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National Industrial Court

Peter Etta Ogar -VS- Alh. Rafiu Jimoh & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

 

BEFORE HIS LORDSHIP:                             HON. JUSTICE M. N ESOWE

 

DATE: 7TH MARCH 2019                            SUIT NO:NICN/CA/41/2017

BETWEEN                                    

PETER ETTA OGAR      —————————————              CLAIMANT

 

AND

  1. ALH.RAFIU JIMOH                                                    DEFENDANTS
  2. GODILOGO FARMS (NIG) LTD

 

REPRESENTATIONS

  1. O. OBI Esq. for the Claimant
  2. IYALOMHE Esq. for the Defendants

 

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a General Form of Complaint dated 11th July, 2017 and filed same day.

 

The reliefs sought by the Claimant are as follows:

  1. A DECLARATION that the purported termination of the Claimant’s employment by the 1st Defendants is illegal, wrongful, unwarranted, a gross violation of section 36(1) of the constitution of the federal republic of Nigeria 1999 (as amended) and section 11(5) of the Labour Act.

 

  1. A DECLARATION that the 2nd Defendant’s letter dated 10th April, 2017 purporting to terminate Claimants appointment is ultra vires, null and void and of no effect whatsoever.

 

  1. A DECLARATION that the Claimant is still in the employment and service of the 2nd Defendant.

 

  1. A DECLARATION that Claimant is not entitled to summary termination of his employment by the 2nd Defendant same being confirmed/regularized by the 2nd Defendant.

 

  1. A DECLARATION that the purported termination of Claimant’s appointment under any guise whatsoever is contrary to the provision of the pension act of Nigeria.

 

  1. A DECLARATION that the content of any purported letter of appointment or any agreement whatsoever does not override the provisions of the labour act of Nigeria and pension act.

 

  1. A DECLARATION that the purported termination of Claimant’s appointment by the Defendants negates the fundamental rights of Claimant as provided by the constitution.

 

  1. A DECLARATION that it is unlawful for the 1st Defendants to summarily terminate Claimant employment without due process same constitutes an affront to labour act.

 

  1. AN ORDER of this Honourable Court nullifying the purported termination of Claimant’s employment by a letter dated 10th April 2017 and all other action by the Defendants consequent upon the termination.

 

  1. AN ORDERof this Honourable Court directing the 2nd Defendant to pay arrears of the Claimant’s salaries and other accompanied financial benefits accrued forthwith to the Claimant from the months of his wrongful termination from his employment to date.

 

  1. AN ORDERof this Honourable Court directing the Defendants jointly and severally to return the Claimants personal hp laptop with receipt no. 0162 dated 20th/03/2011, model CQ 61 serial no. ETN 014T3J3Q unlawfully removed from the Claimant apartment by the 1st Defendants and mischievously and illegally retained same to the Claimant in the condition upon which it was unlawfully returned.

 

  1. AN ORDERof this Honourable Court restraining the Defendants by themselves, agents, servants, through or by whatsoever acting for them or on their behalf from further interfering with the Claimant employment.

 

  1. AN ORDERof this Honourable Court directing the Defendants by themselves, agents, servants, through or by whosoever acting for them or on their behalf from further interfering with the Claimant’s official residence.

 

  1. AN ORDERof this Honourable Court directing the Defendants jointly and severally to pay the sum of five hundred million naira (N500, 000,000) only as general and aggravated damages for wrongful termination of the Claimant’s employment at 10% interest of the judgment sum still fully liquidated.

 

  1. AN ORDERof this Honourable Court directing the Defendants jointly and severally to pay the sum of five hundred thousand naira (N500, 000.00) only as cost of this action.

 

SUMMARY OF FACTS

The Claimant, as can be gleaned from the statement of facts, was an employee of the 2nd Defendant whose employment was regularized in 2016. He was employed as a store officer and later promoted to the position of an accountant and exercised his duties as the 2nd Defendant’s accountant from 2013 to 2016 when he was dismissed by the 2nd Defendant. Claimant was instructed by management of 2nd Defendant to start making payment of salaries with exercise books rather than the official voucher. He however advised the management otherwise and continued paying salaries on the official voucher. Consequently Claimant was issued a query dated 15th December 2016 and he replied to the query through a letter dated 16th December 2016. He was subsequently issued a letter of suspension dated 20th December 2016 and directed to handover all relevant documents to the Assistant General Manager (AGM). However the AGM refused to accept these documents and demanded for his leave grant and December salary before he would do so.

On 26 December 2016 when he came to the apartment he occupied as an employee of the 2nd Defendant, he realized that the locks to his house had been changed and discovered that this was done by the 2nd Defendant’s agents, hence, he broke the lock to gain access to the room. The next morning, Claimant discovered that his laptop and some files had been removed. Furthermore, some police men invited the Claimant for interrogation based on the complaint of the Defendants that he had refused to hand over relevant documents and that he had forcefully gained entrance to Defendants’ premises. Claimant stated that he was not allowed to hand over the documents previously but was ready to handover the documents then. Given that the General Manager was unavailable, Claimant was asked to wait till he resumed from suspension to handover the documents.

Upon expiration of the suspension, Claimant resumed on the 11th of April 2017 and handed over relevant documents but he was immediately issued a letter of dismissal dated 10th of April 2017 without benefit or observance of due process, hence, the reliefs sought in this suit.

On their part, the Defendants stated that due process was followed in the dismissal of the Claimant. That the Claimant was issued a query letter and upon his unsatisfactory response, he was issued a letter of suspension. That the Claimant failed to handover Defendants property in his possession before proceeding on suspension as directed; he invaded the 2nd Defendant’s premises by breaking into its guest house and failed to handover companies monies but rather decided to pay same to himself as salaries without due authorization or due process. Defendants further stated that Claimant was never directed to pay salaries with only exercise book, rather, he was instructed to use the notebook in addition to the voucher but the Claimant disobeyed. The Defendant finally stated that the Claimant is not entitled to the reliefs sought and that this suit should be dismissed with substantial cost.

It must be noted that Claimant filed a reply to Defendants’ Statement of Defence

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 7th March 2018 whereby the Claimant opened his case by calling the Claimant who adopted his written statement on oath and additional written statement on oath, tendered exhibits and was cross examined accordingly. Thereafter, Claimant closed their case.

 

The Defendants opened their defence on 14th June 2018 by calling Julius Adalikwu Ogar as DW 1 who adopted his written statement on oath and tendered exhibits on behalf of the Defendants. He was cross examined. Thereafter, Defendants closed their defence.

 

At the end of hearing, parties filed, exchanged and adopted their final written addresses.

 

DEFENDANTS’ FINAL WRITTEN ADDRESS

In Defendants’ final written address dated 29th October 2018 and filed 30th October 2018, Counsel on behalf of Defendants formulated three (3) issues for determination, that is:

 

  1. Whether from the terms of the contract of service exhibit c1, Claimant has a cause of action

 

  1. Whether by totality of evidence adduced by the Claimant he has proved his case to entitle him to the grant of any of the reliefs sought

 

  1. Whether the Defendants are under any obligation to prove that Claimant’s termination of employment was not wrongful

 

ARGUMENT

ON ISSUE 1 & 2: Whether from the terms of the contract of service exhibit C1, Claimant has a cause of action and; Whether by totality of evidence adduced by the Claimant he has proved his case to entitle him to the grant of any of the reliefs sought

Learned Counsel to Defendants submitted that the Claimant failed to show how his termination of employment is unlawful or any legal injury he has suffered which entitles him to seek remedy. He referred the Court to the case of S.C.C (NIG) LTD V. ANYA (2013) ALL FWLR (PT. 703) 2047 @ 2060. He further submitted that the burden of proof is on the Claimant to prove how his termination was wrongful, null and void considering the fact that Claimant admitted to refusing to implement the resolution of the management meeting, paying allowance and salaries to himself without due authorization and breaking into the premises of the 2nd defendant. Counsel placed reliance on the case of MAKU V. AL-MAKURA (2017) ALL FWLR (PT. 909) 1 @ 85 PARAS and SECTION 123 EVIDENCE ACT 2011.

 

The Learned Counsel to the Defendants contended that the contract of service permits the Defendants to terminate the employment of the Claimant without notice if found guilty of gross misconduct. Furthermore, the Claimant failed to show how his contract of service with the 2nd Defendant is governed by the statutes he was placing reliance on. He asserted that the Claimant’s employment did not enjoy statutory flavour and stated that the act of the Claimant trying to make his relationship with the Defendants look like one which enjoys statutory flavour has been frowned at by the apex Court. He referred the Court to the case of IDIBONYE-OBU V. NNPC (2003) 4 M.J.S.C. 131 @ 150 where the Supreme Court held thus:

That a party has no right to elevate an ordinary contract of master and servant to the status of one with statutory flavour just because he will have a better deal. The Courts will not allow that.

 

Learned Counsel to the Defendants reiterated that the Claimant, assuming he was wrongfully dismissed, would only be entitled to damages and not declaration that the termination is wrongful, unlawful, unconstitutional, null and void and of no effect, or that he is still in the service of the 2nd Defendant. Learned Counsel referred to the case of ILODIBIA V. N.C.C. (1997) S.C.N.J. 77 80.

 

Learned Counsel further submitted that the Court should discountenance claims 2,3,9,12,13 and 14 as the Court cannot foist the Claimant on the 2nd Defendant. Also, he urged the Court to hold that Claimant having paid himself his salaries is not entitled to same. The Claimant is not a witness of truth as he gave testimonies that contradicts his pleadings during cross examination. On this ground, Counsel urged the Court to discountenance the Claimants testimonies as same is not reliable and urged that issue 1 and 2 should be resolved against the Claimant.

 

ON ISSUE 3: Whether the Defendants are under an obligation to prove that Claimant’s termination of employment was not wrongful?

The Learned Counsel to the Defendants submitted that the Defendants are not under any obligation to prove that the termination of the Claimant’s employment was wrongful. He however stated that the Defendants have nevertheless made averments and supplied evidence to prove same.

He submitted that the Defendants terminated the Claimants employment because he failed to comply with company’s policy and also broke into the premises of the 2nd Defendant.

He therefore urged this Court to hold that the Claimant’s suit is frivolous and lacks merit.

CLAIMANT’S FINAL WRITTEN ADDRESS

Upon receipt of Defendants’ final written address, Learned Counsel on behalf of Claimant filed their final written address dated 20th November 2018 and filed on the 26th of November 2018 formulating seven (7) issues for determination, that is:

  1. Whether from the evidence on records, Claimant has proved his case on preponderance of evidence to be entitled to reliefs sought from this Honourable Court.
  2. Whether by virtue of the letter of regularization of Claimants appointment by the 2nd Defendant dated 27th march 2016 Claimant can still suffer summary dismissal.
  3. Whether the termination of Claimant’s appointment by the Defendants was in line with due process as required by labour law.
  4. Whether Claimant was granted fair hearing and given sufficient facilities to defend allegations.
  5. Whether the failure of the Defendants tendering the purported December 2016 vouchers which Defendants alleges that Claimant fragrantly paid himself his due December 2016 salary and his September 2016 leave grant without authorization is fatal to the Defendants case.
  6. Whether the purported letter of suspension dated 20th/ 12/2016 expressly stated that Claimant should vacate his official quarters, pending when suspension shall be lifted or as contained in the letter of 20th/12/2016.
  7. Whether the Defendants without requisite notices as required by the tenancy law can in the absence of the Claimant break into his premises, remove Claimants padlock and hug their own in the room in his official residence by locking him out of his properties.

In the introduction to arguments on the issues formulated above, Counsel sought the leave of Court to argue issues 3, 4 and 5 together, and issues 6 and 7 together.

ON ISSUE 1: Whether from the evidence on records, Claimant has proved his case on preponderance of evidence to be entitled to reliefs sought from this Honourable Court

Learned Counsel to the Claimant submitted that by virtue of Section 131 to 134 of the Evidence Act 2011 (as amended), civil cases are established by preponderance of evidence and that the Claimant has proved vital ingredients to discharge the burden of proof on him.

He further submitted that the Claimant has successfully proved that he was in the 2nd Defendant’s employment and that the contract of employment is regulated by law of the federation. That the employment was terminated without recourse to due process and also that his official apartment was wrongfully broken into.

ON ISSUE 2: Whether by virtue of the letter of regularization of Claimants appointment by the 2nd Defendant dated 27th march 2016 Claimant can still suffer summary dismissal

Learned Counsel to the Claimant contended that the termination of the Claimant without following due process negated the provisions of the Labour Act which requires for a one month notice, he relied on the case of OLORUMTOBA – OJU VS. ABDUL-RAHEEM (2009) 6 MJSC (PT 1) PG 1 AT PG 7 where the Court held that every contract of employment must comply with the procedure specified and laid down in statute before removing an employee.

He therefore urged the Court to hold that Claimant cannot be summarily dismissed.

ON ISSUE 3, 4 & 5

Counsel submitted that the Claimant was summarily dismissed without according him the opportunity to be heard thereby breaching the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria (1999) as amended

Furthermore, the Defendants’ failure to provide before the Court the voucher of December 2016 which they claim is the major offence of the Claimant and reason for the summary dismissal is fatal to their case. He relied on the case of MAIHAJA V. GAIDAM (2017) ALL FWLR (PT 917) PG 1626 at pg 1639

ISSUE 7 & 8: Whether the purported letter of suspension dated 20th/ 12/2016 expressly stated that Claimant should vacate his official quarters, pending when suspension shall be lifted or as contained in the letter of 20/12/2016 and; Whether the Defendants without requisite notices as required by the tenancy law can in the absence of the Claimant break into his premises, remove Claimants padlock and hug their own in the room in his official residence by locking him out of his properties.

Learned Counsel to the Claimant contended that the letter of suspension never mentioned that the Claimant should vacate his official residence during the pendency of the suspension and the Defendant cannot vary the content of the letter of suspension by oral testimonies. He cited the case of CHIEF S.O. AGBAREH & ANOR V. DR ANTHONY MIMRA & 3 ORS (2008) 2 MJSC PG 134 AT 139.

He urged the Court to hold that the said letter of suspension never required the Claimant to give up possession of his official residence and that issue 7 and 8 be resolved in favour of the Claimant.

DEFENDANTS’ REPLY ON POINTS OF LAW

On receipt of Claimant’s final written address, Defendants filed a reply on point of law dated 4th January, 2019 and 29th January, 2019 on which they replied on points of law to Claimant’s final written address and adumbrated further on their earlier written address.

COURT

Having gone through the Claimant’s Claim, Defendants’ Defence, exhibits tendered before this Honourable Court and final written submissions of both Counsel, this Court has distilled a sole issue for the just determination of this suit, to wit:

 

Whether the Claimant has proved his case to be entitled to the reliefs sought.

The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence by both parties on an imaginary scale to determine which side’s evidence is heavier and accordingly preponderates. The party whose evidence is heavier succeeds in the case. See Dr Useni Uwah& Anor V. Dr Edmundson T. Akpabio& Anor (2014) 2MJSC (Pt.11)108 @113. Moreso, the success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. In the same vein, the success or failure of the defence of the Defendants is based on the averment in his statement of defence and the evidence led in support thereof. See Ramonu Rufai Apena& Anor V. Oba FataiAileru & Anor (2014) 6 – 7 MJSC (Pt.11)184 @ 188.

 

In the case herein, it is not in dispute that the Claimant was in the employment of the Defendants, what is in dispute however is whether the termination of the Claimant was lawful or not.

 

The relationship existing between the parties in this suit is that of ordinary master and servant governed by written agreement not subject to statutory flavour. This means that in determining the terms of the employment, recourse must be made to the condition of service as this is a binding agreement between the parties. See the case of IFETA V. SPDC (2006) 8NWLR (PT 983)585, where the Supreme Court, per Mohammed JSC said that:

In the determination of this issue, I need to emphasize the bindingness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of the contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are invariably the guide to its interpretation. On this premises, the material question is what did the parties in the instant case agree with respect to the termination of the contract of service?

See also the case of NITEL PLC V. AKWA (2006) 2 NWLR (PT 964) 391 where the Court held that.

The terms and conditions of a contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination

In the instant case, the document of contract the Court needs to construe is the letter of regularization dated the 27th day of March 2017.  As earlier stated, the fact that the Claimant was in the Defendants’ employment was not disputed, however, the Defendants drew the Court’s attention to the fact that the letter of regularization tendered by the Claimant is incomplete and thereafter pleaded the said complete version of the letter. The Claimant also did not contradict this averment.  Paragraph 7 of the letter of regularization which was pleaded by the Defendants states thus:- Termination of appointment: either side may terminate the appointment by giving one month’s notice or pay in lieu, provided that the employee may be dismissed without notice or pay for gross misconduct.

 

Flowing from above, the apparent question that arises is was the termination wrongful? It is noteworthy to state that it has been held in plethora of cases that in a master and servant relationship devoid of statutory flavour, the master has the absolute right to terminate the employment of his servant for no reason or any reason whatsoever be it good or bad. The fundamental principle is that a master who no longer requires the services of his servant can terminate such employment at any time provided that it is in accordance with the conditions of service of that employment, which under common law, is satisfied once the requisite notice or salary in lieu of notice is given to the party affected. The plain fact is that even where the employer is obviously mischievous, outrageous and somewhat ridiculous, there is nothing the Court can do in reinstating the employee. The Court will not force a servant (however willing) on an unwilling master. See the case of KATTO V. CBN (1999) 5 SCNJ 1 and IDONIBOYE-OBU V. NNPC (2003) 1 SCNJ 87 AT 105 where Uwaifo JSC opined that:

Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant.

This Court is minded to state that even if a master terminates the employment of his servant in such a manner contrary to the terms of the employment, the only remedy available to the employee is damages for wrongful termination of employment. In other words, the termination of an employment which is devoid of statutory flavour cannot be declared to be null and void, the only remedy for such an employee is for damages to be paid to him. See UNION BANK OF NIG LTD V. CHUKWUEGO OGBOH (1995) 2 SCNJ 1 @ 16

Moreso, in a case where the Claimant is claiming that the termination of his employment was wrongful, the onus is on such Claimant to prove same. In the case of MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR 506 @ 519, the apex Court stated that in a case of wrongful or unlawful termination of employment, the plaintiff must begin first by specifically pleading the following.

  1. That he is employed by the Defendants;
  2. The terms and conditions of his appointment including duration and termination;
  3. who can appoint and remove him;
  4.  The circumstance under which his appointment can be terminated; and
  5.  That his appointment can only be terminated by a person or authority other than the Defendants.

 

In addition to the aforementioned, the Claimant must also plead relevant facts and evidence; these pleaded facts must be supported by credible evidence for his claim to succeed.

 

Having carefully examined the evidence led in proof of Claimant’s case and the records of proceedings in totality, I am of the view that the Claimant has failed to plead fact or lead evidence to show the way and manner in which the Defendants breached the condition of service in terminating his employment. In fact what I gather from the Claimant’s pleadings is that the Claimant seems to be of the opinion that the confirmation/regularization of his employment by the Defendants in a way confers statutory flavour on his employment. Reference is made at this point to the claims in this suit whereby the Claimant seeks, amongst other reliefs, a declaration that his termination is null and void; that he is still in the employment of the Defendants; that he is not entitled to summary termination since the Defendants had confirmed his employment etc. These reliefs sought are of a nature that can only succeed where the Claimant’s employment has statutory flavour. The Court cannot elevate a master-servant employment to an employment with statutory flavour for the purpose of reinstating or stating that the termination of his employment violates his fundamental rights and principle of fair hearing. Matters of reinstatement, violation of fundamental rights, application of the principle of fair etc are predominantly in the domain of employment with statutory flavour and not in master-servant employment.

 

A perusal of the pleadings of both parties shows that a directive was given by the management of the 2nd Defendant but the Claimant failed to implement the directives. The reason given by the Claimant for this failure is that usually the management would issue a written resolution in that respect. The Claimant however failed to lead any evidence to prove the existence of such practice. The law is that he who asserts must prove. It is trite that in a master servant relationship lacking statutory flavour, the master can rightfully terminate the employment of the servant summarily on the grounds of misconduct or willful disobedience See the case of OSISANYA V. AFRIBANK (NIG)  PLC (2007) 6 NWLR (1031) 565 @587. See also UBN V. Soares (2012) 11NWLR (Part 1312)550 @557 where the Court held:

A wilful disobedience of a lawful order and reasonable order of an employer by an employee is a definite act of misconduct which, at common law, attracts the penalty of summary dismissal, because such wilful disobedience is a reflection of total disregard of an essential condition of a contract of service, namely, that the servant must obey a proper, reasonable and lawful order of the master, in default of which their contractual relationship cannot be expected to continue (Sule V. Nigerian Cotton Board (1985 2NWLR (Pt. 5) 17 referred)

The act of the Claimant herein in disobeying the orders of his superior on the use of exercise book for the payment of salary sparks of having two captains in one ship or two kings in one palace. You cannot have two captains in one ship – such a ship is a disaster in waiting. In employment matters, you cannot have a servant who continues to say nay whenever the master says aye. Such a relationship cannot flourish, it cannot continue, it is bound to come to an end. In this vain, I wonder what the Claimant was expecting when he continued to disobey the orders of his superior. Any employee who continues to say no when his employer says yes should wait when he sets up his company or when he becomes a superior, perhaps only then will he realise how grievous the act of insubordination can be.

 

The provision of summary termination was also expressly provided for in the condition of service (see paragraph 7 of the letter of regularization dated 27th of March 2016). It is trite that in a contract of master and servant, the only business the Court has is to construe the contract of service between the parties if any, the Court cannot go outside the terms of the contract nor rewrite contract for parties. See UBN V. Soares (2012) 11NWLR (Part 1312)550 @556 where the Court held:

The Courts are not allowed to make or rewrite agreements between the parties. The only duty of the Court is to interpret those clauses written in the contractual document

Arising from the foregoing, I cannot agree with the Claimant that the termination of his employment by the 2nd Defendant was wrongful. Reason being that against the background that parties were in a master-servant relationship devoid of statutory flavour, the 2nd Defendant had the unfettered right to hire and fire so long as it is in accordance with the condition of service binding the parties.

 

On the 2nd issue formulated by the Claimant, this Court wishes to state that the regularisation of the Claimant’s employment did not offer him a permanent super glue that would glue the Claimant to the 2nd Defendant’s employment no matter what he did. Regularisation of employment or confirmation entitles an employee to benefit from the terms and conditions of employment available to his colleagues whose employment have been confirm and not a leeway for the employee to disobey lawful, proper or reasonable order/instruction and expect to get away with it under any guise whatsoever. Furthermore, Claimant pleaded that coming on the 26th of March, 2017 to the apartment in the premises of the 2nd Defendant which he occupied as a guest house and finding that the lock had been changed by the Defendants, he broke the lock so he could gain access. He therefore seeks a relief in relief 11 of his claim for an order for the return of his laptop which he discovered the following morning that it had been removed by the Defendants and Defendants have not given it back. On the part of the Defendants, while not admitting that they took the laptop belonging to the Claimant, they stated however that the Claimant broke into the apartment and took money belonging to the Defendants. I must say that this Court is not minded to grant any claim not proved nor is she interested in granting any relief not sought. It will suffice to state that being that the relationship between the Claimant and the Defendants has been determined, whatever is in the possession of the Defendants that belongs to the Claimant should be surrendered to the Claimant and whatever that is in the possession of the Claimant that belongs to the Defendants should be surrendered to the Defendants.

 

For all that have been said above, the Claimant’s suit fails and same is hereby dismissed.

 

I make no order as to cost. Parties should bear their respective cost.

 

Judgment is entered accordingly.

 

…………………………………

HON. JUSTICE M.N ESOWE

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