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: 14th day of March, 2019 SUIT NO: NICN/PHC/95/2018
BETWEEN
MRS. KROHAM ADAKWU————————————-CLAIMANT
AND
- INTEGRATED CATERING COMPANY LTD
(The Promise Fast Food, Port Harcourt, Head office)
- MR. OLUWATOYIN ALABI
Managing Director/CEO, the Promise Fast Food,
Port Harcourt, Head Office. ———–DEFENDANTS
Representations:
O.A. Nworgu with K.O. Ordu for the Claimant .
C.A. Amaewhule for the Defendants.
Judgment
This suit was commenced by way of a general form of Complaint filed on the 10th of August, 2018 along with an affidavit of verification, a statement of claim, 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 claim, claiming jointly and severally against the Defendants the following:
(i) A Declaration by the Honourable court that the 2nd Defendant acted wrongfully in terminating the Claimant’s employment from the 1st Defendant.
(ii) An order of the Honourable court directing the Defendants to pay the Claimant all her salaries/entitlements from the day her employment was wrongfully terminated till final determination of this suit.
(iii) An order of this Honourable court directing the Defendants to re-instate the Claimant back to her position as the sub-outlet head.
(iv) The sum of Five Million Naira (N5,000,000.00) for general damages.
(v) The sum of Six Hundred and Fifty Thousand Naira N650,000.00) only for cost of litigation.
In reaction to the Claims, the Defendant on the 17th of September, 2018 filed a joint statement of Defence along with a combined list of witness and list of document, a witness statement on oath and copy of the document to be relied upon.
The Claimant in reaction to the statement of defence filed a reply on the 21st of November, 2018.
In opening her case, the Claimant herself, KrohamAdakwu, was the sole witness as CW1 and she adopted her witness statement on oath marked as C1. Through her, five documents were tendered and admitted in evidence as Exhibit C2 – C6.
Arising from the statement of fact and witness statement on oath of the Claimant, the case of the Claimant is that she was employed by the 1st Defendant sometime in September, 2013 and resumed work as an Outlet Manager to the 1st Defendant office situate and located opposite Abua Road Junction in Ahoada East Local Government Area of Rivers State. She was later posted to a new sub-outlet along Omoku Road in Ahoada East Local Government Area of River State as the sub-outlet head. Sometime in March, 2016 she was directed and ordered by the 2nd Defendant to shut down operations due to the communal crisis in 2016 and its attendant security challenges and the threats it posed which affected the 1st Defendant’s business activities in Omoku Road in Ahoada East Local Government Area of Rivers State and other neighbouring communities. Since the time of the shutdown, she had not been re-posted by the 2nd Defendant to work in any other outlet or sub-outlet of the 1st Defendant. She wrote letters through her lawyer to be re-instated or be paid her entitlements if her service are no longer required but the Defendants outrightly refused, failed and neglected to heed the demand.
By way of reply, Claimant posited that she did not change her address and one Peter Seyi, the manager in charge of Ahoada East branch has her phone number and has been communicating with her. Claimant posited that she has been visiting the company for her re-instatement but no positive response. She posited that she did not abscond as it was the management of 1st Defendant that ordered her to shut down the outlet. She posited that she didn’t report to the office but to Mr. Peter Seyi who sent a company motorcycle to convey the company items. She added that it was the Branch manager that told her to go home with her I.D. Card and uniform and that the company will get back to her.
During cross examination and re-examination, Claimant confirmed that she was employed as outlet manager and also confirmed that when she was recalled in August, 2014, she started as unit head and as Unit headshe did not earn as much as outlet manager. She denied losing her post due to incompetence but that she was on maternity leave when someone else took over. She posited that as unit head she was paid N50,000 from the 18th of August 2014 after her reinstatement. She also confirmed that she reported that there was crisis at her outlet but cannot remember when she made the report in 2016 and she confirmed that she wrote a letter through her lawyer in 2017 and the Defendants replied her letter. She confirmed that she was last paid salary around February/March 2016. She confirmed the number submitted to the company has been switched off but some of the staff have her number. She denied relocating to a new address and posited that none of the Company’s property was with her as all the property of the company have been moved to the Head office by the outlet manager.
Upon the discharge of CW1, Claimant closed her case and the Defendant opened theirs with the calling of ChineduEze John as DW1 whose witness statement on oath was adopted and marked as D1. Through the said DW1, one document was tendered and admitted in evidence as Exhibit D2.
Arising from the statement of defence and witness statement on oath of the Defendants, the case for the Defendants is that the Claimant was an employee of the 1stDefendant whose address changed in the course of employment without supplying the Defendant with her new address. The Defendants admitted that they indeed set up a new sub-outlet and it was the Claimant who reported to the Defendants that there was a communal crisis at the location which had an adverse effect on business as well as threat to lives and properties before she was directed to shut down the outlet for security purposes. After she reported the incidence, she disappeared without reporting to the 1st Defendant’s headquarters for reposting and other necessary actions and her telephone number which was known to the Defendants was switched off. The HR manager of the 1st Defendant searched for the Claimant at her address supplied during employment but could not locate her having relocated from the said address. The defendants posited that she left with the Company’s properties such as I.D. cards, uniform etc. the defendant admitted that the Claimant wrote to them through a lawyer to whom the Defendants wrote a reply. The Defendants also posited that they had not sighted the Claimant since the shut down as she woke up one morning to make frivolous demands. The Defendant denied all the claims of the Claimant in its entirety.
Upon cross examination, DW1 confirmed that the Defendant replied the letter of the Claimant and posited that the Claimant was in charge of the outlet before it was shut down and the shutdown of the outlet was due to insecuritywhich was reported by the Claimant. He posited also that the Claimant complied with the handbook in view of the directive. He maintained that the Claimant absconded as she was supposed to report to the head office. He also maintained that the Claimant made away with the Defendant’s property but he did not report to the police although he made attempt to reach her. He also posited that Exhibit D2 does not serve as termination letter but the Handbook by p.23 states that being absent for 4-8 days is deemed to be self-termination from employment. He also posited that the Claimant could have been posted elsewhere if she had reported herself and that the Claimant’s salary was N50,000.
Upon that, the Defendant closed their case and matter was adjourned for adoption of final written addresses.
The defendants filed their joint final address on the 1st of February, 2019 and adopted same on the 14th of February, 2019.
Arising from the said final address, counsel to the Defendants, C.A. Amaewhule Esq. formulated two issues for determination to wit:
- Whether the Claimant case will succeed without complying with the contract of services as an employee.
- Whether the Claimant was able to prove its case on the balance of probability or on the preponderance of evidence as required by law in a civil case.
In arguing issue one, counsel cited the case of OkohVsUnilag (2011) 14 NWLR (Pt 1268) pg 563 Pt 566 on the definition of an employee and posited that the Claimant must work to get paid. Counsel added thatas an employee, the Claimant must abide by the contract of service and in this case, the contract of service is a staff handbook which was given to the Claimant on resuming her duty as an employee of the 1st Defendant tendered and marked as Exhibit C3.
Counsel cited the case of Ajivs C. B. D. A. (2015) 16 NWLR (Pt 1486) pg 544 particularly 559 and also referred this court to page 11 of the 1st Defendant staff handbook and posited that the staff handbook clearly shows that for continuous employment for either onshore or offshore, one of the conditions of service is dependent upon a conducive environment for work. He added that the Claimant in her witness deposition on Oath admitted that crisis ensued from March 2016 around the outlet where she worked as a unit head was located and this means that work could not go on while the crisis persisted.
Counsel posited that the Claimant admitted being paid salary in February and March 2016 and the admittance simply shows that the 1st and 2nd Defendants complied with the contract of service.
Counsel submitted that in a written document where a contract of service is stipulated, the court will not look outside the terms stipulated or agreed therein in deciding the right and obligations of the parties.
Counsel also referred the court to page 23 of the Staff Handbook to further buttress the fact that the Claimant ceased to be an employee of the 1st Defendant after the crisis. He posited that the Claimant failed, neglected and refused to report to the head office for reposting contrary to the second paragraph of the handbook in view of the prolonged absence of the Claimant.
Counsel referred to the testimony of DW1 with regards to attempt to reach the Claimant and cited the cases of TaiwovsAdeghoro (2011) 11 NWLR (pt 1259) pg 562 and Folorunse&Anor V. Shaloub (1994)3 NWLR (Pt. 333) P. 413 at 433 paras B.H. to the effect that when evidence is unchallenged, the court ought to accept such evidence in proof of the issue in contest.
Counsel concluded on the issue that the staff handbook is the bedrock upon which the Claimant case may succeed or fail.
With regards to issue two, counsel cited the case of OkohvsUnilag (supra) to the effect that a plaintiff alleging wrongful termination must plead and prove that he is an employee of the Defendant and how he was appointed and terms and conditions of his employment.
Counsel posited that assuming but not conceding that the Claimant reported the incident to another outlet manager, it is not the duty of that manager to repost or absorb the Claimant in any of the outlet.
He contended that the Claimant received her offer of employment from the 1st Defendant’s head office and same was duly signed by the 2nd Defendant and that implies that any further directive such as reposting must come from the 1st Defendant’s office.
With regards to the variance in salary mentioned by the Claimant, counsel cited the case of Adewale v Olaifa (2012) 17 NWLR (Pt.1330) pg 478 particularly at page 487, to the effect that an evidence is contradictory when a piece of evidence affirms the opposite of that other evidence as stated.
Counsel concluded by urging the court to dismiss the case of the Claimant with substantial cost because the master and servant relationship that existed before is no longer in existence since March 2016.
In reaction to the final address of the Defendants, Claimant filed her final written address on the 12th of February 2019 and same was adopted by counsel to the Claimant, O.A. Nworgu Esq. on the 14th of February, 2019.
Arising from the said written address, Counsel to the Claimant formulated a sole issue for determination to wit:
whether the claimant has proved her case as required by law as to entitle her to the reliefs sought.
In arguing the lone issue, counsel cited a book titled “Dismissal in Labour Law’ (Second Edition) by Celestine N. Omehia particularly at page 103 on the position relating to unlawful dismissal. He added that persons accused of an offence or any allegation of any kind should be made to:
- Know the nature of the accusation against him/her
- State his/her own side of the story
- Be heard by an unbiased tribunal (where a tribunal is set up to determine the case).
Counsel posited that Natural justice knows no barrier asit runs through all levels of employment.
Counsel argued that the usual practice has been that, where there is an allegation of wrong doing against an employee, the establishment would set up a disciplinary body or panel with the power to look into that allegation and that body is expected to call the employee for an interview and find out his own side of the story and hear his witnesses if any. Counsel cited the case of Essienvs University of Calabar (1990)3 NWLR PT 140 pg 605. See also MALIKI VS MICHEAL INST. FOR LABOUR STU. (2009) 21 WRN 1-184.
Counsel submitted further that an employer does not need to wait for an employee against whom there is an allegation of misconduct bothering on crime to be prosecuted and convicted by a court before he can exercise his power to dismiss such employee summarily. He cited the case of YUSUF VS UNION BANK NIG. LTD (1996)6 SCNJ 203 and added that the employee would however be entitled to fair hearing by virtue of section 36 of the Constitution of Federal Republic of Nigeria 1999 as amended.
Counsel recounted the testimony of DW1 and submitted that absconding with company properties as alleged by the defendant in their defense is a criminal offence which ought to have been reported to any law enforcement agency like the police. He added that the claimant was not given the opportunity or right to be heard in line with principle of fair hearing and it is not just enough for the defendants to say that the claimant was incommunicado because of her phone which was switched off.
Counsel argued that the termination of the Claimant’s employment was not in accordance with Exhibit C2, her letter of employment which requires notice.
Counsel concluded by urging the court to hold that the claimant is entitled to both her position as a unit head of the 1st Defendant company and all her salaries/entitlements since the month of March 2016 till final determination of this suit.
Counsel also contended that the defendants have therefore failed to establish a case of absconding with company properties against the claimant.
In view of all the foregoing, I have carefully evaluated and understood 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 carefully evaluated 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, the sole issue for determination by this court is to wit:
Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.
In resolving the sole issue, the foremost task is to identify the type of employment which was created between the Claimant and 1st Defendant so as to ascertain the consequence of same. In this regard, the Court in the case of SALAMI v. UNION BANK OF NIGERIA PLC(2010) LPELR-8975(CA) posited that:
“The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. In this regard, see the case of CENTRAL BANK OF NIGERIA V. IGWILLO [2007] 14 NWLR (Pt. 1054) 393.” Per LOKULO-SODIPE, J.C.A. (P.22, Paras.E-G).
In view of the fact that the first defendant is a private company registered in Nigeria, the employment relationship cannot be reckoned as statutory nor that which is at the pleasure of the employer. Therefore, the employment can simply be declared as one of master-servant relationship. In addition I reckon that there exist terms of the employment relationship in view of Exhibit C2 which is the offer of employment dated 24th September, 2013 which contains some terms and conditions. There is also before this court Exhibit C3 which is The Staff Handbook (condition of service) as documents guiding the relationship between both parties. In this wise, the court in Ufam v. I.M.T. (2007) 2 NWLR (Pt.1019) held that:
“It needs to be stated that this case involves employer- employee relationship. It has been made clear by Amaizu, JCA, in the case of Nigerian Gas Co. Ltd. v. Dudusola (2005) 18 NWLR (Pt. 957) 292; 321 that there are three types of employer/employee relationship in this country with different consequences namely:
(1) Under the common law where in the absence of written contract, each party could abrogate the contract on week’s or month’s notice or on payment of wages for a week or month or whatever was agreed period for payment of wages.
(2) Where there is a written contract of employment between an employer and an employee. In such a case the court has a duty to determine the rights of the parties under the written contract.
(3)(i) Public servants – their employment is provided for in the statute plus conditions and service agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599.
(ii) Public servants in the nation’s civil service as in the case of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.”Per MIKA’ILU, J.C.A.(P.29, paras.A-F)
Without a doubt, the instant case falls within the type where there is a written contract between the employer and employee in view of the existence of Exhibit C2 and C3.
Consequently, Exhibit C2 and C3 are the cardinal documents with which the rights of the parties in the instant suit shall be determined.
What then are issues to be determined within this documents. The answer to this question are enveloped by the reliefs sought by the Claimant who wants this court declare that the 2nd Defendant acted wrongfully in terminating her employment and order the Defendants to reinstate her and also pay her salaries for the periods she was wrongfully out of employment.
The facts leading to the quest for the reliefs have earlier been captured but for want of emphasis, the Claimant’s outlet was shut down due to insecurity and since the day of the shutdown, she has been out of employment of the 1st Defendant. She made effort to get back to work but to no avail. She was not issued with a letter of termination and she has not been paid salary since March 2016. She tendered her employment letter to posit that her salary was N70,000.00 but along the way it was made N50,000.00 due to change in position. She also asked her lawyer to write to the Defendants but the Defendants did not yield.
The Defendants on their part posited that from the date the outlet was directed to be shut down due to insecurity, the Claimant had not shown up for work and she was considered to have absconded with the companies’ properties such as I.D. Card, Uniform etc. The Defendant contended that they made efforts to reach the Claimant but to no avail. They posited that the termination of the Claimant’s employment is in line with the Condition of Service Exhibit C3 which the Claimant herself tendered in view of her absence from work for more that 4-8 days. They posited that she is not entitled to any of her claims.
It is in view of the foregoing contention that I find it expedient to intimate parties of the status of their condition of service which operates alongside the terms of employment captured in the offer of employment.
The court in the case of SEVEN-UP BOTTLING COMPANY PLC v. AJAYI (2007) LPELR-8765(CA) posited with authority that:
“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.”Per SHOREMI, J.C.A (P. 25, paras. A-B)
In addition, the court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) held 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 vsDudusola (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 another breath, especially in view of the fact that in the instant case, some terms are in the offer of employment while others are in the condition of service, the court inJOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA) posited that:
“It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto.” Per GUMEL.J.C.A (P. 10, para. C).
Having said that, in the instant case, I have earlier noted that some terms of the Claimant’s employment are in Exhibit C2 which is the offer of employment while others are in Exhibit C3 which is the Condition of Service.
With regards to terms agreed upon by parties in relation to termination of employment, Exhibit C2 provides that:
“Your employment is subject to Six months probationary period, during which either party can terminate this employment without notice, but subject to satisfactory discharge of your duties after six months your employment shall be confirmed and termination of employment afterwards will require notice of one month by either party”
There is no gainsaying that the Defendants did not serve the Claimant with any notice as same is not before this court. If the above paragraph were the only term relating to termination of the Claimant’s employment, it would have been concluded that the termination was wrongful in view of failure to give the requisite notice. However, the Defendant referred this court to the Condition of service which is also an integral part of the employment relationship, ‘a bedrock’, as the courts have put it.
Arising from the said condition of service tendered by the Claimant herself as Exhibit C3, which she admitted during cross examination that she has gone through, page 11 reads:
*FORCE MAJURE (STATUS OF CONTINUOUS EMPLOYMENT)
“The continuous employment of staff on land locations (on-shore) and offshore for direct company work and/or for our clients is Dependent on conducive environment for work. However, when abnormal event at work site or conditions in client’s operations result in temporary or total shut down of activities on work site, with partial or total loss of client service, employment of staff on such work sites and location will continue to run on stand-by basis with pay till the end of that particular month of incident. Thereafter, if the abnormal event resulting in partial or total loss of client service persists, employment of staff in such locations will be on stand-by without pay until there is a resolutions and service re-call. The first line of action of management in the situation is to determine the suitability and needs of company operations vis-à-vis staff deployment to other areas. When this abnormal event lead to permanent loss of client service, and staff operational needs overall are adequate in other areas, it shall inevitably result in loss of employment for service personal at this work location.”
In view of the forgoing provision, I reckon that the provision relating to termination of employment in Exhibit C2 (the offer of employment) is generic while the above provision as captured in Exhibit C3 (the condition of Service) in relation to the status of an employees’ continuous employment is specific in situation of unforeseen crisis which may affect the work location of an employee. In the instant suit, the Claimant and Defendants are in accord that the work station of the Claimant was sometimes in March 2016 caught in crisis that made it insecure for business and the Claimant as head of the sub-outlet reported to the Defendants while the Defendants directed shut down of the outlet. Had the Claimant paid attention to the above paragraph, she should have known the status of her employment from the clear wordings to the effect that her employment was on stand-by with pay till the end of the month in question which I reckon is March. After that period, if the crisis persists, her employment is on stand-by without pay. The Defendant first considers if the Staff in the affected location can be absorbed to work in other areas, if not, the crisis will result in loss of employment for the staff.
In this circumstance, notice is not required to be served on the Claimant for her to know the status of her employment as it has been foretold in the condition of service.
The words in the above paragraph is clear, unambiguous and in tandem with the facts before this court to the effect that the sub-outlet where the Claimant works was shut down due to abnormal event. Therefore, what is left of this court is to make a pronouncement of same. 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).
The above event notwithstanding, the condition of service still places certain obligation on the Defendants. The first is to pay salary for the month in which the abnormal event occurred and the second is to attempt to deploy the staff to other areas depending on the suitability and need of the Defendants.
With regards to payment of salary, I reckon that the Claimant admitted on oath that she was last paid salary in February/March of 2016. Although no pay slip was tendered in proof of same but the law is settled that facts admitted need no proof. See ATANDA v. ILIASU (2012) LPELR-19662(SC). Hence, it is settled that the Defendant has discharged the obligation in respect of salary.
With regards to the obligation of deployment, which I reckon is discretionary,DW1 testified that at the time the outlet of the Claimant was shut down, there were other outlets where the Claimant would have been posted if only she had reported to the head office as expected. The Defendants alleged that the Claimant did not make herself available as she changed residence and also had her phone number switched off. In view of not seeing her for 4-8 days, she was considered to have absconded and consequently have her employment (permanently) terminated. They posited that she made away with the Company properties such as I.D Card and Uniform. The Defendant posited that the abscondment is one of the offences that attract termination of employment as stated in page 23 of the Staff Condition of Service.
Although the Claimant by way of reply posited that she did not change address, but admitted that her line was switched off even though she has another line which other staff of the Defendants have.She denied going away with Defendant’s properties, but she tendered the Company I.D. Card as Exhibit C4 which is one of the items the Defendant mentioned was taken away. Perhaps she is not aware that same is the Defendant’s property. Generally, the facts stated in the reply of the Claimant seem more of an afterthoughtdespite her deemed knowledge of the incidence of the shutdown of her outlet as stated in the condition of service.
What I find with regards to the obligation of deploying the Claimant after the incident of March 2016 is that the Claimant did not make herself available for work immediately after the shut down and that is not minding the fact that the Defendant is not mandated but rather has a discretion in deploying her owing to the persistent closure of the outlet where she worked.
For the sake of clarity, I find that the Defendants have not in any way breached the terms and conditions of the employment relationship between them and the Claimant in view of the facts and circumstances surrounding same and in view of the provisions of Exhibit C3, the Staff Condition of Service.
In view of the forgoing, is the Claimant entitled to any of the reliefs sought?
Relief (i) is a declaratory relief as it is for“A Declaration by the Honourable court that the 2nd Defendant acted wrongfully in terminating the Claimant’s employment from the 1st Defendant”.
A declaratory relief is one that seeks the pronouncement of the court as to the status of a named matter, thing or situation. See: EnekweVs I.M.B. (Nig.) Ltd. (2007) ALL FWLR (349) 1053 at 1073 H; Alims Nig. Ltd v. U.B.A. Plc (2007) ALL FWLR (348) 971 at 981. It is a discretionary relief.Per KEKERE-EKUN, J.C.A (as she then was) in NWAGU v. FADIPE(2012) LPELR-7966(CA)(P. 16, paras. F-G)
To be entitled to declaratory relief, the burden is on the person seeking same to prove to the satisfaction of the court that he/she is entitled to same without regard to the weakness of the defence. The court in the case of 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. seeOlisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.
In other words, the court in OLADIMEJI & ORS V. AJAYI(2012) LPELR-20408(CA)posited that:
”It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).
I reckon that counsel to the Claimant argued that the Claimant was not heard before her employment was terminated and same is in breach of fundamental right. He also argued that the case of absconding with property of the Defendant was never reported to the Police. While these are in no way proof of how the Defendant wrongfully terminated the Claimant’s employment, I must correct the impression in this regard to the effect that the condition of service has given the Claimant a preset information on what will happen when her outlet is shut down for abnormal event (which is the crisis that occurred in March 2016). The Claimant must be taken to have known that consequence in view of the shut down and perhaps that is the reason why she didn’t border going back to the Defendant earlier. Also, it must be reckoned that property in question as I earlier noted, are the items which the company validly gave the Claimant which she did not return. There is mention of Uniform and I.D. card and the Claimant actually tendered the I.D. card in evidence which shows that she had been with the card since 2016. The allegation is not one of stealing which is in every sense a crime. It is the fact that she absconded which in order words means she absented herself from work without surrendering the company’s properties given to her.
That said, in view of the fact that this court has found that the termination of the Claimant’s employment is in accordance with the condition of service issued to the Claimant and in view of the fact that the Claimant has woefully failed to prove how the 2nd Defendant wrongfully terminated her employment with the 1st Defendant, the said relief (i) is refused.
Reliefs (ii), (iii) and (iv) are for:
(ii) An order of the Honourable court directing the Defendants to pay the Claimant all her salaries/entitlements from the day her employment was wrongfully terminated till final determination of this suit.
(iii) An order of this Honourable court directing the Defendants to re-instate the Claimant back to her position as the sub-outlet head.
(iv) The sum of Five Million Naira (N5,000,000.00) for general damages.
The said reliefs are dependent on the success of the declaration sought in relief (i) which has failed. The consequence of that is that the said reliefs (ii), (iii) and (iv) also fails.
With regards to relief (v) which is for cost, I must state that this court has discretion in the grant of cost. The court in WEMA BANK PLC.& ANOR v. ALARAN FROZEN FOODS AGENCY NIG. LTD. & ANOR(2015) LPELR-25980(CA)posited that it is at the discretion of the court to award cost. The ultimate requirement is that such discretion must be exercised judicially and judiciously. Per IYIZOBA, J.C.A. (Pp. 41-42, Paras. B-E).
Bearing the above in mind, while I also reckon that cost is to be deservedly awarded to a successful party to cushion what is expended on litigation. The court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) noted that:
“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd &Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.”Per SANUSI, J.C.A. (P. 73, paras. D-F).
In the instant suit, the Claimant is not the successful party in view of the lack of proof that her employment was wrongfully terminated and the Claimant is also not a wronged party in view of the finding of this court that the termination of the Claimant’s employment is in accordance with the condition of service.
Consequently, there is no basis upon which this court can exercise discretion in the award of cost for the Claimant and same is accordingly refused.
It goes without saying therefore that the sole issue for determination is resolved against the Claimant to the effect that the Claimant is not entitled to the reliefs sought based on the facts and evidence before this court.
In the final analysis, the case of the Claimant lacks merit and same is accordingly dismissed.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE
