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: 25TH MARCH, 2021 - NICN/KN/09/2016
KWEN DANIEL TERKUMBUR - CLAIMANT
RESOURCE CENTRE FOR HUMAN
RIGHT AND CIVIC EDUCATION - DEFENDANT
Claimant – Absent, Defendant Represented By Its Executive Director Ibrahim Zikirullahi
A. M. Yusuf, Esq. for the Defendant
1. The Claimant commenced this suit by a Complaint filed on the 9th day of February, 2016 claiming the following against the Defendant:
a) The sum of ₦247,066.00 (Two Hundred and Forty Seven Thousand, Sixty – six naira only) from the NSRP project being unpaid salaries for the months of July, August and September, 2015 at the value of ₦68,000.00 (Sixty Eight Thousand naira only) per month and the salary for 19 days in the month of October, 2015 which the Defendant has refused to pay till date.
b) The sum of ₦31,666.00 (Thirty One Thousand, Six Hundred and Sixty six naira only) being the total amount which accrued to the Claimant from the United States Embassy project for the 19 days in the month of October, 2015 during his services with the Defendant which they refused to pay till date.
c) The sum of ₦298,000.00 (Two Hundred and Ninety Eight Thousand naira only) being the unpaid salaries which accrued to the Claimant for the months of July, August and September, 2015 at the value of ₦68,000 (Sixty Eight Thousand naira only) per month, the salary for the 19 days in the month of October, 2015 which is ₦43,066.00 (Forty Three thousand Sixty six naira only) being unpaid salary from the united States Embassy project and ₦63,333.00 (Sixty Three thousand, Three Hundred and Thirty Three naira only) being salary from the MISEREROR project which the Defendant have refused to pay till date.
d) The sum of ₦2,000,000.00 (Two Million naira only) as special damages for unlawful dismissal of the Claimant’s employment without notice as provided in the letter of employment.
e) The sum of ₦5,000,000 (Five Million naira only) as special damages for hardship and economic inconveniences occasioned to the Claimant by the Defendant, which led to his daughter being sent out of school for lack of school fees and failure to meet up with other pressing family responsibilities.
f)A Declaration that the termination of the Claimant’s employment without notice or one month salary in lieu of notice is illegal, unlawful, null and void.
g) Retraction and/or withdrawal of the disclaimer made by the Defendant against the Claimant in the Daily Trust Newspaper.
h) The cost of this suit.
2. This case first came up before late Hon. Justice Lawal Mani (Phd) and was later transferred to Hon. Justice S. O. Adeniyi in Kaduna before it was brought back to Kano before me.
3. THE CASE OF THE CLAIMANT
The case of the Claimant as set out in the Statement of Claim is that he was engaged as a Programme Officer with the Defendant (a non-profit and non-governmental organisation registered in Nigeria) on a salary of ₦140,000.00 per month and after one week of resuming work, the Defendant commended his expertise and knowledge of the job and elevated him to the position of Project Manager and raised his salary from ₦140,000 to ₦170,000 per month. According to the Claimant, he wrote a letter to Federal Inland Revenue Service Kano requesting for tax regime where deducted taxes will be remitted. And he also forwarded a mail to the Defendant dated 21st August, 2015 titled “Concerning my letter of employment” to seek clarifications and/or explanations about the letter of appointment given to him by the Defendant.
4. The Claimant stated further that annual leave was granted and approved for other staff of the organisation but the Management never granted him leave. And he applied for and was granted a loan of ₦450,000 by the Defendant in August, 2015 and he genuinely and faithfully completed the repayment of the loan advanced to him by the Defendant in May, 2015. According to the Claimant, the Defendant commenced tax and pension deduction from his salary in October, 2014 and he successfully opened and obtained a Tax payers identification number and pension account which were transmitted to the Defendant by mail dated 8th July, 2015 for the remittance of previously deducted tax and pension from his salary in the month of October, 2014 to June, 2015 and for further remittance of subsequent deductions into the account.
5. The Claimant averred that he informed the Defendant by mail dated 8th October, 2015 to furnish him with the percentage of deductions for tax and pension contributions but that the deductions had not been made available to him till date since the request was made. The Claimant maintained that he worked proactively and diligently as a Programme Manager between August 1, 2014 till August 21, 2015 before he received his letter of employment which was back dated and that nothing was paid to him for the 19 days he worked for the Defendant in the month of October, 2015.
6. The Claimant stated that he was summarily dismissed from the Defendant’s employment via a mail dated 19th October, 2015 titled “SUMMARY DISMISSAL FROM THE SERVICE OF RESOURCE CENTRE FOR HUMAN RIGHTS AND CIVIC EDUCATION” for the position of Project Manager signed by one Ibrahim M. Zikirullahi without the statutory notice as provided in the employment letter and his accrued salary is ₦247,065.00. according to the Claimant, upon his dismissal, the Defendant copied and communicated his purported dismissal to other staff of the organisation which was later forwarded to the United States Embassy, Misereor, Justice development and Peace Commission, Kano National Endowment for Democracy, National Democratic Institute and Open Society Imitative for West Africa amongst others, thereby violating the option provided for the Claimant to appeal his dismissal before the Board of Resource Centre for Human Right and Civic Education.
7. The Claimant averred that a Public disclaimer was caused to be published in a Daily Trust Newspaper of October 21, 2015. According to the Claimant, he has a pending case with the Economic and Financial Crimes Commission concerning a car which he purchased from a colleague for a friend and had made a commitment to that effect to the persons concerned on monthly instalment schedule but not on the ground of fraud and stealing as purportedly alleged by the Defendant. The Claimant further maintained that Ibrahim M. Zikirullahi was with him at the office of the EFCC in Kano on the 16th of March, 2015 before the suspension of his salary by the Defendant where he made the commitment to regularly remit ₦100,000 monthly for six months on his car.
8. The Claimant also averred that the Management made several discriminatory and unfounded allegations against him which includes fraud, stealing, cheating, service misuse of trust between him and other staff of the organisation, indiscriminate affairs with women in the Defendant’s offices during and after work hours, putting up behaviours that seriously jeopardises team work and cooperation, gross insubordination and serious infringement on the rules of the organisation. The Claimant maintained that he is innocent of all the allegations made against him by the Defendant.
9. The Claimant maintained that his salary was paid from three sources which include; NSRP Project, United States Embassy project and MESSEROR project. That the NSRP Project was the main and/or his initial project where his salary came from between August, 2014 which paid him a total sum of ₦170,000.00 per month. And the United States Embassy project commenced on 24 September, 2014 and paid him ₦82,000 per month while the MESSEREOR project commenced in the month of July, 2015 and paid him the sum of ₦100,000 monthly. According to the Claimant, the total sum of ₦4000 was deducted as tax by the Justice Development and Peace Commission leaving him with the sum of ₦78,000 where he agreed to take ₦50,000 and contribute ₦28,000 to the Defendant.
10. The Claimant further averred that the NSRP project salary was paid from August, 2014 to June, 2015 and was reduced from ₦170,000 to ₦68,000 monthly which according to the Defendant was to commence in the month of July, 2015 while the United States Embassy project salary which is ₦50,000 after the said deduction had been made and/or taken was paid for October, 2014 up to September, 2015 and this was made possible because the project was implemented in partnership with Justice Development and Peace Commission (JDPC) of the Catholic Diocese of Kano and the account domiciled with Justice Development and Peace Commission. According to the Claimant, the MISEREOR project was paid from August up to September, 2015 with a total sum of ₦200,000 which he acknowledged and the United States Embassy project was inadvertently suspended between the months of March and August, 2015 by the United States Embassy.
11. The Claimant also stated that his basic salary and initial salary apart from other projects executed by the Defendant is the sum of ₦170,000 per month and the entitlement due to him from the MISEREOR project and the United States Embassy project for the 19 days in the month of October, 2015 is ₦94,999.00 divided by 30 days and multiply by 19 days is the sum of ₦60,166.0333 which the Defendant have not paid till date. According to the Claimant, the entitlement due to him is the sum of ₦247,066 from the NSRP project being unpaid salaries for the months of July, August and September, 2015 at the value of ₦68,000 per month and the salary for 19 days in the month of October, 2015 which the Defendant refused to pay till date.
12. THE CASE OF THE DEFENDANT
It is the contention of the Defendant that the Claimant ceased to be its staff following his dismissal on the 19th of October, 2016. The Defendant in further defence of its position denied knowledge of instruction to enter into correspondence with Federal Inland Revenue as claimed by the Claimant in paragraph 5 of the Statement of Claim and stated in specific response that it requested for “pay as you earn” tax regime for all the staff from Kano State Board of Internal Revenue in August 2014 and remitted taxes as accessed in response to notification of tax audit by the said board. The Defendant acknowledged the receipt of the Claimant’s mail of 21st August, 2015 and stated that the Claimant’s letter of employment dated 4th August, 2015 being provisional excludes clauses for annual leave and that the Defendant’s policy on annual leave are based on request and in accordance with terms contained in the Employee handbook for staff no longer on probation and that loan extended to any staff is a privilege not a right.
13. The Defendant admitted receiving the Claimant’s mail of 7th August, 2015 with respect to the Tax Identification Number but stated that it shall contend at the hearing that its policy is to make bulk remittances of staff taxes and it did remit staff taxes including that of the Claimant payable within the relevant period to Kano State Board of Internal Revenue on 28th October, 2015 and that the delay in affecting payment was occasioned by administrative bureaucracy in the Board and not to short change any staff or the government.
14. The Defendant maintained that the Claimant’s employment was governed by terms and conditions contained in the letter of employment dated 4th August, 2014 and also employee handbook both of which were issued to the Claimant before resumption of duty. According to the Defendant, the Claimant’s contract of employment terminated on the 4th of August, 2015 and his subsequent relationship with the Defendant was strictly based on pending projects and in the month of October, 2015 he was paid the sum of ₦70,000.
15. The Defendant further maintained that before the letter of dismissal was issued to the Claimant on the 19th of October, 2015, his one year contract of employment as contained expressly in his letter of employment dated 4th August, 2015 had terminated automatically without renewal. And that the Claimant’s conduct was in frequent breach of the rules contained in the Defendant’s employee handbook duly executed by him even though the Claimant carted away the executed copy at the point of disengagement. According to the Defendant, the Claimant was in the habit of using the office like a guest house with girls and leaving behind used condoms and all efforts by the security officer to stop him failed and on the 11th of October, 2015, the Defendant was served with a letter from the security officer that the Claimant was in the habit of removing programme t-shirts, projector and public address system for unofficial use.
16. The Defendant further averred that the Claimant admitted removing the sum of ₦39,000 from the drawer of the Defendant’s Finance and Administration Assistant while she was away in Abuja for official duty in the presence of security officer. According to the Defendant, the Claimant exposed it to severe embarrassment when it had to contend with a beer parlour operator in Sabon Gari who was frequenting the office to demand for the sum of ₦29,000 from the Claimant for beer and pepper soup he consumed cumulatively on credit and the amount was then paid off by the staff in the office to avert unpleasant scenario and it formed part of the ₦85,000 of the Claimant’s admitted indebtedness.
17. The Defendant also stated that the Claimant was reprimanded by the Executive Director of the Defendant in accordance with relevant provision of the employee handbook after drawing his attention to the various complaint and accorded opportunity to respond to all the allegations, which he did but not to the satisfaction of the Defendant. According to the Defendant, it approved the sum of ₦50, 000 per month for the Claimant from the Almajiri project sponsored by the United States Embassy to assist him because of frequent complain of financial difficulties and on the 1st of September, 2015 a GTB cheque in the sum of ₦467,070 was issued. And the Claimant fraudulently failed to remit the sum in excess of ₦300,000 to the Defendant since the project was just for six months by claiming his wife was sick within the period.
18. The Defendant averred that it considered the Claimant’s conduct to be unacceptable and all efforts to stop him from smearing the reputation and good name of the Defendant was in vain and this prompted the decision to formally dismiss him for the records even though his contract of employment had since terminated on the 4th of August, 2015. According to the Defendant, it copied its sponsors and published the disclaimer to protect its reputation and to stop the Claimant from continuing to parade himself as its employee.
19. The Defendant admitted knowledge of the Claimant’s pending criminal case with the EFCC but denied being privy to his financial commitment in whatever sum to the EFCC. The Defendant equally maintained that it found the Claimant wanting with respect to his conduct as captured in his letter of dismissal. The Defendant then denied the various monetary claims of the Claimant and maintained instead that the Claimant was at all times relevant to his contract of employment, a staff of the Defendant whose monthly salary was specified. And that he was never at any time a staff of the United States Embassy, Nigeria Stability and Reconciliation Programme (NSRP) or of MESSEROR but was only seconded to participate in the projects sponsored by them at the instance of the Defendant.
20. The Defendant equally maintained that the Claimant’s entitlements and/or salaries and allowances was entirely fixed and determined by the Defendant and the Claimant’s one year contract of provisional employment which was terminated on the 4th of August, 2015 and was consequently not entitled to fixed salary of ₦170,000 per month and in the said August, 2015 he was paid ₦100,000 as a monthly entitlement and ₦467,070 in September, 2015 which he refused to remit the balance to the Defendant. According to the Defendant, the Claimant was paid ₦70,000 in October vide a GT bank cheque with serial number 50689744 before his dismissal and ₦100,000 in July 2015 through online transfer from the Defendant’s Diamond bank account and this was the balance of his salary in the month.
21. The Defendant averred that the Claimant was employed as a staff of the Defendant as clearly stated in his letter of employment dated 4th August, 2014 and not as a Commission Agent for projects specifically assigned to him. According to the Defendant, payments and suspension of projects by donors is entirely an issue for the Defendant and no concern of any employee including the Claimant.
22. THE CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE
In the Claimant’s reply, he maintained his averments of still occupying flat 3 upper floor, Sheshe plaza plot 6/7 Hadejia road, Kano until his eventual dismissal and that he wrote a letter to FIRS Kano branch requesting for tax regime and his letter of employment never excluded clauses for annual leave as claimed by the Defendant. According to him, he applied for annual leave and was turned down while it was granted to other staff. He equally maintained that a loan was advanced to him which he genuinely and faithfully completed the repayment and denied knowledge of the loan being as of right or privilege.
23. The Claimant maintained that he obtained his tax payer identification number and pension account and transmitted same to the Defendant and equally asked to be furnished with the percentages of deductions which the Defendant failed to comply with. According to the Claimant, no money was paid him for all the projects during the 19 days in October, 2015 and he was summarily dismissed without statutory notice as provided for in the employment letter. The Claimant equally maintained that the Defendant copied and communicated his dismissal to other staff of the Defendant thereby violating the option provided for him to appeal his dismissal before the board of the Resource Centre for Human Right and Civic Education and denies any knowledge of protecting the reputation of the Defendant.
24. THE WRITTEN ADDRESS OF PARTIES
In the Claimant’s final written address, two issues were formulated for determination viz:
1. Whether the Defendant has a defence to the Claimant’s case.
2. Whether the Claimant has proved his case so as to be entitled to his reliefs.
25. In the arguments on issue one, Counsel submitted that it is trite law that pleadings not supported by evidence is deemed abandoned citing OKPALA & SONS V. NIGERIA BREWERIES LTD (2018) ALL FWLR PT 928 1 @ 17 PARAS E. According to Counsel, the Defendant chose to rest its case on that of the Claimant, without adducing any evidence in support of its pleadings and as such having failed to lead evidence in support of its statement of defence, same is deemed abandoned. Counsel cited and set out the provisions of Order 38 Rule 16 (4) of the National Industrial Court (Civil Procedure) Rules, 2017 and submitted that the Defendant having failed its witness statement on oath but failed or chose not to call them in evidence, the said witness statement on oath are deemed abandoned.
26. Counsel submitted further that the Defendants having abandoned its defence by refusing to call or lead evidence in support of its defence, there is in essence no defence to the Claimant’s claims and so the Claimant’s claim will be deemed admitted and facts admitted need no further proof. Reliance was placed on the case of TRANSOCEAN S.S NIG LTD V. OMELIME (2018) ALL FWLR PT 927 89 @ 108 PARAS B – C.
27. Counsel submitted that his dismissal was unlawful having failed to follow the due process of fair hearing and having accused the Claimant of grievous misconduct such as stealing and sexual immorality and that even before the Claimant’s dismissal, his salaries and allowances for the various projects he was engaged by the Defendant for the months of July, August, September and 19 days in October, 2015 were not paid by the Defendant which cumulatively amounted to ₦576,732. According to Counsel, upon the Claimant’s dismissal from the employment of the Defendant, his right of appeal against the dismissal before the Governing Board of the Defendant was stalled by the Defendant by publishing his dismissal at the Daily Trust Newspaper two days after the dismissal whereas the Claimant had 7 days within which to appeal from the day of the dismissal as contained in the Letter of Dismissal dated 19th October, 2015 Exhibit D.
28. Counsel further submitted that the claims of the Claimant are weighty and sufficient and ought to be responded to by the Defendant and that the Defendant has no complete defence to the claims and the claims of wrongful dismissal and arrears of salaries and allowances have no complete defence in law other than defence based on credible evidence. According to Counsel, the Defendant having failed to lead credible evidence in defence of the claims can only be deemed to have admitted same. Counsel also state that the Defendant’s pleadings by way of Statement of Defence do not constitute evidence that can be relied on by the Court citing the case of NEWBREED ORG LTD V. EROMOSELE (2006) ALL FWLR PT 307 1076 @118 PARA G – H.
29. On the second issue, Counsel submitted that the Defendant having abandoned its pleadings has by conduct admitted the claims of the Claimant and that having admitted the facts of the Claimant’s case by resting its case on that of the Claimant, same is deemed proved and need no further proof. Counsel stated that no formal notice was served on the Claimant on the allegations, no investigation was conducted by the Defendant and no disciplinary committee was set up to look into the allegations and the Claimant was summarily dismissed without fair hearing. According to Counsel, this alleged dismissal was not done in accordance with the principles of natural justice and fairness.
30. Counsel further maintained that the publication of the Claimant’s dismissal by the Defendant was done in bad faith and without justification, more so as publication in newspaper is not one of the means of terminating the employment contract between the Claimant and the Defendant under the contract. Counsel stated that this publication is injurious to the reputation of the Claimant and it is a calculated attempt by the Defendant to besmirch the reputation and trust of the Claimant before the national and international communities and so a breach of the contract of employment.
31. Counsel also stated that though the letter of employment stated that the offer was for an initial period of twelve months renewable upon satisfactory performance still the letter did not state how the offer would or can be renewed. According to Counsel after the expiration of the twelve months contract, the Claimant was still working with the Defendant and was still assigned projects to manage on behalf of the Defendant and the Defendant still continued to recognize him as one of its staff under its payroll. Counsel then submitted that this amounted to renewal of the employment by conduct and that employment contracts can be created either in writing, orally or even by conduct citing CWAY NIGERIA DRINKING WATER SCIENCE AND TECHNOLOGY CO LTD V. OGWUCHE (2016) ALL FWLR PT 848 684 @ 703 PARAS E – H.
32. Counsel also submitted that the purported dismissal of the Claimant by the Defendant vide the Defendant’s letter dated 19th October, 2015 (Exhibit D) indicates that the Defendant before then still recognized the Claimant as an employee, hence found him worthy to be dismissed. According to Counsel, the unpaid salaries and allowances owed the Claimant by the Defendant amounted to the sum of ₦576,732 and that the particulars of the part payments and unpaid salaries from the various projects engaged by the Claimant are contained in paragraphs 35, 36 and 37 a, b & c of the Claimant’s statement of claim which is supported by the Claimant’s evidence in paragraphs 38, 39 a, b and c of the Claimant’s witness statement on oath and paragraphs 40, 51 a, b and c of the additional witness statement on oath of the Claimant and that these evidence in the written depositions is sufficient proof of these facts. Reliance was placed on Order 40 Rule 1 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
33. Counsel maintained that in the award of the damages and the reliefs sought by the Claimant, he has proved his case on preponderance of evidence citing CHIADI V. AGGO (2018) ALL FWLR PT 958 97 2 @ 1023 PARAS B – D. According to Counsel, the Claimant’s evidence being the only evidence before the Court, he has proved his case on the preponderance of evidence which is the standard required in civil suits.
34. In the Defendant’s final written address, a sole issue was formulated for determination thus:
Whether the Claimant is entitled to the reliefs sought?
In the arguments on the first issue, Counsel for the Defendant submitted that it is not in dispute that the Claimant’s primary claim is for “a declaration that the termination of the Claimant’s employment without notice or one month salary in lieu of notice is illegal, unlawful, null and void” and the consequential claim for accrued/unpaid salaries for certain projects (NOT the main remuneration) and general/specific damages. According to Counsel, it is equally not in dispute that the Defendant has not called any evidence and rested its defence on the claim and by implication, it means that the defence is saying that the Claimant “has not made out any case for the Defendant to respond to” or that “he (the Defendant) has a complete defence in answer to the Plaintiff’s case”. The case of NEWSBREED ORG. LTD V. EROMOSELE (Supra) was relied on.
35. Counsel stated that the primary claim is for Declaratory order and a declaratory order is not grated on admission citing GODFREY IFEDIORA & IRS V. EUGENE OKAFOR & ORS (2019) 16 NWLR (PT. 1698) 322. According to Counsel, the pleadings, reliefs and sole evidence of the Claimant failed to demonstrate or prove any case for the Defendant to respond to, and the Defendant has a complete answer to the claims and so the declaration of right and the sundry claims therefore ought to fail and is deserving of being dismissed with cost. Counsel cited the case of ENILOLOBO V. N.P.D.C LTD (2019) 18 NWLR (PT. 1703) 169 and submitted that the scenario in it is similar to the issue at hand.
36. Counsel submitted that the Claimant is bound by his prayers and relief 37 (f) is on declaratory order against alleged termination of employment and the Claimant failed to tender any termination letter and did not challenge the summary dismissal at all. According to Counsel Exhibit D is clear and the content clearly concluded that “Your dismissal takes effect immediately” and the clear and unambiguous words in a document must be given their plain and ordinary grammatical meaning without qualification. Counsel maintained that the there is a clear difference between termination of employment and dismissal of employment citing the cases of UBN PLC V. SOARES (2012) 11 NWLR (PT 1312 550, SEVEN UP BOTTLING COMPANY PLC V. ANYANYA AFAM AUGUSTUS (2012) LPELR – 20873 (CA) and OLATUNBOSUN V. NISER COUNCIL (1988) 3 NWLR (PT 80) 25 in support.
37. Counsel maintained that the Court will not grant reliefs not sought and that there is no relief challenging the summary dismissal. According to Counsel, the Claimant is not in doubt about the true state of his severance of relationship with the Defendant as he never pleaded in any paragraph of his pleading that his employment was terminated at all as claimed by him but that he however chose to seek for declaratory order against termination of employment. Counsel stated that there is no relief sought against summary dismissal thus the Defendant saw no need to call any evidence since there is no challenge to the true state of fact. Counsel then urged that the relief for declaration against the termination of employment which is not available, pleaded and proved ought to be dismissed and the summary dismissal ought not to be disturbed, having not been challenged.
38. Counsel submitted further that since the dismissal has not been challenged and remain extant, other reliefs sought become academic, hypothetical and otiose and ought to be dismissed or struck out. Counsel submitted that Reliefs 37 a, b and c are on certain accrued unpaid salaries for July, August, September and 19 days in October, 2015 for certain NSRP project, US Embassy project and MISEREOR project and the Claimant’s case is built on Exhibits A, B and B1, Counsel stated that these claims having not been proved is bound to fail because:
a. Exhibit A evidences employment terms and conditions of service and contained an all inclusive salary of ₦170,000 payable monthly and other remuneration as may be approved by the Board of Directors. That there is no pleading or evidence that the head of claims are provided for in Exhibit A or approved by the Board of Directors.
b. The reliefs for these special head of claims for July, August, September and 19 days in October, 2015 was not pleaded at all. Counsel stated that the months, year and figures was never pleaded and no document tendered made any reference to Claimant’s entitlement to same.
39. Counsel submitted that the claims are not proved and that in a claim for wrongful dismissal, the measure of damages is prima facie the amount that the employee would have earned had the employment continued according to contract. According to Counsel, Exhibit D shows clearly that the Claimant was dismissed for gross misconduct and paragraph 21 of the statement of fact confirmed the Claimant’s self admission that he was given fair hearing. Counsel also stated that Claimant’s contract of employment had lapsed and the Claimant testified that all and admitted under cross examination that his salaries were paid and he did not join issue with the Defendant on his various atrocities. Counsel then maintained that the relief for wrongful dismissal having not been claimed and proved, the consequential claim for damages should fail and damages would not be awarded where the main claim fails. Reliance was placed on the case of MESSR BALOGUN OLOYEDE MUJAID V. IBADAN ELECTRICITY DISTRIBUTION COY (2020) LPELR – 49740 (CA).
40. Counsel also submitted that the Claimant did not plead the injury he suffered as a result of the Disclaimer and the claim is bound to fail and the Claimant failed to specifically plead any of the clauses, paragraphs and or terms and conditions in the constitution regulating the relationship of the parties i.e. Exhibit A and or prove how such terms and conditions have been breached. Counsel further maintained that the Claimant’s final written address in paragraphs 4.4 to 4.6 at pages 7 – 8 of the address made wide allegations of denial of fair hearing, the publication of the disclaimer before expiration of the right of appeal and the specific sums of money, reliefs for money from certain projects shows months, year or figures but none of these were pleaded at all.
41. Counsel then submitted that the Claimant’s submission of unpleaded fact that the employment presumably continued by inference without stating the terms ought to be discountenanced as these unpledged facts are tailored to failure because the quoted Order 40 Rule 1 (1) of the National Industrial Court (Civil Procedure) Rules 2017 and Sections 1 and 125 of the Evidence Act, 2011 contain the operative words “any fact required to be proved at the trial”. According to Counsel, the facts required to be proved are pleaded facts.
42. Counsel submitted that the contract of employment having lapsed, the suit challenging unlawful and illegal termination of employment without stating the law and indeed filed to protect an expired contract of employment is baseless, empty and lacking in reasonable cause of action and is hypothetical or academic.
43. In the Reply on points of law filed by the Claimant, it was submitted that the Defendant’s final written address is an incompetent process having been filed by a Counsel who is not known by the Court and the opposing party as a Counsel to the Defendant in the matter. According to Counsel, by the provisions of Order 54 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 where there is a change or withdrawal of a Counsel in a matter notice of same must be made to the Court and by Order 54 Rule 4, the new Counsel coming into the matter shall regularize his appearance by notifying the Court in writing and copies of such notice shall be forwarded to the other parties and Counsel in the matter. Counsel stated that it is trite that where the law or rules of Court provides the manner in which an act can be done, unless and until that is done, anything done in disobedience thereof goes to no issue citing UGBOJI V. STATE (2018) ALL FWLR (PT926) 68 @ 121 PARAS A – C (SC). According to Counsel, the failure of the new Counsel Nureini Jimoh SAN to give the necessary notice to the Court and the Claimant of his representation in this matter renders his appearance and the process filed on behalf of the Defendant incompetent as both process and Counsel who filed same are unknown to the Court as representing the Defendant. Reliance was placed on the case of SKY BANK PLC V. PENBURY NIGERIA LTD (2016) ALL FWLR (PT 833) 882 @ 1899 PARAS A – C.
44. Counsel also submitted that in as much as declaratory reliefs can only be granted on the strength of the Claimant’s evidence, the standard of proof required on such declaratory relief is on the balance of probabilities or on the preponderance of evidence citing EMEKA V. CHUBA – IKPEAZU (2019) ALL FWLR (PT 974) 613 @ 655 PARA B. Counsel maintained that the Claimant’s sole declaratory relief is contained in paragraph 37 (f) of the statement of claim and the relief was supported by the Claimant’s pleading in paragraph 16 of the statement of claim and that there is nothing on the side of the Defendant to discredit the evidence led by the Claimant in support of the declaratory relief.
45. Counsel further submitted that reliefs a, b and c sought by the Claimant as contained in paragraph 37 a, b and c of the statement of claim are not ancillary reliefs or dependent on the claim and relief of wrongful dismissal or termination of employment but that they are independent reliefs. And that where an employer is in arrears of salary, it becomes a debt due and payable by the employer irrespective of the status of the employment.
46. Counsel concluded by stating that the Defendant’s final written address has no basis as facts stated therein cannot operate as pleadings or evidence and that the Defendant could only at best reply on points of law to the Claimant’s address which it failed to do but rather relied on facts and pleadings abandoned by the Defendant. Counsel then urged that the Defendant’s final address be discountenanced for being baseless and inoperative as evidence or pleadings.
47. COURT’S DECISION
Having come to this point in the Judgement, the following facts emerged as settled:
1) The Claimant commenced this action by the writ filed on 9th February 2016 and by exhibit A, he was employed by the Defendant on 1st August, 2014 as a Project Manager.
2) The first paragraph of the letter of appointment reads: “Following your application and subsequent interview, the Resource Centre for Human Rights and civil Education (CHEIXED) is pleased to offer you an initial TWELVE MONTH contract appointment (renewable upon satisfactory performance and subject to availability of funds) as Project Manager with effect from August 1, 2014.”
3) By the 19th of October, 2015 the Claimant was summarily dismissed by the letter of that due which reads: “I write to inform you that your employment as Project Manager with the Resource Centre for Human Rights and Civil Education (CHRICED) is hereby terminated without notice for gross misconduct.
1. Fraud, stealing and cheating. This applies to your role as an employee but also outside your work environment; case in point is your on-going matter with the Economic and Financial Crime Commission (EFCC).
The reason for your dismissal ranges from:
2. Serious misuse of trust that exists between you and all the staff of CHRICED.
3. Indiscriminate affairs with women in CHRICED offices during and after office hours, resulting in the misuse of CHRICED time and resources e.g running the generator endlessly.
4. Putting up behavious that seriously jeopardises team work and cooperation.
5. Gross insubordination, and
6. Serious infringement of the rules of CHRICED.
The above constitute serious breach of your obligations and CHRICED’S Employee code of conduct and conflict of interest policy such as to warrant dismissal without notice and without any further warnings. You were previously warned and told that, unless your conduct improved, you were likely to be dismissed.
The following arrangements apply with immediate effect:
i. Your dismissal takes effect immediately and your final day of employment with CHRICED is therefore Monday, October 19th 2015.
ii. You are not entitled to any period of notice or payment in lieu of notice.
iii. You must refund any financial outstanding/s you owed to CHRICED.
iv. You must return any property including laptop computer, hard drive and accessories amongst others belonging to us in good condition by October 19, 2015.
v. You have the right of appeal against this dismissal to the Governing Board of CHRICED within seven (7) days until October 26, 2015…..”
The latter was signed by the Defendant’s Executive Director.
4) The letter of Dismissal dated 19th of October 2015 came two months and 19 days after the claimants employment with the Defendant for 12 months by exhibit A) had lapsed.
5) There was no letter of extention of the claimant’s contract of employment.
6) At the close of the claimants case the Defendant through causes chose to rest it’s case on the claimant’s case.
48. Now, the Claimant in the final written address submitted that the Defendnat having failed to lead evidence in support of it’s statement of Defence, the statement of defence is deemed abandoned citing Order 38 RULE 16(4) of the national Industrial Court Civil Procedures Rules 2017 and the court was urged to hold that the Defendant had abandoned it’s Defence. However this submission by the Claimant only tells part of the story in the case as the age long recourse of many a counsel in cases where they found need to rest their case on that of the Defence by calling no witnesses of its own have long been acknowledged by courts as a legal strategy. See NEWBREEED ORGANIZATIN LTD V. ERHOMO SELE (2006) 5NWLR (pt 974) 499, AGUOCHA V. AGVOCHA (2005), NWLR (PT 906) 165 at 184.
49. In the case of NEPA V. DLAGUNJU & ANOR (2005) 3 NWLR (pt. 913) 602 at 632 CA the court stated that the implication where a Defendant reses his case on that of the plaintiff (Claimant) could mean:
a) That the Defendant, is stating that the plaintiff has not made out any case for the Defendant to respond to:
b) That he admits the facts of the case as stated by the plaintiff or
c) That he has a complete defence in answer to the plaintiff case.
50. In this case it is clear that the Defendant is stating that the Claimant has not made out any case for the Defendant to respond to and that he has a complete defence in answer to the claimant’s case. I hold that this is the position in this case.
51. The main issue I see to be determined in this case is whether the Claimant has proved his case or to be entitled to his reliefs sought. In the first head of claim the claimant is seeking the sum of N247,066.00 (Two hundred and forty Seven Thousand, Sixty Six naira only) from NSRP project being unpaid salaries for the months of July, August and September, 2015 which the Defendant has refused to pay till date.
52. The Claimant in the second head of claim also claims the sum of N31,666.00 (Thirty One thousand, six Hundred and sixty six naira only) per month being the total amount Which accrued to the Claimant from the United States Embassy Project for the 19 days in the month of October, 2015 during his services with the Defendant which they refused to pay till date.
53. In third head of claim the claimant claims the sum of N298,000.00 (Two Hundred and ninety eight thousand naira only) being the unpaid salaries which accrued to the claimant for the months of July, August and September 2015, at the value of N68,000 (Sixty Eight Thousand naira only) per month, the salary for the 19 days in the month of October, 2015 which is N43,066.00 (Forty Three Thousand Sixty Six naira only) being unpaid salary from the United States Embassy Project and N63,333.00 (Sixty Three Thousand, Three Hundred and Thirty Three Naira Only) being salary from the MNISREROR Project which the Defendant have refused to pay till date.
54. By exhibit A the Claimant has been employed by the defendant for initial twelve (12) months period from 1st August 2014 to 31st July, 2015. This initial employment with the defendant certainly expired as stated in exhibit A in 12 months. It is clear that the defendant nevertheless continued to utilize the Claimant in the continued or renewed designation as its Project Manager. It is in the capacity as Project Manager that he continued with the defendant until his Summary Dismissal on 19th October, 2015. By this time a period of two months and 19 days has passed since his initial contract of employment had elapsed.
55. I find here that it is for the renewed period of employment that exhibit D the letter of summary dismissal of 19th October, 2015 was written. I made this conclusion in agreement with the Court of Appeal decision cited by the Claimants Written Adress at paragraph 4.1 from the case of ATER SCIENCE & TECHNOLOGY CO. LTD V. OGWUCHE (2016) ALL FWLR pt 848 684 @ 703 paras E4 where the Court held that contract of employment may be in any form and not necessarily in writing. A contract of employment may be inferred from the conduct of the parties. It can be shown that such contract was intended though not expressed.
It is clear from the facts of this case that the continuance of the claimant employment with the Defendant was clearly intended but it was never formally expressed in writing as was done with exhibit A of 1st August, 2014. I am however prepared hold that the same terms that regulated that initial employment still regulated the employment of which the claimant was dismissed from on 19th October, 2015 by exhibit D.
56. Though, a reading of exhibit A reveals that only Termination of Appointment was provided for. That is no mention of Dismissal was made. Never the less the power to summarily dismiss an employee with or without reason is one that employers are generally entitled to. In the case of EMMANUEL NWOBOSI V. AFRICA CONTINENTAL BANK LTD (1995) 6 NWLR (pt. 404) 658 the Supreme Court on the employer’s power to summarily dismiss employees held that on the accepted general legal principles, an employee may be Summarily Dismissed without notice wages if he is guilty of gross misconduct, and went on to cite BOSTON DEEP SEA FISHING CO V. ANSELL (1888) 39 CH D 339 and BABATUNDE AJAYI V. TEXACO NIGERIA LIMITED & OTHERS (1987) 3 NWLR (pt 62) 577.
57. In this case the Defendants pleadings on the Claimants dismissal cannot be looked since no evidence was led on them, having been serve that abandoned by the strategy adopted by counsel for the Defendant in it’s Final Written Address. The Claimant has pleaded amongst others at paragraph 21 of statement of facts that the Management of the Defendant had made several discriminatory and unfounded allegations against him, including fraud, stealing, cheating service misuse of trust between him and others staff of the organization, in discriminate affairs with women in the Defendant’s Office during and after work hours, putting up behaviours that seriously jeopardizes teamwork and cooperation, gross insubordination and serious infringement on the rules of the Organisation. He maintained his innocence in all these.
58. The Claimant then went on to plead in paragraph 23 that his salary was paid from three sources which includes NSRP PROJECT and MESSEROR PROJECT. However, I find that amongst the pieces of exhibit s tendered that he did not tender any pay slips as coming from any of these three bodies neither did he tender any statement of account on the receipt of the salaries he was claiming and for the specific months he was claiming for.
Critically, the claimant answered under cross examination that exhibit A, his letter of appointment made no reference to the US Embassy, N.S.R.P and MESSEROR. And he went on to admit that his salaries were paid by the Defendant.
59. It is also clear from the filed processes that in making this claim against the Defendant the N.S.R.P US Embassy and MESSEROR Projects were not joined as parties. So, in the face of the above admissions how then can the monies being claimed in the first. Second and third heads of claim be ascertained as owing to him as claimed and in what circumstances. The position of the Law has always been that it is the duty of the Plaintiff (Claimant) to join all necessary parties whose presence would be crucial to the resolution of the suit See AGBEKONI V. KAREEM (2007) LPELR – 8753 (CA), ADISA V. OYINWOLA (2000) SCNJ 290.
In the promises of above I find and so hold that the claims in head, 1, 2 and 3 must fail I hold that they do not succeed.
60. With regards to the fourth and fifth heads of claim special damages of
N2 Million for unlawful dismissal without notice and N5 Million as general Damages for hardship and economic inconvenience. On these are Defendant had submitted that the relief for unlawful dismissal had not been Claimed and proved the consequential claim for damages should fail. That damages will not be awarded where the main claim fails. Citing MESSRS BALOGUN OLOYEDE MUJAID V. IBADAN ELECTRICITY DISTRIBUTION COY (2020) LPELR - 49740 (CA).
61. And having held the first three heads of claim to have failed, the contention that the claimant did not claim for wrongful dismissal but rather for a declaration that the termination of the claimants employment without notice or one month salary in lieu of notice is illegal, unlawful, null and void, it must be stated right away here, just as the Defendant had submitted that this head of claim must fail as in this case the claimant failed to tender a termination letter expect exhibit D which is a letter of summary dismissal.
62. Termination and Dismissal are not the same thing. In Labour and Industrial relations law and for the purpose of this Judgment I hold that one would not be taken for the other. In this case the Claimant is not challenging the Summary Dismissal but he is challenging an unlawful termination which did not take place between him and the Defendant. On this distinction between Dismissal and Termination See UBN PLC V. SOARES (2012) II NWLR (pt 1312) 550 where the Court of Appeal held as follows:
“ There is a clear distinction between termination of contract of employment and a dismissal.
Termination gives the parties the right to determine the contract at any time by giving the prescribed period of notice. Dismissal on the other hand, is a disciplinary measure which carries no benefits. See ADEKO V. IJEBU ODE DISTRCT COUNCIL (1962) I SCWLR 349”
63. In this case the relief sought is not against summary dismissal and that which the claimant claims for in the six head of claim is for unlawful termination of employment. On this grounds and for the fact that exhibit D, speaks for itself on summary dismissal which the Claimant has not challenged, the claim in the 6th head of claim equally fails.
64. Now as to the claim in the 7th head for the retraction of the disclaimer. Here, I agree with the Defendant that a disclaimer simply means the claimant should no longer be associated with the Defendant. A claimant who wishes a retraction of a disclaimer has a duty to plead and prove the injury occasioned thereof, the words and innuendo used. In this case it does not appear to me that the Defendant has successfully pleaded proved the offence and the injury suffered. See DR. EBONG V. UNIVERSITY OF UYO & OTHERS (2019) LPELT – 48730 (CA) @ 29 – 36. This 7th head of claim fails and I hold as such even as a balance of probabilities.
65. Now the Claimant in the reply on point of law had raised a fresh issue concerning the appearance of new counsel for the Defendant the Claimant had stated.
“In this matter, neither M.S. Waziri, Esq. of M.S. Waziri & Co nor Nureini Jimoh of Nureini Jimoh Chambers gave notice of the representation of the new counsel who filed a notice of change of Defendant’s address of Service dated 13th January, 2021 which does not and cannot operate as notice of change of counsel”
The Claimant through counsel submitted that the failure of new Counsel, Nureini Jimoh, SAN of Nureini Jimoh Chambers to give necessary notice to the Court and the Claimant of his representation in this matter renders his appearance and process filed on behalf of the Defendant (The Defendant’s Final Written Address dated 13th January, 2021) to be in competent before the Court as both the process and the Counsel who filed same are unknown to the as representing the Defendant.
On the 9th of February 2021 when the case came up for adoption of Final Written Addresses the claimant was represented by P.O. Osariemen, Esq. and T.D Barde, Esq. Nureini Jimoh appear with 5 other Lawyers, for the Defendant. In his words he said:
“I am new to this case my instruction was to join M.S. Waziri, Esq. in this case”.
He also told the Court that he realized they had to file a Final Written Address and a Motion to regularize as such was moved without opposition from the claimant and was granted by the Court.
In the writing of this Judgment, after reading all the processes of the parties, especially the Final Written Address of the parties I knew would have to address this one but I felt it need not affect my decision on the way the matter had to be decided because I was not prepared to declare the appearance of Counsel i.e Nureini Jimoh, SAN for the Claimant and the Final Written Address incompetent as urged on the Court by the Claimant. This is for the simple reason, that M.S. Waziri, Esq. whom he joined is not complaining and secondly to do so would deprive the Defendant’s voice, in essence it’s right to Fair Hearing as guaranteed under Section 36 of the 1999 Constitution as Amended.
Lastly, for the purpose of emphasis the case of the Claimant fails and is hereby dismissed. There are no awards as to cost.
Judgment is entered accordingly.
Hon. Justice E. D. E. Isele