MALLAM SANUSI MUSA KANGU -VS- UNION BANK OF NIGERIA PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 18^TH DECEMBER, 2019 – SUIT NO: NICN/KN/10/2018

BETWEEN

MALLAM SANUSI MUSA KANGU………………………………CLAIMANT

AND

UNION BANK OF NIGERIA PLC ……………………………..RESPONDENT

REPRESENTATION: Claimant – Present Respondent – Absent.

APPEARANCE:

Fatima Abubakar, Esq. for the Claimant

Mustapha M.K, Esq. for the Defendant.

JUDGMENT

The Claimant commenced this action by the originating summons filed on the 13^th March, 2018 in which his seeks the determination of the following questions:

1) Whether in view of the Judgment of the Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 delivered on 28 day of November, 2014 between Mallam Sanusi Musa Kangu and Union Bank of Nigeria Plc in the following terms:

“That the purported termination of the Appellant’s appointment by the Defendant during the pendency of his case before the trial court was most improper”.

The Claimant is entitled to be reinstated to his appointment by the Defendant.

2) Whether in view of the Judgment of the Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 between Mallam Sanusi Musa Kangu and Union Bank of Nigeria Plc delivered on 28^th day of November, 2014 in the following terms:

“That the purported termination of the Appellant’s appointment by the Defendant during the pendency of his case before the trial Court was most improper”.

The Claimant is entitle to be paid his salaries and allowances from 24^th day of June 2004 to 23^rd June 2022.

3) Whether in view of the Judgment of the Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 between Mallam Sanusi Musa Kangu and Union Bank of Nigeria PLC delivered on 28^th day of November, 2014, in the following terms:

And the Claimant Claimed against the Defendant:

Declaration that, in view of the Judgment of the Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 between the claimants Mallam Sanusi Musa Kangu and Union Bank of Nigeria Plc the claimant is entitled to be reinstated to his appointment by the defendant or in the alternative.
Declaration that in view of the Judgment of Court of Appeal Kaduna Division in appeal No. CA/K/424/2008 between the claimant and defendant herein the Claimant is entitled to be paid his salary and allowances from 24^th day of June 2004 to 23^rd day of June, 2022.

C: A declaration that in view of the Judgment of Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 between the claimant and defendant here in the claimant is entitled to be paid his salary and allowances from 24^th June 2004 to 28^th February, 2018.

D: An Order directing the defendant to forth with reinstate the claimant to his appointment.

Or in the alternative

E: An Order directing the defendant to pay the Claimant the sum of N47,549,199.95 as his salaries, allowances, and gratuity from 24^th June, 2004 – 23^rd June 2022.

F: An Order directing the defendant to pay the claimant the sum of N32,623,365.92k being his salaries, allowances and gratuity from 24^th June 2004 – 28^th February 2018.

G: Any other Order or Orders as this Honourable Court may deem fit to make in the circumstances of this case.

In the affidavit in support of the Originating Summons the Claimant as the deponent averred that he was a former employee of the Defendant bank at its Bank Road Branch, Kano.

That he was employed by the Defendant via the letter of employment dated 23/6/87 marked as exhibit A. He also averred that he is a permanent and pensionable staff of the defendant occupying an established position before his alleged suspension.

He averred that he was employed at the age of 25 by the Defendant and by the year 2022 he would be 60 years old and 35 years in the service of Defendant if he had continued in its services.

He averred that the Defendant placed him on suspension by the letter marked exhibit B on the 31^st of August, 1998.

And that precisely on the 24^th day of November, 2004 he instituted an action in the Kano State High Court against the defendant seeking among other reliefs a declaration that the termination of his appointment before the determination of his case was wrongful and therefore, null and void.

That the grand total of his salaries and allowances and gratuity from 24^th June, 2004 when he instituted the action in suit no. K/406/2014 when the Court of Appeal delivered its judgment in appeal no. CA/K/424/2008 in his favour is N 24,763,566.00. That in the judgment delivered by the High Court of Justice Kano state, presided over by Justice S.B Adamu (retired) on the 10^th January, 2008 the Court dismissed his claim. And being dissatisfied the Judgment of the High Court Kano he appealed to the Court of Appeal Kaduna.

Which Court held in its unanimous decision of 28^th of November, 2014 allowing his appeal that the purported termination of his appointment by the defendant was most improper; The Certified True Copy of the Judgment attached and marked as exhibit C. That his solicitor wrote the Defendant in Exhibit D dated 7^th April, 2015 requesting that his entitlement including pension and gratuity be paid. And his solicitor followed up with two more letters dated 25^th May, 2015 and 25^th June, 2015 respectively marked as exhibit E and F but all the letters were not responded to by the defendant.

He consequently engaged the services of A.A Umar & Co. to file this action before which the solicitors wrote exhibit G requesting his entitlements.

The Claimant averred that the Court of Appeal further held that the Defendant pay the Appellant the sum of N2,262,928:50 being his salaries and allowances from the date when his suspension takes effect i.e 31^st August, 1998 to 22^nd June, 2004 when he filed this case at the lower court as stipulated in the collective agreement between the parties, since the case against him had not being disposed off within eighteen months from the date of his suspension and the matter was still in court up till 20/4/2004 when he was discharged by the Kano State High Court.

On the 9^th of July 2018 the Defendant filed a notice of preliminary objection in response to the originating summons praying for the following orders:

1) AN ORDER of this Honourable Court dismissing the instant suit for absence of Jurisdiction on ground of res judicata and issue of estoppel.

2) AND for such further Orders (s) as this Honourable may deen to make in the circumstances.

The grounds of the preliminary objection were that:

1) The parties, the facts, the subject – matter and the cause of action of the instant suit that gave birth to the said Court of Appeal Judgment in Appeal No. CA/K./424/2008 as per the said exhibit “C” are the same.

2) That the subject matter of the two suits is the claimant’s employment with the defendant while the cause of action in the two suit was his dismissal from the service of the defendant by the letter.

3) That the Claimant ought to have prayed for his reinstatement and/or payment of salaries and other entitlements from the date of his dismissal to the date of Judgment or to any further date in the suit that gave birth to the said Appeal No. CA/K/424/2008 but deliberately refused to do same.

In the affidavit of Anthony Nsoro in support of the notice of preliminary objection. He averred that he works in the Human Resource Department of the Defendant and he had gone through the entire originating summons of the Claimant with it’s supporting affidavit and the entire Judgment of the Court of appeal in Appeal No. CA/K/424/2008 between the instant parties. That as a matter of fact the parties, the facts, the subject matter, and the cause of action of the instant suit that gave birth to the said Court of Appeal Judgement in exhibit C are the same being the claimant’s employment with the Defendant. The cause of action of the two suits being the dismissal of the Claimant from the service of the Defendant by the Defendant.

The deponent maintained that the claimant ought to have prayed for his reinstatement in the suit that gave birth to the said appeal but he deliberately refused to do so. And that the Defendant had since paid the claimant the Judgment sum in the said Appeal No. CA/K/424/2008 which was his salaries and allowances.

On 18^th January 2019 the Claimant/Respondent to the notice preliminary objection filed a motion on notice pursuant to Order 57 Rule 4 and Order 6 of 2017 National Industrial Court Civil Procedure Rules seeking for the following orders:

An Order extending time for the claimant Applicant to file his “further and better affidavit and claimant’s response to the Defendants notice of preliminary object out of time.

At prayer 3 the Claimant/Applicant and Respondent to the Notice of Preliminary Objection prayed for “An Order deeming the separately filed Claimant’s response to the defendant’s notice of preliminary objection and the Claimant’s further and better affidavit to the defendant’s counter affidavit both dated 16^th day of January, 2019 as having been filed and served appropriate fees and penalty for late filing having been paid.”

This motion was granted on the 30^th of April 2019. And at the hearing of the preliminary objection Mr. Dabo, Counsel to the Defendant/objector had pointed out to the Court that the Claimant Respondent had not filed a counter affidavit to the preliminary objection where upon Mr. T. Bello for the Claimant/Respondent told the court they had filed a written address dated 16^th January, 2019 which he adopted as the Respondent’s legal arguments in urging the Court to discountenance the notice of preliminary objection.

Now, in the written address of the objector the following issue had been formulated for determination.

“Whether by doctrine of Res Judicata and estoppel and in view of the subsisting decision of the Court of Appeal No. CA/K/424/2008 over the same subject matter, this Honourable Court has Jurisdiction to hear and determine the instant suit”

In the Claimant’s response to the Applicant’s Notice of Preliminary Objection dated 25^th June, 2018, the sole issue formulated for determination by the objector was adopted by the Claimant/Respondent. In the legal argument/submissions of the objector, the question posed for determination in the issue formulated was answered in the negative Arguing that it is trite that there should always be an end to litigation and that our courts are enjoined not to encourage prolongation of disputes or proliferation of litigation relying on the maxin “Nemo debet his vixari, si constet curiae quod sit pro um et eadem causa, “that no one ought to be trice troubled, if it appears to the Court that it is for the same cause, and referred to the case of CHIEF URIAH AKPANA ADOMBA & ORS V, BENJAMIN ODIESE & ORS (1990) LPELR – 190 (SC), para E@ P. 13 and OYEKOLA VS AMODU (2017) LPELR – 423 91 (CA) amongst others.

The objectors further submitted that from a community reading of the entire content of the Claimant’s affidavit in support of the instant suit vis – a – vis the Judgment of the Court of Appeal in exhibit ‘C’ will reveal that the parties, the facts the cause of action and the subject matter of the said two actions are the same and it goes without saying that the same evidence would support both the two actions. It was further submitted by the objector that the Claimant ought to have raised and brought all the issues/claims he raised in the instant suit during the trial of the suit that gave birth to the said Appeal No. CA/K/424/2008.

In the Claimant’s response to the Applicants Notice of preliminary objection it was submitted that for an applicant to succeed in a plea of estoppel per res judicata, he must establish the presence of all conditions as enumerated by the Supreme Court in the case of MR AKINFELA FRANK COLE V. MR ADIM JIBUWOH & ORS (2016) 4 NWLR (pt 1503) p. 499 @ 505 as follows:

a)The parties in the previous action and the present one must be same,
b)The subject matter of litigation in the previous action must be the same as the one in the present actions.
c)The claim in the previous action must be the same as the one in the present action.
d)The decision in the previous action must be given by a court of competent Jurisdiction.
e)The decision given in the previous action must be final or it must have finally disposed of the rights of the parties.

The Respondent argued that having regard to condition (b) and (c) and the record from the previous suit the Applicants cannot allege that, the subject matter and the claim are one and the same. And submitted that a mere glance at the claimants statement of claim in the previous suit and the one before this Honourable Court, it is sufficient to disclose that, the subject matter, claim and questions raised in the two cases are not the same, that in the previous suit the claimant claimed for his salary, while in the present suit he is claiming for his re instatement from the improper dismissal as found by the Court of Appeal that at the lower court, the case of the Defendant Respondent was not challenge of his dismissal as he never knew of such fact, but his claim was for unpaid salaries and allowances during his suspension, and that, at the lower court there was no cross action or counter claim on the purported dismissal, yet the trial court in it’s Judgment dealt on the fact that the appellant was guilty of gross misconduct and that the dismissal was justifiable.

The Respondent at paragraph 3.4 submitted further that the doctrine of res judicata is aimed at bringing an end to litigation, and a particular litigation can only come to an end where all issues involved have been decided by a competent Court of law citing the case of MR. AKINFELA FRANK COLE V. MR. ADIM JIBUNOH & ORS (SUPRA). The Respondent also submitted that the principle of Res Judicata applies only where a final decision has been pronounced by a judicial tribunal/court, having a competent Jurisdiction over a cause of action or matter in litigation and over parties there to once and for all. That this is only where Estoppel per res Judicata or estoppel of record is said to arise. That in the present case, the subject matter/claim of the litigation is different from the one already decided between the parties, therefore the issue of res judicata or estoppel will not arise citing O.S.P.M ltd. V. NIBELCO. (Nig) Ltd. (2017)3 NWLR (Pt 1552) P. 207 @ 212 and OSHOBOJA V. AMIDA (2009) 18 NWLR (pt. 1172) 188 and OSUWOYE V. BOSERE (2012) I WW;R (pt, 1546) 256 at 264.

COURT’S DECISION

Now, having gone through the Judgment of the 28^th November, 2014. It is worth restating here in entirety the beginning of the Judgment up to a point in deciding the present case.

“This is an appeal against the Judgment of the Kano State High Court of Justice delivered on the 10^th of January, 2008 by Sabo Bilyaminu Adamu J. The Appellant was the plaintiff at the lower court while the Respondent was the Defendant.

By the amended writ of summons dated 24^th November, 2004 filed in suit No. K/406/2004 the Appellant as plaintiff sued the Defendant Claiming the following reliefs:

1) A declaration that the purported termination of the plaintiff’s appointment before the determination of his case was wrongful and therefore null and void.

2) A declaration that the plaintiff who was never served with any termination letter is entitled to his salaries and allowances from 1^st of September, 1998 when he was suspended to June 2004 when this case was filed which is the total sum of N262,928.50K.

3) An Order directing the Defendant to pay the plaintiff the said sum of N2,262,928.50k together with solicitor’s professional fee of N180,000.00k for defending himself.

4) A declaration that the Defendant falsely imprisoned or maliciously prosecuted the plaintiff when it was clear that the claimant was not guilty of any crime.

5) A declaration that as a result of the said false imprisonment/malicious prosecution the plaintiff suffered untold hardship, humiliation and pains.

6) N10,000,000.00 general damages”

The above was how the Court of Appeal captured the suit commenced at the Kano State High Court of Justice from its amended writ of summons dated 24^th November, 2004. In the present suit before me, I had already stated in full what the prayers of the claimant are. And I have already highlighted the objection and the response of both objector and Respondent. What is apparent is that in the affidavit in support of the originating summons the claimant averred, and rightly too that the Court of Appeal had in its Judgment of 28^th November 2014 held that the purported termination of the appellant’s appointment by the Defendant before the determination of his case before the trial court was improper.

And that the defendant pay the appellant the sum of N2,262,928.50k being his salaries and allowance from the date when his suspension takes effect i.e 31^st August, 1998 to 22^nd June, 2004 when he filed his case at the lower court as stipulated in the collective agreement between the parties, since the case against him has not been disposed off within eighteen months from the date of his suspension and the matter was still in Court up to 20/4/2004 when he was discharged by the court.

Now, I find that it is clear from the above reliefs highlighted from the Kano State High Court case of 2004 together with the Judgment of the Court of Appeal Kaduna, the Claimant by this originating summons is claiming separately or distinctly that he be paid outstanding salaries and allowances from 24^th June 2004 to 2^nd June, 2022. He also seeks to be reinstated to his former employment as he is contending he would be due for retirement in the year 2022.

He is also claiming that he be paid the sum of N47,549,199.95 as his salaries from 24^th June 2004 and 2^nd June 2022.

He is also seeking an Order directing the Defendant to pay him the sum of N32,623,365.92k from 24^th June 2004 – 28^th February, 2018.

I hold that what is apparent here is that these claims comprised in the originating summons, though related and emanating from the same set of facts that led to the 2004 suit against the Defendant, they are distinct and separate and were not contemplated and possibly could not have been contemplated and possibly could not have been contemplated at a time when the suit in the High Court nor the Appeal that came afterwards was yet to be determined. I agree with the respondent to the P.O when he submitted that the doctrine of Res Judicata can only come to an end where all issues involved have been decided by a competent court of law see MR. AKINFELA FRANK COLE V. MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (pt 1503) p. 499 @ 505.

Here, I find and do hold straight away that that the claims in the Originating summons are not the same as in the previous litigation where there was no claim for reinstatement and claim for salaries up to 2018 or 2022.

I find and do hold that the contention and agreement of the objectors that the claimant ought to have raised and brought all the issues/claims he raised in the instant suit that gave birth to the Appeal are hereby discountenanced as those issues could not have been reasonably contemplated at that time. The preliminary objection is hereby dismissed for the above reasons.

DETERMINATION OF THE ORIGNATING SUMMONS

Now in the Affidavit of the Claimant in support of the Originating Summons he had gone on to aver that having been employed by the Defendant in 1987 his 35 years in service will terminate in the year 2022. That the Court of Appeal having found and held that, the purported termination of his employment by the Appellant now Defendant as most improper, he is entitled to be reinstated to his duty post forth with. That he is entitled to be paid his salaries and allowances from 23^rd June 2004 to the year 2022 as salaries he would have earned had he been and remained in service of the defendant from 23^rd June, 2004 to 23^rd June 2022.

That by the collective agreement marked as exhibit ‘H’ he is entitled to be and remain in service of the Defendant for a period of 35 years upon reaching 60 years of age being a permanent and pensionable staff occupying established post. At paragraph 28 to 58 of his affidavit the claimant gave details of all monthly salaries and allowances he would have earned on succeeding grades of promotion to a succeeding rank up to the rank of sub manager at paragraph 56 had been in service up to the year 2022 and included gratuity. The schedule detailing all the said salaries allowances was attached as exhibit ‘B’.

In the counter affidavit of the Defendant it was averred that the claimant is no longer a staff of the Defendant from 23^rd of June 1987 to October, 1998, when he was dismissed for gross misconduct. That the relationship between the claimant before the said dismissal was that of employer and employee strictly governed by the contract of agreement between them.

That the claimant spent only 11 years in the service of the Defendant before he was dismissed and that he is not entitled to any pension and gratuity. That at the time of his employment that claimant was 25 years and at the time of his dismissal he was neither 60 years old and had neither been 35 years in the Defendant’s service.

That nowhere in exhibit A (The offer of employment) or in exhibit H (that is the collective agreement) is it stated that the claimant is entitled to be and remain in the Defendant’s service for a period of 35 years upon reaching 60 years of age.

In the written address in support of the originating summons three issues were formulated for determination.

1) Whether in view of the Judgment of the Court of Appeal Kaduna Division in Appeal No. CA/K/424/2008 delivered on 28^th November 2014 in the following terms: “That the purported termination of the appellant’s appointment by the Defendant of the during the Pendency of his case before the trial court was most improper. The claimant is entitled to be reinstated to his appointment by the Defendant”

2) In the second issue founded on the same premise and holding of the Court of appeal that the purported termination of the Appellant’s appointment by the Defendant during the pendency of his case before that Court was improper. The Claimant is entitled to be paid his salaries and allowances from 24^th day of June 2004 to 23^rd June 2022.

3) The 3^rd issue founded on the same premise of the Court of Appeal holding as in issue one and two and the question for determination/relief sought being.: The Claimant is entitled to be paid his salaries, allowances, gratuity and pension from 24^th day of June 2004 to 28^th February, 2018.

In response the Defendant adopted the three issues formulated by the Claimant and answered all the questions formulated in the negative.

Here, at issue one, the Claimant had argued that by exhibit C the Court of Appeal judgment where the court had held that the purported termination of the Claimant’s employment during the pendency of his case was most improper. That the Claimant wrote to the defendant demanding for his reinstatements or in the alternative payment of his entitlements which the defendant ignored.

The Claimant submitted here that by exhibit C the decision of the Kano State High Court in suit No. K/406/2004 was set aside and the status of the Claimant was restored as an employee of the Defendant placing reliance on IMOLOAME V. W.A.E.C (1992) 9 NWLR (part 265) pg. 303 particularly pg 305 where he contends the Court had held that the position of the law is that once the Court held that the alleged dismissal, termination or suspension was ineffectual, invalid or improper, there is no dismissal at all.

The Defendant in response differed referring to page 14 of the said Court of Appeal Judgment in exhibit C relied on by the Claimant and contended that it did not avail the Claimant that the law had long been settled that except in employment governed by statute, the only remedy available to a party in a claim for wrongful dismissal is a claim for damages and nothing else and no servant can be imposed by the court on an unwilling master even where the master’s behaviour is wrong placing reliance on the case of IDERIMA V.R.S.C.S.C (2005). All FWLR (pt 285) 431 at 446 – 447 paras D – A. relying here on ONU J.S.C (as he was):

See also the case of UNION BANK OF NIGERIA LTD VS CHUKUELOCHARLES OGBOH (1995) 2NWLR (pt 380) 647 at 669 where this court held – “Except in employment governed by statute wherein the procedure for employment and discipline including dismissal of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in that way and manner prescribed by the relevant statute and any other manner of termination inconsistent therewith is null and void and of no effect.

But in other cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to. Any other form connotes only wrong termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrong dismissal. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master’s behaviour is wrong for his wrongful act he is only liable in damages and nothing more”.

Indeed, I read through the Judgment of the Court of Appeal in exhibit C, it clearly did not make any order for reinstatement of the claimant and I readily hold as such in the instant of this case at this moment.

Before rounding up on this issue the law as stated by the claimant when he cited, IMOLOAME does not, with due respect support his case. This case between the Claimant and the Defendant before me, I hold, is a case of Master and Servant not one of an employment coated with statutory flavour that have more attendant protections of the law out of the statute. In IMOLOAME. V. W.A.E.C (1992) SC LPER-1500 (SC) at page 20 and paragraph A. The Supreme Court held that the Court will not grant specific performance in respect of breach of contract of service. In RIGBY V. CONNON (1884) 14 CH D482, Jessel MR. said.:

“The Court’s have never dreamt of enforcing agreements strictly personal in their nature, whether they be agreement of hiring and service being in common relation of master and servant”.

In the premises of the above reasoning issue one is determined against the claimant.

Regarding the 2^nd issue on the claimants entitlement to be paid his salaries and allowances from 24^th day of June 2004 to 23^rd June 2022. Here, the claimant had submitted that in the event the Court did not grant the relief for reinstatement. It was further submitted that the claimant having put before the Court through affidavit evidence the ground total salaries, allowances, gratuity and pension as N47,547 199.95 from 23^rd June 2004 which was the time he instituted an action before the Kano State High Court in suit No. K/406/2004 to June 2022 which is the time his service with the Defendant would be determined either by attaining 60 years of age or 35 years in service had he been and continued the employment of the Defendant till the age of retirement. That the Court of Appeal having found and held that the purported termination of the Claimant’s employment was most improper, the consequence is that, the Claimant is entitled to benefits he would have earned had he continued in the employment of the Defendant till attaining retirement age. Here the Claimant cited IMOLOAME at Paragraph 2.01 of his written address at page 305 where the Court held that.

“It is well settled that in cases of wrongful dismissal “the measure of damages is prima facie the amount the claimant would have earned had the contract of employment continued according to the contract…”

Citing also U.B.N.V SOARES (2012)11 NWLR pt 1312 pg 550 at 573 para C, C.B.N.V. I GWILO (1054) 14 NWLR pt. 1054 pg. 393 especially 426 – 427.

The Claimant also submitted that the Judgment of the Court of Appeal in exhibit ‘C’ is valid and subsisting and it is law that when the Judgment of a competent Court is pronounced it remains valid until it is set aside and it must be obeyed by the parties affected that the Judgment in exhibit ‘C’ has not been set aside citing PURIFICATION TECHNIQUE (NIG) Ltd. V. JUBRIL (2012) 18NWLR (part 1331) pg 109 at 139 para G.

In response to this the Defendant joined issues 2 and 3 and argued them together because of their semblance and answered the issues in the negative against the Claimant. Here the Defendant submitted that by raising these issues the Claimant was trying to adulterate the Judgment of the Court of Appeal Contained in exhibit C by imputing what has never been in the Judgment. That there was writing in the entire exhibit C that says the Claimant’s employment with the Defendant subsists or shall subsist up to 28^th February 2018 or 23^rd day of June 2022. That the law has long been settled that parties cannot treat a wrongfully terminated employment as still subsisting. Referring to the case of TEXACO V. KEHINDE CA where Onoghen JCA as he then was held:

“A termination of a contact of service, whether lawful or unlawful brings to an end the relationship of master and servant.

In the present case the trial Judge awarded to the respondent, his salaries and other entitlements from the time of termination to Judgment. The Law is very clear on the point that a servant would only be paid for the period he served his master and if he is dismissed, as in this case, all he gets as damages is the amount he would have earned if his appointment had been properly determined. That is, the servant is to be paid his salaries and his entitlement up to the date of his dismissal… in the present case, the learned trial Judge, rightly in my opinion refused prayer number 2 which was 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 brought the relationship to an end. We cannot pretend that the relationship continued because it was wrongly brought to an end. The fact is that it was wrongly brought to an end”.

The Defendant cited also the case of GBOBOH V. BRITISH AIRWAYS PLC/ (2017) ALL FWLR (pt. 908) 1913, which shares similar facts to the present case. Where the claimant’s employment was terminated in the course of a criminal trial against him in which he was later discharged by the court and he then filed a suit challenging his dismissal from the services of the Defendant At the end of that trial Judgment was entered for the Claimant only in terms that is entitlements be paid up to the date of his discharge from the said Criminal trial. Just as the counter Appeal did in exhibit C.

The Defendant also contended that on the duration of service as claimed by the Claimant for 35 years or he attains the age of 60 years before the Claimant could be dismissed. Here the Defendant submitted that they had deposed in their counter affidavit that nothing in the totality of the agreement between the Claimant and the Defendant guarantees that length of stay in services citing IDUFUEKO V. PFIZER PRODUCTS LTD. (2014) All FWLR (pt. 745) 269 where in dismissing such claim the Supreme Court per Galadima J. held that:

“The appellant has contended that he had become a life employee of the respondent, such that he could not be retired until he attained the retirement age of 60 years for this reliance was placed on exhibit ‘A Personnel Policy manual of the 1^st Respondent… the testimony of the witness called by himself and the respondents shows that the assertion was unfounded.

The contract of service between the appellant and the 1^st Respondent is purely that of master/servant relationship. He cannot under any disguise turn around and claim that he is entitled to remain in office until 60 years when he hopes to retire from the service of the 1^st Respondent. It is well settled that in such a relationship, an employer can terminate the service of an employee at any time given the appropriate length of notice stipulated in the contract or such length of notice deemed by the Court to be reasonable in the circumstances of the case, in the absence of any express provision for the length of notice in the contract of service. IMOLOAME V. WAEC “(Supra) cited 11 – 12 SCWJ (pt) 121.

The Defendant submitted finally that under issues 2 and 3 where the Claimant is asking for the payment of salaries and allowances for work not done and services not rendered. The law it was stated remained that a servant who has been unlawfully dismissed or terminated cannot claim and is not entitled to any wages for work not done or for services he never rendered see IKHILE VS. F.A.A.N.

The Claimant filed a further and better affidavit in response to the preliminary objection which had been dismissed earlier. However he did also file a further affidavit in response to the Claimant’s counter affidavit in support of the originating summons. In that counter affidavit at paragraph 4 the deponent Anthony Nsoro had averred at 4n that,

“The Court of Appeal in the said appeal No. CA/K/424/2008 only ordered the Defendant to pay to the Claimant the sum of N2,262,928..50k being his salaries and allowances from the date of his suspension to the date when he filed the case at the lower Court which is the 22^nd June 2004, and to also pay him the cost of N100,000.00 all as can be seen at page 14 of Exhibit C annexed to the claimant’s affidavit in support of the instant suit”.

At 45 “That in response to paragraph 20 of the Claimant’s affidavit in support of the Claimant suit, the Defendant has since complied strictly with/by the said Judgment of the Court of Appeal as contained in exhibit C annexed to the claimant’s affidavit in support.

At 4t “That the Defendant paid unto the Claimant all the said sum ordered by the Court of Appeal in the said exhibit C. 4u “That the Claimant admitted being paid by the defendant of the said sum as ordered by the Court of Appeal at the last sentence of the 3^rd paragraph of exhibit G annexed to this affidavit in support of this suit”.

Now exhibit G attached to the Claimant’s affidavit in support of the Originating Summons is the letter of Demand written by A.A Umar & Co. dated 13^th October 2015 where at paragraph 3 it states:

“The Court further ordered that you shall pay him the sum of N2,262,928.50k being his salaries and allowances from the date when his suspension takes effect i.e 31^st August, 1998 to 22^nd June 2004 when he filed this case, the order is attached for your perusal and consideration. Our brief reveals that you paid our client the above stated sum as ordered by the Court”.

In the Claimant’s further and better affidavit in response the counter affidavit of the Defendant the Claimant made no response to the paragraphs 4n, 4s, 4t all quoted above. It therefore means that these averments of fact must be taken as true. See INEGBEDION V. SELO. OJEMEN & ANOR (2013) SC. 2013 LPELR 19769 (SC).

In the premises of all of the above, in determining the questions in issue 2 and 3 in this matter I hold that I am completely persuaded by the arguments, submissions and more particularly the authorities cited by the Defendant in the argument against those proferred by the Claimant.

I hold that the Claimant is not entitled to claims contained in originating summons. The pith of this decision is that as stated in the decision of the Supreme Court and the Court of Appeal in IDUFUEKO V. PFIZER (SUPRA) where it was held that contract of service between the appellant and 1^st Respondent is purely that of master and servant relationship and he cannot under any dispute turn around and claim that he is entitled to remain in office until 60 years. This decision I hold applies squarely to this case at hand.

The argument’s against IDUFUEKO in the reply address in support of the further and better affidavit had contended that in the IDUFUEKO case the relationship of the parties was not governed by collective agreement as in the case before the court.

On this point of collective agreement and its legal status, in TEXACO V. KEHINDE (Supra) LPELR at page 37 placed reliance on UBN Ltd V. EDET (1993) 4 NWLR (pt 287) 288 at 298 – 299 the Court of Appeal made a pronouncement on the legal status of collective agreements: “….Collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable”

I hold that neither collective agreement in exhibit H nor exhibit A, the letter of offer of employment by their contents reserved any rights entitling the Claimant to the Claims in the originating summons.

The claims of the Claimant must therefore fail and the hereby dismissed.

There are no awards as to costs Judgment is entered accordingly

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HON. JUSTICE E. D. E. ISELE (JUDGE)