MR VICTOR AHUAMA -VS- NALCO ENERGY SERVICES NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

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

Dated: 29^th day of April, 2019 SUIT NO: NICN/PHC/76/2018

BETWEEN:

MR VICTOR AHUAMA CLAIMANT

AND

NALCO ENERGY SERVICES NIGERIA LIMITED
EMMANUEL OGOLO
FEMI ADEOLA DEFENDANTS

Representations:

C.D. Asomeji for the Claimant .

Tope Solola with Lugard Tare-otu for the Defendants.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 2^nd of July, 2018 along with an affidavit of verification, a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

The Claimant is by the Complaint and statement of fact claiming against the Defendants jointly and severally, the following:

A DECLARATION that the determination of the Contract of the Claimant upon unfounded allegations without paying his terminal benefits accruing from his previous employment with Keedak (Nigeria) Limited is unwarranted, unlawful and wrongful.
A DECLARATION that the suspension of the Claimant without proper procedure is wrongful, mala fide and a nullity.

iii. A DECLARATION that the Claimant is still in the employment and service of the Defendants until properly terminated and therefore entitled to monthly salary of the sum of N681, 029.76 from the date of the said termination till judgment is given.

A DECLARATION that the Claimant is entitled to a status car worth N25, 000,000.00 (Twenty Five Million Naira) and 2017 sales commission of 5, 000,000.00 (Five Million) Naira only.
AN ORDER COMPELLING THE DEFENDANTS to pay the Claimant the total sum of 29,918,746.99 (Twenty-Nine Million, Nine Hundred and Eighteen Thousand, Seven Hundred and Forty-Six Naira Ninety-Nine Kobo) only being the Claimant’s total earnings.

PARTICULARS

EARNINGS

AMOUNT

Terminal benefits accruing from his previous employment with Keedak (Nigeria) Limited

N19, 486, 378.99

Flight fare for the company’s paid holiday abroad for staff.

N1, 832,368.00

Travelling allowance of $10,000 USD converted at N360

N3,600,000.00

2017 Sales Commission

N5, 000,000.00

TOTAL

N29,918, 746.99

In reacting to the claims, the Defendants on the 23^rd October, 2018 filed a joint Statement of Defence which was accompanied by witness statement on oath, list of witnesses, list of documents and copies of the documents to be relied upon at trail.

The Claimant in reaction to the joint statement of defence of the Defendants also filed a reply on the 11^th of January, 2019

Trial of the case commenced on 14^th of January, 2019. In opening his case, the Claimant himself as sole witness was called as CW1 and he adopted his witness statements on oath marked as C1. Through the CW1, 10 documents were tendered and admitted in evidence as Exhibit C2 – C11.

Arising from the statement of claim and witness statements on oath, the case of the Claimant is that he was under the services of Keedak Nigeria Limited for over ten (10) years before the interest of Keedak Nigeria Limited was acquired by the 1^st Defendant and some of her workers including the Claimant were absorbed into the 1^st Defendant Company and he was directly absorbed and employed into the services of the 1^st Defendant on the 21^st Day of January, 2016. Claimant posited that on 7^th day of November, 2017, he received a mail from the 2^nd Defendant on the refund of Custom Duty to Transglobal Express Services Nig. Ltd from Mobil Producing Nigeria Unlimited, and he responded to the mail. Later, the 3^rd Defendant was appointed to look into the allegations of fraud made against the Claimant. The 3^rd Defendant unilaterally made recommendations. On the 10^th of November 2017, he was served with a suspension letter. He posited that he was never called to appear before any panel or put up any defence to the allegations against him before the termination of his contract of employment on 1^st December, 2017. Claimant posited that one of the grounds for the termination of the Claimant’s contract was that he assigned an air freighting job to an individual, one Mr. James Okwuadigbo who was neither registered with nor authorized to deal with the company in his personal capacity and allowed payment to be made to him. Claimant posited that he never assigned any air freight to anyone directly as the dispatch letter dated June 27, 2016 was not signed by him. Claimant posited that he wrote through his lawyers to the Defendants to challenge the manner of the termination of his employment and to demand for the payment of his entitlements. On the 17^th of January, 2017, Claimant received a fund transfer in the sum of N9,005,75.81 (Nine Million Five Thousand Seven Hundred Sixty-Five Naira Eighty-One Kobo) only but contends that the sum does not represent the total sum of his terminal benefits of the sum of N19, 486, 378.99 accruing from his previous employment with Keedak Nigeria Ltd. and that the Defendants have failed to pay other sum highlighted in his claim and the failure to pay the monies have caused him untold mental agony and several economic loss to his family.

Upon cross examination of CW1, he posited that he was the Head/Manager Logistics during his employment but it is not part of his duty to vet shipping documents. He admitted that he was responsible for authorizations and approvals but not for engagement of contractors . He admitted his department was responsible for monitoring the activities of the contractors. He admitted that his functions are not the same as with the previous employment. He stated that he is not aware that fraud was committed in the process of clearing and he was not aware that a forged document was sent to Mobil Producing. He admitted being aware of Exhibit C5. CW1 also admitted that he was invited to face a panel but it wasn’t a panel as it was a meeting and not a serious one. He posited that the N19 million he is claiming is the money he earned from Keedak and given to NALCO in trust. He admitted being paid N29 million from Keedak Nig Ltd. He stated that he only collected a part of his terminal benefit. He posited that the travel allowance was reviewed from $2000 to $10,000. He denied that travel allowance and ticket amounting to N1.733million and N715,000 equivalent of $2000 was paid to him.

He posited that the transport allowance paid to him was not enough that is why he is asking for a status car.

The Claimant upon the discharge of CW1 closed his case while the Defendant opened theirs by calling one witness in person of Tonye Anagwu as DW1 whose witness statement on oath was adopted and marked as D1. Eighteen documents were tendered through DW1 and same were admitted in evidence as D2 – D19.

Arising from the statement of defence and witness statement on oath, the case of the Defendant is that the Defendant is not formerly known as Keedak Nigeria Ltd as they merely acquired certain assets of the said Keedak Nigeria Limited. The Defendant narrated its version of the incidence leading to the termination of the Claimant’s employment in that:

as part of the 1^st Defendant’s business relationship with Mobil Producing Nigeria Unlimited (Mobil), the 1^st Defendant usually facilitates the air transportation (freight) of cargo containing petrochemicals to Mobil, and Mobil usually pays the custom duties for the transportation of the cargo.

Sometime in June 2016, the 1^st Defendant was required to make an urgent shipment of cargo to Mobil and because this shipment was deemed “urgent” by the Shipping and Logistics Department of the 1^st Defendant, the duty for the shipment was to be paid for by a clearing agent on behalf of the 1^st Defendant.

To perform the task, the Claimant was to engage Highlight Ventures Ltd., the company which the 1^st Defendant usually engages as its clearing agent to conduct its Airfreight operations, for the purpose of making the payments on the custom duties for the cargo on behalf of Mobil, after which the 1^st Defendant would refund Highlight Ventures Ltd, and then forward an invoice to Mobil for reimbursement.

In furtherance, the Claimant, as the Manager of the Shipping and Logistics Department of the 1^st Defendant Company, issued instructions for the assignment of the clearing of an Airfreight to one James Okwuadigbo (who is not an authorized clearing agent of the 1^st Defendant) in his personal capacity, and under the guise that same was being assigned to Highlight Ventures Ltd, contrary to the policy of the 1^st Defendant (of using only pre-authorised vendors for the provision of services).

Upon the payment of the customs duties for clearing the Airfreight, the said James Okwuadigbo. through Trans-Global Express Services Ltd, raised an invoice for refund of same to the tune of N3, 177,755.00 (Three Million, One Hundred and Seventy-Seven Thousand, Seven Hundred and Fifty Five Naira) with a customs receipt purportedly issued by Zenith Bank attached thereto and presented same to the 1^st Defendant Company for refund.

The 1^st Defendant upon receipt of the invoice from Trans Global Express Services Ltd refunded the invoiced sum of N3,177,755.00 (Thee Million, One Hundred and Seventy-Seven Thousand, Seven Hundred and Fifty Five Naira) to Trans Global Express Services Ltd. The 1^st Defendant then proceeded to issue an invoice (Invoice No.17/000700421) to Mobil seeking a refund of the said N3,177,755.00 (Thee Million, One Hundred and Seventy-Seven Thousand, Seven Hundred and Fifty Five Naira), as has been the practice between the 1^st Defendant and Mobil.

Upon receipt of the 1^st Defendant’s invoice, Mobil forwarded same to Zenith Bank Plc. (Zenith Bank) to verify the original payment of the custom duties by Trans Global Express Services Ltd. Upon verification, Mobil rejected the Defendant’s invoice consequent upon the advice of Zenith Bank, that the customs receipt accompanying the 1^st Defendant’s invoice which was submitted to the 1^st Defendant by TransGlobal, was false/fake as it was not issued by Zenith Bank.

Upon receipt of Mobil’s rejection of the 1^st Defendant’s invoice for refund, the Finance Department of the 1^st Defendant lodged a formal report to the Compliance Unit of the Defendant which proceeded to carry out its enquiries and investigations, which involved seeking and obtaining the Claimant’s representations in providing an explanation on all that transpired in relation to the above-described Airfreight transaction, as he supervised the said transaction, given his role as the Head/Manager of the Shipping and Logistics Department.

Upon investigation by the Compliance Unit of the 1^st Defendant, it was discovered that the Claimant, who being the Manager of the Shipping and Logistics Department of the 1^st Defendant Company at the material time, had been grossly negligent in assigning the clearing of the Airfreight to James Okwuadigbo who misrepresented himself to the 1^st Defendant as being authorized by, and acting on behalf of Highlight Ventures Ltd. whereas whilst James Okwuadigbo was an employee of Highlight Ventures Ltd, he converted the Airfreight transaction (officially assigned/awarded to Highlight Ventures Ltd. by the 1^st Defendant) to his personal favour, using Trans Global Express Services Ltd.

The investigation further revealed that the Claimant also negligently approved the payment of the invoice issued by Trans Global for refund of customs duty paid in respect of the said clearing of Airfreight despite the fact that the same Airfreight had been officially assigned to Highlight Ventures Ltd., without making any prior verification. It was also discovered that the true amount of money paid as custom duties in clearing the Airfreight was N80,070.00 (Eighty Thousand, Seventy Naira) and not N3,177,755.O0 (Three Million. One Hundred and Seventy-Seven Thousand. Seven hundred and Fifty Five Naira) as fraudulently misrepresented in Trans-Global’s invoice.

Upon the discoveries, the 1^st Defendant communicated with TransGlobal to provide it with clarification, with a view to confirming the truth of the matter. In response, Trans-Global wrote a letter to the 1^st Defendant, dated 7/11/2017, wherein it denied its involvement in the Airfreight operation and confirmed that its letterhead and company name had been used by a third party (James Okwuadigbo) to issue the invoice for refund of the custom duties to the 1^st Defendant.

The Defendants posited that the 3rd Defendant is the Head of Compliance unit saddled with the duty of investigating any report of misconduct hence he was not instructed to investigate the Claimant but was merely performing his job. They added that the Claimant was given opportunity to make oral representation and defence of his case and was also queried through an internal memo upon which he made written representation in response. The Defendants posited that the suspension of the Claimant with full salary was to allow them carry out investigation without interference.

The Defendants further posited that the sum of N19, 486,378.99 (Nineteen Million, Four Hundred and Eighty Six Thousand, Three Hundred and Seventy Eight Naira, Ninety Nine Kobo) referred to by the Claimant in Paragraph 24 of the statement of fact does not form part of the Claimant’s end of service/terminal payments or entitlements by virtue of the Claimant’s contract of employment with the 1^st Defendant Company. They added that same amount were only mentioned in paragraph 1 of the contract of employment with the 1^st Defendant for the purpose of calculating the terminal benefits only in the event of redundancy and under no other circumstance. They added that the Claimant had been paid N29,306,329.53 (Twenty Nine Million, Three Hundred and Six Thousand, Three Hundred and Twenty Nine Naira, Fifty Three Kobo) by Keedak Nig. Ltd as his Gross End of Service terminal benefits and receipt of same was acknowledged by the Claimant.

They added that the payment of sales commission is a gratuitous bonus paid at the discretion of the 1^st Defendant and same is stated in paragraph 11 of the contract of employment. With regards to being entitled to status car, Defendants posited that the Claimant was no longer staff of the 1^st Defendant as at the time of his claim as the car is meant for aiding work efficiency and remains property of the 1^st Defendant. They added that the Claimant had been paid traveling and transportation allowance. They added that the sum of N9,005,765.81 (Nine Million. Five Thousand, Seven Hundred and Sixty-Five Naira, Eighty Kobo only) paid by the 1^st Defendant to the Claimant as the Claimant’s total terminal benefits consisted of and included the sum of N1,733,418.00 (One Million, Seven Hundred and Thirty Three Thousand. Four Hundred and Eighteen Naira) representing the cost of flight tickets for the Claimant and his spouse in the sum of N866,709 (Eight Hundred and Sixty-Six Thousand, Seven Hundred and Nine Naira) each as the Claimant’s vacation benefits provided for in Paragraph 9 of the Claimant’s contract of employment with the 1^st Defendant Company and also covers the $2000 vacation benefit.

The Defendants contended that the Claimant is not entitled to any of the reliefs sought.

Upon cross examination of DW1, she confirmed that the Claimant was initially employed by Keedak Nig Ltd and he worked for 10 years. She agreed that the Claimant did not sign the dispatch letter sent to Highlight Ventures but as head of the unit, all instruction proceeds from him. She posited that she has no document showing that the Claimant earned 19.4 million from his previous employer as at the time he was absorbed by the 1^st Defendant. She posited that the sum stated on Exhibit C2 is as regards computation of redundancy. She posited that when an allegation is made, a panel is set up, a letter of suspension may be issued to avoid interference and when investigation is concluded, HR is notified. She stated that the Claimant was notified via an internal memo before panel was set up. She posited that sales commission is paid only to sales unit but it can be discretionarily paid to other unit. She stated that a status car and official car are the same and the Claimant as a manager is entitled to status car to carry out his official function. She stated that by virtue of her function, all documents concerning all operations on personnel is deposited in her unit hence she is familiar with the subject matter. She posited that the Account Department pay based on approval from the unit head.

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

The Defendants filed their final address on the 4^th of March, 2019 and same was adopted by counsel to the Defendant, Tope Solola Esq., on the 23^rd of March, 2019. Arising from the said final address, counsel to the Defendant formulated a lone issue for determination to wit:

Whether or not on the totality of the pleadings and evidence adduced, the Claimant is entitled to the reliefs sought in this suit?

In arguing the lone issue, counsel submitted that on the totality of pleadings and evidence adduced in support of same, the Claimant failed to prove the claims sought in this suit.

Counsel further submitted that it is settled law that a claimant must provide concrete evidence to establish his case against the defendant and the claimant is obligated to lead evidence in proof of the defendant’s wrong doing occasioning damage before he will be entitled to any relief(s) therefrom. He cited Sections 131, 132 and 133(1) of the Evidence Act 2011 and the cases of C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 @ 539—549 (Ratio 14), A.G. Anambra State v. A.G. Fed (2005) 9 NWLR (Pt. 931) 572 635 and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 @ 122, all to assert the position of the Evidence Act.

Counsel posited that the main grouse of the Claimant is that the termination of his contract of employment upon allegations of gross misconduct without payment of his terminal benefits from his previous employment with Keedak (Nig.) Ltd. was wrongful.

Counsel then submitted that it is settled that an employee who alleges wrongful termination or dismissal must clearly satisfy the Court that the terms of his contract were in any way breached by the Defendant. He cited the case of Daodu v. U.B.N. Plc. (2004) 9 NWLR (Pt. 878) 276 at 296, paras, A-B, Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390 at 405, paras. B — C, Ibania v. S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364 at 378, parrs. G-A and Ansambe v. B.O.N. (2005) 8 NWLR (Pt. 928) 650 at 662 paras. C-D.

Counsel posited that in view of the first relief sought by the Claimant, from the totality of pleadings and evidence led, the Claimant failed to show or prove that there were any terminal benefits accruing from his previous employment with Keedak Nig. Ltd. which was due to him at the termination of his employment by the 1^st Defendant but unpaid by the 1^st Defendant.

Counsel posited that it is settled law that parties to a contract of employment or any contract of any nature, are bound by the clear and express terms of same and no other. He cited the case of Daodu v. U.B.N. Plc. (supra) at 292—293, paras. B-D

Counsel contended that Exhibit C2, the contract of employment between the Claimant and 1^st Defendant which conclusively embedded the 1^st Defendant’s entire obligations to the Claimant, did not provide for the payment of the sum of N19, 486,378,99 (Nineteen Million, Four Hundred and Eighty Six Thousand, Three Hundred and Seventy Eight Naira, Ninety Nine Kobo) to the Claimant as terminal benefits accruing from his previous employment with Keedak (Nig,) Ltd. he added that the only term and clause in Exhibit C2 which refers to the aforesaid amount is Paragraph 1 of the Benefits Section which clearly provides that the said sum would be carried over to the Claimant’s employment with the 1^st Defendant for the purposes of calculating his terminal entitlements upon redundancy only but shall not form part of the Claimant’s end of service payments. Counsel cited section 20 of the Labour Act Cap L.1 LFN 2004 on the definition of redundancy.

Counsel posited that where the wordings and/or terms of a contract of employment or any agreement or document generally, are clear, express and unambiguous, they must be given their literal and ordinary meaning in interpreting them. He cited the cases of Williams v. Williams (2014) 15 NWLR (Pt. 1430) 213 at 234, pat-as. B-and Lewis v. U.B.A. (supra) at 351-352, paras. G-A.

Counsel also argued that by section 128 of the Evidence Act 2011, oral evidence or any other extrinsic evidence is inadmissible to vary, contradict, add to or alter the clear and express wordings or contents of a document which in this case is Exhibit C2.

Counsel proceeded with regards to the suspension of the Claimant which he regarded as being malafide in relief 2 and contended that the Claimant also failed to prove that his suspension before the termination of his employment was done without compliance with due procedure and as such is wrongful, mala fide and a nullity

Counsel posited that claim for a declaratory relief is not granted as of course, nor as of right. The Claimant must rely on the strengths of his case to prove that he is entitled to such a declaratory relief by placing before the Court, sufficient materials to enable the Court exercise its discretion in his favour. He cited the case of Nwagu v. Fadipe [2012] 13 NWLR (Pt.1318) 547 at 564.

Counsel added that the Claimant failed to plead the proper procedure the 1^st Defendant should have followed in suspending him or any evidence that such procedure was not followed. The Claimant also did not place before this Court, any piece of evidence, oral or documentary, chronicling the specific procedure the Defendant should take in suspending an employee. counsel added that the Defendant on the contrary tendered Exhibits D6 wherein the Claimant was notified and the written response of the Claimant was captured.

With regards to relief three, counsel posited that It is not a contested fact that the Claimant’s employment was terminated on December 1, 2017 by virtue of Exhibit C4 (the letter of termination of the Claimant’s employment with the 1^st Defendant)

Counsel further posited that the Claimant failed to prove that the termination of his employment is wrongful and assuming without conceding that he did, this Court cannot declare that he is still in the employment of the 1^st Defendant as it remains the trite position of the law that where an employee’s employment has been terminated, it brings to an end the relationship of employer and employee even though the said termination was unlawful. He cited the case of Dudusola V. N.G. Co. Ltd. (2013) 10 NWLR (Pt. 1363) 423 at 436, para. E.

With regards to claim of status car, counsel contended that the Claimant failed to prove that he is entitled to a status car worth N25,000,000.00 (Twenty Five Million), his employment having been validly determined on December 1, 2017 by Exhibit C4. Counsel posited that the claim had become academic and cited the case of Nnabude v. G.N.G. (W/A) Ltd. (2010) 15 NWLR (Pt. 1216) 365 at 391, paras. E-F.

With regards to claim for the sum of N29,918,746.99 (Twenty-Nine Million, Nine Hundred and Eighteen Thousand, Seven Hundred and Forty-Six Naira, Ninety-Nine Kobo) only, being the Claimant’s total earnings, counsel restated arguments against the claim of the um of N19, 486,378.99 forming part of the Claimant’s terminal benefit which accrued from his previous employment with Keedak Nig. Ltd.

With regards to claims for Flight Fare for the Company’s paid holiday abroad for staff in the sum of N1,832,368.00 and Travelling allowance of $10,000USD converted at N360 to the tune of N3,600.000.00, Counsel submitted that the Claimant failed to prove that he is entitled to that sum as part of his terminal benefits.

Counsel referred the court to paragraph 9 of Exhibit C2 to posit that paid holiday is for staff and spouse with an additional $2000 and that by Exhibit C10, the Voucher Invoice No.0189 attached to the Exhibit C10 shows that the cost of flight tickets for the Claimant and his Spouse (Mrs. Akudo Onia) is the sum of N866,709 each, which adds up to a total of N1,733,418.00 and not N1,832,368.00 as wrongly claimed by the Claimant. He added that the difference of N98,950,00 as shown in the said Voucher clearly represents the cost of the flight ticket for Ahuama Zibah Chizaram, apparently the ward of the Claimant, which the 1^st Defendant is not obligated to pay for in view of the clear terms of Exhibit C2. Counsel added that the Claimant himself had on December, 20 2017 applied for $2000 as additional travelling allowance and not $10,000. He added that Exhibit C7 also reflects a demand of $2000.

Counsel posited that Exhibit D19 provides the computation of the N9,005,765.81 paid to the C1ainant by the Defendant as his entire terminal benefits on January 17, 2018, the receipt of which the Claimant acknowledged.

With regards to claim for the sum of N5,000,000.00 as 2017 Sales Commission, counsel submitted that the Claimant failed woefully to prove the said claim. Counsel added that purport of Exhibit C2 is that the payment of sales commission is at the discretion of the 1^st Defendant’s management and it is also clear from the said term that the Claimant only becomes entitled to Sales Commission where same has been duly approved for him by the management of the 1^st Defendant.

Counsel further argued the merit of the defence of the Defendant by submitting that the law is settled that an employer may terminate the employment of the employee for good reasons or no reason at all provided that the terms of the contract of employment are duly complied with. He cited the cases of Anaja v. U.B.A. Plc. (2011) 15 NWLR (Pt.1270) 377 at 393, paras. G-H; and Dudusola v. N.G. Co. Ltd. (2013) 10 NWLR (Pt. 1363) 423 at 438, para. E. Counsel recounted the proceedings at trial and submitted that pursuant to facts and evidence before this Court, the 1^st Defendant complied with the provisions of the law in dismissing or terminating the employment of the Claimant on the grounds of the Claimant’s misconduct. As such the said termination or dismissal was validly done in law and same is not unlawful or wrongful.

Counsel concluded argument on the strength of the testimony of DW1 and submitted that same does not amount to hearsay.

In conclusion, counsel urged the Court to hold that from the pleadings and evidence adduced, the Claimant have failed to prove his entitlement to the reliefs claimed in this suit and as such urge the Court to accordingly dismiss the claims of the Claimant in their entirety and dismiss this suit.

Reacting to the final address of the Defendants, Claimant filed his Final Address on the 26^th of March, 2019 and counsel to the Claimant, C.D. Asomeji Esq. adopted the said address on the 27^th of March, 2019. Arising from the said final address, counsel to the Defendant, C.D. Asomeji Esq. formulated two issues for determination to wit:

Whether the evidence of the Defendants’ Witness (DW) and her witness statement on Oath is competent and therefore admissible. OR Whether this Honourable (court) can rely on evidence of the Defendants’ witness.
Whether the Claimant has made out a case to move this Honourable Court to grant him the reliefs sought.

In arguing issue one, counsel submitted that the witness deposition of DW1 (Mrs Tonye Anagwu) purported to have been filed on the 10^th day of January 2019 is incompetent. He added that during the evidence in chief of the DW1 on February 4^th 2019, she stated that she made a witness deposition and she posited during trial that she deposed to and signed her Witness Statement on Oath dated 10^th day of January 2019 in her office rather than doing so in the presence of a person authorized to administer oaths. Counsel cited the case of MADUAKOLAM SAMUEL CHIDUBEM V. OBIOMA EKENNA & ORS. (2008) LPELR (CA).

Counsel submitted thereon that where a witness deposition is not signed in the presence of the person authorized to administer oaths, such deposition must be discountenanced and not relied on as it is incompetent. Counsel posited that this court is bound by the cited case in line with the principle of judicial precedent. He cited the case of OBASI v. MACSON Eli. IND. LTD. (2016) 16 NWLR (PT. 1539) 335 at 365 pans B-D.

Counsel further cited the case of MKPEDEM & ORS v. U.S.A PLC & ANOR (2016) LPELR-42039(CA) on what constitutes hearsay evidence. Counsel thereon posited that it is clear from the statement on oath of the DW1 and her evidence, that the intent or object of her testimony both oral and documentary is to establish the truth of the facts surrounding the purported termination of the Claimant’s contract and on that basis, urged the court to dismiss the Claimant’s claims. Counsel cited the case of B.S. (NIG.) LTD. V. OMETRACO INT’L LTD. [2011] 10 NWLR (PT 1255) 290 AT 306-307 PARA H-U and ZENITH BANK PLC & ANOR V. EKEREUWEM & ANOR (2011) LPELR-5121(CA).

Counsel posited that it therefore follows that in dealing with the issue of the testimony of DW1 who is a staff of the 1^st Defendant but was not the official who was directly involved in the said transaction, this court cannot accept her evidence but treat it as hearsay.

He added that it can be gleaned from the records of the courts that the 2^nd Defendant who took part in some of the transactions leading to the purported termination of the Claimant’s employment was listed as the Defendants’ witness but his witness statement on oath was withdrawn and he was substituted with the present DW who never took part in any transaction in this case but claimed to be in possession of documents.

He concluded on the issue by submitting that the Defendants’ defence lacks merit as the witness statement on oath is incompetent and inadmissible as same is hearsay.

In arguing issue two, counsel submitted that the Claimant, from his evidence during examination in chief and cross examination, has sufficiently proved his case and therefore entitled to the reliefs sought.

Counsel cited the case of LASILE v. OGUN & ORS (2017) LPELP-42544(CA) and posited that the Claimant on the balance of probability has discharged the burden on him and such burden shifts to the Defendant to discharge same. He added that he had argued in issue one that the Defendants’ defence cannot stand as the evidence of the DW1 amounts to hearsay and the witness deposition upon which the Defendants’ evidence is hinged is incompetent as same was not duly deposed before an authorized person. He concluded that the Defendants have no standing defence and the evidence as adduced by the Claimant is unchallenged. He contended that when evidence is unchallenged, the court ought to accept such evidence in proof of the issue in contest. He cited the case of lbedigwe v. Fai [2012] 10 NWLR (Pt. 1308) 375 at 406-407 pares G-A.

Counsel recounted the testimony of CW1 on cross examination and posited that goes to show that the claimant led sufficient evidence to prove that the Claimant led sufficient evidence to prove that he was entitled to the said balance of N19 486,378.99 accruing from his previous employment with Keedak and held in trust for him.

With regards to the Claimant’s claim for terminal benefit accruing from his previous employment, counsel posited that it is correct that neither parties nor court is allowed to read meaning into an agreement and oral evidence is not admissible to contradict, vary or alter the contents of any contract or transaction which has been reduced to the form of a document as argued by the Defendants in their written address. However, this is the general rule of law with exceptions of which the claimant’s case falls under. He added that in the instant case, the insertion of the clause denying the Claimant of that which he has already earned is a calculated attempt by the Defendants to use their position to undo the Claimant. Thus, the oral evidence of the Claimant in this regard is admissible. Counsel posited that there is fraud in this instance as the 1^st Defendants through the instrumentality of the 2^nd and 3^rd Defendants used their influence as managers to insert the said clause depriving the Claimant of his already earned benefit accruing from his previous employment.

Counsel submitted that the effect of such action of the Defendants is that it vitiates every contract in which it enters and an instrument, the consideration for which is fraudulent even in part is voidable at the option of the party defrauded. He cited the case of FIRST AFRICAN TRUST BANK LTD. V. PARTNERSHIP INVESTMENT COMPANY LTD. (2000) LPELP-6837(CA) pawn. 385

Counsel urged the court to hold that the Claimant is entitled to the said sum of N19, 486,378.99 accruing from his previous employment with Keedak and held in trust for him and to order the Defendant to pay same accordingly.

With regards to whether the termination of the contract of employment of the Claimant without compliance to due process is not wrongful, malafide and a nullity, counsel posited that where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. He added that the audi alteram pattern principle imposes a duty upon on employer to act fairly by giving the employee an opportunity to explain himself before taking any decision which affects the employee’s proprietary right. He cited the case of UNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR (PT.447) 225 AT 262.

Counsel added that for an employer to dispense with the service of his employee, such employer must show that no rule of natural justice was breached and that he afforded such employee an opportunity to be heard before the termination he cited the case of Yusuf v. U.B.N. Ltd. (1996) 6 NWLR (pt 457)652 at 644, para F-C.

Counsel contended that the Defendants failed to disclose to the Claimant the allegation against him before conducting the kangaroo trial contained in Exhibit C5 as provided by law and thus, failure to disclose the said allegation to the Claimant to enable him prepare his defence is fatal to the Defendants’ case.

Counsel posited that the principle of fair hearing lies in the procedure followed in the determination of the case not the question of how correct the decision is and cited the case of OKON v. ADIGWE [2011)15 NWLR (PT.1270) 550 AT 357 paras D-E.

Counsel further cited the cases of ANAJA V. U. B. A PLC (2011) 15 NWLR (PT 1270)377 AT 398-399 PARAGRAPH G — A and SEED VEST MICROFINANCE BANK PLC & ANOR v. OGUNSINA & ORS (2016) LPELR-41346(CA on the meaning of gross misconduct before positing that the Defendants have not been able to establish that the Claimant acted Mala fide (bad faith).

Counsel also contended that DW1 confirmed the fact that the Claimant never assigned any airfreight to an individual and neither did he sign the said Exhibit C6. Counsel posited that fact which is not denied is deemed to have been admitted and cited the case of AKUDO V. GUINESS (MG) PLC. (2012)15 NWLR (PT 1322)150 AT lit PARAS. B-C.

Counsel added that where there is contradiction in the evidence adduced by a party the court will not pick and choose which to believe; as such evidence is rendered unreliable. He cited the case of ORIENT PHOTO NIG LTD v. ECO BANK PLC (2018) LPELR-44764(CA) and OMEREDE V. ELEAZU (1996) 6 NWLR (PT. 452)1, (1996) LPELR – 2637 (SC) AT 10 -11.

With regards to claim for monthly salary, counsel contended that haven shown that the termination of the contract of employment of the Claimant is wrongful, unlawful and a nullity, the Claimant is still in the services of the Defendant and thus entitled to damages in the sum of N681,029.76 as monthly salary from the time of his purported termination of his employment until judgment is given in this case.

With regards to entitlement to status car, counsel posited that the Claimant also led evidence to prove that he is entitled to a status car. He added that it is the contention of the Claimant in his evidence that all the managers of the 1^st Defendant were given status car but the 2^nd and 3^rd Defendant deliberately refused to give him his even when he is a manager of the 1^st Defendant.

Counsel also contended that the Claimant has led evidence to show that 2017 sales commission which his contract of service stipulates that he is entitled to have remained unpaid.

Counsel concluded that it is the duty of the Court to do justice to an aggrieved party and urged the court to uphold the Claimant’s arguments and grant his claims in its entirety especially because there is no valid defence in the face of the defective statement on oath of the Defendant and evidence of the defendant.

By way of reply on point of law filed by the Defendants on the 27^th of March, 2019, Counsel to the Defendants, Tope Solola Esq. contended in relation to the status of the testimony of DW1 that the position of the law changed in the year 2010, via the decision of the Owerri Division of the Court of Appeal in the case of Barr. Ihuoma Udeagha & Anor. v. Matthew Omegara & 3 On. (2010) 11 NWLR (Pt. 1204) Page 169 at PP 176, 195 — 196 when the court decided on whether a witness statement not sworn before a person not duly authorized (i.e. a person other than a Commissioner for Oaths) remains invalid after the witness has sworn in open court.

Counsel posited that in view of the decision coming later in time, counsel submitted that where there are conflicting decisions of the Court of Appeal on a particular point/issue of law, the trial/High Court is not in a position to pick and choose which one of the decisions it will follow. He added that the position of the law is that the High Court is bound to follow the decision of the Court of Appeal which is later in time. Counsel cited the case of Jimoh Ojugbele v. Mr. Musefiu Lamidi (1999) LPELR-CCN/1/7/99. Counsel thereupon urged the later decision on the court and submitted that because DW adopted her witness statement on oath as her testimony, the said witness statement on oath has been regularized and life has been breathed into same, such that every defect of irregularity imputed on the witness deposition (by the signing of same at DW1’s office) is hereby cured.

Counsel also added that the National Industrial Court is a very specialized court and by the very nature of this Court and the spirit and letters of the enabling Law and Rules establishing and governing the practice and procedure of this Court, this Honourable Court is empowered with the jurisdiction and authority to be informal and flexible with respect to its application of the rules of evidence, in the ultimate interest of justice. Counsel cited section 12 (1) and (2) (b) of the National Industrial Court Act, 2006 and Order 5(3) of the National Industrial Court Rules, 2007 (sic).

With regards to the contention that the testimony of DW1 is hearsay, counsel to the Defendants contended that the case of B.S. (Nigeria) Limited v. Ometraco International Limited (2011) 10 NWLR (Pt. 1255) 290 at 306—307, Paras. H — B. (the Brawal Shipping case) cited by counsel to the Claimant is distinguishable as in that case, the witness who gave testimony was no longer in the employment of the company and the decision of the Court of Appeal was predicated on that fact. Counsel posited that the Court of Appeal was not faced with a situation as in the instant case where the witness is still in the employment of the Defendant and called to testify on behalf of the Company.

Counsel further posited that the fact that the DW1 did not directly engage in the transaction does not make her testimony inadmissible and cited a Supreme Court position in the case of Kate Enterprises Limited v. Daewoo Nigeria Limited (1985) 2 NWLR (Pt. 5)116 SC to posit that any other employee conversant with the facts of the case was competent to testify. Counsel reiterated the point with another Supreme Court decision in the case of Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405 at 424, paras. F-C and posited that the position have been followed by the Court of Appeal in the cases of Interdrill (Nig.) Ltd. v. U.B.A. Plc. (2017) 13 NWLR (Pt. 1581)52 at 74 — 75, paras. C-C; Saleh v. B.O.N. Ltd. (2006) 6 NWLR (Pt. 976) 316 327 paras. A-C., Impact Solutions Ltd. v. Int’l Breweries Plc. (2018) 16 NWLR (Pt. 1645) 377 at 401, paras. A-D.

With regards to the contention of Counsel to the Claimant that the Defendants fraudulently inserted into the Exhibit C2 (Claimant’s Letter of Employment), the clause which states that the Claimant will only be entitled to the payment of terminal benefits in the sum of N19, 486, 378. 99, only for the purposes of calculating redundancy, counsel cited the case of Olalomi Industries Ltd v. Nigerian Industrial Development Bank Ltd. (2009) 16 NWLR (Pt. 1167) P. 266 at 276, 287, Paras. B — D and submitted that the Claimant was strictly obligated to plead and provide adequate particulars for the allegation of fraud which he now makes for the first time in his Final Address. Counsel concluded that the allegation of fraud must fail for failing to meet the requirement of the law.

With regards to the contention of counsel to the Claimant that the Defendants must show that the Claimant acted in bad faith in the actions for which the Claimant’s employment was terminated, counsel to the Defendant contended that the 1^st Defendant is not under any obligation to prove bad faith or contrary interest of the Claimant to terminate the employment of the Claimant. He added that the law is that an employer is at liberty to hire and fire without cause and where however, the employer has cause (i.e. an allegation of misconduct) against the employee, all that the employer is obligated to show and prove is that he gave the employee fair hearing in his investigation and determination of the allegation of misconduct. Counsel cited the case of the case of Chris Eigbe v. Nigerian Union of Teachers (2008) 5 NWLR (Pt. 1081) P 608 —610.

With regards to the case of Akudo v. Guinness (Nigeria) Plc. (2012) 15 NWLR (Pt. 1322) 150 at 171 upon which Counsel to the Claimant posits that the Claimant is to be paid salaries in view of wrongful termination of his employment, counsel to the Defendant submitted that the decision did not in any way decide that a claimant will be entitled to the continued payment of his salaries even after termination of his employment as Counsel for the Claimant totally misapplied this judicial decision.

Counsel urged the court to discountenance the Claimant’s arguments in this regard as it is unsupported in law.

Counsel concluded by urging the court to hold that from the pleadings and evidence adduced, the Claimant have failed to prove his entitlement to the reliefs claimed in this suit and as such the Court should accordingly dismiss the claims of the Claimant in their entirety and dismiss this suit.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, I reckon the sole issue for the determination of this suit is to be as couched by counsel to the Defendant to wit:

Whether or not on the totality of the pleadings and evidence adduced, the Claimant is entitled to the reliefs sought in this suit?

Before resolving the sole issue, it is pertinent to address the status of the testimony of DW1 which was adopted and marked as D1 and which counsel to the Claimant contended is defective. The contention is predicated on the fact that the DW1 during cross examination posited upon being questioned that she signed the witness statement on oath in her office.

Counsel to the Claimant contended that the witness statement on oath ought to have been signed before the Commissioner for oath and failure to so do renders the witness statement on oath defective and the contents are to be discountenanced. Counsel to the Defendants in reaction through a reply on point of law cited the case of Barr. Ihuoma Udeagha & Anor. v. Matthew Omegara & 3 Ors. (2010) 11 NWLR (Pt. 1204) Page 169 at PP 176, 195 — 196 to contend that the position stated in the case of Maduakolam Samuel Chidubem v Obioma Ekenna & Ors (supra) as cited by the counsel to the Claimant is no longer the position of the law. He added that once the testimony is adopted before the court, all irregularities are cured. He also cited section 12 of the National Industrial Court Act 2006 on the flexibility of this court and its ability to depart from the rule of evidence in the interest of justice.

In view of the forgoing contention, I have taken a look at the said witness statement on oath of Tonye Anagwu dated the 10^th of January, 2019 and I find that same is indeed signed and deposed before the Commissioner for oath of this court and same was properly filed.

While all seem regular on the face of it, I have also reviewed the record of this court in this proceeding on the 4^th of February, 2019 and find that the said Tonye Anagwu as DW1 adopted the said witness statement on oath but during cross examination admitted to have signed it in her office.

In this regard, I reckon that the contention of counsel to the Claimant is to regard the witness statement on oath within the category of a regular affidavit which is mandatorily to be sworn before the commissioner for oath. In fact, the authority cited by counsel to the Claimant made reference to the section 90 (f) of the old Evidence Act.

In recent times, the courts have taken cognizance of witness statement on oath to be distinct in terms of its effect on proceedings before the court in view of the fact that the witness statement is re-sworn before a judge in the process of its adoption. The court in the case of UDUMA V. ARUNSI & ORS (2010) LPELR-9133(CA), while explaining the Distinction between affidavit evidence in proceedings begun by originating summons as against statement of witnesses on oath at an election proceeding or proceedings begun by writ held that:

“I am minded to go a step further and to make a distinction between affidavit evidence in procedure begun by originating summons as against statement of witnesses on oath at an election proceeding or proceedings begun by writ and to say that in respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in court before the judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination. See the case of UDEAGHA v. OMEGARA CA/PH/EPT/173/2008 unreported delivered on 30th March, 2010.”Per OGUNWUMIJU, J.C.A.(P. 31, paras. B-E).

The case referenced by the learned Justice of the Court of Appeal is that which Counsel to the Defendant cited to assert the current position of the law and this court is obligated to follow suit by adopting the position of the law in accordance with the principle of stare decisis which is to the effect that a point of law that has been settled by a superior court should be followed. See SUNDAY V. OLUGBENGA & ORS. (2008) LPELR-4995(CA).

In addition, counsel to the Defendant rightly cited section 12 (2) (b) of the National Industrial Court Act 2006 which is to the effect that this court shall be bound by the Evidence Act but may depart from it in the interest of justice. In view of the fact that the said witness statement on oath have been adopted before this court on the 4^th of February, 2019, this court considers the testimony to have been properly sworn before this court and same is considered regular in the face of the law and in the interest of justice.

Consequently, all the argument of counsel to the Claimant in this regard lacks merit and same is accordingly discountenanced.

Having said that, I also find it apposite to address the contention of whether the testimony of the DW1 is hearsay evidence as contended by Counsel to the Claimant who posited that in view of the fact that the testimony of the DW1 is to establish the truth of a fact which she was not the official directly involved in the transaction leading to the termination of the Claimant’s employment.

Counsel to the Defendant by way of reply on point of law, contended that counsel to the Claimant misapplied the case cited as same is distinguishable from the instant case. Counsel contended that in the case of B.S. (Nigeria) Limited v. Ometraco International Limited (2011) 10 NWLR (Pt. 1255) 290 at 306—307, Paras. H — B. cited by counsel to the Claimant, the witness was no longer in the employment of the Company on behalf of which he gave testimony while in the instant suit, the DW1 is still in the employment of the 1^st Defendant.

In view of the foregoing contention, I have taken another look at the witness statement of DW1 dated and filed on the 10^th of January, 2019 which she adopted and this court marked as D1. I find that in paragraph 1 of the said D1, the DW1 stated that she is the Human Resource Representative of the 1^st Defendant. She added that by virtue of her position, documents available to her, and personal involvement and knowledge in the events leading to this suit, she is conversant with the facts of this suit.

She restated the fact that she is the Human Resource Representative of the first Defendant in the course of examination in chief and the fact was not controverted by the Claimant that she holds such office in the 1^st Defendant. Consequently, it is established that DW1 is indeed an official of the 1^st Defendant Company.

Having found that DW1 is an official of the 1^st Defendant, what then is the status of the testimony of DW1 in relation to this suit, whether or not she was directly involved in the transaction leading to this suit or not?

The answer to the question was provided by the court in the case of S.T.B. Ltd. v. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt. 366) 757 at 772 Paras. B – D, 771 – 772 Paras. F – G, 774 – 775 Paras. G – B (CA). where the court addressed the competence and compellability of a limited liability company’s official to give evidence in respect of transaction entered into in his absence and held that:

“A company is a juristic person and can only act through its agents and servants. Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even, where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless is admissible and will not be discountenanced or rejected as hearsay evidence… I am satisfied that if the trial judge had borne these facts in mind, he would have given due weight to the oral and documentary evidence tendered by the appellant before him, and he would not have come to the wrong conclusion, as he did in the instant case.” Per Aderemi and Abba – Aji, JJCA.

The court in the above case, for emphasis, referred to the position of the Supreme Court in the case of Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 21 NWLR (Pt. 5) 116 where the Supreme Court Per Uwais JSC (as he then was) held thus: “To insist that the very person in the appellant company who negotiated the transaction with the respondent must be called as witness when the documents relating to the transaction are available and have been admitted in evidence without objection and PW1 is in a position to know about the transaction by the office he holds is, in my view, a negation of the very essence of the corporate personality of the appellant”.

Applying the foregoing authority to the instant suit, the DW1 stated during cross examination that by her function (as HR Representative), all the documents concerning operations on personnel is deposited in her unit, hence she is very familiar with the case.

In addition, there is no gainsaying that the 1^st Defendant on whose behalf DW1 gave testimony is a private company limited by shares registered under the extant laws of Nigeria, a fact that is resonate with both parties to this suit. Therefore, it is without doubt that the 1^st Defendant enjoys corporate personality and is also a juristic person who can only act through its agents and servants including the DW1.

Consequent upon the forgoing position of the law which has been long settled, the testimony of the DW1 as an official of the 1^st Defendant and given on behalf of same is competent and admissible in evidence. The said testimony cannot be regarded as hearsay and I so hold.

In view of the holding of this court in that regard, all contentions of counsel to the Claimant in relation to the competency of the testimony of DW1 is accordingly discountenanced.

That said, I then turn to the sole issue for determination which by all means touches on the reliefs sought by the Claimant. In addressing each of the reliefs claimed, I find that four of the said reliefs are declaratory in nature and the law is settled that a party claiming declaratory relief bears the burden of proving that he is entitled to same and the entitlement does not generally take into account the weakness of the case of the Defendant as the Claimant must succeed on the strength of his own case. In this regard, the court in Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, Para G (SC) held that:

“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.

In view of the forgoing authority, the question that necessarily follows is whether the Claimant has placed credible evidence before this court to warrant the declarations sought?.

Relief one is for “a DECLARATION that the determination of the Contract of the Claimant upon unfounded allegations without paying his terminal benefits accruing from his previous employment with Keedak (Nigeria) Limited is unwarranted, unlawful and wrongful”.

The relief is predicated on the fact that the Claimant alleged that he was a former employee of one Keedak Nig. Ltd, a company whose assets were purchased by the 1^st Defendant. The said 1^st Defendant later offered the Claimant employment with terms contained in Exhibit C2. Claimant added that arising from his new employment, the 1^st Defendant held in trust the sum of N19, 486, 378.99 which accrued from his previous employment with Keedak Nig. Limited and upon the 1^st Defendant terminating his employment via a letter dated the 22^nd of December 2017, the Defendant failed to pay the said sum.

In reacting to the claim of the payment of the said sum, the Defendants contended that the said sum reflects in Exhibit C2 only for the purpose of computing redundancy benefit. They added that the previous employer of the Claimant, Keedak Nig. Limited, had paid the Claimant his terminal benefit in the sum of N29, 306, 329. 53. The defendant tendered Exhibit D17 to prove the said payment.

In view of the foregoing, there is no gainsaying that the determination of whether the Claimant is entitled to the payment of the sum of N19, 486, 378.99 as a sum accruing from his previous employment is dependent on the terms of employment that existed between the 1^st Defendant and the Claimant. This is because it is settled law that the terms of contract of employment is the bedrock of the claims of a party to such employment relationship. The court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) posited that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G).

In view of the forgoing authority, it is imperative for this court to consider the claim of the Claimant in respect of the payment of terminal benefit within the provisions of exhibit C2 which is the document upon which the Claimant’s claim is predicated.

Upon a careful perusal of the said Exhibit C2 which is the letter of offer of employment issued to the Claimant and dated the 21^st of January, 2016, I find that paragraph 2 states that:

“The following shall form some of the terms and condition of your employment”

As part of the terms, I find that the heading that is titled ‘BENEFITS’ states that:

In addition to the remuneration indicated above, you will be entitled to the following:

N19, 486, 378.99 Terminal Benefits accruing from your previous employment with Keedak (Nigeria) Limited (Please see attached table for computation of amounts payable) which shall be carried forward only for the purpose of calculating redundancy but shall not form part of your end of service payments.

From the four walls of Exhibit C2, the foregoing is the only paragraph that bears the sum of N19, 486, 378.99 as terminal benefit payable to the Claimant in addition to his remuneration and the duty of the court in this regard is merely to interpret the term and make pronouncement thereon as the court in WEMA BANK PLC v. OSILARU (2008) 10 NWLR (Pt.1094) 150 at 177, paras. F-G (CA) held that “It is trite that where the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt. 1021) 230.” Per OKORO, J.C.A. (Pp. 28-29, paras. D-A).

In the interpretation of the paragraph, it is abundantly clear that no mention is made of the sum of N19, 486, 378.99 being transferred, paid to or given to the 1^st Defendant by the previous employer of the Claimant in trust. Also, it is abundantly clear that the terms merely recognized the said sum to be a terminal benefit in case of redundancy and in no other circumstance such as the instant case where the employment of the Claimant was terminated on ground of misconduct.

It is not the duty of this court to read into the terms of the contract what is not clearly stated and agreed by the parties. The court in ANTOUN & ANOR V. OGHENE (2012) LPELR-8502(CA) had stated this position of the law clearly when it held that:

“The terms of a contract is binding between parties thereto and is sacrosanct. It cannot be altered or rewritten by the parties, except under their agreement. In the same token, even the court cannot so alter such contract. It can only enforce the terms except they are against public policy or are illegal or contra bonus mores (contrary to morality). See also Egbereh V. Nimrah 2008 Vol. 758 LRCN.” Per DANJUMA, J.C.A (P. 21, paras. A-F).

Having so found the terms as agreed by the parties to be without any ambiguity, the duty of this court is to make a pronouncement on same. However, before making the pronouncement, I reckon the contention of counsel to the Claimant who in the Claimant’s final address, argued the issue of fraud in relation to the above quoted paragraph of Exhibit C2 when he contended that “the 1^st Defendant through the instrumentality of the 2^nd and 3^rd Defendant used their influence as managers to insert the said clause depriving the Claimant of his already earned benefit accruing from his previous employment…”. In this regard, while I am not oblivious of the argument of counsel to the Defendant in relation to the said issue of fraud whereby he argued that the issue was raised for the first time in the final address and that being an issue of fraud, it ought to be specifically pleaded and proved. I must state that I have gone through the pleading all over again and found that the issue of fraud was mentioned in the reply to the Defendants’ statement of defence where it was stated in paragraph 10(d) that “the 1^st Defendant’s act of not paying the Claimant his entitlements is an attempt at defrauding/denying the Claimant of his hard earned money…” be that as it may, that is where the issue ends as there were no particulars of fraud and neither was any evidence led to prove same.

Without expending precious judicial time on stating the position of the law on the standard required in proof of fraud, I must state that the final address written by a counsel is in no way meant to take the place of pleadings and evidence in the establishment of a fact.

The court in this regard had reiterated in Akono v. The Nigerian Army (2000) 14 NWLR (Pt.687)318 that:

“Addresses of counsel in a case are designed to assist the court. Cases are usually decided on credible evidence, hence no amount of brilliance in a final address can make up for the lack of evidence to prove and establish a case. See the case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787.” Per IGE, J.C.A. (P. 12, A-B).

In view of the forgoing, the contention relating to fraud as it relates to the above quoted paragraph of Exhibit C2 is accordingly discountenanced for dearth of particulars and proof.

In addition to the forgoing, I have also taken cognizance of Exhibit D17 which is a letter dated the 31^st of December, 2017 and addressed to the Claimant by Keedak Nigeria Limited and titled “End of Service with Keedak Nigeria Limited”. The letter was acknowledged by the Claimant on the 29^th of January, 2016 and therein, the Claimant was informed of the payment of his terminal benefit in the sum of N29, 306, 329. 53. In the course of cross examination, Claimant admitted being paid the said sum and later said he only collected a part. The facts and evidence before the court clearly does not support the fact that the 1^st Defendant is in anyway obligated to pay the sum of N19, 486, 378.99 as money accrued or earned from previous employment either by Exhibit C2 or by any other means.

Consequent upon the foregoing, the Claimant has woefully failed to prove that he is entitled to a declaration to the effect that the Defendant is obligated to make the payment of the sum of N19, 486, 378.99 as terminal benefits accruing from his previous employment with Keedak Nigeria Limited and relief one is accordingly refused.

Relief ii is for “A DECLARATION that the suspension of the Claimant without proper procedure is wrongful, mala fide and a nullity”.

The highlight of the facts upon which the said relief is predicated is that the Claimant was indefinitely suspended with full pay by the 1^st Defendant upon the need to carry out an investigation of a transaction which the 1^st Defendant considered the Claimant to have been negligent in respect of. The suspension was followed up by a termination of the Claimant’s employment and the Claimant considers the suspension to be wrongful, malafide and a nullity on the ground that he was never invited during investigation to defend himself against the accusation. Counsel to the Claimant also contended that there was no fair hearing as the Claimant was not informed of the allegation against him before conducting a Kangaroo trial.

The Defendants in response contended that the Claimant was given adequate opportunity to respond to allegation of misconduct and was given fair hearing as he made oral and written representations in defence of the allegation against him. They added that Claimant was issued with Exhibit D6, an internal memo wherein queries were raised for the Claimant to answer and the Claimant did answer same. They also tendered Exhibit D5 which is a CD ROM wherein the audio of the proceedings of investigation conducted by the Compliance Unit of the 1^st Defendant was captured.

In view of the foregoing contention, the determinant of relief two is whether the Claimant has proved how the 1^st Defendant breached the rule of fair hearing in the face of the suspension. In terms of proof, the Claimant tendered Exhibit C3 which is the suspension letter dated 10^th November, 2017 and the Internal Memo dated 7^th November, 2017.

In resolving the contention, I must state that as the counsel to the Defendants rightly pointed out, the Claimant did not present before the court any particular procedure that the Defendant ought to have followed in suspending the Claimant. A look at the four walls of Exhibit C2 which is the letter of appointment does not provide any such procedure for disciplining the Claimant by way of suspension.

That notwithstanding, it is imperative to state that the right to fair hearing need not be expressly agreed upon by parties before same is put into consideration under a contract of employment wherein the employer exercises right to discipline an employee. It is apposite to state that the suspension of the Claimant is regarded as a form of discipline even though the Claimant decided to pay him full salary while on suspension. In addition, it should take into cognizance the rule of fair hearing as it will be unjust to simply send an employee on suspension without knowledge of the reason for so doing. In this regard, the court in FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (2012) LPELR-19696(CA) held that “Interdiction or suspension of the employee with half pay is a kind of punishment, it should not happen without giving the employee a hearing. Per IYIZOBA, J.C.A. (Pp. 31-32, Paras. B-F).

The right to fair hearing in the instance of suspension and in general is not to determine the just nature of a case, it is rather a matter of procedure. The court, Per NWEZE, J.C.A. (P. 53, Paras. A-E) in FEDERAL POLYTECHNIC, EDE & ORS V. ALHAJI LUKMAN ADEMOLA OYEBANJI (supra) adopted the posture which Nnaemeka Agu JSC (as he then was) took in Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 418, 448, that:

“The touchstone in determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question of whether an opportunity of hearing was afforded to parties entitled to be heard, J. C. C. Inter Ltd. v N.G.I. Ltd. (2002) 4 WRN 91, 104.”

In view of the foregoing, the question is whether the Claimant was afforded an opportunity to be heard before he was suspended. I have taken a look at Exhibit C3, the suspension letter dated the 10^th of November, 2017. The second paragraph of the said letter reads:

“We have also reviewed your verbal and written representations as well as other representations made by other concerned parties”

The verbal representation referred to was tendered as Exhibit D5 by the Defendant where the Claimant was invited to explain what he knows about the transaction that led to his suspension. At the proceeding, the Claimant was informed what the Defendants were investigating and he was asked to explain certain process that happens through his department.

The Claimant himself also tendered Exhibit C5, an internal memo addressed to the Claimant titled “Re: Rejected Refund of Custom Duty To TransGlobal Express For Mobil Producing Nigeria”. Though the internal memo was not headed as a ‘query’ but same generated 17 questions most of which the Claimant provided answers. The memo was served on him on the 7^th of November, 2017 and he was asked to provide the answers before the close of business on that same date.

In view of the foregoing evidence before the court and particularly in view of absence of any agreed process between the Claimant and the 1^st Defendant, the Claimant cannot be said to be unaware of the allegations leading to his suspension. The Claimant made the written and oral representations before he was suspended. The notification of the Claimant of the allegation against him in this circumstance cannot be expected to be in the form of regular criminal charge. It suffices that he got an internal memo that raised closed questions and he was given opportunity to state what he knows about the transaction.

It must be borne in mind that the suspension was particularly to carry out investigation without interference and the courts have reckoned the propriety of an employer to suspend an employee for the purpose of investigation. Paragraph 3 of the suspension letter reads:

“To enable the Compliance Unit to carry out their investigations without interference, you are hereby placed on an indefinite suspension with effect from today November 10, 2017. Your salary will continue until such a time that management takes a decision on the suspension”.

In view of the foregoing paragraph, the court in MIAPHEN v. UNIJOS CONSULTANCY LTD (2013) LPELR-21904(CA) posited that:

“An employer has a right to suspend any of his or its staff if there exists reasonable ground to do so. In Udemah V. Nigerian Coal Corporation (1991) 3 NWLR pt. 180 P. 477 @ 486, this court held that the right to suspend an employee is available to an employer in order to effect proper investigation of allegations or during the process of a disciplinary action…” Per BDLIYA, J.C.A. (Pp. 33-34, paras. G-C)

In view of the foregoing, it is the finding of this court that while there is no particular laid down procedure that the 1^st Defendant must follow in carrying out the suspension of the Claimant, the suspension of the Claimant upon the oral and written representation made by the Claimant via exhibits C5 and D5 negates the contention of breach of fair hearing as the Claimant had been properly notified of the reason for his suspension. Consequently, the suspension is not wrongful and I so hold.

It is in the light of the foregoing authority that I find it apposite to also consider whether the suspension of the Claimant was mala fide. The court in the case of Akaninwo v Nsirim (2008) All FWLR (Pt. 410) 610 at P. 659 paras B-C provided the meaning of ‘mala fide’ thus:

“Mala fide is the opposite of bona fide. It simply means bad faith as opposed to bona fide, which is good faith. Mala fide projects a sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a deliberate wrong emanating from ill-will.” Per Mohammed, J.S.C.

In view of the meaning of mala fide, the question that arises is, has the Claimant presented convincing proof that the Defendants had sinister motive for his suspension? Or is it that there was no reasonable ground upon which the Claimant was suspended?

To answer the question, I have taken a review of the facts and evidence before this court to find that the Defendant via Exhibit C5 tendered by the Claimant, informed the Claimant that the Defendant made a request to Mobil (the 1^st Defendant’s client) for the refund of N3, 177,755.00 being duty payment made on their behalf on July 4, 2016 but the said client refused to honour the refund because same was allegedly fraudulent and based on forged document. The Claimant posited that he knew nothing about the fraudulent transaction and he did not sign any document but the Defendants considered the Claimant wanting being the Manager of the Shipping/Logistics Department.

In view of the foregoing, it is beyond conviction that the company has reasonable ground upon which the suspension of the Claimant is predicated as it is reasonable for a company, whose client has refused to make payment on ground of fraud, to carry out investigation and the law supports the right of an employer to suspend for the purpose of such investigation. Consequently, the suspension of the Claimant is not in violation of any procedure and same is not mala fide. On that note, the declaration sought by the Claimant in relief two is accordingly refused.

Relief iii is for “A DECLARATION that the Claimant is still in the employment and service of the Defendants until properly terminated and therefore entitled to monthly salary of the sum of N681, 029.76 from the date of the said termination till judgment is given”.

In consideration of this relief, I should state from the onset that I reckon the contention of counsel to the Claimant through the Claimant’s final address where he posited in relation to this relief that “the Claimant is not seeking for reinstatement” but that “haven shown that the termination of the contract of employment of the Claimant is wrongful, unlawful and a nullity, the Claimant is still in the service of the Defendant and thus entitled to damages in the sum of his monthly salary from the time of the purported termination of his employment until judgment is given”.

Counsel to the defendants had on his part contended that the employment of the Claimant had been terminated by virtue of Exhibit C4. He added that the Claimant had admitted receiving terminal benefits from the 1^st Defendant and had posited before this court that he is now a businessman. In view of this, the court should dismiss the claim.

In addressing the said relief iii, I find it apposite to reiterate that the nature of employment of the Claimant is one of master-servant relationship in view of the fact that the 1^st Defendant is a private company limited by shares and not a creation of statute as to bring about a statutory employment. The implication of terminating a master servant employment is simply that for all intent and purpose, it has come to an end and it matters not whether it was rightly or wrongfully brought to an end. The position of the law in this regard is well settled as the Court of Appeal, while condemning the grant of award of salaries in master-servant employment posited in the case of Texaco (Nig.) Plc v. Kehinde (2001) 6 NWLR (Pt.708)224 that:

“In the present case, the learned trial Judge, rightly, in my opinion refused prayer No. 2, which in effect prayed for reinstatement but went ahead to award salaries and other entitlements from the date of dismissal to the date of judgment thereby treating the contract between the parties as if it continued in existence during that period. This is obviously in error because it is trite law that whether the dismissal is lawful or unlawful, in a purely master servant situation, it has brought the relationship to an end. We cannot pretend that the relationship continued because it was wrongfully brought to an end. The fact is that it was brought to an end. It is now trite law that you cannot force a willing servant on an unwilling master.” Per ONNOGHEN, J.C.A. (as he then was) (Pp. 38-39, paras. D-A).

The forgoing position of the law in every respect renders the relief for payment of salaries for the period in which the Claimant’s employment was terminated till the date of judgment unmeritorious in the general sense. That is however not to say that the termination of the Claimant employment was wrongful, but assuming same is, the Claimant would still not be entitled to the claim made in relief iii.

For the sake of clarity, the Claimant was served with Exhibit C4, his letter of termination of employment on the 1^st of December, 2017 to take effect of the 4^th of December 2017. In the said letter, he was informed that he would be paid his one month salary in lieu of notice, his gratuity and any other benefits he is entitled to subject to returning the company’s property. The Claimant did not return the Company’s properties until after his lawyers wrote Exhibit C7 and C8 (demand Letters) to the 1^st Defendant to which the lawyers of the 1^st Defendant replied with Exhibit D9. Upon the return of the 1^st Defendant’s properties, the 1^st Defendant paid the Claimant the sum of N9,005, 765.81 as his terminal benefit including the one month salary in lieu of notice as exhibit D19 showed the breakdown of the said terminal benefit. The Claimant then admitted during cross examination that he received the said sum. In view of the payment of all the terminal benefits and receipt of same ordinarily precludes him from complaining that his employment was wrongfully terminated.

Aside from the fact that the Claimant had been paid terminal benefits which included salary in lieu of notice, this court also finds that the Defendant’s upon reasonable ground and upon appropriate procedure, suspended the Claimant and followed same up with a termination upon concluding investigations. The Defendants tendered Exhibit D8 to establish the code of conduct which they found the Claimant to have breached as stated in the letter of termination in relation to the fraudulent transaction in view of the fact that the Claimant was the Manager of the Department in charge of Logistics. The 1^st Defendant found it appropriate to terminate the employment of the Claimant upon the grounds stated in Exhibit C4 and accordingly terminated the Claimant’s employment.

Consequent upon the forgoing, the Claimant has failed to prove that he is entitled to a declaration that he is still in the employment of the 1^st Defendant consequent upon which he would have earned salaries. Rather, since his employment have been validly terminated on the 1^st of December, 2017, the Claimant ceases to be entitled to any salary payable by the Defendants. On that note, relief iii is accordingly refused.

Relief iv is also a declaratory relief as it seeks for “A DECLARATION that the Claimant is entitled to a status car worth N25, 000,000.00 (Twenty Five Million Naira) and 2017 sales commission of 5, 000,000.00 (Five Million) Naira only.”

In the claim of this relief, the Claimant contended that he is entitled to a status car as a manger in the 1^st Defendant company. On the part of the Defendants, they conceded that the benefit section of Exhibit C2 provided for status car but same is to be fuelled and maintained by the 1^st Defendant and that means it was to be retained by the 1^st Defendant but the benefit eroded from the point the employment of the Claimant was terminated. Counsel to the Defendant particularly contended that the Claim had become academic since the car was meant to be used for the employment of the 1^st Defendant and the employment had ceased.

In determining the said relief, it is apposite to return to Exhibit C2 which is the bedrock of the relationship between the Claimant and 1^st Defendant. It is also the only evidence placed before this court by the Claimant in support of the said relief. Upon a review of Exhibit C2, I find that item 6 under the paragraph covering BENEFITS reads:

“Status Car – Company to maintain and fuel.”

The foregoing paragraph indeed does not suggest that the car is a gift to the Claimant. Also, the clause does not state that the car is a terminal benefit hence, the supposition that it only inures in the course of employment. In addition, the paragraph makes no mention of monetization and worth of the car in money hence it is uncertain where the Claimant got the sum of N25,000,000.00 as the money worth of the status car from.

In view of the foregoing, it is crystal clear that the Claimant has failed to place credible evidence that he is entitled to status car especially after his employment with the 1^st Defendant has been validly brought to an end. The making of such declaration is unmerited in the circumstance of dearth of proof and consequently, the said relief to the extent of a claim for status car is accordingly refused. I shall consider the claim for sales commission in the next relief.

Relief v is for “AN ORDER COMPELLING THE DEFENDANTS to pay the Claimant the total sum of 29,918,746.99 (Twenty-Nine Million, Nine Hundred and Eighteen Thousand, Seven Hundred and Forty-Six Naira Ninety-Nine Kobo) only being the Claimant’s total earnings”.

The PARTICULARS of the N29,918,746.99 ordered to be paid are:

EARNINGS

AMOUNT

Terminal benefits accruing from his previous employment with Keedak (Nigeria) Limited

N19, 486, 378.99

Flight fare for the company’s paid holiday abroad for staff.

N1, 832,368.00

Travelling allowance of $10,000 USD converted at N360

N3,600,000.00

2017 Sales Commission

N5, 000,000.00

TOTAL

N29,918, 746.99

With regards to the sum of N19, 486, 378.99 being Terminal benefits accruing from the Claimant’s previous employment with Keedak (Nigeria) Limited, this court has found in the determination of relief (i) that the Claimant is not entitled to the said sum as terminal benefits and in view of the refusal to make the declaration sought in relief (i), the order for the payment of the sum of N19, 486, 378.99 is accordingly refused.

The second particularized sum is N1, 832,368.00 being a claim for the Flight fare for the company’s paid holiday abroad for staff and the sum of N3,600,000.00 being travelling allowance of $10,000 USD converted at N360. The Claimant predicated both sums on the provisions of Exhibit C2 and tendered exhibit C10 which is the application for the payment of the flight fare and the traveling allowance along with voucher and flight tickets.

In reaction to the Claim, the Defendants posited that the said flight fare and travel allowance are included in the sum of N9,005, 765.81 paid to the Claimant as the total terminal benefit owed to him. The Defendant posited that the flight fare covers only the Claimant and his spouse in accordance with Exhibit C2 but does not include the ward of the Claimant which he added in the computation of N1, 832,368.00. The Defendants posited that they excluded the sum paid for the ward’s ticket and paid the balance of N1,733,418.00 for the Claimant and his spouse. The Defendant also posited that the traveling allowance is $2000 as stated in Exhibit C2 and not $10,000 as claimed by the Claimant. they posited that the said $2000 was exchanged at N357.98 which amounted to N715,960.00 and had also been paid to the Claimant as it is included in the terminal benefit of N9,005, 765.81 paid to the Claimant.

In view of the forgoing, I take a look at Exhibit C2 and find that item 9 under the Paragraph for BENEFITS provides thus:

“Company paid holiday abroad for staff and spouse on economy ticket plus $2000.00”

The wordings are clear and unambiguous that the benefit is for Claimant as staff and his spouse as it makes no mention of child/children. Also the money in addition is $2000 and not $10,000 as claimed.

In view of the provision, I take a look at Exhibit C10 and find that the application for the money for tickets covers for the Claimant, his spouse and child. The deduction of the cost of the child’s ticket which is N98, 950.00 from the total sum claimed which is N1, 832,368.00 rightly amounts to N1,733,418.00 which the 1^st Defendant is obligated to pay.

It is also the finding of this court that the sum to be added for the traveling is $2000 though the exchange rate was not stated in exhibit C2, it is believed that at the time the 1^st Defendant paid the sum of N715,960.00 with the exchange rate at N357.98, it was a fair exchange.

Consequent upon the forgoing, I have taken a look at Exhibit D19 which is the computation of terminal benefit of the Claimant totaling N9,005, 765.81 after deductions. I find that the Vacation benefit (air ticket) at the sum of N1,733,418.00 is number 2 on the items computed while the $2000 vacation benefit converted at N357.98 totaling the sum of N715,960.00 is item number 6 on the list of items computed.

The Claimant admitted that he had been paid the total of N9,005, 765.81 which fort the sake of clarity includes the vacation benefit (air ticket) and additional $2000. Therefore, the 1^st Defendant has discharged the obligation and can no longer be ordered in that regard. Consequently, the claims for the order of the payment of the sum of N1, 832,368.00 and N3,600,000.00 fails and are accordingly refused.

With regards to claim for N5, 000,000.00 as sales commission, Claimant predicated this claim also on Exhibit C2 while the Defendants contended that the payment is discretionary as same is in a manner approved by the management from time to time.

Upon a careful perusal of item 11 under the paragraph for BENEFITS in Exhibit C2, which reads:

“Sales Commission payable in a manner approved by management from time to time”

There is no doubt that the Claimant bears the obligation of proving that prior to the termination of employment with the 1^st Defendant, the management had approved sales commission at the sum of N5, 000,000.00 to be paid to the Claimant and same was not paid. No such approval by the Management was placed before this Court. It is trite that the Claimant who asserts the existence of the claim shoulders the burden to prove same. Thus, in the event of failure to adduce credible evidence, the claim must naturally fail. Consequently, there is no basis upon which this court can make such order. The claim for the order for payment of sales commission at the sum of N5, 000,000.00 accordingly fails for lack of proof of entitlement.

In view of the foregoing, it goes without saying that the sole issue for determination is resolved against the Claimant to the effect that the Claimant is not entitled to the reliefs sought upon consideration of the totality of pleadings and evidence adduced before this court.

In the final analysis, the case of the Claimant is convincingly devoid of merit and same is accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE