relief ‘d’ is for a declaration that the arrest, detention and prosecution of the Claimant at the instance and instigation of the defendant is illegal and unlawful. This relief is equally not supported by any credible evidence and same is hereby refused.
The last relief which is relief ‘e’ is for the sum of Five Million (N5, 000,000.00) Naira as damages against the defendant. The claimant has also not proved that he is entitled to the said sum of Five Million Naira (N5, 000,000.00) or any sum as damages in this suit. This relief is also refused.
In the final result, I hold that the Claimant’s case is unmeritorious.
It accordingly fails, and same is hereby dismissed.
I make no order as to costs.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
